by David M. Reutter

It is often said that life imitates art. When it comes to electronic monitoring (“EM”), your friendly, neighborhood Spiderman was a major influence for the idea to use an electronic device to track the location of persons entangled within the criminal justice and immigration systems. The use of EM has gained traction as reformers push to end mass incarceration and the cash bail bond system. Critics, however, assert that EM is just another form of government control that has an insidious impact upon those subject to EM, their families, and society as a whole. They also warn leaving EM unchecked allows Big Brother another avenue to monitor society’s every move. While others support EM by citing its positive benefits, EM’s founders regret that it has been transformed from a tool to motivate behavioral change to a form of punishment itself. 

EM is a prime example of how technology can be created for one purpose and is found to have applications in a realm its creators never intended. While studying in the 1960s at Harvard University under famed psychologists B.F. Skinner and Timothy Leary, twin brothers Robert and Kirk Schwitzgebel, who later changed their last name to ...

by Jo Ellen Nott

Cellebrite—the Israeli digital intelligence company that provides data extraction tools for law enforcement to collect, analyze, and manage digital data—is asking its customers to keep the technology a secret.

For years, Cellebrite has tried to keep the technology of its products secret and has urged law enforcement agencies purchasing its best-selling product, the UFED (Universal Forensics Extraction Device) to be hush-hush about using the device. A training video for Cellebrite takes it even one step further by advising the user of the hardware to stay quiet as well.

In a transcript that TechCrunch published of the training video used to teach companies about the UFED, a senior company employee emphasizes the need to keep the capabilities of the UFED secret for several reasons. The employee/instructor cautions that “it’s super important to keep all these capabilities as protected as possible” to enable Cellebrite to continue investing in research and development, to keep ahead of bad actors who try to steal the technology, to combat advances made by cellphone manufacturers to keep their product secure, and to limit unavoidable courtroom disclosures that could comprise the effectiveness of its flagship product, Cellebrite Premium.

The instructor also talks about the ...

by Anthony W. Accurso

The Court of Appeal of California, Fourth Appellate District, overturned the denial of a defendant’s motion to suppress, holding that the officer impermissibly extended a traffic stop to conduct a drug dog sniff around the exterior of the defendant’s vehicle.

Officer Anthony McGlade of the Anaheim Police Department received a tip about a black pickup truck that “had acted suspiciously” around the Tampico motel, where “drug trafficking was a problem.” No further details were provided other than that vague statement.

McGlade was on duty with Titan, a narcotics detection dog. He located and followed the suspect vehicle until the driver allegedly executed an improper lane change, and he initiated a traffic stop, activating his body camera.

McGlade made contact with the driver, Joseph Gyorgy. He obtained Gyorgy’s California driver’s license but then proceeded to ask him “several questions, including whether Gyorgy was on probation or parole, whether he was a narcotics or sex registrant, whether he had any needles or sharp objects in the truck, and whether he had any weapons or drugs in the truck.” Importantly, according to the record, other than obtaining Gyorgy’s driver’s license, there is no indication that McGlade or any other ...

by Matt Clarke

The Supreme Judicial Court of Maine reversed a defendant’s domestic violence conviction after finding her attorney was ineffective for opening the door to prejudicial evidence about her parenting and failing to object to the prosecutor’s improper introduction of evidence about having a child removed from her home.

Meghan M. Pratt wanted to cut her daughter’s hair, but the daughter refused. Pratt picked up scissors and moved toward her daughter. A struggle ensued but ended without injuries. Then Pratt left to run an errand.

When Pratt returned, she told her daughter that she would have to be punished for disobeying her mother. The daughter said, “You aren’t even a mother to us.” Pratt smacked the daughter’s face with her right hand, leaving a bruise that persisted for several days, and then held her daughter with both hands, not releasing her until she had calmed down.

Pratt was charged with domestic violence assault under 17-A M.R.S. § 207-A(1)(A). During opening statements at her jury trial, the State introduced the parental discipline justification as a potential defense. Defense counsel responded in opening statements by introducing the issue of “family dynamics” and the principle that parents are legally justified in using reasonable ...

by Douglas Ankney

In a case of first impression, the U.S. Court of Appeals for the Eighth Circuit announced that the categorical approach applies to the tier analysis of the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250(a).

