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Criminal Legal News: August, 2020

Issue PDF
Volume 3, Number 8

In this issue:

  1. Police State: From Social Justice to Social Dominance (p 1)
  2. Sixth Circuit Vacates Firearms Possession Conviction; Government Showed Jury Unauthenticated Prejudicial Facebook Video Not Admitted as Evidence (p 12)
  3. Tenth Circuit: Deputy ‘Trying to Help’ Doesn’t Make Search Permissible Under Community Caretaking Exception to Warrant Requirement (p 12)
  4. Attacking the Guilty Plea: Establishing Prejudice in the Guilty Plea Context (p 14)
  5. Report Finds NYPD Officers Accidentally Deploy Tasers 25% of the Time (p 15)
  6. California Supreme Court: § 459.5(b) Prohibits Charging Shoplifting and Theft for Same Property (p 16)
  7. Fourth Circuit: IAC for Counsel’s Bad Advice That Open Plea Would Allow Appeal Denial of Motion to Suppress (p 16)
  8. Massachusetts Supreme Judicial Court: GPS Monitoring Unreasonable When It Doesn’t Further Any Governmental Interest (p 18)
  9. D.C. Circuit Reverses Nearly 50-Year-Old Murder Conviction Over Faulty Hair Evidence (p 18)
  10. Minnesota Supreme Court: Non-Identifying Information About CI Must Be Disclosed Upon Request (p 20)
  11. Michigan Supreme Court Announces Court Must Inform Defendant of Consecutive Sentencing Authority When Accepting Plea (p 20)
  12. Massachusetts Supreme Court: Officer’s Handling of Cellphone Exceeded Scope of Inventory Search (p 22)
  13. Seventh Circuit Reverses Denial of Motion to Suppress Because Police Lacked Reasonable Suspicion to Frisk (p 22)
  14. FOIA Redaction Limbo: How Low They Will Go (p 23)
  15. U.S. District Court Chooses Judicial Remedy, Instead of § 2255, to Allow Out-of-Time Appeal (p 24)
  16. California Court of Appeal: Trial Court Abused Discretion Denying Compassionate Release Where Statutory Criteria Are Met (p 25)
  17. Colorado Supreme Court: Warrant Allowing General Search of Cellphone Unconstitutional Violation of Particularity Requirement (p 26)
  18. Eleventh Circuit Holds Georgia Terroristic Threats Conviction Overbroad for ACCA (p 26)
  19. Policing is irrelevant for public safety — but these alternatives are proven to work (p 28)
  20. Myth of Technology as an Equalizing Force in Criminal Justice (p 29)
  21. Kansas Supreme Court: District Court Failed to Apprise Defendant of Right to Jury Trial (p 30)
  22. Fourth Circuit Requests Further Information on Stingray Device to Determine Whether It Violates Fourth Amendment Rights (p 30)
  23. Oklahoma Enacts Jailhouse Informant Law, Joins Other States (p 31)
  24. South Carolina Supreme Court Overturns Murder Conviction Where State Presented Improper Testimony Regarding Trace DNA Evidence (p 32)
  25. Iowa Supreme Court Announces That ‘Good Cause’ in Newly Amended Appeals Statute Means ‘a Legally Sufficient Reason’ (p 33)
  26. South Carolina Supreme Court: State Cannot Appeal Guilty Plea (p 34)
  27. Two New Forensic DNA Standards Added to the OSAC Registry (p 34)
  28. Big Brother, as Well as Big Business, Are Tracking You: the Snitch in Your Own Pocket, Purse, or Belt Holder (p 35)
  29. Neuroscience and Criminal Cases (p 36)
  30. Maine Supreme Judicial Court Vacates Conviction on Double Jeopardy Grounds (p 36)
  31. Eighth Circuit Affirms Habeas Relief Decades After Conviction Because Prosecutor Destroyed Evidence Prior to Trial (p 37)
  32. Eleventh Circuit Vacates Firearm Conviction Based on Rehaif (p 38)
  33. Washington Supreme Court: Defendant Detained for Search at Border Was ‘In Custody’ for Miranda Purposes (p 39)
  34. Never Convicted but Never Exonerated, Either (p 40)
  35. Fourth Circuit: Erroneous Career Offender Sentence Correctable in First Step Act Resentencing (p 40)
  36. Government Study Finds Facial Recognition Sorely Lacking in Accuracy (p 41)
  37. Idaho Exoneree Fights for Wrongful Conviction Compensation (p 42)
  38. Fifth Circuit Clarifies AEDPA Time Limit Tolling for Louisiana Prisoners Filing Federal Habeas Corpus (p 42)
  39. Missouri Shows Indifference to Human Life by Proceeding with Execution Amid Pandemic (p 43)
  40. Dogs Can Detect One-Billionth of a Teaspoon of Gasoline (p 43)
  41. Fulton County Prosecutor in Georgia to Expunge MLK and Other Civil Rights Leaders’ Records, But not Everyone Agrees (p 44)
  42. Survey: California Cops Abusing Privacy Rights with Auto Plate Readers (p 45)
  43. FBI Provides Fitness App in Exchange for Users’ GPS Coordinates (p 45)
  44. Strategies to Help Police Address Citizens With Special Needs (p 46)
  45. Devastating Consequences of Chicago Gang Database – And No Way to Be Removed (p 46)
  46. New Method to Determine Time of Death for Forensic Investigators (p 47)
  47. Using Doctor-Prescribed Marijuana Could Send Some People Back to Prison (p 47)
  48. Minnesota Lab Figures Out How to Tell Between Legal Hemp and Illegal Marijuana (p 48)
  49. Unrest After Kentucky Cops Shoot Sleeping Black Woman to Death in Her Bed While Serving No-Knock Warrant (p 48)
  50. Small Forensics Lab Finds Niche in Analyzing Tiniest Bits of Evidence (p 48)
  51. $8 Million Settlement for Wrongfully Convicted and Imprisoned Missouri Man (p 49)
  52. Police Use of Robotic Technology Raises Civil Liberty Concerns (p 49)
  53. New York Police Act With Impunity During Protests (p 50)
  54. News in Brief (p 50)

