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Criminal Legal News: September, 2021

Issue PDF
Volume 4, Number 9

In this issue:

  1. Trial Penalty: The Harm in Coercive Prosecutorial Tactics and Plea Bargains (p 1)
  2. Virginia Supreme Court Reverses Concealed Weapon Offense Because Statutory Exception Applied (p 11)
  3. The Federal Habeas Corpus: Government’s Response and Your Reply (p 12)
  4. The Many Roads to Relief Under Borden (p 14)
  5. Montana Supreme Court: Court Reporter’s Medical Emergency and Judge’s Distress Don’t Constitute Manifest Necessity for Declaring Mistrial, Retrial Violates Double Jeopardy (p 15)
  6. Arizona Supreme Court: Trial Court’s Failure to Protect Defendant’s Right to Conflict-Free Counsel May Be Raised on Direct Appeal 16 Massachusetts Supreme Court: Error to Exclude Expert Testimony on Significance of Tattoo to Support Claim of Self-Defense (p 16)
  7. Virginia Passes Comprehensive Record Clearance Legislation (p 16)
  8. Massachusetts Supreme Court: Error to Exclude Expert Testimony on Significance of Tattoo to Support Claim of Self-Defense (p 18)
  9. Seventh Circuit: Coworker Cannot Limitlessly Search Defendant’s Office at Direction of FBI (p 19)
  10. Fourth Circuit Reverses ‘Abusive Language’ Conviction Where Government Failed to Offer Evidence That Racial Slur Tended to Cause Immediate Acts of Violence (p 20)
  11. Nebraska Supreme Court Reverses Denial of Pretrial Motion for Absolute Discharge on Speedy Trial Grounds (p 20)
  12. Should Public Defenders Be Tweeting? (p 22)
  13. California Court of Appeal Vacates Guilty Plea That Resulted in Legal Fiction (p 22)
  14. California Court of Appeal: When Federal Court Finds Petitioner Satisfies Schlup Standard, Victim Compensation Board Must Recommend Payment of Claim Without Hearing (p 24)
  15. National Institute of Justice Funds Research to Differentiate Injuries Caused by Child Abuse from Accidental Injuries (p 25)
  16. Ninth Circuit: Directly Searching Inside Detainee’s Pocket Not a Valid Terry Frisk for Weapons (p 26)
  17. Police Funding Reallocated to Community Programs Nationwide (p 26)
  18. Atavistic South Carolinians Offer Option of Firing Squad to Condemned Prisoners (p 27)
  19. Sixth Circuit: District Court May Consider Disparity of Defendant’s Actual Sentence Compared With Sentence Under First Step Act When Additional Factors Present (p 28)
  20. Delaware Supreme Court: Substitution Not Allowed for Chain of Custody Witness (p 28)
  21. Eighth Circuit: Plain Error to Impose Destructive-Device Enhancement for .410 Shotgun (p 29)
  22. Tenth Circuit Reverses Denial of Suppression Motion Because Rationale for Community-Caretaker Exception Unreasonable (p 30)
  23. Report: NYPD Sold Almost 22,000 of the 55,000 Phones Seized Last Year (p 31)
  24. SCOTUS: Cady’s ‘Community Caretaking’ Function of Police Doesn’t Create Standalone Doctrine Permitting Warrantless Entry into a Home (p 32)
  25. Maryland and Montana: First States to Pass Laws Restricting Access to Consumer Genealogy Databases by Law Enforcement (p 33)
  26. South Carolina Supreme Court: Lifetime SORA Registration Requirement Unconstitutional Absent Opportunity for Judicial Review of Risk of Re-offending (p 34)
  27. It’s No Shock That Tasers Increase Brutality (p 34)
  28. Mississippi Supreme Court: Drug Buy Between Dealer and User Doesn’t Constitute Conspiracy to Distribute (p 35)
  29. New Mexico Supreme Court: Constitutional Error to Accept Plea Without Assistance of Counsel (p 36)
  30. California Court of Appeal Reverses Felony-Murder Conviction Where Sentencing Occurred After SB 1437 Enacted (p 36)
  31. Maryland Enacts Significant Police Reform, Overriding Governor’s Veto (p 37)
  32. FBI Subpoenas Media Outlets for Information on Readers of Stories Criticizing Government (p 38)
  33. Decision Not to Prosecute May Reduce Chance of Recidivism (p 38)
  34. Fourth Circuit Extends Gant’s Automobile Search-Incident-to-Arrest Framework to Searches of Non-Vehicular Containers (p 39)
  35. Texas Supreme Court: Multiple Misdemeanor Charges Resulting From Single Arrest Divisible for Expunction Purposes (p 40)
  36. Police Legal Defense Funds Have Millions in Reserve (p 41)
  37. Big Brother Is Watching You Through Your Car (p 41)
  38. Warrantless Warrants and Crooked Courts in Chicago (p 42)
  39. Constitutional Protections No Protection for Colorado Man Killed by Police (p 42)
  40. Details Surface About Firm That Hacked iPhone for the FBI in 2016 (p 43)
  41. Debunking the Myth of ‘Dangerous’ Traffic Stops (p 44)
  42. Reports Show Law Enforcement Groups Are Main Force Pushing New Anti-Protest Laws (p 44)
  43. Jury Refuses to Hold Abusive Cops Accountable for Beating Undercover Cop (p 45)
  44. Prosecutors Call for Humane Sentencing Measures (p 45)
  45. Two T-shirts Cost Louisiana Man 20 Years (p 46)
  46. Digital Dogs, New Technology Designed to Sniff-Out Crime (p 46)
  47. When Police Ignore Ordered Changes, Is It Really Reform? (p 47)
  48. Police Use of Facial Recognition May Be Broader Than Expected (p 47)
  49. The Louisiana Board of Parole Giveth and Taketh Away: The Troubling Case of Bobby Sneed (p 48)
  50. The People Have Spoken: Clemency Appointments Should Follow the Will of the People (p 48)
  51. Police Target People of Color for Cannabis Crimes Despite Legalization (p 49)
  52. One More Reason to Dislike Your State’s DMV (p 49)
  53. News in Brief (p 50)
  54. Bodycams Do Not Hold Cops Accountable, Communities Do (p 50)

