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Criminal Legal News: February, 2021

Issue PDF
Volume 4, Number 2

In this issue:

  1. Staggering Injustice (p 1)
  2. Fifth Circuit Vacates Sentence Eight Times Higher Than Guidelines Range That Was Imposed Without Explanation (p 9)
  3. Federal Habeas Corpus: Retroactivity of New Rules (p 10)
  4. Sex Panic: The War on Sex Offenders as Public Enemy Number One (p 12)
  5. Fourth Circuit Announces Payton’s ‘Reason to Believe’ Standard for Entering a Third-Party’s Home Based on Arrest Warrant for Suspect Amounts to Probable Cause Suspect Resides There (p 16)
  6. Colorado Supreme Court: Dividing Multiple Images of Child Pornography Into Multiple Batches to Charge Multiple Counts Violates Double Jeopardy (p 17)
  7. First Circuit: Double Jeopardy Protections Bar Government From Seeking Death Penalty at Retrial Where Jury’s Verdict Not Imposing Death at First Trial Ambiguous, and Trial Court Prematurely Declared Mistrial (p 18)
  8. Fired San Francisco Cop Charged With Manslaughter for Fatally Shooting Unarmed Suspect (p 19)
  9. California Supreme Court Vacates Murder Conviction, Finds IAC for Failure to Obtain Expert Testimony on Time of Death (p 20)
  10. Ninth Circuit: Reasonable Suspicion Justifying Traffic Stop Doesn’t Provide Probable Cause to Open Door and Lean Inside Vehicle (p 20)
  11. Police Say Seizing Property Without Trial Helps Keep Crime Down. A New Study Shows They’re Wrong. (p 22)
  12. New York Court of Appeals Reverses Denial of Suppression Motion Where Prosecution Fails to Provide Specific Facts to Show Traffic Stop Was Lawful (p 23)
  13. Michigan Voters Approve Constitutional Amendment to Protect Electronic Data and Communications (p 24)
  14. Kansas Supreme Court Clarifies State Law Does Not Preclude Consent to Search Through Nonverbal Conduct (p 24)
  15. Sixth Circuit Vacates Sentence Because Government Failed to Prove Sentencing Enhancements Apply (p 26)
  16. Eighth Circuit Announces ‘Use of Minor’ Enhancement Inapplicable for Merely Buying Firearm From Minor (p 26)
  17. Illinois Supreme Court Announces Guilty Plea Doesn’t Bar Postconviction Claim of Actual Innocence and Provides Framework for Review (p 28)
  18. Illinois Supreme Court Announces Predicate Offenses of Home Invasion Statute are Lesser-Included Offenses of Home Invasion Statute (p 29)
  19. Eleventh Circuit Announces Drug Offenses Involving Multiple Drugs Can Qualify as ‘Covered Offense’ Under First Step Act if Crack One of the Drugs (p 30)
  20. Montana Supreme Court: Statistical Evidence on False Accusations of Rape Improperly Bolstered Witness Credibility (p 30)
  21. SCOTUS Vacates Grant of Habeas Relief, Citing Habeas ‘Deference’ to State Court Decisions (p 32)
  22. Eleventh Circuit: District Court ‘Mischaracterizing’ Habeas Claim Left Claim Unresolved in Violation of Clisby, Requiring Remand (p 32)
  23. New York Man Exonerated of Murder and Freed After 25 Years in Prison (p 33)
  24. Predator or Patsy? Long Sentences for Those Caught in Victimless Child Sex Stings (p 34)
  25. Ninth Circuit: Rehaif Error Requires Automatic Dismissal of Indictment (p 34)
  26. Fourth Circuit: Commercial Vehicle Permit Requirement Insufficient Grounds to Initiate Traffic Stop (p 35)
  27. Eleventh Circuit: Private Probation Company With Financial Interest in its Sentencing Decisions Violates Due Process (p 36)
  28. California Court of Appeal: Confrontation Clause Violation Where Supervisor, Not Lab Tech Who Performed Drug Tests, Testified at Trial (p 36)
  29. Fifth Circuit: Conviction Vacated Because No Reasonable Suspicion to Search Person in High-Crime Area (p 37)
  30. Third Circuit: IAC Where Counsel Failed to Object to Accomplice-Liability Jury Instruction in Murder Case That Relieved State of Proving Specific Intent (p 38)
  31. Data Expose Demographics of Police Dog Bites (p 39)
  32. Seventh Circuit: Prisoner Has Right to Know Conditions of Supervised Release Prior to Being Released (p 39)
  33. When a Hung Jury Is Enough (p 40)
  34. Audit of D.C. Forensics Lab Reveals History of Botched Forensic Analyses (p 40)
  35. Multi-Agency Task Forces Manipulate Jurisdiction to Avoid Liability (p 41)
  36. Inadequate and Outdated Training Results in Wild West Policing (p 42)
  37. New Michigan Law Expands Criminal Records Expungement (p 42)
  38. Athlete Settles Tasing Suit Against Milwaukee Police (p 43)
  39. Eighth Circuit Affirms Habeas Relief, Finds Arkansas Supreme Court Wrongly Denied Defendant’s Self-Representation Request (p 44)
  40. Police Unions Block Meaningful Criminal Justice Reform (p 44)
  41. How Arkansas Criminalizes Poverty (p 45)
  42. California Law Enforcement Strikes Out in 2020 Elections (p 46)
  43. Massive Corruption of a Baltimore Task Force Exposed (p 46)
  44. NYPD Agrees to Alter Religious Headwear Policy (p 47)
  45. Massachusetts Supreme Court Announces Requirement Prosecution Prove Defendant Knew Firearm Was Loaded Applies Retroactively (p 48)
  46. Prosecutors Who Demand Accountability From Everyone But Themselves (p 49)
  47. News in Brief (p 50)
  48. Louisiana Supreme Court Vacates Murder Conviction for Speedy Trial Violation (p 50)