Police State: From Social Justice to Social Dominance

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 ...

Sixth Circuit Vacates Firearms Possession Conviction; Government Showed Jury Unauthenticated Prejudicial Facebook Video Not Admitted as Evidence

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 ...

Tenth Circuit: Deputy ‘Trying to Help’ Doesn’t Make Search Permissible Under Community Caretaking Exception to Warrant Requirement

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 ...

Attacking the Guilty Plea: Establishing Prejudice in the Guilty Plea Context

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 ...

Report Finds NYPD Officers Accidentally Deploy Tasers 25% of the Time

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 ...

California Supreme Court: § 459.5(b) Prohibits Charging Shoplifting and Theft for Same Property

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 ...

Fourth Circuit: IAC for Counsel’s Bad Advice That Open Plea Would Allow Appeal Denial of Motion to Suppress

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”), ...

Massachusetts Supreme Judicial Court: GPS Monitoring Unreasonable When It Doesn’t Further Any Governmental Interest

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 ...

D.C. Circuit Reverses Nearly 50-Year-Old Murder Conviction Over Faulty Hair Evidence

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 ...

Minnesota Supreme Court: Non-Identifying Information About CI Must Be Disclosed Upon Request

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 ...

Michigan Supreme Court Announces Court Must Inform Defendant of Consecutive Sentencing Authority When Accepting Plea

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 ...

Massachusetts Supreme Court: Officer’s Handling of Cellphone Exceeded Scope of Inventory Search

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 ...

Seventh Circuit Reverses Denial of Motion to Suppress Because Police Lacked Reasonable Suspicion to Frisk

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 ...

FOIA Redaction Limbo: How Low They Will Go

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, ...

U.S. District Court Chooses Judicial Remedy, Instead of § 2255, to Allow Out-of-Time Appeal

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 ...

California Court of Appeal: Trial Court Abused Discretion Denying Compassionate Release Where Statutory Criteria Are Met

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 ...

Colorado Supreme Court: Warrant Allowing General Search of Cellphone Unconstitutional Violation of Particularity Requirement

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 ...