Trial Penalty: The Harm in Coercive Prosecutorial Tactics and Plea Bargains

That warning ...

Virginia Supreme Court Reverses Concealed Weapon Offense Because Statutory Exception Applied

The Supreme Court of Virginia reversed the judgment of the Court of Appeals (“COA”) that had affirmed Dorain Jerod Myers’ conviction for carrying a concealed weapon, second offense, in violation of Va. Code Ann. § 18.2-308(A), which makes it illegal for anyone to carry “about his person” ...

The Federal Habeas Corpus: Government’s Response and Your Reply

After working hard to set out the claims in your federal habeas corpus petition, along comes the person having custody over you and files a response in court that recharacterizes your claims and makes you look like someone who needs to spend the rest of his life ...

The Many Roads to Relief Under Borden

In yet another case, the Supreme Court of the United States (“SCOTUS”) whittles away at the Armed Career Criminal Act (“ACCA”), this time narrowing what qualifies as a “violent felony” to impose the harsh 15-year minimum penalty for possessing a firearm as a felon.

On June 10, ...

Montana Supreme Court: Court Reporter’s Medical Emergency and Judge’s Distress Don’t Constitute Manifest Necessity for Declaring Mistrial, Retrial Violates Double Jeopardy

The Supreme Court of Montana dismissed with prejudice charges of sexual intercourse without consent and bail jumping, ruling the defendant’s second trial following a mistrial that was declared without a showing of manifest necessity was barred by the Double Jeopardy Clauses of the U.S. and Montana Constitutions. ...

Arizona Supreme Court: Trial Court’s Failure to Protect Defendant’s Right to Conflict-Free Counsel May Be Raised on Direct Appeal 16 Massachusetts Supreme Court: Error to Exclude Expert Testimony on Significance of Tattoo to Support Claim of Self-Defense

The Supreme Court of Arizona affirmed a decision of the Court of Appeals (“COA”) holding that the issue of a trial court’s failure to adequately protect a defendant’s right to conflict-free counsel—as opposed to issues broadly raised as ineffective assistance of counsel—may be raised on direct appeal. ...

