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Criminal Legal News: December, 2023

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Volume 6, Number 12

In this issue:

  1. Dangerous Encounters: Interactions Between Autistic Individuals and Law Enforcement (p 1)
  2. Louisiana Sheriffs Repeatedly and Conveniently Destroy Public Records (p 13)
  3. Natural Language Processing Software Can Identify Biased Jury Selection, Has Potential to Be Used in Real Time During Voir Dire (p 13)
  4. Eleventh Circuit Announces Defendant May Not Be Sentenced to Home Confinement for Violating Terms of Supervised Release When Sentenced to Statutory Maximum Period of Imprisonment for the Violation (p 14)
  5. CBP Promises Not to Buy Location Data – But Is It a Hollow Promise? (p 15)
  6. Use of Forensic Genetic Genealogy Searches to Identify Suspects Needs Regulation and Can Be Challenged (p 16)
  7. Chicago Cop Lied So Many Times Under Oath That Prosecutors Are Dismissing Cases That Relied on His Testimony (p 17)
  8. Texas Court of Criminal Appeals Clarifies Application of ‘Estoppel’ in Plea Bargain Context and Holds Trial Court Lacked Jurisdiction to Revoke Community Supervision After Statutory Term Expired (p 18)
  9. Report Finds Effective Text Message Reminders Can Reduce Community Supervision Violations (p 19)
  10. Third Circuit: Pennsylvania Conviction for First-Degree Aggravated Assault Does Not Require Physical Force so Is Not Qualifying Predicate for ACCA Purposes (p 20)
  11. First Circuit: Justification for Upward Sentencing Departure Following Supervised Release Revocation Must Be Ade-quately Explained (p 22)
  12. Sixth Circuit: District Court Committed Procedural Error by Impermissibly Ceding Its Discretion to Congress to Determine Guidelines’ Crack-to-Powder Ratio at Sentencing (p 24)
  13. Indiana Supreme Court Reverses Involuntary Manslaughter Conviction Where Trial Court Denied Defense Counsel Opportunity to Directly Voir Dire Prospective Jurors (p 25)
  14. We the Targeted: How the Government Weaponizes Surveillance to Silence its Critics 2372 (p 26)
  15. Fourth Circuit: Disparate Sentence of 30 Years for Two § 924(c) Convictions Constitutes ‘Extraordinary and Compelling Reason’ for Early Release and § 3553(a) Sentencing Factors ‘Overwhelmingly’ Favor Sentence Reduction (p 28)
  16. Massachusetts Supreme Court: Defense Counsel’s Overt Bias Against Own Client Constitutes Actual Conflict of Interest Requiring New Trial Without Need to Prove Prejudice (p 30)
  17. New Mexico Ends Juvenile Life Without Parole, Retroactively Applies Rule to Previously Convicted Minors (p 31)
  18. Fourth Circuit Reverses § 924(c) Conviction Because Kidnapping No Longer Qualifies as Predicate Offense and ‘Critical Record Documents’ Do Not Show Firearm Charge Was ‘Expressly Predicated Upon’ Any Other Offense (p 32)
  19. New York Court Rules Police Allowed to Use Familial DNA Searches (p 33)
  20. Texas Using Highly Sophisticated Israeli Phone Tracking Software (p 33)
  21. ‘Criminal Courteaucracy’: Understanding the Unique Role of Criminal Court Administrators in Implementing Social Con-troll (p 34)
  22. Fifth Circuit: Fourth Amendment Seizure Occurred When Officer Pulled Behind Parked Vehicle, Activated Emergency Lights, and Simultaneously Ordered Suspect to Remain in Vehicle (p 38)
  23. The EFF Is Tackling Border Towers, Facilitating Research into Impact of Mass Surveillance (p 39)
  24. Kentucky Supreme Court Clarifies When Lesser-Included Offense Instruction Must Be Provided, Reverses Convictions Based on Trial Court’s Failure to Properly Instruct Jury (p 40)
  25. After Mississippi Supreme Court Announcement, Courts Unprepared to Ensure Poor Defendants Have a Lawyer Throughout the Criminal Process (p 41)
  26. Seventh Circuit Announces Procedures for Addressing ‘Facially Questionable Warrant’ Due to ‘Material Handwritten Alterations’ Unsigned or Initialed by Issuing Judge (p 42)
  27. California Supreme Court Reinstates Petition for Resentencing Under SB 1437 Because Trial Court Misapprehended Le-gal Requirements for Proving Aiding and Abetting Implied Malice Murder (p 44)
  28. Maine Supreme Judicial Court Announces Clarification of Test for Violation of Right to Speedy Trial Under Maine Constitu-tion (p 47)
  29. Sixth Circuit: Because Ohio’s Aggravated Robbery Statute Does Not Contain Mens Rea Requirement, Conviction Is Violent Felony Under ACCA Only if Underlying Theft in Robbery Contains Required Mens Rea (p 49)
  30. News in Brief (p 50)

