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Criminal Legal News: March, 2023

Issue PDF
Volume 6, Number 3

In this issue:

  1. They Called 911 for Help. Police and Prosecutors Used a New Junk Science to Decide They Were Liars. (p 1)
  2. Indiana Supreme Court: Defendant Who Was Both Victim of Crime and Suspect in Unrelated Crime Entitled to Pirtle Warning Prior to Police Asking for Consent to Search Home (p 12)
  3. Federal Habeas Corpus: How to Raise a Fourth Amendment Claim (p 14)
  4. Seventh Circuit: State Court Decision Not Entitled to AEDPA Deference Due to Incorrect Legal Standard, Pro Se Habeas Petition Granted Based on Trial Counsel’s Failure to Present Expert Witness on Determinative Issue of Guilt Resulting in IAC (p 16)
  5. Colorado Supreme Court: Police Lacked Reasonable Suspicion for Traffic Stop Based on Alleged Unsafe Lane Change (p 18)
  6. California Court of Appeal: Right to Withdraw Plea 23 Years After Entered Because Counsel Failed to Properly Advise of Immigration Consequences and Defendant Mistakenly Believed Permanent Resident Status Barred Adverse Immigration Consequences (p 20)
  7. California Court of Appeal Affirms Grant of Suppression Motion Where Officer’s Pat Search of Defendant Based on High Crime Area, Baggy Clothes, Criminal Record, and Suspect in Separate Case (p 22)
  8. New Jersey Supreme Court: Edwards Violation When Police Fail to Cease Interrogation After Suspect Makes Ambiguous Invocation of Right to Counsel and ‘Initiates’ Request for Further Communication with Police (p 24)
  9. Missouri Supreme Court: Use of Out-of-Court Statement Admitted at Trial Exceeded Limited Purpose of Exception to Rule Against Hearsay Upon Which It Was Admitted (p 26)
  10. Your Car Knows a Lot About You, and the Police Are Listening (p 27)
  11. Ohio Supreme Court: Defendant Has Reasonable and Legitimate Basis to Withdraw Guilty Plea Before Sentencing When He Discovers Evidence That Would Have Affected Decision (p 28)
  12. California Court of Appeal: ‘Actual Killer’ Under Felony-Murder Rule Means Person ‘Who Personally Killed the Victim” (p 30)
  13. Attorney General Garland Orders Federal Prosecutors to End Sentencing Disparities Between Crack and Powder Cocaine (p 31)
  14. Governor of Oregon Leaves Legacy of Reformation While Leaving Office (p 32)
  15. Nevada Supreme Court: Trial Court Erred in Denying Motion to Substitute Counsel Where Ample Evidence Showed Counsel Was Unprepared and Motion Timely (p 32)
  16. Seventh Circuit: Defendant Entitled to Present Entrapment Defense Where ‘Some Evidence’ Exists of Government Inducement and Lack of Predisposition to Commit Crime (p 34)
  17. California Court of Appeal: Trial Court’s Denial of Faretta Request Without Finding of ‘Severe Mental Illness’ Denied Defendant Sixth Amendment Right to Self-Representation (p 36)
  18. Minneapolis Police Department Surveillance Operation Kneels on the Neck of the First Amendment (p 36)
  19. Ninth Circuit: No Qualified Immunity for Detective Who Arrested Anti-Police-Slogan Sidewalk Chalkers, but Not Other Chalkers Whose Content Wasn’t Anti-Police, Even Though There Was Probable Cause to Arrest (p 38)
  20. Massachusetts Supreme Court: Commonwealth Failed to Show GPS Monitoring as Condition of Probation Is Constitutional (p 39)
  21. Sixth Circuit Announces Nonretroactive Change in Sentencing Law Is Not an ‘Extraordinary and Compelling Reason’ Warranting a Sentence Reduction under Compassionate Release Statute (p 40)
  22. Oregon Supreme Court: Federal Law Prohibits Elected DA’s Delegation of Wiretap Authority and Overbroad Initial Search Warrant Requires Suppression of Evidence Obtained as Result of Over 20 Subsequent Warrants (p 42)
  23. Invasions of Privacy for People on Electronic Monitoring Is a Warning of Worse Things to Come (p 43)
  24. The District of Colombia: Inside the Most Expansive Surveillance Network in America (p 44)
  25. Florida Supreme Court Settles Circuit Split, Holding Dual DUI Convictions Regarding Single Victim in Single Incident Violates Double Jeopardy (p 45)
  26. Houston Cop from Fatal Raid Lied in Other Cases (p 46)
  27. Electronic Freedom Foundation’s Atlas of Surveillance Helps You Watch Those Who Watch Us (p 47)
  28. Was the DNA at the Crime Scene Left by the Perpetrator – or by a Pet? (p 47)
  29. New York Police Department Joins Crowdsourced Surveillance Ring Neighbors App (p 48)
  30. Registry of Approved Standards Adds Two New 3D Firearm Analysis Standards (p 48)
  31. FBI Heist Made Public (p 49)
  32. New San Francisco Ordinance Allows Police to Access Private Security Cameras (p 49)
  33. Cruel and Unusual: Residency Restrictions Force Registrant to Die Among Strangers (p 50)
  34. News in Brief (p 50)

