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Criminal Legal News: May, 2024

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Volume 7, Number 5

In this issue:

  1. Stinging Back: Resisting Government Surveillance of Cellphones (p 1)
  2. Seventh Circuit Announces Safety Valve Relief Under § 3553(f) Is Narrower Than Guidelines Firearms Enhancement Under § 2D1.1(b)(1), District Court Erred by Conflating Them (p 13)
  3. Cellular Roaming’s Inadequate Security (p 14)
  4. Tech Monopolies Prevent Effective Privacy Laws in the U.S. (p 16)
  5. California AB 2773 Requires Police to State Reason for Traffic Stops Before Questioning (p 17)
  6. Fourth Circuit: Maryland’s First-Degree Assault Statute Is Indivisible so Conviction Is Not an ACCA Predicate for Sentencing Enhancement Purposes (p 18)
  7. Report Finds Bad Forensic Evidence Leads to More Wrongful Convictions and Establishes Forensic Errors Typology (p 19)
  8. Washington Supreme Court: Nonexceptional Consecutive Terms of ‘Community Custody’ May Not Exceed Aggregate Term of 24 Months (p 20)
  9. SCOTUS: Reiterates Jury Verdict of Acquittal for Any Reason Bars Retrial Under Double Jeopardy Clause of Fifth Amendment (p 22)
  10. FBI Visit to Oklahoma Woman in Response to Social Media Post Sparks Debate on Free Speech (p 24)
  11. California Court of Appeal: Petitioner Has Constitutional Right to Be Present at Evidentiary Hearing Under Felony Murder Resentencing Law (p 24)
  12. De-Identified Is Not Anonymous (p 25)
  13. The Police Have a Dark Money Slush Fund (p 26)
  14. Police Body Cameras, A Decade Later (p 28)
  15. Criminal Justice Reform Becoming a Corporate Priority (p 29)
  16. Tenth Circuit: Plea Not Knowing and Voluntary Where Plea Counsel Materially Misrepresented Defendant’s Right to Impartial Jury Selected Through Racially Nondiscriminatory Means (p 30)
  17. More Facial Recognition Failures (p 31)
  18. California Supreme Court: Jury’s Finding of Intent to Kill for Gang Enhancement, Standing Alone, Insufficient to Find Prisoner Failed to State a Prima Facie Case in § 1172.6 Petition for Resentencing on First-Degree Murder Conviction (p 32)
  19. Non-Toxic Fluorescent Spray Reveals Fingerprints in Seconds (p 33)
  20. Use of Solitary Confinement on the Rise in ICE Facilities (p 33)
  21. New York Court of Appeals: SORA Designation Violates Defendant’s Due Process Rights Where Crime Involved No Sexual Contact or Motivation and Defendant Was Not a Sex Offender and Posed No Risk of Sexual Threat (p 34)
  22. New Data From BOP Reveals Technical Violations Account for Nearly a Third of First Step Act Recidivism (p 35)
  23. Retraction: ‘Federal Habeas Corpus: The Savings Clause Remedy for Federal Prisoners’ by Dale Chappell (p 37)
  24. The Death of the Savings Clause (p 37)
  25. First Circuit: Defendant’s Statement ‘I guess I’ll wait until I have a lawyer’ Is Unequivocal Invocation of Right to Counsel (p 38)
  26. Facial Recognition’s Distorted View (p 40)
  27. Massachusetts Supreme Judicial Court Announces Defendants Under Age 21 Ineligible for LWOP Sentences (p 42)
  28. New Jersey Supreme Court Announces Extension of Eyewitness Identification Safeguards of Henderson to Pretrial Preparation Sessions and Provides Framework for Showing Photos During Pretrial Phase (p 44)
  29. Robotic Police Dogs Being Adopted Across the Country (p 45)
  30. Ninth Circuit Announces Adoption of ‘Premises Rule’ for Co-Tenant Consent-to-Search Analysis, Holds Co-Tenant’s Consent Invalid Where Defendant Instructed Co-Tenant Not to Allow Police Entry in Their Presence (p 46)
  31. Sixth Circuit Announces Untimely Notice of Appeal That Provides Reason for Tardiness May Be Construed as Motion to Reopen (p 48)
  32. Googling Your Privacy (p 49)
  33. News in Brief (p 50)

Stinging Back: Resisting Government Surveillance of Cellphones

by Anthony W. Accurso

A cell-site simulators (“CSS”)—often referred to as a “Stingray” device, after a popular brand—is one of the newest and most controversial law enforcement tools since the introduction of the wiretap. Its use represents the intersection of four trends in policing: (1) the increasing use of military tools ...