Dangerous Encounters: Interactions Between Autistic Individuals and Law Enforcement

by Casey J. Bastian

“Having an encounter with police … is an unsettling encounter for anybody, but for someone with autism, it can be extremely distressing.”


Helen Lyons, Metropolitan Police Detective Superintendent, Adults Neglected, Vulnerable and Abused Division

Anyone who has experienced even a simple traffic stop understands the ...

Louisiana Sheriffs Repeatedly and Conveniently Destroy Public Records

by Benjamin Tschirhart

There are 64 sheriffs across the state of Louisiana. Despite what many of them apparently believe, they are subject to certain rules and laws, just like the rest of us. That message just hasn’t reached some of them. Two-thirds of them appear to be in violation of ...

Natural Language Processing Software Can Identify Biased Jury Selection, Has Potential to Be Used in Real Time During Voir Dire

by Jo Ellen Nott

The Journal of Empirical Legal Studies published a ground-breaking study out of Cornell University that proves prosecutors question Black venire persons in a hard-to-detect, but significantly different way, than they question other potential jurors.

“Quantifying Disparate Questioning of Black and White Jurors in Capital Jury Selection” ...

Eleventh Circuit Announces Defendant May Not Be Sentenced to Home Confinement for Violating Terms of Supervised Release When Sentenced to Statutory Maximum Period of Imprisonment for the Violation

by Douglas Ankney

In a case of first impression, the U.S. Court of Appeals for the Eleventh Circuit held that the revised sentences of defendants who violate the terms of their supervised release cannot include the maximum term of imprisonment and a period of home confinement because “home confinement with ...

CBP Promises Not to Buy Location Data – But Is It a Hollow Promise?

by Michael Dean Thompson

Global Positioning Satellite (“GPS”) systems began as a tool to help the American military prosecute wars. Among its many uses today is to help the American criminal justice system prosecute its citizens. Not too long ago, the government was forced to tag vehicles with GPS monitoring ...

Use of Forensic Genetic Genealogy Searches to Identify Suspects Needs Regulation and Can Be Challenged

by Matthew Clarke

Ever since it was used to identify the Golden Gate Killer in 2018, Forensic Genetic Genealogy (“FGG”) has been accepted by law enforcement as a tool for identifying unknown suspects. Most people view it as just another DNA profiling method, similar to that used to create the ...

Chicago Cop Lied So Many Times Under Oath That Prosecutors Are Dismissing Cases That Relied on His Testimony

by Jordan Arizmendi

As an old and wise theologian once said, “A half-truth is a whole lie.” If we are to take those words to heart, then what should we call 44 sworn testimonies of a police officer that were all 100% lies? Prosecutors in Chicago have dropped 15 cases ...

Texas Court of Criminal Appeals Clarifies Application of ‘Estoppel’ in Plea Bargain Context and Holds Trial Court Lacked Jurisdiction to Revoke Community Supervision After Statutory Term Expired

by Richard Resch

The Court of Criminal Appeals of Texas held a trial court lacked jurisdiction to revoke community supervision where the violation occurred after the statutory maximum term of five years concluded, despite the fact he had been sentenced to a 10-year term.

Before the Court was the writ ...

Report Finds Effective Text Message Reminders Can Reduce Community Supervision Violations

by Jordan Arizmendi

Once upon a time, parole and probation – also referred to as community supervision – were intended to reduce our nation’s jail and prison populations. In fact, when used properly, community supervision can be one of the most effective tools in our carceral system for reducing mass ...