Eleventh Circuit Holds Georgia Terroristic Threats Conviction Overbroad for ACCA

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 ...

Policing is irrelevant for public safety — but these alternatives are proven to work

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 ...

Myth of Technology as an Equalizing Force in Criminal Justice

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 ...

Kansas Supreme Court: District Court Failed to Apprise Defendant of Right to Jury Trial

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 ...

Fourth Circuit Requests Further Information on Stingray Device to Determine Whether It Violates Fourth Amendment Rights

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. ...

Oklahoma Enacts Jailhouse Informant Law, Joins Other States

The law was sponsored by Senator Julie Daniels and Representative Chris Kannady, making Oklahoma the third state ...

South Carolina Supreme Court Overturns Murder Conviction Where State Presented Improper Testimony Regarding Trace DNA Evidence

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 ...

Iowa Supreme Court Announces That ‘Good Cause’ in Newly Amended Appeals Statute Means ‘a Legally Sufficient Reason’

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 ...

South Carolina Supreme Court: State Cannot Appeal Guilty Plea

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. ...

Two New Forensic DNA Standards Added to the OSAC Registry

National forensic science organization approves standards for interpreting DNA mixtures.

by the National Institute of Standards and Technology, U.S. Department of Commerce

https://www.nist.gov/news-events/news/2020/05/two-new-forensic-dna-standards-added-osac-registry

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. ...

Big Brother, as Well as Big Business, Are Tracking You: the Snitch in Your Own Pocket, Purse, or Belt Holder

Neuroscience and Criminal Cases

Maine Supreme Judicial Court Vacates Conviction on Double Jeopardy Grounds

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, ...

Eighth Circuit Affirms Habeas Relief Decades After Conviction Because Prosecutor Destroyed Evidence Prior to Trial

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 ...

Eleventh Circuit Vacates Firearm Conviction Based on Rehaif

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. §§ ...

Washington Supreme Court: Defendant Detained for Search at Border Was ‘In Custody’ for Miranda Purposes

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 ...

Never Convicted but Never Exonerated, Either

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 ...

Fourth Circuit: Erroneous Career Offender Sentence Correctable in First Step Act Resentencing

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 ...

Government Study Finds Facial Recognition Sorely Lacking in Accuracy

The study was thorough; it ...

Idaho Exoneree Fights for Wrongful Conviction Compensation

Despite being innocent of the crime, after intensive browbeating by cops, he pleaded guilty. ...

Fifth Circuit Clarifies AEDPA Time Limit Tolling for Louisiana Prisoners Filing Federal Habeas Corpus

Missouri Shows Indifference to Human Life by Proceeding with Execution Amid Pandemic

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 ...

Dogs Can Detect One-Billionth of a Teaspoon of Gasoline

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 — ...

Fulton County Prosecutor in Georgia to Expunge MLK and Other Civil Rights Leaders’ Records, But not Everyone Agrees

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 ...

Survey: California Cops Abusing Privacy Rights with Auto Plate Readers

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 ...

FBI Provides Fitness App in Exchange for Users’ GPS Coordinates

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 ...

Strategies to Help Police Address Citizens With Special Needs

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. ...

Devastating Consequences of Chicago Gang Database – And No Way to Be Removed

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 ...

New Method to Determine Time of Death for Forensic Investigators

Current ...

Using Doctor-Prescribed Marijuana Could Send Some People Back to Prison

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 ...

Minnesota Lab Figures Out How to Tell Between Legal Hemp and Illegal Marijuana

Unrest After Kentucky Cops Shoot Sleeping Black Woman to Death in Her Bed While Serving No-Knock Warrant

Breonna Taylor was a hard-working emergency room technician on the front lines in the nation’s fight ...

Small Forensics Lab Finds Niche in Analyzing Tiniest Bits of Evidence

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 ...

$8 Million Settlement for Wrongfully Convicted and Imprisoned Missouri Man

Represented by Jonathan Potts, Robinson filed suit against the city of ...

Police Use of Robotic Technology Raises Civil Liberty Concerns

Fearing the potential abuse of robotics technology ...

New York Police Act With Impunity During Protests

News in Brief

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 ...

 

 

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