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Criminal Legal News: July, 2023

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Volume 6, Number 7

In this issue:

  1. The Inevitability of Central Bank Digital Currencies and Their Threat to Human Rights (p 1)
  2. SCOTUS Announces ‘Right-to-Control’ Theory Not Valid Basis for Liability Under Federal Wire Fraud Statutes (p 14)
  3. Texas Court of Criminal Appeals: Trial Court Deprived Defendant of Opportunity to Present Complete Defense (p 16)
  4. SCOTUS: Honest-Services Fraud Jury Instructions Regarding Private Citizen Too Vague (p 18)
  5. New Commission in Georgia Will Discipline and Remove Prosecutors Who Are Seen as Not Tough Enough on Crime (p 19)
  6. Fifth Circuit: Placing Jacket Within Fenced-In Area of Home in Presence of Police Evidences Clear Intent Not to Abandon It, Warrantless Search Violates Fourth Amendment Rights (p 20)
  7. California Court of Appeal Reiterates ‘Three Strikes’ Law Does Not Limit ‘Presentence’ Custody Credits, Defendant Entitled to Credits Calculated Under Penal Code § 4019 (p 21)
  8. Ninth Circuit: Government’s Inflammatory Arguments in Sentencing Memorandum and at Sentencing Hearing Implicitly Breached Plea Agreement Promise Not to Recommend Sentence in Excess of Low-End Guidelines Range (p 22)
  9. Georgia Supreme Court Announces Overruling Longstanding Rule That Anything Filed by Defendant While Represented by Counsel Is Always a ‘Legal Nullity’ (p 24)
  10. Fourth Circuit: Denial of Motion for Compassionate Release Abuse of Discretion Where District Court Failed to Properly Address Numerous Health Issues, Advanced Age, and Relevant § 3553(a) Factors (p 26)
  11. Fourth Circuit Declines to Enforce Appeal Waiver and Procedural Default Excused by ‘Cause and Actual Prejudice,’ Reverses Denial of § 2255 Motion to Vacate § 924(c) Conviction Based on Hobbs Act Conspiracy (p 27)
  12. Saul Kassin Probes Dangerous Practices in ‘Duped: Why Innocent People Confess-and Why We Believe Their Confessions’ (p 30)
  13. Fourth Circuit: Counsel Ineffective for Failing to Raise Change in Sentencing Precedent Following Remand (p 33)
  14. Fourth Circuit Holds Ineligibility for First Step Act Safety Valve Relief Requires Proof of All Three Listed Criminal History Characteristics Satisfied, Widening Circuit Split (p 34)
  15. First Circuit: Plain Error Where District Court Based Upward Variant From Sentencing Guidelines Range on New Information Not Already in the Record at the Time of Sentencing (p 35)
  16. Indiana Supreme Court: Petitioner Entitled to File Belated Appeal More Than 21 Years After Conviction, Holding He Acted ‘Promptly’ (p 36)
  17. Fourth Circuit Announces Rehaif Applies to All § 922(g) Firearms-Possession Offenses and Applies Retroactively to Initial § 2255 Motions (p 37)
  18. Arkansas Supreme Court Reverses 11 Counts of Possession of Child Pornography Because CGI Images Do Not Depict Image of a Child (p 38)
  19. Specialized Police Units Hunt People for ICE (p 39)
  20. Banishment: Using an Ancient Solution to Address a Modern Problem (p 40)
  21. Police Can Get More From Your Phone Than You May Believe (p 41)
  22. Civilian Police With Military Equipment (p 42)
  23. Cops Aren’t Just Murdering People With Impunity – They Also Conduct Bogus Traffic Stops (p 42)
  24. Inspector General Report: FBI Routinely Abused Access to Private Communications (p 44)
  25. New Orleans Authorizes Facial Recognition to Identity Suspects (p 44)
  26. Financial Pressure Finally Brings Police Reform (p 45)
  27. The ACLU Calls for a Moratorium on Blanket Recording of ALPR Footage (p 46)
  28. Police Sketch Bot Arrives (p 47)
  29. Police Study Shows That Reform and Effectiveness Are Not Mutually Exclusive (p 47)
  30. ‘Contagion Effect’ Spreads Brutality Among Police Officers (p 48)
  31. Memphis Police Beat Man to Death (p 49)
  32. America’s Latest “War on” … Protestors (p 49)
  33. Minnesota Abolishes Life Without Parole for Juveniles (p 50)
  34. Louisiana Jury Selection Illegal According to Recently Passed Bill (p 50)
  35. News in Brief (p 51)

The Inevitability of Central Bank Digital Currencies and Their Threat to Human Rights

by Anthony Accurso

Bitcoin is rapidly changing the way we function as individuals in a global and interconnected economy. Even though any individual person may not own or use it directly, it is reshaping economics across the planet. It is, in many ways, the best solution to a unique problem in banking enabled by the digital age.

The rise of Bitcoin and other cryptocurrencies has shaken many governments out of their complacent view with regards to the prevailing economic order, and they are reacting in varying ways to the threat. Many countries and economic zones are now considering creating their own digital currencies to compete, both with Bitcoin and each other.

The choices made by government producers of Central Bank Digital Currencies (“CBDCs”), in the forms these new monies will take, have the potential to irrevocably disrupt the relationship between governments and their citizens. To understand the implications of this seismic shift in technology and policy, we have to understand what purposes money serves in society and the conditions that led to the proliferation of cryptocurrencies.

