For the week of May 24, 2010 (cross-posted from the Central District Federal Public Defender blog).
It's a Gender Thing. From Science Daily, "[a] study of 300 simulated court cases shows that experienced judges, lay assessors, prosecutors, police officers, and lawyers . . . convict defendants differently depending on whether they are men . . . and what [they] look like." The study is part of an unpublished dissertation. See related item ("Innocence Is Next to Comeliness") in last week's Roundup.
And Then There Were None. "Careful review" of the files of six convicts in the federal system cited in last week's Graham v. Florida as serving LWOP for nonhomicide offenses committed before the age of 18 has revealed that, well, not so much.
We Get Mail... These days, seems complaining to a congressman via email can get you arrested.
FAMM Has Got a Brand New Blog. It's all about sentencing, and it's here.
The Week in Sausage Making. Measures introduced include H.R. 5397 (reform and reduce fraud and abuse in visa programs for aliens working temporarily in United States); H.R. 5408 (change mental element for certain identify theft offenses).
Top of the Ninth - 9th Cir. decisions released during the week.
U.S. v. Orozco-Acosta (in
§ 1326 prosecution, introduction of certificate of nonexistence of
record without opportunity to cross the preparer violated Sixth
Amendment, but was harmless) (admission of warrant of removal did not
violate Sixth Amendment).
Ponce v. Felker (habeas) (rule of Giles narrowing "forfeiture by wrongdoing" exception was new rule that did not apply retroactively).
Lunberry v. Hornbeak (habeas) (state trial court's preclusion of alternative suspect's confession required reversal of conviction under Chambers v. Mississippi).
Taylor v. Sisto
(habeas) (state court's "unqualified directive" to each juror to
disregard life experience in courtroom violated Sixth Amendment).
U.S. v. Blinkinsop
(finding low-end guideline sentencing reasonable under the
circumstances, remanding on supervised release conditions, vacating
conditions barring use of computer and contact with children).
SCOTUS Focus.
U.S. v. Marcus (Second Circuit's plain error standard for review for ex post facto violation was inconsistent with Fed. R. Crim. P. 52(b)).
U.S. v. O'Brien (for purposes of § 924(c)(1)(B)(ii), fact that firearm was a machine gun is an element to be proved beyond reasonable doubt).
Jefferson v. Upton
(habeas) (reversing court of appeals for failure to check presumptive
correctness of state court fact-finding against eight exceptions
enumerated in 28 U.S.C. §§ 2254(d)).
Skinner v. Switzer (granting cert.) (habeas) (whether § 1983 entitles convicted prisoner to biological evidence for DNA testing).
Short Circuits - other persuasive authority.
U.S. v. Lewis (4th Cir.) (Ex Post Facto Clause limits application of advisory guidelines).
Gagne v. Booker (6th Cir.) (habeas) (application of Michigan rape shield law violated due process).
Hooks v. Workman (10th Cir.) (habeas) (mid-deliberation Allen
charge in context coerced jury into returning death sentences,
requiring reversal; state court's decision to the contrary was
unreasonable).
Thomas v. Allen
(11th Cir.) (habeas) (Atkins v. Virginia announced a new constitutional
rule retroactive to cases on collateral review and therefore could not
be defaulted under state procedural rules).
For the Bookworms - New books and scholarly articles of note.
"Why the Prior Conviction Sentencing Enhancements in Illegal Re-Entry Cases Are Unjust and Unjustified (and Unreasonable Too)," Doug Keller, 51 B.C. L. Rev. 719 (2010) (pdf) (handy mini-treatise on deconstructing § 2L1.2 from all the angles).
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Suggestions or corrections? Email Michael_Drake@fd.org.
