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Criminal Legal News: December, 2021

Issue PDF
Volume 4, Number 12

In this issue:

  1. ShadowDragon: Inside the Social Media Surveillance Software That Can Watch Your Every Move (p 1)
  2. Report Chronicles Growing List of Exonerations (p 8)
  3. Racist Police Violence Reconsidered (p 10)
  4. Excited Delirium Syndrome: Pseudo-Scientific Shield for Law Enforcement’s Violent Behavior (p 12)
  5. Colorado Supreme Court: Warrantless Pole Camera Surveilling and Recording of Curtilage for Over Three Months Constitutes an Illegal Search (p 18)
  6. Proliferation of Anti-Riot Laws Spurs Nationwide Legal Challenges (p 19)
  7. Minnesota Supreme Court Announces Two-Year Time Limit of § 590.01, subd. 4(c) Runs From Date of Court Decision (p 20)
  8. How Law Enforcement Get Past Phone Encryption (p 20)
  9. First Circuit: Defendant Entitled to Withdraw Plea Where Government Withdrew From Plea Agreement Based on Defendant’s Breach (p 22)
  10. Law Proposed to End Sales of Private Data to Law Enforcement (p 23)
  11. Wisconsin Supreme Court Announces Incapacitated Driver Provision of Implied Consent Statute Unconstitutional (p 24)
  12. Law of Unintended Consequences: How Defunding the Police Leads to Salary Increases (p 25)
  13. Washington Supreme Court: Ineffective Assistance of Counsel for Failing to Object to Introduction of Inadmissible Evidence (p 26)
  14. Is It Time to Stop Relying on the Cops? (p 27)
  15. Michigan Supreme Court: Parole-Revocation Prison Term Imposed as Result of Separate Wrongful Conviction Is Included in Compensation Under WICA (p 28)
  16. Maine Supreme Judicial Court Reverses Denial of Suppression Motion and Vacates Murder Conviction (p 30)
  17. D.C. Circuit Joins Seven Other Circuits in Holding USSG § 1B1.13 Doesn’t Apply to Compassionate Release Motions Filed by Prisoners (p 31)
  18. New Jersey Supreme Court Announces Framework for Requesting Criminal Background Check of Potential Juror and Calls for Judicial Conference to Explore Nature of Discrimination in Jury Selection Process (p 32)
  19. First Circuit Orders New Trial Following Detailed Discussion of Entrapment Defense and When Courts Must Give Jury Instruction (p 33)
  20. Maryland Court of Appeals Announces Standard for Whether Scientific Evidence Is ‘Testimonial’ for Confrontation Right Purposes Under Article 21 of Maryland Declaration of Rights (p 35)
  21. NYPD Training Deprioritizes First Amendment Education in Policing Protests (p 36)
  22. USPS Reveals Social Media Surveillance Program (p 37)
  23. California Supreme Court Announces Hearsay Regarding Nonpredicate Offenses in Psychological Evaluation Reports Inadmissible in SVP Probable Cause Hearings (p 38)
  24. Rhode Island Supreme Court: Conclusory Statutory Language to Describe Purported Child Porn Image Used to Support Search Warrant Affidavit Invalidates Warrant (p 39)
  25. Texas Man Positively Identified by Six Eyewitnesses and Sentenced to Life Granted Actual Innocence Relief as Result of DNA Evidence (p 40)
  26. When Life Is No Better Than Death (p 40)
  27. California Supreme Court Announces Suspended Execution of Sentence with Probation Imposed Is Not ‘Final’ so New Changes in Law Apply Retroactively on Appeal (p 41)
  28. Montana Supreme Court: Detainee Entitled to Pre-Sentence Credit for Time Served Regardless if Also Held in Connection With Another Matter in Another County (p 41)
  29. Colorado Supreme Court Announces Mandatory Lifetime Sex Offender Registration Unconstitutional for Juveniles With Multiple Adjudications (p 42)
  30. New Mexico Abolishes Qualified Immunity (p 44)
  31. Missouri Supreme Court: IAC Where Guilty Plea Based on Counsel’s Assurance Defendant Eligible for Drug Treatment Program When, as Matter of Law, Ineligible (p 45)

ShadowDragon: Inside the Social Media Surveillance Software That Can Watch Your Every Move

The tool is the product of a growing industry whose work
is usually kept from the public and utilized by police.

by Michael Kwet, originally published by The Intercept, September 21, 2021

A Michigan State Police contract, obtained by The Intercept, sheds new light on the growing use of little-known surveillance software that helps law enforcement agencies and corporations watch people’s social media and other website activity.

