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Criminal Legal News: April, 2022

Issue PDF
Volume 5, Number 4

In this issue:

  1. A Guide to Getting the Most Out of a Plea Bargain (p 1)
  2. Second Circuit: District Court Required to Explain Rationale for Reducing Sentence to ‘Time Served’ Under First Step Act but Refused to Reduce Supervised Release Portion of Sentence Despite Being Longer Than New Mandatory Minimum (p 7)
  3. What You Need to Know Before Contacting a Conviction Integrity Unit (p 8)
  4. Study Examines the ‘Black Box’ of Prosecutorial Charging and Plea Bargaining Discretion (p 10)
  5. Man Rejects Plea Deal and Is Sentenced to 110 Years in Colorado Prison for Doing So (p 13)
  6. Systematic Lying in Plea Bargaining Is a Feature, Not a Flaw (p 14)
  7. Iowa Supreme Court Clarifies When Forensic Interviews of Child Complaining Witnesses Are Admissible (p 16)
  8. Sixth Circuit: Government Violated Plea Agreement by Arguing for Sentence Exceeding Guidelines Range, Despite Promise Not to ‘Suggest in Any Way’ Variance Is Appropriate (p 18)
  9. Tenth Circuit: Where Defendant Actually Sentenced to Drug Treatment and Probation Rather Than 28-32 Months in Prison as Per State Sentencing Guidelines, Conviction Can’t Serve as Predicate ‘Felony’ for 18 U.S.C. § 922(g)(1) (p 20)
  10. ACLU Report Suggests Disturbing Pattern of Police Surveilling Protests to Identify People Peacefully Protesting Police Brutality (p 21)
  11. Plea Bargaining: An Illegitimate System to Administer Justice? (p 22)
  12. First Circuit: Appellate Counsel’s Failure to Raise Brady Claim on Direct Appeal Constituted Ineffective Assistance of Counsel Under Strickland, § 2255 Motion Granted (p 24)
  13. Ending Eyewitness Memory Contamination (p 26)
  14. Fourth Circuit: Bodily Injury Sentence Enhancement for Robbery Inapplicable Where Victim Sustained ‘Momentary’ Injury and Sought ‘Precautionary’ Medical Treatment (p 30)
  15. Iowa Supreme Court Reverses Conviction Where Prosecutor Allowed to Amend Trial Information at Trial to Charge a ‘Wholly New and Different Offense’ (p 30)
  16. Texas Court of Criminal Appeals: Trial Court Did Not Abuse Discretion by Granting Rule 508 Motion to Dismiss Capital Murder Charge Where State Refused to Disclose Identity of Confidential Informant (p 32)
  17. Vermont Supreme Court Announces Rule 12.1 Doesn’t Require Notice of Diminished Capacity Defense When Expert Testimony Won’t Be Used (p 33)
  18. California Court of Appeal: Hearing on Discretionary Resentencing Under §1170.91(b)(1) for U.S. Servicemembers Requires Only That Petition Allege Defendant ‘May’ Be Suffering From a ‘Qualifying Condition’ (p 34)
  19. Fifth Circuit: Aggravated Assault in Texas Does Not Qualify as Aggravated Felony Under 8 U.S.C. § 1326(b)(2), Reentry With Prior Aggravated Felony (p 35)
  20. Massachusetts Supreme Court: Prosecution Failed to Prove Defendant Knowingly, Voluntarily, and Intelligently Waived Right to Counsel After Having Asked for Lawyer Earlier But Officer Continued to Engage in ‘General’ Talk for Nearly 45 Minutes (p 36)
  21. Third Circuit, Joining Every Other Circuit That’s Addressed the Issue, Holds Hobbs Act Robbery Does Not Qualify as ‘Crime of Violence’ (p 37)
  22. A ‘Lucky’ Exoneration in Syracuse (p 38)
  23. Ninth Circuit Announces Irizarry Didn’t Eliminate Wise Requirement That Sentencing Court Provide Notice of Special Conditions of Supervised Release Prior to Imposing Sentence (p 39)
  24. Maryland Prosecutor Covers for FBI Agent’s Lies in Defense of Junk Science (p 40)
  25. SCOTUS Rejects ‘Opening the Door’ Rule to Correct ‘Misleading Impression’ as Exception to Confrontation Clause Allowing Admission of Unconfronted Testimonial Hearsay (p 40)
  26. North Dakota Supreme Court Suppresses Evidence Found in Passenger’s Backpack Located Outside Vehicle When Drug-Detection Dog Alerted to Presence of Drugs Inside Vehicle (p 42)
  27. Fear and Freedom Twenty Years Later: How Post 9/11 Security Measures Overstepped Privacy (p 43)
  28. FBI Program Surveils Subject for 24 Days Using Spy Planes (p 44)
  29. California Court of Appeal Announces Suffering From a Nonqualifying Mental Disorder While Also Suffering From a Qualifying Disorder Does Not Bar Eligibility for Mental Health Diversion Under § 1001.36 (p 44)
  30. Google Confirms Increasing Police Reliance on Geofence Warrants (p 45)
  31. Pandemic Pressures Defendants into False Guilty Pleas (p 46)
  32. Search Your Constitution in Vain for the Fourth Amendment—the DOJ Seized It (Stealthily) (p 47)
  33. NYPD Using Secret Money for Surveillance Tech (p 47)
  34. Dangers of Data Gathering by Los Angeles Police Department (p 48)
  35. Geofencing Warrants Are Putting Civil Rights and Free Speech in Jeopardy (p 48)
  36. Oregon Bans Police Lying to Obtain Confessions from Juveniles (p 49)
  37. ‘Possible Cause’ Is All That’s Needed for Geofence Warrants (p 50)
  38. News in Brief (p 50)
  39. Police Disparage Philadelphia Citizenry with False Report That SEPTA Riders Stood Idle While Passenger was Raped (p 50)

