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Criminal Legal News: November, 2023

Issue PDF
Volume 6, Number 11

In this issue:

  1. Your Car Is Spying on You (p 1)
  2. People of Maine at Forefront of Battle to Keep Government Security Apparatus in Check (p 11)
  3. A Nation of Snitches: DHS Is Grooming Americans to Report on Each Other (p 12)
  4. Montana Supreme Court: Retroactive Application of Montana’s Sex Offender Registration Law, as Amended Since 2007, Violates Ex Post Facto Clause of State Constitution (p 14)
  5. Checking In With Community Supervision (p 16)
  6. New Jersey Takes First Steps in Eliminating Public Defender Fees (p 17)
  7. Ninth Circuit: Younger Abstention Doctrine Inapplicable Where Habeas Petitioner Seeks Stay While § 1172.6 Petition in State Court Being Litigated and Petitioner Entitled to Stay of Habeas Proceedings While State Petition Pending (p 18)
  8. Advent of ‘Green’ Ammunition Prompts Forensic Science to Analyze Organic and Inorganic Gunshot Residue and Establish Benchmarks for CSI (p 19)
  9. Colorado Supreme Court Announces ‘Self-Serving Hearsay’ Statements Introduced Under Rule of Completeness Not Hearsay and Do Not Render Defendant Impeachable (p 20)
  10. Michigan Supreme Court Holds Guilty Plea Cannot Be ‘Voluntary and Knowing’ When Induced by Inaccurate Understanding of Minimum and Maximum Prison Sentence (p 22)
  11. Study Reveals Important Details About iPhone’s Building Level Registration Reliability (p 24)
  12. California Supreme Court Clarifies Harmless-Error Analysis of Alternative-Theory Error, Reverses and Remands Where Court of Appeal Applied Incorrect Standard (p 24)
  13. Ninth Circuit Explains Martinez ‘Cause’ and ‘Prejudice’ to Excuse Procedural Default in Federal Habeas Proceeding Where Claim of IAC in State Proceedings Was Procedurally Defaulted Due to Postconviction Counsel’s Failure to Timely Raise Claim (p 26)
  14. 10th Circuit Reverses Guidelines Enhancement Because Possession of Ammo Does Not Facilitate Possession of a Firearm (p 28)
  15. Study: ‘Inconclusive Finding’ by Examiner of Cartridge Casing Should Be Finding of ‘Excluded’ 85% of the Time (p 28)
  16. Facial Recognition Software Gives Unreliable Results with Black Individuals and Leads to Unlawful Arrests (p 30)
  17. ICE Employees Caught (Again) Misusing Access to Databases (p 30)
  18. Fourth Circuit: Evidence Suppressed Where Officers Seized Defendant Without Reasonable Suspicion and Forced Him to Prove He Was Not Armed (p 32)
  19. Electrocution by Taser Is Not Death From Excited Delirium (p 33)
  20. New Jersey Supreme Court Announces Presumption in Favor of In-Person Interpreter for Criminal Trials and Issues Guidelines for Use of Video Remote Interpreting (p 34)
  21. Sheep and Sheepdogs: Use and Abuse of Non-Lethal Crowd Control Weapons (p 35)
  22. Arizona Attorney General Settles Lawsuit, Agrees to Toss Unconstitutional Law Banning the Recording of Cops (p 36)
  23. Fourth Circuit Vacates Denial of First Step Act Relief Where Record Unclear Whether District Court Considered All Nonfrivolous Arguments Raised by Defendant (p 36)
  24. Sixth Circuit: Plain Error Where District Court Required Defendant at Resentencing to Admit Guilt in Order to Fully Consider Defendant’s Evidence of Rehabilitation (p 38)
  25. Colorado’s Amendments to Post-Conviction DNA Testing Statute Allows Greater Number of Affected Persons to Seek Testing (p 38)
  26. Gunshot Detection Technology Continues to Acquire New Business Despite Major Clients Dropping Contracts and Researchers Questioning Its Effectiveness (p 40)
  27. Tenth Circuit Announces District Court Erred in Applying Attempted Murder Cross-Reference Under U.S.S.G. § 2A2.1 Based on Malice Aforethought, Without Finding Intent to Kill (p 40)
  28. Computing Fear in Black and Brown Communities (p 42)
  29. DOJ Concludes Louisville Police Engaging in Patterns of Unconstitutional Conduct (p 42)
  30. ICE Tramples Over the Judicial System (p 43)
  31. U.K. Study of Consistency Among Pairs of Child Witnesses Shows Surprising Results (p 43)
  32. Third Circuit Announces COA Required for Federal Prisoner Appealing District Court’s Choice of Remedy in § 2255 Proceeding (p 45)
  33. West Virginia Supreme Court Announces in the Absence of a Deadline, Trial Court Must Permit Defendant to Stipule to Prior Conviction During Trial (p 46)
  34. Geofencing January 6th (p 47)
  35. Three’s a Crowd: Issues of DNA Mixture Analysis and Interpretation (p 48)
  36. New Mexico Supreme Court Announces Trial Courts Retain Common Law Jurisdictional Authority to Correct Illegal Sentences, Allows Defendant to Withdraw Plea After Sentence Correction Involving Additional Parole Time (p 49)
  37. News in Brief (p 50)

