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Criminal Legal News: September, 2020

Issue PDF
Volume 3, Number 9

In this issue:

  1. State Violence, Legitimacy, and the Path to True Public Safety (p 1)
  2. Floyd’s Family Might End Up Helping Pay Chauvin’s Retirement Benefits (p 9)
  3. How the Courts Are Using Compassionate Release to Fix Unfair Sentences (p 10)
  4. Seventh Circuit: ‘Especially Compelling Justification’ Required for Same Maximum Sentence on Resentencing (p 12)
  5. Seventh Circuit: Admissions to Pretrial Services Cannot Be Used to Prove Guilt (p 14)
  6. The Warrior Cop Mindset (p 14)
  7. SCOTUS: Counsel’s Failure to Uncover and Present Evidence in Mitigation at Capital Sentencing Requires Remand for Prejudice Determination (p 16)
  8. Indiana Supreme Court: Forcing Defendant to Unlock Smartphone Violates Fifth Amendment Right Against Self-Incrimination (p 18)
  9. California Supreme Court: ‘Honest and Upright Life’ Possible While in Custody for Expungement Purposes (p 19)
  10. Seventh Circuit Explains ‘Conduct That is Part of Common Scheme or Plan’ for Sentencing Purposes (p 20)
  11. Third Circuit: District Court Must Personally Address Defendant During Sentencing (p 20)
  12. Police Body Cams Are not a Cure-All (p 22)
  13. Hawai’i Supreme Court Announces Police Officers May Not Testify That Driver Appeared Intoxicated, Overruling Toyomura (p 22)
  14. Activists Seek Accountability by Pushing NYC to Make Footage From Traffic Cams Available for Archiving (p 23)
  15. FBI Expands Ability to Surveil Social Media and Cellphone Location Data (p 23)
  16. SCOTUS Announces Large Portion of Oklahoma Remains Tribal Land in Which State Lacks Jurisdiction to Try Native Americans (p 24)
  17. California Court of Appeal Holds Canizales Decision Limiting Kill Zone Theory Applies Retroactively (p 26)
  18. Nationwide Police Misconduct Database Available to Public (p 26)
  19. Sixth Circuit: Prosecutor’s Improper Comments and Counsel’s Failure to Object Require New Trial (p 28)
  20. Wrongfully Convicted Virginians Now Have Chance to Prove Innocence Due to Amendments to Writ of Actual Innocence (p 28)
  21. Second Circuit: Justice for Victims of Trafficking Act Applies on Per-Offender, not Per-Count Basis (p 30)
  22. Fourth Circuit: Sentencing Procedurally Unreasonable Where Special Condition Not Explained and Mitigation Argument Not Addressed (p 30)
  23. Hawai’i Supreme Court: Showing Jury Video of Defendant Declining Officer’s Request to Reenact Crime Violates Right to Remain Silent (p 31)
  24. The Power of Filming Police (p 32)
  25. Extending the Surveillance State During the Pandemic (p 32)
  26. Georgia Supreme Court: Counsel’s Failure to Inform Defendant of Absolute Right to Withdraw Plea Prior to Sentencing Ineffective Assistance (p 33)
  27. Second Circuit Announces Categorical Approach Applies to State Convictions for Sentencing Enhancement Determination Under 21 U.S.C. § 841(b)(1)(B) (p 34)
  28. Guard Your Digital Privacy to Keep Your Real Self Safe (p 34)
  29. Congress Unsure of Internet Data Collected by Government as PATRIOT Act Heads for Reauthorization (p 35)
  30. What to Do if You’re Pepper-Sprayed (p 35)
  31. After a Decade of Fighting, The Last Resort Exoneration Project Finally Frees Two Wrongfully Convicted of Murder (p 36)
  32. Tenth Circuit Vacates Conviction, Rules Waiver of Trial Counsel Not Knowingly Made (p 36)
  33. Colorado Supreme Court: Plea Proviso in § 18-1-409(1) Doesn’t Bar Appeal on Manner in Which Sentence Imposed (p 37)
  34. Sixth Circuit Grants Habeas Relief for Defendant Shackled During Murder Trial Without On-the-Record Justification (p 38)
  35. New York Police Continue Pattern of Arrests of Low-Level Crime During COVID-19 Crisis (p 39)
  36. Report: Attorney Appointment a ‘Pay For Play’ Arrangement in Texas County (p 39)
  37. Hawai’i Supreme Court: Dog Sniff Unrelated to Initial Traffic Stop Requires Suppression of Evidence (p 40)
  38. Hawai’i Supreme Court Announces Trial Courts Have Duty to Obtain Knowing and Voluntary Waiver of Penal-Responsibility Defense (p 40)
  39. Colorado Supreme Court Announces Framework for Distinguishing True Threat From Protected Speech Communicated Online (p 41)
  40. Tenth Circuit: Confession Involuntary Where FBI Agent Falsely Claimed to Be in Contact With Judge, and Defendant Could Shorten Sentence With Each Truthful Answer (p 42)
  41. Minn. Supreme Court Announces Rule for Analyzing Out-of-State Convictions for Public Safety Registry Requirement Purposes (p 43)
  42. Seventh Circuit Holds First Step Act Applies to All Crack Offenses ‘As a Whole,’ Regardless of Crack Amounts (p 44)
  43. Kentucky Supreme Court: Trial Court’s Ex Parte Discussion With Juror About Offered Bribe Was Structural Error (p 44)
  44. Ban the Box not Applicable to COVID-19 Stimulus Aid (p 45)
  45. Six eyewitnesses misidentified a murderer – here’s what went wrong in the lineup (p 46)
  46. Tear Gas: Soldiers Prohibited From Using It in Warfare but Cops Using It Against Peaceful Protesters (p 47)
  47. The Lunacy of Qualified Immunity (p 47)
  48. I Cover Cops as an Investigative Reporter. Here Are Five Ways You Can Start Holding Your Department Accountable. (p 48)
  49. Problems With Predictive Policing (p 50)
  50. News in Brief (p 50)

