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Criminal Legal News: June, 2022

Issue PDF
Volume 5, Number 6

In this issue:

  1. Jury Nullification: The People’s Tool Against Bad Laws and Bad Legal Actors (p 1)
  2. New RECOVER Fingerprint Technology Used to Solve 1983 Cold Case (p 13)
  3. Federal Habeas Corpus: Post-Filing Procedures in Seeking Habeas Relief (p 14)
  4. Excited Delirium—the Diagnosis That Doesn’t Exist (p 16)
  5. New York Court of Appeals: Frye Hearing Required to Determine Admissibility of DNA Evidence Generated by Proprietary Forensic Statistical Tool (p 19)
  6. Use of Controversial Phone-Cracking Tool Is Spreading Across Federal Government (p 20)
  7. California Court of Appeal: Trial Court Must Receive Parole Agency’s Written Report Before Ruling on Parole Revocation Petition for Lifetime Parolee Despite Remand to Prison Being Mandatory (p 22)
  8. Michigan Supreme Court: IAC Where Defense Counsel Failed to Request Instruction on Defense-of-Others for Nonassaultive Offense of Home Invasion, Orders New Trial (p 24)
  9. Maine Now Requires Criminal Conviction Before Property May Be Forfeited (p 26)
  10. West Virginia Supreme Court: Defendant Who Provided False Information to Detective Who Failed to Identify Himself as Police Officer Has No Duty to Cure False Statement Upon Learning Detective Is a Police Officer (p 26)
  11. Tenth Circuit: Judgment of Conviction Becomes Final for § 2255 SOL Purposes Upon Conclusion of Direct Review of Deferred Restitution (p 28)
  12. New Hampshire Supreme Court: Warrant Required to Enter Walled-In Porch Attached to Mobile Home (p 30)
  13. Second Circuit: Multi-Object Drug Conspiracy Involving Crack and Other Drugs Eligible for First Step Act Relief (p 31)
  14. Sixth Circuit: No Abuse of Discretion in U.S. District Courts Imposing Habeas Remedy Different Than That Required Under State Law (p 32)
  15. Book Review: ‘The PLRA Handbook: Law and Practice Under the Prison Litigation Reform Act’ by John Boston (p 32)
  16. SCOTUS Announces § 1983 Malicious Prosecution Claim’s ‘Favorable Determination’ Requirement Satisfied by Showing Prosecution Ended Without a Conviction (p 34)
  17. Minnesota Supreme Court: Depraved-Mind Murder Requires Mental State of Generalized Indifference to Human Life, Which Cannot Exist Where Defendant Kills With Particularity (p 35)
  18. Sixth Circuit: Evidence Withheld by Prosecutor Opens Door for Successive Habeas Petition (p 36)
  19. Martinsville Seven Pardoned 70 Years After Execution (p 36)
  20. SCOTUS Adds Extra Obstacle to Federal Habeas Relief for State Prisoners, Ruling Both Brecht and the AEDPA Must Be Satisfied (p 38)
  21. Pennsylvania Supreme Court Announces Smell of Marijuana Alone No Longer Establishes Probable Cause to Conduct Warrantless Vehicle Search (p 39)
  22. ABA Says Oregon Needs 1,296 More Public Defenders (p 40)
  23. New Yorkers With Criminal Record Struggle for Approval to Rent Homes (p 41)
  24. Idaho Supreme Court Announces Prospectively Testimony by Drug Recognition Expert Requires State to Comply With Expert Witness Disclosure Requirements of Rule 16(b)(7) (p 42)
  25. Filmmaker Got Back His $69,000 ‘Stolen’ by DEA Agent, Plus a $15,000 Settlement (p 43)
  26. California Court of Appeal: Trial Court’s Dismissal of Charge Based on Express Statement of ‘Insufficient Evidence’ Is Equivalent to Acquittal for § 1170.95 Resentencing (p 44)
  27. When Your Criminal Case Is Dropped, But Your Mugshot Lives Forever (p 45)
  28. A House Built on Discriminatory Sand (p 47)
  29. First Study of Police De-Escalation Training Shows Impressive Results (p 49)
  30. Costs of Untested Rape Kits (p 50)
  31. News in Brief (p 50)

Jury Nullification: The People’s Tool Against Bad Laws and Bad Legal Actors

by J.D. Schmidt

A specter is haunting the courtrooms of the United States—the specter of jury nullification. All the powers of the United States legal system have entered into an unholy alliance to exorcise this specter: judge, prosecutor, and legal scholar, “conservative” and “liberal” alike. What is jury nullification, and why do so many people in positions of power in American jurisprudence either refuse to speak of it or openly attack it?

