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Criminal Legal News: May, 2023

Issue PDF
Volume 6, Number 5

In this issue:

  1. The Business of Dying: Coroners, Medical Examiners, and the Crisis of Death Investigations in the United States (p 1)
  2. Wisconsin Supreme Court: Riding Same Make of Motorcycle as Reported by Police Speeding and Driving Erratically Does Not Constitute Reasonable Suspicion to Initiate Traffic Stop (p 12)
  3. Fifth Circuit Announces Altered Serial Number Enhancement Does Not Apply Where Gun Never Had Serial Number (p 13)
  4. Police Killings Reach Record High – But Also Lower than Ever Before (p 14)
  5. Computing Fear in Black and Brown Communities (p 14)
  6. How Junk Science Helped Kill Tyre Nichols (p 15)
  7. Ohio Supreme Court Holds Termination of Community Control Is Final Discharge for Purposes of Sealing Records and Terminates Unsatisfied Condition to Pay Child-Support Arrearages (p 16)
  8. Eighth Circuit: Defendant Facing Revocation of Supervised Release Did Not Knowingly and Voluntarily Waive Right to Counsel Where Appointed Counsel Admittedly Knew Nothing About Case and Advised Choosing Between ‘Big House or the Nut House’ (p 17)
  9. First Circuit Vacates Sentence Containing 20-Year Upward Variance Because District Court Failed to Provide Case-Specific Factors or Rationale for Such a Large Variance (p 18)
  10. Idaho Supreme Court: Drug-Detection Dog Conducted Warrantless Search by Placing Paws on Exterior of Vehicle to Sniff for Drugs (p 20)
  11. Vermont Supreme Court Announces ‘Pinging’ Cellphone to Obtain Real-Time CSLI Constitutes a Search Requiring a Warrant or Recognized Exception (p 21)
  12. Georgia Supreme Court: Trial Courts Are Bound to Follow Precedent of Court of Appeals (p 22)
  13. A Brief History of K-9 Units in Law Enforcement (p 23)
  14. Federal Habeas Corpus: The Evidentiary Hearing for Federal Prisoners (p 24)
  15. New York State’s Veterans Treatment Courts (p 26)
  16. Police Violence Ignored When It Fails to Support the Media’s Ideological Bias (p 26)
  17. Arizona Wants to TRAC Your Financial Transactions (p 27)
  18. How Minneapolis Uses Controversial Technology to Spy on Its Citizens (p 28)
  19. Seventh Circuit Vacates Federal Drug Conspiracy Conviction Because District Court Failed to Ensure Defendant Understood ‘Agreement’ Element of Conspiracy and Failed to Ensure Factual Basis for Guilty Plea (p 30)
  20. California Court of Appeal: Trial Court Erred by Concluding Senate Bill 1393 Does Not Apply to Cases Already Final on Appeal (p 32)
  21. The FBI Used an Undercover Cop With Pink Hair to Spy on Activists and Manufacture Crimes (p 34)
  22. Hawaii Supreme Court: Plain Error Not Providing ‘Incidental Restraint’ Jury Instruction Where Kidnapping Only Charge After Dismissing Abuse Charges Prior to Trial (p 36)
  23. Ohio Supreme Court Clarifies Meaning of ‘Outcome Determinative’ in Context of Motion for Postconviction DNA Testing (p 37)
  24. Seventh Circuit: District Court’s Failure to Address Nonfrivolous Argument Raised in First Step Act Motion Constitutes Procedural Error in Violation of Concepcion (p 38)
  25. Tenth Circuit Deepens Circuit Split on Whether District Courts May Consider ‘Retribution’ in Deciding Whether to Revoke Supervised Release, Ruling It Is an Impermissible Factor to Consider (p 39)
  26. Supervised Release and the Erosion of Due Process Protection (p 41)
  27. Houston Prosecutors Profit Millions From Cash Illegally Seized (p 43)
  28. California Supreme Court Announces Government’s Continuing Brady Obligations and Ethical Duty of Disclosure During Habeas Proceedings Regarding Alleged Exculpatory Evidence Available at Time of Trial but Suppressed (p 44)
  29. Beware of Smart Devices That Infringe on Your Privacy (p 47)
  30. News in Brief (p 50)
  31. California Court Rejects Geofence Warrant (p 50)