State Violence, Legitimacy, and the Path to True Public Safety

by David M. Kennedy, Niskanen Center (niskanencenter.org)
Executive Summary: I work with cops, and I support this movement.

Police Violence Is State Violence

Let’s be clear about what’s been happening in the country these last few weeks. Policing is an arm of the state. Police departments and police ...

Floyd’s Family Might End Up Helping Pay Chauvin’s Retirement Benefits

Derek Chauvin could still receive about $50,000 a year in pension partly funded by taxpayers like George Floyd’s surviving family, even if he’s convicted of second-degree murder.

Moreover, qualified immunity would most likely prevent Floyd’s family from successfully suing him.

Chauvin was the police officer in Minneapolis, ...

How the Courts Are Using Compassionate Release to Fix Unfair Sentences

Seventh Circuit: ‘Especially Compelling Justification’ Required for Same Maximum Sentence on Resentencing

The U.S. Court of Appeals for the Seventh Circuit held on June 19, 2020, that a district court resentencing someone again to the maximum sentence possible and well over double the recommended Guidelines sentencing range (“GSR”) must provide “especially compelling justification” for such a significant increase in ...

Seventh Circuit: Admissions to Pretrial Services Cannot Be Used to Prove Guilt

The case came before the Court after Michael ...

The Warrior Cop Mindset

SCOTUS: Counsel’s Failure to Uncover and Present Evidence in Mitigation at Capital Sentencing Requires Remand for Prejudice Determination

Andrus, 18, was high on marijuana and PCP when he attempted a ...

Indiana Supreme Court: Forcing Defendant to Unlock Smartphone Violates Fifth Amendment Right Against Self-Incrimination

California Supreme Court: ‘Honest and Upright Life’ Possible While in Custody for Expungement Purposes

Misael Vences Maya was convicted of ...

Seventh Circuit Explains ‘Conduct That is Part of Common Scheme or Plan’ for Sentencing Purposes

On January 22, 2018, Tom Lewis ...

