Strange Doctrines

The FPD's TGIF Roundup

Administrative Note: The next edition of the Roundup will post on Monday, January 30.

(Cross-posted from the C.D. Cal. Federal Public Defender blog.)

In This Edition (to use bookmarks, first click blog post title):

News to Use | New Rules | Top of the Ninth | SCOTUS Focus | The Week in Sausage Making | For the Bookworms

The FPD's TGIF-ish Roundup

(Cross-posted from the C.D. Cal. Federal Public Defender blog.)

In This Edition (to use bookmarks, first click blog post title):

News to Use | Top of the Ninth | SCOTUS Focus | Short Circuits | For the Bookworms

New Developments on the Sex Offender Front. Karen Franklin has a mini-roundup of those developments here. Topics include problems with the Static-99, lax evaluators, the neuroscience of sex offending, and an amicus brief in a challenged to Jessica's Law.

Well That Takes the Cake. And we mean that literally. 

Top of the Ninth - 9th Cir. decisions released during the week
· U.S. v. Lopez-Avila (government's misleading partial quotation of defendant's prior testimony required mistrial) (though retrial won't violate double jeopardy - prosecutor's move wasn't to "goad" defense into moving for mistrial but merely to "win at all costs" - district court may consider dismissal as sanction for misconduct (on defendant's motion), or discipline prosecutor directly).
· U.S. v. Alcala-Sanchez (vacating and remanding to new judge, finding government clearly breached plea where it promised to recommend level-12 with a 33-month cap but then submitted sentencing chart recommending level-20 and 70 months; the error required was not cured by government's admission of mistake before sentencing). Ninth Circuit Blog's analysis here.
· U.S. v. Morales (memorandum) (reassigning case where district judge had "expressed strongly-held opinions about the credibility of various defense theories").

SCOTUS Focus 
Opinions:
· Minneci v. Pollard (prisoner's rights) (Bivens remedy can't be implied where state tort law authorizes adequate alternative damages).
· Smith v. Cain (habeas) (county prosecutor violated Brady by withholding evidence that sole eyewitness made statements that he could not identify any perpetrator, which required reversal).
· Gonzalez v. Thaler (habeas) (court of appeals may have jurisdiction to hear habeas appeal even if district judge failed to indicate constitutional issue in certificate of appealability as required by 28 U.S.C. §2553(c)(3)) (when state prisoner does not seek direct review in state's highest court, judgment becomes "final" under §2244(d)(1)(A) on date opportunity to seek that review expired).
· Perry v. New Hampshire (habeas) (due process does not require reliability inquiry into eyewitness identification that wasn't procured under unnecessarily suggestive circumstances arranged by law enforcement).
Grants of Certiorari:
· Cavazos v. Williams (whether state adjudicated petitioner's claim "on the merits" within §2254(d) when it denied relief in an explained decision but without acknowledging federal basis of claim).
Other Orders:
· Cash v. Maxwell (denying cert. requested by California challenging Ninth Circuit decision holding state court was unreasonable to conclude petitioner had not shown serially-fabricating snitch had lied in petitioner's case) (significant back and forth in statements on AEDPA and discretionary review by JJ. Sotomayor and Scalia).
Oral Arguments:
· FCC v. Fox Television (vagueness of FCC's indecency enforcement regime).

Short Circuits
· U.S. v. Collins (2d Cir.) (in "highly complex fraud case," district court's ex parte, mid-deliberations discussion with juror regarding "odd behavior" required new trial).
· U.S. v. Spriggs (11th Cir.) (mere use of file-sharing program does not support five-level enhancement under §2G2.2(b)(3)(B), which requires exchange for "valuable consideration") (creating circuit split).
· Moore v. Ryan (D.Ariz.) (granting habeas for IAC based on lawyer's grossly inaccurate advice about potential sentence, reviewing IAC claim de novo because state fact-finding procedures were deficient).
· U.S. v. Ware (E.D. Pa.) (granting post-FSA §3592(c) reduction, holding that statutory term "based on" trumps application note limiting relief to range "determined before consideration of any departure provision ... or variance").
· People v. Pearson (Cal.) (vacating death sentence where trial court erroneously struck juror for her assertedly "equivocal views" about death penalty).

