Just when we thought things could not get any worse, somehow they did. In the midst of a global pandemic, economic collapse, mass unemployment, and racial divide, we were exposed to a dark truth about police brutality—a truth we could not unsee because the weight of its evidence pressed down squarely on our neck.
Chances are that by the time you read these lines the world will have already changed again. No one now can possibly keep up with the seismic transformations taking place globally, a paradigm shift triggered at the surface level by violent events perceived as reactions that point to racism throughout the nation and the world—implicit and obvious but actually resulting from a deeper groundswell of longstanding social frustration.
We now live in a country where factions of our citizenry believe police have moved from revered to racist, from guardian to warrior, from peacekeeper to punisher, and from public servant to public enemy number one.
Fortunately or unfortunately, video footage shot in real-time does not lie, but neither do the numbers. The difference is where we choose to look. What we are failing to see is a paradigm shift that has moved the ...
On March 27, 2020, the U.S. Court of Appeals for the Sixth Circuit vacated a firearms possession conviction from the U.S. District Court for the Northern District of Ohio because the Government showed the jury a social-media video of a masked person it alleged was the defendant holding a firearm, without authenticating the video or seeking its admission as evidence.
Terrance Craig was a passenger in an SUV involved in an exchange of gunfire with another vehicle. Police saw Craig toss something into the backseat and recovered a 9 mm handgun with an extended magazine on which they later discovered Craig’s DNA. When arrested, Craig was wearing a shoulder holster. On the way to the police station, an arresting officer said he had seen a Facebook rap video of Craig holding a similar extended-magazine handgun.
Craig was charged with one count of possession of a firearm and ammunition after a felony conviction in violation of 18 U.S.C. § 922(g).
During the trial, both arresting officers told the jury about the rap video, saying it was Craig, and he was wearing the jacket from the video when arrested.
Craig admitted that he was a felon and possessed the ...
The U.S. Court of Appeals for the Tenth Circuit ruled that a deputy trying to help a woman retrieve her belongings by opening the lid to a camper did not make a subsequent warrantless search lawful under the community-caretaking exception to the warrant requirement.
Deputy Buddy Clinton and Sergeant John Wofford responded to a report of a verbal altercation between Jack DeWayne Neugin and his girlfriend, Julie Parrish, in a restaurant parking lot. When Clinton arrived, Neugin was sitting on the curb, and Parrish was inside the restaurant.
Clinton learned the couple’s pickup truck had broken down. He went inside the restaurant to help Parrish arrange a ride while Wofford stayed with Neugin. Parrish told Clinton she needed to retrieve her belongings, so he accompanied her to the truck. Without obtaining permission, Clinton opened the lid of the camper attached to the back of the truck. As he did so, he looked inside and saw “a large bucket containing several rounds of ammunition.” He asked who owned the ammunition, and Neugin said he had obtained it from a deceased family member. Clinton set the bucket aside while Parrish removed her items from the truck.
Clinton requested dispatch ...
In my last column, we went over the general standard for showing ineffective assistance of counsel (“IAC”) in the guilty plea context under Strickland v. Washington, 466 U.S. 668 (1984).
In this column, we’ll go over the showing required to establish prejudice in the different categories of IAC regarding guilty pleas.
There are three main categories of IAC in the guilty plea context: (1) bad advice to plead guilty, (2) bad advice to reject a plea offer, and (3) the failure to communicate a plea offer or option to plead. And under each category, the Strickland standard applies, but how to establish “prejudice” to meet that standard varies by category.
The purpose of this column is to help you understand how to meet Strickland’s prejudice standard for whichever category your claim falls under.
Bad Advice to Plead Guilty
By far, most IAC claims attacking the guilty plea will fall under the category where counsel’s bad advice induced the guilty plea. The prejudice showing required for this category of claims was announced by the U.S. Supreme Court in Hill v. Lockhart, 474 U.S. 52 (1985): “The defendant must show that there is a reasonable probability that, ...
A recent report found that officers in the New York Police Department (“NYPD”) fired their Tasers 995 times in 2018. Of those incidents, 224 times the use of the Tasers was unintentional.
Retired NYPD Captain John Eterno, now director of graduate studies in criminal justice at Malloy College, was shocked by the number. “I could understand a few, but that’s a lot,” Eterno said. “It’s definitely a training issue.”
The annual NYPD report was released a day before the Civilian Complaint Review Board (“Board”) released a review of complaints regarding police Taser use between 2014 and 2017. The review found officers and executives received differing levels of training on how to use the devices.
The Board recommended that instruction to beat cops be equivalent to that received by their bosses. The Board also suggested police rely on de-escalation tactics rather than use of force—particularly with emotionally disturbed persons.
A spokesman for the NYPD said, “Our guiding principle, in all cases, is to use only a reasonable level of force necessary in any situation.”
And on that note, NYPD data show that in 2017 a newer Taser, known as the X26P, was less effective and resulted in officers ...
The Supreme Court of California held that California Penal Code § 459.5(b) prohibits charging both shoplifting and theft for the same property, even in the alternative.
Anthony Lopez exited a Walmart pushing a cart containing merchandise valued at $496.37. An asset protection officer confronted him, and Lopez admitted he had not paid for the items. Lopez later told police that he had gone to Walmart with $5 to purchase a few items and had no intention of stealing anything. But once inside the store, he decided he needed money and placed the items in his cart and left without paying for them. The prosecutor filed a complaint charging Lopez with felony shoplifting under § 459.5(a) but amended the complaint to add a charge of petty theft with priors under § 484(a) and § 666. Lopez’s attorney did not demur to, or otherwise object to, the amended complaint.
At Lopez’s trial, the jury submitted a note stating “split on the decision for shoplifting, based on intent.” The jury found Lopez guilty of petty theft, but the court declared a mistrial on the shoplifting charge and dismissed it on the motion of the prosecutor. In a bench trial, the ...
The U.S. Court of Appeals for the Fourth Circuit held on April 20, 2020, that counsel’s erroneous advice that an open guilty plea without a plea agreement would allow an appeal of the denial of a motion to suppress evidence amounted to ineffective assistance of counsel (“IAC”), where the defendant showed that the ability to appeal drove his decision to plead guilty.
