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Criminal Legal News: October, 2022

Issue PDF
Volume 5, Number 10

In this issue:

  1. Government Snitches Rake in Millions as Their Testimony Is the Leading Cause of Wrongful Convictions (p 1)
  2. California Court of Appeal Vacates Conviction Because Generic Immigration Consequences Warning Insufficient for Defendant to Understand Mandatory Immigration Consequences as a Result of Guilty Plea (p 15)
  3. The FBI’s Gestapo Tactics: Hallmarks of an Authoritarian Regime (p 16)
  4. California Court of Appeal: Defendant’s ‘Novel Interpretation’ of Pen. Code § 1203.01 Entitles Him to Have Trial Court Consider Motion to Correct Post-Judgment Record 40 Years After Conviction Final (p 18)
  5. SCOTUS Announces Government Must Prove Physicians in § 841 Prosecutions ‘Knowingly and Intentionally’ Exceeded Their Authorization to Prescribe Controlled Substances, Such as Opioids (p 20)
  6. Texas Court of Criminal Appeals: Warrant to Search Cellphone Must Establish Nexus Between Device and Offense Beyond ‘Boilerplate’ Language About Cellphones Being Ubiquitous and Used in Crimes (p 21)
  7. Hawai’i Supreme Court Announces Medical ‘Rule-Out Questions’ Prior to Field Sobriety Test Are Interrogation Triggering Miranda Requirements (p 22)
  8. New Jersey Supreme Court Orders New Trial Because Detective Failed to Clarify Suspect’s Ambiguous Request for Counsel During Interrogation (p 24)
  9. Fifth Circuit: New, Retroactive Supreme Court Decision Allowing SOS Habeas Petition Not New Enough to Avoid Procedural-Default Bar (p 26)
  10. Third Circuit Announces First Step Act Applies Retroactively to Defendant Whose Pre-Act Sentence Vacated After Act’s Enactment (p 26)
  11. SCOTUS: § 1983 Claim Cannot Be Based on Violation of Miranda Because Not Tantamount to Violation of Fifth Amendment (p 28)
  12. Fifth Circuit: Officer’s Testimony About CI’s Controlled Buy That He Did Not Personally Witness Violates Confrontation Clause (p 30)
  13. SCOTUS Refuses to Extend Bivens Remedy to Either First Amendment Retaliation Claim or Fourth Amendment Excessive-Force Claim (p 31)
  14. Tech Giants Support Ban on Geofence and Reverse Keyword Warrants (p 33)
  15. Seventh Circuit: Federal Habeas Corpus – AEDPA Time Limit Opens Door for Savings Clause Relief (p 34)
  16. Ohio Supreme Court: Amendment to Statute That Shifts Burden of Proof to State Regarding Self-Defense Applies to All Pending and New Trials After Effective Date, Regardless of When Alleged Crime Occurred (p 36)
  17. New Mexico Supreme Court Announces Judicial Misconduct May Bar Retrial Under Double Jeopardy Clause of State Constitution (p 37)
  18. USSC Report Highlights Problems with Sentencing in Child Porn Cases (p 38)
  19. California Court of Appeal Announces Term ‘Actual Killer’ in Revised Felony-Murder Statute Refers to Person Who ‘Personally Killed’ Victim, Not Necessarily Same as Person Who ‘Caused’ Death, for Resentencing Purposes Under § 1170.95 (p 40)
  20. Forensic Psychiatrist Questions the Value of Memory (p 41)
  21. The Blue Wall of Silence: Law Enforcement Whistleblowers Face Severe Retaliation (p 42)
  22. Fourth Amendment Loopholes and the PATRIOT Act’s Legacy (p 45)
  23. FBI Phone Hack May Have Monitored Americans in Operation Trojan Shield (p 47)
  24. Psychological Repercussions of Surveillance (p 48)
  25. Chicago PD Is Spying on Social Media Using Fake Profiles Provided by the FBI (p 49)
  26. Study Shows Crime Reduced When Crisis Teams, as Opposed to Police, Respond to Low-Level Crimes (p 50)
  27. Understanding Environmental Effects on Blowflies Permits Fine-Tuning of Evidence Revealed From Fly Colonization of Decomposing Bodies (p 50)
  28. News in Brief (p 51)

