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Criminal Legal News: July, 2022

Issue PDF
Volume 5, Number 7

In this issue:

  1. Blue Lies Matter (p 1)
  2. Missouri Supreme Court: Witness’ Two-Way Live Video Feed Testimony Violates Confrontation Clause (p 8)
  3. Federal Habeas Corpus: Jurisdictional Pitfalls When Seeking Habeas Relief (p 10)
  4. New Jersey Supreme Court: Description of Race and Gender of Robbery Suspects, Without More, Doesn’t Constitute Reasonable Suspicion for Investigatory Traffic Stop of Black Motorists (p 12)
  5. Commentary: Attacking the Guilty Plea—Court Cautions More Time Possible in Child Porn Case if Post-Conviction Motion Successful (p 13)
  6. SCOTUS: No Procedural-Default Exceptions to Excuse Federal Habeas Evidentiary Hearing Bar (p 14)
  7. Ohio Supreme Court: Constitutionality of Indeterminate Sentence Under Reagan Tokes Law May Be Challenged on Direct Appeal (p 16)
  8. Idaho Supreme Court: Telephonic Testimony Violated Defendant’s Sixth Amendment Right to Confrontation (p 16)
  9. Ninth Circuit Holds Statute Criminalizing Encouraging or Inducing Alien to Reside in U.S. Is Overbroad and Facially Unconstitutional (p 18)
  10. Federal Prosecutors Directed to Stop Obtaining Compassionate Release Waivers From Defendants During Plea Agreements and to Not Enforce Previously Obtained Waivers (p 18)
  11. Cop Training Other Cops to Use Facial Recognition to ID Individuals During Traffic Stops (p 20)
  12. Seventh Circuit: District Court’s Failure to Exercise Discretion After Erroneously Finding Defendant Ineligible for Relief Under First Step Act Was Abuse of Discretion (p 20)
  13. Seventh Circuit Vacates Sentence Where District Court’s Rationale for Defendant’s Offense Level Unclear (p 22)
  14. Supreme Court of Iowa: Sentence Vacated Because Prosecution Failed to Follow Spirit of Plea Agreement Requiring Recommendation of Suspended Sentence (p 22)
  15. California Court of Appeal: Trial Court Violated Humphrey by Setting High Bail Without Considering Financial Condition of Defendant or Nonfinancial Conditions of Release (p 24)
  16. U.S. Treasury Bypasses Fourth Amendment by Buying Location Data for Law Enforcement Purposes (p 24)
  17. Texas Court of Criminal Appeals Announces Coty’s ‘Inference-of-Falsity’ Framework Extended to Apply to Police Officers With Established History of Falsifying Evidence in Drug Cases (p 26)
  18. The Feds Are Monitoring Messaging Apps, and Some Are Shockingly Unsecure (p 27)
  19. Cops in Virginia Beach Used Fake DNA Reports During Interrogations (p 28)
  20. Tenth Circuit Vacates Special Conditions of Supervised Release Where District Court Failed to Make Appropriate Findings and Provide Adequate Explanation (p 30)
  21. Fourth Circuit: Good Cause Not Required to Withdraw Consent to Magistrate Judge’s Jurisdiction Prior to Other Parties Consenting (p 31)
  22. Kentucky Supreme Court: Traffic Stop Impermissibly Extended Where Officer Stopped Writing Citation to Aid Drug-Detection Dog’s Sniff of Vehicle’s Exterior (p 32)
  23. New Jersey Supreme Court: Youth May Be Considered as a Mitigating Factor but Not Aggravating Factor in Sentencing (p 33)
  24. Texas Court of Criminal Appeals Announces Overruled Motion for New Trial May Be Amended With Court’s Leave Within 30-Day Period After Sentenced Imposed (p 34)
  25. Tenth Circuit Announces District Court Abused Discretion by Imposing Harsher Sentence Based on Defendant’s Decision to Plead Guilty Without Plea Agreement (p 35)
  26. Expert Forensic Testimony Flawed by Implicit Racial Bias (p 36)
  27. Oregon Becomes 38th State to Enact Wrongful Conviction Compensation Law (p 38)
  28. Federal Officers Can Violate Civil Rights With Near Impunity - Supreme Court’s Refusal to Consider New Bivens Contexts Provides Protection to Those Who Abuse Their Authority (p 40)
  29. Organization Created Platform to Log Police Misconduct in North Carolina (p 40)
  30. A Union Scandal Landed Hundreds of NYPD Officers on a Secret Watchlist. That Hasn’t Stopped Some From Jeopardizing Cases. (p 42)
  31. Police Outsourcing Reduces Transparency (p 44)
  32. COVID-19 Measures Do Not Interfere with Jurors’ Ability to Distinguish Between Truth and Lies (p 45)
  33. The Right to be Forgotten (p 45)
  34. Oregon Bans Pre-Conviction Mugshot Public Disclosure (p 46)
  35. Racially Disparate Sentencing Patterns Prevalent Amongst Federal Judges (p 46)
  36. What Happened When Oakland Tried to Make Police Pay For Misconduct Decades Ago (p 48)
  37. Council of State Governments Initiates Efforts to Reduce Barriers to Employment for the Formerly Incarcerated (p 50)
  38. News in Brief (p 50)

