The FPD's TGIF Roundup

For the week of June 7, 2010 (cross-posted from the Central District Federal Public Defender blog).

District Judges Speak out about the Guidelines. The Sentencing Commission has published the results of a survey of district judges "concerning their views and opinions on a wide range of sentencing policy issues." Those issues include mandatory minimums, safety valve, current guideline ranges, the relevance of certain offender characteristics, the linkage between guidelines and statutory minimums, and more.

It Was Really Only "Double" Jeopardy the Second Time. Curtis Flowers is now being tried on the same capital murder charges for the sixth time.

CDCR Plan to Revive California Executions DOA. California's Office of Administrative Law on Tuesday rejected proposed new death penalty procedures, citing "several passages that conflicted with state law, were unclear or failed to properly state reasons for the new procedures." State prison officials have until October 6 to submit revisions.

Over-Incarceration for Crime Doesn't Pay. According to the Center for Economic and Policy Research, $17 billion in savings on correctional expenditures could be achieved "without any appreciable deterioration in public safety." 

It Just Might Work. In light of the Supreme Court's decision last week in Thompkins, just how to perfect one's Miranda rights has become a fairly complicated question. Norm Pattis carefully articulates one possible approach.

Because Peer Review Isn't Supposed To Be Critical. Robert Hare, best known for having concocted the Psychopathy Checklist ("PCL-R"), is apparently threatening to sue over peer review critical of the PCL-R's underlying theory. More on the story at Mind Hacks and In the news.

The Week in Sausage Making. H.R. 5330 (extending Antitrust Criminal Penalty Enhancement and Reform Act) was presented to the President for his signature. Measures introduced include S. 3467 (Northern Border Counternarcotics Strategy); S. 3468 (would prohibit sale of "murderabilia"); and H.R. 5492 (expungement for certain nonviolent criminal offenses).

Top of the Ninth - 9th Cir. decisions released during the week.
Mickey v. Ayers (habeas) (reinstating death penalty) (finding no IAC) (interrogations did not violate due process or Miranda).
Cooke v. Solis (habeas) (California Parole Board's denial of parole violated due process; Board's determination that petitioner posed threat to public safety was unreasonable in light of evidence).
U.S. v. Villasenor (reversing suppression order, finding smuggler's reliable tip and defendant's unusual behavior after crossing border sufficient for reasonable suspicion, and search one hour after defendant crossed border was reasonable extended border search).
West v. Ryan (habeas) (petitioner cited no evidence that would establish colorable claim under first prong of Strickland).
U.S. v. Laurienti (undisclosed bonuses for sales of shares were circumstantial evidence of agreement to join "pump and dump" conspiracy) (remanding for resentencing and recalculation of restitution) (addressing multiple other conviction and sentencing related claims).
U.S. v. Capener (amended opinion denying reh'g/reh'g en banc, reversing district court's award of partial fees under Hyde Amendment, rejecting defendant's cross-appeal for fees on entire case).
U.S. v. Bonds (in perjury case, affirming district court's exclusion of Bonds' trainer's hearsay and of drug-testing lab's log sheets).
U.S. v. Navarro (any improper argument by prosecutor regarding duress was neutralized by judge's immediate reminder that instructions controlled jury decision) (error in district court's charge to grand jury was harmless error in light of conviction).
U.S. v. Gamboa (affirming district court's denial of audita querela for resentencing in light of Booker).

SCOTUS Focus.
Barber v. Thomas (affirming good-time calculation status quo).
U.S. v. Juvenile Male (on appeal from 9th Circuit decision below, certifying question whether respondent's duty to remain registered as sex offender under state law is independent of federal juvenile-supervision conditions).

Short Circuits - other persuasive authority.
U.S. v. White (4th Cir.) (common law "battery" does not involve "physical force" within ACCA).
Swanson v. DeSantis (6th Cir.) (habeas) (district court decision to allow petitioner's exhausted state claims to proceed in federal court is not subject to appeal).
Hooks v. Workman (10th Cir.) (habeas) (penalty phase Allen instruction was coercive and unreasonable application of Lowenfield v. Phelps).
U.S. v. Sweeney (S.D.N.Y.) (retroactive application of increased guidelines range is ex post facto violation).
U.S. v. Hanson (N.D.Cal.) (border agents cannot seize a traveler's laptop, keep it locked up for a half a year, then examine it for contraband files, all without a warrant).

For the Bookworms - New books and scholarly articles of note.
"Inequitable Sentencing for Possession of Child Pornography: A Failure to Distinguish Voyeurs from Pederasts," Jess P. Basbaum, 61 Hastings Law J. 1281 (2010) (SSRN) (deconstructs § 2G2.2).
"The Effects of Accomplice Witnesses and Jailhouse Informants on Jury Decision Making," Jeffrey S. Neuschatz et al., 32 Law & Hum. Behav. 137 (2008) (pdf) (study concludes conviction rates unaffected by mock juries' awareness that cooperating witness received incentive for testimony).
"One-hundred Years of Getting It Wrong? Wrongful Convictions After a Century of Research," Jon B. Gould & Richard A. Leo, J. Crim. L. Criminology (forthcoming) (SSRN) (analyzes past century of research on causes of wrongful convictions, draws lessons from that research, and suggests areas where more research is needed).
"Ghostwriting: Filling the Gaps of Pro Se Prisoners' Access to the Courts," Ira P. Robbins, 23-2 Georgetown J. Legal Ethics 271 (2010) (SSRN) (argues that courts and bar associations should endorse practice of lawyer-ghostwriting for pro se prisoners).

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Suggestions or corrections? Email Michael_Drake@fd.org