by Matt Clarke

Millions of people have submitted oral cheek (buccal) swab samples to companies like 23andMe and Ancestry hoping to use their DNA to trace their ancestors and locate relatives in a process known as genetic genealogy. By comparing their DNA to that of other customers, the companies can determine whether, and to what degree, two customers are related. By comparing the DNA to that of known historic figures and their descendants, the companies can determine whether a customer has a famous ancestor. It is also possible to determine what geographic regions the customers’ ancestors came from and susceptibility to some diseases.

More recently, law enforcement has been using the information in the same genetic genealogy companies’ databases to establish the identity of unidentified human remains (“UHR”) and identify suspects using DNA collected at a crime scene. This “off-label” use of genetic genealogy, known as forensic genetic genealogy (“FGG”) or investigative generic genealogy, has been used to solve decades-old cold cases. FGG has also raised a red flag about the privacy of information stored in massive databases by internet-based companies

What Is DNA?

DNA is a complex molecule made up of chemical units known as nucleotides. Only four ...

by Sam Rutherford

On April 17, 2024, the Human Rights Defense Center (“HRDC”), CLN’s non-profit publisher, and the civil rights law firm of Loevy and Loevy filed suit in the U.S. District Court for the Middle District of Florida on behalf of a Jacksonville man who spent nearly 45 years in prison for a crime he did not commit.

The Crime

On October 8, 1975, Alfred Mitchell walked into a Jacksonville produce store and shot Kathrina Farah and David Phillips three times each after demanding their money. Willie Williams was sitting in the passenger seat of his car outside and had no idea what Mitchell had done. Mitchell jumped in the vehicle and sped off as police began pursuing them. When Willie asked Mitchell why they were fleeing, he responded, “I just killed two people. Don’t you be the third one.” Willie managed to escape the vehicle when it crashed into a parked car. He was apprehended without resistance by police and taken to the Jacksonville Sheriff’s Office (“JSO”). Meanwhile, Mitchell fled into a nearby house and shot himself in the head, dying immediately.

            Neither Farah nor Phillips died as a result of their gunshot wounds, but ...

by Douglas Ankney

Resolving a split among the Courts of Appeal, the Supreme Court of California ruled that a defendant has a due process right to notice of a prosecutor’s election to seek an enhanced sentence under Penal Code § 667.61(j)(2). (Note: Undesignated statutory references are to the California Penal Code.)

Oscar Manuel Vaquera was charged by information with two separate counts of committing “a lewd and lascivious act upon and with the body” of “a child under the age of fourteen (14) years” in violation of § 288. Vaquera’s information read as to count 2: “it is further alleged pursuant to Penal Code sections 667.61(b)/(e)(4), that in the commission of the above offense, defendant OSCAR MANUEL VAQUERA committed an offense specified in Penal Code section 667.61(c) against more than one victim.”

California’s “One Strike” law, § 667.61, “is an alternative sentencing scheme that applies when the prosecution pleads and proves specific aggravating circumstances in connection with certain sex offenses,” the Court stated. Without the One Strike allegation, Vaquera faced a sentence of 3, 6, or 8 years. § 288(a).

But under § 667.61(b), the One Strike law provides for a mandatory sentence of 15 years to life for ...

by Jo Ellen Knott

DNA profiling has become the gold standard in forensic science since the first murder case was solved in England in 1987 by genetics professor Alec Jeffreys at the University of Leicester.   Although Colin Pitchfork is not as notorious as Charles Manson or Jeffrey Dahmer, it is a name forensic scientists know well for being the first criminal to be convicted of murder using DNA evidence.

A recent study by researchers at the University of New Hampshire (“UNH”) published in the Journal of Forensic Sciences continues the foundational work of Jeffreys and offers a simpler and cheaper method for identifying touch DNA. The study led by Samantha Crane, co-director of the FAIR Lab at UNH, and co-authored by anthropologist Connie Mulligan at the University of Florida will help advance the impact DNA profiling has in forensic investigations.

Traditional DNA testing can be expensive and complex, hindering the ability to distinguish between DNA left by a perpetrator (primary transfer) and DNA transferred indirectly from another source (secondary or tertiary transfer). However, a new method developed by the UNH researchers led by McCrane utilizes a more accessible and affordable technique called qPCR.

To test the method, the researchers had volunteers ...

by Douglas Ankney

The Supreme Court of Kansas clarified the framework to be used for determining whether a confession was voluntary and expressly overruled prior precedents that had held that “reliability of the confession” was a factor to be considered.