Your Car Is Spying on You

by Michael Dean Thompson

While it is true that Americans tend to carry their cellphones as grafted appendages, it may be that their cars know even more about them than their cellphones. Consider the following scenario: Jane sees that her car is iced over, so she uses her remote key ...

People of Maine at Forefront of Battle to Keep Government Security Apparatus in Check

by Douglas Ankney

The people of Maine have made a bold step in corralling the “unaccountable power of fusion centers” with the passage of HP 947, An Act to Increase the Transparency and Accountability of the Main Information and Analysis Center. The Main Information and Analysis Center (“MIAC”) is ...

A Nation of Snitches: DHS Is Grooming Americans to Report on Each Other

By John & Nisha Whitehead

September 19, 2023

“There were relatively few secret police, and most were just processing the information coming in. I had found a shocking fact. It wasn’t the secret police who were doing this wide-scale surveillance and hiding on every street corner. It was the ordinary ...

Montana Supreme Court: Retroactive Application of Montana’s Sex Offender Registration Law, as Amended Since 2007, Violates Ex Post Facto Clause of State Constitution

by Douglas Ankney

The Supreme Court of Montana held that retroactive application of Montana’s Sexual or Violent Offender Registration Act (“SVORA”), as amended beginning in 2007, violates the ex post facto clause in Article II, Section 31, of the Montana Constitution.

Richard D. Hinman was convicted in 1994 of ...

Checking In With Community Supervision

by Anthony W. Accurso

A new report from PrisonPolicy.org was released with the purpose of informing prison policymakers and the public about the true costs of the criminal justice system, which includes both prisons and various forms of community supervision – probation, parole, supervised release, and involuntary civil commitment. The ...

New Jersey Takes First Steps in Eliminating Public Defender Fees

by Jordan Arizmendi

Although advocates say there is still work to do to ensure New Jersey public defenders don’t come with a price tag attached, New Jersey Governor Phil Murphy (D) took the first giant step earlier this summer when he signed a bill removing burdensome fees that clients ...

Ninth Circuit: Younger Abstention Doctrine Inapplicable Where Habeas Petitioner Seeks Stay While § 1172.6 Petition in State Court Being Litigated and Petitioner Entitled to Stay of Habeas Proceedings While State Petition Pending

by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit held that the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971), is inapplicable where a petitioner moved for a stay of his 28 U.S.C. § 2254 petition for writ of habeas corpus and that the petitioner ...