Michael Ryan Coulson was convicted by court martial of “forcible pandering” in violation of Article 120c(b) of the Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. § 920c(b) (2012). He subsequently failed to register as a sex offender in Iowa and pleaded guilty to violating SORNA. At his sentencing for the SORNA violation, Coulson argued that the categorical approach applied. And because his forcible pandering conviction is defined as forcible “prostitution,” which is further defined as “compelling another person to engage in sexual abuse or sexual contact” (10 U.S.C. § 920c(d)(1)), he argued it is a Tier I offense.

The U.S. District Court for the Northern District of Iowa determined that the categorical approach applied but also found that “the possibility of a prostitution conviction arising from mere sexual contact over the clothing was so unlikely as to be speculative or hypothetical.” The District Court determined that Coulson’s UCMJ conviction is comparable to sexual abuse, 18 U.S.C. § 2242, which is a Tier ...

by Anthony W. Accurso

Following a congressional investigation, some lawmakers wrote a letter to the Department of Health and Human Services (“HHS”) about how the eight largest pharmacy chains provide patient prescription information to police without requiring a warrant, and only one regularly notifies customers when it discloses this private data.

Conducting the investigation were Senator Ron Wyden (D-OR), along with representatives Pramila Jayapal (D-WA) and Sarah Jacobs (D-CA). They obtained briefings from the eight major pharmacy chains: CVS Health, Walgreens Boots Alliance, Cigna, Optum Rx, Walmart Stores Inc., The Kroger Co. Rite Aid Corp., and Amazon Pharmacy. Such a review became more urgent since nearly “one in three women ages 15 to 44 …, a [Washington] Post analysis found, live in states where abortion is fully or mostly banned.”

“[W]e learned that each year law enforcement agencies secretly obtain the prescription records of thousands of Americans without a warrant. In many cases, pharmacies are handing over sensitive medical records without review by a legal professional,” the lawmakers wrote in their letter to HHS.

While five of the companies require internal review by legal professionals prior to releasing data, three companies—CVS, Kroger, and Rite Aid—said that “their staff are instructed ...

by Ken Armstrong, ProPublica

An unusual recent court decision offered harsh criticism of a behavior that has left dozens of men condemned to death since the 1970s, spotlighting cases where prosecutors offered claims that contradicted what they said elsewhere.

This story was originally published by ProPublica.

When Baltimore police arrested Keyon Paylor in 2014, one of two things was true.

Either Paylor hid a gun that the police found, or the police planted the gun and framed Paylor.

The two things cannot both be true. Even so, the U.S. Department of Justice presented the first version as true while convicting Paylor of being a felon in possession of a firearm, then presented the second version as true while prosecuting a corrupt police detective who had arrested Paylor.

If you find this confounding, you’re not alone. When Paylor later challenged his conviction, the use of conflicting theories by the U.S. Department of Justice did not sit well with a judge on the 4th U.S. Circuit Court of Appeals.

“Which is the truth?” the judge, Stephanie Thacker, asked an assistant U.S. attorney during oral argument in 2021.

“Does the government not share at least my concern that the government has talked ...

by Douglas Ankney

The Court of Appeals of New York declined to adopt a per se rule that a handcuffed person is “in custody” for purposes of Miranda v. Arizona, 384 U.S. 436 (1966). Nevertheless, the Court held that the handcuffed and un-Mirandized defendant was in custody for purposes of Miranda, so incriminating statements that he made must be suppressed.

Acting on a tip from South Carolina police that Ramon Cabrera was transporting firearms into New York without a New York State Carry Permit (“NYS Permit”), Detective Kevin Muirhead and Lieutenant Peter Carretta of the New York City Police Department and Special Agent Adam Schultz of the Bureau of Alcohol, Tobacco, Firearms and Explosives staked out the home of Cabrera’s mother. When Cabrera arrived at about 10:00 p.m., the officers pulled in behind his vehicle.

