by Brooke Williams, Samata Joshi and Shawn Musgrave
This October 10, 2019 article is republished with permission from The Intercept, an award-winning nonprofit news organization dedicated to holding the powerful accountable through fearless, adversarial journalism. Sign up for The Intercept’s Newsletter.
Lashawn Jermaine Johnson spent his 30s in prison law libraries. As he put it in an interview, that was “the only place you were going to find freedom” in prison. Sitting at one of a dozen desktop computers with windows overlooking a quad, Johnson dug through past convictions of the assistant United States attorney who prosecuted him for cocaine trafficking in Billings, Montana.
What he found not only set him free but called into question the convictions of many others behind bars.
James Seykora had been prosecuting federal drug cases for decades in Billings, the largest city in the state with a population just shy of 110,000. Local defense attorneys described him as a hard worker who dutifully sought the harshest penalties for drug crimes. One called him a “trained pitbull” and said “the people to blame were his bosses.” In 2004, he won an award for his sheer number of drug convictions.
But it turned ...
by Douglas Ankney
The Supreme Judicial Court vacated the convictions of Paulos Tavares, ruling that the trial court failed to suppress evidence that was obtained as the result of an officer extending a vehicle stop without probable cause, which made the evidence the proverbial fruit of the poisonous tree.
John ...
Informants are highly motivated to lie. But jurors don’t always have the information or skills to discern the truth.
by Alexandra Natapoff, The Appeal, a nonprofit criminal justice news site
In February 2010, I was asked to testify as an expert witness to educate a jury about jailhouse ...
by Ed Lyon
As societal standards continue to evolve, devolve, and change for better or worse, legislatures continue to enact laws to prohibit illegal acts and protect people. New technology always opens opportunities for improvement, as well as attendant avenues for less-than-stellar individuals to take advantage of law-abiding citizens. ...
by Dale Chappell
The U.S. Attorney’s Manual passed out to federal prosecutors just after the Antiterrorism and Effective Death Penalty Act (“AEDPA”) was passed in 1996 had an interesting observation: “Under the AEDPA, federal prisoners will rarely be able to file second or successive motions.” But then came along Johnson ...
by Mark Wilson
The Oregon Supreme Court held that an untimely post-conviction relief (“PCR”) proceeding may be filed if the legal and factual basis for a claim could not have been accessed, and a reasonable person would not have thought to investigate the existence of that claim within the applicable ...
by Anthony Accurso
The U.S. Court of Appeals for the Eighth Circuit held that after the defendant’s ACCA enhancement was struck his sentence must be vacated because the court lacked jurisdiction to impose more supervision than allowed by statute.
Travis Ryan Raymond was convicted on possession with intent to ...
by Douglas Ankney
The U.S. Court of Appeals for the Second Circuit clarified the circumstances when a defendant’s bail may include home confinement coupled with private armed security guards.
Jean Boustani applied for bail pending trial, proposing conditions that included home confinement under supervision of private security guards paid for ...
by Jayson Hawkins
Over 10,000 criminal cases have come under review in Denmark due to doubts that have arisen about how reliable evidence taken from cellphone geolocation software actually is. As of mid-September 2019, 32 prisoners have been released as a result of demanding their convictions be overturned ...
by Dale Chappell
What if I invited you to a conference at a fancy hotel where experts would present solid evidence that questions the validity of something you strongly believe, like maybe climate change? Would you come? What if those experts instead were to speak in support of your views, ...
by Douglas Ankney
The U.S. Court of Appeals for the Tenth Circuit held that child pornography stored on multiple devices at the same location and at the same time is only one count of possession under 18 U.S.C. § 2252A(a)(5)(B).
Samuel Elliott had over 8,000 images of child pornography, including ...
by Jayson Hawkins
Certain human rights are inalienable, even for incarcerated individuals. When Joshua Davis received a shot of insulin in 2018 that was tainted with other prisoners’ blood, the resulting lawsuit against the institution that risked exposing him to a host of deadly diseases should have been a slam ...
by David Reutter
The Supreme Judicial Court of Massachusetts affirmed the suppression of custodial statements where the translation of Miranda warnings into Spanish was inadequate to apprise the defendant of his rights. The Court also reversed the denial of the suppression of evidence taken from the defendant’s cellphone because the ...
by Douglas Ankney
The U.S. Court of Appeals for the Second Circuit instructed a district court to issue a conditional writ of habeas corpus based on a state court’s erroneous application of evidentiary rules that resulted in the denial of the defendant’s right to present a complete defense.