Staggering Injustice

Experts Say Cross-Racial Eyewitness Identification Errors Are Widespread and Contribute to Thousands of Wrongful Convictions

by Derek Gilna

In a time where much of the American criminal justice system is justifiably under intense pressure to eliminate potential racial bias, there is at least one issue that could be resolved without ...

Fifth Circuit Vacates Sentence Eight Times Higher Than Guidelines Range That Was Imposed Without Explanation

Federal Habeas Corpus: Retroactivity of New Rules

I remember the first time I heard a lawyer say that a new Supreme Court decision wasn’t a ...

Sex Panic: The War on Sex Offenders as Public Enemy Number One

Fourth Circuit Announces Payton’s ‘Reason to Believe’ Standard for Entering a Third-Party’s Home Based on Arrest Warrant for Suspect Amounts to Probable Cause Suspect Resides There

The U.S. Court of Appeals for the Fourth Circuit held that the phrase “reason to believe the suspect is within” in Payton v. New York, 445 U.S. 573 (1980), means that when police enter a third-party’s residence without a search warrant to execute an arrest warrant, ...

Colorado Supreme Court: Dividing Multiple Images of Child Pornography Into Multiple Batches to Charge Multiple Counts Violates Double Jeopardy

The case came ...

First Circuit: Double Jeopardy Protections Bar Government From Seeking Death Penalty at Retrial Where Jury’s Verdict Not Imposing Death at First Trial Ambiguous, and Trial Court Prematurely Declared Mistrial

Fired San Francisco Cop Charged With Manslaughter for Fatally Shooting Unarmed Suspect

The incident happened when SFPD officer Christopher Samayoa was riding with his ...

California Supreme Court Vacates Murder Conviction, Finds IAC for Failure to Obtain Expert Testimony on Time of Death

In 2005, Kimberly Long was convicted of second-degree murder ...

Ninth Circuit: Reasonable Suspicion Justifying Traffic Stop Doesn’t Provide Probable Cause to Open Door and Lean Inside Vehicle

Officer Kolby Willmes spotted Malik Ngumezi’s vehicle parked at a gas station and observed that the ...

Police Say Seizing Property Without Trial Helps Keep Crime Down. A New Study Shows They’re Wrong.

Civil asset forfeiture laws, which allow police to seize property without trial, are frequently justified as tools to seize millions from kingpins. A new study reveals the median amount taken is as low as $369 in some states.

by Ian MacDougall for ProPublica

In 2015, New Mexico lawmakers unanimously passed a bill ...

New York Court of Appeals Reverses Denial of Suppression Motion Where Prosecution Fails to Provide Specific Facts to Show Traffic Stop Was Lawful

Balkman was the passenger in a ...

Michigan Voters Approve Constitutional Amendment to Protect Electronic Data and Communications

After all the wrangling over the Office of the President and control of Congress ...

Kansas Supreme Court Clarifies State Law Does Not Preclude Consent to Search Through Nonverbal Conduct

Responding to a complaint of an odor of marijuana, officers Robert McKeirnan and Kelly Smith decided ...

