Skip navigation
CLN bookstore

Criminal Legal News: September, 2022

Issue PDF
Volume 5, Number 9

In this issue:

  1. Indirect DNA Transfer Can Result in Miscarriages of Justice (p 1)
  2. Manhattan DA Launches Conviction Review Unit (p 9)
  3. New Jersey Supreme Court Announces Framework for Determining Constitutionality of Warrantless Protective Sweep of Home Where Arrest Is Made Outside the Home (p 10)
  4. SCOTUS Holds AEDPA’s Restrictions on Habeas Relief Trump Federal Courts’ Authority Under All Writs Act (p 13)
  5. FBI Gets New Mass Surveillance Tool (p 14)
  6. Federal Habeas Corpus: Taking an Appeal After the Denial of Habeas Relief (p 16)
  7. First Circuit Announces ‘Knowingly’ Violating § 922(g)(9) Requires Proof Defendant Knew He Belonged to Category of Persons Prohibited from Possessing Firearms, Mere Knowledge of ‘Features’ of Prior Offense Insufficient (p 18)
  8. How Many Federal Crimes Are There? (p 20)
  9. Vaccine Passports Raise Privacy Issues and Create a Class of Undesirables (p 22)
  10. First Circuit: Procedurally Unreasonable for District Court to Base Upward Variance on Defendant’s Prior Arrests (p 25)
  11. SCOTUS Holds Attempted Hobbs Act Robbery Not a ‘Crime of Violence’ Under a § 924(c)(3)(A) (p 26)
  12. Outdated Wiretap Law Gives Feds Easy Access to Metadata (p 27)
  13. Law Enforcement Refuse to Admit Most Forensic Science Is Junk Science (p 28)
  14. California Court of Appeal: Exclusion of Expert Witness at SVP Trial as Remedy for Discovery Violation Constitutes Denial of Constitutional Due Process (p 30)
  15. California Court of Appeal: Assembly Bill 124 Applies Retroactively and Includes Psychological Trauma Based Upon Mental Illness as Mitigating Factor Under § 1170(b)(6) (p 31)
  16. FBI Forces Suspect to Unlock Messaging App Using FaceID (p 32)
  17. Sixth Circuit Announces Full, Unconditional Pardon, Regardless of Issue of Innocence, Meets Heck Requirement of Invalidated Conviction; § 1983 Claims May Be Pursued (p 32)
  18. Colorado Supreme Court Announces Courts Not Required to Address All 11 Brown Factors in Ruling on Defendant’s Motion for Continuance to Change Counsel (p 34)
  19. California Court of Appeal: New Law Requiring Bifurcated Trial on Gang Enhancements Applies Retroactively (p 35)
  20. New Jersey Supreme Court Announces ‘Non-Transparent’ for Purposes of Tinted Window Violation Justifying Traffic Stop Means Front Windows Dark Enough That Police Can’t Clearly See People or Items Inside Vehicle (p 36)
  21. SCOTUS Announces Judge’s Error of Law Constitutes ‘Mistake’ for Purposes of Reopening a Case Under Federal Rule of Civil Procedure 60(b)(1) (p 37)
  22. Sixth Circuit: Government Cannot Withdraw Consent to Lesser Included Charge After Defendant Pleaded Guilty but Court Reject Plea Agreement (p 38)
  23. New Jersey Supreme Court: Defendant Did Not Voluntarily Waive Privilege Against Self-Incrimination Because Police Persistently Contradicted and Undermined Significance of Miranda During Interrogation (p 39)
  24. Connecticut Supreme Court Announces Trial Courts, Prospectively, Must Canvass Defendants Who Seek to Waive Right to Testify to Ensure Waiver Is Made Knowingly, Intelligently, and Voluntarily (p 40)
  25. Missouri Supreme Court: Defendant Entitled to ‘Castle Doctrine’ Jury Instruction Even Though Assailant Not Unlawfully in Vehicle at Very Moment of Use of Deadly Force (p 42)
  26. Minnesota Supreme Court Announces Expanding Scope of Traffic Stop to Investigate Occupant’s Pretrial Release Conditions Violates Minnesota Constitution (p 44)
  27. Sixth Circuit Reverses Denial of First Step Act Relief Because Sentence Imposed Is Substantively Unreasonable (p 45)
  28. Speed Trap Gold Mine (p 46)
  29. San Francisco DA’s Inaugural Innocence Commission Frees Its First Victim of Wrongful Conviction (p 47)
  30. Inextricably Intertwined: The Practice of Negotiated Pleas and the Rise of Mass Incarceration in America (p 48)
  31. $670,000 Awarded to Use Virtual Reality to Evaluate Eyewitness Accuracy (p 50)
  32. News in Brief (p 50)
  33. Use of Death Penalty Continues to Decline in the U.S. (p 50)

Indirect DNA Transfer Can Result in Miscarriages of Justice

DNA Evidence Is Not as Infallible in Identifying Perpetrator as Most Believe

by David M. Reutter

Deoxyribonucleic acid (“DNA”) is regarded as the “gold standard” of forensic evidence. It is considered to be virtually indisputable evidence by juries and even judges when presented to identify an individual as having contact ...