For the Bookworms - New books and scholarly articles of note
· "Arrests for Child Pornography Production: Data at Two Time Points from a National Sample of U.S. Law Enforcement Agencies," Janis Wolak et al., 16 Child Maltreatment 184 (2011) (pdf) (nationwide study of arrest data provide little or no evidence that production is on the rise or that depictions are trending toward younger victims or greater violence, and suggest that many CP producers create images for own use rather than for distribution).
· "Evaluation of Multiple Transfer of DNA Using Mock Case Scenarios," 14-1 Legal Medicine 40 (2012) (abstract) (discussed in New Scientist article here).
·"Capital Punishment in Connecticut, 1973-2007: A Comprehensive Evaluation from 4686 Murders to One Execution," John J. Donahue, working paper (2011) (pdf) (argues that the state's death penalty system is arbitrary and discriminatory; write-up in New York Times here).
· Sex Panic and the Punitive State, Roger N. Lancaster (2011) (Amazon) (tracks the rise of a modern suburban culture of fear and its relation to the carceral state).

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Suggestions or corrections? Email Michael_Drake@fd.org.

 

The FPD's TGIF-ish Roundup

(Cross-posted from the C.D. Cal. Federal Public Defender blog.

In This Edition (to use bookmarks, first click blog post title):

News to Use | Top of the Ninth | SCOTUS Focus | Short Circuits | The Week in Sausage Making | For the Bookworms

The FPD's TGIF Roundup

(Cross-posted from the C.D. Cal. Federal Public Defender blog.)

In This Edition (to use bookmarks, first click blog post title):

News to Use | Top of the Ninth | Short Circuits | The Week in Sausage Making | For the Bookworms

The FPD's TGIF DTKIC Roundup

(Cross-posted from the C.D. Cal. Federal Public Defender blog.)

In This Edition (to use bookmarks, first click blog post title):

News to Use  | Top of the Ninth  | Short Circuits | The Week in Sausage Making | For the Bookworms

Self Promotion Blogging

Have you heard my band Crossroad County? We're incredible. That so, you should like, add, friend, follow, favorite, or otherwise check us out on facebook, myspace, or twitter.

Then tell two friends to do the same.

The FPD's TGIF Roundup

(Cross-posted from the C.D. Cal. Federal Public Defender blog.)

In This Edition (to use bookmarks, first click blog post title):

News to Use | Top of the Ninth | SCOTUS Focus | Short Circuits | And the Nominees Are | The Week in Sausage Making | For the Bookworms

The FPD's TGIF Roundup

(Cross-posted from the C.D. Cal. Federal Public Defender blog.)

In This Edition:

News to Use | Top of the Ninth | SCOTUS Focus | Short Circuits |  The Week in Sausage Making | For the Bookworms

The FPD's TGIF Roundup, Post-Thanksgiving-Nonblogging Catching-Up Edition

(Cross-posted from the C.D. Cal. Federal Public Defender blog.)

In This Edition (to use bookmarks, first click blog post title):
News to Use
New Rules
Top of the Ninth
SCOTUS Focus
Short Circuits
The Week in Sausage Making
For the Bookworms
____________

The FPD's TGIF Roundup

(Cross-posted from the C.D. Cal. Federal Public Defender blog. Administrative note: No Roundup next week due to the Thanksgiving holiday.)

In This Edition (to use bookmarks, first click blog post title):
News to Use
New Rules
Top of the Ninth
SCOTUS Focus
Short Circuits
The Week in Sausage Making
And the Nominees Are
For the Bookworms
____________

The FPD's TGIF TTIT Roundup

(Cross-posted from the C.D. Cal. Federal Public Defender blog.)

