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Criminal Legal News: August, 2023

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Volume 6, Number 8

In this issue:

  1. Deceiving Themselves: How Cops’ False Belief in Their Ability to Detect Deception From Nonverbal Cues Leads to Miscarriages of Justice (p 1)
  2. New York State Police Are Ramping Up Social Media Surveillance (p 14)
  3. Forensic Genetic Genealogy Has Solved 545 Cases – and Counting (p 15)
  4. FBI Make-Work Entrapment Schemes: Creating Criminals in Order to Arrest Them (p 16)
  5. Colorado Supreme Court Announces That Introducing New Race-Neutral Justifications on Remand Not Permitted in Batson Challenge (p 18)
  6. Roadside Drug Tests: Failed Technology From the Failed War on Drugs (p 20)
  7. Arizona Supreme Court Announces ‘Person’ in Self-Defense Statute Applies Only to Defendant, Not Victim as Well (p 23)
  8. Hawaii Supreme Court: Defendant’s Due Process Rights Violated by Prosecutor (p 24)
  9. Second Circuit: Second-Degree Kidnapping Under New York Penal Law § 135.20 Not Categorically a Crime of Violence (p 25)
  10. California Supreme Court Announces Warrantless Search Parole Condition Does Not Dissipate Taint of Unlawful Detention and Subsequent Search, Suppresses Evidence (p 26)
  11. SCOTUS Announces Proper Remedy for Venue and Vicinage Clause Violations Is Retrial in Proper Venue, Not Barring Retrial (p 28)
  12. SCOTUS Announces § 924(c)(1)(D)(ii)’s Consecutive Sentence Mandate Not Applicable to § 924(j) Sentences (p 30)
  13. Ninth Circuit Announces State Habeas Petition Remains ‘Pending’ for Purposes of AEDPA 1-Year SOL While State Relief Remains Open Regardless of Whether Petitioner Utilizes It (p 31)
  14. Seventh Circuit: Postconviction Relief Petition Still Pending in Illinois Court 20 Years After Filing Entitles Petitioner to Seek Federal Habeas Relief Without First Exhausting State Remedies (p 33)
  15. Eleventh Circuit Announces Definition of ‘Controlled Substance Offense’ in Guidelines § 4B1.2(b) Does Not Include Inchoate Offenses and Expressly Overrules Precedent Holding to the Contrary (p 35)
  16. Kansas Supreme Court Announces Legislature Intended to Tie One Unit of Prosecution to Multiple Items of Drug Paraphernalia Under K.S.A. 2016 Supp. § 21-5709(b)(1) and (b)(2) (p 37)
  17. Mississippi Supreme Court: Court of Appeals Improperly Permitted State to Supplement Record on Appeal in Reviewing Habitual Offender Determination (p 38)
  18. California Court of Appeal: Counsel and Sentencing Court’s Misadvisement of Plea’s Immigration Consequences Require Relief From Conviction (p 39)
  19. Fifth Circuit Announces Statute Prohibiting Firearm Possession by Person Subject to Domestic Violence Restraining Order Is Unconstitutional in Light of Bruen (p 40)
  20. Record High Exonerations in 2022 (p 41)
  21. Your Texts, Emails, and Location Are Available to Law Enforcement, Regardless of How Law-Abiding You Are (p 42)
  22. California Supreme Court Announces Proof of First Degree Poison Murder Requires Showing Defendant Deliberately Gave Victim Poison with Intent to Kill or Inflict Injury Likely to Cause Death (p 43)
  23. The Daniel Buffington Dilemma: Does His Expert Witness Testimony Satisfy Daubert? (p 44)
  24. Current Volume of Digital Evidence Challenge the Criminal Justice System to Do Better (p 45)
  25. A Surveillance Scam by Any Other Name Is But a Parasite (p 45)
  26. Police Departments Conspire with Boards to Secretly Install License Plate Cameras Without Consent of Residents (p 46)
  27. Holding Bad Cops Accountable Is the Way Forward in Police Reform (p 47)
  28. Police Unions Continue Overt and Covert Actions Designed to Weaken Oversight Boards (p 47)
  29. SCOTUS Announces First Amendment Requires Mens Rea of Recklessness for ‘True Threats’ Conviction (p 48)
  30. Did You Know Popular Video Doorbells Are Equipped with Facial Recognition? (p 49)
  31. Research on Persistence of Touch DNA Will Help Investigators Collect More Usable Samples (p 50)
  32. News in Brief (p 50)

Deceiving Themselves: How Cops’ False Belief in Their Ability to Detect Deception From Nonverbal Cues Leads to Miscarriages of Justice

by Casey J. Bastian

“The mistakes of lie detection are costly to society and people victimized by misjudgments. The stakes are really high.” — Maria Hartwig, John Jay College of Criminal Justice

For as long as human beings have communicated, many have practiced the art of deception. That people ...