After the U.S. District Court in Maryland denied Sheriff Akande’s motion to suppress the evidence in his bank fraud case, he pleaded guilty without a plea agreement (“open plea”). The district court held a hearing, advising Akande of the rights he was waiving by pleading guilty and accepted his plea. But before he was sentenced, Akande’s lawyer moved to withdraw his guilty plea, admitting on the record that she told Akande that if he pleaded openly, “he would be preserving all of his appellate rights.”
She conceded that this was “not a correct statement of the law.” In fact, he could only preserve his right to appeal the suppression motion denial if he entered a conditional plea allowing an appeal or if he went to trial.
Before the court could decide the motion to withdraw ...
The Supreme Judicial Court of Massachusetts ruled that imposition of GPS monitoring as a condition of bail was an unreasonable search because the monitoring did not further any legitimate governmental interest.
In July 2015, Eric Norman was charged in Boston Municipal Court with possession of a Class B substance with intent to distribute. Two of the conditions of his pretrial release were that he was to stay out of Boston, and he was ordered to wear a GPS monitoring device. He signed a form consenting to the release to the government of coordinates and other data related to his physical location and that he understood if he violated the terms of his release he could be jailed.
Then in August 2015, a home invasion and robbery occurred at a residence in Medford. Without any information connecting Norman to the crime, police asked the probation office to check its electronic monitoring (“ELMO”) records to determine if anyone under GPS supervision was present at the crime. The police obtained neither a warrant nor a court order for the GPS location data. The stored data from ELMO identified Norman as being present when the crime was committed and that he ...
For the second time in the past year, the U.S. Court of Appeals for the D.C. Circuit overturned a decades-old murder conviction after the federal government admitted that it used faulty hair evidence to secure the conviction.
After almost 50 years of sitting in prison on a murder conviction, Dennis Butler was notified by the Government that the hair evidence it used at trial to convict him was faulty, and it agreed to waive any procedural defenses against allowing Butler to move for relief in the district court.
Butler was arrested in 1970 and charged with the murder of Jesse Mears in Northeast Washington, D.C. It was alleged that Butler had tied up Mears and then strangled him with a phone cord. The story was that Mears had caught Butler selling drugs to “two boys” at an apartment complex where Mears worked. At trial, the prosecutor introduced hair evidence that was found on the dead man’s clothing. A so-called expert testified that the hair evidence was “microscopically the same or alike” as Butler’s hair. On the stand, the expert testified,” My report and my testimony is that these hairs are the same. They are alike in all ...
The Supreme Court of the State of Minnesota affirmed a decision by the Court of Appeals, which held the district court erred in denying a defendant’s request for non-identifying information about a confidential informant (“CI”).
In February 2017, law enforcement filed an affidavit requesting a search warrant for the home of Tyler James Dexter. The affidavit claimed a CI had visited Dexter’s home within the previous 72 hours and saw firearms and large quantities of marijuana. Police executed the warrant, found the marijuana and guns, and charged Dexter with fifth-degree possession of a controlled substance under Minn. Stat. Section 152.025, subd. 1(1).
Prior to trial, Dexter filed for information relating to the CI, both their identity and information about their relationship with police. The district court denied this information, citing the State’s common-law privilege “to withhold from disclosure the identity of persons who furnish information” to law enforcement. See Roviaro v. United States, 353 U.S. 53 (1957).
Dexter then filed to suppress the evidence of the search on the grounds that the CI was an agent of the State and had search his property illegally. This motion was denied because Dexter lacked information on the CI’s ...
In a case of first impression, the Supreme Court of Michigan held “that MCR 6.302(B)(2) requires the trial court, in cases where such advice is relevant, to advise a defendant of its discretionary consecutive-sentencing authority and possible consequences of that authority for defendant’s sentence.”
The Court’s April 29, 2020, ruling was issued in an appeal brought by Kelly C. Warren. He drove while intoxicated in November 2014 and also did so the following summer. In each case, he was charged, among other crimes, with operating a vehicle while intoxicated, third offense (OWI-3rd). The prosecution gave notice of a sentence enhancement as a habitual offender — as a fourth-offense habitual offender.
Warren agreed to plead guilty to one count of OWI-3rd in each case in exchange for dismissal of the remaining charges and the habitual-offender enhancement. During the plea hearing, the trial court confirmed with the parties that each charge carried “a five year maximum.”
At no point did the court inform Warren that it had authority under MCL 768.7b(2)(a) to impose consecutive sentences. It ultimately sentenced him to consecutive two- to five-year prison terms because he had committed a felony while released on bond for another ...
The Supreme Judicial Court of the Commonwealth of Massachusetts (“SJC”) upheld a superior court’s order suppressing evidence obtained from a cellphone because the search of the cellphone was unsupported by probable cause, and the officer failed to follow guidelines relating to inventory of property.
Tomas Barillas was arrested in March 2017 on an outstanding warrant for three different criminal cases for larceny and drug offenses.
Lynn police had also received a tip that he was responsible for the fatal stabbing of Jason Arias. Lieutenant Thomas Reddy of the Lynn Police Department and Trooper Matthew Wilson of the Massachusetts State Police both participated in the arrest at the home of Barillas’ parents, but it was Trooper Wilson who, upon arresting Barillas, patfrisked him and seized a cellphone from his pocket.
Barillas was transferred to the Lynn Police Department Station. Trooper Wilson kept the cellphone on his person instead of submitting it as part of the detainee’s property, as was required by policy. Barillas’ father, Eduardo, and his minor brother, James (a court pseudonym), were voluntarily interviewed while Barillas was being booked. James disclosed to Wilson that the cellphone belonged to him, not Barillas, and described its unique markings, ...
The U.S. Court of Appeals for the Seventh Circuit reversed the decision of the U.S. District Court for the Northern District of Illinois that denied Anthony Howell’s motion to suppress, holding that police lacked reasonable suspicion to frisk him.
Chicago Police Officers Sean Kelly and Christopher Miller arrived at a warehouse in response to an anonymous 911 caller who reported that a Hispanic male wearing a black sweater and black hat and carrying a black bag was climbing under the fence surrounding a warehouse. The officers stopped Eric Escobar who was walking outside the warehouse in question and patted him down.
After the officers determined Escobar worked at the warehouse, Escobar noticed another person (later identified as Howell) walking toward the officers. Escobar suggested that Howell was the person the officers were looking for. Kelly called from across the street, “What’s going on?”