Blue Lies Matter

We need to reckon with police lies not only as a form of individual misconduct but as a matter of political speech.

by Nia T. Evans, Boston Review

Last October a horrifying story saturated local news in Philadelphia. A woman had been sexually assaulted on a train while surrounded by other passengers, and according to police, the onlookers saw the attack but did nothing to stop it. Speaking to the press, both police and officials from SEPTA, the regional rail authority, denounced the passengers for refusing to help the woman and instead recording the attack. “It speaks to where we are in society,” the local police superintendent lamented. “I mean, who would allow something like that to take place?”

But less than a week later, the story changed.

The local district attorney, Jack Stollsteimer, found that the police version of events was “simply not true” and pointed to a more complicated story: passengers moving on and off the train without clear awareness of the assault happening in their midst. Investigators confirmed that at least one person took a video of the attack, but they did so in order to document the incident as evidence for law enforcement.

Facing growing public outcry, the prosecutor and local police ...

Missouri Supreme Court: Witness’ Two-Way Live Video Feed Testimony Violates Confrontation Clause

 by Jacob Barrett

In a case of first impression in Missouri, the Supreme Court of Missouri held a circuit court violated Rodney A. Smith’s constitutional right to confrontation under both the U.S. Constitution and Missouri Constitution by permitting two-way live video feed testimony at trial of an adult, non-victim ...

Federal Habeas Corpus: Jurisdictional Pitfalls When Seeking Habeas Relief

by Dale Chappell

Jurisdiction has many meanings, but in federal habeas corpus, it refers to the federal court’s authority to grant relief. While there’s all sort of “shalls” and “musts” in the federal habeas statutes, not all of them are jurisdictional bars to relief. In fact, most of these ...

New Jersey Supreme Court: Description of Race and Gender of Robbery Suspects, Without More, Doesn’t Constitute Reasonable Suspicion for Investigatory Traffic Stop of Black Motorists

by Mark Wilson

THE NEW JERSEY SUPREME COURT unanimously held that police lacked reasonable and articulable suspicion to stop a vehicle occupied by three Black men based solely on a radio dispatch that two Black males had just robbed a convenience store in the area and one was armed with ...

Commentary: Attacking the Guilty Plea—Court Cautions More Time Possible in Child Porn Case if Post-Conviction Motion Successful

by Dale Chappell

I’M ALWAYS ASKED WHETHER THE COURT can impose a harsher sentence if someone is successful in vacating their conviction or sentence under 28 U.S.C. § 2255. My answer is always the same: It depends, but it can happen.

Usually, a § 2255 motion attacking a guilty plea ...

SCOTUS: No Procedural-Default Exceptions to Excuse Federal Habeas Evidentiary Hearing Bar

by Dale Chappell

In yet another case further limiting the federal habeas corpus remedy, the Supreme Court of the United States (“SCOTUS”) held on May 23, 2022, that post-conviction counsel’s failure to develop a meritorious claim in state court does not excuse the bar to an evidentiary hearing in the ...

Ohio Supreme Court: Constitutionality of Indeterminate Sentence Under Reagan Tokes Law May Be Challenged on Direct Appeal

by David M. Reutter

The Supreme Court of Ohio held that the constitutionality of an indeterminate sentence imposed under the Reagan Tokes Law, R.C. 2967.271, ripens at sentencing and that the law may be challenged on direct appeal. 