When G.O. was 16 years old, his younger stepsister was hospitalized. She revealed that G.O. had molested her. The Kansas Department for Children and Families (“DCF”) was contacted. A DCF representative told G.O.’s mother (“Mother”) and stepfather that G.O. had to be removed from the home and that counselling was necessary to reintegrate the family. The DCF representative told the Mother that each family member would be interviewed. The next person to contact the Mother was a detective from the Topeka Police Department (“TPD”). The Mother believed the detective’s interview was orchestrated by the DCF. She told G.O. that he had to “give more details to the detective” than he had given to her in order to get their family back together.

At the police station, the detective told G.O. that he wasn’t under arrest; that the purpose of the interview was only “to help G.O.’s stepsister heal, … to get the family back together,” and that the interview ...

by Sam Rutherford

In the wake of the Black Lives Matter movement spurred by the police-involved killing of George Floyd, citizens across the country elected reform-minded prosecutors who ran on platforms promising accountability for police who break the law and murder defenseless citizens. Conservative politicians, police unions, and the like have responded by calling for and sometimes obtaining the removal of these duly elected representatives from office. And even when the prosecutors don’t lose their jobs, these pressure campaigns have been largely effective at cowing prosecutorial efforts to hold police accountable for misconduct.

            The attack upon Hennepin County, Minnesota Attorney Mary Moriarty is just one recent example. The controversy involving Moriarty began when her office charged State Patrol Trooper Ryan Londregan for shooting and killing 33-year-old Ricky Cobb II on July 31, 2023. Trooper Londregan fired two shots into Cobb’s vehicle during a routine traffic stop after two other troopers at the scene determined that Cobb was wanted on an outstanding misdemeanor charge in another county. Londregan was the only trooper at the scene to pull his sidearm and fire.

Agents from the Minnesota Bureau of Criminal Investigation (“BCI”) conducted an extensive investigation and determined that Londregan’s use ...

by Douglas Ankney

Anthropology professor Dawnie Steadman, Director of the Forensic Anthropology Center at the University of Tennessee (“University”), and her colleagues “hypothesized that drugs found in decomposing bodies could have an influence on the behaviors of decomposers and result in differential rates of decomposition.” At the University’s Body Farm – “a 2.5-acre wooded property where researchers have been studying decomposition in a variety of natural settings” – researchers noticed an interesting phenomenon. “Human bodies donated for study and placed in the same environment at the exact same time were decomposing at different rates.” For example, there was heavy scavenging on some of the bodies while other bodies were entirely ignored. Insects colonized bodies at different times even though the bodies were in identical environments. And soil profiles revealed different chemical compounds among the individual bodies.

The varying characteristics of the bodies “appeared to enhance or disrupt decomposition.” This prompted the researchers “to question the accuracy of time-since-death approximations or the postmortem interval based on human and insect evidence.” Steadman and her team examined “the relationship between a donor’s drug use, end-of-life diseases, and their decomposition dynamics, which are affected by the behavior and presence of scavengers, insects, and ...

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit vacated the convictions of Dr. Joel Smithers because the instructions failed to inform the jury that the mens rea of “knowingly or intentionally” of 21 U.S.C. § 841(a)(1) applied to that statute’s “except as authorized” provision.

Smithers was charged with 861 counts related to his opioid-prescription practices – one count of possession of a controlled substance with intent to distribute, in violation of §§ 841(a)(1) and (b)(1)(C); one count of maintaining a place for the purpose of unlawful distribution in violation of 21 U.S.C. § 856; and 859 counts of unlawful dispensing and distributing of a controlled substance in violation of § 841(a)(1).

At Smithers’ trial, the parties proposed differing instructions related to § 841(a)(1). In pertinent part, the statute reads: “Except as authorized ..., it [is] unlawful for any person knowingly or intentionally ... to manufacture, distribute, or dispense ... a controlled substance.” The parties’ dispute concerned the definition of “[e]xcept as authorized.” The Government requested it be defined in the disjunctive – that the medications were prescribed “without a legitimate medical purpose or beyond the bounds of medical practice.” In contrasat, Smithers requested the instruction ...

by Jo Ellen Knott

Keith Harward, 67, was born in Greensboro, North Carolina, a state whose motto is “To be, rather than to seem.” Unfortunately for Harward, he spent 33 years “seeming” to have a life after the state of Virginia wrongfully convicted the ex-sailor of a brutal murder and rape in September 1982 and sentenced him to life in prison.

