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Criminal Legal News: February, 2023

Issue PDF
Volume 6, Number 2

In this issue:

  1. The Debunking of Forensic Science: A Decade of Increased Scrutiny Reveals Forensic Processes Prone to Bias and Error (p 1)
  2. California Court of Appeal: At Felony-Murder Resentencing Hearing, Court May Not Deny Relief Based on Findings That Are Inconsistent With Previous Acquittal (p 14)
  3. You’d Better Watch Out: The Surveillance State Is Making a List, and You’re On It (p 16)
  4. Montana Supreme Court: Odor of Marijuana by Itself Insufficient to Prolong Traffic Stop (p 18)
  5. Fifth Circuit: ‘Nonsubstantial Overcrowding’ of Vehicle Used in Transporting Illegal Aliens Insufficient for Imposition of Sentencing Enhancement Under Guidelines § 2L1.1(b)(6) (p 18)
  6. California Court of Appeal: Kill-Zone Theory Principles Articulated in Canizales Are Retroactive to Judgments That Were Final at Time of Decision (p 22)
  7. Florida Supreme Court Announces Completed ‘Purchase’ of Drugs Under Trafficking Statute Requires Exchange of Money and Possession (p 22)
  8. Police Digitally Frame Activists in India, but It Can Happen Anywhere (p 24)
  9. Eleventh Circuit: Prosecutor Denied Absolute Prosecutorial Immunity for Failure to Ensure Cancellation of Material Witness Warrant (p 24)
  10. Fifth Circuit: District Court Erred in Finding That a Fourth Amendment Stop Did Not Occur (p 26)
  11. Massachusetts Supreme Judicial Court: Ineffective Assistance of Counsel Where Trial Counsel Believed, Erroneously, He Had Ethical Duty to Tell Prosecution Location of Key Incriminating Evidence Not in Counsel’s Possession (p 27)
  12. Los Angeles: Police Union Resists Changes to Pretextual Stops (p 28)
  13. Police Find It Easier to Influence Public Opinion Than to Protect and Serve (p 30)
  14. Tenth Circuit: Unreasonable Determination of Downward Variance of Guidelines Resulted in Plain Error (p 30)
  15. Ninth Circuit Suppresses Evidence as Fruit of the Poisonous Tree Where Officer Lacked Probable Cause to Arrest Man Who Displayed Handgun in Open Carry State (p 32)
  16. California Court of Appeal Announces the People Are Not Entitled to Have Privately Retained Psychological Expert Testify at Trial of SVPA Petition (p 33)
  17. Connecticut Supreme Court Announces ‘John Doe’ Warrant Based on Suspect’s General Description and Partial DNA Profiles, Which May or May Not Include Suspect’s DNA, Fails to Satisfy ‘Particularity Requirement’ of Fourth Amendment (p 34)
  18. Tenth Circuit: Prisoner Convicted of Covered Drug Offense but Sentenced to Mandatory Life Sentence Via Cross Reference for Murder Under Pre-Booker Guidelines Has Standing to Request First Step Act Sentence Reduction (p 36)
  19. NYC: The First DNA Gun Crimes Unit in America (p 37)
  20. Sixth Circuit: Unarmed Bank Robber Who Ordered Tellers to Get on the Floor Not Subject to Enhancement for Physical Restraint (p 38)
  21. Traditional Forensic Ballistics Comparisons Giving Way to Virtual 3D Methods (p 38)
  22. The National Registry of Exonerations 2021 Annual Report: 161 Exonerations Comprising 1,849 Years of Wrongful Imprisonment (p 40)
  23. Massachusetts Supreme Judicial Court Ends Practice of Juvenile Courts Granting Continuances for Sole Purpose of Extending Delinquent’s Period of Detention (p 42)
  24. Mislabeling of Marijuana Products Is a National Problem (p 42)
  25. Review of Prior Research Identifies Three Main Sources of Bias in Jury Decision-Making Processes (p 43)
  26. Police Foundations: The Impossible Task of Separating the World of Policing From the World of Corporate Money (p 46)
  27. People Convicted of Sex Crimes Remain Incarcerated 25 Years After Completing Their Prison Sentences (p 49)
  28. Charlotte Is Ground Zero for New FBI Asset Forfeiture Tip Line Program (p 49)
  29. News in Brief (p 50)
  30. Theft of Public Funds or Accounting Incompetence? Kansas Police Agencies Can’t Accurately Track Property Forfeitures (p 50)

