Criminal Law Newsletter January 2017

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

Tennessee’s Public Safety Act of 2016 (SB 2567/ HB 2576) will establish mandatory minimum sentences for people convicted of three or more charges of aggravated burglary or drug trafficking and will permit an officer to move for an order of protection without the victim’s consent in domestic violence cases.

In Utah, a state senator has introduced a bill (SB72) that would lengthen a defendant’s sentence if s/he targets a victim because of that person’s personal characteristics, including sexual orientation or gender identity.

Maryland Governor Larry Hogan has announced a 2017 Justice for Victims Initiative, a series of proposals that include acts that would: allow courts to admit a defendant’s prior history of sexual assault convictions in prosecutions for sexual offenses; expand the definition of sexual abuse; provide housing for victims of crime; and increase sentences for drunk driving and require those convicted of drunk driving to use interlock devices.

Policy

A piece that traces the relatively short history of victim impact statements notes that the murders committed at the behest of Charles Manson played a role in ensuring victims are included in the criminal justice process. The article includes one family’s experiences writing impact statements after their loved ones were murdered.

The U.S. Department of Justice has issued a press release summarizing the procedures it recommends for eyewitness photo arrays. The memorandum is agnostic about whether eyewitnesses should be given sequential or simultaneous administration of photographs, but recommends a number of procedures designed to reduce the chance that an administrator might suggest the “right” photo to a witness.

Through the lenses of a search warrant for recordings maintained by Amazon from an Alexa device in a murder suspect’s house and Best Buy’s decision to report child pornography found during its repair of a customer’s computer, Forbes explores how “private” information provided to third parties can be sought in criminal investigations.

In Arizona, a 2016 legislative amendment (HB 2376) permits victims to participate in any criminal proceeding regarding the amount of restitution a criminal defendant should pay. The law was passed in response to a case in which a lawyer was not permitted to argue that his daughter should receive restitution from the man who was convicted of negligently killing her husband in a car accident. After the law was changed, the lawyer returned to court and successfully argued that the defendant should pay his daughter $1 million in restitution.

In the Courts

A scheme to sell gift cards online to launder money grossed $9 million before federal prosecutors in Florida charged the defendants with fraud. Because they can be purchased with stolen credit cards or other ill-gotten gains and their face-to-face transfer is difficult to trace, prepaid cards can be used to launder criminal proceeds.

After a deliberation marked with a disturbing note, a federal jury in Chicago convicted six members of the Hobos street gang on changes included racketeering and murder. The six days of deliberation followed a trial that last three months and included a number of reluctant witnesses who described drug trafficking, threats, and the murders of two men the Hobos concluded were cooperating with law enforcement. The leaders of the gang face mandatory terms of life in prison.

In Hawaii, defendant Steven Capobianco was convicted of the murder of his pregnant girlfriend. In a special verdict required to determine if a sentencing enhancement would be appropriate, the jury concluded that the murder was “especially heinous, atrocious, or cruel.” As a result, the judge will have the option to sentence the defendant to life without the possibility of parole.

“PCAST Motion” Updates & Other Forensics Issues

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.

Prosecutors in the Aaron Hernandez case successfully argued that ballistics evidence should be admitted in Hernandez’s upcoming murder trial. As a result, a Boston detective will be permitted to testify that a Smith & Wesson .38 caliber pistol obtained from one of Hernandez’s associates was used in the murders of Daniel de Abreu and Safiro Furtado.

PCAST has released an addendum to its original report. That addendum follows PCAST’s December 5, 2016, requests to some criminal justice and forensic bodies for additional information about forensics studies “that were not mentioned in the PCAST report,” to which PCAST demanded a response by December 14, 2016. (Notably, in its original report, PCAST itself concluded it had “[in]adequate time to assess” the merits of a study published nearly three weeks earlier, suggesting that PCAST likely recognized that the response deadline it set for additional studies was ambitious, at best.) While PCAST’s addendum cites one case in which what it defined as complex mixture DNA was excluded, the addendum does not acknowledge the number of judges who have rejected PCAST’s invitation to exclude forensic evidence.

In Pennsylvania, DNA testing on evidence from a 1989 conviction has revealed that the defendant, Dennis Foy, was indeed the perpetrator in the 1987 rapes of six elderly women in Pittsburgh. Foy successfully moved to retest rape kits from two victims—which were among the only pieces of evidence remaining after a 1996 flood. The lab that confirmed Foy’s DNA was present was one hired by the Innocence Project, which represented Foy in his efforts to have the evidence tested in an effort to overturn his convictions. Proof at Foy’s 1989 trial included his fingerprints being found at the scene of several rapes; the victims’ property being found at his apartment; and a full confession.

Training

NAGTRI’s Center for Ethics & Public Integrity and the USDOJ’s Asset Forfeiture and Money Laundering Section are co-sponsoring a financial investigations training from March 14-16, 2017, in Louisville, Kentucky. At the training, state and federal prosecutors and investigators will apply investigative techniques and methods to unravel the case study’s money laundering scheme, identify assets for forfeiture, and make charging and forfeiture decisions.

The National District Attorneys Association and the Prosecutors’ Center for Excellence are holding a one-day National Best Practices Committee meeting on February 2, 2017, in Washington, DC.

Other News of Interest

The Washington Post’s Editorial Board calls the criminal justice system in D.C. “an outrage” after a year of chronicling how repeat violent offenders are released into the community to commit more crimes. While finding “worth” in “innovative programs,” the editorial warns that “advocates end up treating the victims of crime like so much collateral damage.” In a related Op-Ed, the author notes that defendants in the District who were sentenced under the Youth Rehabilitation Act comprise 20% of those charged with murder since 2010 and describes the lax—and at times non-existent—supervision received by adult defendants on pretrial release, probation, and parole.


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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