Advent of ‘Green’ Ammunition Prompts Forensic Science to Analyze Organic and Inorganic Gunshot Residue and Establish Benchmarks for CSI

by Jo Ellen Nott

In the July 2023 issue of the Forensic Chemistry journal, new research from West Virginia University (“WVU”) forensic scientists reveals that gunshot residue (“GSR”) behaves differently on skin, hair, and fabric depending on whether it contains organic or inorganic compounds. The WVU scientists are working ...

Colorado Supreme Court Announces ‘Self-Serving Hearsay’ Statements Introduced Under Rule of Completeness Not Hearsay and Do Not Render Defendant Impeachable

by Richard Resch

The Supreme Court of Colorado held that under Colorado Rule of Evidence (“CRE”) 106 if the prosecution creates a misleading impression by excluding statements made by the defendant that should be considered together with the proffered evidence out of fairness, the rule of completeness requires the ...

Michigan Supreme Court Holds Guilty Plea Cannot Be ‘Voluntary and Knowing’ When Induced by Inaccurate Understanding of Minimum and Maximum Prison Sentence

by David M. Reutter

The Supreme Court of Michigan held that a guilty plea cannot be understandingly or knowingly entered into when it was, in significant part, induced on the basis of an inaccurate understanding of the minimum and maximum possible prison sentence. It was error, therefore, to deny ...

Study Reveals Important Details About iPhone’s Building Level Registration Reliability

by Jo Ellen Nott

In a stabbing case in The Hague, Netherlands, a suspect facing charges in the deadly incident denied his involvement. Wanting to prove his presence at the crime scene, the Dutch police turned to digital evidence and, more specifically, data from the suspect’s cellphone.

The police ...

California Supreme Court Clarifies Harmless-Error Analysis of Alternative-Theory Error, Reverses and Remands Where Court of Appeal Applied Incorrect Standard

by Douglas Ankney

The Supreme Court of California reversed a judgment of the Court of Appeal (“COA”) and remanded because the COA incorrectly applied the harmless-error analysis of People v. Aledamat, 447 P.3d 277 (Cal. 2019), where the jury was instructed with both a legally valid theory and a ...

Ninth Circuit Explains Martinez ‘Cause’ and ‘Prejudice’ to Excuse Procedural Default in Federal Habeas Proceeding Where Claim of IAC in State Proceedings Was Procedurally Defaulted Due to Postconviction Counsel’s Failure to Timely Raise Claim

by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit explained the “cause and prejudice” framework of Martinez v. Ryan, 566 U.S. 1 (2012), in the context of a federal habeas proceeding where a claim of ineffective assistance of counsel at trial (“Trial IAC”) in a state ...

10th Circuit Reverses Guidelines Enhancement Because Possession of Ammo Does Not Facilitate Possession of a Firearm

by Anthony W. Accurso

The U.S. Court of Appeals for the Tenth Circuit vacated a defendant’s sentence where the U.S. District Court for the District of Colorado improperly applied a Guidelines enhancement under U.S.S.G. § 2K2.1(b)(6)(B) based on a mistaken application of Colorado law.

Lougary Eddington was involved in a ...

Study: ‘Inconclusive Finding’ by Examiner of Cartridge Casing Should Be Finding of ‘Excluded’ 85% of the Time

by Douglas Ankney

A recent study by researchers from Arizona State University (“ASU”) “found that 85% of cartridge cases that were judged inconclusive by forensic firearm examiners were actually fired by two different guns. In an actual crime scene investigation, that would mean that the cartridge cases did not match ...

Facial Recognition Software Gives Unreliable Results with Black Individuals and Leads to Unlawful Arrests

by Jo Ellen Nott

Two faculty members at Georgia State University in Atlanta in the Department of Criminal Justice & Criminology wrote in the May 18, 2023, edition of Scientific American Technology Section that artificial-intelligence-powered facial recognition will lead to increased racial profiling. In their research, Thaddeus Johnson and ...