Paul Scrimo ...
by Dale Chappell
A unanimous Supreme Court of South Carolina held that trial counsel was constitutionally ineffective for failing to present specific details of an alibi defense that the Court said undermined the confidence in the outcome of the trial and remanded for a new trial.
The case started when ...
by Kevin Bliss
Two Sacramento, California, police officers, Terrance Mercadal and Jared Robinet, fatally shot Stephon Clark on March 18, 2018, amid accusations of racial profiling and excessive use of force.
The District Attorney (“DA”) stated that the force used was lawful and that no charges would be filed against ...
by Jayson Hawkins
Risk assessments have been championed as a tool to help remove bias from criminal justice decisions. While there have been improvements in some areas, overall performance has fallen short of many expectations. Cook County, Illinois, began using the Public Safety Assessment (“PSA”) four years ago as a ...
by Douglas Ankney
The Supreme Court of California held that where an electronics search condition of probation is not reasonably related to future criminality the condition is invalid under People v. Lent, 541 P.2d 545 (Cal. 1975).
In 2014, the juvenile defendant (identified as “Ricardo”) was declared a ward of ...
by Douglas Ankney
The U.S. Court of Appeals for the Ninth Circuit held that a sentence under 18 U.S.C. § 3583(k) for revocation of a term of supervised release that was imposed as a result of crimes that occurred in 2005 violated the Ex Post Facto Clause.
In 2007, Tommy ...
by Richard Resch
The Supreme Court of Colorado unanimously held that sentencing courts may not impose imprisonment for certain offenses and probation for others when sentencing for multiple offenses in the same case.
Frederick Leroy Allman was convicted of numerous charges, including seven counts of identity theft and two counts ...
by Douglas Ankney
The Maryland Court of Appeals abrogated the rule that required the testimony of accomplice(s) be independently corroborated and replaced it with a new rule.
In August 2015, Sandeep Bhulai’s body was discovered lying next to his vehicle. He had been shot multiple times. The investigation led police ...
by Professor Douglas A. Berman, Sentencing Law and Policy blog (sentencing.typepad.com)
As regular readers know, in prior posts I have made much of a key provision of the FIRST STEP Act which now allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of ...
by Michael Berk
The U.S. Court of Appeals for the Tenth Circuit reversed the denial of a successive motion under 28 U.S.C. § 2255, remanding the case for resentencing where the “relevant background legal environment” demonstrated that his sentence was based on the Armed Career Criminal Act’s (“ACCA”) unconstitutional residual ...
by Chad Marks
The U.S. Court of Appeals for the Ninth Circuit ruled that the district court’s failure to provide oral jury instructions on the applicable substantive law constitutes structural error requiring reversal of defendant’s conviction.
In February 2016, Cesar Becerra exercised his right to a jury trial on six ...
by Douglas Ankney
The Supreme Court of Missouri clarified that a defendant is entitled to a self-defense jury instruction whenever there is substantial evidence to support the submission of the instruction, and the fact that a defendant presents evidence contrary to the theory of self-defense is not an exception.
Andrew ...
by Douglas Ankney
The Supreme Court of Minnesota announced a heightened pleading standard when a petitioner asserts a Birchfield/Johnson claim for relief in a collateral postconviction motion.
On March 22, 2012, deputies from the Washington County Sheriff’s Department found Jason Fagin asleep in his car. A pat search of Fagin ...
by Dale Chappell
Must a habeas petitioner in California show “good cause” under the habeas discovery statute to obtain evidence held by the court, just like he must do if the State held the evidence? No, a unanimous Supreme Court of California held, ordering the habeas court to reconsider releasing ...
by Douglas Ankney
The U.S. Court of Appeals for the Seventh Circuit vacated Michael Clark’s conviction and remanded for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).
Investigator Todd Maas is a police officer in Superior, Wisconsin. He prepared a warrant application and signed the supporting ...
by Douglas Ankney
The U.S. Court of Appeals for the Fifth Circuit affirmed the decision of a district court that granted summary judgment to the plaintiffs in a § 1983 suit alleging that the practices of the judges (“Judges”) of the Orleans Parish Criminal District Court (“OPCDC”) violated the Due ...
by Douglas Ankney
In April 2007, the Orange County (California) District Attorney (“OCDA”) began what has become the largest database of DNA profiles not created by legislative act. Shrouded in secrecy until now, UC Berkeley Law Professor Andrea Roth has pulled back the curtain to reveal a perverse creature.
