Skip navigation
The Habeas Citebook: Prosecutorial Misconduct - Header

Criminal Legal News: January, 2024

Issue PDF
Volume 7, Number 1

In this issue:

  1. Federal Sentencing Guidelines Undergo Substantial Amendments (p 1)
  2. California Court of Appeal: Probation Condition Prohibiting Possession of Pornography Impermissibly Vague (p 12)
  3. FBI Access to FISA Database Includes Some Accountability (p 13)
  4. DOJ Spending Over $6 Billion in Firms to Seize Innocent Citizens’ Property Via Civil Asset Forfeiture (p 14)
  5. Indiana Supreme Court Suppresses All Evidence Related to Polygraph Exam for Examiner’s Failure to Disclose Unilater-ally Changing Exam Results From ‘Admissible’ to ‘Inadmissible’ Due to Defendant’s Mental State (p 15)
  6. Survey: Why Defendants Cooperate with the Government in a Process Described as ‘Unfair’ by Defense Attorneys (p 16)
  7. West Virginia University Forensic Scientists Provide a Benchmark for Analyzing Duct Tape Fracture Edges (p 22)
  8. FBI Buys Software to Enslave Your Phone (p 22)
  9. The White House Goes Rogue: Secret Surveillance Program Breaks all the Rules (p 24)
  10. House Judiciary Committee Investigates Major Banks for Unauthorized Sharing of Private Financial Information With the FBI (p 25)
  11. Second Circuit: Money Concealment Guilty Plea Vacated for Lack of Evidence to Support Factual Finding of Required Mens Rea (p 26)
  12. Oregon Supreme Court Announces Overruling of Precedent on ‘Attempted Transfer’ of Drugs (p 27)
  13. Maryland Supreme Court Announces Expectation of Privacy Covers Electronic Data, Not Physical Devices, Thus War-rantless Search of Government’s Copy of Defendant’s Hard Drive After Consent Revoked Violated Fourth Amendment (p 28)
  14. Fifth Circuit Affirms Habeas Relief Granted to Capital Defendant Where Counsel Failed to Impeach State’s Pivotal Wit-ness with Available Forensic Evidence (p 30)
  15. First Circuit Announces It Has Authority to Raise Claim of Error Sua Sponte for Violation of ‘Mandate Rule’ by Sentenc-ing Court on Remand (p 32)
  16. Human DNA Retrieved From Dogs Might Provide Evidence (p 33)
  17. Sixth Circuit: Trial Judge’s Personal and Condemnatory Remarks Directed Toward Defendant Requires Recusal (p 34)
  18. Police Requests to Google Replacing Old Fashioned Detective Work (p 35)
  19. One Solution to Jurors Giving Too Much Weight to Improper Forensic Testimony: 4-Minute Training Video Based on DOJ Guidelines (p 36)
  20. California Court of Appeal: Defendants Who Plead Guilty to Stipulated Sentence Eligible for Resentencing Under Amended § 1170.91 (p 36)
  21. California Bans Bogus ‘Excited Delirium’ Diagnosis as Cause of Death (p 37)
  22. New Mexico Supreme Court Clarifies When Reviewing Double Jeopardy Claims, Court to Apply Blockburger’s Strict-Elements Test or Modified Strict-Elements Test—Not Both (p 38)
  23. FBI Lost Count of Its Snitches at Capitol on January 6, 2021 (p 39)
  24. U.S. Supreme Court Apparently Prioritizes Ideology Over Guilt or Innocence (p 40)
  25. Jesse Johnson: 194th Person Exonerated While on Death Row (p 41)
  26. Kansas Supreme Court Announces State Must Prove Defendant Specifically Intended to Enter Dwelling in Which There Was a Person to Sustain Conviction for Attempted Aggravated Burglary, Overruling State v. Watson (p 42)
  27. Oregon Supreme Court Clarifies Test to Determine When Person Becomes Agent of the State and Rules Jailhouse Snitch Was Agent, Requiring Suppression of Defendant’s Statements (p 44)
  28. NYPD’s Solution for Abusive Cops Who Cost Taxpayers Millions of Dollars in Civil Suits—Promote Them (p 45)
  29. Eleventh Circuit Announces Supervised Release Term Not Tolled When Defendant Absconds, Deepening Circuit Split (p 46)
  30. California Court of Appeal: Confrontation Clause Violated Where Defense Prohibited From Cross-Examining Prosecution Witness About Biased Motivation and Fabrication (p 47)
  31. Fourth Circuit: Evidentiary Hearing Required Where Prisoner’s Allegation of Mental Illness, if True, Is Sufficient to Demonstrate ‘Extraordinary Circumstances’ Warranting Both Rule 60(b)(6) Relief and Tolling of Habeas SOL (p 48)
  32. Study Reveals That Aging Federal Judges May Experience Cognitive Impairment Affecting Their Opinions (p 50)
  33. News in Brief (p 50)