Howell was a white male and wasn’t carrying a bag. But according to Kelly, Howell did not answer. Instead, Howell “did a “quick double take,” had “a look of panic on his face,” and placed his hands in his pockets. Kelly approached Howell and immediately frisked him for weapons. Kelly felt a hard object ...
One of the things most free governments around the world have historically admired about the United States is its willingness to open its file cabinets’ many drawers to its citizens upon request. Since the passage of the Patriot Act that followed the Twin Towers’ destruction on 9/11, however, that willingness to disclose information under the Freedom of Information Act (“FOIA”) by the government has become increasingly limited by congressional acts with whatever remains untouched steadily dwindling.
Journalist Emma Best has submitted enough FOIA requests that she is considered to be a “vexatious” requester, according to techdirt.com writer Tim Cushing. She has filed more than 1,600 FOIA requests with the FBI alone.
What the government often does is deny, dilute, and redact its responses in order to “secure the nation” and “protect the integrity of deliberative processes.”
AlphaBay was one of the many progenies of the dark web’s Silk Road, a clandestine URL site where anything from firearms, identities, and narcotics had been bought and sold. A U.S. Department of Justice (“DOJ”) taskforce, combining elements of the DEA, FBI, and IRS, took down AlphaBay in 2017.
The DOJ issued a public statement about the operation and posted it ...
In an unusual move, the U.S. District Court for the Northern District of Texas rejected the typical remedy under 28 U.S.C. § 2255 and instead opted to grant a “judicial remedy” to allow an out-of-time appeal, where the Court found that counsel was ineffective for failing to file a direct appeal.
Perhaps one of the most common claims under § 2255 is ineffective assistance of counsel (“IAC”) for failing to file a requested appeal in a criminal case. That’s what Devonte Dillard claimed in his § 2255 motion, and that’s the claim the Court agreed deserved relief. But how the Court granted Dillard relief was not the way most other courts have typically done it.
Dillard pleaded guilty in 2016 to conspiracy to commit Hobbs Act robbery under 18 U.S.C. § 1951 and to using a firearm in furtherance of that conspiracy under 18 U.S.C. § 924(c). He was then sentenced to 20 years in federal prison without parole, 10 years for the conspiracy and 10 years for the firearm, running consecutively. He did not appeal. Instead, Dillard moved for relief under § 2255 claiming that (1) his § 924(c) conviction was now unconstitutional in light of ...
The Court of Appeal of California, Fourth Appellate District, held on April 30, 2020, that the trial court abused its discretion when it denied a motion for compassionate release based upon considerations other than those set forth in Pen. Code § 1170, subd. (e).
The Department of Corrections and Rehabilitation found that Tony Flores Torres was terminally ill and deserved compassionate release, and the Board of Parole Hearings (“Board”) agreed.
With that support, Torres filed his motion in the trial court for compassionate release. The 76-year-old prisoner cited his battle with cancer, which has left him in a wheelchair and unable to move his head. Doctors for the Board confirmed he “does not retain the capacity to commit or influence others to commit criminal acts that endanger the public safety.” They also found he had less than six months to live. Both findings met the criteria for relief.
That was in April 2019. Four months later, the court denied his motion. It found that while Torres met the statutory criteria for compassionate release, as the Board suggested, he didn’t “deserve” release. The judge said he had discretion to deny relief and was doing so because Torres was ...
The Supreme Court of Colorado held that a warrant authorizing a general search of Pamela Kay Coke’s cellphone was overbroad and violated the Fourth Amendment’s particularity requirement.
Fifteen-year-old T.F. told police Coke had sexually assaulted him. T.F. gave officers his cellphone, which contained messages from “Pam” apologizing (without saying why) and asking T.F. to take a walk with her so they could talk. Two officers went to Coke’s office to speak with her. The officers explained that she was not under arrest and did not have to speak with them.
Coke responded that she had retained a lawyer, and she did not want to speak without her lawyer present. The officers also told Coke they were seizing her cellphone as possible evidence. They took the phone and obtained a warrant to search all texts, videos, pictures, contact lists, phone books, phone records, electronic data packets, and data showing ownership or possession on the cellphone. The ensuing search revealed that Coke’s phone was the source of the text messages on T.F.’s phone.
Before trial, Coke moved to suppress all evidence, including the evidence found on her phone. The trial court granted the motion, concluding, in pertinent part, that ...
The U.S. Court of Appeals for the Eleventh Circuit held on April 8, 2020, that a prior conviction under Georgia’s terroristic threats statute was overbroad and therefore failed to meet the elements clause of the Armed Career Criminal Act (“ACCA”).
Najee Oliver was sentenced as an armed career criminal based on two prior drug convictions and a Georgia terroristic threats conviction. He had argued in the district court that Georgia’s statute fell outside ACCA parameters, objecting to the presentence report’s (“PSR”) conclusion that he had to be sentenced under the ACCA’s 15-year mandatory minimum because of those priors.
The district court disagreed with Oliver and imposed the 15-year sentence.
On appeal, Oliver raised his preserved error, again arguing that the terroristic threats statute is overbroad because it includes damage to property without requiring personal injury. Having the question properly before the Court, the Eleventh Circuit agreed with Oliver and held the statute is overbroad for those very reasons and, for the first time, discussed why the statute does not meet the ACCA’s elements clause.
Under the ACCA, a prior conviction for a “violent felony” qualifies if it “has as an element the use, attempted use, or threatened ...
Recent protests, catalyzed by the murder of George Floyd in Minneapolis, call for an end to racist police violence. With their actions, the protesters have also moved beyond many of the stale policing debates of the recent past. Defund, disband, abolish—people who would never have even heard these words in discussions about the police are now seriously considering them.
The breakthroughs in the police debate would not have been possible without the protesters, who have remained steadfast despite being beaten and abused by police everywhere in the United States. But this is not about making a breakthrough in the debate. This is about life and death. To stop police from killing people, 1,000 a year, year after year, changes will have to be made to the system. The protesters will be vindicated only if the changes made are the right ones.
Reform programs will only be successful if they start from the premise that the policing institution has lost its social legitimacy, which it never deserved. Reforms that assume police legitimacy—whether they involve more body cameras, better oversight, a more diverse force, or more prosecution of killers among the police—do not do the ...
Since the rise of social media and ever-present cellphones with cameras, the narrative around these developments has been that justice is rapidly democratizing.
