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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 can lie is a fact of everyday life, and lie they will. Research suggests that an average person will tell two lies per day. Research also shows that during a typical 10-minute conversation, 60 percent of people will tell a lie. Obviously, some lie much more frequently than others. The motives are as varied as the actual lies.

The great majority of lies are low-stakes. These are the “little white lies” – about personal attitudes, feelings, and opinions – told to preserve and support social cohesiveness. And while some damage can be caused by these lies, they are generally harmless.

The darker side of deceptions and lies are considered high-stakes. Lies people consider serious, often told to hide significant transgressions such as cheating on a test or an infidelity to a spouse. The most serious of these are told to hide criminal acts and are told for the purpose of ...

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 $480,000 on programs which collect data from social media websites and others to track activities and “build profiles” on people, most of whom never have and never will commit a crime. The records also show how this program has escalated since Governor Kathy Hochul has taken office.

The NYSP would have New York citizens believe this is a responsibly managed program that furthers the interests of justice and keeps them safe. “These software services and tools have helped eliminate individuals from suspicion and convict others for serious crimes,” said Beau Duffy, an NYSP spokesperson. “We follow all laws when it comes to gathering evidence to ensure anything relevant to a prosecution can withstand legal scrutiny and be used in court.”

“When these systems are used without any public accountability or oversight, it really raises my alarm bells,” said Albert Fox Cahn, executive director of the Surveillance Technology Oversight Project. “You ...

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 also the first to construct a sufficient sample frame for further research into FGG.

The birth of FGG is often tied to the arrest of Golden State Killer Joseph DeAngelo in April of 2018. Since then, investigators across the globe have repeatedly turned to FGG in attempting to solve some of their coldest cases. But FGG is not limited to only identifying perpetrators of crime. Unidentified deceased bodies have been identified, such as Joseph August Zarelli who was previously known as the Boy in the Box and
America’s Unknown Child.

Dowdeswell wrote in her paper (the “Forensic Genetic Genealogy Project V. 2022”): “I hope that this research will assist in our understanding this burgeoning investigative technique, and provide information to academic and public authorities seeking to better understand forensic genetic genealogy and formulate public polices surrounding its development and use.”

The Forensic Genetic Genealogy Project can be found on Mendeley ...

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 the diabolical machinations of a make-works program carried out on an epic scale whose only purpose is to keep the powers-that-be permanently (and profitably) employed.

Case in point: the FBI.

The government’s henchmen have become the embodiment of how power, once acquired, can be so easily corrupted and abused. Indeed, far from being tough on crime, FBI agents are also among the nation’s most notorious lawbreakers.

Whether the FBI is planting undercover agents in churches, synagogues and mosques; issuing fake emergency letters to gain access to Americans’ phone records; using intimidation tactics to silence Americans who are critical of the government, or persuading impressionable individuals to plot acts of terror and then entrapping them, the overall impression of the nation’s secret police force is that of a well-dressed thug, flexing its muscles and doing the boss’ dirty work.

Clearly, this is not a government agency that appears to understand, let ...

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 on remand.

During the jury selection at Theodore Israel Madrid’s murder trial, the prosecutor peremptorily struck a prospective Black juror identified as J.T. In response, Madrid raised a Batson challenge. The prosecution then offered the following as justification for the peremptory strike:

“Judge, first of all, he’s being replaced by another African-American juror. So, I don’t think that they can really claim that this is not race neutral. But the real problem is we don’t know very much about him. He has a hearing issue it appears, and he’s sort of completely non responsive. We have very little information on him from the questionnaire and no time really to have a very detailed conversation with him. Terribly uncomfortable with him where we have very little information.”

The trial court repeated the prosecutor’s race-neutral justifications but cast doubt on whether J.T. was hard of hearing. The trial court then espoused its ...

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 accuracy (or lack thereof) of these tests have called into question their usefulness for law enforcement purposes, causing a push to reform their role in prosecutions and elsewhere.

On the last day of 2015, Dasha Fincher was arrested in Monroe County, Georgia, during a traffic stop. Fincher was a passenger in the vehicle, and officers found an unknown substance attributed to her during a search. Deputies used a roadside drug test kit which indicated the substance contained methamphetamines. She would spend the next three months in jail on a $1 million bond because of the suspicion that she was a drug trafficker, largely based on the roadside test.