Virginia Passes Comprehensive Record Clearance Legislation

Far too frequently, a criminal record is an obstacle to securing education, employment, housing, and other similar necessities. Approximately 1.6 million Virginia residents have a criminal record; a disproportionate number of them are Black. The House and Senate Chambers of the Virginia General Assembly have passed legislation that will facilitate ...

Massachusetts Supreme Court: Error to Exclude Expert Testimony on Significance of Tattoo to Support Claim of Self-Defense

The Supreme Judicial Court of Massachusetts found a trial court abused its discretion when it excluded an expert who sought to testify as to the cultural significance of a tattooed symbol on an alleged victim’s arm.

The Court’s order was issued in an appeal brought by ...

Seventh Circuit: Coworker Cannot Limitlessly Search Defendant’s Office at Direction of FBI

Ethel Shelton worked as the administrative assistant to Mary ...

Fourth Circuit Reverses ‘Abusive Language’ Conviction Where Government Failed to Offer Evidence That Racial Slur Tended to Cause Immediate Acts of Violence

The U.S. Court of Appeals for the Fourth Circuit reversed retired Air Force Lieutenant Colonel Jules A. Bartow’s conviction for using “abusive language” after determining the Government failed to prove his racial slur tended to cause immediate acts of violence.

Bartow, who is white, was inside the ...

Nebraska Supreme Court Reverses Denial of Pretrial Motion for Absolute Discharge on Speedy Trial Grounds

The Supreme Court of Nebraska reversed a lower court’s denial of a criminal defendant’s motion for absolute discharge based on statutory speedy trial grounds.

A complaint was filed against Douglas P. Jennings in the county court for Douglas County, Nebraska, charging him with Class I misdemeanor stalking of his former ...

Should Public Defenders Be Tweeting?

New York’s public defender community is gaining popularity on Twitter by telling stories from their perspective on the criminal justice system, especially when highlighting flaws and injustices. However, there is vocal criticism whether they are crossing a line in telling stories that belong to their clients.

Public ...

California Court of Appeal Vacates Guilty Plea That Resulted in Legal Fiction

The Court of Appeal of California, First Appellate District, Division Three, reversed a guilty plea where a trial court approved a plea bargain for human trafficking of a minor for a sex act because it was undisputed that the victim was an adult. The Court held ...

California Court of Appeal: When Federal Court Finds Petitioner Satisfies Schlup Standard, Victim Compensation Board Must Recommend Payment of Claim Without Hearing

The Court of Appeal, Second Appellate District, Division Five, held that when a federal district court finds that a habeas petitioner has satisfied the standard enunciated in Schlup v. Delo, 513 U.S. 298 (1995), and the petitioner is permanently released from custody, the California Victim Compensation ...

National Institute of Justice Funds Research to Differentiate Injuries Caused by Child Abuse from Accidental Injuries

Child abuse is the leading cause of trauma-related deaths in children. In 2017, around 3.5 million children were referred to social services due to reports of abuse and neglect; 1,720 of them died. Over 70% of those who died were not yet 3 years old. Yet physicians ...

Ninth Circuit: Directly Searching Inside Detainee’s Pocket Not a Valid Terry Frisk for Weapons

The U.S. Court of Appeals for the Ninth Circuit held that police exceeded their authority to search for weapons under Terry when they directly searched the inside pocket of an otherwise compliant detainee.

Officers Robert Wining and Robert Nasland responded to a call on Nov. 15, ...

Police Funding Reallocated to Community Programs Nationwide

Defunding the police is not a new concept. The idea has just been largely ignored by lawmakers until recently. Advocacy groups have flooded city council meetings for years while making similar demands. Activist have been pushing officials to cease expansion of police and jail budgets and ...

Atavistic South Carolinians Offer Option of Firing Squad to Condemned Prisoners

Brad Sigmon, 63, was scheduled to be killed on June 18, 2021, at the hands of the people of South Carolina in their perverse and bizarre notion of justice. But on June 16, 2021, the South Carolina Supreme Court stayed his killing. The Court announced it would ...

