Skip navigation
CLN bookstore

Criminal Legal News: September, 2023

View as PDF
Issue PDF
Volume 6, Number 9

In this issue:

  1. Geofence Warrants: Little-Known Search Makes Innocent People Suspects Simply for Having a Phone Near a Crime Scene (p 1)
  2. What’s ‘Sufficient’ Rehabilitation for Compassionate Release? (p 13)
  3. Interrogating a Suspect With an Intellectual Disability Using the Reid Technique: Recipe for a False Confession (p 15)
  4. Forensic Benefits of a Body Farm Facility (p 17)
  5. Police Can Get More From Your Phone Than You May Believe (p 18)
  6. Surveilling AI’s Big Moment (p 18)
  7. Wyoming Supreme Court Reverses ‘Contempt of Cop’ Conviction Because Police Were Not Lawfully Performing Their Official Duties (p 19)
  8. Sixth Circuit Suppresses Evidence Obtained as a Result of Warrant That Lacked Probable Cause of Criminal Activity in Arson Investigation (p 20)
  9. Arizona Blowfly Database Develops Empirical Support for Time of Death Estimation (p 21)
  10. California Court of Appeal Reverses Felony Murder Conviction Because Evidence Insufficient to Support Underlying Predicate Felony of Attempted Robbery (p 22)
  11. Biased Algorithms Are Still a Problem (p 23)
  12. Probation Sentences Capped in Minnesota (p 23)
  13. The Two Faces of the FBI and DOD Facial Recognition Program (p 24)
  14. New York Court of Appeals: Constitutional Prohibition Against Restraining Defendant Without Explanation Remains in Force During Announcement of Verdict and Polling of Jurors (p 25)
  15. No Discipline for NYPD Officers Who Deface License Plates in Apparent Attempt to Evade Tickets (p 25)
  16. Massachusetts Supreme Judicial Court Casts Nearly 30,000 DUI Convictions in Doubt Due to ‘Egregious Government Misconduct’ (p 26)
  17. New York City’s DNA Gun Crimes Unit Reduces Turnaround Times for Gun Crimes by Half (p 26)
  18. The Serious Threat of Cell-Site Simulators (p 28)
  19. Second Circuit Vacates § 924 Convictions Predicated on Attempted Hobbs Act Robbery (p 30)
  20. New Study Proposes Biological Reasons May Cause Sudden Infant Death Syndrome (p 31)
  21. Law Enforcement Using Technology That Accesses Live Video From Any Camera Connected to the Internet (p 31)
  22. New Service Highlights Cellphone Privacy Issues (p 32)
  23. Mississippi Ends ‘Dead Zone’ (p 32)
  24. ‘Lab in a Box’ Provides DNA Results in Minutes (p 34)
  25. Report Finds Older Prisoners in Maryland Are Less Likely to Be Paroled (p 34)
  26. New Robotic Cops Patrolling in NYC (p 35)
  27. Supreme Court of California: After Amendments to Three Strikes Law, Courts Retain Concurrent Sentencing Discretion for Qualifying Offenses Committed on Same Occasion or Arising From Same Operative Facts (p 36)
  28. New York Court of Appeals: Call Intercepted on Wiretap Not Exempt From Statutory Notice Requirements Simply Because Same Call Captured on Separate, Consensual Recording by Jail (p 38)
  29. Fourth Circuit Denies Defendant Faced ‘Classic Penalty Situation’ During Polygraph Questioning While on Supervised Release (p 39)
  30. Seventh Circuit: Whether Right to Counsel ‘Attaches’ Is Not Dependent on Defendant’s Appearance at Probable Cause Hearing (p 40)
  31. Sixth Circuit Holds Bump Stocks Not Regulated Under Machinegun Statute (p 41)
  32. New Jersey Supreme Court: Third-Party’s Apparent Authority to Consent to Search Premises Does Not Extend to Defendant’s Personal Property Located on Premises (p 42)
  33. Travis County, Texas, Efforts to Keep Mentally Ill Individuals Out of Jail Face Funding, Infrastructure, and Information Management Challenges (p 44)
  34. Third Circuit: Pennsylvania Second-Degree Aggravated Assault of a Protected Individual Not a ‘Violent Felony’ Under ACCA, Court Acknowledges ‘Bizarre Result’ (p 45)
  35. From the Sad but True Files: Police Oppose Laws Prohibiting Cops From Lying to Juveniles During Interrogations (p 46)
  36. Colorado Supreme Court Clarifies There Is No Per Se Rule Excluding Self-Serving Hearsay (p 47)
  37. Collaborative Project Between Innocence Project and National Registry of Exonerations Produces Interim Report Reconciling Data Coding Discrepancies (p 48)
  38. New Montana Law Bans Warrantless Facial Recognition Surveillance (p 49)
  39. News in Brief (p 50)
  40. ‘Silos’ Can Keep Police Departments From Knowledge of Extent of Police Abuse and Consequences of That Abuse (p 50)

Geofence Warrants: Little-Known Search Makes Innocent People Suspects Simply for Having a Phone Near a Crime Scene

by Anthony W. Accurso

The Fourth Amendment to the U.S. Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and requires that warrants be issued only “upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”

This language was crafted in response to general warrants issued in pre-revolutionary American colonies which allowed officers to conduct a “general, exploratory rummaging” through the homes and businesses of any person remotely suspected of criminal activity. Coolidge v. New Hampshire, 403 U.S. 443 (1971). While such warrants were not strictly legal under English law, the structures of judicial oversight were often rigged against the colonists.

Sometimes known as “writs of assistance,” these warrants were “widely used by British officials to search colonists’ imported goods to ensure compliance with the tax code.” In an 1817 letter, Founding Father and future President John Adams referred to a speech (which condemned such abuses) given by James Otis, a young lawyer from Boston, as “the birth of America’s struggle for independence.”

The wording of the Fourth Amendment with respect to ...