Government Snitches Rake in Millions as Their Testimony Is the Leading Cause of Wrongful Convictions

by Jacob Barrett and Dale Chappell

The general public’s familiarity with the government’s use of informants in criminal proceedings is largely confined to movies and TV documentaries. Yet, every year, the government negotiates tens of thousands of deals “off the record,” which are subject to few restrictions and have little ...

California Court of Appeal Vacates Conviction Because Generic Immigration Consequences Warning Insufficient for Defendant to Understand Mandatory Immigration Consequences as a Result of Guilty Plea

by David M. Reutter

The Court of Appeal of California, Third Appellate District, reversed a defendant’s 2010 conviction for possession for sale of methamphetamine, Health & Saf. Code, § 11378, based on its finding that the defendant was not properly apprised by the trial court of the immigration consequences that ...

The FBI’s Gestapo Tactics: Hallmarks of an Authoritarian Regime

by John & Nisha Whitehead

This article was originally published by The Rutherford Institute on August 22, 2022. It is reprinted here with permission.

 

“We want no Gestapo or Secret Police. FBI is tending in that direction.” —Harry Truman

 

With every passing day, the United States government borrows ...

California Court of Appeal: Defendant’s ‘Novel Interpretation’ of Pen. Code § 1203.01 Entitles Him to Have Trial Court Consider Motion to Correct Post-Judgment Record 40 Years After Conviction Final

by Douglas Ankney

The Court of Appeal of California, First Appellate District, ruled that Glenn Douglas Crites was entitled to consideration of his motion to have the trial court correct the record transmitted to the Department of Corrections and Rehabilitation (“DOCR”) under Penal Code § 1203.01(a).

Crites was convicted in ...

SCOTUS Announces Government Must Prove Physicians in § 841 Prosecutions ‘Knowingly and Intentionally’ Exceeded Their Authorization to Prescribe Controlled Substances, Such as Opioids

by Harold Hempstead

The Supreme Court of the United States (“SCOTUS”) held that 28 U.S.C. § 841’s “knowingly or intentionally” mens rea requirement applies to the “except as authorized” clause in criminal prosecutions against physicians, meaning that the Government must prove beyond a reasonable doubt that the defendant-physician had the ...

Texas Court of Criminal Appeals: Warrant to Search Cellphone Must Establish Nexus Between Device and Offense Beyond ‘Boilerplate’ Language About Cellphones Being Ubiquitous and Used in Crimes

by Anthony W. Accurso

The Court of Criminal Appeals of Texas held that a warrant affidavit failed to link a defendant’s cellphone to a crime under investigation where the warrant affidavit simply made generic statements about the ubiquity of cellphones and their use during criminal activity.

On September 18th, 2016, ...

Hawai’i Supreme Court Announces Medical ‘Rule-Out Questions’ Prior to Field Sobriety Test Are Interrogation Triggering Miranda Requirements

by Anthony W. Accurso

The Supreme Court of Hawai’i held that a defendant’s right not to incriminate herself under article I, section 10 of the Hawai’i Constitution was violated when an officer asked her “medical rule-out” questions prior to performing a field sobriety test without first providing the required Miranda ...

New Jersey Supreme Court Orders New Trial Because Detective Failed to Clarify Suspect’s Ambiguous Request for Counsel During Interrogation

by Douglas Ankney

The Supreme Court of New Jersey reversed the convictions of Laura Gonzalez because a detective failed to clarify Gonzalez’s ambiguous request for counsel during her interrogation and because the trial court allowed inadmissible testimony from witnesses.