A subsequent lab test would reveal the substance was actually cotton candy. Though there were several reasons why the system failed Fincher, much of her trouble stemmed from the field test kit which misidentified a harmless substance as a narcotic.

A Known ...

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 gun, and Emily threatened to hit him with a golf club. The two groups threw rocks at one another. Ewer and his companions backed away from the scene. Emily and Gilbert pursued them, and Ewer fired in their direction. Gilbert was struck in the back and died at the scene. Ewer was charged with second degree murder.

Prior to trial, Ewer requested the jury be instructed using the Revised Arizona Jury Instructions (“RAJI”) for justified use of deadly force in self-defense – RAJI 4.04 and 4.05; defense of a third person – RAJI 4.06; and crime prevention – RAJI 4.11. The State proposed that the word “defendant” in each of the instructions be replaced by the word “person.” The State argued that the jury could apply the justification instructions to Gilbert’s conduct as well as to Ewer’s. Over Ewer’s objection, the trial court obliged the State’s requested modifications to the ...

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 his constitutional right to remain silent.

The Court’s opinion was issued in an appeal brought by Troy D. Borge, Jr., after his motion to dismiss an indictment was denied by the circuit court. Borge was criminally charged for a November 5, 2019, incident at the P’ia Youth and Cultural Center. The State alleged Borge struck the victim on the head several times with a piece of wood, resulting in serious injuries.

A grand jury on November 22, 2019, indicted Borge for attempted second-degree murder. That indictment was dismissed on April 13, 2020, due to the State improperly presenting hearsay testimony regarding an eyewitness’ statements to police and statements to the victim’s treating physician. The matter was presented a second time to a grand jury, which again returned an indictment on June 29, 2020, for attempted second-degree murder.

Borge moved on July 17, 2020, to dismiss that indictment.  He argued the ...

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 Thamud Eldridge that included a conviction for kidnapping in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1) predicated on kidnapping in the second degree under NYPL § 135.20 (Count 5); a conviction for attempted Hobbs Act robbery or conspiracy to commit Hobbs Act robbery (Count 6); and a conviction for possessing and brandishing a firearm in the furtherance of a crime of violence in violation of § 924(c)(1)(A)(ii) (Count 7). The jury verdict did not specify whether the Count 5 conviction or the Count 6 conviction was the underlying crime of violence supporting the Count 7 conviction. Eldridge had argued that it did not matter because none of his convictions qualified as a crime of violence. The U.S. Supreme Court vacated the judgment and remanded to the Second Circuit for further consideration in light of United States v. Taylor, 142 S. Ct. 2015 (2022).

On remand, the ...

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 evidence obtained as a result of the subsequent search must be suppressed.

Officer Matthew Croucher of the San Jose Police Department responded to a report of a possible vehicle burglary in a business parking lot on an evening in January 2017. A security guard on the premises “told him she had seen two suspicious individuals on bikes shining flashlights into parked cars.”

After finding nothing suspicious in the commercial lot, Croucher then drove through an adjacent lot. He noticed one of the vehicles was occupied by Duvanh Anthony McWilliams, who “did not appear to be sleeping, just hanging out.”

Croucher called for backup, then approached the vehicle, and instructed McWilliams to exit, ostensibly for “safety reasons.” A records check showed McWilliams was “on active and searchable [California Department of Corrections] parole.” Croucher then conducted a search of McWilliams and the vehicle, “from which he seized a firearm, drugs, and drug ...

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 defendant’s culpability, and thus, the Double Jeopardy Clause of the Fifth Amendment is not triggered and does not prohibit retrying the defendant in the proper venue.

Timothy Smith is a software engineer and fishing enthusiast from Mobile, Alabama. In 2018, he came across a company called StrikeLines that utilizes sonar equipment to locate private, artificial reefs that people build to attract fish. The company sells the geographic coordinates of the reefs to interested fishing enthusiasts.