            Harward's path in life took this tragic turn during his time in the United States Navy while stationed on the USS Carl Vinson. In 1982, a heinous crime shook Newport News, Virginia, implicating a fellow sailor, Jerry Crotty, in the rape of Teresa Perron, along with the crowbar assault on her husband that killed him. Although Crotty was the real perpetrator, Harward found himself caught in a web of wrongful accusations and faced a justice system blinded by flawed forensic evidence.

"I was wrongly convicted for 33 years," Harward recounts, reflecting on the expert witnesses who almost sealed his fate. Bite mark analysis, now labeled as "junk science, “was the cornerstone of his conviction. Six forensic dentists falsely claimed that Harward’s teeth matched bite marks left on Teresa Perron’s leg by Crotty. Despite initial dismissal due to lack ...

by Douglas Ankney

The U.S. Court of Appeals for the Third Circuit affirmed the U.S. District Court for the Middle District of Pennsylvania’s denial of absolute immunity to a prosecutor where the complaint alleged facts sufficient to support a finding that the prosecutor’s acts served an investigatory function.

Larry Trent Roberts served 13 years in prison for the murder of Duwan Stern – a murder Roberts did not commit. After a new trial wherein Roberts was acquitted, he filed suit pursuant to 42 U.S.C. § 1983, alleging six claims related to his wrongful conviction. He named several state actors as defendants.

In Count II of the complaint, Roberts alleged Assistant District Attorney John C. Baer “fabricated evidence by way of knowingly influencing, enticing, and coercing an inculpatory statement from Layton Potter: a jailhouse snitch, who lacked any credibility, whose statement could not be corroborated, and was only concerned with benefitting himself.”

In Count IV, Roberts alleged that Detective David Lau “and Baer conspired to fabricate evidence for the purpose of convicting an actually innocent man” when Lau and Baer “knowingly sought out, influenced, and coerced an inculpatory statement from Potter.” According to Roberts’ complaint, a hole developed in the ...

by Sam Rutherford

The Court of Appeals of New York, the state’s highest court, held that the People violated a defendant’s statutory right to a speedy trial by filing a certificate of readiness and then appearing at several court dates to request a post-readiness adjournment (continuance) without any explanation for the delay.

            Patrick Labate crashed into a parked police car in December 2017, and, as a result, was charged with reckless driving and related offenses. The People filed a certificate of readiness for trial shortly after his arraignment and reaffirmed their readiness for trial in a series of hearings leading up to a trial date set for September 5, 2018. However, on that day, the parties appeared in court, and the People stated that they were not ready to proceed to trial without explanation.

The trial court subsequently adjourned the case on three separate occasions, each time based on the People’s unexplained statement that they were not ready for trial. Labate moved to dismiss the charges against him, but the trial court denied the motion. He was subsequently convicted and appealed.

            New York state law requires that defendants be brought to trial within certain periods of time ...

by Douglas Ankney

The Supreme Court of Delaware ruled that a warrant authorizing a search and seizure of “any and all” data of named files of a cellphone was an invalid “general warrant,” and the warrant was also invalid because it did not include a temporal limitation.

Andrea Casillas-Ceja’s four-year-old daughter J.S. told her that Jose Terreros had licked her vagina. Casillas made Terreros leave the home and called police. Days later, Casillas observed on the internet search history of Terreros’s cellphone several web searches related to J.S.’s accusations. Casillas reported her discovery to the police. Officer Jay Davidson’s application for a warrant included the following pertinent portion from his affidavit:

“Your affiant was advised by [Casillas] that she responded to [her front yard] where she located [Terreros cell phone]. [Casillas] advised that she proceeded to check the search history and found pornography, a search of how to detect if a little girl has been raped, how long saliva stays on the body, and a search of how long fingerprints stay on clothes/sheets/blankets.”

The application and affidavit sought authorization to search “[a]ny and all messages, any and all messaging apps, all search history, all photographs, videos, GPS coordinates, incoming ...

by Sam Rutherford

In a case of first impression, the Supreme Court of Colorado held that the parole board is not statutorily required to consider a juvenile sex offender’s “maturity,” though is permitted to do so, but is required to consider the offender’s “rehabilitation” when making release decisions where the offender was sentenced as an adult to a maximum term of life in prison.