Seventh Circuit Announces Safety Valve Relief Under § 3553(f) Is Narrower Than Guidelines Firearms Enhancement Under § 2D1.1(b)(1), District Court Erred by Conflating Them

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit held that the U.S. District Court for the Southern District of Illinois erred in conflating the scopes of the no-firearms condition of the “safety valve” of 18 U.S.C. § 3553(f) and the firearms enhancement of U.S. Sentencing Guidelines (“U.S.S.G.”) ...

Cellular Roaming’s Inadequate Security

by Michael Dean Thompson

Cellphones must be able to continue providing service when connected to networks other than those to which their owners subscribe. The ability to roam beyond the subscriber’s borders without interruption of service is available because network providers across the globe have agreed to some basic communication ...

Tech Monopolies Prevent Effective Privacy Laws in the U.S.

by Anthony W. Accurso 

Cory Doctorow’s latest book, The Internet Con: How to Seize the Means of Computation, discusses the relationship between the failure to regulate tech monopolies in the United States and the meteoric rise of government spying, tying the lack of effective privacy legislation to a subtle shift ...

California AB 2773 Requires Police to State Reason for Traffic Stops Before Questioning

by Jo Ellen Knott

On January 1, 2024, Assembly Bill 2773 took effect in California. The law requires police officers to tell drivers why they have been pulled over before questioning them on other matters. This aims to curb pretextual traffic stops, where officers pull someone over for a minor ...

Fourth Circuit: Maryland’s First-Degree Assault Statute Is Indivisible so Conviction Is Not an ACCA Predicate for Sentencing Enhancement Purposes

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit held that Maryland’s first-degree assault statute, Md. Code, Art. 27 § 12A -1, is indivisible, and a conviction thereunder is not a “violent felony” for purposes of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).

In 2008, Garfield ...

Report Finds Bad Forensic Evidence Leads to More Wrongful Convictions and Establishes Forensic Errors Typology

by Matt Clarke

The National Institute of Justice and independent research consultant Dr. John Morgan collaborated “to analyze and describe the impact of forensic science on erroneous convictions that the National Registry of Exonerations classified as being associated with ‘false or misleading forensic evidence.’ … Findings from this work led ...

Washington Supreme Court: Nonexceptional Consecutive Terms of ‘Community Custody’ May Not Exceed Aggregate Term of 24 Months

by Sam Rutherford

TheSupreme Court of Washington held that the terms “community custody” and “community supervision” are synonymous within the meaning of the second sentence of RCW 9.94A.589(5) for offenses that occurred after July 1, 2000, and that trial courts may not impose consecutive terms of community custody that exceed ...

SCOTUS: Reiterates Jury Verdict of Acquittal for Any Reason Bars Retrial Under Double Jeopardy Clause of Fifth Amendment

by Richard Resch

In a unanimous opinion, the Supreme Court of the United States held that a jury’s verdict of not guilty by reason of insanity is an “acquittal” for purposes of the Double Jeopardy Clause of the Fifth Amendment, despite the fact that the acquittal may be logically inconsistent ...

FBI Visit to Oklahoma Woman in Response to Social Media Post Sparks Debate on Free Speech

by Jo Ellen Knott

On March 19, 2024, an Egyptian-Muslim woman in Oklahoma filmed an encounter with FBI agents who visited her home to discuss social media posts. The video went viral, sparking debate on free speech and government surveillance. Free speech advocates worry the FBI may be exceeding its ...

California Court of Appeal: Petitioner Has Constitutional Right to Be Present at Evidentiary Hearing Under Felony Murder Resentencing Law

by David M. Reutter

The Court of Appeal of California, Fourth District, held that a violation of a prisoner’s constitutional and statutory rights to be personally present at an evidentiary hearing to determine if Senate Bill 1437 prohibits him from being charged with felony murder. Finding the error was not ...