Smith apparently objected to this business model because StrikeLines was profiting, unfairly in his opinion, from the work of private reef builders. He used an application to secretly obtain portions of the company’s reef coordinate data and offered it to others online. StrikeLines eventually contacted him, and Smith offered to remove the online data as well as fix the company’s security flaws in exchange for coordinates to “deep grouper spots” that he was unable to ...

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 – are involved, sentencing courts are free to run the sentences concurrently or consecutively.

In 2002, a group engaged in drug-dealing murdered a rival dealer. Efrain Lora was accused of serving as a lookout during the shooting. He was convicted of aiding and abetting in violation of 18 U.S.C. § 924(j)(1), which criminalizes the actions of a “person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm,” where the death is the result of murder. Lora was also convicted of conspiracy to distribute drugs in violation of 21 U.S.C. §§ 841 and 846.

During sentencing, Lora argued that the U.S. District Court for the Southern District of New York had discretion to run his § 924(j) concurrently with his conspiracy sentence, but the District Court ruled that it did not have the discretion to run the sentences concurrently. ...

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 Penalty Act of 1996’s (“AEDPA”) one-year statute of limitations period – 28 U.S.C. § 2244(d)(1) – for filing a federal habeas petition under 28 U.S.C. § 2254.

In 2013, Paul Melville was convicted of two counts of armed robbery and four counts of aggravated assault. He was sentenced to an 18-year prison term. His convictions were affirmed on direct review by the Arizona Court of Appeals on July 29, 2014. The Court summarized the key dates as follows:

July 29, 2014 - Conviction affirmed by Arizona Court of Appeals on direct appeal

September 26, 2014 - PCR petition signed by Melville and delivered to prison officials for mailing to Maricopa County Superior Court

September 29, 2014 - Expiration of extension of time to petition the Arizona Supreme Court for review of affirmance by Arizona Court of Appeals on direct review of conviction (no such petition was filed)

October 1, 2014 ...

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) without first waiting for further relief in Illinois courts.

In 1999, two separate juries convicted James Evans of murder and soliciting murder. He received sentences of 60 years for the former and 47 years for the latter to run consecutively. The convictions were both affirmed on direct appeal. In 2003, Evans filed a petition for postconviction relief in state court, claiming that he was innocent and that the prosecution engaged in serious misconduct during both prosecutions.

After nearly 20 years, the state courts still have not resolved Evans’ petition for postconviction relief due, in large part, to the conduct of the State. For example, in December 2008, Evans requested copies of audio recordings that he claims were manipulated by the prosecution; the court ordered the State to “provide all copies” of the recordings to Evan. But it failed to comply and would continue to do so for the next two-and-a-half ...

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 notes are inapplicable. The Court expressly overruled prior precedent that held to the contrary, viz., United States v. Weir, 51 F.3d 1031 (11th Cir. 1995), and United States v. Smith, 54 F.3d 690 (11th Cir. 1995).

Brandon Romel Dupree pleaded guilty to possession of a firearm after having been convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); conspiracy to possess with intent to distribute heroin and cocaine in violation of 21 U.S.C. § 846; and carrying a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A)(i).

 The Presentence Investigation Report (“PSR”) revealed that Dupree had two previous convictions for controlled substance offenses. And the PSR identified Dupree’s current § 846 conspiracy conviction as a third controlled substance offense. Together, these three offenses qualified Dupree for the career offender enhancement of USSG § 4B1.1(a). With the enhancement, Dupree’s ...

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 Office that Justin Burke Eckert had beaten her, officers executed a search warrant at his home and found a tent, nine grown marijuana plants, and more than 25 drug paraphernalia objects – including propane, a blower, rolling papers, two bongs, and three fans. Ultimately, Eckert was charged with eight felony counts of possession of paraphernalia with intent to manufacture, cultivate, and plant marijuana under § 21-5709(b)(1). He was also charged with 21 misdemeanor counts of possessing drug paraphernalia to store and to introduce marijuana into the human body under § 21-5709(b)(2).

The trial court dismissed four of the misdemeanor counts. A jury found Eckert guilty of numerous offenses related to the assault of Dial as well as guilty of all the drug paraphernalia counts. The trial court sentenced Eckert to 362 months’ imprisonment. For each felony paraphernalia possession conviction, Eckert was sentenced to 11 months’ imprisonment to run concurrent to ...