The Business of Dying: Coroners, Medical Examiners, and the Crisis of Death Investigations in the United States

by Benjamin Tschirhart

A medieval system: historical and modern coroners and death investigations

If there is one thing which most sets us apart as humans, it must be our answer to death. We are not the only creatures who mourn our dead, but we are among the only ones who ...

Wisconsin Supreme Court: Riding Same Make of Motorcycle as Reported by Police Speeding and Driving Erratically Does Not Constitute Reasonable Suspicion to Initiate Traffic Stop

by Anthony W Accurso

THe Supreme Court of Wisconsin held that the information upon which an officer relied to conduct an investigatory stop was insufficiently particularized to constitute reasonable suspicion because it consisted only a vehicle’s make – a Harley-Davidson motorcycle.

On a Saturday night in April, a sheriff’s deputy ...

Fifth Circuit Announces Altered Serial Number Enhancement Does Not Apply Where Gun Never Had Serial Number

by Richard Resch

The U.S. Court of Appeals for the Fifth Circuit joined four of its sister Circuits in holding that U.S. Sentencing Guideline § 2K2.1(b)(4)(B) does not apply in cases where the firearm in question never had a serial number.

A Houston Police Department officer conducted a traffic stop ...

Police Killings Reach Record High – But Also Lower than Ever Before

by Benjamin Tschirhart

There were more police killings last year than any year before. Also, we’ve never had it so good. Different sources are claiming both of these things. Obviously, they can’t both be true. Or can they? The only certain (and least satisfying) answer seems to be this: the ...

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 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 policing systems ...

How Junk Science Helped Kill Tyre Nichols

By Eike Blohm, MD

The militarization of American police is based on decades-old flawed pseudoscientific studies. The consequences are the deaths of unarmed civilians like Tyre Nichols.

In 1989, a pivotal study entitled “Killed in the Line of Duty” was published and circulated widely among law enforcement professionals. It even ...

Ohio Supreme Court Holds Termination of Community Control Is Final Discharge for Purposes of Sealing Records and Terminates Unsatisfied Condition to Pay Child-Support Arrearages

by Matthew Thomas Clarke

The Supreme Court of Ohio held termination of nonresidential community control (“NCC”) is a “final discharge” within the meaning of R.C. 2953.32, permitting eligibility to apply to seal the record of a conviction three years after a felon receives final discharge even if some of the ...

Eighth Circuit: Defendant Facing Revocation of Supervised Release Did Not Knowingly and Voluntarily Waive Right to Counsel Where Appointed Counsel Admittedly Knew Nothing About Case and Advised Choosing Between ‘Big House or the Nut House’

by Mark Wilson

The U.S. Court of Appeals for the Eighth Circuit vacated a Minnesota man’s 12-month supervised release revocation sanction, finding that the U.S. District Court for the District of Minnesota improperly forced him to choose between inadequate counsel and no counsel during revocation proceedings.

Phillip Ivers was convicted ...

First Circuit Vacates Sentence Containing 20-Year Upward Variance Because District Court Failed to Provide Case-Specific Factors or Rationale for Such a Large Variance

by Richard Resch

The U.S. Court of Appeals for the First Circuit vacated Jadnel Flores-Nater’s 30-year prison sentence containing a 20-year upward variance because the District Court failed to provide the required case-specific rationale to justify an upward variance of that magnitude.

On June 8, 2018, Flores-Nater together with four ...

Idaho Supreme Court: Drug-Detection Dog Conducted Warrantless Search by Placing Paws on Exterior of Vehicle to Sniff for Drugs

by Richard Resch

In a case of first impression, the Supreme Court of Idaho held that police conducted a warrantless search of a vehicle when a drug-detection dog trespassed against personal property by placing his paws on the exterior of the vehicle and performed a free-air sniff in order to ...