The software, put out by a Wyoming company called ShadowDragon, allows police to suck in data from social media and other internet sources, including Amazon, dating apps, and the dark web, so they can identify persons of interest and map out their networks during investigations. By providing powerful searches of more than 120 different online platforms and a decade’s worth of archives, the company claims to speed up profiling work from months to minutes. ShadowDragon even claims its software can automatically adjust its monitoring and help predict violence and unrest. Michigan police acquired the software through a contract with another obscure online policing company named Kaseware for an “MSP Enterprise Criminal Intelligence System.”

The inner workings of the product are generally not known to the public. The contract, and materials published by the ...

Report Chronicles Growing List of Exonerations

by Jayson Hawkins

In the first years of the 21st century, exonerations of men and women who had served decades for crimes they did not commit made national news, both because of the terrible tragedies they represent and because they were so rare. In recent years, exonerations have become less ...

Racist Police Violence Reconsidered

by John McWhorter, Quillette.com

Tony Timpa was 32 years old when he died at the hands of the Dallas police in August 2016. He suffered from mental health difficulties and was unarmed. He wasn’t resisting arrest. He had called the cops from a parking lot while intoxicated because he thought he might be a danger to himself. By the time law enforcement arrived, he had already been handcuffed by the security guards of a store nearby. Even so, the police officers made him lie face down on the grass, and one of them pressed a knee into his back. He remained in this position for 13 minutes until he suffocated. During the harrowing recording of his final moments, he can be heard pleading for his life. A grand jury indictment of the officers involved was overturned.

Not many people have seen this video, however, and that may have something to do with the fact that Timpa was white. During the protests and agonizing discussions about police brutality that have followed the death of George Floyd under remarkably similar circumstances, it is too seldom acknowledged that white men are regularly killed by the cops as well, and that occasionally the cops ...

Excited Delirium Syndrome: Pseudo-Scientific Shield for Law Enforcement’s Violent Behavior

by Michael Fortino, Ph.D.

By the time Denver Police Department (“DPD”) officers handcuffed Anthony Sleets on July 7, 2021, he was already having a bad day. He had passed out in a hotel parking lot after what he thinks must have been an assault—he awoke to find he’d been sprayed ...

Colorado Supreme Court: Warrantless Pole Camera Surveilling and Recording of Curtilage for Over Three Months Constitutes an Illegal Search

by Douglas Ankney

The Supreme Court of Colorado affirmed a decision of the Court of Appeals (“COA”), holding that a warrantless surveillance and recording of a home’s curtilage and private, fenced-in yard via a pole camera for over three months was an illegal search.

A confidential informant told police that ...

Proliferation of Anti-Riot Laws Spurs Nationwide Legal Challenges

by Casey J. Bastian

When a white Minneapolis police officer killed George Floyd, videos of the callous act went viral. The event prompted a seemingly unprecedented wave of racial justice and anti-police protests that have continued since that day May 2020. Millions of protestors took to the streets. A great ...

Minnesota Supreme Court Announces Two-Year Time Limit of § 590.01, subd. 4(c) Runs From Date of Court Decision

by Douglas Ankney

The Supreme Court of Minnesota announced that the two-year time limit set forth in Minn. Stat. § 590.01, subd. 4(c) to file a timely postconviction petition under the retroactive new interpretation of law exception in Minn. Stat. § 591.01, subd. 4(b)(3) runs from the date the U.S. ...

How Law Enforcement Get Past Phone Encryption

by Anthony W. Accurso

Reporting from Wired shows how researchers at Johns Hopkins University looked into vulnerabilities in Apple and Android phones and how they can be exploited by groups like law enforcement and other government actors.

Cryptographers at Johns Hopkins analyzed the current state of encryption, the technology used ...

First Circuit: Defendant Entitled to Withdraw Plea Where Government Withdrew From Plea Agreement Based on Defendant’s Breach

by Douglas Ankney

The U.S. Court of Appeals for the First Circuit held that the U.S. District Court for the District of New Hampshire erred by refusing to allow Louis Gardner to withdraw his guilty plea after allowing the Government to withdraw from the plea agreement due to a breach ...