New York State Police Are Ramping Up Social Media Surveillance

Open records requests reveal that the New York State Police (“NYSP”) have been spending money on electronic communication surveillance tools, specifically to gather information from social media and related sites.

According to records requests for expenditures relating to surveillance products purchased by the NYSP, the department has spent at least ...

Forensic Genetic Genealogy Has Solved 545 Cases – and Counting

by Douglas Ankney

According to Tracey Leigh Dowdeswell, forensic genetic genealogy (“FGG”) has solved 545 cases as of December 31, 2022. Dowdeswell is a professor of criminology and legal studies at Douglas College in Canada and is the first to put a number on cases solved using FGG. Dowdeswell is ...

FBI Make-Work Entrapment Schemes: Creating Criminals in Order to Arrest Them

by John and Nisha Whitehead

“Whoever fights monsters should see to it that in the process he does not become a monster.”— Friedrich Nietzsche

We’re not dealing with a government that exists to serve its people, protect their liberties and ensure their happiness.

Rather, we are the unfortunate victims of ...

Colorado Supreme Court Announces That Introducing New Race-Neutral Justifications on Remand Not Permitted in Batson Challenge

by Douglas Ankney

The Supreme Court of Colorado ruled that when a party has had an opportunity at trial to present race-neutral justifications for a challenged peremptory strike under the second step of Batson v. Kentucky, 476 U.S. 79 (1986), that party is later barred from introducing new race-neutral justifications ...

Roadside Drug Tests: Failed Technology From the Failed War on Drugs

by Anthony Accurso

Field test kits are touted as an easy way for law enforcement to determine if an unknown substance is in fact a narcotic. Millions are used each year by police during traffic stops, so they are commonly referred to as “roadside drug tests.” But revelations about the ...

Arizona Supreme Court Announces ‘Person’ in Self-Defense Statute Applies Only to Defendant, Not Victim as Well

by Douglas Ankney

The Supreme Court of Arizona held that the word “person” in the state’s self-defense justification statute, A.R.S. § 13-404(A), applies only to a defendant’s conduct, not the victim’s as well.

Jordan Christopher Ewer and two others confronted two people identified as “Gilbert” and “Emily.” Ewer drew his ...

Hawaii Supreme Court: Defendant’s Due Process Rights Violated by Prosecutor

Asking Witness to Tell Grand Jury Defendant Exercised Right to Remain Silent

The Supreme Court of Hawaii held that a prosecutor flagrantly violated a defendant’s Hawaii due process right to a fair and impartial grand jury hearing by adducing evidence during a grand jury proceeding to show the defendant invoked ...

Second Circuit: Second-Degree Kidnapping Under New York Penal Law § 135.20 Not Categorically a Crime of Violence

by Douglas Ankney

The U.S. Court of Appeals for the Second Circuit held that kidnapping in the second degree under New York Penal Law (“NYPL”) § 135.20 is not categorically a crime of violence pursuant to 18 U.S.C. § 924(c)(3)(A).

In June 2021, the Second Circuit affirmed the judgment against ...

California Supreme Court Announces Warrantless Search Parole Condition Does Not Dissipate Taint of Unlawful Detention and Subsequent Search, Suppresses Evidence

by Anthony W Accurso

In resolving a split among the state Courts of Appeal, the Supreme Court of California held that, unlike an outstanding arrest warrant, a condition of a suspect’s parole allowing for warrantless and suspicionless searches does not dissipate the taint of an unlawful detention and that any ...

SCOTUS Announces Proper Remedy for Venue and Vicinage Clause Violations Is Retrial in Proper Venue, Not Barring Retrial

by Richard Resch

The Supreme Court of the United States unanimously held that a conviction that is reversed based on a judicial determination that the Venue Clause and the Vicinage Clause of the Sixth Amendment were violated due to a trial held in an improper venue does not adjudicate the ...

