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Criminal Legal News: January, 2023

Issue PDF
Volume 6, Number 1

In this issue:

  1. False Confession Generator: How Accusatorial Interrogations Undermine the Pursuit of Justice (p 1)
  2. Arizona Supreme Court Announces Jury Unanimity Required Regarding Narcotic Type Under Possession Statute (p 15)
  3. Against the Flow: How the National Registry of Exonerations Is Working to Turn the Tide of Wrongful Convictions Across U.S. (p 16)
  4. Ninth Circuit Announces District Courts May Consider First Step Act’s Non-Retroactive Changes to Sentencing Law When Deciding Motion for Compassionate Release (p 18)
  5. Across the Nation, Cops Use ‘Fog Reveal’ to Track More Than 250 Million Mobile Devices (p 20)
  6. First Circuit Reverses Denial of Habeas Relief Where District Court Found Batson Error but Observed AEDPA, Deferred to State Court’s Finding that No Batson Error Occurred (p 22)
  7. Federal Habeas Corpus: How to Raise an Actual Innocence Claim (p 24)
  8. Second Circuit Announces District Courts Must Provide Habeas Petitioners with Notice and Opportunity To Be Heard Before Dismissing Petition Sua Sponte Based on Stone’s Limitation on Fourth Amendment Claims (p 26)
  9. Massachusetts Supreme Judicial Court: Criminal Record Alone Does Not Justify Patfrisk, Gun Discovered in Waistband Suppressed (p 27)
  10. Third Circuit: Defendant Entitled to Reasonable Opportunity to File Sentencing Memo Before Resentencing Under First Step Act (p 28)
  11. Fifth Circuit Denies Absolute Immunity for Prosecutor Who Fabricated Evidence in Murder Conviction and Death Sentence (p 30)
  12. Prosecutors in These States Can Review Sentences They Deem Extreme. Few Do. (p 32)
  13. Fourth Circuit Announces Substantive Reasonableness Review Applies to All Proceedings Under § 404 of First Step Act, Regardless of Whether Motion Is Granted or Denied (p 34)
  14. Sixth Circuit Announces Criminal Forfeiture Under Fed. R. Crim. P. 32.2(b) Is Mandatory Claims-Processing Rule, Reverses $62.5 Million Money Judgments (p 36)
  15. Colorado Supreme Court: Police Officer’s ‘Hunches’ Cannot Establish Probable Cause, Determination Requires Consideration of Facts Weighing in Favor and Against Probable Cause (p 37)
  16. Kentucky Supreme Court Announces Obtaining Real-Time CSLI Data Constitutes a Search Under Fourth Amendment, Addressing Legal Question U.S. Supreme Court Explicitly Left Open in Carpenter (p 38)
  17. New York Court of Appeals Reverses Murder Conviction Where Trial Court’s Evidentiary Rulings Deprived Defendant of ‘Opportunity to Present Complete Defense’ (p 42)
  18. Miami Police Officer Who Broke ‘Blue Code of Silence’ Being Investigated (p 44)
  19. Eighth Circuit: District Court Erred in Denying Government’s Motion to Dismiss Charges as Part of Plea Agreement (p 44)
  20. NIST’s Upgrade to Software Reference Library Makes Data More Accessible to Law Enforcement (p 45)
  21. For $10 Billion, New Yorkers Get a Police Package Deal That Includes Corrupt Career Officers and Almost 1,000 Criminal Cases Tossed (p 45)
  22. Indiana Supreme Court Announces Trial Rule 26(B)(3) Governs Whether Police Reports Are Protected Work Product, Expressly Overruling Keaton (p 46)
  23. Variability in Records Requests Obscures Police Use of Surveillance (p 46)
  24. U.S. Senator to Federal Agency: Investigate Abusive Use of Administrative Subpoena Power to Gather Bulk Financial Records (p 47)
  25. Fog Data Science, Your Hometown Data Broker (p 48)
  26. News in Brief (p 50)
  27. Due Processless Civil Asset Forfeitures in Houston, Texas (p 50)

False Confession Generator: How Accusatorial Interrogations Undermine the Pursuit of Justice

by Anthony W. Accurso

There are many aspects of the criminal justice system in the U.S. that are in desperate need of reform, but one aspect — how we obtain information from potential suspects — is perhaps more troubling than others because it does more than just undermine the pursuit ...

Arizona Supreme Court Announces Jury Unanimity Required Regarding Narcotic Type Under Possession Statute

by Anthony W. Accurso

The Supreme Court of Arizona held that “the identity of an alleged narcotic drug is an element of ARS § 13-3408, and therefore jury unanimity is required.”

Jorge Romero-Millan, Ernesto Hernandez Cabanillas, and Marco Antonio Garcia-Paz are all Mexican nationals who were lawfully residing in the U.S. ...

Against the Flow: How the National Registry of Exonerations Is Working to Turn the Tide of Wrongful Convictions Across U.S.

by Benjamin Tschirhart

“It is better that ten guilty persons escape than that one innocent suffer.”