The Debunking of Forensic Science: A Decade of Increased Scrutiny Reveals Forensic Processes Prone to Bias and Error

by Casey J. Bastian

When a crime is committed, it is vital that the actual perpetrator be identified and held accountable. However, that process is not always straightforward. Every criminal investigation begins with the analysis of a crime scene and the collection of forensic evidence. But crime is inherently complex. ...

California Court of Appeal: At Felony-Murder Resentencing Hearing, Court May Not Deny Relief Based on Findings That Are Inconsistent With Previous Acquittal

by Douglas Ankney

The Court of Appeal of California, First Appellate District, held that “a trial court cannot deny relief in a § 1170.95 proceeding based on findings that are inconsistent with a previous acquittal when no evidence other than that introduced at trial is presented.”

In 2004, a jury ...

You’d Better Watch Out: The Surveillance State Is Making a List, and You’re On It

by John & Nisha Whitehead

“He sees you when you’re sleeping

He knows when you’re awake

He knows when you’ve been bad or good

So be good for goodness’ sake!”

— “Santa Claus Is Coming to Town”

 

You’d better watch out — you’d better not pout — you’d better ...

Montana Supreme Court: Odor of Marijuana by Itself Insufficient to Prolong Traffic Stop

by Anthony W. Accurso

The Supreme Court of Montana ruled a state trooper impermissibly extended a traffic stop to investigate a drug possession based solely on the odor of marijuana and undeveloped hunches.

William James Harning was driving a truck full of ceramics to an art show around 10:00 a.m. ...

Fifth Circuit: ‘Nonsubstantial Overcrowding’ of Vehicle Used in Transporting Illegal Aliens Insufficient for Imposition of Sentencing Enhancement Under Guidelines § 2L1.1(b)(6)

by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit ruled that nine people in a vehicle with a rated capacity for seven people is insufficient for imposition of sentencing enhancement under U.S. Sentencing Guideline (“Guidelines”) § 2 L1.1(b)(6).

Felipe Castelo-Palma was pulled over by a Presidio ...

California Court of Appeal: Kill-Zone Theory Principles Articulated in Canizales Are Retroactive to Judgments That Were Final at Time of Decision

by Jacob Barrett

The Court of Appeal of California, Fourth Appellate District, reiterated the kill zone theory principles set forth by the California Supreme Court in People v. Canizales, 442 P.3d 686 (Cal. 2019), and held that Canizales applies retroactively to judgments that were final at the time Canizales ...

Florida Supreme Court Announces Completed ‘Purchase’ of Drugs Under Trafficking Statute Requires Exchange of Money and Possession

by David M. Reutter

The Supreme Court of Florida held that for purposes of § 893.135(1), Florida Statutes, a completed drug trafficking by purchase “requires proof that the defendant both (1) gave consideration for and (2) obtained control of a trafficking quantity of illegal drugs.” The Court also instructed that ...

Police Digitally Frame Activists in India, but It Can Happen Anywhere

by Jayson Hawkins

Modern society puts tremendous value on innovations that make our jobs easier, and computers have certainly aided in that pursuit. Cops in India, however, have taken the idea of using computers to minimize effort to a new extreme by planting evidence on people’s computers and then arresting ...

Eleventh Circuit: Prosecutor Denied Absolute Prosecutorial Immunity for Failure to Ensure Cancellation of Material Witness Warrant

by David M. Reutter

In a case of first impression, the U.S. Court of Appeals for the Eleventh Circuit held that a Fulton County, Georgia, assistant district attorney is not entitled to absolute prosecutorial immunity in a 42 U.S.C. § 1983 suit for failing to ensure the cancellation or recall ...