They Called 911 for Help. Police and Prosecutors Used a New Junk Science to Decide They Were Liars.

by Brett Murphy, ProPublica

Tracy Harpster, a deputy police chief from suburban Dayton, Ohio, was hunting for praise. He had a business to promote: a miracle method to determine when 911 callers are actually guilty of the crimes they are reporting. “I know what a guilty father, mother or boyfriend ...

Indiana Supreme Court: Defendant Who Was Both Victim of Crime and Suspect in Unrelated Crime Entitled to Pirtle Warning Prior to Police Asking for Consent to Search Home

by Anthony Accurso

The Supreme Court of Indiana reversed the denial of a suppression motion after finding that the arresting officer failed to advise the defendant of his right to counsel prior to consenting to a search of his home, as is required by Pirtle v. State, 323 N.E.2d ...

Federal Habeas Corpus: How to Raise a Fourth Amendment Claim

by Dale Chappell

The slam dunk for federal habeas claims, if such a thing exists, would be a claim that successfully challenges the evidence in a criminal case. By tossing the unlawfully-obtained evidence, not only would the conviction be overturned, but the prosecution wouldn’t have a case for a new ...

Seventh Circuit: State Court Decision Not Entitled to AEDPA Deference Due to Incorrect Legal Standard, Pro Se Habeas Petition Granted Based on Trial Counsel’s Failure to Present Expert Witness on Determinative Issue of Guilt Resulting in IAC

by Jacob Berrett

The U.S. Court of Appeals for the Seventh Circuit affirmed the U.S. District Court for the Northern District of Indiana’s order granting Dewayne A. Dunn’s petition for habeas corpus based upon ineffective assistance of counsel and prejudice where trial counsel failed to consult a forensic pathologist in ...

Colorado Supreme Court: Police Lacked Reasonable Suspicion for Traffic Stop Based on Alleged Unsafe Lane Change

by Anthony W Accurso

The Supreme Court of Colorado, sitting en banc, ruled that a state trooper lacked reasonable suspicion to initiate a traffic stop based on the driver allegedly making an unsafe lane change based on the totality of the circumstances.

Trooper Bollen was patrolling in the eastbound ...

California Court of Appeal: Right to Withdraw Plea 23 Years After Entered Because Counsel Failed to Properly Advise of Immigration Consequences and Defendant Mistakenly Believed Permanent Resident Status Barred Adverse Immigration Consequences

by David M. Reutter

The Court of Appeal of California, Second Appellate District, ruled that Miguel Lopez “demonstrated a reasonable probability that if he had been properly advised of the immigration consequences of his plea, he would not have pleaded no contest to an offense that would subject him to ...

California Court of Appeal Affirms Grant of Suppression Motion Where Officer’s Pat Search of Defendant Based on High Crime Area, Baggy Clothes, Criminal Record, and Suspect in Separate Case

by Douglas Ankney

The Court of Appeal of California, First Appellate District, affirmed the Solano County Superior Court’s order granting Juan Pantoja’s motion to suppress evidence because Vacaville Police Officer Chris Hill did not have articulable facts to support a reasonable suspicion to pat search Pantoja. The Court also affirmed ...

New Jersey Supreme Court: Edwards Violation When Police Fail to Cease Interrogation After Suspect Makes Ambiguous Invocation of Right to Counsel and ‘Initiates’ Request for Further Communication with Police

by Jacob Barrett

The Supreme Court of New Jersey ruled that under the Edwards rule the defendant did not “initiate” further communications with police officers at the conclusion of an unlawful interrogation, so all evidence obtained during the subsequent interrogation must be suppressed.

In February 2014, Abayuba Rivas reported to ...

Missouri Supreme Court: Use of Out-of-Court Statement Admitted at Trial Exceeded Limited Purpose of Exception to Rule Against Hearsay Upon Which It Was Admitted

by Matt Clarke

The Supreme Court of Missouri, sitting en banc, held that the trial court committed prejudicial error by allowing a police detective to testify at trial regarding an out-of-court statement made to police by a person who did not testify at trial to prove the matter asserted ...

Your Car Knows a Lot About You, and the Police Are Listening

by Michael Thompson

For years now, cars have allowed us to synch our devices with their onboard computers, giving us hands-free and Wi-Fi access along with a wealth of infotainment options. A user could be forgiven for believing the data is transient, i.e., temporarily stored during use and erased when ...