A Guide to Getting the Most Out of a Plea Bargain

by Jacob Barrett

Highly experienced lawyers and new lawyers alike can improve their negotiation skills (just as they improve their trial skills). But without legal training, what can you do?

Lawyers often use checklists as part of learning how to handle certain types of cases or defenses. This article is ...

Second Circuit: District Court Required to Explain Rationale for Reducing Sentence to ‘Time Served’ Under First Step Act but Refused to Reduce Supervised Release Portion of Sentence Despite Being Longer Than New Mandatory Minimum

by Dale Chappell

The U.S. Court of Appeals for the Second Circuit vacated a defendant’s 10-term of supervised release because the U.S. District Court for the Southern District of New York failed to explain its rationale for not reducing the term when it reduced the incarceration portion of the sentence ...

What You Need to Know Before Contacting a Conviction Integrity Unit

by Marissa Boyers Bluestine and Kia Hall Hayes

Over the past several years, more and more prosecutors have created conviction integrity units (“CIUs”), or conviction review units (“CRUs”), in their offices. While still primarily used in offices serving bigger cities, such as Philadelphia, Chicago, or Detroit, many offices in smaller ...

Study Examines the ‘Black Box’ of Prosecutorial Charging and Plea Bargaining Discretion

by David M. Reutter

Prosecutors are empowered with unparalleled and nearly unchecked discretion in making charging and plea-bargaining decisions. Their decisions have been called a “black box” for their inscrutability. A recent study casts some light onto the how and why of those decisions.

The role of prosecutorial discretion has ...

Man Rejects Plea Deal and Is Sentenced to 110 Years in Colorado Prison for Doing So

by Ashleigh Dye

A Colorado man who was driving a truck when his brakes failed resulting in an accident that killed four people in 2019 was sentenced on December 13, 2021, to 110 years in prison. Rogel Aguilera-Mederos’ harsh prison sentence gained a lot of attention and caused widespread condemnation, ...

Systematic Lying in Plea Bargaining Is a Feature, Not a Flaw

by David M. Reutter

Systematic “lying at plea bargaining allows defendants the opportunity to negotiate fair resolutions to their cases in the face of a deeply unfair system, even as that lying makes way for—and sustains—the problematic system it seeks to avoid,” wrote Thea Johnson, an associate professor at Rutgers ...

Iowa Supreme Court Clarifies When Forensic Interviews of Child Complaining Witnesses Are Admissible

by Douglas Ankney

The Supreme Court of Iowa clarified when forensic interviews of child complaining witnesses may be admitted into evidence at trial.

Jake Skahill was tried on sexual offenses alleged to have been committed against his seven-year-old daughter “K.W.” She testified at trial that while sitting on Skahill’s lap, ...

Sixth Circuit: Government Violated Plea Agreement by Arguing for Sentence Exceeding Guidelines Range, Despite Promise Not to ‘Suggest in Any Way’ Variance Is Appropriate

by David M. Reutter

The U.S. Court of Appeals for the Sixth Circuit held the Government violated a plea agreement by arguing for a sentence that exceed the Guidelines. It remanded for resentencing before a different district court judge.

