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Criminal Legal News: March, 2022

Issue PDF
Volume 5, Number 3

In this issue:

  1. Acquitted Conduct Sentencing (p 1)
  2. Mental Health Response Teams Proved Effective in New York City (p 9)
  3. ‘Planning for Losing’: A Lesson on Justice Reform from Afghanistan (p 10)
  4. Texas Court of Criminal Appeals: Defendant Satisfied Requirements of Confession and Avoidance, ‘Unintentional Self-Defense’ Jury Instruction Allowed Against Charge of Intentional Offense (p 12)
  5. Fourth Circuit: State’s Failure to Plead Procedural Default Results in De Novo Review on Merits; Prosecutor’s Comments to Jury to Send ‘Societal Message’ Denied Defendant Fair Trial, Habeas Relief Warranted (p 14)
  6. Mental Illness and False Confessions: A Wakeup Call to Investigators (p 16)
  7. Georgia Supreme Court Declares ‘Relevance’ Not Legal Standard for Suppression Determination Where Items Seized Outside Scope of Warrant, Clarifies Plain View Doctrine Proper Standard, and Overrules McBee, Walsh Line of Cases (p 18)
  8. Michigan Supreme Court Announces 2011 SORA May Not Be Retroactively Applied to Registrants Whose Offenses Predated Its Enactment Because Doing So Violates Prohibition on Ex Post Facto Laws (p 20)
  9. California Now Able to Decertify Bad Cops (p 21)
  10. Texas Court of Criminal Appeals: Although Subsequent Indictment Recites Same Language as Original Indictment, SOL Isn’t Tolled Where Subsequent Indictment Fails to Charge Same Conduct, Act, or Transaction (p 22)
  11. Texas Court of Criminal Appeals: Trial Court Abused Discretion by Refusing to Allow Withdrawal of Jury-Trial Waiver for Defendant Who Ultimately Rejected Plea Deal (p 22)
  12. Idaho Supreme Court Rejects ‘Instinctive Entry Rule’ as Not Implicating Fourth Amendment Where Drug-Sniffing Dog Breaches Interior of Vehicle During Exterior Search and Suppresses Evidence (p 24)
  13. SCOTUS Announces Pursuit of a Misdemeanant Does Not Categorically Constitute an Exigent Circumstance Authorizing a Warrantless Home Entry (p 26)
  14. Pennsylvania Supreme Court Announces New Framework for Enforcing Right to Effective Counsel in Post-Conviction Relief Act Proceeding (p 28)
  15. Connecticut Supreme Court Overrules Aquino, Holding Appeal Not Moot Where Defendant Deported During Pendency but Unclear Whether Appealed Conviction Sole Basis for Deportation (p 30)
  16. Nevada Supreme Court: Prisoner’s Claim He Is Now Actually Innocent of Death Penalty Sufficient to Overcome Proce-dural Bars to Habeas Relief (p 32)
  17. California Court of Appeal: Peremptory Challenge to Judge in Habeas Case Subject to 10-Day Filing Period, Not 60 Days, Under § 170.6(a)(1) (p 32)
  18. SCOTUS: Rehaif Error Doesn’t Automatically Require Reversal of Conviction, Plain-Error Test Must Be Satisfied for Re-lief (p 34)
  19. Oregon Supreme Court Announces Abandonment of Per Se Exigency Rule in Automobile Exception and Holds Warrantless Seizure or Search Must Be Based on Actual Exigent Circumstances (p 35)
  20. Tenth Circuit, Joining Sister Circuits, Announces ‘Personal-Use’ Drug Quantity Doesn’t Constitute ‘Relevant Conduct’ Under Guidelines § 1B1.3(a) and Sets Forth Framework for Burden of Proof Analysis (p 37)
  21. Massachusetts Supreme Judicial Court Announces Bodycam Video Subsequently Reviewed in Unrelated Investigation Constitutes Unconstitutional Warrantless Search (p 38)
  22. Concealed Videos Expose Pattern of Abuse by Louisiana State Police (p 39)
  23. Vermont Supreme Court Announces Proper Legal Standard for Warrantless Search of Home’s Curtilage (p 40)
  24. Eighth Circuit: Inadmissible Hearsay Improperly Used to Revoke Supervised Release (p 41)
  25. Facial Recognition Run-Down (p 42)
  26. Rutgers University Pioneers New Jersey Innocence Project (p 43)
  27. Massachusetts Remains a Civil Forfeiture Outlier (p 44)
  28. Sixth Circuit: Michigan’s Ordinarily ‘Adequate’ Contemporaneous-Objection Rule, in Unique Circumstances, May Not Procedurally Bar Federal Habeas Review (p 44)
  29. Non-Prosecution Policies Seem to Work in Baltimore (p 45)
  30. DEA Continues to Seize Money Without Proof of Criminality (p 46)
  31. Florida’s Catch-22 for the Innocent Defendant (and Others Wishing to Protect Their Right Against Self-Incrimination) (p 46)
  32. Big Tech Using Third Parties to Sell Surveillance Tools to ICE and Border Patrol (p 47)
  33. Pegasus Software: State-sponsored Spyware Usage Likely Infecting Billions of Phones (p 48)
  34. Armed Police Drones Are Coming (p 48)
  35. News in Brief (p 50)