What’s ‘Sufficient’ Rehabilitation for Compassionate Release?

by James A. Lockhart and Luke E. Sommer

In the relatively short history of compassionate release motions filed by prisoners, courts have consistently found that rehabilitation is an important element in determining whether or not relief is appropriate. See United States v. Johnson, 2022 U.S. Dist. LEXIS 129168 (D.D.C. 2022). And where there is no supporting evidence of rehabilitation in the record, courts have denied petitioners’ requests on the grounds that they pose continuing threats to the public and a risk of recidivation. United States v. Mejia, 2020 U.S. Dist. LEXIS 180206 (D. Haw. 2020). This makes some sense – having cancer or some serious medical condition that threatens your life is an extraordinary circumstance, but it does not compel a court to release a person whose release plan includes (1) checking in with probation, (2) buying a cellphone, and (3) robbing a bank.

The idea of putting someone back on the street who is likely to cause further harm is not something District Courts have embraced for what seem like obvious reasons. That said, what exactly is rehabilitation? Rehabilitation can, at a certain point, be grounds for compassionate release in and of itself. But at the opposite ...

Interrogating a Suspect With an Intellectual Disability Using the Reid Technique: Recipe for a False Confession

by Jo Ellen Nott

On April 25, 2023, the Virginia ­Supreme Court issued an order refusing to hear the case of Michael L. Ledford, a man who was convicted of arson and first-degree murder in September 2000 when he was just 23 years old and the father of a baby boy.

Ledford was sentenced in 2001 to a total of 50 years based on a coerced confession obtained after five hours of high-pressure interrogation. After years of pro se petitions, hearings, and appeals, the high court of Virginia shut the door on a possible exoneration for Ledford. The Mid-Atlantic Innocence Project with the pro bono help of law firm Baker Botts has represented Ledford since 2016.

The dry legal facts are merely the tip of the iceberg in the Ledford murder-arson conviction. Below the surface of that iceberg that shattered Ledford’s life at 23 lie a mountain of police and prosecutorial missteps that put an innocent man in prison for half a century. First and foremost, Ledford is autistic. He was diagnosed by a University of Virginia clinical and forensic psychologist as being “in the autistic spectrum or [having] a severe nonverbal learning disorder.”

On the night of October 10, ...

Forensic Benefits of a Body Farm Facility

by Jordan Arizmendi

Abody farm is often an indispensable tool for investigators. A body farm is a facility that focuses on the details of human decomposition. Such an essential tool allows forensic scientists to study the decomposition process in a controlled environment. In many cases, body farms are the only way to determine the time of death, identification, how long the individual has been dead, as well as identifying many more crucial pieces of evidence.

The main purpose of a body farm is to study and form a conception of the decomposition processes that occur in our bodies. The research is then provided to medical, legal, and educational institutions. 

Amy Rattenbury is a researcher at a body farm and also a senior lecturer in forensic science at Wrexham University in the U.K. She said, “The environment plays a significant part in the rates, stages and features of decomposition observed. Temperature, weather, oxygen, access by scavengers, clothing etc. all cause differences. A general rule is that exposed bodies will decompose faster than buried bodies which are again faster than those submerged in water, but it is not so simple and multiple factors must be considered.” 

The seven body farms in the U.S. ...

Police Can Get More From Your Phone Than You May Believe

by Michael Dean Thompson

Most of us would feel violated to learn that our spouse or partner had been digging through our phone. Imagine if they were to use that access to determine where we have been and who we have been near and then 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 by people we love and hold most intimate, even if we believed we had nothing to hide.

Emma Well, a 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 law enforcement agencies in the U.S., wants to dig through your digital devices in such a manner. New York’s Gov. Kathy Hochul has announced a $20 million expansion on top of tens of millions already quietly eased into the state’s budget. Five-point-three million dollars ...

Surveilling AI’s Big Moment

by Michael Dean Thompson

AI is having its moment. And though 
 much of what has been slapped with the AI label is generally a far cry from the large language models you may have experienced at Bing and Google, it can still be terrifying. These new generations of tools are enabling a surveillance state far beyond an Orwellian fever dream. And, it is not just the government watching you. Rather, the voyeurs are also corporations like Moderna and the NFL.

Maybe the most terrifying is something called correlation analysis. It turns out, your friends have a lot to say about you, even without opening their mouths. Using biometrics like facial recognition to identify you and your friends (who “co-appear” with you in images and videos), they analyze the amount of time you spend together and how often you meet. The system can then cross-reference other data and create a surprisingly accurate picture of you. The same type of technology has been put to use in China to track dissidents and protestors. Now, a company called Vintra has brought the concept to the U.S. and counts the Lee County Sheriff’s office among its clients. The Los Angeles Times queried several police ...

Wyoming Supreme Court Reverses ‘Contempt of Cop’ Conviction Because Police Were Not Lawfully Performing Their Official Duties

by Richard Resch

The Supreme Court of Wyoming ­reversed Myron Martize Woods’ conviction for interference with a peace officer because the arresting officers’ warrantless entry into his home, without any applicable exception, meant that they were acting unlawfully in effectuating his arrest, but an “elemental” requirement of this offense is that the police were lawfully performing their official duties. 

On February 13, 2020, Cheyenne Police Department Officer Warren was called to the home of Brittany Jackson for a domestic disturbance. Jackson claimed that Woods grabbed her neck and pushed her. Warren did not see any marks on Jackson’s neck, so he concluded that there was not probable cause to arrest Woods.

Approximately two hours later, Warrant and his supervisor, Sergeant Young, returned to Jackson’s home in response to her request for further investigation. This time, the officers observed marks on her neck and determined that there was probable cause to arrest Woods for misdemeanor domestic battery. Mistakenly believing that an arrest warrant was not required under Wyo. Stat. Ann. § 7-20-102(a) because the alleged offense occurred less than 24 hours ago, the officers did not attempt to obtain an arrest warrant for Woods.

Warren, Young, and a third officer arrived ...

Sixth Circuit Suppresses Evidence Obtained as a Result of Warrant That Lacked Probable Cause of Criminal Activity in Arson Investigation

by Anthony W Accurso

The U.S. Court of Appeals for the Sixth Circuit required suppression of evidence based upon a warrant for evidence related to a structure fire where the government failed to establish probable cause to believe the fire was caused by arson or otherwise the result of criminal activity.

