For the week of June 28, 2010 (cross-posted from the Central District Federal Public Defender blog).
Great Expectations. Bloomberg has this report on the "growing number" of white collar cases in which the charges were ultimately dropped. This phenomenon puzzles legal experts, says the article, because federal prosecutors are "expected to have thoroughly investigated the facts and law before asking a grand jury to bring charges."
New Sentencing Resources. The Sentencing Project has created a "State Recidivism Studies" database, providing references for 99 studies conducted between 1995 and 2009, in all 50 states and the District of Columbia. The Project has also released its Annual Report, available here. Meanwhile, the good folks at Defender Services have a host of freshly-updated sentencing materials, including Henry Bemporad's Introduction to Federal Sentencing (12th ed.), as well as handy guides on ACCA/career offender predicates and how to use Begay.
Marijuana Arrests a Black and White Issue. A new report by the Drug Policy Alliance finds substantial race-based disparities in marijuana arrests "in every country and nearly every police department in California."
Show and Tell. The ASTC's blog Deliberations has this post about the importance of integrating well-crafted visual materials into your presentation of a case to your jury (as well as the importance of not overdoing it).
Brains, Genes and Crime. NPR has a new three-part series on neuroscience, genetics and psychopathology.
"The Case for Treating Drug Addicts in Prison." That article in Newsweek.
The Week in Sausage Making. Bills presented to the president include H.R. 2194 ("Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010"). Measures introduced include H.R. 5662 (stalking under title 18); H.R. 5675 (border security); H.R. 5688 (criminal penalties for torture by law enforcement under color of law); S. 3546 (auto insurance fraud).
Top of the Ninth - 9th Cir. decisions released during the week.
Seaton v. Mayberg (records
of compelled medical examination of defendant to determine whether
mental illness leaves him likely to engage in sexually predatory
behavior are not constitutionally protected).
U.S. v. Struckman (government misconduct, which included misrepresentations to Panamanian government to secure defendant's removal, serious Brady/Giglio
violations, and reliance on a fictional CI, was appropriately remedied
by suppression of evidence rather than dismissal of indictment;
misconduct in bringing defendant to U.S. did not vitiate jurisdiction
or require dismissal under court's supervisory powers).
Blaza v. Holder
(immigration) (knowing misapplication of bank funds in violation of 18
U.S.C. § 656 was aggravated felony under modified categorical approach).
Kittel v. Thomas
(habeas) (petition for RDAP early release benefit was moot as
petitioner was no longer in BOP custody, and court would not issue
protective ruling to support § 3583(e)(2) motion for reduction of
supervised release).
SCOTUS Focus.
Opinions:
McDonald v. Chicago (individual right to bear arms applies to the states).
Sears v. Upton (habeas) (trial counsel's ultimately presenting "reasonable" mitigation theory to jury does not obviate requirement under Strickland that habeas court analyze whether counsel's failure to conduct adequate investigation prejudiced defendant) (Strickland prejudice inquiry is required even where counsel presented "some" evidence in mitigation).
Grants of Certiorari:
Pepper v. U.S.
(whether in resentencing district court had to use same percentage
applied for downward departure in initial sentencing) (whether
post-sentencing rehabilitation is impermissible basis for varying
downward at resentencing); see also government's opposition (via Douglas Berman) (conceding that answer on second question is "no").
Short Circuits - other persuasive authority.
U.S. v. Wilson (2d Cir.) (vacating death sentences because of improper jury arguments bearing on remorse and acceptance of responsibility).
U.S. v. Marcavage (3d
Cir.) (upholding free speech rights of anti-abortion protestor arrested
for demonstrating near entrance to Liberty Bell Center).
U.S. v. Liburd
(3d Cir.) (vacating conviction in light of government's failure to
abide by pretrial promise not to rely on "any" of defendant's
statements, which was prosecutorial misconduct).
Davis v. Lafler (6th Cir.) (habeas) (evidence was insufficient to support state conviction for aiding and abetting a carjacking).
U.S. v. Diaz (E.D. Wisc.) (arguing, inter alia, that § 2G2.2 CP guideline very nearly renders Ch. 4 of the guidelines a nullity).
For the Bookworms - New books and scholarly articles of note.
· "The
Repercussions of Anonymous Juries," Christopher Keleher, 44 U.S.F. L.
Rev. 531 (2010) (discusses how jury anonymity impacts the fairness,
transparency and juror psychology, concludes that courts should curtail
use of anonymous juries).
· "Civil, Criminal, or
Mary Jane: Stigma, Legislative Labels, and the Civil Case at the Heart
of Criminal Procedure," W. David Ball (working paper, 2010) (SSRN) (sketches an Apprendized, Winshipped,
consistently functional approach toward assessing what procedural
protections should apply to impositions of stigma and deprivations of
liberty, whether they are labeled "civil" or "criminal").
· "The
Not So Great Writ: Trapped in the Narrow Holdings of Supreme Court
Precedents," Ursula Bentele, 14 Lewis & CLark L. Rev. 741 (2010)
(argues that "clearly established federal law" should not be limited to
fact-based holdings of Supreme Court cases).
· "Evidence
for Response Bias as a Source of Error Variance in Applied Assessment,"
Robert E. McGrath et al., 136 Psych. Bull. 450 (2010) (technical paper,
noting that failure to find consistent support for bias indicators is
"troubling" because they are routinely used in "high-stakes
circumstances" like competency hearings and other forensic
psychological assessment).
___________________
Suggestions or corrections? Email Michael_Drake@fd.org.
