Criminal Law Newsletter December 2016

The following is a compendium of news reports over the past month that may be of interest to our AG offices who are involved with criminal law issues. Neither the National Association of Attorneys General nor the National Association of Attorneys General Training & Research Institute expresses a view as to the accuracy of news accounts, nor as to the positions expounded by the authors of the hyperlinked articles. 

Legislation

Amendments to Federal Rule of Criminal Procedure 41—which has incorrectly been characterized as allowing “hacking” by the federal government—took effect on December 1, 2016. For more information about the amendments, see the Policy section below.

When it returns in January, the legislature in Montana will be considering several changes to state sex crimes laws. The potential amendments would remove the requirement that prosecutors prove that assailants used force in order to convict them of rape and change the definition of “consent” to require “words or overt actions indicating freely given agreement to have sexual intercourse or sexual contact.” The amendments would also reduce the potential maximum sentence for sexual intercourse without consent from 100 to 20 years and add a crime of aggravated sexual intercourse without consent, which would carry a maximum punishment of life in prison. Other proposed amendments relate to juvenile offenders, including a provision that juveniles convicted of rape not be required to register as sex offenders if force was not used and a judge finds that registration is not necessary to protect the public.

In New York, S7252 has been signed into law. It requires the Division of Criminal Justice Services to notify local law enforcement agencies within 48 hours of a sex offender's change of address.

Voters in North Dakota, South Dakota, andMontana passed Marsy’s Law, which added certain victims’ rights to their state constitutions. The new laws echo those passed in California (2008) and Illinois (2012), and were supported by campaigns underwritten by a California man whose sister Marsy was murdered in 1983. Proponents are also pushing for the law in Nevada, Kentucky, Georgia, and Hawaii. The rights guaranteed to victims and their family members by Marsy’s Law include privacy; protection from harassment or abuse; and timely notice of trial, sentencing, and post-judgment proceedings. Concerns have been raised about the possibility that the law requires attorneys to be appointed for indigent victims, and defense attorneys have complained that bail hearings are being delayed to allow for victim notification—resulting in their clients’ continued pretrial imprisonment. South Dakota Attorney General Marty Jackley has formed a task force to work on interpreting the new law.

Policy

In three thoughtful blog posts, U.S. Department of Justice Assistant Attorney General Leslie R. Caldwell describes the amendments to the venue provisions of Rule 41 of the Federal Rules of Criminal Procedure, which went into effect on December 1, 2016. First, she writes about the abuse of internet anonymizing technology (like Tor) and how the proposed amendments will assist investigators in rooting out crimes like child pornography while still abiding by the Fourth Amendment. Second, she addresses the threat posed by “botnets,” which are a network of victim computers infected with malicious software and controlled remotely by criminals, and describes how the proposed amendments will allow investigators to efficiently and constitutionally obtain search warrants to protect victims. Finally, she addresses arguments made by commentators who objected to the proposed amendments.

An Indiana University professor argues that Indiana should pass hate crimes legislation that was considered during the last legislative session, which would provide for “hateful motivation” as an aggravating factor in sentencing. The professor notes that Indiana is one of only five states in the country without hate crimes laws.

In the Courts

In Portland, Oregon, prosecutors have decided to confirm every drug field test with a laboratory test prior to accepting a guilty plea.

Dylann Roof has convinced a judge to allow him to represent himself in his federal death penalty trial. Roof also faces state charges in the massacre at the Emanuel AME Church in Charleston, South Carolina. Roof allegedly was prepared to plead guilty if the federal government was willing to drop its request for the death penalty.

Lawyers for former NFL star Aaron Hernandez—who is already serving a life sentence for the murder of Odin Lloyd—are arguing that prosecutors should not be permitted to use Hernandez’s telephone calls from jail or evidence obtained from a cellphone Hernandez gave to a former attorney. Hernandez faces trial in 2017 for the murders of Daniel de Abreu and Safiro Furtado, along with a charge of witness intimidation that was based on his shooting of another man to try to prevent the man from implicating Hernandez in the two murders.