While many law enforcement failures and abuses have been exposed by citizens with technology, this trend is not the case for all technology. “Access to digital forensics can mean the difference between exoneration and prison time,” reports The Appeal.
For instance, DNA technology is (mistakenly) regarded as a neutral form of incontrovertible proof. But this perception ignores asymmetries in resources and incentives between prosecutors and defense counsel. Prosecutors regularly oppose testing samples that can exonerate people, including people scheduled to be executed.
DNA evidence has now opened up to unregulated use of genealogy databases by law enforcement to track suspects. Policies vary from agency to agency, and some, like the Orlando Police Department, have no policies at all.
“In California, an innocent twin was jailed. In Texas, police met search guidelines by classifying a case as sexual assault but after an arrest filed charges of burglary,” according to Paige St. John of the Los Angeles Times.
The Black Lives Matter movement has been successful at advocating for the use of body cameras for ...
The Supreme Court of Kansas held that a district court “failed to properly apprise [Bryan Richard] Harris of his right to a jury trial and failed to ensure that Harris understood the nature of the right he was giving up.”
Harris was transported to the Atchison County Jail after being arrested on an outstanding misdemeanor warrant. At the jail’s intake, someone removed Harris’ jacket and placed it on the intake bench. After Harris was patted down and placed in a holding cell, someone moved the jacket to a filing cabinet behind the intake desk. About 20 minutes later, an officer searched the jacket and found cigarellos that contained marijuana. Harris was charged with a felony in connection with the marijuana.
At arraignment on the felony, Harris pleaded not guilty. His attorney first asked the court to set the case for trial and then asked Harris if he wanted “a judge or a jury?” Harris answered, “Go with the judge. I want the bench.” The district judge then asked, “Are you asking for a jury trial, Mr. Harris?” Harris answered, “I’m asking for a bench trial.... I don’t want to waive no liabilities, right?” Harris’ attorney then interjected, ...
The U.S. Court of Appeals for the Fourth Circuit remanded a case to the U.S. District Court for the District of Maryland because the lower court failed to provide sufficient development on the record to determine whether the use of a stingray device violated the defendant’s rights.
Kerron Andrews was wanted for attempted murder in 2014 when Baltimore City Police used a cell-site simulator (aka stingray device) marketed as “Hailstorm” to track him down inside an apartment in Baltimore, Maryland.
After his arrest, he prevailed on a motion to suppress contraband found during his arrest because the state court decided the warrant used to locate him was too vague since it did not disclose the use of the Hailstorm, which the court described as a “far-reaching new search technology.” State v. Andrews, 134 A.3d 324 (Md. Ct. Spec. App. 2016).
Andrews then sued the city in federal court for conducting a search without a valid warrant. The federal court found that the warrant was sufficient in its vague description of the Hailstorm simulator to support the warrant and thus the search. It did so without conducting “factfinding into (1) the surveillance capabilities and configuration of the ...
The law was sponsored by Senator Julie Daniels and Representative Chris Kannady, making Oklahoma the third state to enact jailhouse informant laws. Maryland enacted a similar law in April, and Connecticut did so last year.
The leading cause of wrongful convictions has consistently been the use of eyewitness identification (which includes jailhouse informants) and false confessions. In John Grisham’s book The Innocent Man, he told the true story of the wrongful convictions of Ron Williamson and Dennis Fritz, who were wrongfully convicted of the rape and murder of Debbie Sue Carter in Ada, Oklahoma, in 1982.
While Williamson was in jail for writing bad checks, a jailhouse informant told authorities that he confessed to Carter’s murder. Fritz also was implicated in the crime, and they were both convicted by jailhouse informant testimony. Williamson was sentenced to death; Fritz was sentenced to life in prison. That same jailhouse informant had been used multiple times in other cases to secure convictions and had received substantial benefits — none ...
The Supreme Court of South Carolina reversed Billy Phillips’ murder conviction because the State presented improper testimony regarding DNA evidence and provided information to the jury that was simply wrong.
Well-known drug dealer Darius Woods was found shot to death on his couch. His handgun — the murder weapon — was laying on his chest. He was known to carry large amounts of cash, and his pockets were turned inside out, indicating robbery. After his arrest, Phillips filed a pretrial motion seeking to exclude the expert testimony of Lilly Gallman regarding DNA testing she had performed. The trial court held a hearing on the motion but did not take any testimony. The trial court ruled Gallman’s testimony was admissible.
Gallman testified that of the 13 DNA samples submitted for testing only 11 samples contained enough DNA for testing. She testified that the samples were “touch DNA.” (Touch DNA, also known as “trace DNA,” comes from epithelial cells that are deposited after a person touches or handles an object.) Gallman compared the DNA samples prepared from the remaining 11 samples with a sample submitted by Phillips. She testified that he was excluded as a contributor from all but ...
The Supreme Court of Iowa announced that the words “good cause” in the newly amended appeals statute of Iowa Code § 814.6(1)(a)(3) means “a legally sufficient reason.”
Mercedes JoJean Damme pleaded guilty to two counts of theft in the third degree. The State agreed to seek no more than a two-year sentence that would be suspended if Damme was accepted into a program with the Waterloo Women’s Center for Change. The State also agreed to follow any more lenient sentence that may be recommended in her presentence investigation report.
At Damme’s sentencing on July 1, 2019, the trial court rejected the State’s recommended suspended sentence and imposed indeterminate terms of two years of imprisonment on each count to be served concurrently, a $625 fine, a criminal surcharge of 35 percent, court costs, attorney fees, a law enforcement initiative surcharge of $125, and restitution.
Damme appealed her sentence on numerous grounds, but she did not challenge her guilty plea or conviction. The State argued that Damme’s appeal should be dismissed because she failed to establish good cause for the appeal as required by Iowa Code § 814.6 (2019).
The Iowa Supreme Court observed “[t]he Iowa legislature amended Iowa ...
The Supreme Court of South Carolina dismissed the State’s appeal of a guilty plea and affirmed denial of motions to reconsider the sentence for recusal of the trial court.
The Court’s order came in an appeal the State brought in the prosecution of Rick Quinn, Jr. He is a former member of the South Carolina House of Representatives, having served from 1989-2004 and 2010-2017 and as House Majority Leader from 1999-2004.