Known as Blackstone’s ratio, this maxim has been an accepted rule of Western jurisprudence since long before it was uttered in this memorable form by Sir William Blackstone in the 1760s. It explicitly states ...

Ninth Circuit Announces District Courts May Consider First Step Act’s Non-Retroactive Changes to Sentencing Law When Deciding Motion for Compassionate Release

by Douglas Ankney

On an issue upon which the circuits are split, the U.S. Court of Appeals for the Ninth Circuit held that district courts may consider the First Step Act’s (“FSA”) non-retroactive changes to sentencing law, in conjunction with other factors specific to the individual defendant, when deciding whether ...

Across the Nation, Cops Use ‘Fog Reveal’ to Track More Than 250 Million Mobile Devices

by Douglas Ankney

According to a September 2022 report from AP News, law enforcement agencies from suburban Southern California to rural North Carolina are using an obscure cellphone tracking tool known as “Fog Reveal” that enables the cops to follow people’s movements months back in time. As of September 2022, ...

First Circuit Reverses Denial of Habeas Relief Where District Court Found Batson Error but Observed AEDPA, Deferred to State Court’s Finding that No Batson Error Occurred

by Douglas Ankney

The U.S. Court of Appeals for the First Circuit reversed the U.S. District Court for the District of Rhode Island’s denial of habeas relief where the court found reversible error under Batson v. Kentucky, 476 U.S. 79 (1986) (defendant may challenge prosecutor’s peremptory strike of prospective ...

Federal Habeas Corpus: How to Raise an Actual Innocence Claim

by Dale Chappell

Believe it or not, someone proving they’re “actually innocent” of their criminal offense is not enough to win federal habeas corpus relief. That’s because actual innocence, by itself, is not a constitutional violation to allow for federal habeas relief. Instead, it’s only the first step toward relief, ...

Second Circuit Announces District Courts Must Provide Habeas Petitioners with Notice and Opportunity To Be Heard Before Dismissing Petition Sua Sponte Based on Stone’s Limitation on Fourth Amendment Claims

by Douglas Ankney

The U.S. Court of Appeals for the Second Circuit held that district courts must provide habeas petitioners with notice and an opportunity to be heard before dismissing a habeas petition sua sponte (on its own motion) based upon the limitation of Fourth Amendment claims enunciated in Stone ...

Massachusetts Supreme Judicial Court: Criminal Record Alone Does Not Justify Patfrisk, Gun Discovered in Waistband Suppressed

by Jacob Barrett

The Supreme Judicial Court of Massachusetts upheld a Superior Court’s order granting a motion to suppress a firearm that was discovered during an unlawful patfrisk because the motorist’s criminal record together with his behavior during the traffic stop did not create a reasonable suspicion that he was ...

Third Circuit: Defendant Entitled to Reasonable Opportunity to File Sentencing Memo Before Resentencing Under First Step Act

by David M. Reutter

The U.S. Court of Appeals for the Third Circuit held that when a prisoner seeks resentencing under the First Step Act, a district court has discretion to consider arguments concerning intervening changes of law since the original sentencing and other arguments in favor of a downward ...

Fifth Circuit Denies Absolute Immunity for Prosecutor Who Fabricated Evidence in Murder Conviction and Death Sentence

by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit affirmed an order of the U.S. District Court for the Middle District of Louisiana that denied absolute immunity to District Attorney Scott Perrilloux and Livingston Parish Sheriff’s Detective Marlon Foster in a suit alleging they fabricated evidence in ...

Prosecutors in These States Can Review Sentences They Deem Extreme. Few Do.

Five states now allow prosecutors to seek shorter sentences in old cases. Louisiana shows why many DAs haven’t.

by Matt Nadel and Charlie Lee

It had been a long day of mowing brush in the Louisiana heat, so Jeffrey Fornea and his 69-year-old father rested on their back porch in ...

Fourth Circuit Announces Substantive Reasonableness Review Applies to All Proceedings Under § 404 of First Step Act, Regardless of Whether Motion Is Granted or Denied

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit held that substantive reasonableness review applies to all proceedings under § 404 of the First Step Act of 2018 (“FSA”), regardless of whether the motion is granted or denied.

In February 2009, the U.S. District Court for the ...

Sixth Circuit Announces Criminal Forfeiture Under Fed. R. Crim. P. 32.2(b) Is Mandatory Claims-Processing Rule, Reverses $62.5 Million Money Judgments

by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit reversed two money judgments totaling $62.5 million after holding Federal Rule of Criminal Procedure 32.2(b) (“Rule 32.2(b)”) is a mandatory claims-processing rule with which the U.S. District Court for the Eastern District of Kentucky and the Government failed ...

Colorado Supreme Court: Police Officer’s ‘Hunches’ Cannot Establish Probable Cause, Determination Requires Consideration of Facts Weighing in Favor and Against Probable Cause

by Anthony W. Accurso

The Supreme Court of Colorado held that facts used in determining probable cause to conduct a warrantless search must include those that militate against a finding of probable cause.