Federal Sentencing Guidelines Undergo Substantial Amendments

by David M. Reutter

The United States Sentencing Commission (“Commission”) adopted nine amendments to the Federal Sentencing Guidelines (“Guidelines”) that became effective on November 1, 2023. It’s the first action by the Commission since it lost a quorum in early 2019. After it regained a quorum in 2022, the Commission ...

California Court of Appeal: Probation Condition Prohibiting Possession of Pornography Impermissibly Vague

by Douglas Ankney

The Court of Appeal of California, First Appellate District, held that a probation condition prohibiting possession of pornographic materials was impermissibly vague.

Michael Gruis pleaded no contest to one count of possession of child pornography in violation of California Penal Code § 311.11(a). The trial court suspended imposition ...

FBI Access to FISA Database Includes Some Accountability

by Anthony W. Accurso

Ahead of the possible expiration of Section 702 of the Foreign Intelligence Surveillance Act (“FISA”) on December 31, 2023, an explanation about the FBI’s controversial access to communications collected under this authorization was published by Lawfare, a non-partisan, non-profit multimedia publication.

For context, Section 702 of ...

DOJ Spending Over $6 Billion in Firms to Seize Innocent Citizens’ Property Via Civil Asset Forfeiture

by Douglas Ankney

According to a September 2023 report from foxnews.com, the U.S. Department of Justice (“DOJ”) is “shelling out more than $6 billion to private companies to manage its asset forfeiture investigations.” When the government merely alleges that money, homes, land, boats, cars, and other property is linked to ...

Indiana Supreme Court Suppresses All Evidence Related to Polygraph Exam for Examiner’s Failure to Disclose Unilater-ally Changing Exam Results From ‘Admissible’ to ‘Inadmissible’ Due to Defendant’s Mental State

by Anthony W. Accurso

The Supreme Court of Indiana upheld evidentiary suppression of a defendant’s polygraph results and inculpatory statements made after the test, where the examining officer failed to disclose (until the eve of trial) his determination that the defendant’s mental state made him unsuitable to sit for a ...

Survey: Why Defendants Cooperate with the Government in a Process Described as ‘Unfair’ by Defense Attorneys

by Douglas Ankney

“Cooperation is a horrible thing for clients. Doing law enforcement’s job and requiring someone to bargain for their freedom encourages an ugly, unfair, and unjust system to become even more so that way.”

Those are the words of an anonymous federal defense attorney who participated in a ...

West Virginia University Forensic Scientists Provide a Benchmark for Analyzing Duct Tape Fracture Edges

by Jo Ellen Nott

A common household item is being analyzed by forensic scientists as the newest tool in crime scene investigations. Researchers at West Virginia University are establishing the standard for the trace evidence left by everyone’s favorite fix-it friend—duct tape.

Duct tape is used to restrain, gag, strangle, ...

FBI Buys Software to Enslave Your Phone

by Michael Dean Thompson

NSO Group is an Israeli firm started by former Israeli intelligence officers that produced some remarkably infamous software. The company’s software has become notorious for its use by governments with little regard for human rights violations against their own citizens. One of its products, Landmark, has ...

The White House Goes Rogue: Secret Surveillance Program Breaks all the Rules

by John & Nisha Whitehead

This essay originally appeared in Rutherford on November 29, 2023.

“We are rapidly entering the age of no privacy, where everyone is open to surveillance at all times; where there are no secrets from government.”


William O. Douglas, dissenting in Osborn v. United States ...

House Judiciary Committee Investigates Major Banks for Unauthorized Sharing of Private Financial Information With the FBI

by Jo Ellen Nott

The House Judiciary Committee and Weaponization Select Subcommittee headed by Ohio Republican Jim Jordan is actively investigating major banks for allegedly sharing Americans’ private financial information with the FBI. The committee alleges the banks shared this information without proper legal processes, thus raising concerns about privacy ...

Second Circuit: Money Concealment Guilty Plea Vacated for Lack of Evidence to Support Factual Finding of Required Mens Rea

by David M. Reutter

The U.S. Court of Appeals for the Second Circuit vacated a defendant’s conviction because the required mens rea for concealment money launderingwas not supported by the evidence or plea record. The sentences for both counts at plea were also vacated.

