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Criminal Legal News: October, 2021

Issue PDF
Volume 4, Number 10

In this issue:

  1. The Clash Between Closed-Source Forensic Tools and the Confrontation Clause (p 1)
  2. Make Way for the Snitch State The All-Seeing Fourth Branch of Government (p 12)
  3. Massachusetts Supreme Judicial Court: Withholding Exculpatory Statement Change by Key Witness Constitutes Brady Violation, Requiring New Trial (p 14)
  4. Qualified Immunity Driven by Irrational Fear of Cops Being Held Personally Liable (p 15)
  5. Wyoming Supreme Court: Fleeing Into Home After Traffic Offense Not Exigent Circumstance Justifying Warrantless Entry (p 16)
  6. SCOTUS: § 2(a) of Fair Sentencing Act Modifies Statutory Penalties Only for Subparagraphs (A) and (B) of 21 U.S.C. § 841(b)(1)— the Mandatory-Minimum Provisions (p 16)
  7. SCOTUS: ‘Exceeds Authorized Access’ Under the CFAA Means Accessing Areas of Computer That Are Off-Limits on Computer Otherwise Authorized to Access (p 18)
  8. Fourth Circuit: Sentence Vacated for Failure to Properly Analyze Leadership Role Factors (p 19)
  9. Tenth Circuit Joins Other Circuits, Holding Federal Offense of Conviction, Not Underlying Conduct, Determines First Step Act Eligibility (p 20)
  10. Hawaii Supreme Court: Trial Counsel Must Inform Defendant That Deportation ‘Will Be Required’ for Plea to Aggravated Felony, IAC for Advising Deportation ‘Almost Certain’ (p 20)
  11. Study: Innocent Children Likely to Plead Guilty (p 22)
  12. Fourth Circuit: District Court Must Recalculate Guidelines Sentencing Range and Conduct Analysis of § 3553(a) Factors Even if Same Sentence Would Be Imposed Under First Step Act (p 23)
  13. "Sixth Circuit Grants Habeas Relief Because Trial Judge Redacted Key Portion of Witness’ Testimony Presented to Jury in Violation of Confrontation Clause" (p 24)
  14. JusticeText Software Helps Defense Attorneys Review Audiovisual Evidence (p 24)
  15. Seventh Circuit Finds Lack of Evidence, Grants Habeas Relief, and Orders ‘Immediate Release’ (p 26)
  16. Ninth Circuit: IAC Under Strickland Satisfies Rhines’ ‘Good Cause’ Standard to Stay Federal Habeas Petition, Allowing Exhaustion of State Court Remedies (p 27)
  17. Wisconsin Supreme Court: Officer’s Retention of Driver’s License Without Reasonable Suspicion to Delay Until Arrival of Drug Dog Constitutes Unlawful Seizure (p 28)
  18. Tenth Circuit: Warrant Authorizing Search for Items ‘Involved in Crime’ Violates Fourth Amendment’s Particularity Requirement, Not Saved by Doctrine of Severability (p 30)
  19. The Legacy of Len Bias (p 31)
  20. Massachusetts Supreme Court Revisits Lougee and Announces Framework for Determining When Pretrial Detention Prolonged Due to COVID Violates Due Process (p 32)
  21. North Dakota Supreme Court Holds Attempted Knowing Murder Is Non-Cognizable (p 32)
  22. California Court of Appeal: § 1170.95(e) Permits Trial Courts to Redesignate More Than One Underlying Felony in Resentencing Vacated Felony-Murder Conviction (p 34)
  23. North Carolina Court Rules That Felons Not in Prison Must Be Allowed to Vote (p 35)
  24. Seventh Circuit: Prosecutor’s Comments Not Supported by Evidence Denied Defendant Fair Trial, Affirms Habeas Relief (p 36)
  25. Arizona Supreme Court: Trial Courts Have Broad Discretion to Disqualify Entire Prosecutor’s Office Based on Appearance of Impropriety (p 37)
  26. Mississippi Supreme Court: Failure to Timely File Motion to Suppress Confession Obtained as Result of Police Threats and Promises Constitutes Ineffective Assistance of Counsel (p 38)
  27. Federal Judge: ‘Offense of Conviction’ Under Guidelines Excludes Relevant Conduct for Sentencing (p 39)
  28. Indiana Supreme Court Applies Recently Announced Proportionality Framework for In Rem Fines and Holds Forfeiture of $35,000 Land Rover Grossly Disproportionate to Underlying Offense in Violation of Eighth Amendment, Ending 7-Year Saga (p 40)
  29. Putting Police Use of Spy Tech Under Community Control (p 41)
  30. Seventh Circuit: Cronic Doesn’t Provide Exclusive Situations for its Application, Finds Attorney Abandonment at Sentencing Despite Counsel Being Physically Present (p 42)
  31. Law Enforcement Underwhelmed by Clearview AI (p 43)
  32. Study Finds Lack of Uniformity in New DNA Technology (p 43)
  33. 11th Circuit: District Court Must Demonstrate It Considered § 3553(a) Factors When Denying Motion for Compassionate Release (p 44)
  34. California Town Pays $6 Million to Family of Mentally Ill Man Tasered by Cop (p 44)
  35. Fourth Circuit: RICO Conspiracy Isn’t ‘Crime of Violence’ for § 924(c) Purposes (p 45)
  36. California Supreme Court Announces Predicate Offenses for Gang Enhancement or Gang Participation Not Provable Using Expert Witness Testimony Without Personal Knowledge of Facts (p 46)
  37. Newark Police Didn’t Discharge a Single Firearm in 2020, and the Crime Rate Fell (p 47)
  38. SCOTUS Reinstates Death Sentence Reversed by Eleventh Circuit (p 47)
  39. Study Finds Interactive Lineup Improves Accuracy of Eyewitness Identification, But Does It Also Increase Likelihood of False Identifications? (p 48)
  40. FBI Fails to Track Police Use of Force (p 49)
  41. Concealed Exculpatory Evidence and New Palm Print Evidence Frees Wrongfully Convicted Man After 21 Years in Prison (p 50)
  42. News in Brief (p 50)