Money as a Tool

Tools are things that people use to solve problems. Money is a tool, and understanding money requires understanding the problems ...

SCOTUS Announces ‘Right-to-Control’ Theory Not Valid Basis for Liability Under Federal Wire Fraud Statutes

by Richard Resch

The Supreme Court of the United States (“SCOTUS”) held that the “right-to-control” theory of liability, which imposes liability for depriving the victim of “potentially valuable economic information … necessary to make discretionary economic decisions,” is not a valid basis for liability under the federal wire fraud statutes because SCOTUS has previously held that the wire fraud statutes criminalize only schemes to deprive victims of “traditional property interests.”
Cleveland v. United States, 531 U.S. 12 (2000).

This case stems from former New York Governor Andrew Cuomo’s “Buffalo Billion” initiative, which sought to invest $1 billion in development projects in upstate New York. It was administered by a nonprofit called Fort Schuyler Management Corporation (“Fort Schuyler”). Investigations into the project uncovered a scheme in which Louis Ciminelli’s construction company LPCiminelli was virtually guaranteed to be awarded lucrative development projects, including the $750 million Riverbend project in Buffalo. The scheme included the drafting of request for proposals in a manner that designated certain unique aspects of LPCiminelli as qualifications for “preferred-developer status.” 

Upon discovery of the scheme, Ciminelli and several others were indicted by a federal grand jury on numerous counts, including wire fraud in violation of 18 U.S.C. ...

Texas Court of Criminal Appeals: Trial Court Deprived Defendant of Opportunity to Present Complete Defense

by Douglas Ankney 

The Court of Criminal Appeals of Texas held that the trial court erred when it prohibited William Rogers from presenting evidence to support his claim of self-defense and also when it refused to instruct the jury on self-defense.

Rogers was tried by jury on charges of Burglary of a Habitation with the underlying commission of Aggravated Assault and Aggravated Assault with a Deadly Weapon. Prior to jury selection, the State filed a motion in limine seeking to prevent Rogers from presenting over 70,000 text messages he exchanged with Sandra Watson while the two were engaged in a lengthy affair from July 2011 until the date of the offense on February 14, 2013. The motion also sought to prevent Rogers from making any mention of self-defense during voir dire, opening statements, cross-examination, and even his own testimony if he were to testify in his own defense at trial. It also sought to bar any evidence that Watson’s husband (“Complainant”) had become aware of the affair shortly before the date of the offense. The trial court granted the motion without any testimony to support it.

Rogers testified at his trial that he had been in a lengthy affair with ...

SCOTUS: Honest-Services Fraud Jury Instructions Regarding Private Citizen Too Vague

by Richard Resch

The Supreme Court of the United States held that a trial court’s jury instructions on the standard as to whether a private citizen owes a fiduciary duty to the public and a breach thereof may serve as the basis for a conviction for honest-services fraud were too vague.

From 2011 to 2016, Joseph Percoco served as the Executive Deputy Secretary to former New York Governor Andrew Cuomo. His position afforded him a great deal of influence over official government decision-making. For an eight-month period in 2014, he resigned his government position to manage Cuomo’s reelection campaign.

During his break from government service, he accepted payments totaling $35,000 from a real-estate development company to persuade Empire State Development, a state agency, to drop the requirement for a costly “Labor Peace Agreement” with local unions as a precondition for being awarded a lucrative state project. After Percoco urged a senior official with the agency to drop the requirement, it did so and advised the real-estate company of its decision the next day.

The U.S. Justice Department discovered the arrangement and indicted Percoco and others in connection with several allegedly illegal schemes. He was charged with several crimes, including conspiracy ...

New Commission in Georgia Will Discipline and Remove Prosecutors Who Are Seen as Not Tough Enough on Crime

by Jo Ellen Nott

Republican Governor Brian Kemp of Georgia signed into law Senate Bill 92 (“SB 92”) on May 5, 2023, creating the Prosecuting Attorneys Qualifications Commission (“PAQC”). The new oversight group is tasked with discipling and removing “far-left prosecutors” who make Georgia communities “less safe,” according to the Peach State governor.  

Senate Bill 92 also requires that prosecutors review every case for which probable cause exists and make a prosecutorial decision for each one. Under the new mandate, prosecutors will not be permitted to exclude categories of cases from prosecution such as low-level drug offenses or access to reproductive health care.

It is widely held by legal experts that considering every case individually is unrealistic because prosecutors decline to prosecute much more often than they decide to charge. It remains to be seen if the new legislation will change prosecutors’ behavior or prompt them to avoid publicizing charging decisions. 

The PAQC will launch on July 1 and begin taking complaints on October 1. The commission will include six current or former prosecutors and two other lawyers. It will oversee district attorneys and solicitors general — elected prosecutors who handle lower-level crimes in some counties, according to Governor Kemp’s ...

Fifth Circuit: Placing Jacket Within Fenced-In Area of Home in Presence of Police Evidences Clear Intent Not to Abandon It, Warrantless Search Violates Fourth Amendment Rights

by Richard Resch

The U.S. Court of Appeals for the Fifth Circuit held that police violated a defendant’s Fourth Amendment rights by conducting a warrantless search of his jacket that he tossed over the fence at his mother’s home as police were initiating contact because he did not “abandon” his jacket under either Katz’s expectation of privacy test or Jones’ trespassory test.