As Cabrera exited his vehicle, the officers approached him and identified themselves as police officers. In response to Muirhead’s questions, Cabrera identified himself and explained that the home belonged to his mother. Cabrera was handcuffed at that point. When asked for identification, Cabrera directed the officers to his wallet in his car’s console. When removing Cabrera’s driver’s license, the officers observed a Florida Concealed Carry ...

by Jo Ellen Knott

Rand, a nonprofit research organization, published a research brief on January 9, 2024, that proves hiring individuals with criminal records is not risky and has benefits for the employer, the individual seeking employment post-incarceration, and society.

The brief titled “Resetting the Record: The Facts on Hiring People with Criminal Histories” provides established facts on the realities of hiring people with criminal histories and offers valuable insights to hiring managers, policymakers, and the world at large. Drawing from at least eight sources of published research, the brief addresses concerns about hiring formerly justice-involved persons and suggests that not hiring them leads to missed opportunities on both sides.

The brief busts the myth that there are not many people with criminal records looking for work. The fact is nearly half the men aged 35 in the labor pool do have a criminal record (46 percent). That percentage varies only slightly by race and ethnicity. “Among 33-year-old women, the percentage of those looking for work in 2018 who had a conviction for a nontraffic offense was between 22 percent and 52 percent for White women,” according to the brief’s author. With a tight labor market, disqualifying half of the ...

by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit held that the admission of Department of Homeland Security (“DHS”) Investigation Form G-166F (“G-166F”) at Nicole Elizabeth Foreman’s trial where the preparer of the G-166F did not testify violated the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and violated Federal Rules of Evidence (“FRE”) 801, 802, 803, and 805.

A Culberson County Sheriff’s Deputy initiated a traffic stop of a white Pontiac SUV. The driver of the SUV was Ira Cannon. Foreman was a passenger in the front seat. Nine men who appeared to be of Latin American descent were squeezed into the back. The deputy contacted Customs and Border Patrol (“CBP”). An agent from CBP interviewed the nine men and reported on the G-166F that they were all Mexican nationals. CBP also determined that Cannon was the leader of a human-smuggling operation and that Foreman was his assistant.

CBP turned the case over to DHS, which ultimately charged Foreman with Count 1: transportation of illegal aliens for financial gain (in violation of 8 U.S.C. § 1324(a)(1)(A)(ii)) and Count 2: conspiracy to transport aliens (in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I)).

Over Foreman’s objections, the trial court ...

by Jo Ellen Knott

On January 10, 2024, Forensic Mag delivered astonishing news: Research out of Columbia University and the University at Buffalo radically challenged the long-held belief that fingerprints from different fingers of the same person are always unique and unmatchable.

The research team, led by Columbia Engineering undergraduate senior Gabe Guo, developed an AI-based system that has shown a remarkable ability to correlate fingerprints from different fingers to the same individual with high accuracy. The team used a public U.S. government database of approximately 60,000 fingerprints to train their artificial intelligence system.

Guo and his colleagues, with no background in forensic analysis, fed the fingerprint data into a neural network. At times, they fed pairs from the same person, other times prints from two different people. They trained “twin deep neural networks to predict whether two fingerprint samples (not necessarily from the same finger) were from the same person.” The neural network learned to correlate a person’s unique fingerprints with a high degree of accuracy. According to the researchers, it does this by analyzing the curvature of the swirls at the center of the fingerprint rather than the minutiae, or endpoints in fingerprint ridges.

From the paper published ...

by Douglas Ankney

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Those hallowed words enshrined in the Fourth Amendment to the U.S. Constitution were, and are, intended to protect citizens from abusive, harassing, and over-intrusive policing. The Fourth Amendment does not protect citizens from all searches, but it protects against unreasonable searches. Carroll v. United States, 267 U.S. 132 (1925). And all searches conducted without a warrant are presumptively unreasonable—unless the government can justify the warrantless search under one of the carefully crafted exceptions to the warrant requirement. Riley v. California, 573 U.S. 373 (2014).

But in the context of forensic searches of cellphones, i.e., searches of the contents of cellphones, at America’s borders, are those hallowed words and intended protections merely impotent splatters of ink on parchment? Cellphones are unique in many respects. With nearly every person in the U.S. owning and carrying one, the Supreme Court of the United States (“SCOTUS”) has ...

by Douglas Ankney

In late 2023, New York Governor Kathy Hochul signed the Clean Slate Act into law, permitting millions of criminal convictions to be sealed. “With the signing of this law, it adds to our momentum to get people back to work, give them those opportunities,” said Hochul.