The Court made this pronouncement on certification of a question of state law from the U.S. Court of Appeals for the Tenth Circuit in a case challenging the constitutionality of Colorado’s sentencing scheme for juvenile sex offenders sentenced as adults to indeterminate life sentences.

Background

In 2011, when Omar Ricardo Godinez was 15 years old, he and three accomplices kidnapped and raped two women within a week of each other. Godinez was charged, tried, and convicted as an adult of six offenses related to these crimes. He was sentenced under Colorado’s Sex Offender Lifetime Supervision Act (“SOLSA”), §§ 18-1.3-1001 to -1012, C.R.S. (2023). SOLSA requires courts to sentence convicted sex offenders to an indeterminate term of at least the minimum of the statutorily prescribed presumptive range for the level of offense committed and a maximum ...

by Douglas Ankney

In a case of first impression, the Massachusetts Supreme Judicial Court affirmed a trial court’s exclusion of expert testimony regarding an iPhone’s frequent location history data (“FLH”) evidence.

Victor Arrington was charged with first degree murder and other offenses related to the home invasion and killing of Richard Long at Long’s residence on Harvard Street in the Dorchester section of Boston. The Commonwealth moved in limine to admit the FLH data from Arrington’s iPhone and corresponding expert testimony explaining that the FLH data placed the iPhone “within a 143-foot radius” of the crime scene at the time of the crime.

The trial court conducted a series of Daubert-Lanigan hearings (from Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and Commonwealth v. Lanigan, 641 N.E.2d 1342 (Mass. 1994)), to evaluate the reliability of the proposed expert testimony about the FLH data. The Commonwealth’s forensic analyst testified that:

(1) he did not have access to the proprietary algorithm that generated the FLH data;

(2) he performed a series of tests with an iPhone similar to Arrington’s but not identical and that there were “likely differences” between the algorithms used in the two phones that ...

by Samuel Rutherford

As reported by the Associated Press, the Department of Justice (“DOJ”) announced the creation of a database designed to track serious misconduct complaints against federal law enforcement officers. The purpose of the database is to ensure that other agencies do not unknowingly hire officers who have been fired or resigned in response to allegations of serious misconduct.

The database, known as the National Law Enforcement Accountability Database, includes only former and current officers of federal law enforcement agencies with records of serious misconduct over the past seven years. The database is not publicly available and does not include misconduct reports against local or state law enforcement officers, as many police reform groups have advocated for, but it is a step in the right direction.

The database was created in response to an Executive Order issued by President Biden in May 2022, which included dozens of measures aimed at increasing accountability for federal law enforcement officers. “This database will ensure that records of serious misconduct by federal law enforcement officers are readily available to agencies considering hiring those officers,” Biden said in a statement.

Source: apnews.com

by Sam Rutherford

The Supreme Court of Idaho held that a trial court violated a defendant’s Confrontation Clause rights by admitting video recorded interviews of a child witness at his trial on charges that he sexually assaulted the child where the child did not testify, thereby depriving the defendant of an opportunity to cross-examine the witness.

Background

William Parsons was charged with sexually abusing his live-in girlfriend’s four-year-old daughter. The child was taken to the hospital for a sexual assault examination on the day the allegations arose. Police subsequently scheduled an appointment to interview the child at a local hospital specializing in providing care to child victims and conducting forensic interviews. The interview was conducted by a medical social worker 24 days after the allegations arose. The purpose of the interview was to “fully understand” the child’s allegations. The interview was supervised by law enforcement via a closed-circuit TV. It was also recorded. A second recorded interview was conducted about three months later.

            The child did not testify at trial because the State did not want to put her “through more trauma and mak[e] her recount sexual abuse in a room full of 12 strangers[.]” Instead, the State ...

by Michael Dean Thompson

Facial recognition technology (FRT) corporations and the policing agencies that use them continue to jeopardize American civil liberties. While their advocates point to a National Institute of Standards and Technology (NIST) study that reported the best systems managed a high degree of accuracy using high quality images, they ignore how when comparing thousands of “probe” images against millions or more database images, the real number of failures (both false matches and missed matches) grows to a very large quantity. Moreover, they fail to mention how the largest provider of FRT to cops, ClearView AI, remains an unproven technology - its failure rate has yet to be tested outside the company.