Colorado State Patrol Trooper Christian Bollen was watching eastbound traffic on I-70 around 8:00 a.m. on the ...

Kentucky Supreme Court Announces Obtaining Real-Time CSLI Data Constitutes a Search Under Fourth Amendment, Addressing Legal Question U.S. Supreme Court Explicitly Left Open in Carpenter

by Anthony W. Accurso

In a case of first impression, the Supreme Court of Kentucky upheld a suppression order, holding that individuals have a reasonable expectation of privacy in their real-time cell-site location information (“CSLI”) and that searches thereof are subject to the Fourth Amendment.

Late one evening, Dovontia Reed ...

New York Court of Appeals Reverses Murder Conviction Where Trial Court’s Evidentiary Rulings Deprived Defendant of ‘Opportunity to Present Complete Defense’

by Douglas Ankney

The Court of Appeals of New York reversed Deshawn Deverow’s murder conviction after concluding the trial court’s evidentiary rulings deprived him of “a meaningful opportunity to present a complete defense.”

At 12:30 a.m. on December 29, 2012, a woman identified as B.M. called 911 to report that ...

Miami Police Officer Who Broke ‘Blue Code of Silence’ Being Investigated

by Casey J. Bastian

Miami Police Department (“MPD”) Chief of Police Manny Morales believes in officer accountability. His statement makes that clear: “If in fact it is determined that it is our officer, he will be held accountable for his actions.” In the statement, Morales described the officer as having ...

Eighth Circuit: District Court Erred in Denying Government’s Motion to Dismiss Charges as Part of Plea Agreement

by David M. Reutter

The U.S. Court of Appeals for the Eighth Circuit held that the U.S. District Court for the District of South Dakota abused its discretion in rejecting the Government’s request to dismiss four charges as part of a plea agreement.

Josue Alaniz was found seriously injured in ...

NIST’s Upgrade to Software Reference Library Makes Data More Accessible to Law Enforcement

by Douglas Ankney

The National Institute of Standards and Technology (“NIST”) upgraded its National Software Reference Library (“NSRL”) to make its data easier for law enforcement agencies to access in searches during criminal investigations.

As of March 2022, the dataset of the NSRL contained more than a billion “hash records.” ...

For $10 Billion, New Yorkers Get a Police Package Deal That Includes Corrupt Career Officers and Almost 1,000 Criminal Cases Tossed

by Douglas Ankney

In August of 2022, a Bronx district attorney dismissed 133 cases linked to disgraced former NYPD Narcotics Detective Joseph Franco. Franco, a 20-year-veteran of the NYPD, was hit with 26 criminal charges in 2019, resulting in the dismissal of 90 cases. As the corruption continued to ooze ...

Indiana Supreme Court Announces Trial Rule 26(B)(3) Governs Whether Police Reports Are Protected Work Product, Expressly Overruling Keaton

by Douglas Ankney

The Supreme Court of Indiana held that trial courts are to follow the two-pronged definition of Trial Rule (“TR”) 26(B)(3) to determine whether a police report is protected from discovery by the work-product doctrine. In so doing, the Court expressly overruled State ex rel. Keaton v. Cir. ...

Variability in Records Requests Obscures Police Use of Surveillance

by Anthony W. Accurso

An effort by the Electronic Frontier Foundation (“EFF”) to track police use of surveillance technologies is butting up against the decentralized nature of our law enforcement networks in that open-records requests to different agencies for the same information result in wildly variable information — if anything ...

U.S. Senator to Federal Agency: Investigate Abusive Use of Administrative Subpoena Power to Gather Bulk Financial Records

by Casey J. Bastian

The U.S. Department of Homeland Security (“DHS”) operates U.S. Immigration and Customs Enforcement (“ICE”). In turn, ICE oversees the subagency Homeland Security Investigations (“HSI”). Since 2019, HSI has used its administrative subpoena powers to request bulk financial records from Western Union and Maxitransfers Corporation (“Maxi”). The ...

Fog Data Science, Your Hometown Data Broker

by Anthony W. Accurso

Criminal Legal News has previously reported on data broker companies — companies that buy and sell data on consumers, most often location data harvested from mobile apps. Fog Data Science is one such company, though one that some believe is quite possibly more dangerous to ...

News in Brief

Arizona: A police officer in Scottsdale was arrested on Nov. 4, 2022, after allegedly causing a car crash while intoxicated. AZFamily reported that officer Michael Lanouar, a police detective, was taken into custody on suspicion that he had been driving a city-leased car while under the influence. He had ...

Due Processless Civil Asset Forfeitures in Houston, Texas

by Ed Lyon

Houston, Harris County, Texas, is the fourth largest city in the nation, as well as the largest city in Texas. Preceding the Blue Wave of female reformist judges elected in 2018 [See: CLN, April 2019, p.38], Democrat Kim Ogg soundly defeated the incumbent Republican by a ...

 

 

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