Third Circuit: District Court Must Personally Address Defendant During Sentencing

A jury convicted Michael Scripps of seven counts of wire fraud for fraudulently transferring millions of dollars from the bank accounts ...

Police Body Cams Are not a Cure-All

There is a growing movement to defund ...

Hawai’i Supreme Court Announces Police Officers May Not Testify That Driver Appeared Intoxicated, Overruling Toyomura

Maxwell F. Jones was convicted following a ...

Activists Seek Accountability by Pushing NYC to Make Footage From Traffic Cams Available for Archiving

by Douglas Ankney

NYC Mesh is a free community owned internet service provider in New York City that is operated by a group of activists. The activists’ new project involves archiving hundreds of gigabytes of the city’s surveillance camera footage in an effort to hold police accountable.

Aakash Patel, a ...

FBI Expands Ability to Surveil Social Media and Cellphone Location Data

by Douglas Ankney

May 26, 2020, demonstrations around the nation erupted over the police killing of George Floyd. Shortly afterwards, the FBI signed an expedited agreement to extend its relationship with Dataminr, The Intercept reported.

Dataminr is a company that monitors social media and had already had contracts with the ...

SCOTUS Announces Large Portion of Oklahoma Remains Tribal Land in Which State Lacks Jurisdiction to Try Native Americans

The Supreme Court of the United States (“SCOTUS”), in a 5-4 decision, ruled in favor of a defendant who argued that the State of Oklahoma (“Oklahoma”) lacked jurisdiction to prosecute him because he is a Native American, and his alleged crime occurred on tribal land. The decision ...

California Court of Appeal Holds Canizales Decision Limiting Kill Zone Theory Applies Retroactively

Juan Marshall Rayford and ...

Nationwide Police Misconduct Database Available to Public

Sixth Circuit: Prosecutor’s Improper Comments and Counsel’s Failure to Object Require New Trial

In 2007, ...

Wrongfully Convicted Virginians Now Have Chance to Prove Innocence Due to Amendments to Writ of Actual Innocence

Second Circuit: Justice for Victims of Trafficking Act Applies on Per-Offender, not Per-Count Basis

Before the Court was the appeal of Paul Haverkamp. He exchanged over 400 messages on the ...

Fourth Circuit: Sentencing Procedurally Unreasonable Where Special Condition Not Explained and Mitigation Argument Not Addressed

Hawai’i Supreme Court: Showing Jury Video of Defendant Declining Officer’s Request to Reenact Crime Violates Right to Remain Silent

Anthony G. Beaudet-Close had an altercation with Luke Ault. Ault sustained life-threatening injuries, was hospitalized, and ...

The Power of Filming Police

Extending the Surveillance State During the Pandemic

In New York ...

Georgia Supreme Court: Counsel’s Failure to Inform Defendant of Absolute Right to Withdraw Plea Prior to Sentencing Ineffective Assistance

Morocco Jacobi Wilkey was indicted in 2014 for possession ...

Second Circuit Announces Categorical Approach Applies to State Convictions for Sentencing Enhancement Determination Under 21 U.S.C. § 841(b)(1)(B)

Guard Your Digital Privacy to Keep Your Real Self Safe

Congress Unsure of Internet Data Collected by Government as PATRIOT Act Heads for Reauthorization

In a letter sent by Oregon Senator Ron Wyden to Acting Director ...

What to Do if You’re Pepper-Sprayed

The most important tip, they say, is not to take a shower — yet. If you do, the pepper spray will run ...

After a Decade of Fighting, The Last Resort Exoneration Project Finally Frees Two Wrongfully Convicted of Murder

Tenth Circuit Vacates Conviction, Rules Waiver of Trial Counsel Not Knowingly Made

Randy ...

Colorado Supreme Court: Plea Proviso in § 18-1-409(1) Doesn’t Bar Appeal on Manner in Which Sentence Imposed

he Supreme Court of Colorado held that the “plea provisio [in Colo Rev. Stat. § 18-1-409(1) (2019)] does not preclude an appeal related to the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which the sentence was imposed.” ...

