by Douglas Ankney

In People v. Kirschke, 53 Cal.App.3d 405 (1975), a firearm and toolmark identification (“FTI”) expert testified for the prosecution “that an evidence bullet had been fired by a particular firearm and that ‘no other weapon in the world was the murder weapon.’” But in post-conviction proceedings, court-appointed experts stated that a positive identification could not be made. The court found that the expert had “negligently presented false demonstrative evidence in support of his ballistics testimony.” Paul C. Giannelli, “Daubert Challenges to Firearms Identifications,” Case Western School of Law (2007) (“Giannelli’s Report”).

Then in 2006, departing from almost a century of judicial precedent, the U.S. District Court for the Southern District of New York limited the “expert” testimony of an FTI analyst by refusing to permit the expert to testify that, “to a reasonable degree of ballistic certainty,” a bullet and shell casings recovered at a crime scene came from firearms linked to the defendant. United States v. Glynn, 578 F. Supp. 2d 567 (S.D.N.Y. 2006). District Judge Jed S. Rakoff observed in Glynn that whatever else ballistics identification analysis could be called, it cannot fairly be called science. See Id.

The following article will: ...

by Christopher D. Cobb

I am a federal prisoner housed at theFederal Satellite Low located in Jesup (“Jesup”), Georgia, and a subscriber to both PLN and CLN. I obtained a Paralegal certificate from Blackstone Institute in January of 2020, with a corresponding Advanced Certificate in Criminal Law in July of 2020. Since then I have assisted the others incarcerated here at Jesup with filing for detainer removals, quashing pending warrants, dismissing various state charges, compassionate release motions, assisted both paid and appointed attorneys in legal research for multiple direct appeals for fellow prisoners, prepared nearly a dozen successful § 2255 petitions for fellows prisoners, and most recently, have devoted much effort towards the proper standards for both earning and having applied the First Step Act’s (“FSA”) Time Credits Program.

The many Latino prisoners housed here have recently credited me (undeservedly in my opinion) with getting the Bureau of Prisons (“BOP”) to recognize the mandatory nature of the Time Credits as expressed in the BOP’s Change Notice issued on March 10, 2023, in which the BOP acknowledged that those with both detainers and pending charges are now able to apply the Time Credits toward prerelease custody (Halfway House and Home ...

by Luke E. Sommer and James A. Lockhart

Prior to the passage of the First Step Actof 2018, federal prisoners had to rely on the Director of the Federal Bureau of Prisons (“Director”) to file motions for compassionate release on their behalf. Weirdly enough, that rarely happened. As a result, Congress took action and altered Title 18, U.S.C., § 3582(c)(1)(A) to allow prisoners to file their own motion. The floodgates opened, and thousands filed with a significant portion receiving relief. According to the U.S. Sentencing Commission Compassionate Release Data Report, Fiscal Years 2020 to 2022, out of 25,416 applications, 4,194 prisoners have received a sentence reduction or release through this statute.

This gold rush was not without its problems. The statute authorizing U.S. District Courts to disturb the finality of federal sentences requires that “extraordinary and compelling” grounds exist in order to justify relief and points to the U.S. Sentencing Guidelines for guidance in determining what extraordinary and compelling actually means. While this seems like a non-issue, the reality is a little more complicated.

The Guideline at issue – § 1B1.13 – hadn’t been updated since compassionate release was first conceived decades prior and, as a result, was hopelessly out ...

by Richard Resch

The Supreme Court of the United States held that when a prisoner’s request for postconviction DNA testing of evidence in accordance with the process established by the state is denied and the prisoner files a 42 U.S.C. § 1983 procedural due process claim challenging the constitutionality of the state process, the statute of limitations (“SOL”) for the § 1983 claim begins to run at the completion of the state-court litigation – including state-court appeals – not when the state trial court denies the request for DNA testing.

In 1996, Stacey Stites was strangled to death; Rodney Reed was charged with her murder. At trial, Reed argued that her fiancé or another acquaintance murdered her. The jury rejected his defense and convicted him. He was sentenced to death. His conviction and sentence were affirmed on appeal, and his state and federal habeas petitions were unsuccessful.

