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Criminal Legal News: October, 2023

Issue PDF
Volume 6, Number 10

In this issue:

  1. Police Misconduct Reform: Forcing Police Officers to Have ‘Skin in the Game’ by Creating Financial Incentives with Insurance Premiums (p 1)
  2. Sixth Circuit: Sentence Procedurally Unreasonable Where District Court Failed to Explain Decision to Impose Consecutive Sentences and Substantively Unreasonable Where Court Improperly Weighed Sentencing Factors (p 14)
  3. Closed Circuit Cameras: Not the Objective Lenses We’re Told (p 16)
  4. Database Containing 450,000 Records of NYPD Misconduct Now Available (p 16)
  5. Ninth Circuit Announces District Courts Have Discretion to Consider Non-­Retroactive Changes in Post-­Sentencing Decisional Law in Assessing ‘Extraordinary and Compelling Reasons’ for Sentence Reduction (p 17)
  6. New Tool Used by Police to Improve Interviewing Skills (p 18)
  7. New York Court of Appeals Suppresses Evidence Because Police Lacked Reasonable Suspicion Necessary for Level 3 Stop and Frisk Under De Bour Framework (p 18)
  8. Kansas Supreme Court: Defendants May File a Motion to Correct Illegal Sentence in Appellate Court While on Direct Review (p 19)
  9. U.S. Sentencing Commission Publishes Compassionate Release Datafile for Fiscal Years 2020-­2022 (p 20)
  10. SCOTUS Announces Pending Investigation or Proceeding Is Not Required for an Offense to be ‘Related to Obstruction of Justice’ and Qualify as ‘Aggravated Felony’ in Removal of Noncitizen (p 22)
  11. We’re All Suspects in a DNA Lineup, Waiting to be Matched with a Crime (p 24)
  12. California Supreme Court Vacates Second Degree Murder Conviction Where Jury Instructed on Now Invalid Felony-­Murder Theory (p 28)
  13. U.S. Supreme Court Announces § 2255(e)’s ‘Saving Clause’ Does Not Enable Prisoners to File § 2241 Petition Based on AEDPA’s Rule Against Second or Successive § 2255 Motions (p 30)
  14. ‘Data for Defenders’: Valuable New Resource for Defense Counsel and Pro Se Litigants (p 31)
  15. Maryland Supreme Court: Firearms Identification Methodology Does Not Provide Reliable Basis for Expert’s Unqualified Opinion That Bullets Recovered at Crime Scene Were Fired From Defendant’s Gun (p 32)
  16. California Court of Appeal: Trial Court Abused Discretion in Failing to Recall Terminally Ill Prisoner’s Sentence Following CDCR’s Recommendation for Compassionate Release (p 34)
  17. American Bar Association’s 2023 Plea Bargain Task Force Report (p 36)
  18. Fourth Circuit Reverses Dismissal of Habeas Petition Where District Court Failed to Review Magistrate’s Report De Novo After Characterizing Petitioner’s Objections as ‘Attempt to Reargue Case’ (p 38)
  19. D.C. Circuit Orders New Trial Due to Brady Violations Involving Source of Information, Not Withholding of Information Itself (p 40)
  20. Texas Court of Criminal Appeals Holds Granting Motion for New Trial Because ‘Verdict Is Contrary to Law and Evidence,’ Without Further Explanation, Bars Retrial (p 41)
  21. Third Circuit Vacates Possession of Cocaine Conviction Due to Insufficient Evidence to Support Weight Element (p 42)
  22. How the Backdoor Loophole Enables the FBI to Search Your Communications Without a Warrant (p 43)
  23. Ninth Circuit Announces No Deference to Application Note 1 to Guideline § 4B1.2(b) Because It Impermissibly Expands Definition of ‘Controlled Substance Offense’ (p 45)
  24. Third Circuit Vacates Denial of First Step Act Relief Because District Court’s Failure to Expressly Identify Which § 841(b) Provision Supported Sentence Precludes Appellate Review (p 46)
  25. Digital Voiceprinting Is Not Ready for Court (p 47)
  26. Oregon Supreme Court Clarifies Mansor Ruling for Search Warrants for Digital Data and Announces Framework for Suppression When Warrant Contains Both Constitutional and Unconstitutional Search Categories (p 48)
  27. News in Brief (p 50)

Police Misconduct Reform: Forcing Police Officers to Have ‘Skin in the Game’ by Creating Financial Incentives with Insurance Premiums

by David M. Reutter

While a conversation on police brutality and misconduct can evolve into a heated debate, one thing no one argues about is whether or not it occurs, for there is general acceptance that it does. Scholars have produced literature that contributes to the conversation of whether financial ...

Sixth Circuit: Sentence Procedurally Unreasonable Where District Court Failed to Explain Decision to Impose Consecutive Sentences and Substantively Unreasonable Where Court Improperly Weighed Sentencing Factors

by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit held that Andrew Damarr Morris’ sentence was procedurally unreasonable because the U.S. District Court for the Western District of Michigan failed to adequately explain its decision to impose consecutive sentences, and the sentence was substantively unreasonable because the ...

