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Criminal Legal News: May, 2022

Issue PDF
Volume 5, Number 5

In this issue:

  1. The Pseudoscientific Practice of Blood Spatter Analysis How the Desire for Convictions Drives Flawed Prosecutions (p 1)
  2. Tennessee County Disproportionately Jails Black Children, and It’s Not Getting Better (p 14)
  3. Digital Tyranny: Beware of the Government’s Push for a Digital Currency (p 16)
  4. California Court of Appeal: Fifth Amendment Violation Where Police Use Two-Step Interrogation in Deliberate Strategy to Circumvent Miranda (p 18)
  5. Seventh Circuit: Four-Year Delay in Filing Appeal Excused Habeas Exhaustion Requirement Because Any Further Attempts for Postconviction Remedies in State Court Would Have Been Futile (p 20)
  6. Ninth Circuit: IAC for Failure to Engage Mental Health Expert and Testing, State PCR Court’s Decision Contrary to Federal Law and Defective Factfinding, Habeas Relief Granted (p 22)
  7. Hawaii Supreme Court: Due Process Violation to Exclude Evidence of Victim’s BAC in Assault Case in Which Defendant Claims Self-Defense (p 24)
  8. Sixth Circuit: Courts May Consider Nonretroactive Change in Law as One of Several Factors for Extraordinary and Compelling Circumstances for Compassionate Release (p 26)
  9. Maryland Court of Appeals Announces Accepting Empaneled Jury Doesn’t Waive Prior Objection to Trial Court’s Refusal to Propound a Voir Dire Question (p 28)
  10. United States Has Four Percent of the Global Population and Over Thirteen Percent of Global Deaths at the Hands of Law Enforcement (p 30)
  11. I, Robot, Am The LAW! (p 33)
  12. Thanks to Homeowner’s Private Security Camera Catching Cops’ Blatant Misconduct, He’s a Free Man (p 35)
  13. SCOTUS Rejects Government’s Interpretation of the ACCA’s ‘Occasions Clause’ That Would Make It Possible to Become ‘a Career Criminal in the Space of a Minute’ (p 36)
  14. Kentucky Supreme Court: Officer’s History of Arresting Defendant on Multiple Occasions Constituted ‘Show of Authority’ That Defendant Was Not Free to Leave, Resulting in Unlawful Terry Stop (p 38)
  15. Connecticut Supreme Court: Trial Court Abused Discretion by Limiting Self-Represented Defendant’s Direct Examination Regarding Risk of Injury to a Child (p 39)
  16. Fifth Circuit Affirms Habeas Relief and New Trial Based on Counsel’s Failure to Interview State’s Key Eyewitness in Murder Case (p 40)
  17. Minnesota Supreme Court Announces Confession Must Be Corroborated by Independent Evidence Crime Occurred, Rejects Federal ‘Trustworthiness Standard’ for Corpus Delicti Rule (p 41)
  18. Crushing Whistleblowers (p 42)
  19. California Court of Appeal Orders New Trial Due to Jurors Considering Potential Penalty During Guilt Phase of Deliberations (p 44)
  20. Colorado Supreme Court Announces Parents’ Income That’s Unavailable to Defendant Who Lives With Them Expense-Free Not Included in Indigency Determination for Court-Appointed Counsel (p 45)
  21. FOIA Request Reveals How the FBI Obtains and Analyzes Cellular Provider Data (p 46)
  22. Vermont Supreme Court: Under Totality of Circumstances, Police Interview of Defendant in Store Parking Lot Was ‘Custodial Interrogation,’ Triggering Requirement for Miranda Warnings (p 47)
  23. Facbook Reminds Police, No Dummy Accounts for Surveillance (p 48)
  24. Government Drones Compromise National Security, yet the NYPD Uses Them (p 49)
  25. LASD Defends Practice of Stopping Latino Bicyclists, Says People Using Bikes for Transportation Are Generally Criminals (p 50)
  26. News in Brief (p 50)
  27. Discredited Narcotics Unit Revamped as Firearms Unit (p 50)

The Pseudoscientific Practice of Blood Spatter Analysis How the Desire for Convictions Drives Flawed Prosecutions

by Anthony W. Accurso

The forensic science known as Bloodstain Pattern Analysis (“BPA”)—a.k.a. blood spatter analysis—is undergoing significant development after being the object of intense criticism regarding its reliability in the context of criminal prosecutions. Despite being practiced for over 150 years, this field has undergone two periods of dramatic ...