Acquitted Conduct Sentencing

How Judges Enhance Sentences by Supplanting ‘Not Guilty’ Verdicts with Private Findings that Defendants ‘Probably Committed’ Acquitted Offenses

by Douglas Ankney

Gregory Bell was indicted on 13 charges. He exercised his right to a jury trial. The jury acquitted Bell of 10 charges and convicted him of just three distribution ...

Mental Health Response Teams Proved Effective in New York City

by Casey J. Bastian 

No one should fear picking up the phone and asking for help. This is the premise of Behavioral Health Emergency Assistance Response Division (known as “B-HEARD”), a recently launched mental health program in New York City. The philosophy of B-HEARD is that when people are experiencing ...

‘Planning for Losing’: A Lesson on Justice Reform from Afghanistan

by Marc Levin, The Crime Report

 

The U.S. withdrawal from Afghanistan put a harsh spotlight on the dangerous uncertainties that linger in the aftermath of a defeat. Similarly, a defendant who elects to go to trial often rolls the dice on possibly receiving a far more severe sentence than a ...

Texas Court of Criminal Appeals: Defendant Satisfied Requirements of Confession and Avoidance, ‘Unintentional Self-Defense’ Jury Instruction Allowed Against Charge of Intentional Offense

by Douglas Ankney

The Texas Court of Criminal Appeals (“TCCA”) held that Marvin Rodriguez satisfied the requirements of confession and avoidance. The TCCA also instructed that Martinez v. State, 775 S.W.2d 645 (Tex. Crim. App. 1989), remains good law.

Rodriguez was charged with murder for shooting and killing Richard ...

Fourth Circuit: State’s Failure to Plead Procedural Default Results in De Novo Review on Merits; Prosecutor’s Comments to Jury to Send ‘Societal Message’ Denied Defendant Fair Trial, Habeas Relief Warranted

by Dale Chappell


THE U.S. COURT OF APPEALS FOR THE Fourth Circuit held that a prosecutor’s comments were so improper that they violated a defendant’s constitutional right to due process and habeas relief was warranted.

Charles Plymail was convicted of second-degree sexual assault in 1993, after a jury found him ...

Mental Illness and False Confessions: A Wakeup Call to Investigators

by Joseph P. Buckley, The Crime Report

In the 1967 edition of their book, Criminal Interrogation and Confessions, John Reid and Fred Inbau expressed concern about the possibility of false confessions from individuals with a “mental illness.”

Over a half-century later, there’s still reason to be concerned.

The knowledge that potentially false confessions may occur as the result of coercive behavior, such as threats and promises, has been known to investigators for many decades. Undoubtedly the awareness heightened with the development of DNA exonerations.

According to the Innocence Project, between 1989 and 2020 there have been 367 DNA exonerations, of which approximately 100 cases (28 percent) involved false confessions.

In almost half of these cases the subjects were under 18 years old or mentally impaired at the time of their arrest.