Sixth Circuit Grants Habeas Relief for Defendant Shackled During Murder Trial Without On-the-Record Justification

The U.S. Court of Appeals for the Sixth Circuit granted conditional habeas corpus relief to a Michigan prisoner who alleged that the use of shackles upon him during trial was unconstitutional and prejudiced his guilt determination. The majority of the Court’s opinion focused on the proper ...

New York Police Continue Pattern of Arrests of Low-Level Crime During COVID-19 Crisis

Report: Attorney Appointment a ‘Pay For Play’ Arrangement in Texas County

In the 1960s, ...

Hawai’i Supreme Court: Dog Sniff Unrelated to Initial Traffic Stop Requires Suppression of Evidence

When Cheri Numazawa called 911 to report ...

Hawai’i Supreme Court Announces Trial Courts Have Duty to Obtain Knowing and Voluntary Waiver of Penal-Responsibility Defense

In June 2014, Michael Glenn was charged with Terroristic Threatening in the First Degree. Upon motion of defense counsel, the circuit court ...

Colorado Supreme Court Announces Framework for Distinguishing True Threat From Protected Speech Communicated Online

A few days after a shooting at Arapahoe High School, students from Littleton High School (“LHS”) got into an argument on Twitter with students from Thomas Jefferson High School (“TJHS”). ...

Tenth Circuit: Confession Involuntary Where FBI Agent Falsely Claimed to Be in Contact With Judge, and Defendant Could Shorten Sentence With Each Truthful Answer

As a sheriff’s deputy attempted to pull Young over, he drove his vehicle onto a nearby ...

Minn. Supreme Court Announces Rule for Analyzing Out-of-State Convictions for Public Safety Registry Requirement Purposes

Seventh Circuit Holds First Step Act Applies to All Crack Offenses ‘As a Whole,’ Regardless of Crack Amounts

Kentucky Supreme Court: Trial Court’s Ex Parte Discussion With Juror About Offered Bribe Was Structural Error

Eversole was tried by jury on charges of first-degree fleeing or ...

Ban the Box not Applicable to COVID-19 Stimulus Aid

Six eyewitnesses misidentified a murderer – here’s what went wrong in the lineup

Tear Gas: Soldiers Prohibited From Using It in Warfare but Cops Using It Against Peaceful Protesters

A main chemical in tear gas is 2-chlorobenzylidene malonitrile, or “CS.” CS ...

The Lunacy of Qualified Immunity

I Cover Cops as an Investigative Reporter. Here Are Five Ways You Can Start Holding Your Department Accountable.

Police culture can be insular and tough to penetrate, but the public can hold law enforcement accountable.

Here are important methods and context you need to know.

Link For Article Listed Below: https://www.propublica.org/article/i-cover-cops-as-an-investigative-reporter-here-are-five-ways-you-can-start-holding-your-department-accountable

by Andrew Ford, Asbury Park Press

This story was originally published by ProPublica. ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

This article was produced in partnership with the Asbury Park Press, which is a member of the ProPublica Local Reporting Network

The death of George Floyd at the hands of police in Minneapolis has drawn historic levels of interest in police misconduct and drawn condemnation from law enforcement leaders nationwide.

As a reporter covering law enforcement for the Asbury Park Press in New Jersey, and now in partnership with ProPublica’s Local Reporting Network, I use investigative reporting techniques to strengthen police accountability. Other journalists do the same. But, in truth, any citizen can apply the same methods to ensure the law enforcement system they’re funding is serving them well.

Police culture can be insular and tough to penetrate. But I’ve been surprised by how often it’s possible, though time consuming, to expose ...

Problems With Predictive Policing

Without the luxury of pre-cognitive abilities, modern police agencies ...

News in Brief

Arizona: Mariah Valenzuela has filed legal notices against the city of Phoenix and Maricopa County over Phoenix police officer Michael McGillis’ use of force during a January 16, 2020 traffic stop, abc15.com reports. The officer, driving a white van, stopped Valenzuela for allegedly veering across the center line, then ...

 

 

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