Eddie Maddox entered guilty pleas on September 30, 2019, to two counts ...

Idaho Supreme Court: Telephonic Testimony Violated Defendant’s Sixth Amendment Right to Confrontation

by David M. Reutter

The Supreme Court of Idaho held that an expert’s telephonic testimony violated a defendant’s Sixth Amendment right to confrontation. The Court found the error was not harmless and remanded for further proceedings.

Tyler Clapp was stopped on July 6, 2018, after being observed “spinning cookies” in ...

Ninth Circuit Holds Statute Criminalizing Encouraging or Inducing Alien to Reside in U.S. Is Overbroad and Facially Unconstitutional

by Mark Wilson

THE U.S. COURT OF APPEALS FOR THE Ninth Circuit held that a federal law, 8 U.S.C. § 1324(a)(1)(A)(iv), that criminalizes encouraging or inducing an alien to reside in the U.S. for private financial gain of such person is facially overbroad and unconstitutional because it covers a substantial ...

Federal Prosecutors Directed to Stop Obtaining Compassionate Release Waivers From Defendants During Plea Agreements and to Not Enforce Previously Obtained Waivers

by Harold Hempstead

On March 11, 2022, the Deputy Attorney General of the U.S. Department of Justice (“DOJ”) issued a Memorandum directing federal prosecutors to stop the practice of requiring defendants, as part of their plea agreement, to waive their rights to pursue compassionate release under 18 U.S.C. § 3582 ...

Cop Training Other Cops to Use Facial Recognition to ID Individuals During Traffic Stops

by Anthony W. Accurso

Maryland Detective Nick Jerman was featured in a July 2021 episode of the Street Cop Podcast in which he teaches officers to use subterfuge and publicly available facial recognition tools to identify people during traffic stops.

The Street Cop Podcast, hosted by its founder Dennis Benigno, ...

Seventh Circuit: District Court’s Failure to Exercise Discretion After Erroneously Finding Defendant Ineligible for Relief Under First Step Act Was Abuse of Discretion

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit ruled that the U.S. District Court for the Northern District of Illinois abused its discretion when it failed to exercise its discretion after erroneously determining Montrell McSwain was ineligible for relief under § 404(b) of the First Step ...

Seventh Circuit Vacates Sentence Where District Court’s Rationale for Defendant’s Offense Level Unclear

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit vacated Darrell Loving’s sentence because the reasons given by the U.S. District Court for the District of Indiana for arriving at an offense level of 24 were unclear.

Loving pleaded guilty to possessing cocaine and heroin with intent ...

Supreme Court of Iowa: Sentence Vacated Because Prosecution Failed to Follow Spirit of Plea Agreement Requiring Recommendation of Suspended Sentence

by David M. Reutter

The Supreme Court of Iowa vacated a defendant’s sentence after finding the prosecution failed to honor the spirit of a plea agreement requiring that it recommend a suspended sentence.

Shane Michael Davis pleaded guilty on November 25, 2019, after reaching a plea agreement with the prosecutor. ...

California Court of Appeal: Trial Court Violated Humphrey by Setting High Bail Without Considering Financial Condition of Defendant or Nonfinancial Conditions of Release

by Matt Clarke

The Court of Appeal of California, Second Appellate District, held the trial court erred by setting bail at an amount it knew the defendant was unable to post and failing to consider nonfinancial conditions of release for the purpose of pretrial detention in violation of In re ...

U.S. Treasury Bypasses Fourth Amendment by Buying Location Data for Law Enforcement Purposes

by Anthony W. Accurso

Recent FOIA disclosures revealed two contracts for law enforcement agencies under the U.S. Treasury—the IRS and Office of Foreign Assets Control (“OFAC”)—which will allow the agencies to obtain location data about persons being investigated, an action that circumvents legal requirements.

Under the U.S. Supreme Court’s ruling ...