ICE Employees Caught (Again) Misusing Access to Databases

by Jordan Arizmendi

It seems every month, a new story emerges about how ICE (U.S. Immigration and Customs Enforcement) egregiously abuses its power. Just a few weeks ago, Wired published an article about how ICE was improperly demanding data from elementary schools, news organizations, and abortion clinics. A few ...

Fourth Circuit: Evidence Suppressed Where Officers Seized Defendant Without Reasonable Suspicion and Forced Him to Prove He Was Not Armed

by Anthony W. Accurso

The U.S. Court of Appeals for the Fourth Circuit held a district court erred in denying a defendant’s suppression motion regarding an unreasonable seizure and search, finding he was not required to prove he was unarmed.

Anthony Eugene Peters and Gary Garrison were walking in ...

Electrocution by Taser Is Not Death From Excited Delirium

by Douglas Ankney

A rose by another name may still be a rose, but electrocution by a cop’s taser is deemed death from excited delirium. At least, that was the determination until recently. In March 2023, the National Association of Medical Examiners (“NAME”) said “excited delirium” should not be cited ...

New Jersey Supreme Court Announces Presumption in Favor of In-Person Interpreter for Criminal Trials and Issues Guidelines for Use of Video Remote Interpreting

by Matt Clarke

In a case of first impression, the Supreme Court of New Jersey held that there is a presumption in favor of in-person interpreting services, rather than video remote interpreting (“VRI”), for criminal trials and promulgated guidelines for determining whether a criminal defendant should be provided in-person ...

Sheep and Sheepdogs: Use and Abuse of Non-Lethal Crowd Control Weapons

by Benjamin Tschirhart  

To understand the true gap between the role of the police as understood by the public (to protect and serve) and as understood by the police themselves, one need look no further than a protest or public demonstration. Here, especially when provoked, police quickly assume their ...

Arizona Attorney General Settles Lawsuit, Agrees to Toss Unconstitutional Law Banning the Recording of Cops

by Jo Ellen Nott

In a victory for the First Amendment, the Arizona Attorney General agreed to settle a lawsuit brought in August 2022 challenging a state law that banned recording police officers within eight feet. The law, HB2319, passed in the Arizona Senate on June 23, 2022, was ...

Fourth Circuit Vacates Denial of First Step Act Relief Where Record Unclear Whether District Court Considered All Nonfrivolous Arguments Raised by Defendant

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit vacated the denial of a motion seeking a sentence reduction under § 404(b) of the First Step Act of 2018 (“FSA”) because the record was unclear as to whether the U.S. District Court for the Eastern District of ...

Sixth Circuit: Plain Error Where District Court Required Defendant at Resentencing to Admit Guilt in Order to Fully Consider Defendant’s Evidence of Rehabilitation

by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit found plain error where the U.S. District Court for the Middle District of Tennessee required Nickless Whitson to admit guilt in order to fully consider Whitson’s evidence of rehabilitation.

Whitson was initially convicted of eight felonies, including ...

Colorado’s Amendments to Post-Conviction DNA Testing Statute Allows Greater Number of Affected Persons to Seek Testing

by Douglas Ankney

On March 10, 2023, Governor Jared Polis signed House Bill 1034 (“HB 1034”) into law, opening the door to a greater number of people convicted of felonies to be eligible for DNA testing. Colorado’s previous law allowed only people who are actively incarcerated to receive DNA ...

Gunshot Detection Technology Continues to Acquire New Business Despite Major Clients Dropping Contracts and Researchers Questioning Its Effectiveness

by Jo Ellen Nott

SoundThinking is a California-based tech company formerly known as ShotSpotter that sells systems to detect gunshot sounds and relay that information to law enforcement for follow-up. MarketBeat reports that the company has annual revenue of $81 million. Dayton, Ohio, will not be part of that ...