The Lexington, Kentucky, Fire Department sent Chris O’Bryan to investigate a structure fire at 428 Douglas Avenue. The fire consumed a portion of an unattached shed but did not spread to the vacant house on the property.

O’Bryan interviewed nearby residents and the non-resident owner who said “the word out there is that somebody pulled up in a vehicle and was … seen removing things out of the shed just prior to the fire.”

He also noticed the residence at 430 Douglas Avenue had security cameras that may have captured video of the shed at the time of the fire. O’Bryan made contact with Quincino Waide, the owner of 430 and occupant of Apt. 3, who allegedly smelled of “what [O’Bryan] thought was marijuana.” When asked about the DVR for the security cameras, Waide declined to share them.

Despite there being no reliable evidence to establish probable cause to ...

Arizona Blowfly Database Develops Empirical Support for Time of Death Estimation

by Anthony W. Accurso

A research project in Arizona seeks to develop support for a method of determining time of death by cataloging information about blowfly species.

The gases emitted by a corpse can attract nearby blowflies to colonize and help break down a body. While blowflies will get to a body within minutes, the life cycle of the flies will vary depending on the specific species, making the process of determining the time of death imprecise.

“Species identification is the most critical step,” said Jonathan Parrott, an assistant professor of forensic science at Arizona State University. “If you identify the species wrong, you’re going to be applying incorrect data to your estimated time of death.”

According to Forensic Magazine, “a blowfly species found on an abandoned body during summer in Chandler, Arizona, may have a different life cycle than a blowfly in the winter just 30 miles north.”

Parrott’s project has been using DNA to identify distinct blowfly species, then subjecting each to specific temperature and humidity environments to obtain information about how these affect the timing of a fly’s life cycle.

“What makes our research unique is that there has not been any developmental or DNA data ...

California Court of Appeal Reverses Felony Murder Conviction Because Evidence Insufficient to Support Underlying Predicate Felony of Attempted Robbery

by Douglas Ankney

The California Court of Appeal, Third Appellate District, reversed Dwayne Lamont Burgess’ felony murder conviction because the evidence was insufficient to support the underlying predicate felony of attempted robbery.

In December 1990, Burgess was a participant in a crime that ended in the death of a drug dealer. The plan was to cheat the victim by giving him some real money wrapped around a wad of fake bills in exchange for marijuana. But after Burgess handed the fake money to the victim, the victim called the deal off. Burgess fired his gun into the air to scare him and then ran off. Burgess heard another gunshot when his cousin shot and killed the victim.

Burgess was convicted by a jury of attempted robbery and first-degree felony murder. The jury also found he personally used a firearm in the commission of each offense. He was sentenced to prison for a term of 29 years to life on the murder and its enhancement while the sentence for the attempted robbery and its enhancement was stayed.

Burgess subsequently petitioned for resentencing under California Penal Code § 1172.6 and was granted a hearing under subdivision (d)(3). (Note: All statutory references are ...

Biased Algorithms Are Still a Problem

by Michael Dean Thompson

The reduction of biases in criminal justice is an ongoing problem that does not lend itself to easy solutions. Artificial Intelligence (“AI”) may one day be that solution, though Boston University associate professor of law and assistant professor of computing and data sciences Ngozi Okidegbi points out that day is not here yet. The problem, as it is in all of criminal justice, is how pervasive and pernicious the issue of race can be. According to the Bureau of Justice Statistics, for every 100,000 adults within the U.S., there were 1,186 Black incarcerated adults in 2021. Similarly, there were 1,004 American Indians and Alaskan Natives per 100,000 that same year. In contrast, only 221 incarcerated per 100,000 that same year identified as white. Those extraordinary numbers highlight the severity of the problem but say little about underlying causations.

There has long been a call to increase the use of algorithms in all aspects of criminal justice, from policing to parole and everything in between, with the hope that a purely data-driven solution would eliminate human prejudice. Unfortunately, the systems put into place are often “black boxes” that its users have no real understanding of how the ...

Probation Sentences Capped in Minnesota

by Jordan Arizmendi

Part of an omnibus bill, Minnesota recently placed a five-year cap on probation. Any Minnesotan serving probation sentences longer than five years is now eligible for resentencing. Before this legislation, Minnesota law allowed probation sentences to be as long as the maximum sentence one could get for the crime.

For example, in 2013, Jennifer Schroeder got a year in jail for a drug offense. However, under Minnesota law, the maximum she could have gotten for the crime was 40 years. Hence, she received 40 years of probation.

Many individuals who go through the justice system will agree that the probation period is more burdensome than the incarceration. After all, probation requires someone to pay pricey fees, attend classes, and adhere to other judge-appointed conditions. Nationwide, the average length of probation is a little under two years.  

Sources: reason.com; pewtrust.org

The Two Faces of the FBI and DOD Facial Recognition Program

by Carlos Difundo

It is a trope of the modern spy thriller. A drone flies overhead and captures a fleeting glimpse of some person of interest. The image begins as a pixelated blur from far above. Someone yells, “Enhance the image,” and it resolves into a high-quality profile that is run through a facial recognition program, which identifies the suspect every time. In the spy thriller, civil rights, accuracy, and verisimilitude are rarely top considerations. Despite being aware of the technical and legal limitations, the FBI and Department of Defense have joined forces in an effort to make that trope a reality.

Their wish list includes the ability to identify people captured by low-level street cameras to high-flying drones while also being able to follow people from camera to camera even as the angle of cameras differ. It seems the tool also needs to be capable of working in real-time while being indexable for future searches.

It is not clear how successful they have been in light of the significant technical challenges. Even using the high-resolution images found in jail bookings where suspects face the camera in strong lighting, extant best-in-class facial recognition systems, like those developed by Microsoft and ...

