Monday, December 5, 2011

Fourth Amendment Folly: Have Some Federal Courts Diluted the Bare Bone Exception to the Leon Good Faith Exception?

The United States Court of Appeals for the Fourth Circuit heard oral argument on Tuesday, October 27, 2011 for a case involving Maryland teenager, Collin McKenzie-Gude. He graduated from St. John’s College High School in 2008 and planned on attending American University for his undergraduate studies. During the summer in 2008, suspicion arose when McKenzie-Gude and a witness’ nephew allegedly discussed chemicals associated with explosives at the witness’ house. The police investigated the witness’ story and discovered that an AK-47 rifle mentioned in the affidavit was registered to McKenzie-Gude’s father. Further, the police found an AK-47 in McKenzie-Gude’s bedroom after acquiring a search warrant for his parent’s home.
 However, the defense alleges that the affiant misled the Magistrate Judge by stating that McKenzie-Gude could not legally own or possess a firearm—even though some exceptions may have been applicable to the defendant’s case under state law—and there was insufficient evidence to support a nexus between the premises and the crime.

Nevertheless, McKenzie-Gude was sentenced to five years in jail on firearm possession charges and the court did not suppress evidence found in his home. One of the main issues on appeal involves applying the Leon good faith exception to warrant based activity. The Leon good faith exception limits the exclusionary rule as a remedy when an officer executes a warrant under objectively reasonable grounds. The exclusionary rule is a remedy designed to suppress evidence from trial if it was recovered due to most Fourth Amendment violations. Further, the Court fleshes out situations when the Leon exception would not cure a defective warrant, and these include lying and omitting key facts to the Magistrate Judge as well as a bare bones exception where the affidavit is clearly lacking probable cause to where no reasonable police officer can rely on it. The State argues that the good faith exception should apply even though some negligent activity may have taken place in preparing the affidavit. In contrast, the appellant argues that, given the circumstances, the officer’s reliance on the warrant was unreasonable and the good faith exception should not apply.

There could be negative implications for future law enforcement if the court rules against McKenzie-Gude. The Leon good faith exception already gives the police a lot of leeway in carrying out defective warrants; reasoning away the bare bones exception to the exception would allow an even lower suspicion standard than today. The idea of cops being able to search a house under bare bone warrants or when there is no nexus between location and crime is a scary proposition. Not suppressing this evidence would encourage affiants to write bare bone affidavits while omitting key information without corroboration. The Supreme Court wanted to deter this kind of behavior in Leon.

If the Court of Appeals denies McKenzie-Gude claims again, I would not be surprised if the Court grants certiorari on this specific issue. If anything, the Court would clarify how the Leon exception should be applied going forward in Fourth Amendment jurisprudence. This will go a long way in deciding whether preserving the good faith exception and disallowing bare bone warrants are consistent with Constitutional principles. As such, the Fourth Circuit in the coming weeks should honor precedent and suppress the evidence to preserve the barebones exception to otherwise defective warrants.

Max P. Salazar, Jr.
Line Editor, Criminal Law Brief

Image by wblj

Tuesday, November 29, 2011

Innocent v. Exonerated: A World of Difference

Haynesworth and his legal counsel
when he was released from jail
When most of us walk or drive to the grocery store, we go with the expectation that once we pick up what we need: eggs, fruit, milk, etc., we will then return home.  Returning home for most of us is likely more of a routine rather than an expectation.  On Sunday morning, February 5, 1984, eighteen-year-old Thomas Haynesworth, was on his way to the Trio Supermarket to pick up some bread and sweet potatoes for his mother.  Before reaching the supermarket, Haynesworth was stopped and questioned by law enforcement regarding a recent rape.  Haynesworth had never been arrested; however, on this day, he was mistakenly identified by a rape victim as her assailant.  He did not return home that day.

Twenty-seven years later, at age forty-six, Haynesworth was finally released from prison.  Many individuals equate being released from prison for crimes they did not commit with being exonerated.  This, however, was not the case with Haynesworth, nor is it the case with many individuals who are wrongfully convicted and serve lengthy sentences.  Despite being released, Haynesworth was still required to follow a number of strict protocol regulations, which included having to register as a sex offender.
Through the work of Haynesworth’s extraordinary team of advocates, the Mid-Atlantic Innocent Project and Hogan Lovells LLP, DNA testing revealed Haynesworth’s innocence for one of the rapes in which he was convicted.  This DNA testing also confirmed that Leon Davis, an infamous serial rapist, who was already serving seven life sentences for rapes and assaults he committed, was the actual assailant for one of the rapes where Haynesworth was convicted.