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.

Manuel was convicted by jury of second-degree murder and aggravated assault for his role in the shooting death of Justin Shannon and the wounding of Keandria Mitchell. At his sentencing, the prosecution offered two prior sentencing orders into evidence and asked the circuit court to sentence Manuel as a habitual offender. Both orders stated Manuel had pleaded guilty to a charge of selling hydrocodone. When the judge asked if the two orders were identical, the prosecutor pointed out that one order had a case number of 08-1180 and the other had 08-1181. The judge then asked if the prosecution had anything further, and the prosecutor answered: “No, Your Honor, other than the fact that I believe that we’ve presented evidence that shows that he has been charged with two different felonies arising out of separate charges, separate times, and sentenced to a term of one year or more.”

The judge ...

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.

The Court’s opinion was issued in connection with Cesar Alfredo Villalba’s appeal of the denial of his motion brought pursuant to Penal Code § 1473.7(a). Villalba was charged on January 26, 2017, by felony complaint with inflicting corporal injury on his spouse. The complaint also alleged great bodily injury on the victim. Villalba waived a preliminary hearing on April 26, 2017, and negotiated a plea agreement that provided for the no contest plea in return for the striking of the great bodily injury allegation and a suspended sentence conditioned upon 365 days in county jail, five years felony probation, a protective order, and 52 weeks of domestic violence classes and fines.

After assuring Villalba understood the terms and conditions, the trial court said, “I don’t know if this applies to you or not. I don’t need to know. I just need to advise you that if you’re not a citizen ...

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. Bruen, 142 S. Ct. 2111 (2022).

Zackey Rahimi was indicted for possessing a firearm while under a domestic violence order in violation of 18 U.S.C. § 922(g)(8) after officers from the Arlington, Texas, Police Department executed a search warrant at his home and found a rifle and a pistol. Rahimi moved to dismiss the indictment on the ground that the statute is unconstitutional, but he acknowledged that United States v. McGinnis, 956 F.3d 747 (5th Cir. 2020), foreclosed his argument.

The U.S. District Court for the Northern District of Texas denied his motion, and he pleaded guilty. On appeal, a panel of the Fifth Circuit agreed that McGinnis foreclosed Rahimi’s argument. While Rahimi’s petition for a rehearing en banc was pending, the U.S. Supreme Court decided Bruen. The panel withdrew its opinion and ordered supplemental briefing on the impact of Bruen on Rahimi’s case. Rahimi then contended ...

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 report detailed that at least 195 of the 233 exonerations claimed official misconduct to be the cause of their wrongful imprisonment. In addition, 59% of the 233 exonerations included wrongful convictions when no actual crime had even occurred – child sex abuse, drug possession, murder, for example.

Of the 233 exonerations, 81 were for homicide charges; 16 were for sexual assault, 12 of those included children; 20 were for violent crimes other than homicides or sexual assault, such as robbery or attempted murder; and 166 defendants were exonerated for non-violent crimes.

Among the exonerations, 195 were as a result of official misconduct; 54 involved mistaken witness identification; 31 were for convictions based on a false confession; 184 involved false accusations; 44 included false or misleading forensic evidence; and 56 were caused by ineffective assistance of counsel.

One interesting facet illustrated in the report’s conclusion was the sharp increase of exonerations ...

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 to make and receive phone calls, you are still being caught up in an ever-widening surveillance dragnet. If you are unlucky, it could make you collateral damage in a criminal investigation. In the best of cases, your personal information could merely end up in a government database to possibly be used against you in the future. 

The public would be well advised to know that recent reports about the Secret Service, Immigration and Customs Enforcement, and the FBI use of our personal data should make us all uneasy. In the words of J.D. Tucille, civil liberties, and government overreach pundit: “Our mobile devices constantly snitch on our whereabouts.” 

Those federal agencies are aware of the rules regarding cellphone tracking and data collection but either work around them or purchase data from businesses that profit from selling our electronic whereabouts. The use of our data revealed in the recent reports proves ...

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 cause death.