Sixth Circuit: District Court May Consider Disparity of Defendant’s Actual Sentence Compared With Sentence Under First Step Act When Additional Factors Present

The U.S. Court of Appeals for the Sixth Circuit held that, in making an individualized determination about whether extraordinary and compelling reasons merit compassionate release, a district court may include, along with other factors, the disparity between a defendant’s actual sentence and the sentence he would have ...

Delaware Supreme Court: Substitution Not Allowed for Chain of Custody Witness

by Anthony W. Accurso

The Supreme Court of Delaware vacated a defendant’s convictions for substance possession after the trial court allowed the State to substitute a different officer for testimony instead of the one who conducted the search.

In June 2018, Wilmington Police pulled over a vehicle belonging to Stephen ...

Eighth Circuit: Plain Error to Impose Destructive-Device Enhancement for .410 Shotgun

The U.S. Court of Appeals for the Eighth Circuit remanded for resentencing on a defendant’s guilty plea because the U.S. District Court for the Northern District of Iowa improperly assessed a destructive-device enhancement.

The Court’s opinion was issued in an appeal by Adrian Zarate. He pleaded ...

Tenth Circuit Reverses Denial of Suppression Motion Because Rationale for Community-Caretaker Exception Unreasonable

by Douglas Ankney

The U.S. Court of Appeals for the Tenth Circuit reversed the U.S. District Court for the District of Colorado’s denial of Hunter Trey Venezia’s motion to suppress because the Government’s reliance upon the community-caretaking exception to the warrant requirement was based upon an unreasonable community-caretaking rationale.

Officers ...

Report: NYPD Sold Almost 22,000 of the 55,000 Phones Seized Last Year

The law of the land is that the “search incident to arrest” exception to the warrant requirement does not apply to the contents of a cellphone. But what about seizures of cellphones? Has the rule become, “I can take your phone because I’m a cop?”

Police officers ...

SCOTUS: Cady’s ‘Community Caretaking’ Function of Police Doesn’t Create Standalone Doctrine Permitting Warrantless Entry into a Home

A unanimous Supreme Court of the United States (“SCOTUS”) held that the “community caretaking” function of police announced in Cady v. Dombrowski, 413 U.S. 433 (1973), which permits police to search an impounded vehicle without a warrant, does not create a standalone exception to the warrant ...

Maryland and Montana: First States to Pass Laws Restricting Access to Consumer Genealogy Databases by Law Enforcement

by Casey J. Bastian

In recent years, law enforcement has realized the enormous potential to solve crimes by using genetic genealogy databases. New laws in Maryland and Montana seek to reconcile the usefulness of genetic genealogy data and consumer privacy. Consumer companies like FamilyTree DNA, 23andMe, Ancestry, ...

South Carolina Supreme Court: Lifetime SORA Registration Requirement Unconstitutional Absent Opportunity for Judicial Review of Risk of Re-offending

In an opinion filed June 9, 2021, the Supreme Court of South Carolina upheld a lower court ruling allowing a lower-risk sex offender to be removed from the registry because lifetime registration for low-risk offenders does not “bear[] a reasonable relationship” to the Legislature’s legitimate interest ...

It’s No Shock That Tasers Increase Brutality

During the past 20 years, the stun gun has become a popular weapon in the American law enforcement arsenal. First marketed as a “non-lethal” device, the deployment of stun guns has not decreased brutal police violence.

In the U.S., most law enforcement agencies rely on stun ...

Mississippi Supreme Court: Drug Buy Between Dealer and User Doesn’t Constitute Conspiracy to Distribute

The Supreme Court of Mississippi reversed a defendant’s conviction after finding the State failed to prove he conspired with anyone to distribute methamphetamine.

The Court’s en banc ruling was issued in an appeal brought by Duane Robert Henderson. After April Newman was contacted on the internet ...

New Mexico Supreme Court: Constitutional Error to Accept Plea Without Assistance of Counsel

The Supreme Court of New Mexico held that a magistrate court committed constitutional error by accepting a defendant’s plea of no contest without the assistance of counsel. The Court said the “case serves as a reminder that fundamentals constitutional rights cannot be jettisoned for the sake ...