Tenth Circuit Announces District Court Erred in Applying Attempted Murder Cross-Reference Under U.S.S.G. § 2A2.1 Based on Malice Aforethought, Without Finding Intent to Kill

by Douglas Ankney

The U.S. Court of Appeals for the Tenth Circuit held that the U.S. District Court for the Western District of Oklahoma erred in applying United States Sentencing Guideline (“U.S.S.G.”) § 2A2.1(a)(2) without a specific finding of an intent to kill.

A jury convicted Jimmy Lee Brooks of ...

Computing Fear in Black and Brown Communities

by Michael Dean Thompson

Over 50 years ago, fear of crime was even then associated in the minds of the governing bodies with Black and brown communities. An effort to combat crime based on that fear spurred the creation of software that has since grown to become the predictive ...

DOJ Concludes Louisville Police Engaging in Patterns of Unconstitutional Conduct

by Douglas Ankney

After conducting a two-year investigation in the wake of the fatal shooting of Breonna Taylor by police, the U.S. Department of Justice (“DOJ”) concluded that the Louisville Metro Police Department (“LMPD”) engages in patterns of unconstitutional practices. The DOJ interviewed hundreds of officers and community members, ...

ICE Tramples Over the Judicial System

by Jordan Arizmendi

ICE stands for U.S. Immigration and Customs Enforcement, which is a federal agency under the U.S. Department of Homeland Security. The ICE website proclaims that its “primary focus” is “securing our nation’s borders and safeguarding the integrity of our immigration system.” While such a proclamation is ...

U.K. Study of Consistency Among Pairs of Child Witnesses Shows Surprising Results

by Matt Clarke

A recent report on a study of the consistency among pairs of child witnesses published in the U.K. journal Legal and Criminological Psychology showed the surprising result that neither the age of the paired children nor the consistency of the details the pairs of child witnesses report ...

Third Circuit Announces COA Required for Federal Prisoner Appealing District Court’s Choice of Remedy in § 2255 Proceeding

by Douglas Ankney

In a case of first impression in the Circuit, the U.S. Court of Appeals for the Third Circuit held that a federal prisoner appealing a District Court’s choice of remedy in a 28 U.S.C. § 2255 proceeding must obtain a certificate of appealability (“COA”).

In 1990, a ...

West Virginia Supreme Court Announces in the Absence of a Deadline, Trial Court Must Permit Defendant to Stipule to Prior Conviction During Trial

by Douglas Ankney

The Supreme Court of Appeals of West Virginia held that, where a trial court has not set a deadline for submitting a stipulation to a prior conviction, the court must permit a defendant to so stipulate when (1) that prior conviction is an essential element of ...

Geofencing January 6th

by Michael Dean Thompson

The breaching of the Capitol on January 6, 2021, shocked many Americans. Government filings uncovered since then suggest that even as the unrest raged, law enforcement had begun filing geofence warrants. We now understand that 1,535 names associated with phones using Google’s Location History technology ...

Three’s a Crowd: Issues of DNA Mixture Analysis and Interpretation

by Eike Blohm M.D.

A study funded by the National Institute of Justice recently found that the vast majority of forensic laboratories had difficulty correctly interpreting DNA samples derived from three donors.

Over 99.9% of our DNA is identical with that of random strangers. Forensic DNA analysis focuses on the ...

New Mexico Supreme Court Announces Trial Courts Retain Common Law Jurisdictional Authority to Correct Illegal Sentences, Allows Defendant to Withdraw Plea After Sentence Correction Involving Additional Parole Time

by Anthony W. Accurso

The Supreme Court of New Mexico allowed a defendant to withdraw his plea deal after the district court corrected his sentence to include a lengthier term of parole, because he could not “knowingly and voluntarily” take the deal without being aware of the mandatory parole ...

News in Brief

Alabama: According to The New York Times, the most notable sack and fumble of the Jefferson County high school football game on September 14, 2023, came after the game ended and the police were in the process of clearing the stadium. In the tradition of historically Black colleges, both bands ...

 

 

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