In Alabama, attorneys for Shawn Johnson filed a petition for a new trial based on “a box of evidence” discovered after Johnson’s trial that contained a piece of paper with the name of someone other than Johnson who allegedly committed the murder, along with the name and statement of a man who may have seen the victim in the middle of the road. In 2013, Johnson was convicted of the 2000 murder of Keith Barnett and sentenced to life in prison. Prosecutors argue that the new evidence would not have changed the outcome of the trial.

A federal judge in a lengthy gang trial in Chicago has jailed a prosecution witness who refused to testify. This witness, who was sentenced to 60 days in prison for contempt, is one of several who have been subpoenaed to testify against their will, including former NBA player Bobby Simmons, who “failed to recall” what happened when he was robbed at gunpoint in 2006 of a necklace worth more than $100,000. After prosecutors confronted Simmons with his own grand jury testimony, Simmons’s memory improved and he acknowledged that one of the trial defendants stole his necklace and fired at least 14 shots at his truck as Simmons pursued the defendant across the South Side of Chicago. The defendants are alleged to have murdered at least nine people, including two informants who were cooperating with law enforcement against their gang.

“PCAST Motion” Updates

On September 19, 2016, the President’s Council of Advisors on Science and Technology (PCAST) released a report titled “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods.” An overview of the PCAST Report is available in the October NAGTRI Journal. This section of the newsletter will include information about motions that have been decided. Please let the author of this newsletter know at aely@naag.org of any litigation in this area.

So far—and as far as we know—judges have continued to deny every “PCAST Motion” to exclude expert testimony about forensic evidence. The cases in which decisions have been issued include the following:

  • NEW: In Suffolk County, Massachusetts, a state judge denied a motion to exclude firearms evidence in Commonwealth v. Legore, SUCR 2015-10363. In an order issued on November 17, 2016, the court denied a request for a formal Daubert/ Lanigan hearing and concluded that the PCAST Report provided “no basis to disturb settled law permitting a properly qualified firearms expert [to offer] opinion evidence under” Massachusetts law.
  • Prior decisions:
    • In the Northern District of Illinois, a federal judge denied a defense motion to exclude ballistics evidence and expert testimony in United States v. Chester, 13 Cr. 774.
    • In Cook County, Illinois, a state judge denied a defense motion to exclude DNA evidence and expert testimony in People v. Cox, 12 Cr. 18935.
    • In St. Louis County, Minnesota, a state judge denied a defense motion to exclude DNA evidence and expert testimony in State v. Yellow, 69DU-CR-15-163.
    • In Northwestern County, Massachusetts, a state judge denied a defense motion to exclude fingerprint evidence in Commonwealth v. Rintala, 11-128, but granted—without objection by the prosecution—certain motions limiting the scope of the examiner’s testimony.

Training

The Virginia Law Foundation’s 47th Annual Criminal Law Seminar 2017 will be held in Williamsburg (on February 3) and Charlottesville (on February 10).

The Oregon State Bar has a webinar and live broadcast of “Courthouse Facility Dogs: Assisting in the Investigation and Prosecution of Crimes” on December 16, 2016, from 1:00-4:15 Pacific Standard Time.

Other News of Interest

U.S. Marshal Service Deputy Commander Patrick Carothers was killed in the line of duty when he tried to serve a warrant for the arrest of fugitive Dontrell Montese Carter. Carothers was wearing a protective vest, which did not stop the rifle round that Carter fired. Carter was wanted on charges associated with a September shoot-out with law enforcement officers, including seven counts of attempted murder. Carter was killed when officers returned fire after he shot Carothers. U.S. Attorney General Loretta Lynch released a statement after Carothers’s murder noting that “recent statistics suggest that 2016 has been an especially dangerous year for police officers, with a significant increase in the number of officers killed in the line of duty since Jan. 1.”

Southern District of New York U.S. Attorney Preet Bharara will continue his post in the Trump Administration. Generally U.S. Attorneys tender their resignation when a president from a different party is elected; the president-elect, after consulting with Sen. Chuck Schumer—for whom Bharara worked before being appointed—opted to ask Bharara to remain.


Amie Ely is the Editor of Criminal Law Newsletter and may be reached at 202-326-6041. The Criminal Law Newsletter is a publication of the National Association of Attorneys General. Any use and/or copies of this newsletter in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in this publication. For content submissions or to contact the editor directly, please e-mail aely@naag.org.

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