Third Circuit: Pennsylvania Conviction for First-Degree Aggravated Assault Does Not Require Physical Force so Is Not Qualifying Predicate for ACCA Purposes

by Douglas Ankney

The U.S. Court of Appeals for the Third Circuit held that because a conviction under Pennsylvania’s first-degree aggravated assault statute, 18 Pa. Cons. Stat. § 2702(a)(1), does not require the element of physical force, such a conviction cannot serve as a qualifying predicate for purposes of the Armed ...

First Circuit: Justification for Upward Sentencing Departure Following Supervised Release Revocation Must Be Ade-quately Explained

by Matt Clarke

The U.S. Court of Appeals for the First Circuit held that the U.S. District Court for the District of Puerto Rico’s upward variant sentence after revocation of supervised release in a case for conspiracy to possess cocaine with intent to distribute was “procedurally and substantively unreasonable because ...

Sixth Circuit: District Court Committed Procedural Error by Impermissibly Ceding Its Discretion to Congress to Determine Guidelines’ Crack-to-Powder Ratio at Sentencing

by David M. Reutter

The U.S. Court of Appeals for the Sixth Circuit held a District Court commits “procedural error by failing to appreciate the scope of its discretion” and by indicating that policy “disagreements are not a proper basis to vary” from the Sentencing Guidelines. The Court also found ...

Indiana Supreme Court Reverses Involuntary Manslaughter Conviction Where Trial Court Denied Defense Counsel Opportunity to Directly Voir Dire Prospective Jurors

by Douglas Ankney

The Supreme Court of Indiana reversed Kyle N. Doroszko’s involuntary manslaughter conviction because the trial court denied defense counsel the opportunity to voir dire prospective jurors directly in violation of Indiana Trial Rule 47(D).

During a prearranged marijuana transaction, Traychon Taylor attempted to rob Doroszko. A struggle ...

We the Targeted: How the Government Weaponizes Surveillance to Silence its Critics 2372

by John & Nisha Whitehead

“Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a ...

Fourth Circuit: Disparate Sentence of 30 Years for Two § 924(c) Convictions Constitutes ‘Extraordinary and Compelling Reason’ for Early Release and § 3553(a) Sentencing Factors ‘Overwhelmingly’ Favor Sentence Reduction

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit held that Kelvin Brown’s disparate sentence of 30 years on two convictions for violating 18 U.S.C. § 924(c) created an “extraordinary and compelling reason” for his early release, and the 18 U.S.C. § 3553(a) sentencing factors overwhelmingly favored a sentence ...

Massachusetts Supreme Court: Defense Counsel’s Overt Bias Against Own Client Constitutes Actual Conflict of Interest Requiring New Trial Without Need to Prove Prejudice

by Anthony W. Accurso

The Supreme Judicial Court of Massachusetts ruled defendant’s (a Black man of the Muslim faith) showing that trial counsel harbored bigoted views towards Blacks and Muslims constituted an actual conflict of interest that entitled him to a new trial without the need for a further showing ...

New Mexico Ends Juvenile Life Without Parole, Retroactively Applies Rule to Previously Convicted Minors

by Anthony W. Accurso

New Mexico Governor Michelle Lujan Gresham signed SB64, the No Life Sentences for Juveniles Act, into law on March 17, 2023, ending life without parole (“LWOP”) sentencing for offenders under 18 years of age. New Mexico joined 24 other states and the District of Columbia in ...

Fourth Circuit Reverses § 924(c) Conviction Because Kidnapping No Longer Qualifies as Predicate Offense and ‘Critical Record Documents’ Do Not Show Firearm Charge Was ‘Expressly Predicated Upon’ Any Other Offense

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit reversed Elliott B. Graham’s 18 U.S.C. § 924(c) conviction for “using a firearm during a crime of violence” because (1) the conviction was predicated upon a kidnapping conviction, (2) kidnapping is no longer considered a qualifying predicate crime of ...

New York Court Rules Police Allowed to Use Familial DNA Searches

by Jordan Arizmendi

In 2022, a New York court barred law enforcement from using familial DNA searches (“FDS”). According to the court, the state’s regulations for FDS were invalid because they first needed to be approved by the state legislature.

However, on October 24, 2023, the New York Court of Appeals (the ...

Texas Using Highly Sophisticated Israeli Phone Tracking Software

by Jo Ellen Nott

Texas Governor Greg Abbott (R) launched Operation Lone Star in March 2021 after declaring a state of emergency in response to a rise in border crossings and fentanyl trafficking in southern Texas. As part of the $4.5 billion Texas spent in two years, the Texas Department ...