San Antonio Police Department Officer Christopher Copeland was on the lookout for a truck registered to the mother of Albert Ramos Ramirez, Jr. He observed Ramirez driving the truck, rolling through a stop sign and pulling into his mother’s driveway. Copeland attempted to initiate a traffic stop, but Ramirez had already exited the truck and tossed his jacket over the fence around his mother’s home, landing on top of a closed trash bin.

Copeland pat-frisked him, placed him in handcuffs, and detained him in the backseat of his patrol vehicle. While patting him down, Copeland asked if he had any weapons. Ramirez stated that he did not and gave his consent to search the truck. No contraband was found in it.

Without asking for consent to enter the property or search the jacket, Officer Craig Pair ...

California Court of Appeal Reiterates ‘Three Strikes’ Law Does Not Limit ‘Presentence’ Custody Credits, Defendant Entitled to Credits Calculated Under Penal Code § 4019

by Douglas Ankney

The Court of Appeal of California, Second Appellate District, ruled that assault with a firearm is not a violent felony for purposes of the state’s Three Strikes Law (Penal Code § 667); consequently, Rasheed Malcolm Jones was entitled to the amount of custody credits calculated under the default provision in §4019. (Note: All statutory references are to the California Penal Code.)

Jones pleaded no contest to one count of assault with a firearm and admitted having suffered a prior conviction for assault with a firearm in 2012. Jones was sentenced to four years in prison. At sentencing, defense counsel expressly requested the court to order “day-for-day” custody credits pursuant to § 4019 because while the charge of assault with a firearm qualifies as a serious felony, it is not a disqualifying violent felony. The sentencing court rejected the request, ruling Jones was not entitled to day-for-day credits because he had admitted the prior strike. The court awarded Jones presentence custody credits in the amount of 596 days (497 actual, plus 99 conduct). Jones timely appealed.

The Court of Appeal observed “[o]rdinarily, presentence custody credits are calculated according to Penal Code section 4019.” People v. Thomas, 988 ...

Ninth Circuit: Government’s Inflammatory Arguments in Sentencing Memorandum and at Sentencing Hearing Implicitly Breached Plea Agreement Promise Not to Recommend Sentence in Excess of Low-End Guidelines Range

by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit ruled that the Government’s inflammatory arguments in its sentencing memorandum and at the sentencing hearing implicitly breached the plea agreement because the sole effect of the arguments was to increase the defendant’s sentence beyond the low-end of the U.S. Sentencing Guidelines range – something the Government had promised not to do in the plea agreement.

In 2020, Gerardo Farias-Contreras agreed to plead guilty to conspiracy to distribute 500 grams or more of methamphetamine or heroin pursuant to a plea agreement that included the proviso that the “United States agrees not to recommend a sentence in excess of the low-end of the guideline range, as calculated by the United States.” According to the presentence report (“PSR”), Farias-Contreras’s adjusted advisory Guidelines range was 151-188 months in prison.

In its six-page sentencing memorandum, the Government devoted just two sentences to the recommended 151-month term of imprisonment. The remainder of the memorandum focused on the overwhelming harm drug trafficking does to families and communities; on Farias-Contreras’s long history of drug trafficking; and on information already contained in the PSR.

 The memorandum argued: “Drug trafficking is nothing less than pumping pure poison into ...

Georgia Supreme Court Announces Overruling Longstanding Rule That Anything Filed by Defendant While Represented by Counsel Is Always a ‘Legal Nullity’

by Douglas Ankney

The Supreme Court of Georgia unanimously held that courts maintain discretion to consider “hybrid motions,” i.e., motions filed pro se by defendants who are also represented by counsel, expressly overruling precedents that held to the contrary.

Garry Deyon Johnson was convicted of malice murder and robbery and sentenced to life in prison without parole and a term of 20 years running consecutively. The judgment of conviction was entered November 17, 2000. Johnson’s lead trial counsel was granted permission to withdraw on December 12, 2000, but his other appointed counsel never moved to withdraw. The following day, Johnson filed a pro se “Extraordinary Motion for New Trial.” In January 2001, Johnson wrote the trial court clerk for copies of his transcript, stating he was appealing pro se, and the clerk supplied the transcript in response.

But in September 2001, the clerk responded to Johnson’s further requests by informing him that attorney Paul David had been appointed for the appeal and that Johnson must seek copies of any additional filings from David. However, David never entered an appearance in the case nor responded to any of Johnson’s letters.

Johnson continued corresponding with the clerk until August 2004. Then after ...

Fourth Circuit: Denial of Motion for Compassionate Release Abuse of Discretion Where District Court Failed to Properly Address Numerous Health Issues, Advanced Age, and Relevant § 3553(a) Factors

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit held that a District Court’s denial of a motion for compassionate release was an abuse of discretion where the District Court concluded that Lonnie Edward Malone’s numerous health conditions did not provide extraordinary and compelling reasons for release and where the District Court did not recognize that the relevant factors of 18 U.S.C. § 3553(a) favor release.

In May 2008, Malone was sentenced to 330 months in prison for possession of a short-barreled shotgun in furtherance of a drug-trafficking offense and for conspiracy to distribute 50 grams or more of a mixture containing methamphetamine. In 2019, the almost-69-year-old Malone moved, pro se, for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A).

Malone explained his extraordinary and compelling reasons were his health conditions, viz., he had colon-rectal cancer, that a surgery sewed his rectum shut, and he now lived with a colostomy bag permanently affixed to his body. His medical records revealed he had cystic kidney disease, hernia, malignant neoplasm of rectum, hypertension, morbid obesity, neoplasm of uncertain behavior, hyperlipidemia, and other specified disorders of the liver.