Manhattan DA Launches Conviction Review Unit

by Jayson Hawkins

On April 20, 2022, Manhattan District Attorney Alvin Bragg announced the formation of a Post-Conviction Justice Unit (“PCJU”) to review questionable convictions in Manhattan. The announcement included not only the parameters for filing a petition for review but also a clear statement of intention by the Manhattan ...

New Jersey Supreme Court Announces Framework for Determining Constitutionality of Warrantless Protective Sweep of Home Where Arrest Is Made Outside the Home

by Douglas Ankney

In consolidated cases presenting an issue of first impression, the Supreme Court of New Jersey announced the framework for determining the lawfulness of a warrantless protective sweep of a home where the arrest is made outside of the home.

In the first case, a superior court issued ...

SCOTUS Holds AEDPA’s Restrictions on Habeas Relief Trump Federal Courts’ Authority Under All Writs Act

by Dale Chappell

The Supreme Court of the United States (“SCOTUS” or “Court”) held that a federal court’s  transportation order permitting a prisoner to seek out new evidence pursuant to the All Writs Act, 28 U.S.C. § 1651, which authorizes federal courts to “issue all writs necessary or appropriate in ...

FBI Gets New Mass Surveillance Tool

by Jayson Hawkins

According to reports in several media outlets, including the Washington Post, the FBI contracted in March 2022 with tech company Babel Street for 5,000 licenses to use Babel X software for searches of broad swaths of social media. The contract, reportedly worth $27 million dollars, could ...

Federal Habeas Corpus: Taking an Appeal After the Denial of Habeas Relief

by Dale Chappell

Federal law says that you have the “right” to appeal the denial of federal habeas corpus relief, but there’s a catch—only if the court says that you can. Congress limited the ability to appeal the denial of habeas relief under the Antiterrorism and Effective Death Penalty Act ...

First Circuit Announces ‘Knowingly’ Violating § 922(g)(9) Requires Proof Defendant Knew He Belonged to Category of Persons Prohibited from Possessing Firearms, Mere Knowledge of ‘Features’ of Prior Offense Insufficient

by Richard Resch

The U.S. Court of Appeals for the First Circuit held that the U.S. District Court for the District of Maine erred by instructing the jury that it could convict Willie Richard Minor of knowingly violating 18 U.S.C. § 922(g)(9) without finding that he knew that his prior ...

How Many Federal Crimes Are There?

Nobody Knows for Sure

by Casey J. Bastian

If you were asked to identify the exact number of acts that are considered a federal “crime” in the U.S., could you do it? The answer is almost certainly no. No one, not even the federal government itself, knows the answer. Shockingly, ...

Vaccine Passports Raise Privacy Issues and Create a Class of Undesirables

by David M. Reutter

The COVID-19 pandemic greatly impacted the liberty of citizens worldwide when it was at its zenith in 2020. It continues to have ramifications, and its next assault may be upon your right to privacy if vaccine passports become the norm.

The initial government response to the ...

First Circuit: Procedurally Unreasonable for District Court to Base Upward Variance on Defendant’s Prior Arrests

by Douglas Ankney

The U.S. Court of Appeals for the First Circuit vacated, on the basis of procedural reasonableness, the U.S. District Court for the District of Puerto Rico’s sentence imposed upon Jean C. Torres-Melendez because the District Court’s upward variance from the calculated advisory Guidelines range was based on ...

SCOTUS Holds Attempted Hobbs Act Robbery Not a ‘Crime of Violence’ Under a § 924(c)(3)(A)

by Dale Chappell

In resolving a split among U.S. Courts of Appeals, the Supreme Court of the United States (“SCOTUS”) held on June 21, 2022, that an attempted Hobbs Act robbery is not categorically a crime of violence to support a separate conviction for use of a firearm under federal ...