What we do see, however, is that among the first seven people known to be wrongfully accused, six were Black. This includes Robert Williams who was arrested based on grainy surveillance video, against which they matched an expired driver’s license photo. The very best algorithms for FRT have a significantly greater failure rate for Black and Asian people. They perform their worst with Black women. Add the element of low quality images, and the odds of a correct match spiral downward. Yet, cops continue to ...

by Douglas Ankney

The Department of Homeland Security (“DHS”) has an impressive cache of surveillance technology that includes, inter alia, automated license plate readers (“ALPR”) and cell-site simulators (“CSS”). The latest tracking and surveillance revelation is that DHS and other law enforcement agencies have been using TraffiCatch since 2019.

Deployed in Texas, TraffiCatch detects WiFi and Bluetooth signals in moving cars for tracking purposes. Bluetooth devices consistently broadcast a Bluetooth Device Address that is either a public address or a random address. Over the lifetime of the device, public addresses do not change and are the easiest to track.

But more common are the random addresses that have multiple levels of privacy. These addresses change regularly. Unless a Bluetooth device with a random address has paired with a device that has a public address, it is hard to track. However, Jenoptik, the manufacturer of TraffiCatch, reports that data derived from Bluetooth is combined with ALPR, permitting law enforcement to track individuals who switch vehicles and change license plates.

Immigration and Customs Enforcement (“ICE”) is already notoriously known for using CSS in violation of the law. CSS are devices that masquerade as legitimate cellphone towers, prompting cellphones within a certain ...

by Douglas Ankney

The Court of Appeal of California, Fourth Appellate District, held that “if a defendant provides statistical evidence showing a racial disparity in the charging of non-minority defendants and African-American defendants, and provides evidence of non-minority defendants who engage in similar conduct and are similarly situated but were charged with lesser crimes than the charged African-American defendant, this is sufficient to show there was more than a mere possibility that a violation of [California Penal Code § 745(a)] has occurred. As such, a defendant has met his burden of establishing a prima facie case.” (Note: All statutory references are to the California Penal Code.)

Michael Earl Mosby, III, was charged by the Riverside County District Attorney’s Office (“DA”) with murder in connection with the drive-by shooting of Darryl King-Divens and a gun enhancement of discharging a firearm causing great bodily injury or death, along with three special circumstances – including having committed multiple murders. (Mosby had been involved in three additional shootings that resulted in two murders.) On March 15, 2019, the DA notified Mosby of the People’s intent to seek the death penalty.

In July 2022, defense counsel filed a motion alleging that the DA’s decision ...

by Douglas Ankney

Australian researchers at Flinders University have employed a promising new technique to collect and record forensic DNA evidence from crime scenes. A new study appearing in Electrophoresis focused on the DNA retrieved from air conditioning (“AC”) units that circulate a room’s air, including different types of filters at alternate periods.

While a crime scene may be wiped clean of fingerprints, Mariya Goray, senior lecturer in forensic science at Flinders and author of the study, said “it is very unlikely that an average offender, even with forensic awareness, could totally prevent their DNA from being released into the environment.

Samples of Environmental DNA (“eDNA”) from AC units in four offices and four houses were collected at different times following cleaning. Samples were also collected from the air. The eDNA collected on the surfaces of AC units tended to be from previous room occupants while eDNA detected in the air represented more recent occupants. Goray said “[w]e now know that eDNA shed from sources, such as skin or saliva, can be detected in the environment, including soil, ice, air and water. We may be able to use this evidence to prove if someone has been in the room, ...

by Douglas Ankney

The Supreme Court of Indiana clarified the framework for determining when a court may apply a cash bail toward payment of public-defender costs and toward payment of fines, costs, and fees.

Tailar L. Spells was arrested on charges related to her altercation with Officer Lynnford Parker of the Indianapolis Metropolitan Police Department. The trial court set a $250 cash bond, which was deposited in full by a third party – Diane Rolle. Both Spells and Rolle signed a cash-bond agreement pursuant to Indiana Code § 35-33-8-3.2 that permitted the trial court, “upon full satisfaction of all bond conditions, to ‘retain all or part of the cash to pay publicly paid costs of representation and fines, costs, fees, and restitution that the court may order the defendant to pay if the defendant is convicted.’” (Note: All further statutory references are to the Indiana Code.)