In 2014, Reed filed a motion requesting DNA testing on more than 40 items of evidence pursuant to Texas’ postconviction DNA testing law. See Tex. Code Crim. Proc. Ann., Arts. 64.01-64.05 (Vernon 2018). The state prosecutor, Bryan Goertz, opposed the motion, and the state trial court subsequently denied it. The court reasoned that ...

by Mark Wilson

The Supreme Court of Oregon vacated a murder conviction, holding that police questioning of a represented criminal defendant about an uncharged crime associated with the charged crime for which he had counsel violated his right to counsel under the Oregon Constitution. It also held that all evidence resulting from that violation should have been suppressed.

In 2011, George West Craigen was charged with four counts of Felon in Possession of a Firearm (“FIP”). He retained counsel, Gushwa, to represent him on those charges, and Gushwa sent notice of representation to the prosecutor, stating: “Please instruct all police officers and personnel of your office not to speak to the defendant without first obtaining written permission from me.”

When Craigen was scheduled to appear for a status conference on the FIP charges, he shot and killed his neighbor, Clark, on December 30, 2011. Two days later, detectives interrogated Craigen about the shooting but did not notify Gushwa because they mistakenly believed he no longer represented Craigen on the FIP charges. Gushwa later moved to withdraw, but he was still counsel of record when Craigen was interrogated.

Early in the interrogation, detectives asked why Craigen shot Carter. He said he ...

by Douglas Ankney

The Supreme Court of Idaho held that a confession obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), is inadmissible in the State’s case in chief against Daniel Lee Moore, but the confession may be used to impeach any claim of innocence by Moore if he were to testify at trial because Moore’s will was not “overborne” when he gave his statement, i.e., his confession was not coerced.

During Moore’s videotaped custodial interrogation regarding the fatal shooting of Dr. Brian Drake, who was shot through a window at his chiropractic office in Bonners Ferry, Idaho, Detective Sergeant Michael Van Leuven and Idaho State Police Detective Gary Tolleson accused Moore of killing Drake, which Moore repeatedly denied. After approximately four and a half minutes into the custodial interrogation, Van Leuven finally advised Moore of his Miranda rights and continued the interrogation.

They then outlined the evidence they had against Moore. Van Leuven explained to Moore the difference between a premeditated killing versus blindly shooting through a window, with the former resulting in a charge of first-degree murder and the latter being a lesser offense. Moore stated he did not know Drake and did not shoot ...

by Anthony W. Accurso

The Supreme Court of Ohio held that the Court of Appeals erred in applying the good faith exception to the exclusionary rule where the search warrant for cellphones found at the scene of a traffic accident stated that evidence of a crime “may” be found on the defendant’s cellphone.

A vehicle being driven by Alan Schubert crossed the center line, striking another vehicle. Only Schubert survived, and while he was unconscious and receiving care at a nearby hospital, investigators determined that his blood tested positive for amphetamine, methamphetamine, and fentanyl.

Shortly thereafter, police sought a search warrant to inspect three cellphones they recovered at the scene of the accident. The affidavit accompanying the warrant stated that the phones “may” contain additional evidence in connection with the investigation, so police wanted to obtain “personal identifiers” and metadata for “incoming and outgoing calls, text messages and/or internet browsing information,” including any of this information that could be obtained from “cloud storage,” on the premise that this information “may contain evidence … to the crime” of aggravated vehicular homicide. (emphasis supplied)

While searching Schubert’s phone, police discovered pictures of nude juveniles sufficient to support multiple counts of pandering ...

by Douglas Ankney

The U.S. Court of Appeals for the Eleventh Circuit, sitting en banc, held that a defendant must satisfy all three subsections of the First Step Act, 18 U.S.C. § 3553(f)(1) in order to be ineligible for “safety valve” sentencing relief.

Julian Garcon pleaded guilty to one count of attempting to possess 500 grams or more of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a) and 846. His offense carried a statutory minimum of five years’ imprisonment.

At sentencing, Garcon requested application of the “safety valve” provided for in § 3553(f), which provides that for certain crimes – including Garcon’s crime of conviction – the sentencing court “shall impose a sentence pursuant to [the U.S. Sentencing] [G]uidelines ... without regard to any statutory minimum sentence, if the court finds at sentencing” that the defendant satisfies each of the five numbered subsections. § 3553(f)(1)-(5).