Under the Clean Slate Act’s provisions, criminal convictions in the state of New York will automatically be sealed from public view once the convicted person completes a waiting period after incarceration (set at three years for misdemeanors; eight years for felonies). Sealing of the records means they are hidden from potential employers and housing providers.

However, sex offenses and Class A felonies are excluded from the Clean Slate Act. Furthermore, some state, local, and federal agencies will be permitted to view the sealed records in limited circumstances. And “[s]chools, police agencies, and facilities dealing with vulnerable groups will also have access to sealed convictions for employment purposes.” The Clean Slate Act becomes effective in November 2024 with the New York State Office of Court Administration having up to three years to seal all eligible records.   

Source: brooklyneagle.com

by David M. Reutter

In a case of first impression, the Massachusetts Supreme Judicial Court held that “a defendant constructively is deprived of his or her constitutional right to counsel under art. 12 [of the Massachusetts Declaration of Rights] where trial counsel sleeps for a significant portion of during an important aspect of trial.” The Court, therefore, vacated the judgment of conviction and ordered a new trial.

Nysani Watt was convicted of first-degree murder for the 2013 shootings that killed 16-year-old Jaivon Blank and wounded 14-year-old Kimoni Elliott. Watt informed his first appellate attorney “that his trial counsel slept during portions of the trial,” but the “first appellate counsel dismissed the issue as unmeritorious and did not investigate it further.” The conviction was affirmed on appeal.

A motion for new trial was denied in 2020. Approximately two months later, Watt “filed another motion for new trial, contending that he was deprived of his right to counsel because his attorney was sleeping during critical parts of the trial. In support of this motion, the defendant submitted his own affidavit as well as affidavits from his second appellate counsel, his codefendant, his codefendant’s two trial attorneys, the two trial prosecutors, and his ...

by Anthony W. Accurso

Rob Bonta, the Attorney General for the state of California, issued a memo to law enforcement agencies in the state, which interprets SB 34 and forbids them from sharing with out-of-state agencies data collected from automated license plate readers (“ALPRs”).

ALPRs are controversial. They record license plate numbers as a vehicle passes a camera, mounted on a traffic light, highway sign, or a patrol vehicle. The license plate number is paired with a timestamp and a location, which can be used to infer that the vehicle’s owner was in a particular place at that time. This implicates privacy concerns, especially when a woman from a state with abortion restrictions travels to California. But California agencies have been collecting this data and sharing it with hundreds of out-of-state agencies, including U.S. Customs and Border Patrol (“CBP”) and U.S. Immigration and Customs Enforcement (“ICE”).

The California state Legislature passed SB 34 in 2015, requiring basic safeguards for the use of ALPRs, which includes a prohibition on California agencies from sharing data with non-California agencies.

Since then, the ACLU of California, MuckRock News, and the Center for Human Rights and Privacy have used public records requests to demonstrate that ...

by Anthony W. Accurso

In a case of first impression, the Supreme Court of Utah held that production of a cellphone passcode is “testimonial” for purposes of the Fifth Amendment and that the State violated the defendant’s privilege against self-incrimination rights when it mentioned his refusal to disclose the passcode at trial.

Alfonso Valdez and “Jane” had dated and lived together but were separated. According to allegations by Jane, after a conversation by text message, the two met in a parking lot, ostensibly for Valdez to give Jane mail that had arrived since she moved out. However, once she approached his SUV, he produced a gun, forced her to enter the vehicle, and proceeded to verbally and physically assault her. She eventually escaped but did so without her cellphone and purse.

Police arrested Valdez, confiscated his cellphone, and obtained a warrant to search it. Valdez refused to make any statement during questioning, and he refused to provide the swipe pattern for his phone. The detective attempted to compel production of the code by saying they had obtained the warrant and that if Valdez refused, they would open it anyway with the assistance of a lab, but this process would destroy ...

by Michael Dean Thompson

The University of Toronto’s Citizen Lab investigated weaknesses in the manner with which cellphones and their locations are passed from tower to tower. What they found was that it was remarkably easy for a state agency, telephone company, and others to track cellphones using the archaic technologies that enable cellphones to be truly mobile.