Without DNA evidence for the two remaining convictions, Haynesworth and his legal team faced an even greater uphill battle.  It became evident that the remaining two convictions matched a distinctive “modus operandi” of Davis and the many rapes for which he was imprisoned.  The Commonwealth’s Attorneys in the two jurisdictions where Haynesworth was convicted joined the fight for his innocence.  At their request, Haynesworth took and passed two polygraph examinations regarding his two remaining convictions.

At an en banc hearing on September 27, 2011, Shawn Armbrust, Executive Director of the Mid-Atlantic Innocence Project and Virginia Commonwealth Attorney, Ken Cuccinelli, among other counsel for Haynesworth, appeared before the Virginia Court of Appeals to advocate for Haynesworth’s exoneration.  Shawn Armbrust argued before the court, “[t]he Attorney General and the Commonwealth Attorneys in Richmond and Henrico counties agree that Haynesworth is innocent of these crimes.  With such unwavering support from the state, we are hopeful that we were able to convince the court today to correct this tragic miscarriage of justice.”

The Virginia Court of Appeals will make its decision on a Writ of Actual Innocence in the coming months.  If the court exonerates Haynesworth, it will be a monumental ruling, as only one other convict has been exonerated of such charges without DNA evidence.  Meanwhile, although Haynesworth is no longer incarcerated, he is living his life back in the real world where he now works in Ken Cuccinelli’s office.  Such an outcome is remarkable in our society where there is minimal help for individuals who are wrongfully convicted and begin to reenter society.  

These individuals to whom a great deal of injustice has already been thrown, are not entitled to social services, job training, or any type of psychological counseling, all of which ex-convicts are not only entitled to, but also required to participate in.  Many individuals who have been exonerated face difficulties securing jobs because their criminal records have not been expunged.  Also, due to their lack of skills with much advancement in today’s technology, many employers are reluctant to hire someone who is unfamiliar with how to use a computer.  The Life After Exoneration Project is the only national organization dedicated to helping those who are wrongfully convicted rebuild their lives outside of prison.         
Megan Petry
Staffer, Criminal Law Brief

To find more information on the Mid-Atlantic Innocent Project and the Life After Exoneration Project, you can visit: and, respectively.

Image by Mid-Atlantic Innocence Project

Monday, November 21, 2011

New Sentencing Measures Make for a Positive First Step to Correcting Cocaine Conviction Disparities and Prison Overcrowding

The nation's prison systems are in drastic need of reform. Many prisons have swelled well beyond capacity, which places a heavy burden on the inmates, prison officials, and the general public alike. Part of this problem is due to the harsh consequences that stem from crack cocaine convictions under the Anti-Drug Abuse Act of 1986 (the “Act”). The Act was a sweeping piece of legislation that was pushed as a part of the “War on Drugs,” and completely reshaped drug enforcement policy in the United States. One principal component of the Act was that it prescribed minimum sentences for certain types of first time drug offenses.

Under the Anti-Drug Abuse Act, an individual convicted of possessing five grams of crack cocaine faced a five-year mandatory minimum sentence; conversely, an individual must be convicted of possessing 500 grams of powder cocaine to get the same sentence. An individual caught possessing only ten grams of crack cocaine was looking at a ten-year mandatory minimum sentence.

Since the Act’s inception, people have criticized it for having a disproportionate negative impact on African-Americans. Crack cocaine tends to be cheaper to purchase and generally more accessible to African-Americans. On the other hand, users of powder cocaine are usually affluent Caucasians. In addition, the Act mandates five-year sentences for individuals possessing small amounts of crack cocaine. Since African-Americans are more likely to possess crack cocaine, they were also more likely to face imprisonment for carrying small quantities of crack cocaine. This second rationale is also a principal reason why prison populations have soared.

Prison overcrowding has become an increasing financial burden on states, and it has magnified in importance because the current economy has forced states to make sizeable budget cuts. According to estimates by the Bureau of Prisons, at the end of 2009, nearly 2,292,133 adults, or roughly one percent of the total United States population, were incarcerated in federal or state prisons and jails. Maintaining overcrowded prisons requires considerable state and federal government resources. The daily cost per inmate in 2009 was about $74.66, and this amount continues to grow. Based on these numbers, in 2009, the amount of money spent providing for an inmate was over $171 million alone. This amount does not even include other expenditures such as wages for correctional officers, and prison maintenance.