In 2017, police questioned Gonzales – after providing her with warnings ...

Fifth Circuit: New, Retroactive Supreme Court Decision Allowing SOS Habeas Petition Not New Enough to Avoid Procedural-Default Bar

by Dale Chappell

In a decision that further narrows the federal habeas corpus remedy, a divided panel of the U.S. Court of Appeals for the Fifth Circuit held that a claim under a new, retroactive U.S. Supreme Court ruling to allow a second or successive (“SOS”) habeas petition was not ...

Third Circuit Announces First Step Act Applies Retroactively to Defendant Whose Pre-Act Sentence Vacated After Act’s Enactment

by Harold Hempstead

The U.S. Court of Appeals for the Third Circuit joined the Fourth, Seventh, and Ninth Circuits regarding the retroactivity of the First Step Act of 2018 (“FSA”) in holding that defendants who have their sentences imposed prior to the enactment of the FSA and vacated after its ...

SCOTUS: § 1983 Claim Cannot Be Based on Violation of Miranda Because Not Tantamount to Violation of Fifth Amendment

by Harold Hempstead

The Supreme Court of the United States (“SCOTUS”) held that a violation of the warnings provided for in Miranda v. Arizona, 384 U.S. 436 (1966), does not provide a basis for a claim under 42 U.S.C. § 1983.

In March 2014, Los Angeles County Sheriff’s ...

Fifth Circuit: Officer’s Testimony About CI’s Controlled Buy That He Did Not Personally Witness Violates Confrontation Clause

by Mark Wilson

The U.S. Court of Appeals for the Fifth Circuit vacated a Texas defendant’s drug conviction, concluding that the Government flouted his right to confront witnesses against him, in violation of Confrontation Clause. See Crawford v. Washington, 541 U.S. 36 (2004).

Kenneth Hamann and William Davis were ...

SCOTUS Refuses to Extend Bivens Remedy to Either First Amendment Retaliation Claim or Fourth Amendment Excessive-Force Claim

by Dale Chappell

The Supreme Court of the United States (“SCOTUS”) held that a federal court may not extend the remedy it created over 50 years ago in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), which authorized a lawsuit against federal officials based on alleged ...

Tech Giants Support Ban on Geofence and Reverse Keyword Warrants

by Anthony W. Accurso

Google, Microsoft, and Yahoo issued a public statement via the trade organization, “Reform Government Surveillance,” supporting a bill before the New York State legislature that would prohibit the use of geofence and reverse keyword warrants. The bill, known as The Reverse Location Search Prohibition Act (Assembly ...

Seventh Circuit: Federal Habeas Corpus – AEDPA Time Limit Opens Door for Savings Clause Relief

by Dale Chappell

Expanding the savings clause yet again, the U.S. Court of Appeals for the Seventh Circuit held that the one-year time limit for filing a motion under 28 U.S.C. § 2255 rendered the remedy “inadequate or ineffective” to invoke the savings clause and vacated an illegal sentence.

At ...

Ohio Supreme Court: Amendment to Statute That Shifts Burden of Proof to State Regarding Self-Defense Applies to All Pending and New Trials After Effective Date, Regardless of When Alleged Crime Occurred

by Douglas Ankney

The Supreme Court of Ohio held that 2018 House Bill 228’s (“H.B. 228”) amendment to R.C. 2901.05 — which shifts the burden of proof on self-defense to the prosecution — apply to all pending and new trials that occur on or after the effective date (March 28, ...

New Mexico Supreme Court Announces Judicial Misconduct May Bar Retrial Under Double Jeopardy Clause of State Constitution

by Douglas Ankney

In a case of first impression, theNew Mexico Supreme Court (“NMSC”) announced that judicial misconduct may bar retrial under the double jeopardy clause of the New Mexico Constitution.

Henry Hildreth, Jr., was charged with several offenses, including felony aggravated battery against a household member with great bodily ...

