(Cross-posted from the C.D. Cal. Federal Public Defender blog.)
Crack Retroactivity Day. Don't forget, it's this Tuesday. FAMM's crack sentencing page is here. The ODS's page is here. We also have our own page (last updated 8.26.11) available to FPD and CJA (login required). 'Nuff said.
What They Said. Subjects of a new study "exhibited a strong tendency to conform [their memories] to erroneous recollections of the group, producing both long-lasting and temporary errors, even when their initial memory was strong and accurate." The paper is "Following the Crowd: Brain Substrates of Long-Term Memory Conformity," by Micah Edelson et al. (H/T Jonah Lehrer.)
FOIA Insolubilia. The Boston Globe has this report on a proposal by the Justice Department to allow federal agencies to issue false "no records" responses to certain FOIA requests. Justice argues it needs the misinformation option in "especially sensitive law enforcement matters," such as when a truthful response would tip someone off that they're being investigated. More at Wired.
In Other Especially Sensitive Law Enforcement Matters... The New York Times opines on the damage done to the FBI's reputation by "protect[ing] murderers to use them as informants against the Mafia."
Beware the Clowns. The FBI has released its latest gang threat assessment. Part of the problem: fans of rap group Insane Clown Posse. But some suggest that even the non-clown threat may be overstated.
New Rules (sort of). A new Kindle edition of the combined California Rules of Professional Conduct and Other Related Rules and Codes is available here.
Services Necessary for Adequate Representation. From the Los Angeles Times: "U.S. 9th Circuit Court of Appeals Judge Jay S. Bybee accepted more than $3.2 million in free legal services from a Los Angeles-based firm to fight allegations of ethics violations for providing the Bush administration legal justification [for what] critics call torture." More here.
F-Stop Blues. The ACLU has sued the Los Angeles County Sheriff's Department, claiming several of its deputies "harassed, detained and improperly searched photographers taking pictures legally in public places."
Maybe You Should Have That Looked At. In other ACLU litigation news, the Tennesse chapter filed suit on behalf of targets of an immigration raid. One ICE agent reportedly said, in response to a request to see a warrant, "The Warrant is coming out of my balls."
Top of the Ninth - 9th Cir. decisions released during the week. Due to interest in the Loughner litigation, the Ninth Circuit has created a new page dedicated to the case aggregating relevant info, here. As for this week's decisions:
· U.S. v. Reveles (federal conviction for drunk driving on naval base after Navy had administered punishment for same conduct did not violate double jeopardy).
· U.S. v. Williams (conviction for advertising distribution of child pornography does not require that defendant personally produced images he advertised). UPDATE (11.1.11): Ninth Circuit Blog's analysis here.
· U.S. v. Newman (district court does not have discretion to reduce or eliminate criminal forfeiture, and fact that defendants must pay both restitution and criminal forfeiture is not impermissible double recovery) (district court has independent duty to determine whether evidence is sufficient to support amount of proceeds stipulated in plea agreement).
· U.S. v. Wilson (third party had prudential standing to assert claim over property interests in Ponzi scheme forfeiture, and such interests are per se superior to those of government).
· U.S. v. Nosal (en banc order; panel had held that an employee's access of computer exceeds authorization within 18 U.S.C. § 1030 when the access violates the employer's restrictions). UPDATE (11.4.11): National Law Journal notes that the en banc request was made by a civil appellee in different case.
· U.S. v. Carona (order amending, denying reh'g, in corruption case involving former Orange County sheriff).
· Schultz v. Tilton (habeas) (in California trial for committing lewd acts upon minors, jury instruction on propensity evidence of prior uncharged sexual misconduct did not improperly suggest jury could reasonably convict based on mere preponderance of evidence).
· Doe v. Busby (habeas) (affirming district court habeas grant) (equitable tolling was appropriate for three-years-late petition, where petitioner was "deceived, bullied and lulled" by "inept and unethical" counsel that filing would occur) (California jury instruction's misdescription of burden of proof was not harmless) (introduction at trial of propensity evidence under new state evidentiary rule was not ex post facto violation).
· Boyer v. Belleque (habeas) (state reasonably applied Jackson in finding evidence of intent to kill sufficient under state law, where HIV positive defendant had unprotected sex with others knowing he could spread fatal disease that way).
· Seeboth v. Mayberg (habeas) (petition for release from custody was moot because petitioner is now in civil commitment as sexually violent predator, and that status was unchallenged).
· Miller v. City of Los Angeles (sanctions; evidence) (argument by defense counsel in civil case that police officer believed decedent posed threat because he'd just shot someone did not violate in limine order precluding argument that decedent had been armed) (fact that opposing party "failed to proffer any juror statements" under FRE 606(b) that defense counsel's remarks caused jury to hang "strongly suggests" jurors said nothing to support plaintiff's claim).
Short Circuits, Solid States, and other persuasive authority.
· U.S. v. Beauchamp (6th Cir.) (defendant was "seized," where after walking away from one officer, another drove up to him and, as he continued to walk away, instructed him to stop and change direction).
· Guzman v. Sec. Dep't of Corrections (11th Cir.) (habeas) (state supreme court unreasonably applied Giglio in refusing petitioner's request for new trial, where two government witnesses had falsely testified that cooperating witness had received no benefit, when in fact he had been paid $500).
· U.S. v. Hu (W.D.N.Y. Jan. 21, 2011) (documents visible after agent's rifling through them were not in "plain view"; agent's explanation for seizure "strain[ed] credulity").
· Lebron v. Wilkins (M.D. Fla.) (civil) (enjoining Florida law requiring welfare applicants to pass drug test before receiving state benefits).
The Week in Sausage Making. Measures introduced include H.R. 3253 (would impose reporting requirements on sex offenders planning to travel internationally); H.R. 3256 (would bar issuance of visas to nationals of countries that refuse or unreasonably delay repatriation); H.R. 3257 (online piracy and counterfeit goods legislation); H.R. 3271 (would promote economic safety of domestic violence and sexual assault victims).
For the Bookworms - New books and scholarly articles of note.
· "Unintentional Punishment," Adam J. Kolber, Legal Theory (forthcoming) (SSRN) (argues state must measure and justify unintended hardships associated with punishment as much as intended ones).
· "The Federal Common Law Crime of Corruption," 89-5 N.C. L. Rev. ___ (2011) (SSRN) (argues that courts can further refine honest services fraud by building on the harm constraint that had begun to emerge through the common law by the time of Skilling).
· "Moral Imagination in Judging," Susan A. Bandes, 50-4 Washburn L.J. ___ (2011) (SSRN) (argues that resistance to empathy in judging is based on unrealistic and largely undefined notions of the judicial role that are out of synch with developing understandings of moral cognition).
· "12 Racist Men: Post-Verdict Evidence of Juror Bias," Jessica L. West, 27 Harv. J. Racial & Ethnic Just. 165 (2011) (SSRN) (argues that FRE 606(b) should be amended to allow inquiries into juror misrepresentations of bias).
· "Executing Those Who Do Not Kill: A Categorical Approach to Proportional Sentencing," Joseph Trigilio* and Tracy Casadio,* 48 Am. Crim. L. Rev. 1371 (forthcoming) (argues that the Supreme Court's recent proportionality decisions in Atkins, Roper and Kennedy effectively abrogated Tison). *The authors are DFPDs in this office.