He recounted countless issues with the colostomy bag, five surgeries to remove ...

Fourth Circuit Declines to Enforce Appeal Waiver and Procedural Default Excused by ‘Cause and Actual Prejudice,’ Reverses Denial of § 2255 Motion to Vacate § 924(c) Conviction Based on Hobbs Act Conspiracy

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit declined to enforce an appeal waiver where the defendant stood convicted and imprisoned for conduct that, due to developments in the law after he pleaded guilty, did not violate 18 U.S.C. § 924(c) and was not criminal, and the Court determined that his procedural default was excused by a showing of cause and actual prejudice.

Donzell Ali McKinney was charged with substantive Hobbs Act robbery, Hobbs Act conspiracy, and a violation of § 924(c) predicated on the substantive Hobbs Act robbery. After McKinney had consistently refused to plead guilty to the substantive Hobbs Act robbery, he agreed to plead guilty to Hobbs Act conspiracy and a single § 924(c) count with the Hobbs Act conspiracy as the sole predicate offense in exchange for the Government’s agreement to dismiss the remaining charges. The plea agreement also included a waiver of the right to contest his conviction and sentence except on grounds of ineffective assistance of counsel or prosecutorial misconduct.

McKinney was sentenced in 2012 to 70 months’ imprisonment on the Hobbs Act conspiracy and a consecutive sentence of 120 months’ imprisonment on the § 924(c) conviction predicated on the ...

Saul Kassin Probes Dangerous Practices in ‘Duped: Why Innocent People Confess-and Why We Believe Their Confessions’

By James M. Doyle

Do innocent people really confess to horrific crimes they did not commit?

Yes, they do. A masterful recent book from John Jay College of Criminal Justice Professor Saul Kassin, “Duped: Why Innocent People Confess—and Why We Believe Their Confessions,” proves it beyond any doubt.  

And Dr. Kassin’s book goes further than that. 

It shows how mobilizing scientific research about interrogations can reduce errors. Read this book and you will see how we can develop more information, get a better quality of information, and enhance the criminal system’s capacity to evaluate the information that we harvest. 

At the same time, Kassin’s analysis shows us why we can never guarantee that we have eliminated all mistakes—that questions of situated action will inevitably arise, and that room for human error in making judgments will always remain. 

“Duped” has too many virtues—clarity, balance, and comprehensiveness among them—for me to catalog them all here; you should really just read the book. 

But there are a couple of things to notice when you do. 

The Habit of Continuous Learning

Kassin is not the prototypical experthanding down wisdom from the podium to the students in the classroom and the apes on the frontlines—not a guy ...

Fourth Circuit: Counsel Ineffective for Failing to Raise Change in Sentencing Precedent Following Remand

by David M. Reutter

The U.S. Court of Appeals for the Fourth Circuit held a federal defendant was denied the effective assistance of counsel by failing to object to his designation as a career offender on the ground the conspiracy under 21 U.S.C. § 846 is broader than generic conspiracy and thus does not constitute a controlled substance offense under the Sentencing Guidelines.

The Court’s opinion was issued in an appeal brought by Germaine Cannady after his 28 U.S.C. § 2255 petition was denied by the U.S. District Court for the District of Maryland. Cannady was found guilty by a jury of one count of conspiracy to distribute and possess with intent to distribute cocaine and heroin and one count of attempted possession with intent to distribute cocaine and heroin in violation of § 846.

A Presentencing Investigation Report (“PSR”) presented at the June 2015 sentencing hearing calculated Cannady’s base offense level as 34 and his criminal history as VI, making his Sentencing Guidelines range 262 to 327 months in prison with application of the career offender enhancement. The District Court found the nature of the instant offenses and the prior criminal history triggered the Guidelines’ career offender enhancement. Without ...

Fourth Circuit Holds Ineligibility for First Step Act Safety Valve Relief Requires Proof of All Three Listed Criminal History Characteristics Satisfied, Widening Circuit Split

by David M. Reutter

The U.S. Court of Appeals for the Fourth Circuit held that the plain text of 18 U.S.C. § 3553(f)(1) “requires a sentencing court to find that a defendant has all three of the listed criminal history characteristics before excluding a defendant from a safety valve eligibility” under the First Step Act.

Cassity Danielle Jones pleaded guilty to possession with intent to distribute 50 or more grams of methamphetamine, which carries a 10-year mandatory minimum sentence of imprisonment. At sentencing, Jones argued that she was entitled to relief under the First Step Act’s (“Act”) safety valve provision in § 3553(f)(1).

The safety value provision provides that a sentencing court may impose a sentence without regard to the applicable mandatory minimum if it finds that: “(1) the defendant does not have – more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense … a prior 3-point offense … ; and a prior 2-point violent offense….” § 3553(f)(1) (emphasis supplied).

There was no dispute that Jones had more than four criminal history points, satisfying subsection (A). However, she argued that because she did not have a prior 3-point offense or prior 2-point violent ...

First Circuit: Plain Error Where District Court Based Upward Variant From Sentencing Guidelines Range on New Information Not Already in the Record at the Time of Sentencing

by Douglas Ankney

The U.S. Court of Appeals for the First Circuit found plain error where the U.S. District Court for the District of Puerto Rico based an upward variance from the Guidelines range on new information not already in the record at the time of sentencing.