According to the National Registry of Exonerations, of the exonerees with reported mental illness or intellectual disability, 72 percent had confessed. Some 40 percent of the exonerees who were under 18 years old at the time of the crime falsely confessed.

While the overwhelming majority of confessions are true and accurate, individuals who are mentally impaired and juveniles should clearly be considered more susceptible to false confessions than ...

Georgia Supreme Court Declares ‘Relevance’ Not Legal Standard for Suppression Determination Where Items Seized Outside Scope of Warrant, Clarifies Plain View Doctrine Proper Standard, and Overrules McBee, Walsh Line of Cases

by Anthony W. Accurso

The Supreme Court of Georgia overruled the Court of Appeals’ line of cases starting with McBee v. State, 491 S.E.2d 97 (Ga. Ct. App. 1997), that apply a “relevance” standard to whether evidence seized outside the scope of a search warrant must be suppressed because ...

Michigan Supreme Court Announces 2011 SORA May Not Be Retroactively Applied to Registrants Whose Offenses Predated Its Enactment Because Doing So Violates Prohibition on Ex Post Facto Laws

by Douglas Ankney

The Supreme Court of Michigan held that application of the state’s Sex Offenders Registration Act, MCL 28.271 et seq. (“SORA”), as amended by 2011 PA 17 and 18 (the “2011 SORA”), violates the constitutional prohibition against ex post facto laws when applied to registrants whose criminal acts ...

California Now Able to Decertify Bad Cops

by Ed Lyon

Until recently, California was one of only four states in the union that had no mechanism to decertify bad cops. Whenever a cop was fired for misconduct there always seemed to be another police department ready and willing to hire the miscreant.

Law enforcement unions consisting of ...

Texas Court of Criminal Appeals: Although Subsequent Indictment Recites Same Language as Original Indictment, SOL Isn’t Tolled Where Subsequent Indictment Fails to Charge Same Conduct, Act, or Transaction

by Douglas Ankney

The Texas Court of Criminal Appeals (“TCCA”) held that, although a subsequent indictment recited the same statutory language as the original indictment, the statute of limitations (“SOL”) was not tolled because the subsequent indictment failed to charge the same conduct, act, or transaction, as required by Hernandez ...

Texas Court of Criminal Appeals: Trial Court Abused Discretion by Refusing to Allow Withdrawal of Jury-Trial Waiver for Defendant Who Ultimately Rejected Plea Deal

by David M. Reutter

The Court of Criminal Appeals of Texas held that a trial court abused its discretion in denying a defendant’s request to withdraw his jury-trial waiver after he rejected the State’s plea offer.

The Court’s opinion was issued in an appeal filed by Jose Cesar Sanchez. He ...

Idaho Supreme Court Rejects ‘Instinctive Entry Rule’ as Not Implicating Fourth Amendment Where Drug-Sniffing Dog Breaches Interior of Vehicle During Exterior Search and Suppresses Evidence

by Douglas Ankney

The Supreme Court of Idaho rejected the “instinctive entry rule” as an exception to the warrant requirement where a drug-sniffing dog breached the interior of a vehicle and the law enforcement officer did not otherwise have probable cause for the search, and thus, the Court reversed the ...

SCOTUS Announces Pursuit of a Misdemeanant Does Not Categorically Constitute an Exigent Circumstance Authorizing a Warrantless Home Entry

by Douglas Ankney

The Supreme Court of the United States (“SCOTUS”) held that there is no categorical rule allowing a warrantless entry into a home when police are pursuing a misdemeanant.

Arthur Lange drove past a California highway patrol officer with music blaring through open windows while repeatedly honking his ...

Pennsylvania Supreme Court Announces New Framework for Enforcing Right to Effective Counsel in Post-Conviction Relief Act Proceeding

by Douglas Ankney

The Supreme Court of Pennsylvania announced a new framework for enforcing the right to effective counsel in a 42 Pa.C.S. §§ 9541-9546, Post-Conviction Relief Act (“PCRA”), proceeding.

Aaron Bradley was convicted by jury of multiple felonies, including first degree murder, in connection with the shooting death of ...