Fifth Circuit: District Court Erred in Finding That a Fourth Amendment Stop Did Not Occur

by Harold Hempstead

The U.S. Court of Appeals for the Fifth Circuit held that the U.S. District Court for the Western District of Louisiana erred in finding that a Fourth Amendment stop did not occur when “deputies flagged down [Neguel A.] Morris’s car, or when they ordered him to get ...

Massachusetts Supreme Judicial Court: Ineffective Assistance of Counsel Where Trial Counsel Believed, Erroneously, He Had Ethical Duty to Tell Prosecution Location of Key Incriminating Evidence Not in Counsel’s Possession

by Douglas Ankney

The Supreme Judicial Court of Massachusetts held that an actual conflict of interest existed that rendered counsel’s representation constitutionally ineffective where defense counsel erroneously believed he had an ethical duty to disclose to the prosecution the location of key incriminating evidence. Defendant Will Tate’s consent to the ...

Los Angeles: Police Union Resists Changes to Pretextual Stops

by Jayson Hawkins

In March 2022, the Los Angeles Police Commission, an oversight board of the LAPD, implemented minor policy changes to the way the department conducts pretextual stops. According to the Los Angeles Times, officers “can no longer use minor violations as an excuse to investigate motorists, bicyclists ...

Police Find It Easier to Influence Public Opinion Than to Protect and Serve

by Benjamin Tschirhart

Ask the average person how the police department of a major city could best use $300,000, and they might suggest investing in de-escalation training, mental health crisis response, or teaching officers how to distinguish cell phones from firearms.

Ask the same question of a high-dollar police department ...

Tenth Circuit: Unreasonable Determination of Downward Variance of Guidelines Resulted in Plain Error

by David M. Reutter

The U.S. Court of Appeals for the Tenth Circuit held that the U.S. District Court for the District of Wyoming committed plain error in applying the U.S. Sentencing Guidelines (“Guidelines”) by making an unreasonable determination in the downward variance it imposed.

Before the Court was the ...

Ninth Circuit Suppresses Evidence as Fruit of the Poisonous Tree Where Officer Lacked Probable Cause to Arrest Man Who Displayed Handgun in Open Carry State

by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit affirmed the U.S. District Court for the Eastern District of Washington’s order granting a motion to suppress all evidence because the arresting officer lacked probable cause to arrest a possibly mentally ill Washington man who had displayed a ...

California Court of Appeal Announces the People Are Not Entitled to Have Privately Retained Psychological Expert Testify at Trial of SVPA Petition

by Douglas Ankney

The Court of Appeal of California, Fourth Appellate District, held that the Sexually Violent Predator Act, Welf. & Inst. Code § 6600 et seq. (“SVPA”), does not authorize the People to retain a private expert witness to testify at trial in connection with an SVPA petition. (Note: ...

Connecticut Supreme Court Announces ‘John Doe’ Warrant Based on Suspect’s General Description and Partial DNA Profiles, Which May or May Not Include Suspect’s DNA, Fails to Satisfy ‘Particularity Requirement’ of Fourth Amendment

by Douglas Ankney

In an issue of first impression with potentially nationwide implications, the Supreme Court of Connecticut held that a “John Doe” warrant that was based on the general description of a suspect and on several mixed partial DNA profiles, which may or may not have included the suspect’s ...

Tenth Circuit: Prisoner Convicted of Covered Drug Offense but Sentenced to Mandatory Life Sentence Via Cross Reference for Murder Under Pre-Booker Guidelines Has Standing to Request First Step Act Sentence Reduction

by Douglas Ankney

The U.S. Court of Appeals for the Tenth Circuit held that a prisoner convicted of a covered drug offense but who was sentenced to a mandatory life sentence via a cross reference for murder under the U.S. Sentencing Guidelines (“Guidelines”) in effect before United States v. Booker ...

NYC: The First DNA Gun Crimes Unit in America

by Harold Hempstead

In the beginning of July 2022, New York City Mayor Eric Adams and the City’s Chief Medical Examiner Dr. Jason Graham announced at a press conference that NYC is opening the nation’s very first DNA “gun crimes unit at a public DNA crime laboratory.”

The two-and-a-half million ...