Tennessee County Disproportionately Jails Black Children, and It’s Not Getting Better

by Jacob Barrett

Tennessee’s Rutherford County hasbeenunderscrutinyafteritwaswidelycriticizedforitsdysfunctional juvenilejusticesystem.TheCountyhasbeenincarceratingBlackchildrenatadisproportionatelyhighrate, accordingtodataobtainedbyProPublicaandNashvillePublicRadio(“NPR”).Themostrecentdatarevealthat theCounty’sincarcerationofBlackyouthisanextremedeparturefromnationaltrendsandtheCounty’sracial disparityisgettingworse,notbetter.

ProPublica and NPR documented how Rutherford County charged 11 Black children for a crime that did not exist. Four of the children were confined in the County’s juvenile jail.

Followingthepublicationofthestorybythetwonewsorganizations,theyreceivedadditionalreportsfromthe TennesseeCommissiononChildrenandYouththatexposedwhiletheCountywaslockingupsomanykids illegally,itwasalsoincarceratingadisproportionately  highpercentageofBlackchildren.

RutherfordCountybooked childrenintoitsjuvenilejailatleast6,350timesbetweenJuly2010andJune2021, accordingtotheyouthcommissionsmonitoringreports.Thirty-eightpercentofthosewereBlackchildren.That percentageistroublinginlightofthefactBlackchildrenonlymakeup onlyabout16%ofchildreninthe County. ...

Digital Tyranny: Beware of the Government’s Push for a Digital Currency

by John W. Whitehead & Nisha Whitehead, The Rutherford Institute

“The greatest tyrannies are always perpetrated in the name of the noblest causes.”—Thomas Paine

The government wants your money.It will beg, steal or borrow if necessary, but it wants your money any way it can get it.

The government’s schemes ...

California Court of Appeal: Fifth Amendment Violation Where Police Use Two-Step Interrogation in Deliberate Strategy to Circumvent Miranda

The Court of Appeal of California, Sixth Appellate District, held the trial court erred by admitting incriminating post-Miranda statements obtained through the use of pre-Miranda statements in a deliberate strategy to circumvent Miranda through the use of a two-step interrogation in violation of the Fifth and Fourteenth Amendments.  ...

Seventh Circuit: Four-Year Delay in Filing Appeal Excused Habeas Exhaustion Requirement Because Any Further Attempts for Postconviction Remedies in State Court Would Have Been Futile

by Dale Chappell

Waiting more than four years for a Wisconsin state court to hear a defendant’s appeal was “ineffective to protect the rights secured by the United States Constitution,” the U.S. Court of Appeals for the Seventh Circuit ruled, allowing a federal habeas corpus petition to proceed without exhausting ...

Ninth Circuit: IAC for Failure to Engage Mental Health Expert and Testing, State PCR Court’s Decision Contrary to Federal Law and Defective Factfinding, Habeas Relief Granted

by Dale Chappell

The U.S. Court of Appeals for the Ninth Circuit held that trial counsel’s failure to obtain a mental health expert and psychological testing constituted ineffective assistance of counsel (“IAC”), rendering the death-penalty sentences invalid. The Court reversed the denial of habeas corpus relief and instructed the U.S. ...

Hawaii Supreme Court: Due Process Violation to Exclude Evidence of Victim’s BAC in Assault Case in Which Defendant Claims Self-Defense

by Matt Clarke

The Supreme Court of Hawaii held that a trial court erred by excluding evidence of the victim’s blood alcohol concentration (“BAC”) in a first-degree assault case where the defendant claimed self-defense.