The trial court subsequently appointed a public defender and imposed a $100 supplemental public-defender fee. Spells was ultimately convicted at a bench trial of felony battery on Parker. Pertinent to this review, the trial court imposed probation, a $20 fine, and $185 in various fees and costs with the probation terminating upon, inter ...

by Douglas Ankney

Due to the monumental increase in the number of appeals of bond decisions, the Illinois Supreme Court adopted new appellate rules recommended by a five-person taskforce (“Taskforce”). The Pretrial Fairness Act (“PFA”), implemented in April of 2023, allows pretrial detainees to appeal district courts’ decisions regarding conditions for release. Under the PFA, whether a person remains detained prior to trial is based on, inter alia, whether the person is a flight risk, a danger to the community, and the charges faced by the person. Each of these determinations by the judge may now be appealed.

Prior to enactment of the PFA, a bond was set by the judge. Infrequently, about 17 times each year according to the Taskforce, an appeal of the bond decision was sought. But under the PFA, the number of appeals was projected to total 4,557 annually. And in the five months following the PFA’s enactment, about 1,900 appeals have already been filed.

“That’s just too much of a change in too short of a time,” said Justice Eugene Doherty of the Fourth District Appellate Court and Taskforce member. Among the Taskforce’s recommendations adopted by the Supreme Court are:

* Issues with the ...

by David M. Reutter

The U.S. Court of Appeals for the First Circuit vacated a defendant’s guilty plea because it was entered without an understanding of the consequences. The basis for the Court’s ruling rested upon the U.S. District Court for the District of Puerto Rico and plea agreement indicating an award for prison credit on a state charge for which the defendant could not, and did not, receive due to mandatory sentencing provisions.

Before the Court was the appeal of Samuel Arce-Ayala, who pleaded guilty to federal charges for conspiring to possess with the intent to distribute controlled substances and possessing a firearm in furtherance of a drug trafficking crime. “Arce-Ayala was a leader, drug point owner, and enforcer for ‘Los Menores,’ a violent drug trafficking organization in Puerto Rico,” the Court wrote.

Five years before his 2017 federal indictment, Arce-Ayala was convicted in the Commonwealth of Puerto Rico on two counts of attempted second-degree murder and three firearm offenses that involved Los Menores activities. Arce-Ayala was sentenced to eight years imprisonment for those convictions. Under the federal plea agreement, Arce-Ayala agreed to plead guilty to the two charged offenses in return for a sentence both parties would ...

by Sam Rutherford

On April 17, 2024, the U.S. Sentencing Commission voted unanimously to limit consideration of conduct for which a person was acquitted in federal court from being used in calculating the sentence range under the federal guidelines for a related conviction.

            The U.S. Sentencing Commission Guidelines Manual (“USSG”) does not specifically state whether a federal district court may consider conduct for which a defendant has been acquitted when sentencing on related offenses for which he or she has been convicted. However, in United States v. Watts, 519 U.S. 148 (1997), the U.S. Supreme Court ruled that the USSG does “not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.” This practice is known as acquitted-conduct sentencing.

            The Court determined that acquitted-conduct sentencing is permitted under several sections of the USSG. Specifically, Section 1B1.3 instructs district courts to consider “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant” that “occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid ...

by Jo Ellen Knott

Differentiating accidental falls from child abuse in young children poses a significant challenge for professionals who work these cases. Child abuse cases are some of the most challenging for prosecutors, law enforcement professionals, and child protection advocates tasked with finding the truth about what happened to the injured or deceased child.

In most cases, no one other than the accused was present to witness the event, and children (especially infants) are too young to communicate what the circumstances were that led to their injuries. As pointed out by a research team from the University of Utah, the task of uncovering the truth “is complicated even more because there are very few scientifically based and validated tools or datasets available to help distinguish between accidental and abusive trauma in infants.”

            More than 600,000 children were victims of abuse in 2021, according to the Department of Health and Human Services Administration for Children and Families. Of that number, 1,820 children died due to their injuries, and most were younger than three years old. For more than a decade, the National Institute of Justice (“NIJ”) has awarded grants for research to help physicians and law enforcement distinguish ...

by Matthew T. Clarke

A report published in January 2024 by the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania’s Carey School of Law revealed that false positives in presumptive field test used in drug arrests are one of the most common, and possibly the most common, cause of wrongful arrests and convictions. The report, entitled “Guilty Until Proven Innocent: Field Drug Tests and Wrongful Convictions,” utilized a nationwide survey of law enforcement agencies and forensic drug labs to make its determinations.