SCOTUS Announces § 924(c)(1)(D)(ii)’s Consecutive Sentence Mandate Not Applicable to § 924(j) Sentences

by Richard Resch

In a unanimous decision, the Supreme Court of the United States held that § 924(c)(1)(D)(ii)’s prohibition on concurrent sentences does not extend to sentences imposed under a different subsection of the statute, viz., § 924(j), and thus, when multiple convictions – including a § 924(j) conviction – ...

Ninth Circuit Announces State Habeas Petition Remains ‘Pending’ for Purposes of AEDPA 1-Year SOL While State Relief Remains Open Regardless of Whether Petitioner Utilizes It

by Richard Resch

The U.S. Court of Appeals for the Ninth Circuit held that a postconviction relief (“PCR”) application in Arizona is “pending as long as a state avenue of relief remains open, whether or not a petitioner takes advantage of it” and thus tolls the Antiterrorism and Effective Death ...

Seventh Circuit: Postconviction Relief Petition Still Pending in Illinois Court 20 Years After Filing Entitles Petitioner to Seek Federal Habeas Relief Without First Exhausting State Remedies

by Richard Resch

The U.S. Court of Appeals for the Seventh Circuit held that because petitioner’s Illinois postconviction relief petition had been pending in state court for over 20 years, state postconviction remedies proved “ineffective,” entitling him to seek federal habeas relief under the terms of 28 U.S.C. § 2254(b)(1) ...

Eleventh Circuit Announces Definition of ‘Controlled Substance Offense’ in Guidelines § 4B1.2(b) Does Not Include Inchoate Offenses and Expressly Overrules Precedent Holding to the Contrary

by Douglas Ankney

The U.S. Court of Appeals for the Eleventh Circuit, sitting en banc, held that the definition of “controlled substance offense” for purposes of the career offender sentencing enhancement under U.S. Sentencing Guideline (“USSG”) § 4B1.2(b) unambiguously excludes inchoate offenses like conspiracy and attempt, and therefore, the commentary ...

Kansas Supreme Court Announces Legislature Intended to Tie One Unit of Prosecution to Multiple Items of Drug Paraphernalia Under K.S.A. 2016 Supp. § 21-5709(b)(1) and (b)(2)

by Douglas Ankney

The Supreme Court of Kansas held that the Legislature intended to tie a single unit of prosecution to multiple items of drug paraphernalia in K.S.A. 2016 Supp. 21-5709(b)(1) (“§ 21-5709(b)(1)”) and K.S.A. 2016 Supp. § 21-5709(b)(2) (“§ 21-5709(b)(2)”).

After Amber Dial reported to the Miami County Sheriff’s ...

Mississippi Supreme Court: Court of Appeals Improperly Permitted State to Supplement Record on Appeal in Reviewing Habitual Offender Determination

by Douglas Ankney

The Supreme Court of Mississippi, sitting en banc, held that the Court of Appeals (“COA”) improperly permitted the State to add to the record on appeal and the evidence presented to the trial court was insufficient to sustain a finding that Lorenzo Manuel was a habitual offender. ...

California Court of Appeal: Counsel and Sentencing Court’s Misadvisement of Plea’s Immigration Consequences Require Relief From Conviction

by David M. Reutter

The Court of Appeal of California, Second Appellate District, vacated a defendant’s conviction after finding the immigration consequences were not understood when he entered a plea of no contest to a domestic violence charge, which was an aggravated felony under federal immigration law that required deportation. ...

Fifth Circuit Announces Statute Prohibiting Firearm Possession by Person Subject to Domestic Violence Restraining Order Is Unconstitutional in Light of Bruen

by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit held that the federal statute which prohibits the possession of firearms by a person subject to a domestic violence restraining order, 18 U.S.C. § 922(g)(8), is unconstitutional in light of N.Y. State Rifle & Pistol Ass’n, Inc. v. ...

Record High Exonerations in 2022

by Jordan Arizmendi

The most exonerations in one year occurred in 2022. According to the Nation Registry of Exonerations’ 2022 Annual Report, the 233 people exonerated in 2022 lost an average of 9.6 years of their life as a result of their wrongful incarceration.

