For the week of July 19, 2010 (cross-posted from the Central District Federal Public Defender blog).
Top Secret America. That's the target of the Washington Post's major new investigative piece. Two years in the making, the investigation assays the complex of government organizations and private companies engaged in top secret government projects "hidden from public view and lacking in thorough oversight."
The Week in Exonerations. Innocence Blog notes several wrongfully convicted inmates who won big victories last week. As Snitching Blog observes, the 1993 Ohio murder case noted in IB's post is yet "another example of a shaky case built on compensated snitch testimony" that illustrates "how powerful an informant's allegations can be."
Ya Think? The Economist has commentary and separate "briefing" on the ever-upward ratcheting of custodial sentencing in America, concluding that the "extreme toughness of American laws . . . seems increasingly counterproductive."
In the Aftermath of the Broadcom Debacle. The Los Angeles Times "surveys the wreckage."
Disparate Impact. That's the reason the Justice Department says it wants the U.S. Sentencing Commission to investigate post-Booker sentencing trends in fraud and child pornography cases. The National Law Journal discusses the issue here.
Federal Offenders Sentenced to Supervised Release. That's the subject of a new, "comprehensive" study from the U.S. Sentencing Commission. To download a copy, click here.
Throw the Books at 'Em. The Guardian reports on an alternative sentencing program - in Texas, mind you - called Changing Lives Through Literature, in which serious repeat offenders are sentenced to attend a reading group instead of prison. According to the article, the public "have been largely won over by the [program's] success rate[]." Did we mention that this was in Texas?
Send in the (Unicycling) Clowns. That might be good advice if you have an adverse witness who while doing the witnessing in question was talking on a cell phone.
Tell Me I'm Not Seeing Things. Mind Hacks notes a new study published in the Journal of Clinical and Experimental Neuropsychology finding that "we can be convinced we reported symptoms of mental illness that we never mentioned" and "actually start believing we have the symptom itself."
Accent on Credibility. Mind Hacks also notes a new study published in the Journal of Experimental Social Psychology finding that people are less likely to believe statements read in a foreign accent because the latter are more difficult to understand. "Stimuli that are easier to process are perceived . . . as more familiar, more pleasant, visually clearer, longer and more recent, louder, less risky, and more truthful."
You Really Shouldn't Document Police Encounters Like That. ABC News reports on the growing number of prosecutions for videotaping the police.
Let Hertz Put You in the Driver's Seat. According to information available here, Enterprise and Hertz now permit search and retrieval of up to six months of rental records based on last name and driver's license number.
"It's a Death Sentence." That was what Criminal Defense Attorney Lynne Stewart's husband had to say, after her sentence was increased to ten years in prison. Stewart, now 70, was initially sentenced to 28 months; that sentence was vacated after the government appealed.
Your Comment. The U.S. Sentencing Commission seeks input on whether to make its new amendments to the criminal history sentencing guidelines retroactive.
The Week in Sausage Making. The president has signed H.R. 4173 (the Dodd-Frank Wall Street Reform and Consumer Protection Act), which defines over two dozen new securities-related federal criminal defenses. The House passed H.R. 5566 (animal crush videos). Measures introduced include H.R. 5748 (would eliminate racial profiling by law enforcement); H.R. 5769 (would permit seizure/forfeiture of real property used or intended to be used in alien smuggling); and H.R. 5810 (the "Securing Aircraft Cockpits Against Lasers Act of 2010").
Top of the Ninth - 9th Cir. decisions released during the week.
U.S. v. Burkett (passenger's
furtive movements while driver continued driving against instruction to
pull over provided reasonable basis for frisk after vehicle stop).
U.S. v. Lewis
(affirming district court's dismissal of indictment for violation of
Speedy Trial Act without prejudice, after two trials and three appeals).
U.S. v. Maciel-Alcala (on panel rehearing, amending opinion to hold that Guyton v. Phillips is inapposite for construing meaning of "person" within 18 U.S.C. § 1028A).
U.S. v. Crews (Oregon second-degree assault is categorically "crime of violence" under § 4B1.2(a)(2)).
U.S. v. Thomas
(affirming defendant ex-champion cyclist's convictions for perjury and
obstruction of justice related to investigation into steroid use).
SCOTUS Focus. The Supreme Court continues in recess until October 4. Two items of note:
· SCOTUSwiki has added new briefing to its Abbott/Gould page.
· SCOTUSblog notes a new cert petition that challenges the Ninth Circuit's ruling in Ashcroft v. al-Kidd
(government officials who use material witness law as pretext for
investigating or detaining a person are not entitled to immunity, even
if pursuant to warrant issued by neutral judge).
Short Circuits - other persuasive authority.
U.S. v. Wilson (6th
Cir.) (sentence based on clearly erroneous premise that defendant had
stolen 1000 money orders and 500 cashier's checks was plain error) (use
of sentencing opinion prepared before sentencing is "somewhat
disconcerting").
Sun Bear v. U.S. (8th Cir.) (applying Begay retroactively to § 2255 claim, holding that sentence based on career offender guideline was miscarriage of justice).
U.S. v. Simons
(8th Cir.) (vacating district court's supervised release condition
barring defendant's possession of any materials that depict nudity).
People v. Glazier
(Cal. App. Ct.) (defendant's use of 20-foot long torch to set fire to
neighbor's house while standing on own property was California
attempted burglary).
For the Bookworms - New books and scholarly articles of note.
· "The Right to Silence Protects Mental Control," Dov Fox, chapter from Law and Neuroscience: Current Legal Issues, Oxford U. Press (forthcoming, 2011) (SSRN)
(argues that right of mental control prohibits state from extracting
suspect's thoughts without consent or making use of compelled recall).
· "Profiling and Consent: Stops, Searches and Seizures after Soto," Jeffrey Fagan & Amanda Geller (working paper, 2010) (SSRN)
(study of pattern of highway stops and searches in New Jersey
after state's consent decree with Department of Justice suggests that
widespread disparities were not significantly reduced).
· "Resurrecting Autonomy: The Criminal Defendant's Right to Control the Case," Erica J. Hashimoto, 90 Boston L. Rev. 1147 (2010) (pdf)
(advocates for increased defendant control over decision-making in
criminal cases, arguing that the claim that lawyers make decisions that
lead to the best results lacks empirical support, is inconsistent with
Supreme Court precedent and adopts too narrow a definition of "best").
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Suggestions or corrections? Email Michael_Drake@fd.org.