USSC Report Highlights Problems with Sentencing in Child Porn Cases

Why don’t federal judges follow the recommended sentences for child porn offenders? Here’s a government report answering that question.

by Dale Chappell

If Congress wants to complain that federal judges are “too lenient” on child pornography offenders, it may want to take a look at a recent report by the ...

California Court of Appeal Announces Term ‘Actual Killer’ in Revised Felony-Murder Statute Refers to Person Who ‘Personally Killed’ Victim, Not Necessarily Same as Person Who ‘Caused’ Death, for Resentencing Purposes Under § 1170.95

by Matt Clarke

The Court of Appeal of California, Fourth Appellate District, held that the term “actual killer” as used in California Penal Code§ 189(e)(l) — as revised by Senate Bill 1437, which amended the felony-murder rule and natural and probable cause doctrine — means the person who “personally killed ...

Forensic Psychiatrist Questions the Value of Memory

by Jayson Hawkins

Eyewitness testimony is often central to criminal trials, and even though the quality of that testimony has repeatedly come under fire in the age of DNA-based exonerations, the value of eyewitness accounts has not diminished. This value stems from the high level of confidence that people — ...

The Blue Wall of Silence: Law Enforcement Whistleblowers Face Severe Retaliation

by Casey J. Bastian

Many Americans have heard the term “whistleblower.” Someone who is willing to reveal something covert or corrupt or who informs against another. Ostensibly lauded, such people willing to take a principled stand frequently face tremendous retribution from those being exposed. In one profession in particular, being ...

Fourth Amendment Loopholes and the PATRIOT Act’s Legacy

by Anthony W. Accurso

Over two decades have passed since the infamous PATRIOT Act was passed in response to the terror attacks against the U.S. on September 11, 2001. Several of the provisions of that law persist to this day, including egregious exceptions to requirements under the Fourth Amendment.

After ...

FBI Phone Hack May Have Monitored Americans in Operation Trojan Shield

by Jayson Hawkins

The tale reads like a Hollywood version of undercover police work, but Operation Trojan Shield really happened. The FBI was monitoring encrypted traffic on the “black devices” favored by criminals as soon as they came out of the box. Now, new questions are being asked about the ...

Psychological Repercussions of Surveillance

by Anthony W. Accurso

Steve Martinot, Instructor Emeritus at the Center for Interdisciplinary Programs at San Francisco State University, wrote a lay explanation of the psychological effects of the surveillance state, explaining its persistent harm and its purpose in perpetuating norms of oppression.

The concept of ubiquitous state surveillance dates ...

Chicago PD Is Spying on Social Media Using Fake Profiles Provided by the FBI

by Anthony W. Accurso

Public records requests have shed light on a program within the Chicago Police Department (“CPD”) whose purpose is to collect information on people by surveilling their social media profiles and how this program is supported by a similar team at the FBI that provides CPD with ...

Study Shows Crime Reduced When Crisis Teams, as Opposed to Police, Respond to Low-Level Crimes

by Jacob Barrett

In June 2021, Denver, Colorado, launched its Support Team Assistance Response (“STAR”) program that consists of a two-person crisis response team, a medic and a clinician, who are called to provide crisis care, rather than arrest offenders.

A report published in the Science Advances journal by Stanford’s ...

Understanding Environmental Effects on Blowflies Permits Fine-Tuning of Evidence Revealed From Fly Colonization of Decomposing Bodies

by Douglas Ankney

Forensic investigators have long used the well-known stages of blowfly development found on bodies post mortem to determine the amount of time that has elapsed since death. However, that standard of measurement is misleading when the temperatures around the body are outside the moderate range.

For example, ...

News in Brief

Alabama: On August 4, 2022, the Vincent City Council voted to fully dissolve the city’s police force after racist text messages by a top officer were discovered, CNN reported. The city is home to about 2,000 residents and until the vote by the council, had just three police officers. ...

 

 

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