In 2014, a state grand jury was convened to investigate alleged public corruption by former and current members of the South Carolina General Assembly. As it related to Quinn, the investigation focused on his “practice of using his office as House Majority Leader and leader of the House Republican Caucus to direct mailing and political services to his family’s businesses, First Impressions, which did business as RQ&A.
The investigation resulted in Quinn being charged in May 2017 with statutory misconduct in office and common law misconduct in office. A charge of criminal conspiracy was lodged in October 2017. Charges of failing to register as a lobbyist was brought against RQ&A, Quinn’s father’s business, at that time.
At a plea hearing on December 13, 2017, Quinn ...
National forensic science organization approves standards for interpreting DNA mixtures.
by the National Institute of Standards and Technology, U.S. Department of Commerce
The Organization of Scientific Area Committees (OSAC) for Forensic Science has placed two new standards covering the interpretation of DNA evidence on its registry of approved standards. This stamp of approval from OSAC, which is administered by the National Institute of Standards and Technology (NIST), indicates that these standards are technically sound and will help forensic laboratories improve their processes and methods.
OSAC is a professional organization whose 550-plus members have expertise in 25 forensic disciplines as well as scientific research, measurement science, statistics, law and policy. OSAC works to strengthen the practice of forensic science by facilitating the development and promoting the use of high-quality, science-based standards.
This milestone is the culmination of an effort that began in 2015. The two new standards were initially drafted by OSAC, then further developed and published by the Academy Standards Board (ASB) of the American Academy of Forensic Sciences, and finally reviewed by OSAC for placement on the registry. The new standards are:
- ANSI/ASB Standard 020, Standard for Validation Studies of DNA Mixtures, and Development and Verification of ...
For instance, it is not unusual for a person with a cellphone to receive a text message and accompanying coupon for a business they are strolling by. Yes, Big Business wants your business to the point that it tracks your every move through your smart phone. Big Business is on point and on its toes in its never-ending quest for its share of the almighty dollar. It is, however, the entity that mints those dollars that citizens need be aware of.
Big Brother has partnered with Big Business in a Big Way to share the ability to track peoples’ movements. The Wall Street Journal (“WSJ”) reported on a major operation by the Department of Homeland Security’s (“DHS”) Customs and Border Protection division in early 2020. The anomaly the agencies focused on was a spate of cellular phone signals in a remote desert area between ...
Perhaps the most famous case involving one’s mental state comes from England in 1843, where Daniel McNaughton was acquitted by reason of insanity for slaying the British prime minister’s secretary. The McNaughton rule has since been adopted throughout the U.K. and by half the states in the U.S., yet it was not until the 20th century that actual clinical diagnoses became widely recognized in the courtroom. Even so, many judges and juries have been reluctant to rely on psychological arguments. What has been lacking is a hard science of results that can be measured and reproduced.
Neuroscience is changing that.
Advances in technology have allowed researchers to begin mapping mental processes and deficits. A pivotal case in 1981 saw the attorneys for John Hinckley, Jr. ...
The Supreme Judicial Court of Maine vacated one of Ronald Paquin’s convictions for gross sexual misconduct on double jeopardy grounds and ordered the trial court to enter a judgment of acquittal on three additional counts.
Paquin served as the priest at the Roman Catholic Church in Haverhill, Massachusetts, when he allegedly engaged in sex acts with two boys under the age of 14. Paquin was indicted on 15 counts of gross sexual misconduct against Victim Number 1 (Counts 1-13 and Counts 30-31) and sixteen counts of gross sexual misconduct against Victim Number 2 (Counts 14-29). The indictment to Count 5 charged that Paquin, “[o]n or about between [sic] November 1, 1986 and February 28, 1987, in Kennebunkport, YORK County, Maine ... did engage in a sexual act with [the victim] ..., not his spouse, who had not in fact attained his fourteenth birthday.”
The indictment charging Count 30 read identical to Count 5 but with the dates changed to December 1, 1986, and December 31, 1986, and with the additional language “To wit: Engaging in a sexual act in the form of direct physical contact between the genitals of [the victim] ... and the mouth of Ronald ...
The U.S. Court of Appeals for the Eighth Circuit affirmed habeas relief to two codefendants on April 29, 2020, after an Arkansas state prosecutor (now a state supreme court justice) intentionally destroyed evidence about favorable treatment for a jailhouse informant that influenced the jury’s verdict.
Over 30 years ago, Myrtle Holmes was found dead in the trunk of her car in Fordyce, Arkansas, after a robbery at her house. Charlie Vaughn, John Brown, and Reginald Early were charged with capital murder in her death, and Vaughn took a plea. As part of that deal, he implicated not only Brown and Early in the murder but also Tina Jimerson who allegedly drove them to the house. Vaughn’s factual basis for his guilty plea was read to the jury at the consolidated trial of the other three, and all three were convicted and sentenced to life in prison. Their convictions became final after their appeals were exhausted in 1994.
The Jailhouse Snitch
Vaughn’s guilty plea was driven by his taped confession by a jailhouse informant. In March of 1991, an arrestee named Ronnie Prescott asked the police how he could get out of his pending drug charges. He was ...
Based on Rehaif v. United States, 139 S. Ct. 2191 (2019) (“Rehaif II”), the U.S. Court of Appeals for the Eleventh Circuit vacated Oniel Christopher Russell’s conviction of possessing a firearm and ammunition as an immigrant unlawfully in the U.S. in violation of 18 U.S.C. §§ 922(g)(5)(A), 924(a)(2).
Russell arrived in the U.S. on October 29, 2008, as an authorized nonimmigrant visitor. In February 2012, Vanessa Hood — a U.S. citizen — filed a Form I-130, Petition for Alien Relative, seeking to classify Russell as her spouse. The U.S. Citizenship and Immigration Services (“CIS”) approved her petition in July 2012. Russell then filed a Form I-485, Application to Register Permanent Residence or Adjust Status. But Hood subsequently requested her petition be withdrawn after discovering that Russell was still married to another woman in Jamaica.
In October 2016, CIS canceled Hood’s I-130 application and Russell’s I-485 application.
But in the intervening period, on August 24, 2013, police discovered during a traffic stop a loaded Ruger firearm in the glove compartment of a vehicle driven by Russell. He gave a sworn statement claiming ownership of the Ruger, and he was released without being arrested. Then in December 2017, ...