As a cellphone travels between cell towers, sometimes at high rates of speed, cell towers must pass messages back and forth that identify the subscriber. It allows the cell tower awaiting the mobile user to make certain connections that are available in anticipation of the customer’s needs. However, each cell tower may have a different owner or operator. For that reason, a common exchange has been created that gives the towers the ability to share information and verify subscriber information irrespective that the phone and tower originate from different networks.

The IP Exchange (“IPX”) is a network that assists cellphone companies to share data about their customers. The IPX, however, is vulnerable to bad actors who wish to track cellphone users anywhere in the world. Anyone hooked into the IPX can monitor a cellphone’s movements with ease. And getting access is not ...

by David M. Reutter

In a case of first impression, the Vermont Supreme Court held “that in determining whether the criminal court would have accepted a plea agreement,” the Post-Conviction Relief (“PCR”) “court can consider only evidence that was available to the criminal court at the time it would have considered the plea.”

Rein Kolts was charged in May 2014 with aggravated sexual assault of a child in violation of 13 V.S.A. § 3253a(a)(8), based on multiple sexual assaults of [his] then 13-year-old niece. “That charge carried a mandatory minimum sentence of twenty-five-years-to-life.” § 3253a(b). “Prior to his arraignment, petitioner twice confessed to committing the crime: first, to two plainclothes officers after thirty minutes of questioning, and second, to a family friend who worked at the court,” the Vermont Supreme Court noted.

Before arraignment and at the jury draw, Kolts was offered a plea agreement that provided “he would plead guilty to a lesser charge of aggravated sexual assault, 13 V.S.A. § 3253(a)(8), in exchange for a sentence of ten-years-to-life, split to serve five years.” Kolts was not informed by his attorneys of the mandatory minimum sentence before he rejected those plea offers. A jury found Kolts guilty as charged. The Court observed ...

by Jo Ellen Knott

The First Step Act (“FSA”), a 2018 law designed to curb recidivism among formerly incarcerated individuals on the federal level, is showing modest but positive results in reducing the amount of time people serve in the federal Bureau of Prisons (“BOP”) system.

An analysis performed by Avinash Bhati, expert in Mathematical and Empirical Modeling Statistical Analysis, finds that people released under the FSA in 2022 served an average of 7.3% less of their imposed sentence compared to those released beforehand. This translates to an average reduction of five months in prison time.

Bhati wrote a three-part series of his FSA analysis for the Council on Criminal Justice starting in August of 2023. This part of the series is called “Time Sentenced and Time Served” and was published in December 2023.

An important finding from this analysis is that individuals released under the FSA in 2022 served about 82 percent of their sentence on average while individuals released pre-FSA served almost 90 percent of their time.

Although these sentence reductions are encouraging and moving the needle in the right direction, they are modest. Most sentence reductions were less than a year. For 92 percent of those released ...

by Michael Dean Thompson

About a year after the New Orleans Police Department (“NOPD”) performed its first facial recognition scan under a new policy that reauthorized its use, they have little to show for it. That is according to NOPD’s own data, which was analyzed by Politico. The new policy reintroducing automated facial recognition (“AFR”) was instituted in response to a jump in the crime rate. Businesses, police, and the mayor supported AFR use as an “effective, fair tool to identifying criminals quickly,” according to Politico. Instead, the data show AFR use is focused on Black people, and it has been associated with comparably few arrests, giving it a low effectiveness.

It makes sense that police departments would reach to tools to help them with recognizing faces because people tend to be fairly bad at it, especially with regard to identifying people of other “races” than themselves. What the NOPD data show, however, is that AFR has amplified the underlying human biases they are trying to correct.