In August 2010, President Obama signed the Fair Sentencing Act into law. This Act is designed to alleviate the problem of prison overcrowding as well as reduce the disparity in crack and powder cocaine sentence lengths. Specifically, the Fair Sentencing Act terminates a mandatory sentence for simple crack cocaine possession. An individual must now be convicted of possessing at least 28 grams of crack cocaine in order to face a five-year mandatory minimum sentence. Furthermore, an individual faces a ten-year mandatory minimum sentence only if convicted of possessing at least 280 grams of crack cocaine. Punishment for possession of powder cocaine is left undisturbed, and all of these changes apply to future convictions. These new penalties will surely not have such a disproportionate negative effect on African-Americans.

In April 2011, the Federal Sentencing Commission took the Act one step further and applied the provisions retroactively to individuals already incarcerated for crack cocaine offenses. Thousands of inmates are likely to be released throughout the next few years according to guidelines that ensure maximum public safety. This is undoubtedly a step in the right direction to rectify the problem of prison overcrowding.

There is still a long ways to go to correct the problem of prison overcrowding; however, the Fair Sentencing Act and the Federal Sentencing Commission's decision make for a positive first step. Let us hope that the momentum continues and the criminal justice system is overhauled to focus on more than just incarceration.

Ryan Weir
Staffer, Criminal Law Brief

Image by Marco Gomes

Thursday, November 17, 2011

Penn State Scandal: Why is the legend of a football coach the heartbreak?

With the recent Penn State scandal, Joe Paterno and his position as head coach has been called the heartbreak because of the legend he created. Some have chosen to focus more on how it was devastating to see Paterno fired than the acts committed by Jerry Sandusky and the failure to report it by Paterno. Outraged by Paterno’s dismissal, Penn State students rioted the streets. A Penn State student stated, “Joe’s leaving is the biggest heartbreak to PSU,” while another insisted, “Paterno should at least be able to finish out the season.” – The News Record.

Those students are somewhat near sighted. The heartbreak is not the sanction but the act that justifies that sanction. The fact that Paterno is such a celebrity should not exempt him from a well deserved sanction. Far from it: his celebrity conferred him with a heightened duty to the public as the role model figure he incarnated.

The Penn State board of trustees fired Paterno and Penn State President, Graham Spanier. Paterno wanted to wait until the end of the football season to retire as head football coach. It is a selfish move—to say the least—to want to continue his professional career when he could not fulfill one of his important and basic duties as Penn State faculty, as a mandated reporter. Moreover it reveals the state of mind of one who does not even understand the gravity of his act.

Sandusky was an assistant coach for Penn State but now is charged in a 40-count indictment with sexually assaulting eight young boys. In 2002, Mike McQueary, a graduate assistant, told Paterno that he had witnessed Sandusky raping a boy in the Penn State locker room shower. Paterno told Tim Curley, Penn State Athletic Director, that McQuery had seen Sandusky, “fondling or doing something of a sexual nature.” No further actions were taken to report it to law enforcement.

CNN reports that Sandusky’s abuses of the young boys date back to 1994 through 2009. The first incident was reported to campus police by a victim’s mother and nothing more was done to investigate the case. Sandusky even abruptly retired at the peak of his career in 1999, except it seems to be a skeptical move by the university. Sandusky reported that he wanted to spend more time with his charity, The Second Mile. This alleged assault should have been reported and investigated. It seems like the cynical agenda of the university was to protect itself from a scandal for the strength of reputation and alumni donations. Though one could argue that Paterno chose to remain silent to protect the victim, one would have greater difficulties explaining why Sandusky was given access for 15 years to the facilities and to his young victims when Paterno and Spanier were aware (or to the least had great suspicions of what he was up to).

Today, students are defending what no one could defend in good conscience. As previously stated they blame the sanction and not the act. This confusion results in another fatal misperception of reality: confusing the perpetrators with the victims. Yes, Paterno may have had a great professional career but it needs to be set aside in regards to the crimes he is charged with. The students at Penn State do not have their moral compass straight if they can actually believe that Paterno being fired is the biggest heartbreak when there are eight men out there saying they were abused for years by Sandusky.