Sixth Circuit Vacates Sentence Because Government Failed to Prove Sentencing Enhancements Apply

Eighth Circuit Announces ‘Use of Minor’ Enhancement Inapplicable for Merely Buying Firearm From Minor

Illinois Supreme Court Announces Guilty Plea Doesn’t Bar Postconviction Claim of Actual Innocence and Provides Framework for Review

Illinois Supreme Court Announces Predicate Offenses of Home Invasion Statute are Lesser-Included Offenses of Home Invasion Statute

A jury convicted Alejandro Reveles-Cordova of criminal sexual assault and of home invasion predicated upon criminal sexual assault. On appeal, Reveles ...

Eleventh Circuit Announces Drug Offenses Involving Multiple Drugs Can Qualify as ‘Covered Offense’ Under First Step Act if Crack One of the Drugs

It ...

Montana Supreme Court: Statistical Evidence on False Accusations of Rape Improperly Bolstered Witness Credibility

Philip Bryson Grimshaw was charged with sexual intercourse without consent, in violation of § 45-5-503, ...

SCOTUS Vacates Grant of Habeas Relief, Citing Habeas ‘Deference’ to State Court Decisions

Eleventh Circuit: District Court ‘Mischaracterizing’ Habeas Claim Left Claim Unresolved in Violation of Clisby, Requiring Remand

New York Man Exonerated of Murder and Freed After 25 Years in Prison

In November 1994, a 70-year-old woman was ...

Predator or Patsy? Long Sentences for Those Caught in Victimless Child Sex Stings

The internet age has brought a whole range of problems to go along with the marvels of convenience and efficiency. One of these problems stems from the “connectivity” so often touted as a benefit of social networks. In this case, the connectivity in question is the ease with which sexual ...

Ninth Circuit: Rehaif Error Requires Automatic Dismissal of Indictment

The case came before the Court after Omar Qazi was charged ...

Fourth Circuit: Commercial Vehicle Permit Requirement Insufficient Grounds to Initiate Traffic Stop

Eleventh Circuit: Private Probation Company With Financial Interest in its Sentencing Decisions Violates Due Process

California Court of Appeal: Confrontation Clause Violation Where Supervisor, Not Lab Tech Who Performed Drug Tests, Testified at Trial

Fifth Circuit: Conviction Vacated Because No Reasonable Suspicion to Search Person in High-Crime Area

Raymond L. McKinney was standing with friends on a sidewalk near a gas station in San Antonio, Texas. It ...

Third Circuit: IAC Where Counsel Failed to Object to Accomplice-Liability Jury Instruction in Murder Case That Relieved State of Proving Specific Intent

Data Expose Demographics of Police Dog Bites

Seventh Circuit: Prisoner Has Right to Know Conditions of Supervised Release Prior to Being Released

Hogenkamp was sentenced to a term of 10 years’ imprisonment followed by ...

When a Hung Jury Is Enough

Audit of D.C. Forensics Lab Reveals History of Botched Forensic Analyses

Multi-Agency Task Forces Manipulate Jurisdiction to Avoid Liability

Inadequate and Outdated Training Results in Wild West Policing

But it is possible that much broader and ...

New Michigan Law Expands Criminal Records Expungement

Athlete Settles Tasing Suit Against Milwaukee Police

Milwaukee city attorney Tearman Spencer and assistant city attorney Robin A. Pederson sent a letter to the city’s Common Council on November ...

Eighth Circuit Affirms Habeas Relief, Finds Arkansas Supreme Court Wrongly Denied Defendant’s Self-Representation Request

Elliott Finch repeatedly told the state trial court that he wanted ...

Police Unions Block Meaningful Criminal Justice Reform

How Arkansas Criminalizes Poverty

Renters in Arkansas face the unique and unfortunate possibility ...

California Law Enforcement Strikes Out in 2020 Elections

Historically, law enforcement unions have been a powerful lobbying force for certain political candidates and criminal justice bill proposals ...

Massive Corruption of a Baltimore Task Force Exposed

Hundreds ...

NYPD Agrees to Alter Religious Headwear Policy

Massachusetts Supreme Court Announces Requirement Prosecution Prove Defendant Knew Firearm Was Loaded Applies Retroactively

Prosecutors Who Demand Accountability From Everyone But Themselves

News in Brief

Arizona: The family of 40-year-old Ryan Whitaker, who was fatally shot in the back by a police officer investigating a noise complaint, settled in December 2020 with the city of Phoenix for $3 million by unanimous City Council vote. Whitaker was shot in the doorway of his apartment by Officer ...

Louisiana Supreme Court Vacates Murder Conviction for Speedy Trial Violation

After Nicholas Revish was convicted of second-degree murder and attempted murder ...

 

 

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