In 2011, Angel Ramos-Carreras received a five-year prison sentence and eight years of supervised release for drug-related offenses. In 2020, while serving his time of supervised release, he was arrested “for an investigation on lewd acts” and charged with violating Article 133 of the Puerto Rico Penal Code, which classifies as a third-degree felony the conduct of: “Any person who without the intention to consummate the crime of sexual assault submits another person to an act that tends to awaken, excite or satisfy the sexual passion or desire of the accused, under any [one of six enumerated circumstances - including the age of the victim being less than 16 years].” The U.S. Probation Office promptly filed a motion in the District Court to notify it that Ramos had violated the “shall not commit another federal, state, or local crime” condition of his supervised release.

At sentencing before the District Court judge, all agreed ...

Indiana Supreme Court: Petitioner Entitled to File Belated Appeal More Than 21 Years After Conviction, Holding He Acted ‘Promptly’

by Douglas Ankney

The Supreme Court of Indiana held that Charlie D. Leshore, Jr., was entitled to file a belated appeal more than 21 years after his conviction because the trial court and Leshore’s attorneys failed to advise him of his right to appeal his sentence and because he promptly filed notice upon learning of his right to appeal from a fellow prisoner.

In 1999, Leshore pleaded guilty to numerous felonies. During its colloquy with Leshore, the trial court informed him that by pleading guilty he was giving up his right to appeal his conviction. The court sentenced Leshore to 70 years in the Indiana Department of Corrections. Neither the court nor Leshore’s public defender informed him of his right to appeal his sentence.

In 2001, Leshore argued in a petition for postconviction relief under Indiana Post-Conviction Rule 1 that his sentence was inappropriate due to the nature of the offense and the character of the offender. The State Public Defender’s Office reviewed Leshore’s petition, concluded the “trial court advised Leshore of all necessary rights,” and withdrew its representation. Leshore abandoned his efforts in 2005.

Then on December 20, 2021, Leshore petitioned for postconviction relief to file a belated notice ...

Fourth Circuit Announces Rehaif Applies to All § 922(g) Firearms-Possession Offenses and Applies Retroactively to Initial § 2255 Motions

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit held that the holding of Rehaif v. United States, 139 S. Ct. 2191 (2019), applies retroactively to cases on collateral review and applies to convictions for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

In 2015, Thomas Bradford Waters was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At his trial, the U.S. District Court for the District of South Carolina instructed the jury that “it is not necessary for the government to prove that the defendant knew he was a convicted felon,” despite the fact § 922(g)(1) contains a mens rea requirement of “knowingly” violating it. Waters was sentenced to 10 years’ imprisonment, and his conviction was affirmed on appeal.

In 2019, Waters filed a pro se 28 U.S.C. § 2255 motion to vacate his conviction. While his motion was pending, the U.S. Supreme Court decided Rehaif, holding “that in a prosecution under 18 U.S.C. § 922(g) and 924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to ...

Arkansas Supreme Court Reverses 11 Counts of Possession of Child Pornography Because CGI Images Do Not Depict Image of a Child

by Douglas Ankney

The Supreme Court of Arkansas reversed the convictions against Jeremey Lewis on 11 counts of “distributing, possessing or viewing matter depicting sexually explicit conduct involving a child” because the images were computer-generated imagery (“CGI”) and did not depict or incorporate the image of a child.

Lewis was tried by jury on 30 counts of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child in violation of Arkansas Code Annotated § 5-27-602. At trial, the State’s expert, Arkansas State Police Special Agent Corwin Battle, testified that he categorized images 1 and 23 to be “comparison images” and that 23 appeared to be CGI. (“Comparative image” simply means the image was comparative to other images recovered from Lewis’ electronic devices.) Battle testified that he categorized images 15, 16, and 23-30 as CGI.

Lewis moved for a directed verdict on Counts 1, 15, 16, and 23-30, arguing the images did not contain a real person. Apparently, his motions were denied. The jury convicted Lewis of 25 counts, acquitted him of five counts, and sentenced him to a total of 42 years in the Arkansas Division of Correction. Lewis appealed, arguing that the State presented no evidence that ...

Specialized Police Units Hunt People for ICE

by Keith Sanders

On February 22, 2023, a Teller County District Judge in Colorado ruled that the county Sheriff’s Office legally entered into an agreement with U.S. Immigration and Customs Enforcement (“ICE”) that gives the Sheriff’s Office the authority to detain prisoners after they post bond on behalf of ICE. The ruling stemmed from a lawsuit brought by the American Civil Liberties Union (“ALCU”) against Jason Mikesell, Teller County Sheriff.

The suit centers around an agreement between the Teller County Sheriff’s Office (“TCSO”) and U.S. Immigration and Customs Enforcement. Called the 287(g) Agreement of the Immigration and Nationality Act (“INA”), it allows TCSO deputies to act as ICE officials after a period of training, certification, and authorization by ICE. As such, the TCSO deputies, called 287(g) deputies, or Designated Immigration Officers (“DIO”), are “certified to perform immigration functions” with the purpose of identifying and processing prisoners “at the Jail on state or local charges who may be subject to removal under ICE’s civil immigration enforcement priorities.” Essentially, when TCSO deputies act as DIOs, they are acting as federal agents rather than county deputies.

According to the suit, that authority granted to TCSO deputies by the 287(g) Agreement violates Colorado’s Constitution ...

Banishment: Using an Ancient Solution to Address a Modern Problem

by Benjamin Tschirhart

The old has become new again in the city of Saint Louis. For several years now, police have been issuing “neighborhood orders of protection,” which forbid a cited person from entering a specific municipal area for a certain amount of time. Those found in violation of the order may be arrested and criminally charged. The gap between the haves and the have-nots is growing.