Using data from the survey and national estimates of drug arrests, the report estimates the impact of (1) false positives in field drug tests on wrongful arrests, (2) racial inequity in arrests, (3) the subsequent prosecutions, and (4) criminal convictions. It reported that approximately 773,000 of the over 1.5 million annual U.S. drug arrests involve the use of color-based presumptive field tests. Although the exact error rate for the tests is unknown because they require a subjective determination by the arresting officer, available data suggest around 30,000 people are arrested in the U.S. each year due to false positives of the field tests.

“Presumptive field drug test kits are known to produce ...

by Douglas Ankney

Bias influencing medical examiners’ manner of death determinations is sending innocent people to prison and exonerating guilty cops. In Mississippi, Rankin County Deputy Hunter Elward pleaded guilty in 2023 to federal charges related to his role in the horrific torture of two Black men by a gang of deputies calling itself the “Goon Squad.” The deputies broke into the men’s home, tortured and sexually humiliated them, and fired a gun inside the mouth of one of the men, leaving him with permanent disfiguring injuries. And in 2021, Elward was one of two deputies who witnesses saw kneeling on 29-year-old Damien Cameron for more than 10 minutes. Cameron died from the encounter. His face was swollen and bloodied, and there was bleeding in his neck.

Nevertheless, State Medical Examiner Staci Turner determined Cameron’s manner of death to be “undetermined.” But in the aftermath of the torture cases, Cameron’s manner of death was reviewed by three separate medical examiners. Each of them concluded that Turner erred in classifying Cameron’s manner of death as undetermined – each concluding that Cameron’s death was clearly a homicide. But because Turner had failed to classify the death as homicide, there was no ...

by Michael Dean Thompson

Considering all the bad press surrounding Facial Recognition Technology (FRT) and its high-profile failures, a recent report from the Government Accountability Office found that the seven agencies believed to be the largest consumers of commercial facial recognition services are doing so without training, accountability, or transparency. Strangely, while all seven agencies surveyed each have their own policies regarding personally identifiable information (PII), such as facial images, all seven of the agencies failed to fully comply with them. The report sadly did nothing to alleviate the justifiable fears of Americans concerned about civil rights abuses.

Historical Background

Facial Recognition Technology provides yet another dimension to identifying people. It can be thought of as operating in two modes. The first is Verification, where companies like Apple use FRT to verify that a user is authorized to access a system or place. For verification, the software only needs to check a provided facial image against a known, authorized image. In that sense, verification is a one-to-one comparison. In contrast, an FRT running in Identification mode must compare a given image (a “probe” image) to a vast number of database images that could number in the billions. Obviously then, a ...

by Anthony W. Accurso

The Supreme Court of Oregon suppressed statements made by a defendant on probation to police who interrupted a meeting between her and her probation officer to interrogate her regarding new crimes, ruling that this environment constituted “compelling circumstances” under state law and thus required a Miranda warning prior to the interrogation.

Deborah Lynn Reed was on probation for a drug offense when, during a meeting with her probation officer at his office, two police officers interrupted the meeting. “One of the police officers stood in the doorway, and the other slid past him and sat down in the room,” and they began to confront Reed with statements such as, “they knew she was selling drugs again” and that “they had information that she had sold drugs earlier that day.” They “also accused her of possessing drugs as they spoke.”

Under the terms of her probation, the meeting with her probation officer was mandatory, and she could leave it only with the probation officer’s permission, which he did not give at any time either prior to or during her interaction with the police. Additionally, the probation officer’s office was located in a secure building, so Reed ...

by Michael Dean Thompson

The convergence of web technologies with handheld computing devices and high-capacity, inexpensive storage has led to a remarkable new era of corporate data collection most people would find shockingly invasive. Criminal Legal News has covered how, in the process of plumbing the depths of available corporate data, cops have exposed innocent Americans to precisely the kinds of general warrant dragnets the framers of the Constitution sought to prevent. And as the number of devices tracking consumer behavior increases alongside their functionality, the number of potential surveillance vectors goes up as well. Criminal Legal News previously covered the potential of push notifications providing fodder for general searches. Thanks to Senator Wyden (D., Ore.), we now know how cops are doing just that.

Our insight into the issue began when Sen. Wyden wrote a letter to the Department of Justice (“DOJ”) about the ways foreign governments were demanding Google and Apple handover user data. In addition to collecting data that describes communications such as keyword searches and app use (a.k.a. metadata) as well as location data, these foreign governments were demanding information about push notifications.