While both Garcon and the Government agreed that he satisfied the requirements of subsections 3553(f)(2)-(5), the Government argued that Garcon’s prior 3-point offense made him ineligible under 3553(f)(1)(B). Garcon countered that he must meet the requirements of § 3553(f)(1)(A), (B), and (C) in order to be ineligible. The U.S. District Court ...

by Harold Hempstead

The Supreme Judicial Court of Massachusetts held that the pretrial detention period in General Laws c. 276, § 58B begins to run when a defendant is detained, not when an order of detention is formally issued.

On December 26, 2021, while Chayanne Velazquez was on bail on cases he had pending in the Boston Municipal Court (“BML”) and the Superior Court in Middlesex County (“SCMC”), he “allegedly committed an assault and battery….”. He was arraigned on the new charge on February 2, 2022, in the Lynn Division of the District Department (“Lynn District Court”). The Commonwealth filed motions in the Lynn District Court, requesting pretrial detention for Velazquez on his new case, GLC 276, § 58A, that his bail be revoked, and that he be detained on the cases he had pending in the BML and the SCMC. § 58B.

The arraignment judge found that probable cause existed under § 58A to detain Velazquez without bail until the court heard arguments on the Commonwealth’s motions. At the February 8, 2022, hearing on the motions, the judge ordered Velazquez be detained until June 8, 2022, (120 days) on the Lynn District Court case (§ 58A) and until May ...

by Douglas Ankney
The Court of Appeals of New York ruled that under state law an alternate juror discharged from service cannot subsequently be seated to deliberate the case.

Hasahn D. Murray and two codefendants were tried on assault and robbery charges. After counsel for both parties had given their summations to the jury, the trial judge addressed the two alternate jurors: “I can’t let you go without thanking you and telling you [that] you are excused from this case and from jury duty for about six years, that is the good news. You are excused now.” The court sent the jury to lunch, and the two alternate jurors left the courthouse.

During the break for lunch, the court learned that one of the trial jurors had discussed the case at a social gathering. The court dismissed the trial juror and – over defense counsel’s objection – contacted the two discharged alternate jurors, confirmed they had not discussed the case nor formed an opinion, and directed them to return to the courthouse the following morning. The next morning, the court re-seated the first alternate juror on the jury. The jury then began deliberations, ultimately finding Murray guilty of two counts ...

by Richard Resch

The U.S. Court of Appeals for the Seventh Circuit ruled that a suspect in a federal drug investigation who leased a condominium using a false name retained a subjective expectation of privacy in the premises that society recognizes as reasonable, and thus, the landlord could not give valid consent to the police to conduct a warrantless search of the premises.

During the course of a federal drug investigation in Indiana targeting Michael Thomas, he obtained multiple fake identification documents, including one under the name “Frieson Dewayne Alredius.” Using this identity, he leased a condominium in Atlanta, Georgia; nevertheless, federal investigators tracked him to the area and arrested him outside the building.

The landlord of the unit told investigators that she had leased it to an individual going by the name of “Alredius Frieson.” With her consent, investigators searched the unit and found drugs, drug paraphernalia, and six cellphones. Investigators obtained warrants to search the phones; they discovered evidence on them that Thomas was trafficking methamphetamine.

Thomas was indicted for conspiracy to distribute methamphetamine. 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846. He filed a motion to suppress evidence recovered from the leased condo unit, arguing that the landlord could ...

by Richard Resch

The Court of Appeal of California, Second Appellate District, held that a geofence warrant used to gather evidence in a homicide investigation that resulted in two murder convictions lacked the requisite particularity and was overbroad in violation of the Fourth Amendment. Nevertheless, the Court affirmed the convictions based on the good faith exception to the exclusionary rule due to the newness of geofence warrants as an investigative tool at the time the warrant was sought and executed.

Facts of the Case

On the morning of March 1, 2019, Adbadalla Thabet was shot and killed as he exited his car at a bank in Paramount, California. Surveillance video showed a gray sedan and red sedan following him. The driver of the gray car pulled slowly up to Thabet, fatally shot him, and sped away. The driver of the red car retrieved Thabet’s backpack and fled the scene.