New York Court of Appeals: Constitutional Prohibition Against Restraining Defendant Without Explanation Remains in Force During Announcement of Verdict and Polling of Jurors

by Douglas Ankney

The New York Court of Appeals held that until the jury returns to the courtroom and publicly announces and confirms the verdict, the defendant is still presumed innocent, so the constitutional prohibition on restraining a defendant without explanation remains in force.

Oscar Sanders was tried by jury on several charges, including attempted assault in the first degree and assault in the second degree. After the jury advised the trial court it had reached a verdict but had not yet returned to the courtroom, defense counsel observed the defendant in handcuffs and made the following objection:

“I understand that it’s this court’s policy, I just learned this minutes ago, to keep my client in handcuffs while the jury comes out and renders their verdict. But it’s my understanding that the law allows for the defense and Prosecution to poll the jury with the idea in mind that perhaps unanimity of the jury can be questioned when the foreperson announces a unanimous jury. And with that in mind, being that the defendant is in handcuffs while they announce that verdict, especially in the case of it’s a verdict of guilty, lends pressure to anyone who might dissent during that ...

No Discipline for NYPD Officers Who Deface License Plates in Apparent Attempt to Evade Tickets

by Douglas Ankney

Gersh Kuntzman, editor of Streetsblog, spent the first quarter of 2023 documenting New York Police Department (“NYPD”) officers who defaced their license plates, making the plates unreadable to the city’s speed, red-light, and bus-lane violation cameras. The results of the investigations into his complaints reveal none of the offending officers were disciplined.

Sergeant Ronald Paulin earned more than $228,000 in 2022. Kuntzman photographed Paulin’s new Tesla that had no front license plate or registration. But the investigator who interviewed Paulin stated Paulin no longer owned the vehicle. However, the investigator indicated that the vehicle Paulin no longer owned was a 2019 Nissan Altima. There was no follow-up investigation concerning the new Tesla displaying Paulin’s license plate in the rear but no front plate.

Detective Christopher McGuinness – who was paid $177,773 last year – had a license plate with the “D” and “V” scratched off, rendering the plate illegible. Lt. Juan Solla reported that he informed McGuinness that the plate had some peeled paint, and should it deteriorate further, it would need to be replaced. 

Lieutenant Craig Baco, who was paid $179,000 in 2022, scraped off the last four digits of his front plate. According to the ...

Massachusetts Supreme Judicial Court Casts Nearly 30,000 DUI Convictions in Doubt Due to ‘Egregious Government Misconduct’

by Jordan Arizmendi

The Supreme Judicial Court of ­Massachusetts upheld a ruling concluding that between 2011 and 2019, breathalyzers used by the government were improperly calibrated and maintained. Commonwealth v. Hallinan, 207 N.E.3d 465 (Mass. 2023). More astonishingly, according to the opinion, because of government misconduct, an estimated 27,000 people found guilty of DUI can either withdraw their guilty pleas or have their convictions revisited.

The biggest Massachusetts’ mistake since trading away The Babe in 1920, all started with Lindsay Hallinan’s case. Back in 2013, Hallinan got pulled over, and when she blew into the Draeger Alcotest 9510 breathalyzer, her blood alcohol level registered at .23. She knew the reading was not correct, though she figured she had no other course of action than to admit to sufficient facts the next month.

After her plea, authorities discovered that some of the breathalyzer machines had not been properly calibrated to ensure accuracy. An investigation by the state Executive Office of Public Safety and Security (“EOPSS”) found that the state Office for Alcohol Testing (“OAT”) covered the machine’s inaccuracies and claimed the rate of failure was actually a lot lower than it really was.

The Supreme Judicial Court in Hallinan stated ...

New York City’s DNA Gun Crimes Unit Reduces Turnaround Times for Gun Crimes by Half

by Jordan Arizmendi

On June 30, 2022, New York City Mayor Eric Adams and New York City Chief Medical Examiner Dr. Jason Graham announced the creation of the specialized Office of the Chief Medical Examiner’s (“OCME”) DNA Gun Crimes Unit. One year later, it became the fastest big city lab for testing and analyzing gun crime evidence.

With an investment of $2.5 million, the OCME DNA Gun Crimes Unit will hire and train 24 forensic scientists dedicated to testing and analyzing gun crime evidence throughout the five boroughs of New York City.

OCME handles the largest public DNA crime laboratory in the country. The lab tests about 50,000 pieces of evidence every year. A year ago, the lab’s turnaround testing time for gun crimes was 60 days or less, which is faster than almost any other jurisdiction in the country. On June 27, 2023, the city announced that, thanks to the new city lab, that time has dropped to an unprecedented 30 days or less.   

Sources: NYC.gov; forensicmag.com

The Serious Threat of Cell-Site Simulators

by Michael Dean Thompson

Within the past several decades, police have acquired a new tool so secretive that prosecutors were told to either plea out cases or repress evidence rather than permit the public to know about them. Much to the chagrin of the courts, that secrecy extended even unto them. “It is time for Stingray to come out of the shadows so that its use can be subject to the same kind of scrutiny as other mechanisms.” Chief Judge Wood wrote those words in his 2016 dissent in United States v. Patrick, 842 F. 3d 540 (7th Cir. 2016) (Wood, J., dissenting), when the issue of cell-site simulators came before the Seventh Circuit. Nevertheless, little more is known about them seven years later, and various court references to their capabilities seem to conflict with each other. Fortunately, thanks to critical courts, the work of groups like the Electronic Frontiers Foundation (“EFF”), and the American Civil Liberties Union (“ACLU”), as well the emergence of competitors to the maker of Stingray who advertise their product capabilities, more information is being revealed about them.

The super-secret system in question is at least conceptually tied to a humble device. Years ago, corporations ...

Second Circuit Vacates § 924 Convictions Predicated on Attempted Hobbs Act Robbery

by Douglas Ankney

The U.S. Court of Appeals for the Second Circuit vacated two 18 U.S.C. § 924 convictions that were predicated on attempted Hobbs Act robbery because attempted Hobbs Act robbery is not categorically a crime of violence.