The facts of the case showed ...

Oregon Supreme Court Announces Overruling of Precedent on ‘Attempted Transfer’ of Drugs

by David M. Reutter

The Supreme Court of Oregon held that “attempted transfer” does not apply “to a person who possesses a large quantity of a controlled substance and takes steps consistent with an intent to transfer it in the future but who has not yet made any effort to ...

Maryland Supreme Court Announces Expectation of Privacy Covers Electronic Data, Not Physical Devices, Thus War-rantless Search of Government’s Copy of Defendant’s Hard Drive After Consent Revoked Violated Fourth Amendment

by Douglas Ankney

The Supreme Court of Maryland (formerly the Court of Appeals) held that a defendant had a reasonable expectation of privacy in the digital content of the hard drive to his computer; therefore, a warrantless search of the Government’s copy of the hard drive after the defendant had ...

Fifth Circuit Affirms Habeas Relief Granted to Capital Defendant Where Counsel Failed to Impeach State’s Pivotal Wit-ness with Available Forensic Evidence

by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit affirmed the U.S. District Court for the Eastern District of Louisiana’s grant of habeas relief to a capital defendant where defense counsel failed to impeach the State’s pivotal witness with available forensic evidence.

Jarrell Neal, his half-brother Zannie ...

First Circuit Announces It Has Authority to Raise Claim of Error Sua Sponte for Violation of ‘Mandate Rule’ by Sentenc-ing Court on Remand

by Richard Resch

In a case of first impression, the U.S. Court of Appeals for the First Circuit held that it may raise sua sponte on appeal a claim of error not timely raised by the defendant where there was “a violation of the mandate rule.” The Court further held ...

Human DNA Retrieved From Dogs Might Provide Evidence

by Douglas Ankney

Researchers from Flinders University in Australia published the results of a study involving the work of the Victoria Police Forensic Services Department and Deakin University regarding the collection of human DNA from 20 dogs from separate households. Wearing clean gloves, researchers swabbed samples from the dogs’ chests, ...

Sixth Circuit: Trial Judge’s Personal and Condemnatory Remarks Directed Toward Defendant Requires Recusal

by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit held that a trial judge’s personal and condemnatory remarks directed toward a defendant required recusal of the judge.

Leron Liggins was charged with drug-related offenses in Michigan and Kentucky in 2018. Liggins stated his intention to plead guilty ...

Police Requests to Google Replacing Old Fashioned Detective Work

by Anthony W. Accurso

A recent report by Julia Love and Davey Allen, writing for Bloomberg, highlights how the default for what passes for police investigative work is simply requesting data from Google for even the pettiest crimes.

Criminal Legal News has reported on the vast amount of data that ...

One Solution to Jurors Giving Too Much Weight to Improper Forensic Testimony: 4-Minute Training Video Based on DOJ Guidelines

by Matt Clarke

Improper forensic evidence played a part in 1 out of 5 wrongful convictions listed in the National Registry of Exonerations as of September 2023. Studies show that jurors cannot distinguish between low-quality and high-quality forensic testimony. Yet, those same jurors are overconfident in believing they understand the ...

California Court of Appeal: Defendants Who Plead Guilty to Stipulated Sentence Eligible for Resentencing Under Amended § 1170.91

by Douglas Ankney

The California Court of Appeal, Fourth Appellate District, held that defendants who plead guilty to a stipulated sentence are eligible for resentencing under California Penal Code § 1170.91, as amended. (Note: All statutory references are to the California Penal Code.)

In 2002, Ronnie Keith Harrell, pursuant to a ...

California Bans Bogus ‘Excited Delirium’ Diagnosis as Cause of Death

by Douglas Ankney

In October 2023, California Governor Gavin Newsome signed a bill into law that prohibits “excited delirium” from being recognized as a valid diagnosis or cause of death. The law was prompted by the death of Angelo Quinto in 2020 who, while suffering a mental health crisis, lost ...

New Mexico Supreme Court Clarifies When Reviewing Double Jeopardy Claims, Court to Apply Blockburger’s Strict-Elements Test or Modified Strict-Elements Test—Not Both

by Douglas Ankney

The Supreme Court of New Mexico clarified that when reviewing claims of double jeopardy, the court is to apply either the strict-elements test of Blockburger v. United States, 284 U.S. 299 (1932), or the modified strict-elements test of State v. Gutierrez, 258 P.3d 1024 (N.M 2011), but ...