Heather Rose Brown placed her sleeping five-day-old daughter, Dae-Lynn Rose, face down on the bed between her and Dae-Lynn’s father, Daylon Reed. While the three of them slept, Dae-Lynn stopped breathing. When Brown awoke and discovered her baby was warm but not breathing, she directed Reed to call 911. The 911 dispatcher instructed Brown in administering CPR until paramedics arrived. Unfortunately, Dae-Lynn was pronounced dead upon arrival at the hospital.

An autopsy report revealed that Dae-Lynn died from exposure to methamphetamine and heroin. Brown admitted that she and Reed smoked both heroin and methamphetamine but not in the same room as Dae-Lynn. However, she fed Dae-Lynn breast milk and baby formula shortly before she died.

Brown was prosecuted for first degree murder on the theory that Brown poisoned her newborn daughter by feeding her breast milk after smoking methamphetamine and heroin. The superior court instructed the jury that ...

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 opponents point to it as an unconstitutionally cruel and unusual punishment. Understandably, the specific protocols used in the different states are widely challenged prior to each execution as the public grapples with reports of botched executions causing prolonged agony and suffering.

These challenges fall heavily on the judiciary, as judges must now evaluate the credibility of medical experts and complex scientific testimony before admitting it as evidence. The U.S. Supreme Court’s landmark decision in Daubert v. Merrell Dow Pharms, Inc., 509 U.S. 579 (1993), established the standard for admitting scientific testimony in federal courts.

Under Daubert, judges are mandated to consider four factors before admitting expert testimony into evidence: (1) the theory can and has been tested, (2) the theory has been subject to peer review, (3) the error rate is known, (4) and the theory has gained acceptance in the scientific community. The mandates present a considerable ...

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 70 criminal law attorneys were (1) gaining access to data complicated by limited or late access, (2) the time needed to access and identify the relevant information because of the large volume of material, (3) the ability to use the data in the format provided, and (4) the difficulties processing and understanding data. Defense attorneys are hampered by tight turnaround times when confronted by these challenges. 

Attorneys responding to the survey mentioned that even 1GB of data provides “unmanageable amounts of evidence to review.” This places defense attorneys at a disadvantage when they cannot examine all the evidence presented by the prosecution and are forced to rely on summaries the prosecution has prepared.

Because of the volume of material and the usual time constraints defense counsel must contend with, they cannot perform independent checks. The inability to independently fact check can lead to omitting important details that “could lead to ...

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 rights of those taxpayers.

At a debate in a Detroit City Council meeting over whether to spend $7 million to expand the City’s contract with ShotSpotter, an exasperated Detroit Police Chief James E. White described ShotSpotter as “nothing but an investigative lead. It has no video. It has no voice recordings. It responds to the percussion of a gunshot, period.” While White intended to prove that ShotSpotter was not a “mass surveillance tool,” his comment revealed what many had known for weeks: ShotSpotter’s microphones do nothing more than record entire neighborhoods on behalf of the police.

The company blankets neighborhoods with microphones that purportedly detect only sounds above 120 decibels. If the sound is believed to be a gunshot, police are dispatched to the area. In a nutshell, ShotSpotter profits by collecting information on loud sounds and selling it to police departments. (But isn’t it cheaper when people in 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 disclosure that “a surveillance system has been installed in the city of Lakeway.” Usually, when a community installs a system like this, they have some knowledge of it – not this time. “We find ourselves with a surveillance system, with no information and no policies, procedures or protections.”

As the mayor, the people of Lakeway probably ought to expect that the mayor’s office might know something about the eight license plate readers that had been installed on roads in the town, both public and private. He didn’t. He only learned about the existence of the cameras after they had already been in place, capturing people’s movement for around six months. The executive branch of the city had taken no part in the decision. That honor had been claimed by the Rough Hollow Homeowners Association and its governing body, “Legend Communities,” which signed a deal in January 2021 granting local police ...

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 ban on chokeholds had become law, it would not have saved the life of Tyre Nichols.

Nichols was savagely beaten to death by Memphis police officers using every assault imaginable other than the chokehold. Amid the calls for “professionalizing the police” by raising the current 650 hours of training to match Finland’s 5,500 hours – or by requiring police officers to have a college degree – is Noah Smith. 