In 2018, Dwaine Collymore pleaded guilty to four counts, viz., conspiracy to commit Hobbs Act robbery (Count 1); attempted Hobbs Act robbery (Count 2); using, brandishing, and discharging a firearm during and in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), (ii), (iii), and (2) (Count 3); and murdering a person with a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(j)(1) and (2) (Count 4). The predicate “crime of violence” sustaining the convictions of Counts 3 and 4 was the attempted Hobbs Act robbery of Count 2. The U.S. District Court for the Southern District of New York sentenced Collymore to 525 months in prison, and he timely appealed.

The Second Circuit affirmed, but in 2022, 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).

Collymore argued that ...

New Study Proposes Biological Reasons May Cause Sudden Infant Death Syndrome

by Jordan Arizmendi

Few events are more horrific than sudden infant death syndrome (“SIDS”). A boisterous and healthy baby, before their first birthday, goes to sleep in their crib and is found dead the next day. To compound the tragedy, parents and caretakers are sometimes criminally charged for the death.

A new study, published in the Journal of Neuropathology & Experimental Neurology, examined dried blood samples from babies who died from SIDS. The study revealed decreased levels of blood enzyme butryrylcholinesterase activity in the ones who died from SIDS versus the infants who died as a result of something else versus infants who did not die at all.

Before this study, SIDS was a perplexing mystery, resulting in countless wrongful convictions. While the study seems to have discovered a possible medical reason, more research is still required.  

Sources: forensicmag.com; nationwidechildrens.org

Law Enforcement Using Technology That Accesses Live Video From Any Camera Connected to the Internet

by Jordan Arizmendi

Last February, WDTN reported that
 Dayton, Ohio, City Commission members, voted to approve installation of the Fusus network. When the system is set up, a 911 call will automatically identify cameras in the area that have a live feed. As a result, police officers could get a real-time view of what is going on around that 911 call. Atlanta, Memphis, Orlando, and countless other police forces across the country are imploring the public to invest in the Fusus surveillance system.

Essentially, the Fusus technology allows law enforcement to spy on people who do not know that they are being watched, as well as target protestors, political dissidents, or even harass people of color. Unrestricted police surveillance allows law enforcement to spy on people without any probable cause.

Now that so much of the world is accessible through video footage, besides hiding under a bed or maybe down in the basement, there are not many places to hide from the Watchful Eye. Fusus is such an effective police surveillance tool because it extends police access to surveillance cameras and then integrates these cameras with private and public networks of other surveillance services.

On the Fusus Q&A page, one ...

New Service Highlights Cellphone Privacy Issues

by Michael Dean Thompson

Corporations have turned cellphones into mobile snooping devices that monetize consumer habits and daily activity. A new service, Pretty Good Phone Privacy (“PGPP”), addresses some of the privacy concerns built into the cellular system.

The problem comes down to the architecture of the cellular networks, which were not designed with privacy in mind. Buried within the SIM card is an Internal Mobile Subscriber Identifier (“IMSI”), a globally unique code. The IMSI is used for many things, especially payment status. Essentially, the IMSI ties the device to the person.

Just about every second or so, your phone “pings” the nearby towers to discover which has the strongest signal, as well as which receives its signal best. Those pings carry the phone’s IMSI and generate a record that can be used to provide a rough triangulation of the phone’s location. While not as accurate as a GPS signal, it has found significant use by police who wish to establish the phone owner’s presence. The tower information is used by the carriers to route calls to and from the phone, as well as data requests. The carrier can tie the phone to a location when phone calls and text messages ...

Mississippi Ends ‘Dead Zone’

by Jordan Arizmendi

In April 2023, the Mississippi Supreme Court unanimously amended the state’s Rules of Criminal Procedure to eliminate the “dead zone.” Essentially, Rule 7.2 of Mississippi declares that counsel must be provided to an indigent defendant after they have been indicted. In re Miss. Rules of Crim. Procedure, 2023 Miss. LEXIS 103 (2023).

Previously, a defendant in Mississippi was not guaranteed counsel “at the critical pretrial stage between arrest and arraignment following indictment.” The time could be prolonged, without the ability to pay for legal assistance. Time spent in the Mississippi “dead zone” averaged from two months to more than a year.

The Mississippi public defender system has been criticized for years. Under Mississippi state law, a defendant’s constitutional right to an attorney does not exist until the defendant is indicted. To make matters worse, attorneys in counties without public-defender offices are not able to do much regarding their client’s case because they only start working once their client is charged. For example, Duane Lake had to wait almost three years in the Coahoma County jail without a lawyer, before being indicted.

Cliff Johnson, the director of the Roderick and Solange MacArthur Justice Center at the University ...

‘Lab in a Box’ Provides DNA Results in Minutes

by Jordan Arizmendi

The method that law-enforcement agencies use to test a suspect’s DNA is currently undergoing the most significant transformation in the science’s history. New Rapid DNA technology can develop an individual’s DNA profile in one to two hours. The machine can test skin, hair, DNA swabs, blood, saliva, cigarette butts, and anything that potentially contains DNA.

According to the FBI website, coupled with Combined DNA Index System (“CODIS”), a DNA profile can be searched against all unsolved crimes within 24 hours. By using Rapid DNA with DNA Index of Special Concern (“DISC”), a DNA profile can be searched against all unsolved homicides, sexual assaults, kidnappings, and terrorism events. Plus, a match to a DISC profile will notify the booking department, arresting department, and investigating department all instantaneously. Rapid DNA technology can find the results while the arrestee is still in custody.

The Rapid DNA Act of 2017 allows the machines to connect to CODIS. The first Rapid DNA machine was installed at the East Baton Rouge Paris jail in August 2022. In 2020, the FBI started the two-month Rapid DNA pilot in Louisiana, Florida, Arizona, and Texas. After that, Louisiana was chosen to be the location of the ...

Report Finds Older Prisoners in Maryland Are Less Likely to Be Paroled

by Jordan Arizmendi

Upon reading the Justice Policy Institute report entitled “Safe at Home: Improving Maryland’s Parole Release Decision Making,” the first look at Maryland’s parole system in excess of 80 years, one disturbing trend is that the rate at which the Maryland Parole Commission approves parole sharply declines for people once they turn 40. Even though research shows that people are less likely to commit crimes as they get older, the Maryland Parole Commission is more likely to grant parole to a young defendant than an older one.