In This Edition (to use bookmarks, first click blog post title):
News to Use
Top of the Ninth
SCOTUS Focus
Short Circuits
The Week in Sausage Making
For the Bookworms
____________

The FPD's TGIF Roundup

(Cross-posted from the C.D. Cal. Federal Public Defender blog.

In This Edition (to use bookmarks, first click blog post title):
News to Use
Top of the Ninth
SCOTUS Focus
Short Circuits
The Week in Sausage Making
And the Nominees Are...
For the Bookworms
____________

USSC Reports. The Sentencing Commission has released a new report "assess[ing] the impact of mandatory minimum penalties on federal sentencing." Among many of the highlights, the report notes that 77 percent of all MMs are for drug convictions, yet also points out that drug quantity "is not closely related to the offender's function in the offense."

The Commission also released this compilation of departure provisions, using italic/bold formatting to distinguish the upward from the downward. (Pop quiz: which type of departure appears more often?)

Lethal Injection Unlikely in California Before 2013. The Associated Press reports that "[t]he moratorium on California's death penalty will likely extend into 2013," with government lawyers agreeing to resume litigation no earlier than September of 2012.

Psychopathy and Sexual Recidivism. There's no predicting the one from the other, according to a new study that Karen Franklin limns this week at her blog.

Google Declines Law Enforcment Request to Pull Police Brutality Video. Story at the Huffington Post.

#DHS. "DHS to set up policies for monitoring Twitter, Facebook," reports IT Government. 

Top of the Ninth - 9th Cir. decisions released during the week.
· U.S. v. Sanchez (reversing convictions for importation and possession, where prosecution argued on rebuttal that duress defense would "send a memo" to other criminals to use same defense, which was plain error that invited jury to base verdict on social ramifications). UPDATE (11.10.11): Ninth Circuit Blog's analysis here.
· U.S. v. Harvey (Controlled Substances Act prohibits medical practitioners from prescribing or ordering Schedule I drugs like marijuana; "recommendation" from physician under California's Compassionate Use Act is not an order).
· U.S. v. Caruto (order denying reh'g, amending to leave undecided whether district court abused its discretion in refusing to disclose grand jury voir dire transcripts and instructional video).

SCOTUS Focus.
Orders:
· Cavazos v. Smith (re: GVR of Ninth's decision in "shaken baby" case, which had held that jury verdict was irrational and that state court' contrary ruling was unreasonable).
Oral Arguments:
· Missouri v. Frye (re:IAC after valid plea).
· Lafler v. Cooper (re:IAC for advice that caused defendant to reject plea and go to trial).
· Rehberg v. Paulk (re:absolute immunity in §1983 action against government official who presented perjured testimony against innocent citizen).
· Minneci v. Pollard (re:implied Bivens action against private prison employee).
· Perry v. New Hampshire (re:suggestive identifications not orchestrated by police violative of due process).
· Gonzalez v. Thaler (re:point at which state review is concluded under AEDPA).

Short Circuits, Solid States, and other persuasive authority.
· U.S. v. Rivera (2d Cir.) (applicable guideline range for reduction under §3582 and 2007 crack amendment was that resulting from three-level departure downward from career offender guideline under §5H1.3) (noting that "lenity play[s] a role ... where there is doubt about [the guidelines'] scope").
· U.S. v. Banki (2d Cir.) (reversing convictions for violations of Iranian Transaction Restrictions, where district court failed to instruct jury that family remittances were exempt) (vacating convictions related to operating unlicensed money transmitting business (MTB), where district court instructed jury that hawalas are MTBs, and failed to instruct jury that business had to be an "enterprise" and not a single transaction).
· U.S. v. Donnell (4th Cir.) (statement of probable cause used during state plea hearing was not Shepard-approved document).
· U.S. v. Perez (4th Cir.) (district court failed to make findings that would clearly establish all elements of perjury as required for proper application of guidelines obstruction enhancement).
· U.S. v. Carrillo (5th Cir.) (in methamphetamine possession-with-intent case, government notice of defendant's "repeated distribution" did not encompass evidence of defendant's smoking meth two years earlier, and such evidence was not intrinsic to the offense; but the erroneous admission was harmless). 
· U.S. v. Dominguez (11th Cir.) (evidence was insufficient to sustain convictions for transporting and harboring alien baseball players, who during their stay in U.S. "lived freely, openly, and in no way ... suggest[ed] they were avoiding immigration officials").
· U.S. v. Edwards (E.D. Wisc.) (officers' delay in entry belied claim of exigent circumstances).