Ancient Origins

Ostracism is one of the oldest forms of democratic discipline, first appearing in the historical record around 500 BCE in ancient Greece. Each year, the voting citizens of Athens had the chance to banish one person from the city for a period of 10 years. Each man in the assembly would scratch the name of his candidate on a clay pot shard or ostrakon. The person whose name appeared the most was forced to leave the city for a period of 10 years. If he returned before that time, the penalty was death. However, his property and estate were not forfeit, and he could reclaim them, stepping back into social life upon his return.

Ostracism was used in ancient Greece as a preemptive measure. In this way, it bears some resemblance ...

Police Can Get More From Your Phone Than You May Believe

by Michael Dean Thompson

Few of us would not feel violated to learn that our spouse or partner has been digging through our phone. Imagine if they were to use that data to analyze where we’ve been and who we’ve been near, and then, they were to gain access to our cloud services to examine long forgotten backups, images, and documents. Insatiably, they move on to access our social media accounts and peek into every post we and our friends have made. Most people would shudder in horror at such an intrusive sifting of our lives, even if we believed we had nothing to hide.

Emma Well, policy analyst at the technology research and advocacy organization Upturn, asserts, “At no point in human history have we collected and stored so much information about our lives in one place.”

The New York State Police, along with thousands of other agencies in the U.S., wants to dig through your digital devices in just such a nightmarish manner described above. New York’s Gov. Kathy Hochul has announced a $20 million expansion on top of the tens of millions already quietly eased into 2022’s budget. Five-point-three million dollars of that set aside to modernize ...

Civilian Police With Military Equipment

by Ed Lyon

During late May through the first of June 1989, citizens peacefully demonstrated for freedom in China’s Tiananmen Square. On June 4, the government’s response was to authorize a bloody rout of these peaceful protesters using soldiers, tanks, and other military resources resulting in thousands of dead citizens. Today, China refers to this as an incident.

Three years and eight months later, on February 28, 1993, agents of the Bureau of Alcohol, Tobacco and Firearms and Explosives (“ATF”) laid siege to the Mount Carmel group of buildings belonging to the Branch Davidian Church, just east of Waco, Texas. According to survivor Thomas Cook, ATF agents driving M-60 tanks buzzed the area, running over the church members’ cars, knocking down trees, and actually “mooning” the church members.

This ended on April 19, 1993, when ATF agents rammed the 155-millimeter gun barrels of the M-60 tanks into two places of the main building and Chapel to allegedly pump tear gas into it. The “tear gas” ignited, the building burned, and scores of church members died in the conflagration. So, instead of using soldiers, ATF agents, driving weapons of war, executed a “law enforcement” action against civilians.

Twenty-seven years and one ...

Cops Aren’t Just Murdering People With Impunity – They Also Conduct Bogus Traffic Stops

by Anthony W. Accurso

Police are tasked with upholding the law, but current case law has created a system where officers are actually incentivized to break the law by making bogus traffic stops.

The Fourth Amendment to the U.S. Constitution provides that citizens will be free from unreasonable searches and seizures. The Supreme Court has found it reasonable for a police officer to initiate a traffic stop for even the most minor of traffic infractions and has provided police with the presumption of truthfulness such that their testimony can only be undermined by clear evidence that contradicts their testimony (such as video footage).

Though the Court has attempted to place limitations on police authority by requiring probable cause or consent for searches and limiting traffic stops to their essential purpose, too many officers abuse this authority too often.

Perversely, there are social and financial incentives for doing so. When an officer concocts a pretext for initiating a traffic stop that results in the seizure of narcotics, weapons, or a wanted person, they are rewarded for protecting the community. Further, law enforcement agencies conduct large-scale operations where officers are encouraged to identify as many traffic violations as possible in a short ...

Inspector General Report: FBI Routinely Abused Access to Private Communications

by Eike Blohm, MD

A recent Department of Justice (“DOJ”) Inspector General report found that the Federal Bureau of Investigation (“FBI”) routinely sidesteps regulations of electronic surveillance and essentially deliberately misinterprets DOJ guidelines.

Edgar Hoover was the first director of the FBI and was notorious for amassing personal and private information of U.S. persons without their knowledge or consent and certainly not with court approval. This culture appears to be unchanged in 2022 as the FBI continues to engage in the practice.

Electronic surveillance is omnipresent in the U.S. The National Security Agency (“NSA”) stores vast amounts of raw communication data in so-called “haystacks” under the Foreign Intelligence Surveillance Act (“FISA”) of 1978 (50 U.S.C. § 180). Law enforcement agencies such as the FBI may query those haystacks under specific rules.

Under 50 U.S.C. § 1805(c) part of FISA, the government has to submit an individualized application for surveillance identifying the target, type of information sought, and procedures to be used. As regulated by § 1805(a)(2)(A), a Foreign Surveillance Court (“FISC”) then has to find probable cause that the target is a “foreign power” or agent thereof. Continued compliance was intended to be assured by § 1805(d)(3), which provided for ...

New Orleans Authorizes Facial Recognition to Identity Suspects

by Michael Dean Thompson

The use of facial recognition systems was banned by the New Orleans City Council in 2020, only to be overturned in July of 2022 in response to fears of rising crime despite concerns within the affected communities about civil rights, privacy, and accuracy.