Jury nullification is a centuries-old practice that exists in many countries. In the U.S., it is a highly contested but historically legal practice with pre-Revolutionary roots in English common law. A law is said to be “nullified” in a particular case when a jury refuses, or is unable, to apply it as written by lawmakers or described to them by prosecutors and judges. Cases in recent years involving issues from drug offenses to climate change protests and even the January 2021 riot at the Capitol have stirred up interest in, and debate over, jury nullification. 

Nullification in a Nutshell

“The judge can come outside and speak to me.” This is what Keith Eric Wood told a Mecosta County, Michigan, sheriff’s deputy who stopped him from handing out a ...

New RECOVER Fingerprint Technology Used to Solve 1983 Cold Case

by Casey J. Bastian

Forensic technologies are constantly being innovated in an ongoing effort to correctly solve crimes and create a better justice system. Identifying the correct suspect is vital to administering true justice. The sole detective in the recently created Delray Beach Police Department’s (“DBPD”) Cold Case Unit (“CCU”) ...

Federal Habeas Corpus: Post-Filing Procedures in Seeking Habeas Relief

by Dale Chappell

After you’ve filed your petition for habeas relief in federal court, you may decide to take further actions, such as filing a motion to “stay” your proceedings, to appoint counsel, or to release you on bond pending the outcome of your habeas case. Much of the authority ...

Excited Delirium—the Diagnosis That Doesn’t Exist

How a racialized, gendered theory became the go-to defense for police officers who kill people in custody

by Brooke Kaufman

The term “excited delirium,” or agitated delirium, first entered legal discourse in the 1980s. Dr. Charles Wetli and Dr. David Fishbain used the theory to explain the sudden deaths of ...

New York Court of Appeals: Frye Hearing Required to Determine Admissibility of DNA Evidence Generated by Proprietary Forensic Statistical Tool

by Douglas Ankney

The Court of Appeals of New York reversed an order of the Appellate Division that had affirmed a trial court’s order denying a hearing requested pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and the Court remitted to the trial court to ...

Use of Controversial Phone-Cracking Tool Is Spreading Across Federal Government

Cellebrite’s extensive federal sales come as another Israeli phone-spying firm, NSO Group, falls under federal sanctions.

by Mara Hvistendahl, Sam Biddle, The Intercept

Investigators with the U.S. Fish and Wildlife Service frequently work to thwart a variety of environmental offenses, from illegal deforestation to hunting without a license. While these are real ...

California Court of Appeal: Trial Court Must Receive Parole Agency’s Written Report Before Ruling on Parole Revocation Petition for Lifetime Parolee Despite Remand to Prison Being Mandatory

by Douglas Ankney

The Court of Appeal, First Appellate District, held that Penal Code § 1203.2(b)(1) requires trial courts to receive a parole agency’s written report before ruling on a parole revocation petition and that there is no exception for a petition filed against a lifetime parolee.

Jerry Denton Williams, ...

Michigan Supreme Court: IAC Where Defense Counsel Failed to Request Instruction on Defense-of-Others for Nonassaultive Offense of Home Invasion, Orders New Trial

by David M. Reutter

The Supreme Court of Michigan held that defense counsel was ineffective for failing to request a defense-of-others jury instruction for defendants who were on trial for home invasion and felonious assault.  

Jeremiah and Micheline Leffew moved to Michigan in September 2017 and moved in with Jeremiah’s ...

Maine Now Requires Criminal Conviction Before Property May Be Forfeited

by Douglas Ankney

Maine passed LD 1521 without the governor’s signature to become the fourth state in the nation to abolish civil asset forfeiture, requiring instead a criminal conviction before property may be forfeited. The law took effect July 13, 2021. “It’s a very simple concept; you don’t lose your ...

