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 ...

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 ...

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 ...

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 ...

by Douglas Ankney

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

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

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

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

by Douglas Ankney

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

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

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

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

by Douglas Ankney

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

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

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

by Douglas Ankney

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

In June 2021, the Second Circuit affirmed the judgment against Thamud Eldridge that included a conviction for kidnapping in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1) predicated on kidnapping in the second degree under NYPL § 135.20 (Count 5); a conviction for attempted Hobbs Act robbery or conspiracy to commit Hobbs Act robbery (Count 6); and a conviction for possessing and brandishing a firearm in the furtherance of a crime of violence in violation of § 924(c)(1)(A)(ii) (Count 7). The jury verdict did not specify whether the Count 5 conviction or the Count 6 conviction was the underlying crime of violence supporting the Count 7 conviction. Eldridge had argued that it did not matter because none of his convictions qualified as a crime of violence. The U.S. Supreme Court vacated the judgment and remanded to the Second Circuit for further consideration in light of United States v. Taylor, 142 S. Ct. 2015 (2022).

On remand, the ...

by Douglas Ankney

The U.S. Court of Appeals for the Eleventh Circuit, sitting en banc, held that the definition of “controlled substance offense” for purposes of the career offender sentencing enhancement under U.S. Sentencing Guideline (“USSG”) § 4B1.2(b) unambiguously excludes inchoate offenses like conspiracy and attempt, and therefore, the commentary notes are inapplicable. The Court expressly overruled prior precedent that held to the contrary, viz., United States v. Weir, 51 F.3d 1031 (11th Cir. 1995), and United States v. Smith, 54 F.3d 690 (11th Cir. 1995).

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

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

by Douglas Ankney

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

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

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