Criminal Law Newsletter July 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

The U. S. House of Representatives passed two immigration bills: one that seeks to penalize illegal immigrants who commit crimes and another that would penalize local jurisdictions that refuse to cooperate with federal authorities to deport illegal immigrants. The bills, Kate’s Law and the No Sanctuary for Criminals Act, passed June 29, 2017 in Roll Call votes. Both bills have been referred to the Senate.

The U.S. Department of Justice has issued a new policy and guidelines on federal adoption of state and local asset forfeiture cases. The new policy eases earlier restrictions on the adoption of these cases by the federal authorities, while at the same time imposing new requirements on when federal law can be used. Changes in the policy include requiring more information from police agencies about the probable cause for the initial seizure. It also makes it more difficult for adoption of seizures of less than $10,000.

Enforcement

The US Department of Justice has launched a 12-city partnership to combat disparate spikes in violent crime. The National Public Safety Partnership is a three-year initiative seeking to coordinate efforts among federal, state, local, and tribal law enforcement and prosecutors. The twelve sites selected to receive assistance are: Birmingham, AL, Indianapolis, IN, Memphis, TN, Toledo, OH, Baton Rouge, LA, Buffalo, NY, Cincinnati, OH, Houston, TX, Jackson, TN, Kansas City, MO, Lansing, MI, and Springfield, IL.

The mastermind behind a scheme for rigging the winning numbers for lottery jackpots in several states has pleaded guilty. Eddie Tipton, of Iowa, entered his plea in a Des Moines courtroom to one count of ongoing criminal conduct. He wrote software code that allowed him to predict the winning numbers.

The Sevier County, Tennessee, District Attorney has dropped criminal charges previously filed against two boys allegedly responsible for starting the large wildfire in the Great Smoky Mountains National Park and surrounding area. District Attorney General Jimmy Dunn stated that he had learned that the state did not have jurisdiction for matters within the park. The case has now been handed over to the U.S. Attorney’s Office.

The U.S. Department of Justice announced charges against hundreds of people across the country, including physicians, in health care fraud prosecutions. The defendants are alleged to have defrauded the government for $1.3 billion. Nearly a third of the cases involved opioids. The health care providers are alleged to have billed Medicare and Medicaid for drugs that were never purchased, collected money for false rehabilitation treatments, and given out prescriptions for cash.

Legislation

Legislation introduced in the Massachusetts House of Representatives would make it a crime to craft <href="#ixzz4ly8mwKvv">hidden compartments in cars, boats, or airplanes to conceal guns, drugs, or drug money. The bill (H 1266) is described as being an attempt to crack down on drug trafficking.

Maryland has changed its rules regarding bail. The new rule requires judges to consider a defendant’s ability to pay when setting bail and to impose the least onerous conditions when they do not pose a danger or a flight risk.

The U.S. Senate may also consider urging states to make changes in pretrial detention and bail situations. The Pretrial Integrity and Safety Act, introduced in the Senate, would provide grants to local jurisdictions to transition out of a system of using bail bonds to assure a defendant’s court appearance.

In the Courts

By a 6 – 2 vote, the U. S. Supreme Court upheld the convictions in a 30-year-old murder case. In Turner v. United States, No. 15-1503 slip op. (June 22, 2017), the Court held that an alleged Brady violation was not material and did not entitle the petitioners to a new trial. The test employed by the majority was to examine the trial record, "evaluat[e]" the withheld evidence "in the context of the entire record," and determine in light of that examination whether "there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different." The Court concluded that the withheld evidence was too little, too weak, or too distant from the main evidentiary points to meet Brady's standards.

Excluding the public from jury selection did not invalidate a conviction because the defendant was not prejudiced according to a 7 – 2 decision by the Supreme Court in Weaver v. Massachusetts, No. 16-240, slip op. (June 22, 2017). The question presented was whether a defendant asserting ineffective assistance that results in a structural error must, in addition to demonstrating deficient performance, show that he was prejudiced by counsel's ineffectiveness; or, whether prejudice is presumed in such cases, as held by four other circuits and two state high courts. The Court held that "[i]n the context of a public-trial violation during jury selection, where the error is neither preserved nor raised on direct review but is raised later via an ineffective-assistance-of-counsel claim, the defendant must demonstrate prejudice to secure a new trial. Generally, a constitutional error that did not contribute to the verdict obtained is deemed harmless, which means the defendant is not entitled to reversal. However, a structural error, which affects the framework within which the trial proceeds, defies harmless error analysis. Thus, when a structural error is objected to and then raised on direct review, the defendant is entitled to relief without any inquiry into harm."

A unanimous Supreme Court held in Packingham v. North Carolina, No. 15-1194 slip op. (June 19, 2017), that a state law barring registered sex offenders from accessing social media websites violates the First Amendment as an impermissible restriction on speech. North Carolina had made it a felony for a registered sex offender to gain access to a number of websites, including commonplace social media websites like Facebook and Twitter.

In a 5 – 4 vote, the Supreme Court held that failure of the State to provide an indigent defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively assist in evaluation, preparation, and presentation of the defense. McWilliams v. Dunn, No. 16-5294 slip op. (June 19, 2017), held that the State court’s determination that McWilliams received all the assistance to which Ake v. Oklahoma, 470 U.S. 68 (1986), entitled him was contrary to, or an unreasonable application of, clearly established federal law. The case was, thus, reversed and remanded to determine whether the error “had the ‘substantial and injurious effect of influence’ required to warrant a grant of habeas relief.

In Jenkins v. Hutton, No. 16-1116 slip op. (June 19, 2017), through a unanimous per curiam opinion, the Supreme Court summarily reversed a Sixth Circuit decision that improperly excused a procedural default and invalidated a death sentence. Respondent Percy Hutton was convicted of aggravated murder in Ohio for kidnapping and shooting two (former) friends, one of whom died.

The Supreme Judicial Court of Massachusetts has ruled that local law enforcement officials do not have the authority, under state law, to detain a person based solely on a request from federal immigration authorities. In the matter of Lunn v. Commonwealth, SJC-12276 (July 24, 2017), state court officers detained Lunn on a civil immigration detainer after criminal charges had been dismissed. The court concluded that nothing in federal or Massachusetts law permitted court officers to make a civil arrest in these circumstances.

Other News of Interest

Crime victim services in South Carolina have been centralized within the Attorney General’s Office. The consolidation took effect July 1 under a new state law forming the S.C. Crime Victim Services Division. The Division will provide financial assistance for medical and dental services if a crime victim is physically or emotionally injured, help pay for counseling and compensate for lost wages and funerals, provide an advocate to assist crime victims in navigating the criminal justice system, and provide grant opportunities for organizations that assist crime victims.

A federal judge in West Virginia refused to accept a plea arrangement in a drug case, saying the trial could reveal the ‘dark details’ of the opioid crisis. U.S. District Court Judge Joseph Goodwin’s opinion said that “the plea agreement proffered by the parties in this case was made in the context of a clear, present, and deadly heroin and opioid crisis in this community. West Virginia is ground zero.” In rejecting the plea, the judge said that the agreement was not in the public interest.

An analysis by the PEW Charitable Trusts found no relationship between drug imprisonment and drug problems. The analysis was submitted in a letter to the Commission on Combating Drug Addiction and the Opioid Crisis. It compares publicly available data from law enforcement, corrections, and health agencies from all 50 states.


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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