West Virginia Supreme Court: Defendant Who Provided False Information to Detective Who Failed to Identify Himself as Police Officer Has No Duty to Cure False Statement Upon Learning Detective Is a Police Officer

by Douglas Ankney

The Supreme Court of Appeals of West Virginia ruled that a person who provided false information to a detective who failed to identify himself as a police officer had no duty under City of Martinsburg Municipal Code § 509.05 (“§ 509.05”) to cure the prior false statement ...

Tenth Circuit: Judgment of Conviction Becomes Final for § 2255 SOL Purposes Upon Conclusion of Direct Review of Deferred Restitution

Answering an open question, the U.S. Court of Appeals for the Tenth Circuit held that a judgment becomes final for purposes of 28 U.S.C. § 2255’s statute of limitations upon conclusion of direct review of the deferred restitution judgment.

On October 26, 2017, the U.S. District Court for the Western ...

New Hampshire Supreme Court: Warrant Required to Enter Walled-In Porch Attached to Mobile Home

by Anthony W. Accurso

The Supreme Court of New Hampshire held that a warrantless entry of an enclosed porch attached to a mobile home was constitutionally impermissible because the homeowner took steps to protect his privacy in that space.

Officers with the Conway Police Department received a tip on April ...

Second Circuit: Multi-Object Drug Conspiracy Involving Crack and Other Drugs Eligible for First Step Act Relief

by Dale Chappell

A single federal drug offense involving both powder and crack cocaine is eligible for a reduced sentence under the First Step Act’s retroactive application of the Fair Sentencing Act of 2010 (“FSA”), even if the offense includes a non-qualifying drug, the U.S. Court of Appeals for the ...

Sixth Circuit: No Abuse of Discretion in U.S. District Courts Imposing Habeas Remedy Different Than That Required Under State Law

by Dale Chappell

The proper remedy in granting federal habeas corpus relief to a state prisoner is within the discretion of federal courts and not dependent on what is required by state law, the U.S. Court of Appeals for the Sixth Circuit held.

After the U.S. District Court for the ...

Book Review: ‘The PLRA Handbook: Law and Practice Under the Prison Litigation Reform Act’ by John Boston

by Matt Clarke

Since being signed into law by President Clinton in 1996, the Prison Litigation Reform Act (“PLRA”) has become the premiere obstacle to prisoners’ obtaining relief in federal courts. Touted by proponents as a solution to the fictitious “explosion” of frivolous prisoner litigation that was “swamping” the federal ...

SCOTUS Announces § 1983 Malicious Prosecution Claim’s ‘Favorable Determination’ Requirement Satisfied by Showing Prosecution Ended Without a Conviction

by Richard Resch

The Supreme Court of the United States held that the “favorable determination” requirement for a Fourth Amendment claim under 42 U.S.C. § 1983 for malicious prosecution does not require the plaintiff to show that the prosecution ended with some“affirmative indication of innocence.” A showing that the prosecution ...

Minnesota Supreme Court: Depraved-Mind Murder Requires Mental State of Generalized Indifference to Human Life, Which Cannot Exist Where Defendant Kills With Particularity

by Douglas Ankney

The Supreme Court of Minnesota held that the mental state necessary for a depraved-minded murder, Minn.Stat. 609.195(a) (2020), is a generalized indifference to human life, which cannot exist when the defendant’s conduct is directed with particularity at the person killed. To the extent that State v. Mytych ...

Sixth Circuit: Evidence Withheld by Prosecutor Opens Door for Successive Habeas Petition

by Dale Chappell

After the discovery that the prosecution withheld key pieces of evidence that may have exonerated a man convicted and sentenced to death, the U.S. Court of Appeals for the Sixth Circuit held that this was enough to reopen the door for federal habeas corpus, despite the strict ...

Martinsville Seven Pardoned 70 Years After Execution

by Anthony W. Accurso

Governor Ralph Northam (D-VA) signed posthumous pardons for seven Black men denied due process in a criminal case following a rape allegation involving a white woman in Martinsville, Virginia, in 1949.

On January 8, 1949, 32-year-old Ruby Stroud Floyd alleged she was raped by 13 Black ...

SCOTUS Adds Extra Obstacle to Federal Habeas Relief for State Prisoners, Ruling Both Brecht and the AEDPA Must Be Satisfied

by Dale Chappell

Citing the need to respect the finality of state convictions, the Supreme Court of the United States (“SCOTUS”) held on April 21, 2022, that a constitutional trial error that’s found to be “substantial and injurious” under Brecht on the verdict must also clear the Antiterrorism and Effective ...