The Clash Between Closed-Source Forensic Tools and the Confrontation Clause

by Anthony W. Accurso

Technology companies and prosecutors are working together to assert the right of the companies to protect their intellectual property in ways that deny criminal defendants their right to challenge the reliability of forensic evidence in criminal proceedings. This assertion of intellectual property rights is done in ...

Make Way for the Snitch State The All-Seeing Fourth Branch of Government

The All-Seeing Fourth Branch of Government

by John W. Whitehead and Nisha Whitehead

It is just when people are all engaged in snooping on themselves and one another that they become anesthetized to the whole process. As information itself becomes the largest business in the world, data banks know more ...

Massachusetts Supreme Judicial Court: Withholding Exculpatory Statement Change by Key Witness Constitutes Brady Violation, Requiring New Trial

by Matt Clarke

The Supreme Judicial Court of Massachusetts held that the prosecution in a first-degree murder (extreme atrocity or cruelty) trial failed to disclose material, exculpatory evidence that a key witness had changed her testimony to include visceral depictions of the victim’s dying last words and the defendant’s reaction, ...

Qualified Immunity Driven by Irrational Fear of Cops Being Held Personally Liable

by Dale Chappell

The fear that a police officer would be held personally responsible, should he be sued because of his actions in the line of duty, is nothing short of irrational and unfounded, a May 2021 article in reason.com concluded. This fear is what has driven the U.S. Supreme ...

Wyoming Supreme Court: Fleeing Into Home After Traffic Offense Not Exigent Circumstance Justifying Warrantless Entry

by Anthony Accurso

The Supreme Court of Wyoming held that police lacked exigent circumstances required to justify warrantless entry to a suspect’s apartment where the suspect was fleeing arrest for a traffic offense.

Campbell County Sheriff’s Deputy Ryan Kellison attempted to pull over an SUV that he noticed had no ...

SCOTUS: § 2(a) of Fair Sentencing Act Modifies Statutory Penalties Only for Subparagraphs (A) and (B) of 21 U.S.C. § 841(b)(1)— the Mandatory-Minimum Provisions

by Douglas Ankney 

A unanimous Supreme Court of the United States (“SCOTUS”) held that § 2(a) of the Fair Sentencing Act modified the statutory penalties for only subparagraphs (A) and (B) of 21 U.S.C. § 841(b)(1), i.e., the mandatory-minimum provisions, not for subparagraph (C).

Tarahrick Terry pleaded guilty in 2008 ...

SCOTUS: ‘Exceeds Authorized Access’ Under the CFAA Means Accessing Areas of Computer That Are Off-Limits on Computer Otherwise Authorized to Access

by Doug Ankney

The Supreme Court of the United States (“SCOTUS”) held that for purposes of 18 U.S.C. § 1030(a)(2), the Computer Fraud and Abuse Act of 1986 (“CFAA”), an individual “exceeds authorized access” when he accesses a computer with authorization but then obtains information located in particular areas of ...

Fourth Circuit: Sentence Vacated for Failure to Properly Analyze Leadership Role Factors

by Anthony Accurso

The U.S. Court of Appeals for the Fourth Circuit held that the U.S. District Court for the Western District of Virginia committed a procedural error where it applied a leadership role enhancement without performing the proper analysis.