The report faults the system for this unnerving injustice in which the players who decide which defendants gain freedom and which must return to their cells for another 10 years are more focused on the details of the crime than recidivism. Maryland law, for example, dictates that parole commission members are to consider certain factors when determining whether or not to grant parole.

According to the Maryland Department of Public Safety & Correctional Services website: We look at multiple factores [sic] when conducting a parole grant (initial) hearing. These include, but are not limited to: the nature and circumstance of the offense; victim input; history and pattern offenses; prior major incarcerations; ...

New Robotic Cops Patrolling in NYC

by Jordan Arizmendi

Move over Terminator, the newest crop of law enforcement agents are New York City’s futuristic robots that have been given the beat of Times Square as well as the city subways.

This is not the first time that NYPD has allowed robots to perform gritty police work. In 2021, the Boston Dynamic DigiDog, galloped around the city on its four metallic legs in pursuit of criminal violations. However, back then, the DigiDog really creeped out a lot of New Yorkers, so the robotic canines were suspended from duty.

The latest robotic cops on the beat are the K5 Autonomous Security Robot that is built by Knightscope. This egg-shaped robot, nicknamed “SnitchBOT” is packed with a dozen microphones, a 360-degree camera, and a license-plate reader.

Anyone brazen enough to defile, destroy, or damage the robots will be charged with assaulting an officer. The technology comes at a hefty price – “SnitchBOT” costs $12,250 for a seven-month rental. The money will be paid with NYPD forfeiture funds.

Those that may be nervous about machine’s destruction of man will breathe a sigh of relief once they learn that these new additions to the NYPD do not carry weapons. Their sole ...

Supreme Court of California: After Amendments to Three Strikes Law, Courts Retain Concurrent Sentencing Discretion for Qualifying Offenses Committed on Same Occasion or Arising From Same Operative Facts

by Douglas Ankney

The Supreme Court of California held that after amendments to the Three Strikes law, trial courts retain the concurrent sentencing discretion that was first enunciated in People v. Hendrix, 941 P.2d 64 (Cal. 1997), when sentencing on qualifying offenses committed on the same occasion or arising from the same set of facts.

Level Omega Henderson hit Daniel Tillett in the head with the butt of his gun and punched him with his other hand. Henderson then pointed his gun at Tillett’s girlfriend and at William Aguilar. Police were summoned, and officers saw Henderson strike Tillett several times.

Henderson was charged with assault by means of force likely to produce great bodily injury, possession of a firearm by a felon, and two counts of assaulting Tillett and Aguilar with a semiautomatic firearm. Additionally, the information alleged Henderson had received four prior strikes and two prior serious felony convictions and that he had served four prior prison terms. The jury found him guilty as charged, and in a bifurcated proceeding, the judge found true the prior conviction allegations. The trial court struck all of the prior conviction allegations, except for one strike and one prior serious felony conviction. The ...

New York Court of Appeals: Call Intercepted on Wiretap Not Exempt From Statutory Notice Requirements Simply Because Same Call Captured on Separate, Consensual Recording by Jail

by Anthony W. Accurso

The Court of Appeals of New York ordered the suppression of a jail recording where it was derived from a wiretap and the People failed to provide the required statutory notice to the defendant under CPL 700.70.

Syracuse police were investigating a fatal hit-and-run automobile accident that occurred in October 2015. Around the same time in a separate investigation, the New York Attorney General’s Office obtained authorization for a wiretap on the phone of A.C.

A.J, a prisoner at the Onondaga County Justice Center (“OCJC”) called A.C., who later handed the phone to Michael Myers, who then made self-incriminating statements regarding the hit-and-run. An officer listening to the wiretap recording recognized Myers’ voice and obtained a copy of the OCJC phone recording.

Myers was indicted for the hit-and-run based on the jail phone recording. He filed a suppression motion for the recording but was denied under a long-standing policy that prisoners have no reasonable expectation of privacy in jail phone calls. Meyers timely appealed.

The Court noted that CPL 700 governs wiretaps in the state of New York and that the Court of Appeals “require[s] strict – indeed, scrupulous – compliance with the provisions of the ...

Fourth Circuit Denies Defendant Faced ‘Classic Penalty Situation’ During Polygraph Questioning While on Supervised Release

by Anthony W. Accurso

The U.S. Court of Appeals for the Fourth Circuit upheld the denial of a defendant’s suppression motion where he failed to invoke his Fifth Amendment protections while on post-release supervision and instead provided statements which led to a new charge.

Eugene Reid Linville was on supervised release for a child pornography conviction. He had conditions of supervision which included: (1) that he not possess adult or child pornography; (2) that he is subject to warrantless searches of his home upon reasonable suspicion of unlawful conduct; (3) that he truthfully answer questions from his probation officer; and (4) that he participate in a sex offender treatment program, which includes periodic polygraph testing.

After a year on supervision, Linville submitted to a polygraph exam, during which he admitted that he possessed Playboy magazines. During a subsequent interview with his probation officer, James Long, Linville was asked – without being informed of his Miranda rights – whether he possessed adult or child pornography. He admitted he possessed both and, during a trip to his home, surrendered “8 to 10 cardboard boxes containing numerous magazines, photos and video tapes, as well as notebook-type binders containing compact discs and digital video discs.” ...

Seventh Circuit: Whether Right to Counsel ‘Attaches’ Is Not Dependent on Defendant’s Appearance at Probable Cause Hearing

by Anthony W Accurso

The U.S. Court of Appeals for the Seventh Circuit ruled that Wisconsin courts denied a defendant his Sixth Amendment right to counsel by failing to appoint counsel until after he had been ordered detained by a magistrate and required to participate in an in-person lineup – that is, after his right to counsel had “attached.”

