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Criminal Legal News: February, 2022

Issue PDF
Volume 5, Number 2

In this issue:

  1. A Closer Look at Sex Offender Registries (p 1)
  2. Eighth Circuit Reiterates Statute of Conviction Determines Eligibility for Sentence Reduction Under First Step Act, Not Actual Conduct (p 16)
  3. Why Punishing Bad Prosecutors Won’t Fix a Bad System (p 18)
  4. California Supreme Court Announces Standard of Review and Required Showing for Prejudicial Error Under § 1473.7 to Vacate Plea Due to Lack of Understanding of Immigration Consequences (p 20)
  5. Idaho Supreme Court Announces Whether a Container Is Located Inside or Outside Vehicle When Probable Cause Arises Determines if Container May Be Searched Under Automobile Exception, Joining Conclusion of Several Other States (p 22)
  6. Texas Court of Criminal Appeals: Police Deception That Statements Wouldn’t Be Used Against Defendant Requires Suppression (p 23)
  7. Sixth Circuit Vacates Sentence for Impermissible Triple-Counting of Guidelines Enhancements for Ungrouped Offenses (p 24)
  8. SCOTUS Reverses Tenth Circuit’s Denial of Qualified Immunity for Fatal Police Shooting (p 24)
  9. New Jersey Directive Provides Relief for Certain Drug Offenders (p 26)
  10. California Court of Appeal: Trial Court Required to Provide Notice and Consider Information Provided by Parties Before Ruling on CDCR Recommendation to Recall Sentence Pursuant to § 1170(d)(1) (p 26)
  11. Seventh Circuit Announces Standard of Review for Bond Revocation of Defendant on Pretrial Release (p 28)
  12. Sixth Circuit Announces District Court Has Power to Waive Interest on Restitution Post-Sentencing, Resulting in Circuit Split (p 30)
  13. Kansas Supreme Court: Counsel Ineffective for Failing to Request ‘Voluntary Act’ Jury Instruction in Trial for Rape of Child Younger Than 14 Where Defendant Argued She Was Forcibly Raped by Purported ‘Victim’ (p 30)
  14. Third Circuit Rules Pennsylvania Courts’ Application of Federal Law Objectively Unreasonable, Overturns Conviction and Death Sentence, Grants Habeas Relief (p 32)
  15. Idaho Supreme Court Declares Clarke Merely Memorialized Constitutional Principle That Warrantless Arrest for Misdemeanor Completed Outside Officer’s Presence Violates State Constitution and Applies to Cases Prior to Clarke (p 33)
  16. Second Circuit Announces Defendant Need Only Produce ‘Some Credible’ Evidence for Jury Instruction on Entrapment Defense, Clarifying It’s a Burden of Production, Not Persuasion (p 34)
  17. Snitch Visas: A Pipe Dream (p 34)
  18. New Digital Warrants Undermine Fourth Amendment (p 36)
  19. California Court of Appeal Announces Trial Courts Have Authority to Deny Request for Continuance of Motion to Suppress for Failure to Show ‘Good Cause’ Even if it Results in Dismissal, Rejecting Ferrer (p 36)
  20. FBI Gives Green Light for Use of Rapid DNA Solution in Booking Stations (p 37)
  21. Tenth Circuit Rules Impounding Car Following Arrest on Outstanding Warrant Was Pretextual, Suppresses Evidence Discovered, Reverses Convictions (p 38)
  22. Pushback on Police Lying to Obtain False Confessions (p 39)
  23. Pennsylvania Supreme Court Announces Driver Who Leaves Scene of Accident Subject to Only One Hit-and-Run Violation, Regardless of How Many Victims (p 39)
  24. Civil Forfeiture Under Fire in Massachusetts (p 40)
  25. Why Won’t the State of Missouri Release Innocent Men From Prison? (p 41)
  26. ShotSpotter Acoustic Detection System Another Example of a Forensic Tool Shrouded in Secrecy and Prone to Questionable Results (p 42)
  27. Oregon Bill Makes it More Difficult to Hide Police Misconduct (p 43)
  28. Some Cities Taking Holistic Approach to Public Safety (p 44)
  29. New Study Reveals Digital Forensic Examiners Inclined to Biasability (p 44)
  30. Criminal Justice Legislation Signed by North Carolina Governor (p 45)
  31. Government Keyword Searches Revealed (p 46)
  32. Who You Gonna Call When You Don’t Want the Cops? There’s a Website for That (p 47)
  33. D.C. Circuit: Government Breached Plea Agreement by Violating Ambiguous Terms, Ambiguities Resolved in Favor of Defendants, Sentence Vacated (p 48)
  34. Eleventh Circuit: Georgia Aggravated Assault with a Deadly Weapon Only Requires Mens Rea of Recklessness Thus Not a ‘Violent Felony’ Under ACCA (p 49)
  35. Minnesota Police Hand Out ‘Not-Reaching’ Pouches to Reduce Police Shoot-ings of Motorists (p 50)
  36. News in Brief (p 50)

A Closer Look at Sex Offender Registries

After 25 Years, These Regulatory Regimes Are Proven to Be Misguided, Dysfunctional, and Excessively Punitive. It’s Time to Replace Fear With Function.

by Casey J. Bastian

The term “sex offender registry” (“SOR”) is known to nearly every person in America. It evokes fantastic visions of human monsters, offenders who have committed ...