‘Criminal Courteaucracy’: Understanding the Unique Role of Criminal Court Administrators in Implementing Social Con-troll

by David M. Reutter

This Paper “is the first to provide an in-depth analysis of the role criminal court administrators have played in the shift from criminal courts as sites of adjudication to criminal courts as sites of social control,” contributes to the conversations “about the failure of criminal courts ...

Fifth Circuit: Fourth Amendment Seizure Occurred When Officer Pulled Behind Parked Vehicle, Activated Emergency Lights, and Simultaneously Ordered Suspect to Remain in Vehicle

by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit held that a Fourth Amendment seizure occurred when an officer, with emergency lights activated, pulled in behind Jacob Boone Wright’s vehicle and almost simultaneously ordered him to remain in his car to which Wright sufficiently complied.

Officer Jakobsohn ...

The EFF Is Tackling Border Towers, Facilitating Research into Impact of Mass Surveillance

by Anthony W. Accurso

The Electronic Frontier Foundation (“EFF”) released an interactive map to track the network of surveillance towers along the U.S. borders with Mexico and Canada, as well as several and some less obvious locations, and which explains the contractors and technology in use at each tower.

Customs ...

Kentucky Supreme Court Clarifies When Lesser-Included Offense Instruction Must Be Provided, Reverses Convictions Based on Trial Court’s Failure to Properly Instruct Jury

by Matt Clarke

The Supreme Court of Kentucky reversed convictions for first-degree wanton endangerment (“FDWE”) and first-degree persistent felony offender, holding that the trial court erred by failing to give a second-degree wanton endangerment (“SDWE”) jury instruction when the admitted evidence supported such an instruction.

Dwight Taylor met A.P. at ...

After Mississippi Supreme Court Announcement, Courts Unprepared to Ensure Poor Defendants Have a Lawyer Throughout the Criminal Process

by Jo Ellen Nott

The Mississippi Supreme Court mandated on April 13, 2023, that poor criminal defendants must have an attorney throughout the entire criminal process. In re Miss. Rules of Crim. Procedure, 2023 Miss. LEXIS 103 (2023). The state high court made this decision to eliminate the “dead zone” ...

Seventh Circuit Announces Procedures for Addressing ‘Facially Questionable Warrant’ Due to ‘Material Handwritten Alterations’ Unsigned or Initialed by Issuing Judge

by Richard Resch

In a case involving an issue of first impression, the U.S. Court of Appeals for the Seventh Circuit held that the U.S. District Court for the Southern District of Indiana erred by denying Russell Taylor’s motion to suppress and request for an evidentiary hearing to determine the ...

California Supreme Court Reinstates Petition for Resentencing Under SB 1437 Because Trial Court Misapprehended Le-gal Requirements for Proving Aiding and Abetting Implied Malice Murder

by Matt Clarke

The Supreme Court of California reinstated a prisoner’s petition for resentencing pursuant to Senate Bill No. 1437 (2017-2018 Reg. Session) (“SB 1437”) after finding that the trial court had misapprehended the legal requirements for proving aiding and abetting implied malice murder.

When he was 15 years old, ...

Maine Supreme Judicial Court Announces Clarification of Test for Violation of Right to Speedy Trial Under Maine Constitu-tion

by David M. Reutter

The Supreme Judicial Court of Maine concluded a post-conviction review (“PCR”) court misconstrued aspects of relevant law concerning a claim that counsel’s failure to assert the right to a speedy trial constituted ineffective assistance of counsel.

The Court’s opinion was issued in an appeal brought by ...

Sixth Circuit: Because Ohio’s Aggravated Robbery Statute Does Not Contain Mens Rea Requirement, Conviction Is Violent Felony Under ACCA Only if Underlying Theft in Robbery Contains Required Mens Rea

by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit held that because Ohio’s aggravated robbery statute, Ohio Revised Code § 2911.01(A), does not contain a mens rea requirement of knowing and purposeful use, attempted use, or threatened use of physical force, a conviction under that statute can be ...

News in Brief

Arizona: KNXV Phoenix reported that on October 20, 2023, former prosecutor April Sponsel had some interesting things to say at the State Bar trial against her. She was fired for conspiring with law enforcement to falsely charge protestors as gang members. She adamantly denied any wrongdoing and saw nothing wrong ...

 

 

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