New Orleans Councilmember At-Large J. P. Morrell, a Democrat who voted against using the technology, told Politico, “The data has pretty much proven that [civil rights] advocates were mostly correct” and added, “It’s ...

by Michael Dean Thompson

One hundred petabytes is a difficult quantity to comprehend. In plain English, that is about 113 quadrillion or 113 followed by 15 zeroes. According to ProPublica, that is the rough data equivalent of 25 million copies of the movie Barbie. One hundred petabytes is also approximately the volume of bodycam video held by Axon’s cloud storage system. In that sense, then, even the comparison to Barbie does not quite capture the magnitude of the data, as the bodycam data is not as prolific a bit generator as a high-definition movie. For that reason, it is far more than the 5,000 years of high-definition video the Barbie comparison implies. New York City alone generates millions of hours of bodycam video per year. The numbers continue to grow. And the majority of it remains unwatched.

Police bodycams came about as an intended solution to a problem. It was hoped that the tools would help build back public trust after several high-profile police killings. It is certainly true that transparent use of video footage can reveal what actually happened during a disputed encounter. In 2020, Louisiana State Police arrested Antonio Harris, during which the troopers kneed, slapped, and punched ...

by Anthony W. Accurso

The FBI has amassed over 20 million DNA profiles in its database and has requested Congress double its budget for handling DNA samples “to process the rapidly increasing number of DNA samples collected.”

The Combined DNA Index System, or CODIS, is the FBI’s centrally searchable repository for DNA profiles maintained by the agency. It started in the early 1990s but was formalized as a central database in 1998. At first, it was limited to samples from crime scenes, unidentified remains, and people convicted of sex crimes.

“If you look back at when CODIS was established, it was originally for violent or sexual offenders,” said Anna Lewis, a Harvard researcher specializing in the ethics of genetics research. “The ACLU warned that this was going to be a slippery slope, and that’s indeed what we’ve seen.”

Now, all states and federal jurisdictions collect DNA from individuals convicted of any felony, and 28 states collect samples from people arrested on suspicion of a felony, regardless of whether they are eventually convicted.

“It changed massively,” said Lewis. “You only have to be a person of interest to end up in these databases.”

In April 2023, FBI director Christopher Wray testified ...

by Dale Chappell

In the name of finality, federal courts are reluctant to undo criminal judgments of the state courts—especially repeated attempts by petitioners to do so under federal habeas corpus. When the Antiterrorism and Effective Death Penalty Act (“AEDPA”) came along in 1996, codifying longstanding rules prohibiting multiple attempts at habeas relief, Congress slammed the door shut for nearly all petitions filed after a first habeas petition is denied. We’ll briefly go over what it takes to get another “bite at the apple” in the federal habeas court.

What Is a Second or Successive Habeas Petition?

Before we get into what a second or successive habeas corpus petition (“SOS petition”) is, let’s talk about what it’s not. Not every habeas petition by a state prisoner under 28 U.S.C. § 2254 after a first petition is denied will be a SOS petition. In Magwood v. Patterson, 561 U.S. 320 (2010), the U.S. Supreme Court held that a habeas petition that attacks a new judgment is not a SOS petition. This means that if you had a successful habeas petition earlier, a petition attacking the new criminal judgment would not be a SOS petition.

However, the courts are split over whether a ...

by Jo Ellen Nott

Vince Schiraldi talks private probation and parole in his new book Mass Supervision: Probation, Parole, and the Illusion of Safety and Freedom. When Schiraldi was selected to run the troubled New York Department of Corrections (“DOC”) during the COVID pandemic crisis, the New York Times called him “a cerebral reformer who has spent an illustrious career in public life trying to end mass incarceration.”

Schiraldi’s tenure as commissioner of the New York DOC was short-lived at six months. He arrived late in the game, in June 2021, to fix a jail that had been getting worse for years and then exploded into waves of violence and death because of the pandemic. Schiraldi initiated programs and reforms to help guards whom the New York Times described as “exhausted, scared and quick to go on the offensive” and to help detainees who are often “ignored, debased, violated and easily triggered.”

Newly elected Democratic mayor Eric Adams did not support Schiraldi’s efforts to help the situation of both guards and detainees at Rikers Island and replaced him with the more hardline ex-cop Louis Molina. Schiraldi went on to become the Secretary of the Maryland Division of Youth Services and ...

by David M. Reutter

The Court of Appeals of New York held a trial court erred in admitting evidence of prior bad acts evidence. It further concluded the error was not harmless and reversed, ordering a new trial.