Investigators learned that Thabet managed several local gas stations and had just picked up cash receipts from multiple locations prior to arriving at the bank. Upon reviewing surveillance video from those locations, the red and gray cars are seen tailing Thabet at two pick-up locations, but their license plate numbers are ...

by Mark Wilson

The Supreme Court of Washington, sitting en banc, announced a new rule for situations involving flagrant appeals to racial and ethnic bias by the prosecution during voir dire and vacated a Hispanic man’s convictions, concluding that the prosecution’s voir dire examination flagrantly “appealed to the jurors’ potential racial or ethnic bias, prejudice, or stereotypes and therefore constituted race based prosecutorial misconduct.”

Someone called police to report a possible vehicle prowler when they saw Joseph Mario Zamora walking to his niece’s house at about 9:30 p.m. on February 5, 2017. There was no actual vehicle prowler in the area.

When Zamora reached his niece’s driveway, police officer Kevin Hake approached, saying he needed to speak with him. Hake quickly became nervous, claiming later that Zamora was “looking through” him with eyes the “size of silver dollars.” Hake grabbed and attempted to restrain Zamora, supposedly fearing that he had a weapon. He did not. They struggled, and eight officers joined the fray, culminating in “what may be described as extreme acts of violence” perpetrated against Zamora. 

Zamora did not have a heartbeat or pulse when responding paramedics arrived to find him restrained by two officers, handcuffed, hog-tied, and face ...

by Dale Chappell

Refusing to uphold an unconstitutional death sentence, the U.S. Court of Appeals for the Fourth Circuit held on March 22, 2023, that the State’s forfeiture of a procedural defense in a habeas corpus appeal could not be revived after a remand from the U.S. Supreme Court.

Over 20 years ago, Sammie Stokes was convicted of murder and sentenced to death in a South Carolina state court. When all his appeals and state postconviction challenges were denied, Stokes filed for habeas corpus relief under 28 U.S.C. § 2254 in federal court. He raised, among other claims, that his trial lawyers were constitutionally ineffective for not presenting mitigating evidence of his strained upbringing at sentencing. However, this claim was not exhausted in state court, as required by federal habeas law, so the magistrate judge held an evidentiary hearing to determine whether Stokes’ postconviction review (“PCR”) counsel had failed to raise this claim.

The State objected to the federal court holding an evidentiary hearing, arguing that the Antiterrorism and Effective Death Penalty Act (“AEDPA”) bars the court from considering any evidence that was not part of the existing state-court record at the time of the federal habeas filing. This provision, ...

by Matt Clarke

The Supreme Judicial Court of Massachusetts affirmed the granting of a motion for new trial in a murder case based on trial counsel’s failure to investigate exculpatory information provided by the prosecutor.

A jury convicted Omay Tavares of first-degree murder. The prosecution’s evidence supported its theory that a six-foot tall light-skinned man wearing a hoodie and skullcap and calling himself “O” had a loud argument with the victim at his apartment. “O” then pulled a 9mm pistol from his waistband and fired three shots into the victim. However, the two prosecution witnesses who saw the shooter at the apartment failed to identify Tavares when shown a photo array.

Cellphone records indicated that Tavares was in the vicinity of the apartment when the shooting occurred and was the last person to call the victim. Tavares explained that and his fingerprint being on the apartment’s exterior doorknob by telling police he had previously been to the apartment and argued with the victim over the price he paid for some marijuana. A search of Tavares’s apartment turned up marijuana, $500 in cash, and some clothing similar to that worn by the shooter, but no murder weapon was recovered.

Two weeks ...

by Jordan Arizmendi

What did you eat for breakfast this morning? Most of us could answer that question – with a good deal of confidence in the accuracy of the answer. But what if, on a particular morning, instead of drinking orange juice like you do every breakfast, you drank grapefruit juice? Or what if you ate scrambled eggs instead of sunny-side-up, as you do every morning? A new study published in PLOS One – conducted by scientists in the Netherlands, U.K., and Canada – reveals that our memories are shaped, almost immediately, by our preconceptions.