Vermont Supreme Court Announces ‘Pinging’ Cellphone to Obtain Real-Time CSLI Constitutes a Search Requiring a Warrant or Recognized Exception

by Richard Resch

The Supreme Court of Vermont held that individuals have a reasonable expectation of privacy under the state Constitution in their real-time cell site location information (“CSLI”), and obtaining this information by police requires a warrant, unless a recognized exception to the warrant requirement applies.

On December 28, ...

Georgia Supreme Court: Trial Courts Are Bound to Follow Precedent of Court of Appeals

by Harold Hempstead

The Supreme Court of Georgia granted John A. Esposito’s application for discretionary appeal to answer in the affirmative the question of whether trial courts are bound to follow precedents of the Court of Appeals that have not been overturned.

On June 11, 2022, the trial court issued ...

A Brief History of K-9 Units in Law Enforcement

by Kevin W. Bliss

The history of canine use in modern day policing began in the 1950s and ‘60s as a response to the “Negro problem” and has been used as a tool to “civilize the savagery of urban orders,” according to civil rights advocates of that time.

Societies began ...

Federal Habeas Corpus: The Evidentiary Hearing for Federal Prisoners

by Dale Chappell

If you’re filing for post-convictionrelief under 28 U.S.C. § 2255, getting the court to grant an evidentiary hearing is a big step toward getting that relief. Successful § 2255 motions are often based on claims asserting facts that are not in the record. Indeed, the primary purpose ...

New York State’s Veterans Treatment Courts

by Ed Lyon

The U.S. has been involved in Middle Eastern wars since 1990’s Operation Desert Storm until the troop withdrawal from Afghanistan under President Biden in 2020. Consequently, there are around 19 million veterans in the country today, many of them with combat experience, and many of those suffering ...

Police Violence Ignored When It Fails to Support the Media’s Ideological Bias

by Benjamin Tschirhart and Richard Resch

The tragic shootings of Black people by white police officers are a catalyst for national outrage. They are regular grist for the media mill across the country and rightly receive the attention of the public when they occur, as they do all too frequently. ...

Arizona Wants to TRAC Your Financial Transactions

by Michael Dean Thompson

The State of Arizona’s Attorney General, together with the Phoenix Field Office of the Department of Homeland Security’s Homeland Security Investigations, has collected more than 145 million records of private financial transactions — and that number is likely still growing. The transactions were collected from companies ...

How Minneapolis Uses Controversial Technology to Spy on Its Citizens

by Michael Dean Thompson

Through a series of public records requests to the Hennepin County Sheriff’s Office, Unicorn Riot (a non-profit, media-based organization of journalists) has obtained rare insight into how the police department responsible for George Floyd’s death uses technology to spy on its citizens. In all, they gathered ...

Seventh Circuit Vacates Federal Drug Conspiracy Conviction Because District Court Failed to Ensure Defendant Understood ‘Agreement’ Element of Conspiracy and Failed to Ensure Factual Basis for Guilty Plea

by Mark Wilson

The U.S. Court of Appeals for the Seventh Circuit held that the U.S. District Court for the Southern District of Indiana committed plain error in accepting a guilty plea without ensuring that the defendant understood the nature of the charged drug conspiracy offense and that there was ...

California Court of Appeal: Trial Court Erred by Concluding Senate Bill 1393 Does Not Apply to Cases Already Final on Appeal

by Douglas Ankney

The Court of Appeal of California, Sixth Appellate District, held that the trial court erred by denying recall of a prisoner’s sentence on the erroneous premise that Senate Bill 1393 (“SB 1393”) does not apply to cases already final on appeal, and the Court further held that ...

The FBI Used an Undercover Cop With Pink Hair to Spy on Activists and Manufacture Crimes

by Trevor Aaronson

The young woman with long pink hair claimed to be from Washington state. One day during the summer of 2020, she walked into the Chinook Center, a community space for left-wing activists in Colorado Springs, Colorado, and offered to volunteer.