Facial recognition systems are known to have a high error rate. Much of its success depends on the quality of the image, the availability of multiple source images, and the color of the subject’s skin. Black faces are misidentified at higher rates than white faces. Since most facial recognition systems measure relative distances between cheekbones, eyes, etc., they can look over features that a human eye might find prominent.

In an effort to separate themselves, companies that make the systems each have somewhat different methods of attacking the challenges of facial identification. Those differences can lead to biases that are hidden from the user and the public, resulting in some biases that may only become apparent after millions of runs. The requirement for multiple source images creates additional Fourth Amendment issues for forensic systems with regard to both known-person images (e.g., Facebook, Instagram, etc.) and unknown-person images (e.g., surveillance of protestors, abortion seekers, ...

Financial Pressure Finally Brings Police Reform

by Jayson Hawkins

Their names became litanies on streets across America: Trayvon Martin, Freddie Gray, Breonna Taylor, George Floyd. Yet protests, relentless media coverage, and the promises of politicians failed to move the needle on police violence or impunity. At last, as protests has faded from the headlines, a player has come to the table with enough clout to demand cops change their ways —insurance companies.

Away from public scrutiny and the media circus that follows court settlements, every police agency (or government agency, for that matter) has a relationship with an insurer or risk pool. These insurers act much like a liability policy for a vehicle —  if the agency gets into a metaphorical wreck for which it is at fault, the insurer covers the cost of the subsequent lawsuit or settlement. Many of these insurance companies grew out of municipal risk pools formed by big cities that eventually offered coverage to smaller towns. Most of these pools were privatized in the aftermath of the Reagan-era zeal for limited government, but some are still owned and operated as government agencies.

Those insurers that are private, for-profit enterprises are managed within the same business model as any other insurance company. ...

The ACLU Calls for a Moratorium on Blanket Recording of ALPR Footage

by Kevin W. Bliss

The American Civil Liberties Union (“ACLU”) has published an appeal to the general public asking for organized opposition to the encroaching blanket surveillance company, Flock Safety. Concerns continue to be expressed regarding the company’s desire to catalog the movement of every citizen, and make that data available not only on a nationwide scale but worldwide.

Flock Safety is the nation’s first comprehensive mass surveillance data storage company. It installs unregulated automatic license plate recognition (“ALPR”) software driven cameras around a contracted city and captures images of every vehicle passing the area for storage. That database can then be searched any time in the future by law enforcement agencies who have secured the company’s services. This includes foreign law enforcement agencies.

Captured plates are automatically run against watch lists at the local, state, and national levels as well as the FBI’s National Crime Information Center (“NCIC”), AMBER alerts, and traffic violations. Homeowners, business owners, and others with access to independent camera footage can add their files to the already expansive database. In return, owners can create their own hit lists that will generate a cellphone alarm when the target vehicle enters their neighborhood. Already, over 2,000 cities ...

Police Sketch Bot Arrives

by Carlos Difundo

It is one of those things that seems to be a great idea at first. Once in place though, it becomes something very different. That happened when two coders created Forensic Sketch AI-rtist. The tool was simple enough given the skills of OpenAI’s DALL-E2 image generation model. All they needed to do was collect a list of facial features from a witness, just as sketch artists have done for ages, and pass them on to the AI that would convert them into an image in moments rather than hours. It would save the police time and would provide “hyper-realistic” images at the crime scene.

As it turns out, the project is rife with problems. The first revolves around AI biases. Ask DALL-E2 to draw a CEO, and more often than not, the CEO is white. Biases such as that are not always easy to discover, yet they clearly exist and remain an important problem in AI research. It may take thousands of iterations for a researcher to notice that certain combinations of facial features are typically drawn with a frown, increasing the sense of menace.

No doubt, the perpetrator of a violent crime is menacing. Researchers have ...

Police Study Shows That Reform and Effectiveness Are Not Mutually Exclusive

by Benjamin Tschirhart

Following the murder of George Floyd by Minneapolis police officers, a new social movement has emerged and is growing in popularity. The burgeoning movement is calling for police reform along with the reduction of police budgets and tighter reigns on police training and tactics. Their demand (shocking many conservative thinkers) is to “Defund the Police!”

An opposing viewpoint insists that whatever the measures required for the reform of police culture, a reduction of police power and funding must necessarily lead to a decline in their institutional effectiveness. This, they insist, will lead in turn to predictable (and terrible) social outcomes: more crime and the destabilization of society. In the U.S. there exists a “law–and-order” tradition which places a premium on authority and values conformity to social norms and rules. Under this predominantly conservative paradigm, failure to comply with the exercise of official authority is interpreted as “defiance.” The authoritarian institutional culture which pervades much of law enforcement is preoccupied with control and punishment; perceived defiance is often answered with immediate and overwhelming force.

It is against this social backdrop that the Center for Evidence-Based Crime Policy at George Mason University published a study in the Fall 2022 ...

‘Contagion Effect’ Spreads Brutality Among Police Officers

by Eike Blohm

The case of Tyre Nichols, beaten to death by five police officers during two encounters, has raised the question of how law enforcement officers could possibly commit such a brutal and heinous act. Laurence Miller, researcher and author of the 2020 book “The Psychology of Police Deadly Force Encounters,” believes the “contagion effect” gives rise to such instances of excessive force.

Most police officers are not bad people. While a small minority may fit the term “criminals in uniform,” using it as an explanation for incidents such as the murder of Tyre Nichols in Memphis is both simplistic and reductivist. Attribution of the cause of the officers’ behavior to their malicious character fails to consider the plethora of cultural and psychological factors which enable acts that end in the death of unarmed civilians and the hands of police officers.