Outdated Wiretap Law Gives Feds Easy Access to Metadata

by Anthony W. Accurso

A just-unsealed government wiretap application from November 2021 shows that DEA agents in Ohio applied to force WhatsApp to provide metadata on seven users, and all the agency had to say was that “the information likely to be obtained is relevant to an ongoing criminal investigation ...

Law Enforcement Refuse to Admit Most Forensic Science Is Junk Science

by Casey J. Bastian

In modern America, the idea of forensic “science” being infallible has nearly made it a form of religion to many. And our justice systems perpetuate the idea that “expert” witnesses use forensic “science” to “prove” a prosecutor’s criminal allegations. Law enforcement at all levels, including the ...

California Court of Appeal: Exclusion of Expert Witness at SVP Trial as Remedy for Discovery Violation Constitutes Denial of Constitutional Due Process

by David M. Reutter

The Court of Appeal of California, Fourth Appellate District, concluded that a trial court erred by excluding the defense’s only expert witness from testify in a civil commitment proceeding under the Sexually Violent Predator (“SVP”) Act, Welfare and Institutions Code § 6600, et seq., thereby denying ...

California Court of Appeal: Assembly Bill 124 Applies Retroactively and Includes Psychological Trauma Based Upon Mental Illness as Mitigating Factor Under § 1170(b)(6)

by Harold Hempstead

On April 8, 2022, the Court of Appeal of California, Fifth Appellate District, held that Assembly Bill No. 124 (2021-2022. Reg. Sess.) (Stats. 2021, ch. 695, §§ 5-6) (“AB-124”) applies retroactively to all judgments that were not yet final on the date that the law was passed, ...

FBI Forces Suspect to Unlock Messaging App Using FaceID

by Anthony W. Accurso

In the first known public instance of such a warrant, a US District Court approved a warrant allowing the FBI to use a suspect’s face to unlock his secure messaging app in order to find evidence of a crime in his chat history.

The FBI was ...

Sixth Circuit Announces Full, Unconditional Pardon, Regardless of Issue of Innocence, Meets Heck Requirement of Invalidated Conviction; § 1983 Claims May Be Pursued

by Harold Hempstead

The U.S. Court of Appeals for the Sixth Circuit held that Heck v. Humphrey, 512 U.S. 477 (1994), does not bar a plaintiff who received a full, unconditional pardon from filing a § 1983 claim raising constitutional violations relating to their criminal conviction.

In 2008, Johnetta ...

Colorado Supreme Court Announces Courts Not Required to Address All 11 Brown Factors in Ruling on Defendant’s Motion for Continuance to Change Counsel

by Harold Hempstead

In addressing an issue of first impression, the Supreme Court of Colorado en banc clarified its decision in People v. Brown, 322, P.3d 214 (Colo. 2014), by instructing that trial courts are not required to make explicit findings with respect to each and every one of ...

California Court of Appeal: New Law Requiring Bifurcated Trial on Gang Enhancements Applies Retroactively

by David M. Reutter

The Court of Appeal of California, Sixth Appellate District, held that Assembly Bill No. 333, which changed the law on gang-related offenses, applies retroactively. The Court’s opinion reversed the judgments of convictions and remanded for new trials where the issue of guilt is bifurcated from the ...

New Jersey Supreme Court Announces ‘Non-Transparent’ for Purposes of Tinted Window Violation Justifying Traffic Stop Means Front Windows Dark Enough That Police Can’t Clearly See People or Items Inside Vehicle

by Anthony W. Accurso

The Supreme Court of New Jersey ruled that police lacked reasonable suspicion of a window tint violation justifying a traffic stop in which a loaded handgun was recovered where police could see through the tinted rear windshield sufficiently to determine there was a single occupant attempting ...

SCOTUS Announces Judge’s Error of Law Constitutes ‘Mistake’ for Purposes of Reopening a Case Under Federal Rule of Civil Procedure 60(b)(1)

by Dale Chappell

In a ruling that will likely change how petitioners in federal habeas corpus cases challenge “mistakes” in their cases, the Supreme Court of the United States (“SCOTUS”) held that the term “mistake” in Rule 60(b)(1) includes judicial errors of law and that motions cognizable under that Rule ...

Sixth Circuit: Government Cannot Withdraw Consent to Lesser Included Charge After Defendant Pleaded Guilty but Court Reject Plea Agreement

by David M. Reutter

The U.S. Court of Appeals for the Sixth Circuit ruled that a plea agreement, as written, does not provide the basis for the Government to withdraw consent to a lesser included, but not indicted, offense where the U.S. District Court for the Western District of Kentucky ...

