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Criminal Legal News: November, 2021

Issue PDF
Volume 4, Number 11

In this issue:

  1. The Real Minority Report Predictive Policing Algorithms Reflect Racial Bias Present in Corrupted Historic Databases (p 1)
  2. Massachusetts Supreme Judicial Court Announces Premature Sex Offender Classification of Incarcerated Offender Who Accepted Classification Violates Procedural Due Process (p 20)
  3. Tenth Circuit Rejects Qualified Immunity for Prosecutor Alleged to Have Fabricated Evidence, Despite no Previous Case with Materially Similar Facts (p 22)
  4. California Supreme Court: Furnishing Drugs Resulting in Overdose Death Does Not Automatically Trigger Great Bodily Injury Enhancement (p 23)
  5. Hawaii Supreme Court Announces Five-Factor Test in Determining Whether There’s ‘Fair and Just Reason’ to Withdraw Plea (p 24)
  6. Seventh Circuit: District Court Erred in Denying Compassionate Release Motion by Limiting ‘Extraordinary and Compelling’ Analysis to USSG § 1B1.13 (p 25)
  7. Anger: A Natural Reaction That Makes the Innocent Appear Guilty (p 26)
  8. An Inside Look at Operation Trojan Shield How the FBI Crafted an International Encrypted Messaging Sting (p 27)
  9. Tenth Circuit Announces Adoption of ‘Offense of Conviction Approach’ for Determining Sentence Reduction Under First Step Act § 404(b) (p 28)
  10. Kansas Supreme Court Affirms Reversal and Dismissal of Murder Charges Based on Speedy Trial Violation (p 30)
  11. Arizona Supreme Court Announces Trial Courts Have Discretion to Deny State’s Request for SVP Screening and Provides Guidance to Courts Exercising That Discretion (p 31)
  12. Arizona Supreme Court Clarifies Proper Fundamental Error Review Applicable to Allegation of a Single, Unobjected-to Instance of Prosecutorial Misconduct (p 32)
  13. Study: Bloodstain Pattern Analyses Display Alarming Lack of Accuracy (p 33)
  14. SCOTUS Holds Ramos’ Unanimous Jury Requirement Is New Procedural Rule and Announces No New Procedural Rule Applies Retroactively on Federal Collateral Review (p 35)
  15. Second Circuit: Autopsy Report Is ‘Testimonial’ for Confrontation Clause Purposes, Habeas Relief Granted (p 36)
  16. Ohio, Now 24th State to End LWOP for Juveniles (p 37)
  17. "Eighth Circuit: Government Breached Plea Agreement by Endorsing PSR’s Calculation of Higher Base Offense Level Than Plea Agreement, Curing Breach Not Recognized in Circuit" (p 38)
  18. Current Forensic Sciences Not as Objective as Most Believe (p 38)
  19. DNA Standards Often Make the Difference Between Life and Death (p 40)
  20. Justice Department Orders All Federal Agents to Wear Body Cameras (p 40)
  21. Georgia Supreme Court Announces Merger Error Claims During Sentencing May Be Raised for First Time in Habeas Petition (p 41)
  22. Justice Department Bans Chokeholds and Restricts No-Knock Entries for Federal Agents (p 42)
  23. Ninth Circuit Announces All 3 Subsections Must Be Satisfied to Deny Safety-Valve Relief Under 18 U.S.C. § 3553(f)(1) (p 42)
  24. Experts Agree: Police Public Relations Consistently Mislead the Public (p 43)
  25. Study Shows Public Defenders Outperform Court Appointed Private Attorneys (p 44)
  26. Investigative Report Highlights Difficulties in Disciplining Cops (p 45)
  27. Florida’s Worst Cop Fired for 7th Time (p 46)
  28. Police Do Not Want to Pay for Damage They Inflicted to Texas Home (p 47)
  29. SCOTUS Reinstates Death Sentence Reversed by Eleventh Circuit (p 48)
  30. California Supreme Court Announces Predicate Offenses for Gang Enhancement or Gang Participation Not Provable Using Expert Witness Testimony Without Personal Knowledge of Facts (p 48)
  31. NYC’s Stop-and-Frisk Still Targets Based on Race (p 49)
  32. News in Brief (p 50)