Not every killing of an unarmed person constitutes excessive force by legal definition, although it may by ethical standards. If a police officer reasonably believes that a suspect presents an imminent threat to them or others, the law permits the use of deadly force. Application of force is only considered excessive if it surpasses the level necessary to ...

Memphis Police Beat Man to Death

by Kevin W. Bliss

Five Memphis police officers have been charged with second degree murder, aggravated assault, aggravated kidnapping, official misconduct, and official oppression in the death of the 29-year-old Black motorist Tyre Nichols.

Ex-Memphis police Tadarrius Bean, Demetrius Haley, Desmond Mills, Jr., Emmitt Martin III, and Justin Smith pulled Nichols over in a routine traffic stop January 7, 2023. The stop quickly escalated into an incident of extreme violence. The police report states that Nichols and the five ex-police got into a confrontation when they first pulled Nichols over during the initial stop and then again once he was placed under arrest. At this point, Nichols endured a beating so brutal that it ultimately resulted in his death.

The Guardian reported that the five ex-police beat Nichols continuously for three solid minutes. When firefighter paramedics later arrived on the scene, they were forced to give Nichols preliminary treatment for his injuries and then rush him to the hospital for more extensive care. Nichols died three days later from complications.

An independent autopsy authorized by Nichols’ family revealed that Nichols died from the extensive bleeding caused by the beating. “He was a human piñata for those police officers,” said the ...

America’s Latest “War on” … Protestors

by Casey J. Bastian

For decades, American law enforcement apparatuses have embraced an ideology of going to “war” against the American people. Under the guise of being “tough on crime,” addressing societal issues has instead become an opportunity to offend individual liberty and rights. This country has chosen to go to war on drugs, crime, terror – take your pick. All have been failures. Now there appears to be a war on peaceful protests.

Since George Floyd died under the knee of a Minneapolis police officer, several people have been killed while protesting. On June 1, 2020, the National Guard killed David McAtee in Louisville, Kentucky. The next day, undercover police in Vallejo, California, gunned down Sean Monterrosa. The U.S. Marshals “hunted down” and “neutralized” both Michael Reinoehl and Winston Smith, Jr. The year 2022 “was the most lethal year on record for police-civilian encounters.”

This year, police have killed Tyree Nichols, Keenan Anderson, and Manuel Esteban Paez Teran. Teran was killed in Atlanta’s South River Forest protesting the construction of the Atlanta Public Safety Training Center (“APSTC”), infamously referred to as “Cop City.” For two years, Teran was one of hundreds living in tents and treehouses hoping to block ...

Minnesota Abolishes Life Without Parole for Juveniles

by Jordan Arizmendi

On May 19, 2023, Minnesota Governor Walz (D) signed omnibus public safety bill – SF 209, which abolishes life imprisonment without parole for minors. Under the bill, juvenile life-without-parole sentences will be retroactively eliminated. In addition, all minors who were sentenced in adult court will be eligible for supervised release after at least 15 years served in prison.

Executive director of the Minnesota Justice Research Center, Justine Terrell, told the Star Tribune that “Too often, the criminal legal system just focuses on punishment. But expanding restorative outcomes and making it a priority for the system means that you’re addressing the harm that’s been caused and that people can actually move on from that harm and that helps create safe communities.”

Ninety-seven Minnesotans are serving sentences of 15 years or more for crimes committed as minors. Now, most of them are eligible for a sentencing review.

Sources: cfsy.org; eji.org

Louisiana Jury Selection Illegal According to Recently Passed Bill

by Kevin W. Bliss

January 23, 2023, the Orleans Parish criminal court system halted all active jury trials until further information concerning the summons prices for jury selection could be supplied to the Fourth Circuit Court of Appeals in response to allegations that the system precluded people with felony convictions from serving in violation of the Sixth Amendment right to a jury of one’s peers.

The Louisiana Legislature passed a bill in 2021 which allowed ex-offenders to serve on juries as long as it has been at least five years since the completion of their sentence including any probation or parole associated with the commitment, and the individual was not currently under indictment. The bill was signed into law by Governor John Bel Edwards and became effective August 1, 2021.

Yet to date, summonses sent to prospective jurors still read that felony convictions are grounds for being barred from serving on juries. And, that online questionnaires discussed felony convictions but not sentence or probation/parole completion dates.

Emily Posner, lawyer for the Voice of the Experienced (“VOTE”) received a letter from Orleans Parish Chief Judge Robin Pittman stating all venires for jury selection through February would be deferred, allowing the Fourth ...

News in Brief

California: A former police officer with the LAPD, Paul Razo, 46, was arrested in early May 2023, accused of sexually assaulting at least four minor boys over the course of more than a decade. Weeks after his arrest, Razo died of medical complications while in custody. KNBC in Los Angeles reported that some of the boys Razo was accused of assaulting were his own relatives. Razo, who had been awarded the Medal of Valor in 2018 for rescuing a man from a burning car while off-duty, was accused of assaulting two boys, both between the ages 11 and 13 at the time of the assaults. He was also accused of assaulting the sons, between the ages of 9 and 12, of a woman he was dating. All the assaults were said to have taken place at his home between 2006 and 2017, and investigators suspected that there could be more victims. Razo was charged with eight counts of “lewd acts upon a child” in connection with his alleged actions.

Colorado: On May 1, 2023, a former police officer in Log Lane Village was sentenced for forgery and felony theft, having continued on active duty even after the initial ...

 

 

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