The Supreme Court of Washington determined that Alejandro Escalante was “in custody” and entitled to the warnings enunciated in Miranda v. Arizona, 384 U.S. 436 (1966), when he was detained for a search at the U.S.-Canada border.
Escalante and three friends were returning from a music festival. Border patrol agents were searching all vehicles coming from the festival. Escalante and his friends were directed to a secondary inspection area. Agents took their documents. The men were told to leave their belongings in the van and wait in a secondary “lobby.” The lobby was an 11-by-14-foot secured room that was not accessible to the public. The door was locked and controlled by an agent sitting behind a glass partition. Those detained in the lobby could neither use the bathroom nor access water without first obtaining permission and submitting to a pat-down search.
Agents patted down all four men, finding narcotics on two of them but none on Escalante. The two men with narcotics were moved to detention cells while Escalante and the fourth man continued to be held in the lobby. All of the men were held for five hours while agents searched the van. During this ...
Issues facing exonerees and wrongfully convicted individuals have been recurring topics in CLN and PLN. Still, there’s another category of arguably similarly situated citizens that must also be paid some attention: Those who were wrongfully accused of crimes they did not commit.
Even though a great many of these innocents were cleared of culpability and released before trial and others prior to being indicted, consider those whose lives were temporarily disrupted. Some of these victimized citizens’ lives would be all but destroyed just by their accusation and arrest.
Brandon Gonzales, 23, was attending a homecoming party in October 2019 at a Greenville, Texas, event hall. He had left the event and was sitting in a car outside when gunfire erupted from within the venue. He was told by fleeing partygoers that someone was inside shooting a firearm. Two partiers were killed, and many others wounded. Gonzales left the area and went home, thankful that neither he nor any of his friends had been among the dead or wounded, resuming his former life ... for a short while.
Gonzales would fall victim to an all-too-real (and common) example of an erroneous eyewitness identification. Three days after leaving ...
The U.S. Court of Appeals for the Fourth Circuit held on April 23, 2020, that a retroactive change in law that rendered a career offender sentence erroneous required a district court to fix that error when resentencing under the First Step Act’s application of the Fair Sentencing Act (“FSA”) to lower a crack cocaine sentence.
Brooks Chambers was sentenced 15 years ago to almost 22 years in federal prison without parole for conspiracy to distribute 50 grams or more of crack cocaine. At the time, this offense (because of a prior drug conviction) required a mandatory minimum of 20 years in prison. While the FSA retroactively changed the crack cocaine amounts that would trigger higher statutory sentences, Chambers couldn’t get resentenced under the FSA itself because he was a career offender.
When the First Step Act was enacted and applied the FSA retroactively to even career offenders, Chambers filed a motion under 18 U.S.C. § 3582(c)(1)(B), which allows the district court to “modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute.” The U.S. District Court for the Western District of North Carolina agreed that Chambers qualified under the First Step Act, but ...
The study was thorough; it used 189 different facial recognition algorithms submitted by 99 companies.
The problem is exacerbated by the fact that the technology returns an inordinate number of false-positives targeting minorities.
The study found that African American people were 100 times more likely to be misidentified than white men, depending on the algorithm used.
The faces of African American women were falsely identified by facial recognition programs most often, when the most common kind of search used by police investigators where an image is compared to thousands or millions of other images in hopes of a match.
However, the highest false-positive rate of all ethnicities, according to the study, was for Native Americans. Middle-age men consistently had the highest accuracy rate. That’s also the group that promotes the use of facial recognition software in fighting crime.
Last year, the American Civil Liberties Union (“ACLU”) conducted an experiment using Amazon’s “Rekognition” facial recognition software ...
Despite being innocent of the crime, after intensive browbeating by cops, he pleaded guilty. This is not as uncommon as it may seem. A full 18 percent of exonerations arise from guilty pleas. [CLN, August 2019]
The victim’s mother, Carol Dodge, was never quite fully convinced of Tapp’s guilt in the death of her daughter Angie. In a surprising twist, it was Dodge who steered the exoneration efforts to genetic genealogist Cece Moore. Moore was able to use cutting-edge technology to resurrect remaining leftover DNA evidence in a highly degraded state to find a match between it and the killer on the DNA profile match company GED Match. The accused, Brian Leigh Dripps, Sr., pleaded guilty to the crime. [CLN, December 2019, p. 41]
A newly exonerated Tapp was freed from prison in 2017 to a new life — hard labor shoveling hot tar on a road crew. Idaho’s prison system, like most others, provides virtually nothing in the way ...
The “Show Me” state showed indifference to human life by carrying out the death sentence of Walter Barton on May 19, 2020, at the state prison in Bonne Terre, Missouri. Neither the courts nor the governor would intervene.
Executions require interactions among large numbers of people. Court personnel is involved with last-minute hearings. Attorneys must interview witnesses. There are witnesses to the execution itself. The press must be there. Members of the victim’s family are usually in attendance, as well as friends and family of the prisoner being killed. Clergy are involved. Prison staff participate in the execution. Because of coronavirus concerns, the prison required checking workers’ and visitors’ temperatures and the wearing of face masks.
Texas, the leader in U.S. executions, has rescheduled six executions so far during the coronavirus pandemic. But Missouri’s Republican Governor Mike Parson is in a hurry to get the state back to business-as-usual. In addition to executions, Parson has allowed sporting events, concerts, and church services to resume along with the re-opening of hair salons, restaurants, and gyms, at least through mid-June.
Barton, 64, was convicted of the 1991 slaying of Gladys Kuehler. There is considerable doubt as to Barton’s guilt ...
According to a recent study from the University of Alberta, trained dogs can detect gasoline in trace amounts as small as one-billionth of a teaspoon (or 5 pico-liters). “During an arson investigation, a dog may be used to identify debris that contains traces of ignitable liquids — which could support a hypothesis that a fire was the result of arson,” explained Robin J. Abel, graduate student in the Department of Chemistry and lead author of the study. “Of course, a dog cannot give testimony in court, so debris from where the dog indicated must be taken back to the laboratory and analyzed.”
But there is a glitch. The trace amounts of gasoline detected by the dogs cannot be confirmed with laboratory analysis. “In this field, it is well-known that dogs are more sensitive than conventional laboratory tests,” said James Harynuk, an associate professor of chemistry and Abel’s supervisor. “There have been many cases where a dog will flag debris that then tests negative in the lab.”