Nelson Garcia, Jr. was picked up for a parole violation on January 2, 2012, by Milwaukee Police. They received several anonymous tips identifying Garcia as the person who had robbed a Milwaukee bank the previous month.

Two days after his arrest, Detective Ralph Spano appeared in court to submit a form CR-215 to a court commissioner in Milwaukee County. This form requested the continued detention of Garcia on the basis of police having probable cause to believe he robbed the bank in question, and it included Spano’s description of the bank’s surveillance footage and the subsequent hotline tips. The court commissioner approved the request, setting bail at $50,000. Garcia was not present at this hearing, nor was there any record that he received the completed form.

A few hours after the form was processed, police conducted an in-person lineup with Garcia ...

Sixth Circuit Holds Bump Stocks Not Regulated Under Machinegun Statute

by Anthony W. Accurso

The U.S. Court of Appeals for the Sixth Circuit weighed in on the ongoing Circuit split of whether a “bump stock” – placement of which on a semiautomatic rifle enables it to function essentially like a machinegun the possession of which is a criminal offense – is a machinegun “part” under the National Firearms Act of 1934, concluding that the rule of lenity requires the Court to construe the ambiguous statute in question in favor of the defendant.

Section 922(o)(1) regulates “machine­gun[s], and any combination of parts from which a machine gun can be assembled” and defines the term “machinegun” via incorporating by reference the definition contained in 26 U.S.C. § 5845(b), which defines it as any “weapon” that can shoot “automatically more than one shot, without manual reloading, by a single function of the trigger” as well as any “part” that’s “designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun….”

Up until December 26, 2018, the ATF’s position was that bump stocks are not a machine gun part. However, after the 2018 mass shooting in Las Vegas, Nevada, in which a gunman ...

New Jersey Supreme Court: Third-Party’s Apparent Authority to Consent to Search Premises Does Not Extend to Defendant’s Personal Property Located on Premises

by Anthony W Accurso

The Supreme Court of New Jersey held that a third party, with property in a storage trailer shared with the defendant, had apparent authority to authorize a search of the trailer but not a search of a bag belonging to the defendant in which the third party has no property.

N.D. and her adult daughter contacted Borough of Highlands police on the morning of July 27, 2019. N.D. showed text messages to officers supporting the claim that her boyfriend of four years, Anthony Miranda, had threatened her and her children. She then showed them fresh bruises claiming Miranda had assaulted her. She also stated that Miranda possessed two handguns and kept them in a black bag in a residential trailer they shared.

Officers engaged the Domestic Violence Response Team and contacted a local magistrate. The magistrate authorized a restraining order, arrest warrant, and a search warrant for the trailer in which Miranda and N.D. lived.

Just before 11:00 a.m., officers arrived at the trailer and arrested Miranda, whereupon he was transported to the police station for processing into the county jail. Miranda remained in police custody during the events that transpired afterwards at the residential trailer ...

Travis County, Texas, Efforts to Keep Mentally Ill Individuals Out of Jail Face Funding, Infrastructure, and Information Management Challenges

by Jo Ellen Nott

Travis County is in Central Texas, 150 miles inland from the Gulf of Mexico. The city of Austin, the state capital and county seat, sits at the intersection of three major highways. Its population in 2021 was 1.305 million. The Travis County Jail shares a problem with jails nationwide: They have become first responders for individuals suffering from mental health crises, a task they are not equipped to handle and, like most jails, warehouse individuals who are in dire need of treatment, not punishment.

Danny Smith is the Travis County Jail’s director of mental health services. Over the last 10 years, Smith has seen the number of people with mental health issues held in the jail climb from 15 to 40%. Travis County Judge Andy Brown says the jail is the largest mental health facility in Travis County, and in this regard, the county is not unique. Its numbers are consistent with the rest of the country’s jails according to the Bureau of Justice Statistics.

Looking at booking data from 2018-2022, most charges this population had against them were for nonviolent misdemeanors like criminal trespassing, and only 7% were for assault. The key component to keeping these ...

Third Circuit: Pennsylvania Second-Degree Aggravated Assault of a Protected Individual Not a ‘Violent Felony’ Under ACCA, Court Acknowledges ‘Bizarre Result’

by Anthony W. Accurso

The U.S. Court of Appeals for the Third Circuit held that second-degree aggravated assault of a protected individual in violation of 18 Pa. Cons. Stat. § 2702(a)(3) is not a “violent felony,” for purposes of the Armed Career Criminal Act (“ACCA”), reversing a defendant’s sentence enhanced thereunder.

In 2008, Samuel Jenkins pleaded guilty to a violation of 18 U.S.C. §§ 922(g)(1) and 924(3) for possessing a firearm as a convicted felon. He also had two prior drug convictions and a conviction in Pennsylvania for second-degree aggravated assault of a protected individual under § 2702(a)(3). His sentence was enhanced under the ACCA and sentenced to 15 years in prison with five years of supervision.

In 2015, the U.S. Supreme Court issued its ruling in Johnson v. United States, 576 U.S. 591 (2015), declaring the residual clause of the ACCA unconstitutional, which was made retroactive in Welch v. United States, 578 U.S. 120 (2016).

Jenkins submitted a habeas motion under 28 U.S.C. § 2255, claiming that, under Johnson, § 2702(a)(3) is not a “violent felony” upon which an ACCA enhancement can stand because the statute of conviction can be violated without the use, attempted use, or ...

From the Sad but True Files: Police Oppose Laws Prohibiting Cops From Lying to Juveniles During Interrogations

by Douglas Ankney

Vehement opposition by law ­enforcement stopped the passage of a 2022 Colorado bill that would have banned police from lying to juvenile suspects while attempting to extract confessions. Lawmakers projecting a “tough on crime” image called the bill “anti-law enforcement” and “pro-criminal.” But mounting evidence proves that minors are highly susceptible to giving false confessions.

Wrongful convictions have revealed that teenagers are less likely to understand their Miranda rights than adults are and that teenagers tend to focus more on immediate rewards instead of long-term consequences. The Innocence Project reports that nearly 30 percent of DNA exonerations involved false confessions and roughly one-third of the defendants in those cases were 18 or younger when they falsely confessed.