Sixth Circuit: Unarmed Bank Robber Who Ordered Tellers to Get on the Floor Not Subject to Enhancement for Physical Restraint

by Matt Clarke

The U.S. Court of Appeals for the Sixth Circuit held that the sentence of a convicted bank robber who did not have a gun, did not touch, bind, tie up, or lock up bank employees and did not tell them to move to another location could not ...

Traditional Forensic Ballistics Comparisons Giving Way to Virtual 3D Methods

by Casey J. Bastian

Forensic experts have been conducting ballistics comparisons and presenting their testimony in courts for more than 100 years. Experts frequently imply that accurately identifying that a specific gun fired a particular bullet is straightforward: Simply search for distinctive marks on a bullet made by the barrel ...

The National Registry of Exonerations 2021 Annual Report: 161 Exonerations Comprising 1,849 Years of Wrongful Imprisonment

by Casey J. Bastian

The National Registry of Exonerations (“NRE”) recorded a total of 226 exonerations in 2021. Of these, 161 were discovered in 2021. The remaining 65 were discovered in previous years, only being recorded by the NRE in 2021. Each of the 161 persons exonerated spent an average ...

Massachusetts Supreme Judicial Court Ends Practice of Juvenile Courts Granting Continuances for Sole Purpose of Extending Delinquent’s Period of Detention

by Douglas Ankney

The Supreme Judicial Court of Massachusetts ended the practice of judges presiding over juvenile delinquency proceedings and granting continuances for the sole purpose of extending the delinquent’s period of incarceration.

A juvenile identified as “Noah N.” was 17-years-of-age when he allegedly punched and bit a family or ...

Mislabeling of Marijuana Products Is a National Problem

by Kevin W. Bliss

A recent study showed that many vendors of hemp products legal under the Agriculture Improvement Act of 2018, commonly known as the 2018 Farm Bill, actually carry a chemical makeup of higher than 0.3% of tetrahydrocannabinol (“THC”), classifying it as marijuana, a Schedule I controlled substance. ...

Review of Prior Research Identifies Three Main Sources of Bias in Jury Decision-Making Processes

by Casey J. Bastian

In our adversarial court systems, a person impaneled on a jury is tasked with a seemingly straight-forward duty: determine the reliability and credibility of trial evidence, deliberate, and render a decision. However, studies reveal that this process is not so simple. Jurors are often irrational — ...

Police Foundations: The Impossible Task of Separating the World of Policing From the World of Corporate Money

by Casey J. Bastian

“Not a lot of people are aware of this public-private partnership where corporations and wealthy donors are able to siphon money into police forces with little to no oversight.” — Gin Armstrong, senior research analyst at LittleSis.

 

Police foundations are private organizations that engage in ...

People Convicted of Sex Crimes Remain Incarcerated 25 Years After Completing Their Prison Sentences

by Douglas Ankney

With the recent overturning of Roe v. Wade, 410 U.S. 113 (1973), news pundits and left-leaning politicians decry the “radical” justices on the U.S. Supreme Court as if the High Court’s utter disrespect for the freedom guaranteed under the U.S. Constitution is a recent development. Beginning ...

Charlotte Is Ground Zero for New FBI Asset Forfeiture Tip Line Program

by Casey J. Bastian

The FBI has identified Charlotte, North Carolina, as a drug trafficking hub because it has “multiple interstates running directly through” it. The FBI claims that this makes the Queen City an “appealing” route to traffickers delivering product and transferring cash “up and down the East Coast.” ...

News in Brief

Alabama: WBMA in Birmingham reported that a former probation officer in Fayette County was convicted of sexual misconduct on Dec. 8, 2022. The former officer, Michael Steven Painter, 51, was found guilty on charges of using his office for personal gain and custodial sexual misconduct — the trial lasted ...

Theft of Public Funds or Accounting Incompetence? Kansas Police Agencies Can’t Accurately Track Property Forfeitures

by Jacob Barrett

In 2019, Kansas enacted a law that requires police agencies to accurately track and report amounts seized from property forfeitures — known as civil asset forfeiture. As of 2022, more than half of the police agencies have failed to do so.

Under the law, the Kansas Bureau ...

 

 

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