Criminal Law Newsletter March 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

In Colorado, House Bill 17-1121 would require more than 160,0000 healthcare workers to submit fingerprints for background checks. Colorado is one of only six states that do not require criminal records checks for doctors, and only one of five not to require such checks for nurses. The proposed legislation follows investigative reports by The Denver Post that revealed that some Colorado doctors and nurses had been convicted of violent felonies, sexual offenses, and drug-related offenses, but remained licensed.

The office of Delaware Attorney General Matt Denn has assisted ten state lawmakers in drafting legislation that would simplify Delaware’s drug laws, increase penalties for repeat drug offenders, and eliminate enhancements that disproportionately impact defendants in more urban areas.

In Connecticut, family members of a woman who was murdered in 1984 are pushing for the passage of H.B. No. 7133, which would prevent inmates sentenced prior to the abolition of “good time credits” from accruing such credit, which reduce their sentences.

In Texas, a group of bills called the Sandra Bland Act, after the African American woman who committed suicide in jail after being arrested for a low-level driving offense, has been proposed. Police groups have criticized some aspects of the bill, including laws that would prohibit consent searches and not allow officers to stop motorists who they believed committed a crime. Requirements to increase mental health training for jailers and officers are supported by several police groups, however.

Policy

The United States Sentencing Commission has released a report that finds that over half of federal drug trafficking offenders are rearrested within eight years of their release from prison. Nearly one-third are reconvicted, and nearly one-quarter are reincarcerated. Recidivism rates are highest for those convicted of trafficking crack cocaine; those with more serious criminal histories; and those who were younger at the age when the sentence was imposed. Defendants who were convicted of trafficking powder cocaine have the lowest recidivism rates.

More than 250 jurisdictions in the United States are using “deflection” to move people with drug abuse problems and/or mental health issues who have committed low-level offenses out of the criminal justice system and into community behavioral health and social services. Early results suggest that recidivism rates for “deflected” individuals are significantly lower than those of similarly situated arrestees.

In the Courts

The Third Circuit Court of Appeals has denied a target’s appeal of an order that required him to enter passwords to unlock digital devices for which federal authorities obtained warrants to search. The court concluded that in this case, “compelled decryption” of the device did not implicate the Act of Production Doctrine, and discussed why its analysis differed from that in a 2012 Eleventh Circuit decision that came out the other way.

New Jersey pastor Trevon Gross was convicted in Manhattan federal court of taking cash bribes to allow operators of Coin.mx, an illegal bitcoin exchange, to use a federal credit union he controlled. Florida resident Yuri Lebedev—one of the bribers—was also convicted at trial. Gross’s credit union allowed the Coin.mx operators to hide their unlawful transactions from legitimate banks.

In Georgia, a defendant is arguing that the trial court improperly declared a mistrial when an ongoing murder trial interfered with jurors’ Christmas plans. The defendant argues that retrying him would impermissibly place him in double jeopardy because there was no manifest necessity to declare a mistrial.

In Illinois, former bank trust officer Karen Waido pled guilty and has been sentenced to four years in prison for embezzling $650,000 from the bank where she worked. Waido has paid over $180,000 in restitution, which was part of the reason the Illinois Attorney General’s Office recommended that the court impose the statutory minimum sentence.

PCAST Update

The Second Circuit Court of Appeals affirmed the conviction of defendant Kelvin Gil, who was convicted of being a felon in possession of a firearm in a trial that relied upon the admission of ballistics evidence. In a summary order, the court rejected Gil’s arguments that the trial court should have: conducted a Daubert hearing; excluded the expert’s testimony based on, inter alia, two National Academy of Science reports; and prevented the expert from telling the jury that he reached his conclusions “to a reasonable degree of certainty in the field of ballistics.” (N.B.: while the defense cited the PCAST report in its papers, the appellate court did not mention PCAST in its decision.)

In Pennsylvania, a county judge is permitting prosecutors to introduce evidence from a bite mark left on a murder victim in the retrial of Paul Aaron Ross, rejecting defense counsel arguments that bite mark evidence is no longer generally accepted in the relevant scientific community.

The Maryland Court of Appeals concluded that complex, low-template DNA evidence was properly admitted in a criminal trial, and affirmed the conviction of Richmond Phillips, a former police officer who was sentenced to life in prison for murdering his girlfriend and leaving their 11-month old daughter to die. (Phillips v. State, 152 .3d 712 (Jan. 20, 2017)).

Training & Other Resources

AEquitas has published a monograph on Forfeiture by Wrongdoing, which outlines this exception to the defendant’s confrontation clause rights. If a defendant procures the absence of a witness—whether through murder, threats, or marriage—prosecutors may be able to introduce the witness’s prior statements against the defendant.

The National Institute of Corrections will be holding a free webinar, Best Practices in Communication with Survivors of Sex Trafficking, on March 28, 2017, from 2:00 to 3:00 p.m. EST.

From April 9-13, 2017, the U.S. Secret Service will present Mobile Devices in Court—Prosecutors, a training that provides prosecutors with hands-on experience with mobile device technology.

The National District Attorneys Association’s Career Prosecutor Course is scheduled for May 15-25, 2017, in New Orleans, Louisiana.

Other News of Interest

A civil lawsuit brought by Baltimore police officers charged in the death of Freddie Gray is <href="#.NcHjPh6fk">proceeding in federal court against Marilyn Mosby, the State’s Attorney who charged them. The district judge hearing the case has rejected Mosby’s motion to stay discovery, ruling that she must provide her emails and be deposed.

More than 100 survivors of crime gathered in Los Angeles to call for additional resources and support for those who have been victimized by crime.


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.

Faculty Spotlight

NAGTRI's faculty are top-rated experts in their field. Read about them.

Course Schedule

NAGTRI offers high-quality, responsive and innovative trainings.

Research & Newsletters

NAGTRI produces comprehensive research and newsletters on topical legal issues.