Ohio Supreme Court: Defendant Has Reasonable and Legitimate Basis to Withdraw Guilty Plea Before Sentencing When He Discovers Evidence That Would Have Affected Decision

by Douglas Ankney

The Supreme Court of Ohio held that Terry Barnes Sr. had a reasonable and legitimate basis to withdraw his guilty plea before sentencing when he discovered evidence that had been withheld from him by his attorney and that evidence would have negated his decision to plead guilty ...

California Court of Appeal: ‘Actual Killer’ Under Felony-Murder Rule Means Person ‘Who Personally Killed the Victim”

by Harold Hempstead

The Court of Appeal of California, Third Appellate District, held that the term “actual killer” under the current felony-murder rule, as amended by Senate Bill No. 1437 (2017-2018 Reg. Sess.), means the person who personally committed the homicidal act.

On February 3, 2017, Jerry Vang got in ...

Attorney General Garland Orders Federal Prosecutors to End Sentencing Disparities Between Crack and Powder Cocaine

by Matt Clarke

On December 16, 2022, U.S. Attorney General Merrick Garland issued a memorandum to all federal prosecutors instructing them to seek to have defendants charged with drug offenses involving crack cocaine charged such that the sentence would be the same as if it involved powder cocaine, unless the ...

Governor of Oregon Leaves Legacy of Reformation While Leaving Office

by Kevin W. Bliss

Criminal justice reform proactivist Governor Kate Brown (D) has granted over 1,100 clemencies during her two terms in office, more than the 50 previous governors before her combined. In response to the COVID-19 pandemic and input from the Criminal Justice Reform Clinic (“CJRC”) founded in 2015 ...

Nevada Supreme Court: Trial Court Erred in Denying Motion to Substitute Counsel Where Ample Evidence Showed Counsel Was Unprepared and Motion Timely

by Harold Hempstead

The Supreme Court of Nevada ruled that a trial court erred in denying defendant’s motion to substitute counsel where the record demonstrated defense counsel was unprepared for trial and motion was timely.

Dequincy Brass was charged with 22 crimes based on allegations that he kidnapped and sexually ...

Seventh Circuit: Defendant Entitled to Present Entrapment Defense Where ‘Some Evidence’ Exists of Government Inducement and Lack of Predisposition to Commit Crime

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit held that Robert Shawn Anderson was entitled to present his entrapment defense to the jury because there was some evidence that the Government induced him to commit the crime and some evidence that he lacked any predisposition to ...

California Court of Appeal: Trial Court’s Denial of Faretta Request Without Finding of ‘Severe Mental Illness’ Denied Defendant Sixth Amendment Right to Self-Representation

by Matt Clarke

The Court of Appeal of California, Fourth Appellate District, reversed a conviction for assault on a peace officer by means of force likely to produce great bodily injury in violation of Penal Code § 245(c) after finding that the trial court erred in denying the defendant’s request ...

Minneapolis Police Department Surveillance Operation Kneels on the Neck of the First Amendment

by Casey J. Bastian

The actions and eventual trial of Derek Chauvin were at the center of multiple protests. The people had had enough of police brutality and a lack of accountability in Minneapolis; they were angry and wanted everyone to take notice. Law enforcement took notice and responded by ...

Ninth Circuit: No Qualified Immunity for Detective Who Arrested Anti-Police-Slogan Sidewalk Chalkers, but Not Other Chalkers Whose Content Wasn’t Anti-Police, Even Though There Was Probable Cause to Arrest

by Matt Clarke

The U.S. Court of Appeals for the Ninth Circuit held that a Las Vegas, Nevada, police detective was not entitled to qualified immunity for arresting sidewalk chalkers who had chalked anti-police slogans, when he did not arrest other chalkers whose themes were not anti-police, even though he ...

Massachusetts Supreme Court: Commonwealth Failed to Show GPS Monitoring as Condition of Probation Is Constitutional

by Anthony W Accurso

The Supreme Judicial Court of Massachusetts overturned a Superior Court’s denial of a defendant’s motion challenging a condition of his probation which required GPS monitoring, ruling the Commonwealth failed to prove that the search occasioned by the monitoring was constitutionally justified.

Timothy M. Roderick was convicted ...

Sixth Circuit Announces Nonretroactive Change in Sentencing Law Is Not an ‘Extraordinary and Compelling Reason’ Warranting a Sentence Reduction under Compassionate Release Statute

by Douglas Ankney

A divided en banc U.S. Court of Appeals for the Sixth Circuit, in a 9 to 7 split, held that a nonretroactive change in sentencing law is not an “extraordinary and compelling reason” warranting a sentence reduction under the compassionate-release statute, 18 U.S.C. § 3582(c)(1).

In 2015, ...