To solve the problem, scientists first needed to know the limits of canine sensitivity. According to a paper titled “A novel protocol for producing low-abundance targets to characterize the sensitivity limits ...
On October 19, 1960, the Rev. Dr. Martin Luther King, Jr. was arrested while taking part in the Atlanta Student Movement’s campaign of boycotts and sit-ins, in which he and others attempted to seek service at a whites-only dining room in the Rich’s Department Store in Atlanta, Georgia. Sixty years later, that arrest record could be expunged, but Dr. King himself, if he were still alive, might have objected.
Fulton County Solicitor General Keith Gammage said, “I always had in my mind, what effect would it have if we expunged the record for arrests of Martin Luther King, Jr. and the other civil rights protesters, and called those arrests what they were—unconstitutional and biased arrests.”
Gammage, 48, born after King’s death, is on the board of trustees at King’s Ebenezer Baptist Church.
“There is a gap between social justice-related protests and activism and a true criminal offense,” he said. “And what the protesters and activists were fighting for, remains a barrier for other citizens today.”
Gammage’s announcement of the proposed expungement came on the eve of the anniversary of King’s April 4, 1968 assassination. Not everyone attending agreed.
Gammage has said he’s had positive conversations with ...
Automated license-plate readers (“ALPRs”) have come into wider use among law enforcement circles, touted for making the jobs of police easier and more efficient.
The technology employs high-speed cameras in cop cars, on top of streetlights, and other locations to record the license plate of every single vehicle that passes. The data are automatically uploaded to a computer vehicle network that tracks the precise place and time each one is spotted, thus allowing an algorithm to flag speeding and other traffic violations.
It is also capable of tracking every vehicle on the road, creating a profile of where each one went, how long each stayed, and other details that pry into the lives of private citizens.
Authorities claim the technology is only used to monitor “people of interest,” yet there is little-to-no oversight as to which individuals are placed on such a list or who might have access to the resulting data. Civil rights advocates have pointed out that ALPRs can be turned against political rivals or any other group by tracking which vehicles show up at protests, union meetings, religious services, health clinics, or gun stores.
An investigation launched in the summer of 2019 by the ...
During the coronavirus lockdown, the FBI is urging people to stay in shape by downloading its Fitness App. On March 23, 2020, the agency tweeted “download the FBI’s Physical Fitness Test app to learn proper form for exercises you can do at home like pushups and sit ups.” According to the FBI, the FitTest was created in 2018 and uses the “phone’s GPS and accelerometer” to provide users a “more realistic PFT experience.”
But the digital workout tool has been slammed on social media as a sneaky means for the government to obtain personal information amid the coronavirus pandemic.
One distrustful Twitter user quipped, “Looking to get ripped while ceding your location data to the FBI? Boy, do we have the app four [sic] you.”
Another user tweeted, “I’ll pass on this one.”
And Fight for the Future posted, “DO NOT - AND WE CANNOT STRESS THIS NEXT PART ENOUGH - DOWNLOAD THIS APP.”
Nonessential businesses, including gyms, were forced to close after New York Governor Andrew Cuomo ordered New York City be placed on lockdown. In response, many folks have turned to the internet as a resource for fitness tips and other apps promoting wellness while ...
A New Jersey man reaches out to police ahead of a possible altercation to make sure authorities are aware of his son’s autism-related issues.
Gary Weitzen’s son Christopher has autism. Christopher has anxiety issues, and it is difficult for him to look people in the eye. Because of his anxiety, when he was younger, he would take off running if he was not constantly supervised. “Our friends called our house Fort Weitzen,” said Gary. “I couldn’t let Christopher out of my sight.”
Now Christopher is in his twenties. He likes to take walks at night, though he appears angry and noncommunicative to people who are unaware of his issues.
Gary informed the local police in South Orange, New Jersey about his son’s issues, as well as his parents’ contact information. They understand that John Deere tractors and Thomas the Tank Engine characters may help him calm down, and they are aware of his anxiety triggers.
“It’s a smart move,” said Sgt. Adrian Acevedo, “to tell us his son is blowing off steam, has special needs, and won’t make eye contact or listen to us. If we didn’t have this information, we could mistakenly take him for ...
In 2018, the MacArthur Justice Center filed a class-action lawsuit against the city of Chicago, former Police Superintendent Eddie Johnson, and the city’s police officers, challenging the city’s gang database. The suit was filed on behalf of several community groups and four specifically named plaintiffs who are currently in the database.
This year there’s a plan. As of February 26, the Chicago Police Department (“CPD”) set a plan to revamp the controversial Chicago gang database within the next 12 months.
According to Charlie Beck, interim CPD superintendent, the new system will involve much stricter criteria when adding someone to the database, as well as centralizing the police department’s gang information.
Previously, referrals from any officer — including school resource officers — that someone’s name be added to the database could occur without oversight or vetting. “Thousands of people have been erroneously classified,” according to the complaint.
“Who’s going to believe them that they’re not a gang member if you have this official record saying they’re a gang member? The consequences are devastating, particularly to the immigrant community,” said MacArthur lawyer Vanessa del Valle. “Being labeled as a gang member hurts people in their immigration proceedings. It prevents ...
Current time-of-death estimates are calculated by inserting a rectal thermometer into the corpse and comparing the result to a chart based on body weight and the area’s climate. The charts used do not even take into account different types of body structure. Not to mention insertion of the rectal thermometer could potentially destroy trace evidence.
New techniques use a non-invasive method by determining body temperature using thermal imaging or sensors attached directly to the body, then comparing them to a chart, taking into consideration such aspects as the amount of body fat, whether the victim was clothed, partially submerged in water, and several other factors.
“In our study, we achieve an accuracy of 45 minutes on average of people who are dead 5 to 50 hours,” said Aalders. “This is a major step forward in forensic investigations at the crime scene, where an inanimate body has been found. Our method can ...
Melissa Gass is a wife and a mother of five children who suffers from seizures as a result of a car crash when she was 10 years old. The seizures occur weekly, sometimes daily. She suddenly feels a throbbing pain in the back, left side of her brain, and then the next thing she knows, she is waking up face down in the dirt — or in an intensive care unit — covered with her urine and feces. Often, someone has injected diazepam gel into her rectum to keep her alive.