Connecticut Supreme Court Overrules Aquino, Holding Appeal Not Moot Where Defendant Deported During Pendency but Unclear Whether Appealed Conviction Sole Basis for Deportation

Holds Model Jury Instruction 2.6-14 Failed to Correctly Inform Jury on Investigative Inadequacy

by Douglas Ankney

The Supreme Court of Connecticut held that Model Jury Instruction 2.6-14 failed to correctly inform the jury of Wagner Gomes’ right to “rely upon relevant deficiencies or lapses in the police investigation to raise ...

Nevada Supreme Court: Prisoner’s Claim He Is Now Actually Innocent of Death Penalty Sufficient to Overcome Proce-dural Bars to Habeas Relief

by Douglas Ankney

The Supreme Court of Nevada held that Samuel Howard’s claim that he is now actually innocent of the death penalty was sufficient to overcome procedural bars to habeas relief.

In 1983, Howard was convicted of robbery and murder with the use of a deadly weapon. The jury ...

California Court of Appeal: Peremptory Challenge to Judge in Habeas Case Subject to 10-Day Filing Period, Not 60 Days, Under § 170.6(a)(1)

by Dale Chappell 

Deciding a question of first impression, the Court of Appeal of California, Fourth Appellate District, held that an order to show cause by the California Supreme Court in a habeas corpus case, returnable to the superior court, requires that a motion to disqualify the judge must be ...

SCOTUS: Rehaif Error Doesn’t Automatically Require Reversal of Conviction, Plain-Error Test Must Be Satisfied for Re-lief

by Dale Chappell

 

The Supreme Court of the United States (“SCOTUS”) held that for felon-in-possession cases, a Rehaif error does not establish a basis for plain-error relief unless the defendant can show that he would have presented evidence at trial that he was unaware of his felon status at ...

Oregon Supreme Court Announces Abandonment of Per Se Exigency Rule in Automobile Exception and Holds Warrantless Seizure or Search Must Be Based on Actual Exigent Circumstances

by Jacob Barrett 

The Supreme Court of Oregon affirmed a circuit court order suppressing evidence discovered in a warrantless search conducted pursuant to the automobile exception. In doing so, the Court overruled the per se exigency rule of the automobile exception set forth in State v. Brown, 721 P.2d ...

Tenth Circuit, Joining Sister Circuits, Announces ‘Personal-Use’ Drug Quantity Doesn’t Constitute ‘Relevant Conduct’ Under Guidelines § 1B1.3(a) and Sets Forth Framework for Burden of Proof Analysis

by Douglas Ankney 

In a case of first impression, the U.S. Court of Appeals for the Tenth Circuit adopted the burden-shifting framework of United States v. Asch, 207 F.3d 1238 (10th Cir. 2000), in announcing that (1) personal-use drug quantity doesn’t constitute “relevant conduct” under Guidelines § 1B1.3(a) for ...

Massachusetts Supreme Judicial Court Announces Bodycam Video Subsequently Reviewed in Unrelated Investigation Constitutes Unconstitutional Warrantless Search

by Anthony W. Accurso 

In a case of first impression on two issues, the Supreme Judicial Court of Massachusetts (“SJC”) held that (1) an officer wearing a bodycam inside a suspect’s home during a domestic disturbance call was not a search under the Fourth Amendment and Article 14 and (2) ...

Concealed Videos Expose Pattern of Abuse by Louisiana State Police

by Jayson Hawkins 

Increasing attention to excessive police force has hopscotched across the country in recent years as one city after another found itself in the spotlight for incidents of police brutality that were caught on film or glaring dishonesty by cops was made public. Troopers from the Louisiana State ...

Vermont Supreme Court Announces Proper Legal Standard for Warrantless Search of Home’s Curtilage

by Anthony W. Accurso 

The Vermont Supreme Court held that it is an unconstitutional search where an officer actively searches for evidence of a crime on a home’s curtilage while present for purpose unrelated to that search.

On August 29, 2019, Devan Calabrese was alleged to have threatened three persons ...

Eighth Circuit: Inadmissible Hearsay Improperly Used to Revoke Supervised Release

by Matt Clarke 

The U.S. Court of Appeals for the Eighth Circuit held that the U.S. District Court for the Western District of Missouri erroneously relied on inadmissible hearsay to revoke a federal defendant’s supervised release. The Court vacated the revocation of sentence and remanded for resentencing on a closed ...