Oregon Supreme Court: Federal Law Prohibits Elected DA’s Delegation of Wiretap Authority and Overbroad Initial Search Warrant Requires Suppression of Evidence Obtained as Result of Over 20 Subsequent Warrants

by Mark Wilson

The Supreme Court of Oregon unanimously upheld a lower court’s suppression of the State’s wiretap evidence, concluding that the wiretaps violated federal law. It also affirmed the trial court’s suppression of search warrant evidence because the warrants lacked specificity and were overbroad.

During the evening of September ...

Invasions of Privacy for People on Electronic Monitoring Is a Warning of Worse Things to Come

by Benjamin Tschirhart

In the wake of the COVID-19 pandemic, the paradigm has shifted for the millions of Americans on “community supervision” — a category which includes those on probation, parole, and pretrial release. Where probation once involved home visits and in-person appointments with probation officers, monitoring is increasingly carried ...

The District of Colombia: Inside the Most Expansive Surveillance Network in America

by Casey J. Bastian

Washington D.C. is not simply home to our nation’s capital or the seat of some of its most powerful institutions. What many people don’t realize is that the metropolitan area contains more officers from local, regional, and federal agencies per capita than any other city in ...

Florida Supreme Court Settles Circuit Split, Holding Dual DUI Convictions Regarding Single Victim in Single Incident Violates Double Jeopardy

by David M. Reutter

The Supreme Court of Florida held dual convictions for DUI causing damage to property or person – § 316.193(3)(c)(1), Florida Statutes – and DUI causing serious injury – § 316.193(3)(c)(2), Florida Statutes – as to the same victim arising from a single episode violates the prohibition ...

Houston Cop from Fatal Raid Lied in Other Cases

by Jayson Hawkins

In October 2016, Frederick Jeffery was arrested for possession of two-and-a-half grams of methamphetamine, which he repeatedly stated did not belong to him. As a person with prior convictions, he knew it was a huge risk to go to trial, but he stood by his claims of ...

Electronic Freedom Foundation’s Atlas of Surveillance Helps You Watch Those Who Watch Us

by Michael Dean Thompson

The Electronic Freedom Foundation (“EFF”), working with journalism students at the University of Nevada, Reno (“UNR”), created the Atlas of Surveillance as a pilot from counties along the U.S. border with Mexico in 2019. Its task was to track how the police use technology for surveillance. ...

Was the DNA at the Crime Scene Left by the Perpetrator – or by a Pet?

by Douglas Ankney

Collaborating with the Victoria Police Forensic Services Department, forensic science researcher and Ph.D. candidate Heidi Monkman, along with Dr. Mariya Goray – both from the College of Science and Engineering at Flinders – collected human DNA from 20 pet cats from multiple households. A whopping 80% of ...

New York Police Department Joins Crowdsourced Surveillance Ring Neighbors App

by Michael Dean Thompson

The New York Police Department (“NYPD”) has announced its decision to join Ring Neighbors, a neighborhood watch system leveraging doorbell video sharing and collaboration. The announcement heralds a dramatic expansion into the digital arena of an already technologically sophisticated police force. Together with more than 2,000 ...

Registry of Approved Standards Adds Two New 3D Firearm Analysis Standards

by Casey J. Bastian

In an effort to improve forensic firearm and toolmark analysis, the Organization of Scientific Area Committees for Forensic Science (“OSAC”) has updated its Registry of Approved Standards. OSAC is administered by the National Institute of Standards and Technology (“NIST”) and was launched in 2014. NIST claims ...

FBI Heist Made Public

by Jayson Hawkins

In another recent episode of “Law Enforcement Gone Wild,” unredacted documents reveal the FBI intentionally lied to a federal judge to obtain a search warrant authorizing agents to inventory hundreds of safe deposit boxes administered by a private security firm. Although the firm, U.S. Private Vaults, had ...

New San Francisco Ordinance Allows Police to Access Private Security Cameras

by Kevin W. Bliss

The San Francisco Board of Supervisors voted 7 to 4 on September 26, 2022, to adopt a proposed ordinance presented by Mayor London Breed to allow unfettered, instant access to private and business-owned surveillance camera footage with no more than the owner’s permission for public safety ...

Cruel and Unusual: Residency Restrictions Force Registrant to Die Among Strangers

by Eike Blohm, MD

A Texas woman was prevented from caring for her bedridden dying father in her home because she lived 894 feet from a playground.

Similar to many states, the Lone Star State enforces residency restriction for individuals on its sex offender registry. In the case of the ...

News in Brief

Alabama: The DOJ Civil Rights Division announced on Oct. 21, 2022, that a former sheriff’s deputy in Dallas County was charged with kidnapping and sexually assaulting a woman in the middle of the day on Jan. 30, 2020. The Miami Herald reported that the then-active deputy, Joshua Davidson, 32, ...

 

 

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