The Real Minority Report Predictive Policing Algorithms Reflect Racial Bias Present in Corrupted Historic Databases

by Matt Clarke

In Steven Spielberg’s science fiction movie, Minority Report, police armed with nebulously sourced predictions of people who are supposedly going to commit murder before they can actually do so. Troublingly, only a few years after the film’s 2002 release, a real-world version of predictive policing was ...

Massachusetts Supreme Judicial Court Announces Premature Sex Offender Classification of Incarcerated Offender Who Accepted Classification Violates Procedural Due Process

by Douglas Ankney 

The Supreme Judicial Court (“SJC”) of Massachusetts held that a premature sex offender classification for an incarcerated offender who has waived her right to a classification hearing and accepted her classification violates procedural due process.

Plaintiff “Doe” was convicted of sex offenses in 1970 and 1977, and ...

Tenth Circuit Rejects Qualified Immunity for Prosecutor Alleged to Have Fabricated Evidence, Despite no Previous Case with Materially Similar Facts

by Douglas Ankney 

The U.S. Court of Appeals for the Tenth Circuit reversed the U.S. District Court for the District of Utah’s decision finding a prosecutor was entitled to qualified immunity in a suit alleging the prosecutor had fabricated evidence.

In 2012, Heidi Truman was killed from a gunshot to ...

California Supreme Court: Furnishing Drugs Resulting in Overdose Death Does Not Automatically Trigger Great Bodily Injury Enhancement

by Dale Chappell

The Supreme Court of California held that a conviction by itself for furnishing a controlled substance to someone who subsequently suffers injury from its use is insufficient, as a matter of law, to establish personal infliction of great bodily injury under Pen. Code, § 12022.7. Rather, the ...

Hawaii Supreme Court Announces Five-Factor Test in Determining Whether There’s ‘Fair and Just Reason’ to Withdraw Plea

by David M. Reutter

The Supreme Court of Hawaii held that a trial court abused its discretion in denying a defendant’s motion to withdraw his no contest plea before sentencing. The Court’s ruling announced a five-factor test for trial courts to use in evaluating whether a fair and just reason ...

Seventh Circuit: District Court Erred in Denying Compassionate Release Motion by Limiting ‘Extraordinary and Compelling’ Analysis to USSG § 1B1.13

by Dale Chappell

The U.S. Court of Appeals for the Seventh Circuit held that the U.S. District Court for the Northern District of Illinois must consider relevant changes in the law that may impact a prisoner’s sentence, even if those changes are not retroactive, when considering a motion for compassionate ...

Anger: A Natural Reaction That Makes the Innocent Appear Guilty

by Jayson Hawkins

Every wrong looks for a right. It seems to be a deep-seated part of human nature to point fingers whenever things go awry, regardless if by accident or intention. When physical evidence is lacking, our minds home in on subtle hints in body language and the emotional ...

An Inside Look at Operation Trojan Shield How the FBI Crafted an International Encrypted Messaging Sting

by Jayson Hawkins

Ever since smartphones became indispensable to everyone, including criminals, police have been working to snoop into the wave of electronic communication these devices facilitate. From searching phones to hacking emails, agents of governments everywhere have done their best to leave no stone unturned. Despite these efforts, criminals ...

Tenth Circuit Announces Adoption of ‘Offense of Conviction Approach’ for Determining Sentence Reduction Under First Step Act § 404(b)

by Dale Chappell

The U.S. Court of Appeals for the Tenth Circuit held that the U.S. District Court for the District of Colorado erred in relying on the defendant’s underlying conduct, rather than his offense of conviction, to deny his motion for sentence reduction under the First Step Act § ...

