The National Attorneys General Training & Research Institute

The National Attorneys General Training & Research Institute The National Attorneys General Training & Research Institute

Criminal Law Newsletter November 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

In Iowa, a state representative has introduced a “Blue Lives Matter” bill that would enhance penalties for targeting police. Louisiana (House Bill 953) has passed similar legislation, and elected officials in at least five other states (Florida, Kentucky, New York, Texas, and Wisconsin) have proposed similar bills. Comparable bills have also been introduced in both the House (H.R. 4760, H.R. 5809) and Senate (S. 3184).

A new bail system passed in New Jersey is set to take effect on January 1, 2017. The scheme will weigh a defendant’s perceived risk to the community in addition to his risk of flight (which was the only factor considered under the earlier bail scheme) when determining whether to release the defendant before trial. (An analysis of the changes by a prosecutor in one of the “pilot counties” is available here.) A sponsor of the original legislation reported that the state “vastly underestimated the costs associated with the change.” A bill (A. 3507) that would amend the new protocol in a manner that would defray some of the costs has been introduced, but it is unclear whether it will be passed before the end of the year.

Policeone.com outlines propositions that were on the ballot in California during this election season and describes how those that passed are likely to impact law enforcement officers. Those measures include Prop. 63 (which requires a special license to legally buy ammunition; criminalizes the purchase of out-of-state bullets by California residents; and bans the possession of magazines that hold more than ten rounds); Prop. 64 (which legalizes the personal recreational use of marijuana); and Prop. 57 (which allows “non-violent” felons—as defined by looking only to their most recent crime—to obtain early parole). California voters also rejected a measure (Prop. 62) that would have abolished the death penalty and endorsed one that will expedite executions (Prop. 66).

In Nebraska, a year after legislators repealed capital punishment, over 60% of voters repealed the measure, reinstating the death penalty in that state.

Two out of three voters in Oklahoma voted to amend the state constitution to confirm that capital punishment is not “cruel and unusual” and to allow the state to set methods of execution.

Policy

The Washington Post opines about the possible changes in enforcement priorities at the U.S. Department of Justice as the result of a new president.

New York Attorney General Eric Schneiderman has released “Target on Trafficking,” an analysis of “crime guns” (those connected to a crime and recovered by law enforcement) in New York state. The report also includes an interactive tracing analysis that reflects where each of these guns originated and how long it took from the date of purchase to the date the gun was seized in connection with a criminal offense. The analysis reflects that 74 percent of all crime guns originated out-of-state, and nearly nine out of ten of handguns came from out-of-state.

A multi-state study examining the effectiveness of “Honest Opportunity Probation with Enforcement” (HOPE) versus “probation as usual” has concluded that there were no significant differences in likelihood of re-arrest for those randomly assigned to the HOPE program versus those under standard probation.

In the Courts

Disgraced Penn State football coach Jerry Sandusky is now claiming that his attorney prevented him from testifying during the trial in which jurors convicted him of 45 of 48 charges related to his sexual assault of numerous boys over a period of years. Sandusky has filed post-convictions motions seeking a new trial and recently testified at a hearing. As reported in The Legal Intelligencer, Sandusky, while “breathing heavily,” claimed that the “idea” of having oral or anal sex with children “is totally foreign to me. It’s disgusting and dirty. Something I never thought of.”

Former Los Angeles County Sheriff Lee Bacahas filed a motion for a change of venue in a federal criminal case charging him with obstruction of justice and perjury in connection with his alleged interference with a federal probe of sheriff’s deputies working in county jails. Baca is also arguing that the Assistant U.S. Attorney trying the case should be removed from the case as Baca intends to call him as a witness during the trial.

Jurors in the criminal trial of a University of Cincinnati police officer who killed an unarmed man were unable to reach a verdict. Prosecutors will decide whether to re-try defendant Ray Tensing for the shooting of Samuel Dubose last July.

“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 NAGTI 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 denied every “PCAST Motion” to exclude expert testimony about forensic evidence. The cases in which decisions have been issued include the following:

  • 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

Save the date: The NAGTRI Center for Ethics & Public Integrity will partner with the U.S. Department of Justice’s Asset Forfeiture and Money Laundering Section (AFMLS) to provide intensive financial investigations training from March 14-16, 2017. This training will bring together state and federal prosecutors and investigators, in a first-ever partnership between NAGTRI and AFMLS, and is part of CEPI’s five-year anticorruption curriculum. More information will be provided in the next newsletter and on the NAGTRI website.

NAGTRI will also host a nationwide forensics symposium, likely in Washington DC in mid- to late-July 2017. Updates will be provided in this newsletter and on the NAGTRI website.

The Texas Bar is holding a training in Austin on Criminal Writs from December 1-2, 2016; the event can be viewed for free live as a webcast.

The New Jersey State Bar Association’s Criminal Law Section Legislative CLE Meeting & Joint Holiday Reception is scheduled for December 14, 2016 in New Brunswick.

Other News of Interest

Former U.S. Attorney General Janet Reno died on November 7, 2016. A thoughtful piece by a former Miami-Dade detective who knew her when she was the Dade County State Attorney summarizes her years of service as a state and federal prosecutor, including her willingness to accept responsibility for the outcome of the Branch Davidian operation and her willing recusal from investigations where her impartiality might be questioned.


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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