But in 2016, the state of Pennsylvania legalized medical marijuana, and Gass, at age 42, obtained a doctor’s certification for it in February 2019. She put a dot of cannabis oil in a spoonful of peanut butter three times per day, and her seizures stopped almost entirely.
But in September, her Lebanon County probation officer told her that due to a new county court policy, she could go to jail if she didn’t stop using the cannabis oil. (Gass is on probation because back in 2016, she was treating her symptoms with a mixture of prescription medication and alcohol when she hit her husband of 20 ...
“Since a hemp plant and a marijuana plant are the same species of plant, they would yield the same results” in a lab test for THC, the Midwest Regional Forensic Laboratory at the Anoka County Sheriff’s Office said in a statement. “This made our job difficult as we were unable to determine if an item was from a hemp plant or a marijuana plant with our current methods of testing.”
The lab has figured out a way to differentiate the THC in a hemp plant from a marijuana plant.
The new testing method, which went live March 25, 2020, gives law enforcement and prosecutors scientifically valid information that they need to either arrest someone for possessing marijuana or, much more importantly, not to arrest them if they are merely possessing legal hemp.
Since hemp can be used to make everything from food to lotions ...
Breonna Taylor was a hard-working emergency room technician on the front lines in the nation’s fight against the coronavirus. On March 13, 2020, she was killed in her sleep, at home with boyfriend Kenneth Walker, during a reckless raid by Louisville Metro Police Department (“LMPD”) detectives. News reports said the detectives were serving a no-knock drug warrant intended for a residence 10 miles distant from Taylor’s apartment, although later reports said her address was included in a seperate warrant because it was believed someone at the home was suspected of accepting packages as part of a drug ring under investigation. No drugs were found in Taylor’s home.
At press time, there had been no charges in Taylor’s death, but two of the police officers involved were on administrative leave, one officer was terminated, and police Chief Steve Conrad was fired after another police-involved fatality.
The March raid began with plainclothes LMPD Sergeant Jonathan Mattingly and officers Brett Hankison and Myles Cosgrove entering Taylor’s apartment using a ...
In the show Making a Murderer on Netflix, a forensics lab was tasked with figuring out if microscopic particles on a bullet were bone, as the prosecutor claimed. Turns out it was wood, not bone, lending a hand to the defense’s theory that it was not the bullet that killed the victim.
That lab was Microtrace out of Elgin, Illinois. The father-son team of Skip and Chris Palenik head up the 14-person lab, which thrives on analyzing the tiniest bits of evidence. They do this by using what’s called a field emission scanning electron microscope (“FE SEM”), a high-resolution scope that allows imaging at extreme magnifications.
“Crime labs typically look at particles on the order of 10 to 100 microns,” says Chris Palenik, a multiple-degree holder in chemistry and geology with a Ph.D. in the latter. “We’ve applied SEM analysis to look at particles smaller than one micron.” Most crime labs use tungsten SM, a cheaper option that answers most of the basic questions in forensics.
The lab also has more than 35,000 specimens, ranging from sand, soil, and glass to hair, pigments, dyes, and foods. It helped crack the case of a stolen shipment of cellphones ...
Represented by Jonathan Potts, Robinson filed suit against the city of Sikeston after a May 2018 Missouri Supreme Court decision ruling there was “clear and convincing” evidence that Robinson did not shoot Sheila Box outside her Sikeston bar in 2000. Robinson maintained that he was at a family gathering at the time of the shooting. Three of his relatives verified his alibi.
Robinson said he was a troublemaker growing up in Sikeston with a criminal record. He said the police did not like him, and that was the reason they framed him for the murder in 2001.
In 2004, Romanze Mosby confessed to Box’s murder, along with several others. But he refused to sign an affidavit stating such and hung himself in his cell five years later.
Robinson filed two appeals based on Mosby’s confession, but he said the police helped to stop the acquittal on both appeals.
He then filed a motion to the state Supreme Court where a judge ...
Fearing the potential abuse of robotics technology and the secretive introduction of the technology into police arsenals, the American Civil Liberties Union of Massachusetts (“ACLU-MA”) called attention to Spot during an interview last November on radio station WBUR. “We just really don’t know enough about how the state police are using this,” said Kade Crockford, director of ACLU-MA’s Technology for Liberty program. “And the technology that can be used in concert with a robotic system like this is almost limitless in terms of what kinds of surveillance and potentially even weaponization operations may be allowed.”
But according to MSP’s contract with Boston Dynamics, Spot cannot be used to physically harm or intimidate people. MSP spokesman David Procopio defended the use of robotic technology, saying, “Robot technology is a valuable tool for law enforcement because of its ability to provide situational awareness of potentially dangerous environments.”
ACLU-MA isn’t primarily worried about Spot but stated the concern is the ...
Government watchdog organization Broadcastify, which allows citizens to listen in on police and emergency band radio broadcasts, aired police transmissions as protestors moved June 1 into the 77th Precinct of Brooklyn. A police officer can be heard yelling, “Shoot the motherfuckers.”While another responded with, “Don’t put that over the air.”
Human rights activists said this is just another example of a long pattern of violence without fear of repercussion that is prevalent in law enforcement. While being called to protect and serve the public, police are instead engaging in combat with protesters.
A group of New York public defenders issued this statement June 2: “The disturbing videos and reports of the violent attacks by NYPD on protestors and the media, while traumatizing to watch, are all too familiar to us. They mirror the stories we hear ...
California: A series of racist and anti-Muslim posts on social media allegedly has ties to a private group of active and retired San Jose Police officers calling themselves 10-7ODSJ, a reference to the police code for “off duty,” mercurynews.com reports. In June 2020, four of them were placed on leave while the police department investigates. News of the group surfaced in an anonymous blog post on Medium, an online platform, alleging the postings “included disparaging comments about Black Lives Matter protesters and Muslims,” KCBS Radio reports. San Jose Mayor Sam Liccardo, Police Chief Eddie Garcia and the San Jose Police Officers’ Union condemned the group. So did the D.A. “No one who expresses these types of disgusting, racist comments should ever wear a badge,” District Attorney Jeff Rosen offered in a statement. “This Office’s Conviction Integrity Unit will immediately begin a comprehensive review of every case in which these officers — active or retired — played a role. Anyone who writes this kind of trash has no role in our criminal justice system.” Raj Jayadev, a member of a local police watchdog group that supports diverting police funds from police to community programs, told KCBS Radio: “This wasn’t necessarily ...