Lorenzo Montoya testified in favor of the now thwarted Colorado bill. Montoya was 14 years old when he confessed to being at the scene of a murder after two Denver police detectives had badgered him for two hours. Although Montoya’s mother was present for the initial portion of the interrogation, she eventually left him alone with detectives. Montoya, without any physical evidence linking him to the scene, was convicted of first-degree felony murder and served 13 years in prison before ...

Colorado Supreme Court Clarifies There Is No Per Se Rule Excluding Self-Serving Hearsay

by Matt Clarke

The Supreme Court of Colorado ­clarified that there is no per se rule excluding self-serving hearsay by a criminal defendant, holding that “like any other hearsay statement, a defendant’s self-serving hearsay statement may be admissible if it satisfies a hearsay-rule exception in the Colorado Rules of Evidence [(“CRE”)].”

College student L.S. went out drinking with friends. Jacob Vanderpauye, with whom she had taken a class, joined the group. The two flirted with one another and then left together to join his friends at another bar. “There, she told him she was drunk and very tired. Vanderpauye told her she could stay at his apartment if she wished, and she agreed to spend the night there.”

As they “walked to his apartment, she told him that she was not going to have sex with him.” He “appeared offended by this statement and told her that he didn’t want her to think of him that way. L.S. apologized.”

They sat on the bed, watched TV, and “engaged in affectionate kissing for a while, but she eventually told him she was drunk and tired and needed to get some sleep. And he responded that she should get some sleep.”

“L.S. ...

Collaborative Project Between Innocence Project and National Registry of Exonerations Produces Interim Report Reconciling Data Coding Discrepancies

by Casey J. Bastian

The Innocence Project (“IP”) and the National Registry of Exonerations (“NRE”) each keep track of and list wrongful convictions. Each also works to identify the causes of those wrongful convictions and how forensic science-related errors is considered an “influential factor” in many of these injustices. When a study revealed a discrepancy in the contribution coding data between the IP and NRE lists, a five-year reconciliation process commenced. The result was an interim report entitled: “The Contribution of Forensic and Expert Evidence to DNA Exoneration Cases.”

In 2017, researcher Gerald LaPorte (“LaPorte”) published his findings on the relationship of forensic science to wrongful convictions. LaPorte observed that the coding of forensic science as a factor in 342 DNA exoneration cases did not match between the IP and NRE lists. The IP had identified forensic science as having a contributory role in 157 of those cases. Yet the NRE had identified forensic science as a factor in only 133 of the same cases.

LaPorte was raising important questions about the accuracy of the data pertaining to the alleged role forensic science actually plays in contributing to wrongful convictions. The questions in LaPorte’s report concerned “which disciplines were responsible, ...

New Montana Law Bans Warrantless Facial Recognition Surveillance

by Jordan Arizmendi

At the end of June 2023, Montana Governor Greg Gianforte signed a bill, Senate Bill 397 (“SB397”) that will ban warrantless facial recognition surveillance, generally. According to the law, the exceptions that would permit a law enforcement agency to perform a facial recognition search include: if probable cause exists that an unknown individual in an image has committed a crime, is a victim of a crime, or is a witness to a serious crime; might be a local missing person; or if law enforcement needs to identify a corpse.

SB397 bans “the monitoring of public places or third-party image sets using facial recognition technology for facial identification to match faces with a prepopulated list of face images. The term includes but is not limited to scanning stored video footage to identify faces in the stored data, real-time scanning of video surveillance to identify passing by the cameras, and passively monitoring video footage using facial recognition technology for general surveillance purposes without a particularized suspicion of a specific target.”

As a result of SB397, law enforcement will need to get a warrant, before requesting a facial recognition search in the investigation of a serious crime. The lone exception ...

News in Brief

California: Reported by KHSL in Chico/Redding, Nicholas Lee Rush, 49, a Chico Police Officer, has been charged with providing marijuana to an underage family member, 17, and also encouraging the teen to share the stash with his girlfriend. In 2022, an investigation into whether Rush was growing pot in his backyard began. He faces up to five years in state prison on felony charges of furnishing marijuana and a misdemeanor for contributing to the delinquency of a minor. Butte County District Attorney Mike Ramsey said Rush is not currently an active officer with the Chico Police Department. Rush was expected in court for arraignment on August 3, 2023.

Colorado: KDVR reported that on May 18, 2023, Samuel Rose, 18, pled guilty to possession of a handgun by a juvenile and two counts of attempted first-degree murder, second-degree assault, and aggravated juvenile offender, and was sentenced to five years in state custody. His father is Denver Police Department Detective Asher Rose. Samuel was able to obtain the firearm because of his father’s failure to properly store it. An internal affairs investigation concluded on July 12, 2023, that Asher Rose will not face charges, although he clearly violated police department policies. When ...

‘Silos’ Can Keep Police Departments From Knowledge of Extent of Police Abuse and Consequences of That Abuse

by Matt Clarke

Around two decades ago, UCLA law professor Joanna Stewart was a civil rights attorney working on a large class-action lawsuit against the New York City Department of Corrections. While interviewing guards, she was surprised to learn that they did not know how many times they had been sued. Later, she discovered that this situation was common among police and correctional officers. The reason is that lawyers representing the officers intentionally withhold information from the departments, believing knowledge of previous misconduct will increase liability.

Frequently, “the information from the lawsuits goes back and forth from the city attorney’s offices, but that information doesn’t make its way over to the police department, officers and officials.” Thus, information about lawsuits is kept closely within the city attorney’s office in an information “silo.”

In her new book, “Shielded: How the Police Became Untouchable,” she explains how silos and legal protections such as qualified immunity and no-knock warrants have shielded officers from the consequences of their abusive actions. She argues that true reform will require local police departments to collect and analyze information from the lawsuits in which they are defendants and pay the costs of any settlements out of their own ...

 

 

Stop Prison Profiteering Campaign Ad 2
Advertise here
CLN Subscribe Now Ad 450x600