Closed Circuit Cameras: Not the Objective Lenses We’re Told

by Benjamin Tschirhart

The camera is the ultimate symbol of faithful and accurate recording in the public consciousness. Photographs and camera footage command overwhelming respect and deference from candid, everyday selfies all the way to court proceedings. “The camera doesn’t lie,” as the saying goes. Or so popular wisdom would ...

Database Containing 450,000 Records of NYPD Misconduct Now Available

by Douglas Ankney

In June 2023, the Legal Aid Society made available to the public a new database with over 450,000 searchable records of New York Police Department (“NYPD”) and Department of Corrections (“DOC”) officers with the goal of shining a light on the actions of the NYPD and the ...

Ninth Circuit Announces District Courts Have Discretion to Consider Non-­Retroactive Changes in Post-­Sentencing Decisional Law in Assessing ‘Extraordinary and Compelling Reasons’ for Sentence Reduction

by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit joined the First, Second, and Fourth Circuits in holding that when deciding motions filed by defendants seeking a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i), U.S. District Courts may consider non-­retroactive changes in post-­sentencing decisional law affecting the applicable ...

New Tool Used by Police to Improve Interviewing Skills

by Jordan Arizmendi

Assistant professor of Psychology  at Northumbria University, Newcastle, Dr. Laura Farrugia, created the Forensic Interview Trace (“FIT”) as a way to record the content, components, and flow of a forensic interview. The app was developed by the International Investigative Interviewing Research Group and is being used by ...

New York Court of Appeals Suppresses Evidence Because Police Lacked Reasonable Suspicion Necessary for Level 3 Stop and Frisk Under De Bour Framework

by Richard Resch

The Court of Appeals of New York ruled that the defendant (1) moving from the driver’s seat to the passenger’s seat, (2) positioning upper torso toward driver’s seat, (3) pulling pants up upon exiting vehicle, and (4) appearing nervous when questioned by police were insufficient to establish ...

Kansas Supreme Court: Defendants May File a Motion to Correct Illegal Sentence in Appellate Court While on Direct Review

by Douglas Ankney

The Supreme Court of Kansas held that Kansas law permits a defendant to file a motion to correct an illegal sentence in appellate court on direct appeal; the legal standard for remand on the motion is K.S.A. 2022 Supp. 21-­6814(d); and the 2022 amendment to K.S.A. 6814 ...

U.S. Sentencing Commission Publishes Compassionate Release Datafile for Fiscal Years 2020-­2022

by Casey J. Bastian

In September 2022, the U.S. ­Sentencing Commission (“USSC”) published its Compassionate Release Datafile (“Datafile”). The Datafile reported the statistics concerning motions for compassionate release filed between October 1, 2019, through March 31, 2022. In that 30-­month period, 26,212 filed cases were reported to the USSC. A ...

SCOTUS Announces Pending Investigation or Proceeding Is Not Required for an Offense to be ‘Related to Obstruction of Justice’ and Qualify as ‘Aggravated Felony’ in Removal of Noncitizen

by Douglas Ankney

Resolving a conflict among the U.S. Courts of Appeals, the Supreme Court of the United States (“SCOTUS”) held that a pending investigation or proceeding is not required for an offense to be “relat[ed] to the obstruction of justice” and considered “an aggravated felony” for the purposes of ...

We’re All Suspects in a DNA Lineup, Waiting to be Matched with a Crime

By John & Nisha Whitehead
August 21, 2023

“Make no mistake about it … your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason… I doubt that the proud men who wrote the charter of our liberties would ...

California Supreme Court Vacates Second Degree Murder Conviction Where Jury Instructed on Now Invalid Felony-­Murder Theory

by Douglas Ankney

The Supreme Court of California vacated Tyree Ferrell’s second degree murder conviction because his jury was instructed on a now invalid theory of felony-­murder and the jury’s finding of an enhancement that he intentionally discharged a firearm that caused a death in committing his offense when coupled ...

U.S. Supreme Court Announces § 2255(e)’s ‘Saving Clause’ Does Not Enable Prisoners to File § 2241 Petition Based on AEDPA’s Rule Against Second or Successive § 2255 Motions

by Douglas Ankney

Resolving a split among the U.S. Courts of Appeals, the Supreme Court of the United States (“SCOTUS”) held that “§ 2255(e)’s saving clause does not permit a prisoner asserting an intervening change in statutory interpretation to circumvent AEDPA’s restrictions on second or successive § 2255 motions by filing a ...

‘Data for Defenders’: Valuable New Resource for Defense Counsel and Pro Se Litigants

by Jordan Arizmendi

A new open access database called “Data for Defenders,” a project of MDefenders program at the University of Michigan Law School, is a valuable tool for defenders. The resources available in the database – including briefs, motions, and transcripts – will instantly broaden the tools for defenders ...

Maryland Supreme Court: Firearms Identification Methodology Does Not Provide Reliable Basis for Expert’s Unqualified Opinion That Bullets Recovered at Crime Scene Were Fired From Defendant’s Gun

by Douglas Ankney

The Supreme Court of Maryland (formerly known as the Court of Appeals of Maryland) held that the methodology of firearms identification presented to the trial court did not provide a reliable basis for the expert witness’ unqualified opinion that four bullets and one bullet fragment found at ...