Facial Recognition Run-Down

by Anthony W. Accurso 

Facial recognition is a technology that is rapidly evolving, aided by transformative gains in artificial intelligence and camera resolution, as well as the proliferation of ubiquitous surveillance systems—by both government and corporate actors—which provide the volume of data necessary to train facial recognition systems and create ...

Rutgers University Pioneers New Jersey Innocence Project

by Casey J. Bastian 

Rutgers University-Camden is the new base of operations for the New Jersey Innocence Project (“NJIP”). Jill Friedman is the associate dean for pro bono and public interest at Rutgers Law School in Camden, as well as one of NJIP’s co-founders. “Any person who is in prison ...

Massachusetts Remains a Civil Forfeiture Outlier

by Jayson Hawkins 

The five-plus decade battlefield of America’s war on drugs and crime is littered with dishonesty, abuse, and failure, which goes far to explain why 50 years of social war has achieved nothing beyond the growth of a massive police state and increased unrest in over-policed communities.

Many ...

Sixth Circuit: Michigan’s Ordinarily ‘Adequate’ Contemporaneous-Objection Rule, in Unique Circumstances, May Not Procedurally Bar Federal Habeas Review

by Dale Chappell 

The U.S. Court of Appeals for the Sixth Circuit held that Michigan’s contemporaneous-objection rule, requiring an objection to an error in the trial court even if the error is unknown at the time to defendant and counsel, is not an adequate state rule to procedurally bar a ...

Non-Prosecution Policies Seem to Work in Baltimore

by Jayson Hawkins 

The onset of the COVID-19 pandemic is credited with accelerating many trends that were already emerging before the plague struck. From work-at-home to mRNA vaccines, many of these new trends seem to have won a permanent place in the new normal. While working via Zoom might not ...

DEA Continues to Seize Money Without Proof of Criminality

by Casey J. Bastian 

Kermit Warren is the latest victim of unconscionable governmental abuses of the civil asset forfeiture laws. The Drug Enforcement Agency (“DEA”) is again in the news for seizing cash from a citizen without any proof of criminal activity. Warren had $28,000 on his person with which ...

Florida’s Catch-22 for the Innocent Defendant (and Others Wishing to Protect Their Right Against Self-Incrimination)

by M. Eve Hanan, Sentencing Law and Policy 

The Supreme Court of Florida recently held that the trial judge may penalize more harshly a defendant who maintains his innocence at sentencing. Davis v. State, No. SC19-716 (December 2, 2021).

The court framed the issue as follows: “Does a ...

Big Tech Using Third Parties to Sell Surveillance Tools to ICE and Border Patrol

by Anthony W. Accurso 

Google, Amazon, and Microsoft continued to sell surveillance technology to Immigrations and Customs Enforcement (“ICE”) and Customs and Border Patrol (“CBP”) using subcontractors despite publicly threatening to pull contracts with both agencies over concerns about human rights abuses.

The PR show followed after employees at the ...

Pegasus Software: State-sponsored Spyware Usage Likely Infecting Billions of Phones

by Casey J. Bastian 

Pegasus. Likely the world’s most powerful private spyware ever developed—and almost no one is aware of what it is or how likely it is to have already installed itself on your phone. Billions of people today are virtually inseparable from their phones. These devices are within ...

Armed Police Drones Are Coming

by Anthony W. Accurso 

It’s not just hobbyists who are exploiting the near-endless potential of unmanned aerial vehicles (UAVs or “drones”). Law enforcement from all over the country—most especially federal agencies—are using, or making plans to use, drones to conduct surveillance and subdue suspects.

Americans first became widely aware of ...

News in Brief

Alabama: On December 21, 2021, two former police officers in West Blocton, Alabama, were arrested and charged with sexual assault. According to WBRC, a news station serving Birmingham, the Tuscaloosa Police Department announced that the former officers, Craig Baird Arnold, 49, and Brian Keith Whatley, 50, were charged with ...

 

 

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