Monica Trigoso
Editor-in-Chief, Criminal Law Brief

Monday, November 14, 2011

NYPD Misconduct and the Effects on the Bronx Criminal Justice System

The Wall Street Journal reported that in 2010 the conviction rate in Bronx, New York, was a mere 48%. This statistic pales in comparison to the other New York boroughs, such as Queens, Brooklyn, and Manhattan that have at least a 70% conviction rate. Some attribute this low percentage to the high arrest rates in the Bronx. Anthony Schepis, an executive assistant district attorney for Bronx County attempts to defend the efforts of him and his fellow prosecutors by stating that the conviction rate is near 90% when plea bargains are factored in. Conversely, defense attorneys argue that it is difficult to overlook the high tensions between the police and the Bronx community. Some defense attorneys even factor this brittle relationship in their closing arguments, asserting that the police cannot be trusted. Academics have referred to this phenomenon, as “The Bronx Jury” or the “The Bronx Effect.” The glaring mistrust of the police is a real driving factor behind this high acquittal rate.

Bronx community members harbor ill feelings towards police officers due to their own personal experiences with police misconduct or harassment, and the effects that the laws have had on prevalent racial minorities in the Bronx. Tensions will continue to rise with the indictment of sixteen police officers that were allegedly involved in a ticket-fixing scandal. The sixteen police officers were indicted on Friday, October 28, 2011. This crime involves making ticket summonses “disappear” for friends, relatives, and others that have some sort of connection with the police. This “courtesy” has even been extended to Yankee Stadium Director of Operations, Douglas Behar, by Joseph Anthony, one of the sixteen officers indicted. After a three-year investigation by both the Bronx District Attorney’s (DA) Office and the Internal Affairs Bureau (IAB) of the New York Police Department (NYPD), the police officers involved are finally being brought to justice. The New York Times states that, “The ticket fixing scandal is another stain on the departments’ reputation. Not only does it further undermine public trust, but it could jeopardize hundreds of cases in which the accused officers are crucial witnesses.”

The future effects that this scandal may produce are daunting. The Wall Street Journal reported that criminal defense attorneys intend on challenging NYPD officers’ credibility, based on those who are being investigated for ticket fixing, when they testify in unrelated cases. The effects may even be more far reaching to officers that have not been investigated, but that are associated with the scandal by merely being an employee under the NYPD shield. On Friday, October 28th, fellow NYPD police officers gathered outside of the courthouse and flooded the halls of the courthouse during the arraignment of the sixteen police officers, protesting that ticket fixing is a courtesy and not a crime. At the indictment proceedings, around 1,500 to 1,600 criminal counts were presented, indicating the breadth of this scandal. Counts not only included ticket fixing, but included crimes ranging from grand larceny to conspiracy to commit official police misconduct. Can the NYPD be trusted?

The reverberations from this scandal will inevitably cut even more deeply into the already fragmented trust of many New Yorkers towards police officers. Further, this distrust will potentially undercut the dismal conviction rates in the Bronx. The police officers’ testimony, and therefore credibility and is the linchpin in securing a guilty verdict.

Veronica Yu,
Line Editor, Criminal Law Brief

Images by Rollingrck and David Jones

Monday, November 7, 2011

Banning Ex-Cons from Jobs: Acceptable Employment Practice or Civil Rights Violation?

More than 90% of all employers conduct criminal background checks on applicants as reported in Michigan Law Journal. While the law does not prohibit an employer from inquiring about or even requiring information on convictions, the way this information is used can still be illegal. Many believe that applicants who have criminal convictions cannot be hired for jobs. This is entirely false. In most cases an outright ban of applicants with criminal convictions will not be upheld in court. An employer cannot use a conviction to bar someone from employment unless the conviction is for a crime that is directly related to the position’s duties. For example, a financial institution may bar individuals with embezzlement convictions from employment. However, they would not be able to justify barring individuals with marijuana possession convictions because it is not directly related to the duties of the position.

While this is not a new issue, as employers have been looking at criminal records for years, it has recently come into the spotlight. The Obama Administration, as part of its Federal Interagency Reentry Council, has made it a goal to end employment discrimination against those with criminal backgrounds who are attempting to reenter society. Also, this past July, the Equal Employment Opportunity Commission (EEOC) held a hearing addressing the issue, considering whether it should re-write its guidelines on employer’s use of criminal records.

Proponents of restricting people with convictions from being hired for jobs argue that what it does is promote safe work safe environments. Everyone wants to work in a safe environment. So what is the problem with prohibiting the employment of people with convictions who may commit more crimes? There are multiple reasons why this practice is problematic. One is that in this tight job market, it is already difficult enough to find jobs, and policies should not create additional barriers to employment. Another reason is that if a criminal conviction occurred many years or even decades ago, it is not a likely determinative of future criminal conduct. Third, is that the detrimental effect on society can be substantial. In the United States 25% of the population has a criminal record. This is a large portion of the population to potentially ban from employment. These people will have trouble earning an income and will likely become public charges since they have no way to support themselves.