Kansas Supreme Court Affirms Reversal and Dismissal of Murder Charges Based on Speedy Trial Violation

by Douglas Ankney

The Supreme Court of Kansas affirmed a judgment of the Court of Appeals (“COA”) that reversed Danny W. Queen’s convictions for intentional second-degree murder; attempted second-degree murder; and attempted voluntary manslaughter, due to a violation of his statutory right to a speedy trial. All charges against Queen ...

Arizona Supreme Court Announces Trial Courts Have Discretion to Deny State’s Request for SVP Screening and Provides Guidance to Courts Exercising That Discretion

by Douglas Ankney

In a case of first impression, the Supreme Court of Arizona held that trial courts have discretion to deny a sexually violent person (“SVP”) screening when requested by the State under Arizona Revised Statutes (“A.R.S.”) § 13-4518(A). The Court also provided guidance for trial courts exercising that ...

Arizona Supreme Court Clarifies Proper Fundamental Error Review Applicable to Allegation of a Single, Unobjected-to Instance of Prosecutorial Misconduct

by Douglas Ankney

The Supreme Court of Arizona clarified the error review that is applicable when an appellant alleges a single instance of prosecutorial misconduct and no objection was made to the alleged misconduct at trial.

According to the testimony of the victim, identified as “O.C.,” brothers Easton and Claudius ...

Study: Bloodstain Pattern Analyses Display Alarming Lack of Accuracy

by Michael Fortino, Ph.D.

In the summer of 2000, after discovering his wife and two small children fatally shot in the family’s car inside their garage, former Indiana State Trooper David Camm was arrested and charged with the murders based entirely on the opinion of an expert that bloodstains on ...

SCOTUS Holds Ramos’ Unanimous Jury Requirement Is New Procedural Rule and Announces No New Procedural Rule Applies Retroactively on Federal Collateral Review

by Dale Chappell

The Supreme Court of the United States held that its landmark decision issued on April 20, 2020, in Ramos v. Louisiana, 140 S. Ct. 1390 (2020), which requires that all jury verdicts must be unanimous to convict a criminal defendant of a serious offense, is a ...

Second Circuit: Autopsy Report Is ‘Testimonial’ for Confrontation Clause Purposes, Habeas Relief Granted

by Dale Chappell

The U.S. Court of Appeals for the Second Circuit affirmed the grant of habeas corpus relief to a New York state prisoner, finding that his Sixth Amendment right of confrontation was violated when evidence against him in an autopsy report was introduced at trial through an expert ...

Ohio, Now 24th State to End LWOP for Juveniles

by Michael Fortino, Ph.D.

In a long-awaited state enactment, Ohio Governor, Mike Dewine, signed into law, SB 256 which, among other provisions, bans sentences for life without parole (“LWOP”) and retroactively alters parole eligibility for minors sentenced to exceedingly long terms of imprisonment.

“The signing of SB 256 means everything ...

"Eighth Circuit: Government Breached Plea Agreement by Endorsing PSR’s Calculation of Higher Base Offense Level Than Plea Agreement, Curing Breach Not Recognized in Circuit"

by David M. Reutter

The U.S. Court of Appeals for the Eighth Circuit held that the Government breached a plea agreement because the Government endorsed a base offense level in the Presentence Investigative Report (“PSR”) that was higher than the base offense level in the plea agreement.

The Court’s opinion ...

Current Forensic Sciences Not as Objective as Most Believe

by Ed Lyon

Television may well be the most effective propaganda tool in the world, especially when it comes to portraying forensic scientists and their laboratories as dispassionate and dedicated professionals and their laboratories as pristine and state-of-the-art on shows like CSI and FBI. Long time CLN and PLN ...

DNA Standards Often Make the Difference Between Life and Death

by Michael Fortino, Ph.D.

DNA analysis standards can make the difference between misleading results and the truth behind a crime, so much so, that this highly sensitive analysis is often the deciding factor in ruling life or death for many capital murder suspects. Obviously, science needs to get it right ...