The Week in Sausage Making. Measures introduced include H.R. 3305 (would establish opportunity for parole or similar release for child offenders sentenced to life in prison); H.R. 3363 (version of Senate bill introduced last fortnight joins the battle against maple syrup fraud); S. 1763 (to decrease violence against Indian women); S. 1792 (would clarify authority of U.S. Marshals to assist federal, state and local investigation of sex offenses and missing children); S. 1793 (same with respect to DOJ and investigations into serious violent crimes).

And the Nominees Are... Arizona Supreme Court Justice Andrew Hurwitz has been nominated to fill Ninth Circuit??? Judge? Mary? Schroeder's seat when she transfers to senior status.?

For the Bookworms - New books and scholarly articles of note.
· "Homicide Defendants with Intellectual Disabilities: Issues in Diagnosis in Capital Cases," Stephen Greenspan, 19-4 Exceptionality 219 (2011) (abstract) (argues for the need to expand the scope of intellectual disabilities within Atkins so that legal protections for impaired defendants so that focus is on actual social vulnerability rather than on indirect statistical criteria).
· "Writings on the Wall: The Need for an Authorship-Centric Approach to the Authentication of Social-Networking Evidence," Ira P. Robbins, Minn. J.L. Sci. & Tech. ___ (2011) (SSRN) (argues within the existing rules that the authentication focus should shift from account ownership to content authorship).
· "Security vs. Liberty: On Emotions and Cognition," Oren Gross, from The Long Decade: How 9/11 Has Changed the Law, Oxford U. Press (2012) (SSRN) (critiques the "trade-off" model of policy-making as rational choice along the security-liberty frontier, arguing instead that exigent pressures coupled with crisis mentality result in a systemic, irrational undervaluation of liberty for security).
· "Temporary Insanity: The Strange Life and Times of the Perfect Defense," Russell D. Covey, 91 B.U. L. Rev. ___ (2011) (SSRN) (argues that TI ?should be viewed as an equitable doctrine that provides relief where the traditional rules are inadequate, cases consistent with the deep purposes of criminal law).
· "Culpable Aggression: The Basis for Moral Liability to Defensive Killing," Kimberly Kessler Ferzan, Ohio St. J. Crim. L. (forthcoming) (SSRN) (sketches a culpability account of self-defense, in contrast to prominent rights-based and moral-responsibility accounts).
· "Fourth Amendment Future: Remote Computer Searches and the Use of Virtual Force," Susan W. Brenner, 81-1 Miss. L.J. ___ (2011) (SSRN) (examines Fourth Amendment implications of anticipated use by law enforcement of Trojan horse programs and denial-of-service attacks to shut down or otherwise disable offending websites).
· Don't Shoot: One Man, A Street Fellowship, and the End of Violence in Inner-City America, David M. Kennedy, Bloomsbury USA (2011) (Amazon) (discusses author's strategies for combatting violent crime through building community trust in law and officials).

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Suggestions or corrections? Email Michael_Drake@fd.org.

 

The FPD's TGIF Roundup

(Cross-posted from the C.D. Cal. Federal Public Defender blog.)