However, most importantly, banning the employment of people with criminal convictions violates civil rights. The Department of Labor and other organizations have observed both disparate treatment and disparate impact when investigating this practice. In instances where disparate treatment has been found, employers would ask all applicants whether they have a criminal conviction, however would routinely hire white ex-convicts but not black ex-convicts. This is a violation of civil rights protections because two groups are being treated differently based on what appears to be their race. The other civil rights violation is the creation of disparate impact. The percentage of minority populations that are convicted of crimes is much higher than the percentage of whites. Therefore, if an employer is not accepting applications from individuals that have a criminal conviction, it is more likely they will be eliminating minority applicants.

As our nation works together to come out of this recession, we should make sure that our laws and policies are facilitating growth; especially for citizens who are already struggling. We should not support the restriction of opportunities and violation civil rights.

Bethany J. Peak
Staffer, Criminal Law Brief

Image by Keith Allison

Monday, October 24, 2011

Domestic Violence Not A Crime?

A district attorney in Shawnee County, Kansas was forced to not prosecute any domestic violence misdemeanors and only focus on felonies. County leaders urged that the district attorney was using battered women as a means to negotiate for increased funding for his office. The City Council voted 7 to 3 to repeal a local law which made domestic violence a crime.

Since September, eighteen people were arrested for domestic violence charges but were released as a result of the agency’s decision to not prosecute new cases. So what does this mean for victims and advocates? It means that in all the budget cuts considered by the City Council, local lawmakers found domestic violence at the bottom of their priorities.

During a month in which we should recognize and bring awareness of domestic violence, it seems as if funding is insufficient to even recognize domestic violence as a crime in Kansas. Victims of domestic violence must feel unprotected and unrecognized as the city is failing to protect them. We would at least hope that if any of the would-be misdemeanors could be charged as felonies they would be. Unfortunately, given the city’s budget cuts and resistance to charge people of domestic violence, more felony prosecutions seem an unlikely result.

While the Mayor of Los Angeles, Antonio Villaraigosa, was commemorating Domestic Violence Awareness Month during October and informing his city about the domestic violence awareness initiative, Stop Abuse From Existing (S.A.F.E.), another city half-way across the nation seems to have excluded the recognition, impact, and significance of domestic violence all together. How can we reconcile these two extremes into a single American legal system? While it seems budget cuts are to blame, we wonder why there even is a hierarchy of crimes. Is violence against partners through battery, assault, and other means really at the bottom of the list, but more importantly, why is there a list?

District Attorney of Topeka, Kansas, Chad Taylor, argued that it was a “recent uptick in violent crime” which he attributed to increased gang activity. Mr. Taylor may have felt pressured to make this decision, but throughout the country prosecutors need to make decisions and prioritize cases. It is unfortunate and shocking that this city found domestic violence at the bottom of the hierarchy when other items on the budget seem as if they could have been given less of a priority, while other cities continue to raise awareness and expand initiatives to curb the spread of domestic violence.

Monica Trigoso
Editor-in-Chief, Criminal Law Brief

Wednesday, October 5, 2011


Welcome to the Washington College of Law Criminal Law Brief Blog! We are excited to start a new blog to communicate and discuss current criminal law news events, and debates. We hope this will be a great opportunity for our Staff to get writing experience as well as communicate criminal law issues we are interested in. 

The Criminal Law Brief was created in 2005 and is a journal dedicated to the complex and constantly evolving world of criminal justice system. Our audience includes judges, practicing attorneys,  students with a strong interest in criminal law, and professors of varied criminal law disciplines. We are dedicated to an open and balanced dialogue on all aspects of criminal law representing possible perspectives. The Brief is distributed to federal, state, and local government agencies, courts, law firms, and law schools throughout the country. 

We will have our Executive Board, Line Editors, and Staffers, posting blogs on related issues. We encourage each of our followers to reply to posts to promote healthy debates and discussions on current issues. If you would like to be a guest blogger please email As we begin on our new adventure we encourage and appreciate questions and comments from you.

We also encourage you to subscribe to the Criminal Law Brief to receive your two free annual issues. Please email to be added to our mailing list.

Warm regards,

Monica Trigoso
Editor-in-Chief, Criminal Law Brief