Justice Department Orders All Federal Agents to Wear Body Cameras

by Chuck Sharman

On September 1, 2021, the U.S. Department of Justice (“DOJ”) announced it was implementing the first phase of its Body-Worn Camera (“BWC”) with federal agents in the Detroit and Phoenix field offices of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”).

After the BWC program is ...

Georgia Supreme Court Announces Merger Error Claims During Sentencing May Be Raised for First Time in Habeas Petition

by Anthony W. Accurso

THe Supreme Court of Georgia held that claims of merger error during sentencing may be raised for the first time in a properly filed habeas petition and are not procedurally barred by failure to raise such claims in the trial court or on direct appeal.

On ...

Justice Department Bans Chokeholds and Restricts No-Knock Entries for Federal Agents

by Chuck Sharman

The U.S. Department of Justice (“DOJ”)—parent agency of the Federal Bureau of Investigation; the Drug Enforcement Administration; the U.S. Marshals Service; and the Bureau of Alcohol, Tobacco, Firearms, and Explosives—announced on September 14, 2021, that it was banning immediately the use of chokeholds and “carotid restraints” by ...

Ninth Circuit Announces All 3 Subsections Must Be Satisfied to Deny Safety-Valve Relief Under 18 U.S.C. § 3553(f)(1)

by Dale Chappell

In a case of first impression under the First Step Act, the U.S. Court of Appeals for the Ninth Circuit held that the word “and” in the three exclusion provisions of the so-called “safety valve” relief provided for in 18 U.S.C. § 3553(f) that permits district courts ...

Experts Agree: Police Public Relations Consistently Mislead the Public

by Jayson Hawkins

Police officers have, for much of American history, had a remarkable hold on public trust. That hold, however, has loosened in recent years as the ubiquity of cameras has grown and more police misconduct is caught on video. Over the last decade, repeated incidents of police using ...

Study Shows Public Defenders Outperform Court Appointed Private Attorneys

by Michael Fortino, Ph.D.

Defendants, put your checkbooks away. The age-old assumption that private defense attorneys provide a more comprehensive and effective defense than do public defenders may simply not be true.

A February 2021 analysis initiated by Maggie Bailey, Graduate Research Assistant at the University of North Carolina School ...

Investigative Report Highlights Difficulties in Disciplining Cops

by Michael Fortino, Ph.D.

Can you imagine a community where police abuse arbitration hearings and misconduct cases resulted in costs to taxpayers numbering in the millions of dollars, only to realize that these same unruly and abusive officers, though found guilty, are not only rehired back by the very police ...

Florida’s Worst Cop Fired for 7th Time

by Jayson Hawkins

All German Bosque ever wanted was to be a cop. When he was kicked out of the police academy for theft of a motor vehicle and impersonating an officer, some in law enforcement may have dismissed his ensuing arrest as simply a sign of Bosque’s eagerness to ...

Police Do Not Want to Pay for Damage They Inflicted to Texas Home

by Kevin Bliss

Wesley Little had an hours-long standoff with McKinney, Texas, police in Vicki Baker’s home after running off with a 15-year-old girl. Baker was not home at the time, and the 15-year-old got out safely. But Little committed suicide as the police stormed the house. Total damage to ...

SCOTUS Reinstates Death Sentence Reversed by Eleventh Circuit

by Matt Clarke

The Supreme Court of the United States 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 ...

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 ...

NYC’s Stop-and-Frisk Still Targets Based on Race

by Jayson Hawkins

New York City’s 2021 mayoral candidates faced the same issues that plague every metropolitan area—crime, COVID, climate change—but questions about the city’s allegedly reformed “stop-and-frisk” policy occupied a prominent place in the debates. The practice, which began decades ago when Rudy Giuliani was serving as mayor, drew ...

News in Brief

Alabama: A former Alabama cop convicted of murdering a mentally ill and suicidal man in his own home reported to a state prison in Montgomery on September 6, 2021, to begin serving a 25-year sentence he received for the crime, according to Huntsville TV station WAFF. As previously reported by ...

 

 

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