Law Proposed to End Sales of Private Data to Law Enforcement

by Anthony W. Accurso

A bill introduced in mid-April by Ron Wyden (D-OR), Rand Paul (R-KY) and 18 other U.S. Senators would make it illegal for law enforcement and intelligence agencies to purchase Americans’ sensitive information—including geolocation data or the content of communications—from any company that collects such data.

This ...

Wisconsin Supreme Court Announces Incapacitated Driver Provision of Implied Consent Statute Unconstitutional

by Douglas Ankney

The Supreme Court of Wisconsin affirmed the decision of the Court of Appeals (“COA”) that had held the incapacitated driver provision of Wisconsin’s implied consent statute, Wis. Stat, § 343.305(3)(b), is unconstitutional because the provision’s “deemed” consent authorizes warrantless searches in violation of the Fourth Amendment.

Dawn ...

Law of Unintended Consequences: How Defunding the Police Leads to Salary Increases

by Casey J. Bastian

The desire to implement significant reforms in American policing, particularly in metropolitan areas, is not new. However, the specific demand to literally defund the police is a nascent concept. Contemporary reform advocates assert that the enormous funding provided to law enforcement agencies should instead be focused ...

Washington Supreme Court: Ineffective Assistance of Counsel for Failing to Object to Introduction of Inadmissible Evidence

by Douglas Ankney

The Supreme Court of Washington reversed the convictions of Jessica L. Vazquez after holding that her attorney, Sarah McFadden, was ineffective under the Sixth Amendment for failing to object to the introduction of inadmissible evidence at trial.

Detective Colby Martin and Officer Daniel Vargas assisted in executing ...

Is It Time to Stop Relying on the Cops?

by Casey J. Bastian

For many Black Americans, the thought of calling the police for help is not an option. Most won’t request assistance from law enforcement unless there is a truly violent crime occurring. Minor situations are frequently escalated and end with unnecessary police violence and brutality. Far too ...

Michigan Supreme Court: Parole-Revocation Prison Term Imposed as Result of Separate Wrongful Conviction Is Included in Compensation Under WICA

by Douglas Ankney

The Supreme Court of Michigan held that time served in prison due to revocation of parole that resulted solely from a wrongful conviction of other offenses is not excluded from compensation under the Wrongful Imprisonment Compensation Act (“WICA”), MCL 691.1751 et seq.

In 1987, Desmond Ricks began ...

Maine Supreme Judicial Court Reverses Denial of Suppression Motion and Vacates Murder Conviction

by Douglas Ankney

The Supreme Judicial Court of Maine reversed the denial of Bruce Akers’ motion to suppress and vacated his murder conviction.

On June 9, 2016, Akers called the local sheriff’s office and spoke with the sergeant. He told the sergeant he suspected his neighbor of stealing some property ...

D.C. Circuit Joins Seven Other Circuits in Holding USSG § 1B1.13 Doesn’t Apply to Compassionate Release Motions Filed by Prisoners

by Dale Chappell

The U.S. Court of Appeals for the D.C. Circuit joined seven other circuits and held that a compassionate release motion filed by a prisoner under 18 U.S.C. § 3582(c)(1)(A) is not subject to the policy statement in U.S. Sentencing Guidelines Manual (“USSG”) § 1B1.13, after the First ...

New Jersey Supreme Court Announces Framework for Requesting Criminal Background Check of Potential Juror and Calls for Judicial Conference to Explore Nature of Discrimination in Jury Selection Process

by Douglas Ankney

In a case of first impression, the Supreme Court of New Jersey announced the framework that governs when a party requests a criminal history check on a prospective juror to determine whether the juror is eligible and to ensure a fair trial. The Court also instructed the ...

First Circuit Orders New Trial Following Detailed Discussion of Entrapment Defense and When Courts Must Give Jury Instruction

by Doug Ankney

The U.S. Court of Appeals for the First Circuit clarified when trial courts must instruct juries on the defense of entrapment.

As part of a “sting” in 2015, Special Agent Ryan Seig of the Homeland Security Investigations Child Exploitation Unit created a fictitious Grindr profile under the ...

Maryland Court of Appeals Announces Standard for Whether Scientific Evidence Is ‘Testimonial’ for Confrontation Right Purposes Under Article 21 of Maryland Declaration of Rights

by Douglas Ankney

Citing lack of clear guidance from the U.S. Supreme Court, the Maryland Court of Appeals (“MCA” or “Court”) announced that issues of confrontation of witnesses will be determined under Article 21 of the Maryland Declaration of Rights (“Article 21”) and further announced the standard for determining whether ...