The Court’s opinion was the second time the issue was before ...

Tenth Circuit: Where Defendant Actually Sentenced to Drug Treatment and Probation Rather Than 28-32 Months in Prison as Per State Sentencing Guidelines, Conviction Can’t Serve as Predicate ‘Felony’ for 18 U.S.C. § 922(g)(1)

by Dale Chappell

The U.S. Court of Appeals for the Tenth Circuit held that defendant’s sentence for a drug conviction under Kansas law, for which the maximum potential term of imprisonment was 32 months, to a drug treatment program and probation, in lieu of prison, did not render that conviction ...

ACLU Report Suggests Disturbing Pattern of Police Surveilling Protests to Identify People Peacefully Protesting Police Brutality

It is reasonable that the California Highway Patrol (“CHP”) would use helicopters equipped with surveillance cameras to track fleeing felons—or even use them to scan crowds of protestors to detect criminal activity. But surveillance footage obtained by the ACLU reveals a disturbing pattern of CHP using cameras in an apparent ...

Plea Bargaining: An Illegitimate System to Administer Justice?

by David M. Reutter

A counseled plea bargain is the fastest and most economical resolution to a criminal case. The American justice system has come to tolerate and encourage plea bargains because of these attributes. Recent studies, however, find that a defendant who enters a plea with the assistance of ...

First Circuit: Appellate Counsel’s Failure to Raise Brady Claim on Direct Appeal Constituted Ineffective Assistance of Counsel Under Strickland, § 2255 Motion Granted

by Anthony W. Accurso

The U.S. Court of Appeals for the First Circuit reversed the U.S. District Court for the District of Puerto Rico’s denial of defendant’s 28 U.S.C. § 2255 motion, ruling defendant’s appellate counsel was constitutionally ineffective under Strickland v. Washington, 466 U.S. 668 (1984), for failing ...

Ending Eyewitness Memory Contamination

Memory-Expert Psychologists Recommend Stopping All In-Court Identification and Repeated Lineups

by Matt Clarke

The Heisenberg Uncertainty Principle is a scientific concept in quantum physics explaining that the position and velocity of a sub-atomic particle can never be truly known because the very act of measuring those quantities changes them. Now ...

Fourth Circuit: Bodily Injury Sentence Enhancement for Robbery Inapplicable Where Victim Sustained ‘Momentary’ Injury and Sought ‘Precautionary’ Medical Treatment

by Jacob Barrett

TheU.S.CourtofAppeals for theFourthCircuitruledadistrictcourtcannot simply“guess”that a victim suffered a qualifying “bodily injury” in connection with a robbery to trigger the two-level, bodily injury sentence enhancement under U.S. Sentencing Guidelines (“Guidelines”) § 2B3.1(b)(3)(A).

MelvinThomasLewisandtwoothersrobbedapawnshop.Lewisstruckthe managerinthebackoftheheadthreetimes,causinghimtofalltothefloor.Thepoliceobserveda“redspot”onthebackofthemanager’s head, and he stated that he felt “dizzy.” He was taken to the hospital ...

Iowa Supreme Court Reverses Conviction Where Prosecutor Allowed to Amend Trial Information at Trial to Charge a ‘Wholly New and Different Offense’

by David M. Reutter

The Supreme Court of Iowa reversed a conviction where the trial court allowed the prosecutor to amend an information at trial and abandon the original charge to bring a more severe charge.

The Court’s opinion was issued in an appeal by Jameesha Renea Allen after a ...

Texas Court of Criminal Appeals: Trial Court Did Not Abuse Discretion by Granting Rule 508 Motion to Dismiss Capital Murder Charge Where State Refused to Disclose Identity of Confidential Informant

by Douglas Ankney

The Court of Criminal Appeals of Texas reversed a judgment of the Court of Appeals (“COA”) that ruled a trial court abused its discretion when dismissing a charge of capital murder pursuant to Texas Rule of Evidence 508 (“Rule 508”) based on the State’s refusal to disclose ...

Vermont Supreme Court Announces Rule 12.1 Doesn’t Require Notice of Diminished Capacity Defense When Expert Testimony Won’t Be Used

by Matt Clarke

The Supreme Court of Vermont held that a trial court erred when it prohibited a defendant from raising the defense of diminished capacity, without relying on any expert witnesses, because she failed to give notice of intent to use that defense. In refusing to consider a diminished ...