Texas Court of Criminal Appeals Announces Coty’s ‘Inference-of-Falsity’ Framework Extended to Apply to Police Officers With Established History of Falsifying Evidence in Drug Cases

by Richard Resch

The Court of Criminal Appeals of Texas announced that the inference-of-falsity framework set forth in Ex parte Coty,418 S.W.3d 597 (Tex. Crim. App. 2014), applicable to state-actor lab technicians and forensic scientists, also applies to cases involving police officers with a proven history of falsifying evidence ...

The Feds Are Monitoring Messaging Apps, and Some Are Shockingly Unsecure

by Anthony W. Accurso

On January 7, 2021, the FBI published a document entitled “Lawful Access,” detailing what information is available from various online messaging platforms and providing guidance to various law enforcement agencies on how such data can be obtained through procedures already authorized for investigative purposes.

The document ...

Cops in Virginia Beach Used Fake DNA Reports During Interrogations

by Douglas Ankney

Apparently, cops in Virginia Beach are not troubled by a lack of DNA evidence when investigating crimes. Their remedy is to simply create fake certificates of analysis (“COA”) purported to be from the Virginia Department of Forensic Science (“DFS”). In an investigation begun by outgoing Democratic Attorney ...

Tenth Circuit Vacates Special Conditions of Supervised Release Where District Court Failed to Make Appropriate Findings and Provide Adequate Explanation

by Douglas Ankney

The U.S. Court of Appeals for the Tenth Circuit vacated the U.S. District Court for the District of Wyoming’s imposition of a “Sexual Materials Prohibition” and a “Mental Health Condition” upon Monty Englehart’s supervised release because the district court failed to make appropriate findings and provide adequate ...

Fourth Circuit: Good Cause Not Required to Withdraw Consent to Magistrate Judge’s Jurisdiction Prior to Other Parties Consenting

by Harold Hempstead

The U.S. Court of Appeals for the Fourth Circuit held that a party who consents to the jurisdiction of a magistrate judge and then requests to withdraw that consent prior to the other party consenting is not required to show good cause.

Malcom Muhammad sued multiple prison ...

Kentucky Supreme Court: Traffic Stop Impermissibly Extended Where Officer Stopped Writing Citation to Aid Drug-Detection Dog’s Sniff of Vehicle’s Exterior

by Anthony W. Accurso

The Supreme Court of Kentucky held that a police officer impermissibly extended a traffic stop when he suspended the completion of writing a traffic citation to assist other officers conducting a vehicle sniff using a drug-detection dog.

Just before midnight on April 21, 2017, Officer Ryan ...

New Jersey Supreme Court: Youth May Be Considered as a Mitigating Factor but Not Aggravating Factor in Sentencing

by David M. Reutter

The Supreme Court of New Jersey held that a defendant’s youth may be considered only as a mitigating factor in sentencing and cannot support an aggravating factor as to whether the defendant would commit another offense under N.J.S.A § 2C:44-1(a)(3).

That holding was issued in an ...

Texas Court of Criminal Appeals Announces Overruled Motion for New Trial May Be Amended With Court’s Leave Within 30-Day Period After Sentenced Imposed

by Matt Clarke

The Court of Appeals of Texas held that a motion for a new trial that has been overruled by the trial court may be amended with leave of the court within the 30-day period provided for in Rule 21.4(b) of the Texas Rules of Appellate Procedure for ...

Tenth Circuit Announces District Court Abused Discretion by Imposing Harsher Sentence Based on Defendant’s Decision to Plead Guilty Without Plea Agreement

by David M. Reutter

In a case of first impression in any circuit, the U.S. Court of Appeals for the Tenth Circuit held that under 18 U.S.C. § 3553(a), it was procedurally unreasonable for the U.S. District Court for the District of Kansas to impose a harsher sentence upon a ...

Expert Forensic Testimony Flawed by Implicit Racial Bias

by Casey J. Bastian

The unnecessary deaths of George Floyd and Breonna Taylor are examples of incidents that have raised public awareness and hastened conversations about racial bias in the criminal justice system. Reforms in policing have received the lion’s share of people’s attention. However, the possibility of racial bias ...

Oregon Becomes 38th State to Enact Wrongful Conviction Compensation Law

by Mark Wilson

On March 4, 2022, Oregon lawmakersunanimouslypassedSenateBill1584, commonlyknownastheOregonJusticeforExonereesAct,joining37otherstates,Washington D.C.,andthefederalgovernmentinenactingwrongfulconvictioncompensationlegislation.

