Criminal Law Newsletter May 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. 

Policy

United States Attorney General Jeff Sessions has announced a series of actions the Department of Justice will take to advance forensic science and help combat the rise in violent crime. Action by the Department will include: (1) the appointment of a Senior Forensic Advisor to interface with forensic science stakeholders and advise Department leadership; (2) conducting a needs assessment of forensic science laboratories that examines workload, backlog, personnel, and equipment needs of public crime laboratories and the needs of academic and non-traditional forensic science practitioners, and issuing a report to Congress; and (3) publishing a notice in the Federal Register seeking public comment on how the Department should move forward to strengthen the foundations of forensic science and improve the operations and capacity of forensic laboratories.

Enforcement

The United States Department of Justice has announced an extensive effort to disrupt and dismantle the Kelihos botnet – a global network of tens of thousands of infected computers under the control of a cybercriminal that was used to facilitate malicious activities including harvesting login credentials, distributing hundreds of millions of spam e-mails, and installing ransomware and other malicious software.

Following a determination by the U.S. Department of Justice finding there to be insufficient evidence to support federal criminal charges against Baton Rouge Police Department officers in the fatal shooting of Alton Sterling last year, Louisiana Attorney General Jeff Landry has requested the investigative materials be forwarded to the Louisiana State Police to conduct a state investigation. A prosecutor from the Louisiana Department of Justice has been assigned to assist in the state investigation.

Jurors in Tulsa, OK found a Tulsa police officer not guilty in the shooting death of an unarmed black man last year. The officer had been charged with manslaughter following the shooting. A video of the shooting incident was captured by a Tulsa police department helicopter and an officer’s dash camera.

Legislation

North Dakota lawmakers have proposed a state constitutional amendment to provide greater protections for victims in the courtroom, allow victims of crime to speak out at court hearings, and to refuse interviews with attorneys for suspects.

In West Virginia, legislation was passed to provide funding from civil lawsuit filing fees for the West Virginia State Police Forensic Laboratory Fund. Expenditures from the fund are for the operation of the State Police forensic laboratory.

Florida has passed a bill which provides a definition of “virtual currency” and amends the term “monetary instruments” to include virtual currency in the Florida Money Laundering Act. The Governor’s action on the bill is currently pending.

Both California and Wisconsin legislators have introduced bills making “stealthing” a crime. Stealthing refers to a situation in which someone removes a condom or other contraceptive device without permission during intercourse.

A new Kansas law provides for extending the statute of limitations so that victims of sexual assault may qualify for crime victim assistance even when an attacker is identified by DNA analysis years after the crime. The law also elevates domestic assaults in which the attacker strangles the victim from simple batter to aggravated battery.

The Missouri legislature has created the crime of “illegal reentry” for anyone who returns to Missouri after being deported and subsequently commits an assault or felony. The penalty for the crime is up to seven years in prison.

A number of states have enacted or are considering legislation expanding or toughening penalties for hate crimes. A Michigan bill would add police, firefighters, and other first responders to the state hate crime law. Similar legislation has been proposed in New York. Tougher penalties have been passed or are being considered in Connecticut, Pennsylvania, Utah, and Kansas,

A US House of Representatives bill to establish a system for integration of Rapid DNA instruments for use by law enforcement to reduce violent crime and reduce the current DNA analysis backlog has passed the House and referred to the Senate. HB 510 was received by the Senate on May 17 and referred to the Senate Judiciary Committee. The House bill is mirrored by Senate bill 139.

House lawmakers have also passed a bill aimed at helping state and local law enforcement officials combat cyber crime. The bill authorizes the National Computer Forensics Institute. Similar legislation has been introduced in the Senate.

In the Courts

New York’s highest court rejected a challenge by Facebook to 381 search warrants served to assist in uncovering suspected Social Security disability fraud by its customers. The Court of Appeals ruling dealt with search warrants obtained by the Manhattan District Attorney’s Office and upheld lower court rulings denying a motion to quash and to compel disclosure of the affidavit because the Criminal Procedure Law did not authorize an appeal from either order. The Court specifically noted that is did not consider the question of whether a third party such as Facebook has standing to assert a Fourth Amendment claim on behalf of its users.

The United States Supreme Court has invited the Acting Solicitor General of the US to file a brief in a case arising from a Wisconsin Supreme Court ruling affirming an order denying a motion for post-conviction relief requesting a resentencing hearing. The Petitioner, Eric Loomis, had challenged the use of a product called Compas which had provided a sentencing report using proprietary software.

In a recent opinion, in Nelson v. Colorado, 15-1256, the United States Supreme Court held that, where a conviction is overturned on appeal and there will be no retrial, a defendant has a due process entitlement to a refund—through “minimal procedures”—of any fees, costs, or restitution she paid as a result of the conviction. The Court held that the Colorado Compensation for Certain Exonerated Persons statute violates due process under the balancing test from Matthews v. Eldridge, 4224 U.S. 319 (1976). Under Matthews, the Court considers (1) “the private interest affected”; (2) “the risk of erroneous deprivation of that interest through the procedures used”; and (3) “the governmental interest at stake.” The Court found all three favored the petitioners.

In an opinion in the matter of Manrique v. United States, 15-7250, the United States Supreme Court held that a criminal defendant wanting to appeal an order of restitution, when restitution is deferred, must appeal from the deferred restitution order itself: A “single notice of appeal, filed between the initial judgment and the amended judgment, is [not] sufficient to invoke appellate review of the later-determined restitution amount.”

Other News of Interest

Chicago has gone high-tech in its efforts to curb violence. The Chicago Police Department’s new Strategic Decision Support Centers are aimed at stemming the rise in violence within the city. The centers make use of surveillance cameras, a tracking system for gunshots in real time, and a computer algorithm to predict where a homicide, shooting, or robbery might happen next.

A Sacrament, CA, area man has been charged with stealing bees and beehives worth nearly $1 million. According to the Fresno County Sheriff’s Office, Pavel Tveretinov was arrested while tending more than 100 hives that were reported stolen. Investigators found more beehives at two other locations adding up to more than 2,500 hives.

A research article looking at unresolved homicide cases, Cold Cases: An Exploratory Study into the Status of Unresolved Homicides in the USA, was published in the May 2017 edition of the Investigative Sciences Journal. The research identified over 230,355 unresolved homicides for the period 1980 – 2014.

National Peace Officers Memorial Day services were held on Monday, May 15, 2017, on the West Front of the United States Capitol in Washington, DC. The event was sponsored by the Grand Lodge Fraternal Order of Police and the Grand Lodge Fraternal Order of Police Auxiliary and was part of National Police Week.


Mark Neil is the Editor of Criminal Law Newsletter and may be reached at 202-326-6019. The Criminal Law Newsletter is a publication of the National Association of Attorneys General (NAAG). Any use and/or copies of this newsletter in whole or in 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 mneil@naag.org.

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