Pennsylvania Supreme Court Announces Smell of Marijuana Alone No Longer Establishes Probable Cause to Conduct Warrantless Vehicle Search

by Douglas Ankney

The Supreme Court of Pennsylvania held that the smell of marijuana, by itself, no longer creates probable cause to justify a warrantless search of a vehicle during a traffic stop.

After observing a vehicle fail to come to a complete stop at a stop sign, Pennsylvania State ...

ABA Says Oregon Needs 1,296 More Public Defenders

by Mark Wilson

Oregon’s 592 contracted public defenders, in a state with more than 4.2 million citizens, amount to just 31% of the attorneys needed to represent the state’s indigent criminal defendants, according to a two-year study by the American Bar Association’s Committee on Legal Aid and Indigent Defense (“ABA”) ...

New Yorkers With Criminal Record Struggle for Approval to Rent Homes

by Ashleigh Dye

It is estimated that in New York City over 750,000 residents have a criminal record. Yet, many policies and housing laws exclude people with past criminal convictions from being able to rent apartments or homes. Legislation known as “Fair Chance” laws could help change that.

Christina Johnson ...

Idaho Supreme Court Announces Prospectively Testimony by Drug Recognition Expert Requires State to Comply With Expert Witness Disclosure Requirements of Rule 16(b)(7)

by Douglas Ankney

The Supreme Court of Idaho announced, “that henceforth, testimony from drug recognition expert requires the state to comply with the expert witness disclosure requirements set forth in Idaho Criminal Rule 16(b)(7).”

Timothy Dacey was arrested on suspicion of Driving under the Influence (“DUI”), but a subsequent breath ...

Filmmaker Got Back His $69,000 ‘Stolen’ by DEA Agent, Plus a $15,000 Settlement

by Harold Hempstead

In August 2021, the U.S. Government agreed to pay Keddins Etiennes, an independent filmmaker, a $15,000 settlement, in addition to the approximately $69,000 they previously returned to Etiennes, that DEA Agent Antonio LoGrande unlawfully seized from him.

On January 7, 2020, a Transportation Security Administration (“TSA”) officer ...

California Court of Appeal: Trial Court’s Dismissal of Charge Based on Express Statement of ‘Insufficient Evidence’ Is Equivalent to Acquittal for § 1170.95 Resentencing

by Douglas Ankney

The Court of Appeal of California, Third Appellate District, affirmed the finding of a superior court in a § 1170.95 proceeding that the trial court’s dismissal of a charge for insufficient evidence under the facts of this case is the equivalent of an acquittal. (Note: All statutory ...

When Your Criminal Case Is Dropped, But Your Mugshot Lives Forever

by Julie Levitch, The Crime Report

Just as protests spread across the country in response to the killing of George Floyd, I was arrested—a white, middle-class, suburban mom with no criminal record.

While the appalling circumstances surrounding my arrest and dismissal of my case didn’t make headline news, the event ...

A House Built on Discriminatory Sand

Strategies for Pushing Back on Data-Driven Policing Trends

by Anthony W. Accurso

The National Association of Criminal Defense Lawyers (“NACDL”) released its Task Force report on data-driven predictive policing in September, 2021, highlighting the failures of predictive policing and making policy recommendations regarding its use.

In 2017, the NACDL created ...

First Study of Police De-Escalation Training Shows Impressive Results

by Douglas Ankney

A first-of-its-kind study by the University of Cincinnati (“UC”) revealed that de-escalation training of police officers produces impressive results in making police encounters safer for the public. The study, appearing in Criminology & Public Policy (the flagship publication of the American Society of Criminology), was in collaboration ...

Costs of Untested Rape Kits

by Jayson Hawkins

Few crimes are as traumatic as a violent sexual assault. When the assailants are unknown and at large, victims often remain in a constant state of anxiety and apprehension, unsure when or if they may be attacked again. DNA evidence collected from a rape kit can be ...

News in Brief

Connecticut: On Apr. 15, 2022, a Norwalk police officer of 10 years was arrested of assaulting a family member. WVIT, a news channel serving New Britain, reports that officer Jermaine Nash, 44, was arrested after a call was made to police in the mid-afternoon of the 15th. ...

 

 

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