California Court of Appeal Reverses Felony-Murder Conviction Where Sentencing Occurred After SB 1437 Enacted

The Court of Appeal of California, Second Appellate District, Division Eight, held that a felony-murder conviction was invalid when guilt was determined prior to the enactment of Senate Bill 1437 (“SB 1437”), which was passed in the 2017-2018 regular session of the Legislature, but sentencing occurred after ...

Maryland Enacts Significant Police Reform, Overriding Governor’s Veto

The first state in the nation to institute a police bill of rights now also holds the distinction of being the first to repeal it. Passed into law in 1974, the legislation afforded Maryland cops the right to appeal disciplinary measures to a local board despite a ...

FBI Subpoenas Media Outlets for Information on Readers of Stories Criticizing Government

The Federal Bureau of Investigation (“FBI”) recently subpoenaed USA Today seeking information on readers of a story about a botched FBI raid in Florida that killed two agents and wounded three other agents. It asked the news outlet to keep the subpoena quiet, but instead, the newspaper ...

Decision Not to Prosecute May Reduce Chance of Recidivism

Politics professor at New York University Anna Harvey, Rutgers University economist Amanda Agan, and Texas A&M economist Jennifer Doleac conducted a study January of 2019 intended to show that the decision not to pursue prosecution for low-level nonviolent misdemeanors actually worked as a deterrent to recidivism and ...

Fourth Circuit Extends Gant’s Automobile Search-Incident-to-Arrest Framework to Searches of Non-Vehicular Containers

The U.S. Court of Appeals for the Fourth Circuit extended the holding in Arizona v. Gant, 556 U.S. 332 (2009) (vehicle may be searched incident to arrest without a warrant if police reasonably believe that the arrestee “could have accessed his car at the time of ...

Texas Supreme Court: Multiple Misdemeanor Charges Resulting From Single Arrest Divisible for Expunction Purposes

The Supreme Court of Texas held that under Article 55.01(a)(2)(A) of the Texas Code of Criminal Procedure multiple misdemeanor offenses charged in a single arrest are eligible for expunction on an individual basis.

R.P.G.P. was arrested for a misdemeanor driving while intoxicated (“DWI”) offense. An inventory search ...

Police Legal Defense Funds Have Millions in Reserve

As the calls for greater police accountability have grown louder across the country, one of the most consistent and effective barriers to change is the power of police unions. The power of these unions is usually linked to their potential to sway the local elections that typically ...

Big Brother Is Watching You Through Your Car

by Jayson Hawkins

More people are becoming aware that personal data is the currency of the Information Age in which we are living. Many have grown accustomed to taking steps to protect privacy on their phones and other digital devices, yet few may know about emerging technologies that allow law ...

Warrantless Warrants and Crooked Courts in Chicago

Recent media coverage of police brutality and other flagrant violations of civilians’ rights has offered numerous candidates for the dubious distinction of worst law enforcement agency in the U.S. The competition is stiff, but an investigation by CBS2 in Chicago suggests their police department should be a ...

Constitutional Protections No Protection for Colorado Man Killed by Police

The death of Elijah McClain after a violent encounter with law enforcement in August, 2019, sparked local protests in Aurora, Colorado. In response to the inadequate departmental oversight, the Aurora City Council appointed an independent panel to investigate what went wrong. The panel issued a 157-page ...

Details Surface About Firm That Hacked iPhone for the FBI in 2016

It was in 2016 that a shooting in San Bernardino, California, sparked legal action in which the FBI attempted to use the courts to force Apple to enable a vulnerability that would allow the agency to access all iPhones, including the shooter’s. The FBI eventually dropped ...

Debunking the Myth of ‘Dangerous’ Traffic Stops

Daunte Wright. Philando Castile. Walter Scott. Sam DuBose. All too often another name is added to the list of Black men killed by cops at traffic stops. While police training continues to push the narrative that it is law enforcement officers who face extreme danger during these ...

