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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. Idaho Supreme Court: Telephonic Testimony Violated Defendant’s Sixth Amendment Right to Confrontation (p 16)
  8. Ohio Supreme Court: Constitutionality of Indeterminate Sentence Under Reagan Tokes Law May Be Challenged on Direct Appeal (p 16)
  9. Federal Prosecutors Directed to Stop Obtaining Compassionate Release Waivers From Defendants During Plea Agreements and to Not Enforce Previously Obtained Waivers (p 18)
  10. Ninth Circuit Holds Statute Criminalizing Encouraging or Inducing Alien to Reside in U.S. Is Overbroad and Facially Unconstitutional (p 18)
  11. 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)
  12. Cop Training Other Cops to Use Facial Recognition to ID Individuals During Traffic Stops (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)

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 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 ...

 

 

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