The study questions the accuracy of our memories, particularly in court cases that have been decided based on the deeply flawed memory of a single account. Many of these flawed memories stem from long-term memory. Few people could recall the shoes they wore on their first day of kindergarten. Anyone claiming to remember such a trivial detail would certainly be doubted. However, the study examined the reliability of short-term memory, which is typically not similarly doubted.

“This study is unique in two ways, in our opinion. First, it explores memory for events that basically just happened, between 0.3 and 3 seconds ago. Intuitively, we ...

by Douglas Ankney

In a case of first impression, the Supreme Court of Tennessee followed the U.S. Supreme Court’s guidance for proportionality analysis when sentencing juvenile offenders convicted of first-degree murder; held that Tennessee’s sentencing regimen imposing automatic life sentences on juveniles is unconstitutional; and remedied the violation by applying the pre-1995 state statute governing parole to juvenile offenders serving life sentences in Tennessee.

In November 2015, then 16-year-old Tyshon Booker shot and killed G’Metrik Caldwell while Caldwell resisted being robbed of money and marijuana by Booker’s friend, Bradley Robinson, who had yelled for Booker to shoot Caldwell after alerting that Caldwell had a gun. Booker fled the scene with Caldwell’s cellphone after the shooting and botched robbery attempt (Caldwell had lent Booker the cellphone so that he could call his girlfriend, and when he fled, he was unaware he still had the phone in his pocket).

Booker’s case was transferred from the juvenile court to the Knox County Criminal Court. A jury ultimately convicted Booker of two counts of first-degree felony murder and two counts of especially aggravated robbery. The trial court merged the two felony murder convictions and, without a hearing, sentenced Booker to life in prison – ...

by Mark Wilson

In a case of first impression, the Court of Appeal of California, First Appellate District, vacated a trial court’s denial of a criminal defendant’s discovery request under California’s Racial Justice Act of 2020 and announced the framework for evaluating whether defendants are entitled to discovery of requested materials.

The California Legislature enacted the Racial Justice Act of 2020 (“Act”), effective January 1, 2021, mandating that “the State shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin.” Cal. Penal Code, § 745(a). Four categories of conduct violate the Act: (1) “the judge, an attorney ... , a law enforcement officer ... , an expert witness, or juror exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin;” (2) during trial, in court and during the proceedings, “the judge, an attorney … , a law enforcement officer … , an expert witness, or juror, used racially discriminatory language about the defendant’s race, ethnicity or national origin, or otherwise exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin, whether or not purposeful;” ...

by Douglas Ankney

The Supreme Court of Ohio ruled that Emile Weaver’s trial counsel was ineffective at her sentencing when he made mention of the term “neonaticide” without explaining its meaning and how neonaticide was applicable to Weaver’s case. The Court also found, in an unusually forceful manner, that the trial court judge demonstrated bias in denying Weaver’s postconviction motion for relief.

In 2014, Weaver was a sophomore at a university in New Concord, Ohio, and lived in a sorority house. Upon obtaining birth control at a wellness center, she was informed that she was pregnant. She testified at trial that she did not “completely” believe she was pregnant because she did not show any of the normal signs of pregnancy, e.g., she did not (1) gain weight, (2) have morning sickness or exhaustion, or (3) stop menstruating. Whenever her sorority sisters or friends asked if she was pregnant, she denied it. She never told her mother.

At trial, Weaver explained that she lied about her pregnancy because she was scared, “felt like [she] had no one,” and was “worried about getting in trouble.” When she discussed her pregnancy during her “rocky relationship” with her boyfriend, he encouraged her not ...

by Jordan Arizmendi

In a study by AIP Publishing in Physics of Fluids researchers from the University of Chicago and Iowa State University developed an explanation as to how a short-range shooter may stay completely clean of any drops of blood.

Whenever a forensics team is evaluating a crime scene, the blood back splatter caused by the “turbulent vortex ring” caused by a gunshot, will push the blood droplets back to the victim. However, according to the author of the study, Alexander Yarin, “Droplets are also deflected aside, and our predictions showed that some can even land behind the victim, even though initially they were moving from the victim toward the shooter.”