California Court of Appeal: Trial Court Abused Discretion in Failing to Recall Terminally Ill Prisoner’s Sentence Following CDCR’s Recommendation for Compassionate Release

by Douglas Ankney

The Court of Appeal of California, Sixth Appellate District, held that the Monterey County Superior Court plainly abused its discretion when it refused to recall the sentence of terminally ill prisoner Adnan Judeh Nijmeddin following the recommendation of the Health Care Services Director (“Director”) of the California ...

American Bar Association’s 2023 Plea Bargain Task Force Report

by Carlos DiFundo

Trial by jury is thought by some to be a pivotal part of democracy, yet it is disappearing. For example, Texas, New York, and Pennsylvania have trial rates below 3%. Similarly, in the federal courts in 2018, some 2% went to trial while 90% pled out, and ...

Fourth Circuit Reverses Dismissal of Habeas Petition Where District Court Failed to Review Magistrate’s Report De Novo After Characterizing Petitioner’s Objections as ‘Attempt to Reargue Case’

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit reversed a District Court’s dismissal of Larone F. Elijah’s 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus (“habeas petition”) where the District Court characterized Elijah’s objections to the magistrate’s report and recommendation (“R&R”) as an attempt to ...

D.C. Circuit Orders New Trial Due to Brady Violations Involving Source of Information, Not Withholding of Information Itself

by Richard Resch

The U.S. Court of Appeals for the D.C. Circuit held that the prosecution violated its Brady disclosure obligations by withholding multiple law enforcement reports from the defendant, even though most of the information within the reports was available to the defendant from other sources, because the reports ...

Texas Court of Criminal Appeals Holds Granting Motion for New Trial Because ‘Verdict Is Contrary to Law and Evidence,’ Without Further Explanation, Bars Retrial

by Matt Clarke

In a case of first impression, the Court of Criminal Appeals of Texas held that granting a motion for new trial based solely on the ground that the “verdict is contrary to the law and evidence” is a finding of legal insufficiency of the evidence so that a ...

Third Circuit Vacates Possession of Cocaine Conviction Due to Insufficient Evidence to Support Weight Element

by David M. Reutter

On July 7, 2023, the U.S. Court of Appeals for the Third Circuit, in a precedential ruling, ordered a defendant to be resentenced after it found there was insufficient evidence to support a conviction for possession with intent to distribute 500 grams or more of cocaine ...

How the Backdoor Loophole Enables the FBI to Search Your Communications Without a Warrant

by Michael Dean Thompson

The 2008 Foreign Intelligence ­Surveillance Amendments Act (“FAA”) Section 702 (codified as 50 U.S.C. § 1881A) exists to facilitate the capture of the communications of foreign actors as they pass through American facilities and hardware. However, in the process, the communications of American citizens are being captured ...

Ninth Circuit Announces No Deference to Application Note 1 to Guideline § 4B1.2(b) Because It Impermissibly Expands Definition of ‘Controlled Substance Offense’

by Douglas Ankney

In deepening an already wide Circuit split, the U.S. Court of Appeals for the Ninth Circuit announced that the Court cannot defer to Application Note 1 to U.S. Sentencing Guidelines (“U.S.S.G.”) § 4B1.2(b) because the Guideline is unambiguous and does not include inchoate offenses for purposes of career ...

Third Circuit Vacates Denial of First Step Act Relief Because District Court’s Failure to Expressly Identify Which § 841(b) Provision Supported Sentence Precludes Appellate Review

by Douglas Ankney

The U.S. Court of Appeals for the Third Circuit vacated the U.S. District Court for the Eastern District of Pennsylvania’s denial of Darryl E. Coleman’s motion for a sentence reduction under § 404(b) of the First Step Act of 2018 (“FSA”) because the District Court’s failure to expressly ...

Digital Voiceprinting Is Not Ready for Court

by Anthony W. Accurso

New techniques using artificial intelligence to analyze voices fall short of meeting the standard for court admissibility, but that hasn’t stopped police from coercing plea deals out of defendants while claiming the “evidence” against them is sound.

For over a 100 years, the ability to identify ...

Oregon Supreme Court Clarifies Mansor Ruling for Search Warrants for Digital Data and Announces Framework for Suppression When Warrant Contains Both Constitutional and Unconstitutional Search Categories

by Anthony W. Accurso

The Supreme Court of Oregon clarified the procedure, flowing from its previous doctrine on cellphone searches, for reviewing search conditions for reasonableness and announced the framework for suppression where a warrant contains both constitutional and unconstitutional search categories.

Detective Opitz of the Beaverton Police Department obtained ...

News in Brief

Arizona: According to information attained by Hatewatch, the leader of the extremist Constitutional Sheriffs and Peace Officers Association emailed a video regarding an investigation into his son which could potentially cause the father to be prosecuted. Richard Mack sent a video of his son’s alleged child abuse to Pinal County ...

 

 

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