Wayne Thomas Burnley was arrested one night in April 2015 ...

Tenth Circuit Joins Other Circuits, Holding Federal Offense of Conviction, Not Underlying Conduct, Determines First Step Act Eligibility

by Dale Chappell

The U.S. Court of Appeals for the Tenth Circuit held that a district court is authorized to correct an erroneous career offender enhancement when a defendant qualifies for relief under the First Step Act, joining other circuits which have held the same.

The appeal came after Wallace ...

Hawaii Supreme Court: Trial Counsel Must Inform Defendant That Deportation ‘Will Be Required’ for Plea to Aggravated Felony, IAC for Advising Deportation ‘Almost Certain’

by David M. Reutter

THe Supreme Court of Hawaii held where defendant was precluded from discretionary relief from deportation as result of her plea of no contest to an aggravated felony charge, counsel was ineffective for advising her that it was “almost certain” that she would be deported when in ...

Study: Innocent Children Likely to Plead Guilty

by David M. Reutter

The developmentally immature decision-making decisions of child defendants makes them “likely to be systematically pleading guilty to crimes that they did not commit in predictable circumstances,” concluded a study by Rebecca K. Helm from England’s University of Exeter Law School. To protect children from such an ...

Fourth Circuit: District Court Must Recalculate Guidelines Sentencing Range and Conduct Analysis of § 3553(a) Factors Even if Same Sentence Would Be Imposed Under First Step Act

by Dale Chappell

The U.S. Court of Appeals for the Fourth Circuit held that the U.S. District Court for the Eastern District of North Carolina must recalculate the U.S. Sentencing Guidelines (“USSG”) sentencing range in a case where the district court claimed that it would still impose the same sentence, ...

"Sixth Circuit Grants Habeas Relief Because Trial Judge Redacted Key Portion of Witness’ Testimony Presented to Jury in Violation of Confrontation Clause"

by Dale Chappell

The U.S. Court of Appeals for the Sixth Circuit held that a witness’ edited statement from a prior trial, saying that she feared going back to jail if she didn’t say what she thought the judge wanted her to say which tainted the first trial, violated the ...

JusticeText Software Helps Defense Attorneys Review Audiovisual Evidence

by Anthony W. Accurso

JusticeText is new software designed specifically for defense attorneys and public defenders who are being overwhelmed by the amount of audio and video evidence they have to review when defending clients.

Devshi Mehrotra was nearing the end of her studies in computer science at the University ...

Seventh Circuit Finds Lack of Evidence, Grants Habeas Relief, and Orders ‘Immediate Release’

by Dale Chappell

In a rare case, the U.S. Court of Appeals for the Seventh Circuit granted habeas corpus relief to a state prisoner after finding that the State’s evidence was lacking and the state court was “not just wrong, but unreasonable, in holding otherwise.”

In 2001, two individuals rushed ...

Ninth Circuit: IAC Under Strickland Satisfies Rhines’ ‘Good Cause’ Standard to Stay Federal Habeas Petition, Allowing Exhaustion of State Court Remedies

by Dale Chappell

Finding that the U.S. District Court for the District of Nevada applied the incorrect standard in denying a state prisoner’s request to stay his federal habeas petition while he returned to state court to exhaust his state post-conviction remedies, the U.S. Court of Appeals for the Ninth ...

Wisconsin Supreme Court: Officer’s Retention of Driver’s License Without Reasonable Suspicion to Delay Until Arrival of Drug Dog Constitutes Unlawful Seizure

by Anthony W. Accurso

The Supreme Court of Wisconsin held that an officer who retained a motorist’s driver’s license without any reasonable suspicion of criminal activity—for the purpose of delaying until a drug dog arrived—effectuated an unlawful seizure.

Just after midnight on the evening of November 12, 2017, Sheboygan Police ...

Tenth Circuit: Warrant Authorizing Search for Items ‘Involved in Crime’ Violates Fourth Amendment’s Particularity Requirement, Not Saved by Doctrine of Severability

by Anthony W. Accurso

The U.S. Court of Appeals for the Tenth Circuit held that a search warrant authorizing seizure of “any item identified as being involved in crime” lacked sufficient particularity to be valid under the Fourth Amendment.

After a driver fired shots at a pedestrian during a verbal ...

The Legacy of Len Bias

How death of basketball star helped
launch unjust war on drugs

by Jayson Hawkins

On June 19, 1986, Len Bias died of cardiac arrhythmia caused by a cocaine overdose. Bias was a basketball superstar at the University of Maryland and had been drafted second overall by the Boston Celtics only ...