Eighth Circuit Reiterates Statute of Conviction Determines Eligibility for Sentence Reduction Under First Step Act, Not Actual Conduct

by Dale Chappell

The U.S. Court of Appeals for the Eighth Circuit reiterated that it is the statute of conviction that determines First Step Act relief under the retroactive application of the Fair Sentencing Act of 2010 (“FSA”), not the defendant’s actual conduct or drug amount involved.

The case came ...

Why Punishing Bad Prosecutors Won’t Fix a Bad System

by James M. Doyle, The Crime Report 

After 50 years of representing indigent defendants in urban criminal courts I have no objection to seeing prosecutors disciplined for their misconduct.

As a matter of fact, I find the prospect delectable.

But during those same 50 years I have represented a few (thousand) ...

California Supreme Court Announces Standard of Review and Required Showing for Prejudicial Error Under § 1473.7 to Vacate Plea Due to Lack of Understanding of Immigration Consequences

by David M. Reutter

The Supreme Court of California issued an order that set the standard of review for motions filed under Penal Code § 1473.7 (Motion to vacate conviction or sentence by person no longer imprisoned or restrained). It then reviewed the motion on appeal and found the movant ...

Idaho Supreme Court Announces Whether a Container Is Located Inside or Outside Vehicle When Probable Cause Arises Determines if Container May Be Searched Under Automobile Exception, Joining Conclusion of Several Other States

by Anthony W. Accurso

In a case of first impression, the Supreme Court of Idaho held that the automobile exception to the warrant requirement applies only to containers located inside the vehicle at the time probable cause arises to search containers thereunder.

Diasha Lynn Maloney was pulled-over in Twin Falls, ...

Texas Court of Criminal Appeals: Police Deception That Statements Wouldn’t Be Used Against Defendant Requires Suppression

by Anthony W. Accurso

The Court of Criminal Appeals of Texas upheld the decision of a lower court to suppress a defendant’s surreptitiously recorded statements on the ground that it was not properly “warned and waived” under Texas law.

Erlinda Lujan was arrested by El Paso police in connection with ...

Sixth Circuit Vacates Sentence for Impermissible Triple-Counting of Guidelines Enhancements for Ungrouped Offenses

by Dale Chappell

The U.S. Court of Appeals for the Sixth Circuit held that enhancements under the U.S. Sentencing Guidelines (“USSG”) that were applied to all three counts of conviction that were ungrouped were impermissible triple counting, and contradicted the intent of the Guidelines’ grouping instructions.

Jermaine Clark committed three ...

SCOTUS Reverses Tenth Circuit’s Denial of Qualified Immunity for Fatal Police Shooting

by Douglas Ankney

The Supreme Court of the United States (“SCOTUS”) reversed a decision of the U.S. Court of Appeals for the Tenth Circuit that had reversed the U.S. District Court for the Eastern District of Oklahoma’s finding of qualified immunity for police officers who shot and killed a man ...

New Jersey Directive Provides Relief for Certain Drug Offenders

by Casey J. Bastian

In February 2018, New Jersey Governor Phil Murphy convoked the Criminal Sentencing and Disposition Committee (“CSDC”) to analyze the state’s sentencing laws. The CSDC was tasked with providing specific recommendations “to ensure a stronger, fairer, and more just state.” The CSDC’s initial annual report was published ...

California Court of Appeal: Trial Court Required to Provide Notice and Consider Information Provided by Parties Before Ruling on CDCR Recommendation to Recall Sentence Pursuant to § 1170(d)(1)

by Douglas Ankney

The California Court of Appeal, Second District, held that a trial court is bound to provide notice and consider information provided by the parties before ruling on a California Department of Correction and Rehabilitation (“CDCR”) recommendation to recall a prisoner’s sentence pursuant to California Penal Code § ...

Seventh Circuit Announces Standard of Review for Bond Revocation of Defendant on Pretrial Release

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit clarified the standard of review for revocation of bond when the arrestee is alleged to have violated conditions of release.

Lashawn Wilks was arrested on numerous serious offenses, including conspiracy to distribute methamphetamine. He was released on bond ...