On his Substack, Smith admits that there are not “good causal studies on the impact of total hours of police training on police brutality” but argues there is some evidence suggesting particular subtypes of training are effective. Yet, one of those subtypes was the de-escalation training undergone by the officers who killed Nichols.

And while diversity in a police force is a politically correct move, it does little to prevent police brutality as shown by the fact that Nichols was a ...

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 records to public access and to give the city’s office of police oversight an active role in the investigations of officer misconduct.

However, the VOPA version differed in two significant ways: (1) it was funded almost entirely by a police union – the Austin Police Association had contributed nearly every penny of the campaign’s $300,000 and (2) the VOPA version would keep particular misconduct records hidden from public eyes and give the board only a passive role in investigations.

Austin is not an outlier. In January 2023, a city councilor in Albuquerque, New Mexico, proposed abolishing the oversight board to replace it with a smaller, less powerful civilian panel. A state legislator told the Albuquerque Journal it was a “done deal.” Abigail Cerra, former chairperson of the Minneapolis Police Oversight Commission, acknowledged the importance of oversight groups as an important check on police authority: “Without any such check or oversight, ...

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 is sufficient because it provides enough breathing space for protected speech without sacrificing too many of the benefits of enforcing laws prohibiting true threats.

Billy Counterman sent hundreds of Facebook messages to a local singer and musician, C.W., over a two-year period despite the fact they had never met. C.W. did not respond to any of Counterman’s messages and blocked him numerous times, but he created new Facebook accounts and resumed sending her unwanted messages. The messages ranged from the mundane – “I am going to the store would you like anything?” – to the unsettling – “Fuck off permanently” and “Staying in cyber life is going to kill you.”

The barrage of messages affected C.W.’s daily existence. Believing that Counterman was threatening her life, she had “a lot of trouble sleeping” and suffered from severe anxiety. Consequently, she no longer walked alone, reduced her social activity, and canceled some ...

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 facial recognition, such as Bosma, Blurams, Eve, Eufy, Google Nest, Logitech, Netatmo, and WeMo. Although the study concludes that such cameras are not connected to massive facial databases, hence, alone, they do not pose significant privacy concerns; however, they still can potentially invade our privacy.

The Amazon Ring Doorbell Pro, for example, interacts with Amazon Alexa to play prerecorded greetings to visitors, plus they can leave messages. However, Amazon recently admitted that there could be “emergency” instances, when police can get warrantless access to Ring devices without the owner’s permission. In that case, all it takes is a police officer’s skewed definition of the word “emergency” for them to gain access to one’s private videos. Amazon has also admitted to sharing user video with law enforcement.

Google Nest is a streaming service for all your home devices. Imagine possessing the ability to stream video content to any television, to instantly ...

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. Since the late 1980s, law enforcement demands for tools and technologies of DNA testing have continued to exceed what is available in their jurisdictions. 

In 2018, the Forensic Technology Working Group at NIJ asked for studies that would “provide foundational knowledge and practical data” about the persistence of DNA left on surfaces versus DNA collected from individuals via bloodstains or visible fluids at crime scenes or found on victims. The Massachusetts Institute of Technology Lincoln Laboratory received an NIJ grant to quantify how long touch DNA would persist on different surfaces under varying conditions. Scientists at South Dakota State University then took the Lincoln Lab findings and created predictive models of how touch DNA degrades. 

Issues that forensic scientists face when dealing with touch DNA are many: low quantity of useable DNA, high variability in the amount left by one person, high variability in the amount left from person to ...

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 resulted from an investigation by the LA County Sheriff’s Dep. Internal Criminal Investigations Bureau and were spawned from accusations that King stole from an arrestee on June 21, 2022. King had been responding to a call of potential domestic violence when he confiscated money and cellphones from the male arrestee. He later turned in only the phones to a department supervisor. The amount of money that was stolen was not clear at the time of the June 8 reporting, but it was clear that prosecutors were contending that the victim never got his money back, and the confiscated cash was never turned in as evidence.

Colorado: KDVR in Denver reported that a former police officer in Loveland was fired for “unnecessary use of force.” Body camera footage of the May 20, 2023, offense was released by the Loveland PD in the weeks following the assault carried out by former officer, ...

 

 

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