The discovery might lend credence to the inexplicable courtroom puzzle as to how a short-range shooter may stay clean of any drops of blood. According to the research, the gases that emit from a firing gun interact with blood droplets in various yet predictable ways.

“The results reveal the usefulness of multiphase flow fluid mechanics for the forensic discipline of back spatter analysis,” said Yarin.

Source: forensicmag.com

by Eike Blohm, MD

Fatal encounters with police occur in the U.S. with disturbing frequency, setting us apart from other Western industrial nations. A recent study published in the Annual Review of Criminology explores the drivers behind this American exceptionalism.

If one were to consider three countries, one with religious views and persecution, one that started as a brutal prison colony, and one that was founded by entrepreneurial and religious immigrants on the values of equality, freedom, and democracy, odds are one would be utterly incorrect in trying to predict which will have the highest rate of fatal police violence (“FPV”) two centuries later.

This is no hypothetical scenario but pertains to Germany, Australia, and the U.S. respectively. Each year about 11 people are shot by police in Germany, and 18 Australians lose their life at the hands of law enforcement officers. The number of citizens killed by American police in 2020 was an astonishing 1,133. In fairness, the incidence of FPV must be interpreted with population size in mind, so if Germany had the same population as the U.S., one would expect about 35 deaths – still a world apart.

America is only surpassed in annual FPVs by Brazil ...

by Eike Blohm, MD

Many Americans landed themselvesin prison for enticement of a minor as a result of a police sting operation. The practice continues although it has never been shown to actually prevent crimes against children.

The advent of the internet in the early 1990s led to an explosion of the distribution of child sexual abuse material (“CSAM”). In response, the U.S. Department of Justice created a task force initiative called the Internet Crimes Against Children (“ICAC”) program that provides grants to local police agencies to combat the online sexual exploitation of minors. The program remained small and received no federal funding until 2003.

This changed with the horrific kidnapping, sexual assault, and torture of Alicia Kozakiewicz, a 13-year-old girl who had chatted with a 38-year-old man online pretending to be a teenage boy. Her abuse was live-streamed on the internet. In response, Congress passed the PROTECT Our Children Act of 2008. The law quadrupled funding for the ICAC program to $75 million per year.

There are now 61 ICAC task forces nationwide that compete for funding. Money is allocated based on the number of arrests and convictions each task force secures. By far, the easiest and most cost-effective ...

by Anthony W Accurso

A California trial court held that ageofence warrant 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 a 2018 burglary for which the police had difficulty identifying a suspect. Police obtained a warrant to obtain location data from Google’s Location History database, which enabled police to identify Laquan Dawes.

For those unfamiliar with the details of geofence warrants, these usually involve a three-step process. First, Google returns advertising IDs and location history for all the Google-tracked devices in an area during a specific window of time. In the second step, police narrow the list of devices but may expand the geographic area and time window to track the movements of the devices of interest. The third step involves narrowing the list of devices further, and Google then provides detailed user info on the remaining devices.

In this era of mass incarceration and the surveillance state, most courts simply approve tech-oriented warrants without understanding what they are authorizing police to do. However, a growing number of judges are ...

Arkansas: The DOJ announced on Jan. 24, 2023, that two former police officers in Crawford County were charged with excessive use of force after beating a man at a gas station. The New York Times reported that the two former officers, Zackary King and Levi White, assaulted Randal Worcester, 27, during an arrest on Aug. 21, 2022. The incident occurred around a gas station in Mulberry and was caught on camera by a witness in a video that made the rounds on social media. The video showed three officers manhandling Worcester, holding him down, shoving his head into the pavement, and hitting him. The third officer in the video, Thell Riddle, was placed on administrative leave by the Mulberry PD as an investigation was under way. King and White were fired by the Sheriff’s Department in Oct. 2022. The Sheriff’s Dept. claimed that Worcester had been charged with resisting arrest, terroristic threatening, second-degree battery, and second-degree. If convicted, King and White could face fines of up to $250,000 and sentences of up to 10 years in prison and 3 years of supervised release.

California: It was announced on April 7, 2023, that the former executive director of the ...