Sebastian Telfair was arrested in June 2017 after a traffic stop, during which the officer saw a lit marijuana cigarette on the center console. An inventory search uncovered marijuana, cash, three handguns, and ammunition. The guns were registered to Telfair in Florida. A jury convicted Telfair of one count of criminal possession of a weapon in the second degree in connection with the gun recovered from the truck’s center console and acquitted of all other charges. The Appellate Division affirmed. It concluded the trial court properly exercised its discretion in admitting the evidence under People v. Molineux, 61 N.E. 286 (N.Y. 1901). Judge Barros dissented and granted the Telfair’s application for leave to appeal to the Court of Appeals and for a stay of execution of the judgment. That Court extended the stay pending determination of his appeal.

On appeal, “Telfair argued that the Superior Court deprived him of his right to a fair trial in admitting evidence of alleged prior bad ...

Michael Dean Thompson

Modern medical science has delivered some remarkable lifesaving technologies. Included in the list of modern marvels are pacemakers equipped with telemetry systems that permit remote monitoring but also remote modification of their operating parameters. With such a pacemaker, a technician can monitor how the patient’s heart responds to their daily routine and modify the settings as needed. Similar technologies exist for those who no longer produce their own insulin. Nevertheless, significant personal habits can be inferred from both what a person’s body finds to be normal and how often it deviates from those norms.

We live in a society that collects large volumes of information about its individual members. Not all of that collected data serves an obvious purpose. For example, why does a car manufacturer track GPS coordinates with each “event,” such as a door opening, a gear shift, and a press of the brake? Does a game downloaded onto a cellphone really need to track the user’s location and search history? All that tracked information comes at a price to civil liberties. In essence, anything in the possession of corporate servers is likely accessible to the government. Many corporations sell their users’ raw data on ...

by Carlos Difundo

In September of 2021, then-Assistant Director for Counterterrorism Jill Sanborn told the Senate that the FBI did not monitor publicly available social media conversations. “It’s not within our authorities,” she told them, adding that the First Amendment barred them from doing so. It turns out that statement was wrong, according to a report the Senate put together in June of 2023.

Prior to 2021, the FBI used a tool from Dataminr to scan social media. According to the company, the tool searched for a predetermined set of keywords. It did not perform any sort of link analysis, nor did it attempt to discover if the scanned accounts were related by location or group. They also added that their tool does not perform any kind of surveillance, apparently meaning it does not monitor specific accounts. That, however, seems to be a bit disingenuous. It is not difficult to find accounts where specific sets of keywords such as “#BlackLivesMatter” dominate their posts. A well-defined set of keywords can at least be highly selective even without including the account name. The FBI’s goal, they claim, “is not to ‘scrape’ or otherwise monitor individual social media activity” but that it “seeks ...

by Jo Ellen Nott

F.D. Zigan, a veteran crime scene investigator who specializes in fingerprint analysis for the Roswell Police Department in suburban Atlanta, Georgia, writes about the disconnect between evidence collection and scene reconstruction in Forensic Magazine, November 2023.

Zigan points out that in a world of specialization, a crucial element of crime scene investigation is being overlooked—the context in which impression evidence is found. The separation between evidence collection and scene reconstruction limits the possibilities of forensic analysis, affecting everything from witness statements to suspect interviews.

The disconnect is based on three problem areas, according to Zigan. The first is the separation of disciplines within crime scene investigations. Crime scene technicians collect evidence, latent fingerprint examiners analyze prints, and reconstructionists solve the puzzle by arranging the pieces into an understandable narrative. Often, crucial context is lost in this handover.

The forensic consulting and education group Bevel, Gardner and Associates advises, “Finding a fingerprint at the scene may be important, but of greater importance is the context in which we find the fingerprint.”

Zigan explains the separation of the disciplines by saying there are crime scene investigators who are trained to document and collect evidence only. Then, there are ...

by Anthony W. Accurso

Until recently, police departments in New Jersey were covering expenses for their officers to attend training sessions conducted by Street Cop Training (“SCT”), an organization that encourages “a hypervigilant warrior mentality” and trains officers to consider an arbitrary and contradictory list of behaviors as reasons to detain civilians.