The ...
by Douglas Ankney
The U.S. Court of Appeals for the Sixth Circuit reversed the decision of a district court that denied habeas relief. In an unusual ruling, the Sixth Circuit found that defense counsel was ineffective for failing to initiate plea negotiations.
In February 2010, Curtis Byrd and his girlfriend ...
by David Reutter
The U.S. Court of Appeals for the Ninth Circuit held that a “sentencing court erred by concluding that it could not first hear from the defendant before determining whether a reduction for acceptance of responsibility was warranted under the Sentencing Guidelines.” The Court concluded the misapprehension of ...
by Douglas Ankney
The Supreme Court of Indiana held that a postconviction petition that raises only issues emerging from the new trial, new sentencing, or new appeal obtained from a federal court through habeas proceedings is not a second or successive petition under Indiana Post-Conviction Rule (“Ind. P-C. R.”) 1(12). ...
by Douglas Ankney
In a case of apparent first impression, the Court of Appeals of Maryland announced that a circuit court has authority to revise a criminal defendant’s sentence for up to five years from the date the circuit court granted postconviction relief, permitting a belated motion for modification of ...
by Douglas Ankney
Many people are aware that Pilate found Jesus “not guilty,” but Jesus was sentenced to death anyway. Fortunately, the American system of justice doesn’t permit such outcomes. Or does it?
According to reason.com, federal judges can — and often do — use what is called “acquitted conduct” ...
by Douglas Ankney
Beginning January 1, 2020, cops in California will be allowed to use deadly force only when the “officer reasonably believes ... that deadly force is necessary to defend against an imminent threat of death or serious bodily injury.”
The law was inspired by the 2018 shooting of ...
by Dale Chappell
In Franklin County, Pennsylvania, a rural area with about 154,000 residents, high bail amounts are forcing people who can’t afford to purchase their freedom to plead guilty just to get out of jail for what are typically small-time misdemeanors.
Take, for example, the case of Tiana Lescalleet, ...
by Douglas Ankney
The Supreme Court of Michigan reversed convictions for criminal sexual conduct in two consolidated cases due to improperly admitted testimony of expert witnesses.
Joshua Thorpe was in a relationship with Chelsie. The couple had a daughter together. Chelsie also had a daughter from a previous relationship (identified ...
by Douglas Ankney
Municipalities and insurers are spending more in costs and payouts from law enforcement misconduct claims, but it appears that the total number of claims is dropping.
The rise in costs may be attributed to the heightened public focus on holding police accountable. “In the last five years, ...
by Dale Chappell
A man who sat in prison for almost 30 years because prosecutors and police withheld evidence that someone else committed the crime was set free July 16, 2019, after a Philadelphia judge said he was “likely innocent.”
In 1993, Chester Hollman III was convicted and sent to ...
by Ed Lyon
As far as marijuana is concerned, the New York City Police Department (“NYPD”) has little need for a canine corps. The city’s two-legged, blue-clad human-type cops seem to have the best olfactory sense in the world for detecting “the odor of marijuana.” At least, that is what ...
by Ed Lyon
Jon Goldsmith of Montgomery County, Iowa, attended a summer festival last year in adjoining Adams County. He witnessed police misconduct there so outrageous he felt he had to make the public aware of it. Unfortunately for him, the police did not agree with his colorful expressions on ...
by Jayson Hawkins
Archie Williams seemed doomed to die in prison. Sentenced to life without parole for a 1982 stabbing and rape, he managed to survive in Louisiana’s Angola as months bled into years, and years pooled into decades. Where others may have lost hope, Williams clung to one forlorn ...
by Ed Lyon
In 1996, 20-year-old Idaho Falls, Idaho, citizen Christopher Tapp was convicted of raping and murdering 18-year-old Angie Dodge. Tapp did not finish high school, so he was no match for educated cops who relentlessly interrogated him nine times over three-and-a-half weeks for a total of 25 hours. ...
by Jayson Hawkins
They put me and my son on our knees to watch her die. The officer squatted over her while she was dying with the search warrant, and he said, ‘You know why we’re here?’ and I said, ‘No, I don’t know,’” Angela Zorich recalled of the day ...
Loaded on
Nov. 19, 2019
published in Criminal Legal News
December, 2019, page 42
California: A district attorney investigation is looking at why police in San Bernardino fatally shot Richard Sanchez, a resident who obeyed police orders during an encounter with law enforcement: He dropped his gun and put his hands up, washingtonpost.com reports October 26, 2019, one year after the incident. Sanchez ...