Reports Show Law Enforcement Groups Are Main Force Pushing New Anti-Protest Laws

Two recent reports by the Proteus Fund and Greenpeace show that organizations associated with law enforcement—mostly police unions—are the main drivers of the unprecedented number of new anti-protest bills introduced in state legislatures in 2021.

When Connor Gibson undertook research for the Proteus Fund to see which ...

Jury Refuses to Hold Abusive Cops Accountable for Beating Undercover Cop

A jury in Saint Louis acquitted five police officers on several counts relating to their violent assault on a man during protests in September 2017, a man who later turned out to be an undercover cop sent out to gather details on property destruction.

On the ...

Prosecutors Call for Humane Sentencing Measures

Sixty-four current and former prosecutors, attorneys, law enforcement officers, and other judicial leaders from 26 states and the District of Columbia signed a group statement titled “Joint Statement on Sentencing Second Chances and Addressing Past Extreme Sentences” in April of this year. The statement calls for leaders ...

Two T-shirts Cost Louisiana Man 20 Years

Guy Frank first became involved with Louisiana’s criminal justice system in 1975 at age 22. Over the next quarter century, Frank would be arrested 36 times and would be convicted several times for theft and possession of cocaine. He served a three-year prison term at one point ...

Digital Dogs, New Technology Designed to Sniff-Out Crime

If you thought criminal investigations have gone to the dogs, you might be right—digital dogs. Forensic science has now perfected an advanced “crime-sniffing” technology that can detect, at the molecular level, deadly viruses, illegal drugs, and even bomb-making chemical compounds. These digital dogs however have such a ...

When Police Ignore Ordered Changes, Is It Really Reform?

While former Minneapolis police officer Derek Chauvin stood trial for the murder of George Floyd, police in Brooklyn Center, Minnesota, shot and killed 20-year-old Daunte Wright during a traffic stop. Protesters assembled outside Brooklyn Center’s police headquarters.

The crowd control tactics inflicted upon the protesters were of ...

Police Use of Facial Recognition May Be Broader Than Expected

Recent reports reveal that police use of facial recognition software may be far more pervasive than we’ve been led to believe.

Clearview AI markets its facial recognition software to law enforcement agencies around the country, boasting the ability to take a photo from a crime scene ...

The Louisiana Board of Parole Giveth and Taketh Away: The Troubling Case of Bobby Sneed

In yet another outrageous example of what constitutes “justice” in America, we have the story of 74-year-old Bobby Sneed. He has been imprisoned at one of this nation’s most perilous institutions for 47 years. Earlier this year, a 17-minute hearing before the Louisiana Board of Parole ...

The People Have Spoken: Clemency Appointments Should Follow the Will of the People

Executive Clemency, the process of granting a modified or revised prison sentence at the behest of the Office of the President of the United States, continues to be a largely overlooked and underutilized path toward reversing punitive mass incarceration despite the fact that there remains bi-partisan ...

Police Target People of Color for Cannabis Crimes Despite Legalization

Five more states joined the growing list of jurisdictions where cannabis has been legalized or decriminalized. But the new laws are a hodgepodge of regulation. Some states explicitly changed the laws to prevent police harassment by eliminating the odor of cannabis as sufficient probable cause to ...

One More Reason to Dislike Your State’s DMV

For those who have suffered through seemingly endless, slow-moving lines at your state’s Department of Motor Vehicles (“DMV”), only to come up against rude, condescending, petty bureaucrats, there is a brand-new reason to dislike and fear that particular agency.  Many DMVs are augmenting their legislative budget allotments ...

News in Brief

California: Five Southern California cops were placed on leave in June 2021 after a video surfaced showing them attacking suspects, according to reports by the Washington Post. On June 10, 2021, four Glendale police officers went on paid leave while an investigation was opened into their response to a ...

Bodycams Do Not Hold Cops Accountable, Communities Do

The widespread popularization of bodycams for police was supposed to bring accountability to the “bad apples” amongst police that drive deadly interactions with citizens. However, years into widespread bodycam use, it is apparent that bodycams, by themselves, do not automatically create accountability.

After the killings of ...

 

 

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