“She dressed in a way that was ...

Hawaii Supreme Court: Plain Error Not Providing ‘Incidental Restraint’ Jury Instruction Where Kidnapping Only Charge After Dismissing Abuse Charges Prior to Trial

by Mark Wilson

The Supreme Court of Hawaii held that a trial court plainly erred in failing to instruct the jury that the “restraint” necessary for a kidnapping conviction is “restraint in excess of any restraint incidental to the infliction or intended infliction of bodily injury or subjection or intended ...

Ohio Supreme Court Clarifies Meaning of ‘Outcome Determinative’ in Context of Motion for Postconviction DNA Testing

by Douglas Ankney

The Supreme Court of Ohio clarified the meaning of “outcome determinative” in the context of a motion filed pursuant to R.C. 2953.73, seeking postconviction DNA testing.

Guy Billy Lee Scott was convicted by jury in 1992 for the assault, rape, and murder of Lesa Buckley and sentenced ...

Seventh Circuit: District Court’s Failure to Address Nonfrivolous Argument Raised in First Step Act Motion Constitutes Procedural Error in Violation of Concepcion

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit ruled that when deciding a motion for a sentence reduction under § 404 of the First Step Act (“FSA”), a District Court must demonstrate it considered every nonfrivolous argument raised by the defendant.

In 2005, Jamell Newbern pleaded ...

Tenth Circuit Deepens Circuit Split on Whether District Courts May Consider ‘Retribution’ in Deciding Whether to Revoke Supervised Release, Ruling It Is an Impermissible Factor to Consider

by Richard Resch

The U.S. Court of Appeals for the Tenth Circuit held that the U.S. District Court for the Eastern District of Oklahoma erred by sentencing the defendant to the statutory maximum for violating the terms of his supervised release because the court based its decision, at least in ...

Supervised Release and the Erosion of Due Process Protection

by Benjamin Tschirhart

There is an abundance of ways to become involved in the U.S. carceral state. Going in is very easy, but getting out, now, that’s a different story. In fact, for many people convicted of a crime, their involvement with the criminal justice system will be lifelong, even ...

Houston Prosecutors Profit Millions From Cash Illegally Seized

by Jacob Barrett

Apparently “everything in Texas isbigger,” including the corruption and dirty tactics used by police and prosecutors to profit off cases compromised by police.

In 2019, the Houston Police Department was forced to dismiss dozens of criminal cases after it came to light they were tainted by Gerald ...

California Supreme Court Announces Government’s Continuing Brady Obligations and Ethical Duty of Disclosure During Habeas Proceedings Regarding Alleged Exculpatory Evidence Available at Time of Trial but Suppressed

by Richard Resch

In a case of first impression, the Supreme Court of California announced the constitutional, ethical, and habeas procedural principles that govern postconviction proceedings in which a habeas petitioner claims that exculpatory evidence was available at the time of trial but suppressed by the government with the suppression ...

Beware of Smart Devices That Infringe on Your Privacy

by Casey J. Bastian

The Surveillance Technology Oversight Project (“STOP”) released a review of smart devices entitled: “The Trojan House.” The revelations are concerning. If you like your privacy and don’t want strangers, hackers, and law enforcement surveilling you, especially in your home, “smart” devices are a dumb idea. Smart ...

News in Brief

News in Brief

Alabama: It was announced by the Madison County Sheriff’s Office on Feb. 20, 2023, that a police officer in Madison was arrested, accused of sexual misconduct. AL.com and WHNT in northern Alabama reported that the officer, Kevin Walter, 35, was arrested on Feb. 8, 2023, and ...

California Court Rejects Geofence Warrant

by Anthony W Accurso

A California trial court held that a geofencewarrant obtained by the San Francisco PD violated the Fourth Amendment and the recently enacted California Electronic Communications Privacy Act (“CalECPA”), requiring future warrants to be more narrowly tailored.

People v. Dawes, Court No. 19002022, SW# 42739, involved ...

 

 

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