De-Identified Is Not Anonymous

by Michael Dean Thompson

Corporations collect all kinds of data about their customers with few rules about what they can do with it. Often, these collections come with assurances that the data will be de-identified before being sold to additional parties such as data brokers. One meaningful example is the ...

The Police Have a Dark Money Slush Fund

by Katya Schwenk

This article was originally published on lever.com on March 29, 2024

 

Private donors including big-box stores, fossil fuel companies, and tech giants are secretly giving hundreds of millions of dollars annually to law enforcement agencies and related foundations, allowing police to buy specialized weapons and technology ...

Police Body Cameras, A Decade Later

by Anthony W. Accurso

It has been 10 years since body-worn cameras (“BWCs”) were posited as a solution to the lack of accountability in police murders of citizens, but police are still largely unaccountable, in part because the footage is often difficult to obtain.

At least 1,201 people were killed ...

Criminal Justice Reform Becoming a Corporate Priority

by David M. Reutter

With the rate of Americans who have a felony conviction steadily increasing as a result of the incarcerative state’s policies, corporate entities are experiencing a change of heart towards those with criminal records. In fact, many corporations say felons are often the most dependable, loyal, and ...

Tenth Circuit: Plea Not Knowing and Voluntary Where Plea Counsel Materially Misrepresented Defendant’s Right to Impartial Jury Selected Through Racially Nondiscriminatory Means

by Douglas Ankney

The U.S. Court of Appeals for the Tenth Circuit held that John Miguel Swan’s guilty plea was not knowing and voluntary because “his plea counsel materially misrepresented his right to an impartial jury selected through racially nondiscriminatory means.”

While Swan was being arrested on a domestic violence ...

More Facial Recognition Failures

by Michael Dean Thompson

Facial Recognition Technology (“FRT”) misuses continue to pop up in the media. In August of 2023, police went to the home of Porcha Woodruff and arrested her for carjacking in front of her daughters. The kicker in her story was that she was eight months pregnant. ...

California Supreme Court: Jury’s Finding of Intent to Kill for Gang Enhancement, Standing Alone, Insufficient to Find Prisoner Failed to State a Prima Facie Case in § 1172.6 Petition for Resentencing on First-Degree Murder Conviction

by Douglas Ankney

The Supreme Court of California held that a jury’s finding that Freddy Alfredo Curiel harbored the requisite intent to kill to find true a gang-murder special circumstance, standing alone, was insufficient for a trial court to find that Curiel had failed to state a prima facie case ...

Non-Toxic Fluorescent Spray Reveals Fingerprints in Seconds

by Douglas Ankney

A team of scientists from China’s Shanghai Normal University in collaboration with scientists from the United Kingdom’s University of Bath have developed a fluorescent spray that reveals fingerprints in seconds without compromising any potential DNA evidence. The dyes used in the spray are manufactured from “Green Fluorescent ...

Use of Solitary Confinement on the Rise in ICE Facilities

by Anthony W. Accurso

The Biden Administration’s rhetoric on justice and human rights issues may sound good, but a new report reveals that the use of solitary confinement—which is often in conditions the United Nations (“U.N.”) has declared amount to torture—is actually increasing in U.S. Immigration and Customs Enforcement (“ICE”) ...

New York Court of Appeals: SORA Designation Violates Defendant’s Due Process Rights Where Crime Involved No Sexual Contact or Motivation and Defendant Was Not a Sex Offender and Posed No Risk of Sexual Threat

by Douglas Ankney

The Court of Appeals of New York held that application of the Sex Offender Registration Act (“SORA”) to Marcus Brown violated his “due process rights by impinging on his liberty interest to be free of the improper designation and registration as a sex offender” because his offenses ...

New Data From BOP Reveals Technical Violations Account for Nearly a Third of First Step Act Recidivism

by Jo Ellen Nott

The Council on Criminal Justice (“CCJ”) released a December 2023 update to its original report (August 2023) on the impact of the First Step Act (“FSA”) on recidivism. The update separates new crimes from technical violations to give a more accurate picture of how the legislation ...