FBI Lost Count of Its Snitches at Capitol on January 6, 2021

by Douglas Ankney

The Federal Bureau of Investigation (“FBI”) had so many snitches at the Capitol on January 6, 2021, that the agency lost track of the number. Steven D’Antouno, formerly in charge of the FBI’s Washington Field Office (“WFO”) testified behind closed doors to the House Judiciary Committee (“Committee”) ...

U.S. Supreme Court Apparently Prioritizes Ideology Over Guilt or Innocence

by Douglas Ankney

The current justices on the Supreme Court of the United States (“SCOTUS”) apparently prioritize ideology over guilt or innocence. Almost 40 years ago, SCOTUS held that the U.S. Constitution’s Sixth Amendment guarantee of a right to counsel meant that criminal defendants have a right to the “effective ...

Jesse Johnson: 194th Person Exonerated While on Death Row

by Jordan Arizmendi

Twenty-five years after Jesse Johnson, 62, was wrongfully convicted and sentenced to death, in September, he became the 194th person to be exonerated while on Death Row.

In 1998, Harriet Thompson was stabbed to death at her home in Oregon. Patricia Hubbard, a witness across the street, ...

Kansas Supreme Court Announces State Must Prove Defendant Specifically Intended to Enter Dwelling in Which There Was a Person to Sustain Conviction for Attempted Aggravated Burglary, Overruling State v. Watson

Douglas Ankney

The Supreme Court of Kansas held that the State must prove a defendant specifically intended to enter a dwelling in which there was a person to sustain a conviction for attempted aggravated burglary and thus expressly overruled State v. Watson, 885 P.2d 1226 (Kan. 1994), which had held ...

Oregon Supreme Court Clarifies Test to Determine When Person Becomes Agent of the State and Rules Jailhouse Snitch Was Agent, Requiring Suppression of Defendant’s Statements

by Anthony W. Accurso

The Supreme Court of Oregon upheld a Court of Appeals decision ordering a new trial for a defendant who was denied access to counsel when questioned by a jailhouse snitch who was acting as an agent of the State by attempting to elicit incriminating statements.

Lynn ...

NYPD’s Solution for Abusive Cops Who Cost Taxpayers Millions of Dollars in Civil Suits—Promote Them

by Douglas Ankney

The New York Police Department (“NYPD”) hired David Grieco as an officer in 2006. Earning the street name “Bullethead,” Grieco was named in 17 lawsuits between his hiring and his first promotion in 2016. Although payouts to settle suits naming Grieco as a defendant exceeded $1 million, ...

Eleventh Circuit Announces Supervised Release Term Not Tolled When Defendant Absconds, Deepening Circuit Split

by Anthony W. Accurso

The U.S. Court of Appeals for the Eleventh Circuit held that, when a defendant has absconded while on supervised release, the clock on their period of supervision continues to run, causing it to expire at the end of its stated term.

James Reginald Talley was convicted ...

California Court of Appeal: Confrontation Clause Violated Where Defense Prohibited From Cross-Examining Prosecution Witness About Biased Motivation and Fabrication

by Douglas Ankney

The Court of Appeal of California, First Appellate District, held that Cecilio Castaneda-Prado’s right to confront his accusers was violated when the superior court prohibited his attorney from cross-examining a prosecution witness about biased motivation and fabrication after the witness had testified at the preliminary hearing that ...

Fourth Circuit: Evidentiary Hearing Required Where Prisoner’s Allegation of Mental Illness, if True, Is Sufficient to Demonstrate ‘Extraordinary Circumstances’ Warranting Both Rule 60(b)(6) Relief and Tolling of Habeas SOL

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit held that an evidentiary hearing was required where Berman Justus, Jr.’s, allegation of mental illness, if true, was sufficient to demonstrate extraordinary circumstances warranting relief under Rule 60(b)(6) of the Federal Rules of Civil Procedure and equitable tolling ...

Study Reveals That Aging Federal Judges May Experience Cognitive Impairment Affecting Their Opinions

by Douglas Ankney

According to a recent study titled The Effects of Lifetime Tenure and Aging in the United States Federal Judiciary (“Study”), as federal judges age, they may experience a decline in their cognitive abilities that affects their written opinions.

The Study, authored by Ryan Owens of the University ...

News in Brief

Australia: What would you do if you never saw Top Gun: Maverick and someone was about to spoil the ending? If you have graduated from elementary school, chances are you probably wouldn’t care that much. Constable Dominic Gaynor, who was working the front desk of a police station in Chinatown ...

 

 

Stop Prison Profiteering Campaign Ad 2
PLN Subscribe Now Ad 450x450
Disciplinary Self-Help Litigation Manual - Side