During a family gathering involving a day of drinking, Peter David and his cousin, Santhony Albert, ...

Sixth Circuit: Courts May Consider Nonretroactive Change in Law as One of Several Factors for Extraordinary and Compelling Circumstances for Compassionate Release

by Matt Clarke

The U.S. Court of Appeals for the Sixth Circuit held that the U.S. District Court for the Northern District of Ohio erred when it failed to consider a change in sentencing law announced in United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (“attempted” controlled ...

Maryland Court of Appeals Announces Accepting Empaneled Jury Doesn’t Waive Prior Objection to Trial Court’s Refusal to Propound a Voir Dire Question

by Douglas Ankney

The Court of Appeals of Maryland affirmed a decision of the Court of Special Appeals (“CSA”) that held a defendant’s acceptance of a jury as empaneled did not waive his earlier objection to a trial court’s denial of the defendant’s request to propound a proposed voir dire ...

United States Has Four Percent of the Global Population and Over Thirteen Percent of Global Deaths at the Hands of Law Enforcement

Procedural Deficiencies in Cause of Death Reporting Systems Cause Extensive Underreporting of Fatal Police Violence

by Casey J. Bastian

Our nation is experiencing a recent period of forced enlightenment. The scope of violent or fatal encounters with American law enforcement is now considered by many experts to qualify as a ...

I, Robot, Am The LAW!

Robot Dogs, Lethal Autonomous Weapons, and the Dawn of Robo-dystopia

by J.D. Schmidt

Back in 1942 when science fiction author Isaac Asimov introduced his “Three Laws of Robotics” in a short story, he was imagining how we could grapple with some of the problems that might arise as human beings ...

Thanks to Homeowner’s Private Security Camera Catching Cops’ Blatant Misconduct, He’s a Free Man

by Douglas Ankney

Two police officers from Gowanda, New York—Sean Hotnich and Richard Cooper—claimed they got several “key details” wrong in their affidavit supporting a search warrant, as well as in their police report. For example, the police report states that once the two officers entered David Yezek’s kitchen, “patrol ...

SCOTUS Rejects Government’s Interpretation of the ACCA’s ‘Occasions Clause’ That Would Make It Possible to Become ‘a Career Criminal in the Space of a Minute’

by Richard Resch

In a 9-0 opinion delivered by Justice Kagan, the Supreme Court of the United States held that defendant’s 10 burglary convictions for burglarizing 10 separate storage units all located within the same building constituted a single “occasion,” not 10, for purposes of the Armed Career Criminal Act ...

Kentucky Supreme Court: Officer’s History of Arresting Defendant on Multiple Occasions Constituted ‘Show of Authority’ That Defendant Was Not Free to Leave, Resulting in Unlawful Terry Stop

by Anthony W. Accurso

Supreme Court of Kentucky upheld the decision of a trial court that found a single officer asking questions of the defendant in a public area amounted to an unlawful seizure because the defendant had a history of being arrested by that particular officer so he reasonably ...

Connecticut Supreme Court: Trial Court Abused Discretion by Limiting Self-Represented Defendant’s Direct Examination Regarding Risk of Injury to a Child

by Matt Clarke

The Supreme Court of Connecticut held that a trial court erred when it limited the testimony of a self-represented defendant in a trial for injury to a child. The testimony at issue would have explained why the defendant felt it necessary to physically drag his daughter to ...

Fifth Circuit Affirms Habeas Relief and New Trial Based on Counsel’s Failure to Interview State’s Key Eyewitness in Murder Case

by Dale Chappell

Finding that defense counsel’s failure to interview the State’s key eyewitness in a Louisiana murder case constituted ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), the U.S. Court of Appeals for the Fifth Circuit affirmed the U.S. District Court for the Middle ...

Minnesota Supreme Court Announces Confession Must Be Corroborated by Independent Evidence Crime Occurred, Rejects Federal ‘Trustworthiness Standard’ for Corpus Delicti Rule

by Douglas Ankney

The Supreme Court of Minnesota announced that Minn. Stat. § 634.03 (2020) requires a defendant’s confession to be corroborated by independent evidence reasonably tending to prove that the specific offense charged has been committed.