Retraction: ‘Federal Habeas Corpus: The Savings Clause Remedy for Federal Prisoners’ by Dale Chappell

We are writing to inform our readers about a serious error regarding the above-titled Column published in the February 2024 issue of Criminal Legal News. We are retracting the Column in its entirety. We sincerely apologize for any confusion the publication of this Column may have caused.

By the date of publication, ...

The Death of the Savings Clause

by Dale Chappell

As most federal prisoners know, the so-called “Savings Clause” under 28 U.S.C. § 2255(e) is now dead in the wake of the ultra-conservative Supreme Court’s questionable decision in Jones v. Hendrix, 143 S. Ct. 1857 (2023). If you’re not aware, Hendrix ended the use of the Savings Clause, ...

First Circuit: Defendant’s Statement ‘I guess I’ll wait until I have a lawyer’ Is Unequivocal Invocation of Right to Counsel

by Sam Rutherford

The U.S. Court of Appeals for the First Circuit held that a defendant’s statement in response to Miranda warnings that “I guess my best bet would probably be to not talk” until she had a lawyer was an unequivocal invocation of her right to counsel during custodial ...

Facial Recognition’s Distorted View

by Michael Dean Thompson

There is a tendency within the human brain to settle on the first solution even when another, better solution is available. Automated facial recognition (“AFR”) systems can exacerbate the problem simply by the fact that they are designed to address an area where most of humanity ...

Massachusetts Supreme Judicial Court Announces Defendants Under Age 21 Ineligible for LWOP Sentences

by Douglas Ankney

The Supreme Judicial Court of Massachusetts extended the holding of Diatchenko v. District Attorney for the Suffolk Dist., 1 N.E.3d 270 (Mass. 2013) (sentence of life without parole for first-degree murder committed when defendant was under 18 years of age is unconstitutional), to defendants who are “emerging ...

New Jersey Supreme Court Announces Extension of Eyewitness Identification Safeguards of Henderson to Pretrial Preparation Sessions and Provides Framework for Showing Photos During Pretrial Phase

by Douglas Ankney

The Supreme Court of New Jersey unanimously extended the investigative eyewitness identification safeguards of State v. Henderson, 27 A.3d 872 (N.J. 2011) (articulating a series of variables that can affect the reliability of eyewitness identification evidence and setting forth procedural safeguards), to pretrial preparation sessions and provided ...

Robotic Police Dogs Being Adopted Across the Country

by Michael Dean Thompson

In 2016, a lone shooter shot 12 Dallas police officers, killing five. Police eventually cornered the man in a parking garage. He had nowhere to go, but after five hours, the cops were eager to end it. So, they strapped the plastic explosive known as C4 ...

Ninth Circuit Announces Adoption of ‘Premises Rule’ for Co-Tenant Consent-to-Search Analysis, Holds Co-Tenant’s Consent Invalid Where Defendant Instructed Co-Tenant Not to Allow Police Entry in Their Presence

by Sam Rutherford

The U.S. Court of Appeals for the Ninth Circuit held that a defendant’s live-in girlfriend could not validly consent to police searching their shared residence where the defendant, who was detained nearby, yelled to her “Don’t let the cops in, and don’t talk to them.”

Background

One ...

Sixth Circuit Announces Untimely Notice of Appeal That Provides Reason for Tardiness May Be Construed as Motion to Reopen

by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit held that an untimely notice of appeal (“NOA”) that provides a reason for the tardiness may serve as a motion to reopen and as a request for certificate of appealability (“COA”).

After Da’Rell Anton Winters’ appeals of his ...

Googling Your Privacy

by Michael Dean Thompson

Google is the unrivaled search giant, and its Android is the second most widely used cellphone operating system in the U.S. Their additional offer of free software is all designed to leverage what they know about you and increase the number of opportunities to present highly ...

News in Brief

Arkansas: WREG reported thaton March 12, 2024, a former policeman with three years on the force in Blytheville was charged with distributing, possessing, and/or viewing materials depicting sexually explicit conduct involving a child. David Paul Cross, 25, was arrested as part of an ongoing investigation by the Arkansas State ...

 

 

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