Sixth Circuit Announces District Court Has Power to Waive Interest on Restitution Post-Sentencing, Resulting in Circuit Split

by Dale Chappell

Acknowledging a circuit split on the issue, the U.S. Court of Appeals for the Sixth Circuit held that district courts have the authority to waive interest on restitution post-sentencing.

Edmund Phillips was nearing release and filed a motion in the U.S. District Court for the Western District ...

Kansas Supreme Court: Counsel Ineffective for Failing to Request ‘Voluntary Act’ Jury Instruction in Trial for Rape of Child Younger Than 14 Where Defendant Argued She Was Forcibly Raped by Purported ‘Victim’

by Douglas Ankney

The Supreme Court of Kansas held that Brooke Dinkel’s trial counsel, Roger Strubel, was ineffective because he failed to request a jury instruction on the voluntary act requirement in a prosecution for rape of a child under 14 years of age where the defense argued that the ...

Third Circuit Rules Pennsylvania Courts’ Application of Federal Law Objectively Unreasonable, Overturns Conviction and Death Sentence, Grants Habeas Relief

by Dale Chappell

The U.S. Court of Appeals for the Third Circuit affirmed the grant of habeas corpus relief to a death-sentenced defendant based on the fact the state courts’ application of the governing federal law was objectively unreasonable regarding the defendant’s Sixth Amendment choice-of-counsel right.

It wasn’t that Samuel ...

Idaho Supreme Court Declares Clarke Merely Memorialized Constitutional Principle That Warrantless Arrest for Misdemeanor Completed Outside Officer’s Presence Violates State Constitution and Applies to Cases Prior to Clarke

by Douglas Ankney

The Supreme Court of Idaho vacated Patricia Ann Amstutz’s conviction for misdemeanor driving under the influence of alcohol (“DUI”) because her alleged offense was completed outside the arresting officer’s presence.

Officer Kale White was dispatched to the address of Amstutz after someone reported Amstutz for drunk driving. ...

Second Circuit Announces Defendant Need Only Produce ‘Some Credible’ Evidence for Jury Instruction on Entrapment Defense, Clarifying It’s a Burden of Production, Not Persuasion

by Douglas Ankney

The U.S. Court of Appeals for the Second Circuit announced that for purposes of the defense of entrapment, the defendant has the burden to produce some “credible evidence” that the government induced him to commit the crime.

John E. Cabrera was charged with two counts each of ...

Snitch Visas: A Pipe Dream

by David M. Reutter

When Nervin Coronado was charged in 2009 with participating in a mortgage fraud scheme, he faced more than just prison time. He faced deportation because he immigrated to the U.S. at the age of 12 and never became a U.S. citizen.

Like others before him, Coronado ...

New Digital Warrants Undermine Fourth Amendment

by Anthony W. Accurso

Two relatively new types of warrants are causing a stir among privacy advocates and defense attorneys who claim the warrants are overbroad and jeopardize the spirit of the Fourth Amendment’s protections.

“Geofence” or “reverse” warrants involve police obtaining a warrant to obtain location information, stored at ...

California Court of Appeal Announces Trial Courts Have Authority to Deny Request for Continuance of Motion to Suppress for Failure to Show ‘Good Cause’ Even if it Results in Dismissal, Rejecting Ferrer

by Douglas Ankney

The Court of Appeal, Sixth Appellate District, held that a trial court has authority to deny a request for a continuance of a motion to suppress under California Penal Code § 1050(e) even if the decision may foreseeably result in dismissal of the prosecution. (All statutory references ...

FBI Gives Green Light for Use of Rapid DNA Solution in Booking Stations

by Douglas Ankney

Thermo Fisher Scientific’s Applied Biosystems Rapid HIT ID DNA Booking System was approved by the FBI for use by law enforcement booking stations to automatically process, upload, and search DNA reference samples from qualifying arrestees against the U.S. National DNA Index System (“NDIS”) database.

Joanie Brocato, former ...

Tenth Circuit Rules Impounding Car Following Arrest on Outstanding Warrant Was Pretextual, Suppresses Evidence Discovered, Reverses Convictions

by Anthony W. Accurso

The U.S. Court of Appeals for the Tenth Circuit ordered the suppression of evidence discovered during the impounding of a vehicle where the impoundment was for the sole purpose of searching for evidence of a crime.

Tulsa police received a call with a tip stating that ...

Pushback on Police Lying to Obtain False Confessions

by Jayson Hawkins

Lawrence Montoya was only 14 years old back in 2000 when Denver cops accused him of being involved in the murder of Emily Johnson, a local teacher. During the first two hours of interrogation, Montoya refuted detectives’ allegations of his presence at Johnson’s house over 60 times. ...

Pennsylvania Supreme Court Announces Driver Who Leaves Scene of Accident Subject to Only One Hit-and-Run Violation, Regardless of How Many Victims

by Douglas Ankney

In a case of first impression, the Supreme Court of Pennsylvania held that a driver who leaves the scene of an accident involving death or personal injury before being statutorily excused may be punished for only one violation of 75 Pa.C.S. § 3742 (requiring driver of any ...