California Court of Appeal: Hearing on Discretionary Resentencing Under §1170.91(b)(1) for U.S. Servicemembers Requires Only That Petition Allege Defendant ‘May’ Be Suffering From a ‘Qualifying Condition’

by Douglas Ankney

The Court of Appeal, Fourth Appellate District, ruled that the defendant satisfied the statutory criteria of Cal. Penal Code §1170.91(b)(1) for a hearing on possible resentencing by alleging he “may be suffering from” a qualifying condition, viz., sexual trauma or substance abuse, and that the trial court ...

Fifth Circuit: Aggravated Assault in Texas Does Not Qualify as Aggravated Felony Under 8 U.S.C. § 1326(b)(2), Reentry With Prior Aggravated Felony

by Jacob Barrett

OnremandfromtheU.S. SupremeCourt, the Court of Appeals for the Fifth Circuit held in light of Borden v.United States,141 S. Ct. 1817 (2021), Alan Victor Gomez Gomez’s conviction for aggravated assault in Texasdoes not qualify as an aggravated felony under 8 U.S.C. § 1326(b)(2).

In a drunken ...

Massachusetts Supreme Court: Prosecution Failed to Prove Defendant Knowingly, Voluntarily, and Intelligently Waived Right to Counsel After Having Asked for Lawyer Earlier But Officer Continued to Engage in ‘General’ Talk for Nearly 45 Minutes

by Anthony W. Accurso

The Supreme Judicial Court of the Commonwealth of Massachusetts upheld the suppression of a defendant’s statements to police after invoking his right to an attorney, because the Commonwealth failed to prove beyond a reasonable doubt that he had knowingly, voluntarily, and intelligently waived his right to ...

Third Circuit, Joining Every Other Circuit That’s Addressed the Issue, Holds Hobbs Act Robbery Does Not Qualify as ‘Crime of Violence’

by David M. Reutter

In a precedential ruling, the U.S. Court of Appeals for the Third Circuit held that Hobbs Act robbery does not qualify as a “crime of violence” under the career-offender sentence enhancement in U.S. Sentencing Guidelines (“U.S.S.G.”), § 4B1.2(a).

The Court’s opinion was issued in an appeal ...

A ‘Lucky’ Exoneration in Syracuse

by Jayson Hawkins

Before Alice Sebold wrote her New York Times Bestseller, The Lovely Bones, she published a haunting memoir recounting her rape in 1981 when she was a freshman at Syracuse University. The book, Lucky, details not only the experience but also how she saw her attacker ...

Ninth Circuit Announces Irizarry Didn’t Eliminate Wise Requirement That Sentencing Court Provide Notice of Special Conditions of Supervised Release Prior to Imposing Sentence

by Matt Clarke

The U.S. Court of Appeals for the Ninth Circuit held that the U.S. District Court for the Southern District of California erred in failing to provide advance notice of a special condition of supervised release that wasn’t listed in the mandatory or discretionary conditions in the Sentencing ...

Maryland Prosecutor Covers for FBI Agent’s Lies in Defense of Junk Science

by Jayson Hawkins

Despite the constant glamorization of forensic evidence analysis that has become so common on TV shows, regular readers of CLN should be well aware that what passes for “science” in many actual cases amounts to little more than wishful thinking on the part of prosecutors and law ...

SCOTUS Rejects ‘Opening the Door’ Rule to Correct ‘Misleading Impression’ as Exception to Confrontation Clause Allowing Admission of Unconfronted Testimonial Hearsay

by Richard Resch

In an 8-1 opinion written by Justice Sotomayor, the Supreme Court of the United States held that a trial court’s admission of unconfronted testimonial hearsay evidence because the trial court believed it was reasonably necessary to correct a misleading impression caused by the defendant’s presentation of his ...

North Dakota Supreme Court Suppresses Evidence Found in Passenger’s Backpack Located Outside Vehicle When Drug-Detection Dog Alerted to Presence of Drugs Inside Vehicle

by Anthony W. Accurso

The Supreme Court of North Dakota upheld the suppression of evidence obtained from a warrantless backpack search because neither the automobile nor the search incident to arrest exception applied, and the inevitable discovery doctrine didn’t apply.

On August 28, 2019, Nicholas Lelm was a passenger in ...

Fear and Freedom Twenty Years Later: How Post 9/11 Security Measures Overstepped Privacy

by Ashleigh N. Dye

The threat of terrorism in America has gripped the hearts of Americans for the past two decades since the 9/11 attacks. This fear has, however, been monopolized by the U.S. Government. Immediately following September 11, 2001, government agencies were formed such as the Transportation Security Administration ...