During a police interview, Bryan Morgan Holl confessed to several incidents of sexually ...

Crushing Whistleblowers

A Closer Look at How Police Departments Resist Reform From Within Their Ranks

by Jayson Hawkins

The last few years have seen a growing awareness of systemic problems in the way American police operate. Efforts to reform the system have been stymied by a number of factors, including the racial ...

California Court of Appeal Orders New Trial Due to Jurors Considering Potential Penalty During Guilt Phase of Deliberations

by Douglas Ankney

The Court of Appeal of California, Third Appellate District, reversed a trial court’s denial of a motion for a new trial, ruling that jurors committed misconduct by considering the possible penalties during the guilt phase of Michael Anthony Flores’ trial.

Flores was tried on several charges, including ...

Colorado Supreme Court Announces Parents’ Income That’s Unavailable to Defendant Who Lives With Them Expense-Free Not Included in Indigency Determination for Court-Appointed Counsel

by Matt Clarke

In a case of first impression, the Supreme Court of Colorado announced that when calculating financial means to hire an attorney in determining whether a defendant is indigent and thus entitled to court-appointed counsel the parents’ income in a joint household is excluded from the indigency calculation ...

FOIA Request Reveals How the FBI Obtains and Analyzes Cellular Provider Data

by Anthony W. Accurso

Arecently-obtained document sheds light on how an FBI special team obtains data from cellular providers to provide support for FBI, tribal, and local law enforcement investigations, including what data they can obtain and how long each provider stores that data.

Ryan N. Shapiro of the nonprofit ...

Vermont Supreme Court: Under Totality of Circumstances, Police Interview of Defendant in Store Parking Lot Was ‘Custodial Interrogation,’ Triggering Requirement for Miranda Warnings

by Anthony W. Accurso

The Supreme Court of Vermontruled that, given the totality of circumstances, a police interview with a defendant was custodial and thereby triggered the requirement for Miranda warnings where, among other factors, two police officers sought out the defendant, asked her to exit the store in which ...

Facbook Reminds Police, No Dummy Accounts for Surveillance

by Anthony W. Accurso

One police tactic that is quickly gaining traction involves surveilling social media posts on sites like Facebook and Twitter, but Facebook (now Meta) is reminding police that fake (or “dummy”) accounts are not allowed.

Police have always been allowed to view public posts by Facebook users, ...

Government Drones Compromise National Security, yet the NYPD Uses Them

by Ashleigh Dye

Drones produced by a Chinese company, Da Jiang Innovations (“DJI”), have been under scrutiny by the U.S. government for being a potential threat to national security. These same drones however, are being used by The New York City Police Department (“NYPD”).

The NYPD stated that the drones ...

LASD Defends Practice of Stopping Latino Bicyclists, Says People Using Bikes for Transportation Are Generally Criminals

by Douglas Ankney

According to data obtained by the Los Angeles Times, the Los Angeles Sheriff’s Department (“LASD”) is targeting Latino bicyclists with pretextual stops. Since the bicyclists are on their vehicles—rather than in their vehicles—the stops are analogous to Terry stops (from Terry v. Ohio, 392 U.S. ...

News in Brief

Arkansas: A former police officer in Lonoke County was convicted on March 18, 2022, in the killing of a white teenager reports Courthouse News Service. The former sheriff’s deputy, Michael Davis, was acquitted of a manslaughter charge but convicted on a misdemeanor charge in connection with the shooting of ...

Discredited Narcotics Unit Revamped as Firearms Unit

by Douglas Ankney

In 2020, the U.S. Department of Justice reported that officers from the Narcotics Unit of the Springfield Police Department in Massachusetts engaged “in a pattern or practice of excessive force in violation of the Fourth Amendment of the United States Constitution.” The report identified evidence showing officers ...

 

 

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