New Jersey Supreme Court: Defendant Did Not Voluntarily Waive Privilege Against Self-Incrimination Because Police Persistently Contradicted and Undermined Significance of Miranda During Interrogation

by Richard Resch

The Supreme Court of New Jersey held that because detectives repeatedly contradicted and undermined the importance of the defendant’s Miranda rights prior to and during interrogation, the State failed to prove that the defendant voluntarily waived his Miranda rights and thus suppressed his statement.

A Bergen County ...

Connecticut Supreme Court Announces Trial Courts, Prospectively, Must Canvass Defendants Who Seek to Waive Right to Testify to Ensure Waiver Is Made Knowingly, Intelligently, and Voluntarily

by Anthony W. Accurso

In an opinion issued on May 10, 2022, the Supreme Court of Connecticut ruled that defense counsel’s waiver of the defendant’s right to testify on the record in the defendant’s presence while the defendant remained silent constitutes a valid waiver of the defendant’s right to testify ...

Missouri Supreme Court: Defendant Entitled to ‘Castle Doctrine’ Jury Instruction Even Though Assailant Not Unlawfully in Vehicle at Very Moment of Use of Deadly Force

by Harold Hempstead

The Supreme Court of Missouri en bancheld that “substantial evidence existed to support a castle doctrine instruction” and that Andrea S. Straughter was prejudiced by the Circuit Court’s failure to give said jury instruction.

On May 17, 2018, Straughter drove her acquaintance, Nicholas Ward, to the home ...

Minnesota Supreme Court Announces Expanding Scope of Traffic Stop to Investigate Occupant’s Pretrial Release Conditions Violates Minnesota Constitution

by Douglas Ankney

In a case of first impressions, the Supreme Court of Minnesota held that violation of a condition of pretrial release doesn’t constitute criminal activity, so police questioning of a passenger regarding his conditions of pretrial release during a traffic stop exceeds the permissible scope of the traffic ...

Sixth Circuit Reverses Denial of First Step Act Relief Because Sentence Imposed Is Substantively Unreasonable

by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit reversed the U.S. District Court for the Eastern District of Tennessee’s denial of Michael B. Johnson, II’s motion seeking a sentence reduction under § 404 of the First Step Act of 2018 (“FSA”) because the sentence imposed upon ...

Speed Trap Gold Mine

by Jayson Hawkins

All the attention garnered by cops murdering unarmed Black men in America in recent years has led to widespread calls for “police reform,” a rather ambiguous term advocating changes in how police interact with communities of color and new policies to counteract decades of mass incarceration. Lost ...

San Francisco DA’s Inaugural Innocence Commission Frees Its First Victim of Wrongful Conviction

by Keith Sanders

In April 2022, Joaquin Ciria was exonerated after being wrongfully convicted of killing Felix Bastarrica in 1991. The 61-year-old Ciria, who maintained his innocence from the beginning, became the first person exonerated by a new Innocence Commission under the aegis of now ex-San Francisco District Attorney, Chesa ...

Inextricably Intertwined: The Practice of Negotiated Pleas and the Rise of Mass Incarceration in America

by Casey J. Bastian

America is the world’s leader in rates of incarceration. This country consists of only 5% of the world’s total population, yet it houses about 25% of the world’s prisoners. As of 2021, there were actively more than 2.1 million people in jails and prisons in the ...

$670,000 Awarded to Use Virtual Reality to Evaluate Eyewitness Accuracy

by Jacob Barrett

The National Science Foundation (“NSF”) awarded University of Arkansas Professor James Lampinen, and a  team of researchers, just under$670,000 to study the relationship between eyewitness confidence and accuracy across a range of variables using virtual reality.

Professor Lampinen and Assistant Professor of Psychology at Oklahoma State University ...

News in Brief

Canada: Techdirt reported that the Royal Canadian Mounted Police (“RCMP”), a division of that country’s federal law enforcement akin to the FBI, used malware to spy on people’s personal communications. The report came after the RCMP admitted to doing so in the summer of 2022. The admission fits into ...

Use of Death Penalty Continues to Decline in the U.S.

by Douglas Ankney

In 2021, 11 people in the U.S. were killed as punishment for their crimes. This was the fewest number of Americans in recent history to be subjected to state-sanctioned killing. And it was the seventh consecutive year that fewer than 30 people were executed in the name ...

 

 

The Habeas Citebook Ineffective Counsel Side
CLN Subscribe Now Ad
Disciplinary Self-Help Litigation Manual - Side