NYPD Training Deprioritizes First Amendment Education in Policing Protests

by Casey Bastian

A recent cache of internal training documents from the New York City Police Department (“NYPD”) was released pursuant to a Freedom of Information Law request by The Intercept. The documents pertain to training for “Civil Disorder Offenses,” with information drawn from the NYPD’s Police Students’ Guide, Patrol ...

USPS Reveals Social Media Surveillance Program

by Anthony W. Accurso

The United States Postal Service (“USPS”) has been running a semi-secret program monitoring social media site traffic, raising concerns about the purpose or authority for such a program surveilling American citizens.

First reported in April 2021 by Jenna Winter on Yahoo! News, the USPS had published ...

California Supreme Court Announces Hearsay Regarding Nonpredicate Offenses in Psychological Evaluation Reports Inadmissible in SVP Probable Cause Hearings

by Douglas Ankney

The Supreme Court of California held that Welfare and Institution Code § 6602, subd. (a) does not create an exception permitting hearsay regarding nonpredicate offenses to be introduced via psychological evaluation reports. (All statutory references are to the Welfare and Institution Code.)

In June 2015, the District ...

Rhode Island Supreme Court: Conclusory Statutory Language to Describe Purported Child Porn Image Used to Support Search Warrant Affidavit Invalidates Warrant

by Anthony W. Accurso

The Supreme Court of Rhode Island held that the search warrant used to search a defendant’s home was invalid because the officer’s failure to append the alleged child porn video or a still image thereof or even describe the material with anything other than conclusory language ...

Texas Man Positively Identified by Six Eyewitnesses and Sentenced to Life Granted Actual Innocence Relief as Result of DNA Evidence

by Casey J. Bastian

Aaron Scheerhoorn was stabbed to death outside a Houston bar in 2010. During the investigation, multiple witnesses told detectives an unknown Black man was the perpetrator. Detectives believed that man was Lydell Grant. Witnesses were asked to participate in a lineup. The lead detective administered the ...

When Life Is No Better Than Death

by Jayson Hawkins

Capital punishment has been a part of the American experience from the earliest times. Virginia executed a colonist in the seventeenth century, and since then, nearly every method of execution, from hanging to lethal injection, has found purchase upon some corner of the U.S.

Times, however, are ...

California Supreme Court Announces Suspended Execution of Sentence with Probation Imposed Is Not ‘Final’ so New Changes in Law Apply Retroactively on Appeal

by Dale Chappell

In a case that expands the retroactive application of new, more lenient laws passed by the Legislature after a defendant is convicted but is placed on probation with execution of the prison sentence suspended is not yet final where the defendant is still entitled to timely obtain ...

Montana Supreme Court: Detainee Entitled to Pre-Sentence Credit for Time Served Regardless if Also Held in Connection With Another Matter in Another County

by Douglas Ankney

The Supreme Court of Montana held that Mark Alan Mendoza was entitled to credit for each day he spent in pre-sentence confinement after an arrest warrant for DUI was served on him, regardless of the fact that he was being held in another county on another matter. ...

Colorado Supreme Court Announces Mandatory Lifetime Sex Offender Registration Unconstitutional for Juveniles With Multiple Adjudications

by Dale Chappell

The Supreme Court of Colorado held that mandatory lifetime sex offender registration for multiple sex offenses committed as a juvenile constitutes cruel and unusual punishment in violation of the Eighth Amendment.

T.B. was a juvenile when he committed two state sex offenses—one in 2001 at age 11 ...

New Mexico Abolishes Qualified Immunity

by Michael Fortino, Ph.D.

Although many states across the nation continue to harbor and protect their employees from liability lawsuits—even in cases where the civil servant proved negligent or acted with reckless disregard—some, more progressive states, have taken the lead on litigation reform. New Mexico recently joined the ranks of ...

Missouri Supreme Court: IAC Where Guilty Plea Based on Counsel’s Assurance Defendant Eligible for Drug Treatment Program When, as Matter of Law, Ineligible

by David M. Reutter

The Supreme Court of Missouri held that a defendant’s guilty plea was the result of ineffective assistance of counsel due to counsel misinforming the defendant that he qualified for the long-term drug program (“LTDP”) under RSMO § 217.362 that he was, as a matter of law, ...

 

 

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