Massachusetts Supreme Court Revisits Lougee and Announces Framework for Determining When Pretrial Detention Prolonged Due to COVID Violates Due Process

by Doug Ankney

The Supreme Judicial Court of Massachusetts (“SJC”) announced the framework for deciding whether a defendant’s due process rights were violated where the defendant’s pretrial detention has been prolonged due to the COVID-19 pandemic, revisiting Commonwealth v. Lougee, 147 N.E.3d 464 (Mass. 2020) (as of June 2020, ...

North Dakota Supreme Court Holds Attempted Knowing Murder Is Non-Cognizable

by Matt Clarke

The Supreme Court of North Dakota reversed the denial of a motion for postconviction relief challenging a conviction for attempted knowing murder after holding it was a non-cognizable offense.

Lorenzo Pemberton was staying at a woman’s home. During an argument, she called 911. He knocked the phone ...

California Court of Appeal: § 1170.95(e) Permits Trial Courts to Redesignate More Than One Underlying Felony in Resentencing Vacated Felony-Murder Conviction

by Doug Ankney

The Court of Appeal, First Appellate District, Division Three ruled that § 1170.95(e) permits a vacated felony-murder conviction to be redesignated as more than one underlying felony for purposes of resentencing. (Note: All statutory references are to the California Penal Code.)
In 1987, Donald Alexander Watson, Timothy ...

North Carolina Court Rules That Felons Not in Prison Must Be Allowed to Vote

by Chuck Sharman

On August 23, 2021, in a decision that immediately enfranchised some 55,000 North Carolinians, a state court ruled that felons released from prison on supervision may not be barred from voting.

The 2-1 decision by the judges of Fifth Superior Court—with judges Lisa Bell and Keith Gregory ...

Seventh Circuit: Prosecutor’s Comments Not Supported by Evidence Denied Defendant Fair Trial, Affirms Habeas Relief

by Dale Chappell

The U.S. Court of Appeals for the Seventh Circuit held that a prosecutor’s closing comments about the State’s own witness were so harmful to the defendant that it affirmed the U.S. District Court for the Northern District of Illinois’s grant of habeas corpus relief in a murder ...

Arizona Supreme Court: Trial Courts Have Broad Discretion to Disqualify Entire Prosecutor’s Office Based on Appearance of Impropriety

by Douglas Ankney 

In a case of first impression, the Supreme Court of Arizona held that trial courts have broad discretion to vicariously disqualify a prosecutor’s office based on an appearance of impropriety.

In 2010, Darren Irving Goldin was charged with murder, and the Attorney General sought the death penalty. ...

Mississippi Supreme Court: Failure to Timely File Motion to Suppress Confession Obtained as Result of Police Threats and Promises Constitutes Ineffective Assistance of Counsel

by Matt Clarke

The Supreme Court of Mississippi held that a defendant’s trial counsel was ineffective for failing to timely object to the introduction of a video recording of her client’s confession, which showed police officers making threats and promises to the defendant in order to elicit the confession.

A ...

Federal Judge: ‘Offense of Conviction’ Under Guidelines Excludes Relevant Conduct for Sentencing

by Dale Chappell

In a case where a defendant admitted to selling drugs that previously led to an overdose-death but was only convicted of selling drugs that did not result in a death, the U.S. District Court for the Southern District of West Virginia held in a published sentencing decision ...

Indiana Supreme Court Applies Recently Announced Proportionality Framework for In Rem Fines and Holds Forfeiture of $35,000 Land Rover Grossly Disproportionate to Underlying Offense in Violation of Eighth Amendment, Ending 7-Year Saga

by Douglas Ankney

The Supreme Court of Indiana affirmed the holding of the Grant Superior Court, which found that forfeiture of Tyson Timbs’ Land Rover was grossly disproportionate to his crime of conviction in violation of the Eighth Amendment’s Excessive Fines Clause.
Timbs had been prescribed opiates and had become ...

Putting Police Use of Spy Tech Under Community Control

by Anthony W. Accurso

Community control over police departments has become a hot topic since the militaristic response of police departments to protests over the killing of George Floyd and other citizens. Part of that militaristic response has involved new surveillance technologies like drones, facial recognition software, and cell-site simulators. ...

Seventh Circuit: Cronic Doesn’t Provide Exclusive Situations for its Application, Finds Attorney Abandonment at Sentencing Despite Counsel Being Physically Present

by Dale Chappell

In a case where a defendant’s lawyer was present at sentencing but did “absolutely nothing” to help him, the U.S. Court of Appeals for the Seventh Circuit granted habeas corpus relief to an Indiana state prisoner, ruling that attorney abandonment does not always mean that the attorney ...