Alarmingly but not shocking, the ...

Your Texts, Emails, and Location Are Available to Law Enforcement, Regardless of How Law-Abiding You Are

by Jo Ellen Nott

Your attachment to interacting with social media and browsing the internet on your cellphone allows the government and law enforcement wide-open access to a disturbing amount of information about you. Even if you are not a user of social media and just carry a device around ...

California Supreme Court Announces Proof of First Degree Poison Murder Requires Showing Defendant Deliberately Gave Victim Poison with Intent to Kill or Inflict Injury Likely to Cause Death

by Douglas Ankney

In a case of first impression, the Supreme Court of California clarified that proof of first-degree murder by means of poison requires the prosecution to show that the defendant deliberately gave the victim poison with the intent to kill the victim or to inflict injury likely to ...

The Daniel Buffington Dilemma: Does His Expert Witness Testimony Satisfy Daubert?

by Jo Ellen Nott

Twenty-seven states in the U.S. have the death penalty. Those states and the federal government carry out the sentence by injecting a lethal mix of one, two, or three drugs as their execution of choice. Death by lethal injection, however, is not always humane, and its ...

Current Volume of Digital Evidence Challenge the Criminal Justice System to Do Better

by Jo Ellen Nott

In an open access article first publishedonline on April 20, 2023, in The International Journal of Evidence & Proof, researchers from England and New Zealand discuss the challenges defense attorneys face when accessing and reviewing evidence from phones and computers.

The largest challenges identified after surveying ...

A Surveillance Scam by Any Other Name Is But a Parasite

Data brokers, such as ShotSpotter, Fog Data Science, and Flock Safety bill themselves as surveillance companies assisting law enforcement in its quest to keep communities safer. But in actuality, they seemingly bilk taxpayers by selling bulk information to police agencies who may then use the information in violation of the ...

Police Departments Conspire with Boards to Secretly Install License Plate Cameras Without Consent of Residents

by Benjamin Tschirhart

Flock Safety” sounds innocuous, like a company that might provide security for chicken farmers. However, this company has nothing to do with fowl. But make no mistake; what they do is foul. Speaking to the people of Lakeway, Texas, Mayor Thomas Kilgore felt compelled to make the ...

Holding Bad Cops Accountable Is the Way Forward in Police Reform

by Douglas Ankney

The continuous refrain of “police reform” touting “better training” and laws banning actions such as chokeholds seems to echo endlessly. In 2021, the U.S. House of Representatives passed the George Floyd Justice in Policing Act (“Act”), but it died in the Senate. However, even if the Act’s ...

Police Unions Continue Overt and Covert Actions Designed to Weaken Oversight Boards

by Douglas Ankney

The group “Voters for Oversight and Police Accountability” (VOPA) apparently amassed the 25,000 signatures needed in Austin, Texas, to have a referendum entitled “Austin Police Oversight Act” added to the ballot. But there was already an “Austin Police Oversight Act” on the ballot seeking to open police ...

SCOTUS Announces First Amendment Requires Mens Rea of Recklessness for ‘True Threats’ Conviction

by Richard Resch

The Supreme Court of the United States held that criminal liability for true threats, which are not protected by the First Amendment, requires proof that the defendant had a subjective understanding of the threatening nature of the statements and further held that a mental state of recklessness ...

Did You Know Popular Video Doorbells Are Equipped with Facial Recognition?

Jordan Arizmendi

The next time you arrive at a door that is equipped with a camera, as you glance into that lens, be cognizant that someone, somewhere could be analyzing your identity with facial recognition technology. Consumer Reports tested a number of security camera brands and video doorbells that offer ...

Research on Persistence of Touch DNA Will Help Investigators Collect More Usable Samples

by Jo Ellen Nott

The National Institute of Justice (“NIJ”) is the research, development, and evaluation agency of the U.S. Department of Justice. Its motto, “strengthen science, advance justice,” informs all its activities. One crucial area of forensic science it has helped strengthen through grants is DNA research and development. ...

News in Brief

California: The District Attorney for Los Angeles County, George Gascón, announced that a police officer in San Fernando was charged with theft. CBS News reported that the officer, Jeffrey King, 37, was handed charges on June 6, 2023, of misdemeanor petty theft, felony extortion, and felony second-degree robbery. The charges ...

 

 

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