Much like location data, push notifications are passive events from a user’s ...

by Jo Ellen Knott

Oregon legislators passed H.B. 4002 on March 1, 2024, with support from both Democrats and Republicans on a 21-8 vote. Gov. Tina Kotek’s office indicated on March 7 that she would sign it sometime in the upcoming 30 days. H.B. 4002 undoes important drug possession reform brought about by Measure 110 in 2020.

            Measure 110 reclassified drug possession as a Class E violation with a $100 fine, coupled with voluntary health assessments and access to treatment. Oregonians who supported Measure 110 argued against coercive treatment (entering treatment to avoid incarceration) saying it was ineffective and ethically questionable. They supported treating drug abuse as a health issue rather than a criminal one.

            Public dissatisfaction with Measure 110 grew during its three years of existence because of ongoing opioid-related deaths and public nuisances such as “discarded needles, human feces, and oral sex," according to The New York Times, that are associated with drug use. Despite its intentions, Measure 110 did not address the root issues of black-market drug quality and potency, made worse by prohibition.

Critics argued that decriminalization alone would not curb overdose deaths, especially with the influx of potent drugs like fentanyl. ...

by Jo Ellen Nott

California is at the forefront of change in criminal justice reform with a new law, Senate Bill 731, allowing people with felony convictions, even violent ones, to petition to have their records sealed. This reform offers a fresh start for many Golden Staters who have served their time and are committed to rebuilding their lives.

            Senate Bill 731 went into effect in mid-2023 providing Californians with most kinds of felony convictions, including violent crimes, the opportunity to ask for their records to be cleared. Applicants must have fully served their sentences, including probation, and have gone two years without being re-arrested to be eligible. Sex offenders are not included.

Senate Bill 731 is a turning point for many ex-felons, affording them opportunity after incarceration.Nick C. exemplifies the transformative potential of this law. Thirteen years ago, he sat in an Alameda County jail facing decades in prison and the grim reality of perhaps never seeing his children again. Having been charged with attempted murder after a “bar fight went sideways,” Nick pleaded guilty to assault with a deadly weapon.

            After paying his debt to society, Nick took anger management classes, earned a GED, and ...

by Richard Resch

The Court of Appeals of New York reversed Harvey Weinstein’s convictions for various sexual crimes because the trial court improperly admitted into evidence “irrelevant, prejudicial, and untested allegations of prior bad acts” and compounded its error by ruling Weinstein could be cross-examined about those prior bad acts.

Background

Weinstein was charged with numerous sex-related crimes against three alleged victims identified as Complainant A, Complainant B, and Complainant C. At the time of the alleged crimes, he was a prominent and powerful individual within the entertainment industry. The prosecution contended that he took advantage of his position to coerce aspiring actresses into unwanted sexual encounters. The prosecution further alleged that when his unwanted advances were rebuffed, he used force.

During pretrial proceedings, the trial court granted, over the defense’s objection, the prosecution’s application to admit testimony regarding uncharged crimes as an exception to the Molineux rule, which ordinarily prohibits this type of evidence. The testimony was intended to show Weinstein’s intent and that he knew the Complainants did not consent to the sexual encounters. As a result, Complainant B could testify about uncharged sexual assaults that Weinstein allegedly committed against her, and three other women (collectively, “Molineux ...

Alabama: Participants in Shelby County’s Drug Court are granted preferred prosecution if they can complete an intensive program. One of the steps of the program includes periodic drug testing. The Drug Court is a separate entity from the Shelby County Jail, with the sole purpose of helping those addicted to drugs complete an educational program which could then reduce or even dismiss their sentence. WBRC reported that Shelby County sheriff’s deputies received a tip of possible suspicious activity in October 2023. Adrian Davis was hired by Shelby County Community Corrections as a lab technician. It was his responsibility to collect urine samples from the participants. However, investigators revealed evidence that Davis was selling clean urine to help these participants pass their drug tests. The former employee of Community Corrections turned himself in on March 22, 2024. Davis now faces two counts of bribery as a public official.

Alabama: On April 19, 2024, Chadwick Ray Crabtree, 45, and his wife Melissa Kay Crabtree, 55, were booked into the Limestone County Jail, of which Chadwick is the warden. He had been with the Alabama Department of Corrections for 20 years and had assumed his new position as warden in 2022. WHNT ...