Law Enforcement Underwhelmed by Clearview AI

by Anthony W. Accurso

Clearview AI, controversial facial recognition software being pitched to law enforcement agencies, bills itself as being “the most accurate facial identification software worldwide,” but first-hand reports from police departments reflect the program’s near uselessness.

Clearview has been trying hard to sell law enforcement agencies on using ...

Study Finds Lack of Uniformity in New DNA Technology

by Jayson Hawkins

Forensic DNA evidence has been used since the 1980s. Public confidence and familiarity with this method grew in the wake of the O.J. Simpson trial and the popularity of television police procedural shows, but the traditional methods of gathering and analyzing blood and semen samples has given ...

11th Circuit: District Court Must Demonstrate It Considered § 3553(a) Factors When Denying Motion for Compassionate Release

by Douglas Ankney

The U.S. Court of Appeals for the Eleventh Circuit vacated the U.S. District Court for the Southern District of Florida’s order denying compassionate release because the district court failed to demonstrate it had considered the applicable factors under 18 U.S.C. § 3553(a).
Horace Cook pleaded guilty to ...

California Town Pays $6 Million to Family of Mentally Ill Man Tasered by Cop

A settlement was announced on August 10, 2021, between the city of Pleasanton, California, and the family of a mentally ill man who died after a struggle with city cops trying to restrain him in 2018.

Before the incident that left their son dead, John and Rose Bauer made four ...

Fourth Circuit: RICO Conspiracy Isn’t ‘Crime of Violence’ for § 924(c) Purposes

by Doug Ankney

The U.S. Court of Appeals for the Fourth Circuit held that a Racketeer Influenced and Corrupt Organizations Act (“RICO”) conspiracy in violation of 18 U.S.C. § 1962(d) is not categorically a “crime of violence” under 18 U.S.C. § 924(c)(3)(A).

Antonio Simmons, Nathaniel Mitchell, and Malek Lassiter (collectively, ...

California Supreme Court Announces Predicate Offenses for Gang Enhancement or Gang Participation Not Provable Using Expert Witness Testimony Without Personal Knowledge of Facts

by Matt Clarke

The Supreme Court of California held that, for charges of gang participation and gang enhancements under California Penal Code, § subdivisions (a)and (b), respectively, which require the State to prove that gang members had previously committed two or more enumerated offenses (predicate offenses), the State may not ...

Newark Police Didn’t Discharge a Single Firearm in 2020, and the Crime Rate Fell

by Jayson Hawkins

Amidst the chaos of a global pandemic, social protests, and political upheaval, many people felt as if anything that could go wrong in 2020 went wrong. The avalanche of tumultuous headlines tended to bury the positive stories that emerged—such as cops in Newark, N.J., not firing a ...

SCOTUS Reinstates Death Sentence Reversed by Eleventh Circuit

by Matt Clarke

The Supreme Court of the U.S. reinstated the death sentence of an Alabama man who had been convicted of murder. The Eleventh Circuit had reversed, in part, the conviction based on the incorrect claim that Alabama had established a categorical rule requiring post-conviction habeas corpus applicants claiming ...

Study Finds Interactive Lineup Improves Accuracy of Eyewitness Identification, But Does It Also Increase Likelihood of False Identifications?

A team of researchers at the University of Birmingham’s School of Psychology in the U.K. developed interactive lineup software that allows witnesses to view lineup photographs from different angles. They tested the software to see if it improved eyewitness identification and concluded that it may improve identification accuracy. They also discovered ...

FBI Fails to Track Police Use of Force

by Jayson Hawkins

The summer of 2020 was a moment marked by extremes—vast populations around the world were quarantined in their homes for months, interrupted by an eruption of millions onto the streets to protest the killing of George Floyd by police. Law enforcement’s reaction to the demonstrations varied considerably ...

Concealed Exculpatory Evidence and New Palm Print Evidence Frees Wrongfully Convicted Man After 21 Years in Prison

by Douglas Ankney

In April 2021, Jonathan Smith, Sr. was freed after serving nearly 21 years in prison for a murder he did not commit. Last year, the Maryland Court of Appeals unanimously reversed the 2001 murder convictions against Smith and his codefendant, David Faulkner, and granted both men Writs ...

News in Brief

Arizona: After shooting more people than any other U.S. city or county police department in 2018, the Phoenix Police Department (PhxPD) will now be the subject of a “pattern and practice” (P&P) investigation announced on August 5, 2021, by the federal Department of Justice (DOJ), according to a report by ...

 

 

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