In This Edition (to use bookmarks, first click blog post title):
News to Use
Top of the Ninth
Short Circuits
The Week in Sausage Making
For the Bookworms
____________

The FPD's TGIF Roundup

(Cross-posted from the C.D. Cal. Federal Public Defender blog.)

In This Edition (to use bookmarks, first click blog post title):
News to Use
Top of the Ninth
SCOTUS Focus
Short Circuits
The Week in Sausage Making
And the Nominees Are
For the Bookworms
____________

Hobgoblin Blogging

In this NPR piece on Justice Thomas' 20 years on the Supreme Court (flagged in my last Roundup), Eugene Volokh praises Thomas as being "somebody who has articulated the sharpest and clearest originalist vision of anybody on the court."*

But you know, articulating a "sharp" and "clear" vision of originalism is a really easy thing to do: simply eschew any engagement with any intervening policy developments, social mores, institutional structures, or knowledge.** No need to wrestle with any of that. The document means what it meant in 1789. That's it. End of story.

Compare the case of Kurt Wise, a Harvard Ph.D. in geology, who has articulated as "sharp" and "clear" a biblical literalism as you might want. Like Thomas with his Constitution, Wise is quite lucid about what he thinks the founding document of Christianity means. His views are well-researched, scientifically literate, intellectually honest, internally consistent—and utterly insane. We'd all dismiss such foolish consistency out of hand.

Er, wouldn't we?

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*Volokh's praise is ideologically neutral—he compares Thomas in this respect to Brandeis and Marshall.

**Except for knowledge of those recalictrant lines of cases that need overruling, say; or new historical knowledge about what people in 1789 thought certain words meant.

The FPD's TGIF Roundup

(Cross-posted from the C.D. Cal. Federal Public Defender blog.)

In This Edition (to use bookmarks, first click blog post title):
News to Use
Top of the Ninth
SCOTUS Focus
Short Circuits
The Week in Sausage Making
For the Bookworms
____________

"Thusly," Saith the Horde

Folks: the word 'thus' is already an adverb. 

That is all.

Like Napoleon. Only Nice. And a Bit Taller.

Parents, especially new parents, are always going on about how beautiful their baby is, how happy they are, etc., etc. All of which can be annoying, and which means nothing, anyway: we know they'd say that sort of thing no matter what their children were actually like.

As a new parent, then, I'm a bit perplexed about how to respond to queries about our baby boy. If I say he's beautiful (which of course he is), how happy we are (which of course we are), etc., etc. (etc., etc.), then people will not only (appropriately) discount my claims, they'll also think I'm your typical, annoying parent blinded by the love of his (almost certainly mediocre) child, and why can't I just get over it and not blithely channel my parental biases in public, eh?

On the other hand, if I give responses that are more reserved ("He's very healthy and presents appropriate feeding and sleeping behaviors; on balance, we consider ourselves to be pretty lucky"), then the standard Gricean discounting means that people will think the boy must look like the Elephant Man or something. (Not that there's anything wrong with that...).

On balance, then, I think the most circumspect approach is simply to say that our boy may well be the greatest human being ever to have been born.

The Dogs of Love

So I'm out walking the dogs when a voice emanates from one of the houses along the northern-most segment of N. Las Palmas Ave.: "F**k. C**t. Doggy of luuuuuv" (that's "love" with a long peaking tone).

Then again, as if for emphasis: "F**k. C**t. Doggy of luuuuuv."

As you might imagine, this curious proclamation left me with many questions. For one thing, what letters were the asterisks supposed to represent?

The FPD's TGIF Roundup

Administrative Note: I'll be on leave from the Roundup until October 14.

(Cross-posted from the C.D. Cal. Federal Public Defender blog.)

In This Edition (to use bookmarks, first click blog post title):
News to Use
New Rules
Top of the Ninth
SCOTUS Focus
Short Circuits
For the Bookworms
____________