Civil Forfeiture Under Fire in Massachusetts

by Jayson Hawkins

Devantee Jones-Bernier did not have any drugs on him when police executed a search warrant on the apartment where he was visiting some friends in Worcester, Massachusetts. Marijuana was found in the unit, and so Jones-Bernier was initially charged along with everyone else there. Police also took ...

Why Won’t the State of Missouri Release Innocent Men From Prison?

by Casey J. Bastian

There are not many people who can truly relate to the Kafkaesque experience of the three men currently stuck in the Missouri prisons. All three are factually innocent but have spent decades behind bars. Christopher Dunn, Kevin Strickland, and Lamar Johnson have each spent multiple decades ...

ShotSpotter Acoustic Detection System Another Example of a Forensic Tool Shrouded in Secrecy and Prone to Questionable Results

by Casey J. Bastian

ShotSpotter markets technology that uses microphone sensors to detect the specific acoustic signature of gunshots and then record the time and location of the signature it detects. The technology can also detect firecrackers, car backfire, and other similar sounds—not just gunshots. It is up to a ...

Oregon Bill Makes it More Difficult to Hide Police Misconduct

by Jacob Barrett

On June 7, 2021 the Oregon Legislature passed HB 3355 establishing identification requirements for law enforcement assigned to “crowdmanagement” events in which large crowds of 50 persons or more are managed to prevent the outbreak of crowd crushes, affrays, fights, or riots. (The bill carves out an ...

Some Cities Taking Holistic Approach to Public Safety

by Casey J. Bastian

More than a year after the killing of George Floyd, an explosion of protests led to an emphasis being placed on changing the way we police our communities. “The systems we’ve got right now in some ways are fundamentally incapable of delivering safety in the ways ...

New Study Reveals Digital Forensic Examiners Inclined to Biasability

by Casey J. Bastian

In a first-of-its-kind study, renowned cognitive bias expert Itiel Dror and co-author Nina Surnde researched the reliability and biasability (the impact of contextual information) of digital forensics (“DF”) experts’ performance. The study is titled “A hierarchy of expert performance (HEP) applied to digital forensics: Reliability and ...

Criminal Justice Legislation Signed by North Carolina Governor

by Ashleigh N. Dye

In August 2021, North Carolina Governor Roy Cooper signed three criminal justice bills into law. The goals of the new laws are to give law enforcement the mental health tools they need, ensure police are responsible for their actions, and log the trouble officers get into. ...

Government Keyword Searches Revealed

by Jayson Hawkins

Orwell’s warning that “Big Brother is watching” has hung over western society for decades, sometimes confirmed by revelations of unauthorized government wiretaps, sometimes rendered ridiculous by the paranoid rantings of conspiracy theorists. In the post-9/11, cyberspace driven, the Patriot Act world of Edward Snowden and Wikileaks, however, ...

Who You Gonna Call When You Don’t Want the Cops? There’s a Website for That

by Casey J. Bastian

In any emergency, Americans have been conditioned to call 911. Those three digits are typed into a phone by someone experiencing a critical situation around 240 million times per year. Despite its universal familiarity, the 911 system has existed for only 53 years. While we can ...

D.C. Circuit: Government Breached Plea Agreement by Violating Ambiguous Terms, Ambiguities Resolved in Favor of Defendants, Sentence Vacated

by David M. Reutter

The U.S. Court of Appeals for the District of Columbia Circuit held that a plea agreement was ambiguous as to the Government’s ability to oppose Safety Valve relief on grounds the defendant was a supervisor or manager in a drug conspiracy. It ordered resentencing that was ...

Eleventh Circuit: Georgia Aggravated Assault with a Deadly Weapon Only Requires Mens Rea of Recklessness Thus Not a ‘Violent Felony’ Under ACCA

by Dale Chappell 

The U.S. Court of Appeals for the Eleventh Circuit held that because the defendant was convicted of an aggravated assault with a deadly weapon in Georgia under a statute that could be violated with a mens rea of mere reckless conduct, it could not qualify as a ...

Minnesota Police Hand Out ‘Not-Reaching’ Pouches to Reduce Police Shoot-ings of Motorists

by Dale Chappell

Any proactive measure to cut down on cops shooting motorists is a good step in the right direction. At first glance, what the Minnesota Department of Public Safety (“MDPS”) is doing sounds like a great idea. They’re handing out pouches that motorists can use to store their ...

News in Brief

Arizona: The family of a homeless and mentally ill man who died after being restrained by Phoenix cops in 2017 will get $5 million from the city, after a 7-2 city council vote in favor of the payment on November 17, 2021, according to a report by local TV station ...

 

 

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