FBI Program Surveils Subject for 24 Days Using Spy Planes

by Anthony W. Accurso

Samuel Landes, a federal public defender representing Muhammed Momtaz Alazhari, filed a motion in federal court on August 30, 2021, alleging that the FBI used its small fleet of Cessna airplanes outfitted with spy equipment to continuously surveil Alazhari for 429 hours between April 18 and ...

California Court of Appeal Announces Suffering From a Nonqualifying Mental Disorder While Also Suffering From a Qualifying Disorder Does Not Bar Eligibility for Mental Health Diversion Under § 1001.36

by Anthony W. Accurso

The Court of Appeal of California, Fifth Appellate District, vacated a trial court’s decision to deny a defendant participation in mental health diversion, ruling that a diagnosis of Antisocial-Personality Disorder (“ASPD”)—an excluded condition under the statute—does not disqualify him because he was also diagnosed with at ...

Google Confirms Increasing Police Reliance on Geofence Warrants

by Anthony W. Accurso

Since a New York Times articlein 2019 broke the news that Google’s Sensorvault database stores location information from hundreds of millions of devices worldwide, we have also learned that law enforcement have been increasingly reliant on this data to help solve crimes. Just how reliant they ...

Pandemic Pressures Defendants into False Guilty Pleas

by David M. Reutter

The majority of people held in jails throughout the U.S. have not been convicted of a crime. They are more inclined to accept plea offers to secure immediate release from incarceration. A recent study found that “the added risk of COVID exposure in jail made participants-defendants ...

Search Your Constitution in Vain for the Fourth Amendment—the DOJ Seized It (Stealthily)

by Douglas Ankney

Over the past couple of decades, the Department of Justice (“DOJ”) and its components have been requesting and receiving data from electronic media service providers, utilizing warrants, subpoenas, and National Security Letters (“NSLs”) that come with indefinite gag orders attached. Microsoft, Google, Facebook, et al., are sworn ...

NYPD Using Secret Money for Surveillance Tech

by Anthony W. Accurso

A public-records request uncovered details about the New York Police Department’s use of a secret fund the agency has been using to purchase surveillance tech.

Two civil rights groups, the Legal Aid Society and the Surveillance Technology Oversight Project, obtained documents that were released by Wired ...

Dangers of Data Gathering by Los Angeles Police Department

by Ed Lyon

For decades, officers with California’s Los Angeles Police Department (“LAPD”) have utilized Field Information Cards (“FIC”) for reference whenever they interact with citizens. This contact may take the form of a traffic stop whether or not a citation is issued, obtaining a witness statement, or incidental to ...

Geofencing Warrants Are Putting Civil Rights and Free Speech in Jeopardy

by Dale Chappell

Hundreds of protestors marched in Kenosha, Wisconsin, after the police shooting of Jacob Blake in August 2020. Little did these protestors know that the Bureau of Alcohol, Tobacco and Firearms issued at least a dozen geofence warrants to gather data from their electronic devices they carried that ...

Oregon Bans Police Lying to Obtain Confessions from Juveniles

by Jacob Barrett

On May 24, 2021 the Oregon Legis­lature passed SB 418 banning police from lying to juveniles in order to obtain a confession during interrogations. The bill is part of a number of youth reform measures recently passed by the Legislature. Oregon is only the second state to ...

‘Possible Cause’ Is All That’s Needed for Geofence Warrants

by Douglas Ankney

Thousands of protesters stormed the streets of Kenosha, Wisconsin, in response to yet another killing of a Black man. At the Kenosha Public Library, lighter fluid and rags were found in a window well. There were no eyewitnesses to the incident. Agents from the Bureau of Alcohol, ...

News in Brief

Alabama: Techdirt reports that police in Brookside have routinely violated the law in traffic enforcement. By early February 2022, it was clear that the local police department in the small town had been racking up staggering amounts of income in traffic fines, receiving more than $600,000 in 2020 alone. ...

Police Disparage Philadelphia Citizenry with False Report That SEPTA Riders Stood Idle While Passenger was Raped

by Douglas Ankney

During a late-night SEPTA train ride on the Market-Frankford line in October 2021, a woman was raped. In an apparent rush to disparage Philadelphia’s citizenry, Upper Darby police initially reported that other passengers looked on while the woman was being raped, with some filming for their own ...

 

 

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