SCT was founded in 2012 by Dennis Benigno. He was a Woodbridge, New Jersey, police officer until 2015. At an Atlantic City conference in October 2021, SCT provided training to current officers by current and former officers. Over the six-day conference, SCT trained nearly 1,000 officers, according to a report by Kevin Walsh, New Jersey’s acting Comptroller. Their employers paid the expenses—$499 for training but also travel, lodging, and time off—meaning taxpayers were indirectly subsidizing SCT’s operations.

When officers have a reasonable, articulable basis to believe a person has, is, or about to, commit a crime, police can detain that person, usually driving a vehicle, to conduct a brief investigation.

SCT teaches officers that “every interaction with a civilian” is “a potential deadly threat.” Officers are warned that any person, once detained, could “take your fucking life in a second,” so they should “treat every motor vehicle stop ...

The Massachusetts State Police (“MSP”) is the defendant in a potential class action lawsuit alleging that troopers secretly recorded nearly 200 individuals during criminal investigations, many of them drug cases. These recordings made by a phone app called Callyo violate federal and state laws and potentially jeopardize criminal cases across the state.

The lawsuit, filed against the state police and Motorola on February 23, 2024, claims that troopers violated the state’s two-party consent law by covertly recording interactions with at least 181 arrestees and then failed to disclose these recordings in court, denying the plaintiffs due process. Jason Courtemanche, Brett Foresman, Juan Rios, and Dennis Williams said in the complaint filed in U.S. District Court in Worcester that they were secretly recorded by state police using Motorola Solutions devices.

The recordings were added to a database maintained by Callyo, a law enforcement software company acquired by Motorola in 2020. The state wiretapping law prohibits recording audio without consent, except in cases related to organized crime investigations, which did not apply to the plaintiffs in this instance.

The ease of using the technology more than likely contributed to its widespread misuse. Callyo is a phone-based recording app commonly used by law enforcement and ...

News in Brief

Colorado: On February 28, 2024, Chiara Wuensch, a DNA Analyst for the Weld County Sheriff’s Office at the Northern Regional Forensic Lab for more than 10 years was fired. The termination was the result of a roughly one-month internal investigation, which concluded that Wuensch’s case work had significant inconsistencies. Wuensch reportedly violated the Weld County Code for expectations of proper conduct as well as the Sheriff’s Office’s standards of conduct policy by refusing to cooperate with the investigation. The Colorado Bureau of Investigation began a separate investigation into their own staff, which was how Wuensch’s anomalies initially came to light. Exactly what inconsistencies were committed by Wuensch have not been released because the investigation is ongoing. The Sheriff’s Office expects criminal charges to be filed against Wuensch. 

England: According to the Daily Mail, the escape of a woman from a police vehicle in traffic with her wrists tightly bound by a cable tie in September 2023 prompted the investigation of a Metropolitan police officer. Former officer Cliff Mitchell, 24, of south-west London, threatened his victim that if she vomited in his car he would “slit her belly.” Shortly after the woman escaped, Mitchell was found and arrested ...

by Douglas Ankney

Perry Lott was exonerated in Ada, Oklahoma, of a 1987 rape and burglary conviction after 35 years—30 of which Lott spent in prison—in spite of former District Attorney Paul Smith’s attempts to perpetuate such a gross miscarriage of justice.

In November 1987, a white woman was raped inside her home and her assailant took $120 from her purse. Police took the victim to the Ada Hospital where a rape kit was collected. The victim told police her assailant was a clean-shaven Black man with gold teeth. Later, while filming a Crime Stoppers reenactment video, a detective spotted Lott in his car parked across the street. Upon questioning, Lott told the detective he had been with his girlfriend during the time of the crime, and Lott agreed to accompany the detective to the Ada police station for a lineup. But none of the other men in the lineup had gold teeth. Instead, the other men placed gold foil over their teeth. This meant Lott was the only one who could open his mouth and show gold teeth. The victim identified Lott as her assailant after about 30 minutes. Lott was arrested and eventually convicted of rape and burglary ...