A total of 35 Democratic and Republican lawmakers ultimately supported the bill that mirrors statutes recently enacted in Idaho, Montana, and Kansas. Under the law, a person may file a claim for wrongful conviction compensation if the person: (1) ...

Federal Officers Can Violate Civil Rights With Near Impunity - Supreme Court’s Refusal to Consider New Bivens Contexts Provides Protection to Those Who Abuse Their Authority

by Casey J. Bastian

The civil rights we all inherently possess, and that are ostensibly still protected by the U.S. Constitution, would be rendered meaningless if no redress were available for having been violated. The ability to vindicate these rights in a court of law should itself be a fundamental ...

Organization Created Platform to Log Police Misconduct in North Carolina

by Ashleigh N. Dye

Emancipate NC, a non-profit criminal justice organization based in Durham, North Carolina, has formed a database with the goal of tracking police misconduct within the state. The organization was founded to pushed for the accountability of law enforcement and police reform.

On March 8, 2021, a ...

A Union Scandal Landed Hundreds of NYPD Officers on a Secret Watchlist. That Hasn’t Stopped Some From Jeopardizing Cases.

After prosecutors flagged hundreds of cops caught fixing tickets for friends and family a decade ago, the officers’ work was supposed to get an extra level of scrutiny. Some cases fell apart anyway.

by Jake Pearson, ProPublica

One judge said she believed the testimony of a Bronx defendant’s 64-year-old mother more ...

Police Outsourcing Reduces Transparency

by Anthony W. Accurso

Transparency and accountability in law enforcement make for better relationships between police and the communities they serve, but a growing reliance on tech provided to police by private companies is reducing transparency.

An October 2021 report in the journal Science highlighted this trend of outsourcing police ...

COVID-19 Measures Do Not Interfere with Jurors’ Ability to Distinguish Between Truth and Lies

by Casey J. Bastian

As a result of the global COVID-19 pandemic, health and safety preventative measures have impacted nearly every area of our society. Experts were concerned about what impact, if any, do measures such as mask mandates and virtual courtrooms have on the criminal justice system. After reviewing ...

The Right to be Forgotten

by David M. Reutter

Success in having a court record expunged may shroud it from public records disclosure, but where one lives determines if there is a right to be forgotten. Some states have automatic expungement laws, but the right to be forgotten by the media is another matter entirely. ...

Oregon Bans Pre-Conviction Mugshot Public Disclosure

by Mark Wilson

Oregon’s new law restricting the publication of booking photos without a criminal conviction went into effect on January 1, 2022.  

During the 2021 legislative session, Oregon lawmakers passed House Bill 3273 prohibiting public disclosure of booking photos, commonly known as mugshots, except in a few limited circumstances, ...

Racially Disparate Sentencing Patterns Prevalent Amongst Federal Judges

by Casey J. Bastian

The existence of racial disparity in federal sentencing practices is a common, well-researched issue. The greatest proportion of studies focus on the aggregate disparity between the imposed sentence length of Black versus white defendants. Research has also been conducted on the total disparate sentences Hispanic defendants ...

What Happened When Oakland Tried to Make Police Pay For Misconduct Decades Ago

In the ’90s, the city passed a policy requiring the police department to pay some of their own legal costs. There’s no evidence that the department ever paid up.

by Akintunde Ahmad, The Appeal

On Dec. 3, 1993, Rashidah Grinage’s family of six was reduced to four. Her 21-year-old son, ...

Council of State Governments Initiates Efforts to Reduce Barriers to Employment for the Formerly Incarcerated

by Douglas Ankney

The Council of State Governments Justice Center (“CSGJC”) initiated efforts to reduce employment barriers for people with criminal histories. Recognizing that nearly 25% of all jobs in the U.S. require some type of government-issued license, 10 state legislatures adopted laws that expand licensing opportunities for people with ...

News in Brief

News in Brief

Britain: A court hearing at London’s highest legal body is scheduled for late June 2022, The Guardian reported. It will concern a lawsuit brought against the City of London police for allegedly wrongfully tasering a Black man on April 7, 2018. Case was brought by Edwin Afriyie, ...

 

 

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