It's Been "Something Different." NPR marks Justice Clarence Thomas' one score years on the United States Supreme Court.
Taking the D'oh! out of Daubert. The National Research Council has released a new edition of its Reference Manual on Scientific Evidence, "an aid to judges who must consider scientific evidence at trials." You can download the manual here.
Sentencing in the Raw. The New York Times provides a "revealing look" at how Circuit Judge Dennis Chin "approached the task of sentencing" when he was still a district judge. Revealing indeed, laments Scott Greenfield at Simple Justice.
And For Your Comparative Sentencing Files. "[F]allen hedge fund billionaire Raj Rajaratnam received the longest prison sentence ever for insider trading on Thursday," reports the New York Times. (Emphasis added.) That sentence? 11 years.
Gallup: Support for Death Penalty at 39-Year Low. Story at Gallup.
At the Movies. The new documentary "Incendiary: The Willingham Case" explores Todd Willingham's execution and the controversy surrounding the science (or pseudoscience) used to convict him. Currently in limited release, it's scheduled to open at the Laemmle on November 18. (H/T Innocence Blog.)
Top of the Ninth - 9th Cir. decisions released during the week.
· U.S. v. Urena (self-defense instruction was not required where defendant failed to offer relevant evidence of reasonable belief and degree of force, notwithstanding evidence that victim had a shank) (defendant's cross of treating physician as to cause of injury was outside scope of direct regarding extent of injury, and refusal to permit it did not violate confrontation) (physician's assessment of cause of injury is expert testimony, and excluding proffer of new expert who had not been disclosed pretrial was proper). UPDATE (10.18.11): Ninth Circuit Blog's analysis here.
· U.S. v. McEnry (appropriate guideline for serving as airman without airman's certificate is §2B1.1, not §2A5.2).
· U.S. v. LaBuff (government presented evidence sufficient to show defendant was "Indian" within Major Crimes Act) (formerly mem dispo, published by subsequent order).
· U.S. v. Reyes (in securities fraud case, government's focus on incorrect theory and introduction of options gains evidence was not misconduct, and defendant was not entitled to instructions to counter government's theme of corporate responsibility) (evidence of securities fraud was sufficient, with substantial evidence for materiality based on failure to disclose corporation's true financial condition to investors; jury received proper instruction on materiality, and government did not improperly suggest materiality could be found on based on proxy-voting decisions).
· U.S. v. Carper (sentence based on §2M5.2(a)(1) rather than (a)(2) was appropriate for unlawful exportation of military night vision devices, which were not "non-fully automatic small arms" within the latter guideline) (public-policy based departure was not required, and sentence was substantively reasonable).
· James v. Schriro (habeas) (claim raised for first time in state post-conviction relief was not waived where raising claim on direct appeal was barred by state law) (failure to investigate petitioner's social history, mental health and drug abuse was penalty phase IAC) (secret deal with state prosecution witness was not Brady or Giglio).
Grants of Certiorari:
· Blueford v. Arkansas (whether double jeopardy bars reprosecution for offense when jury has announced not-guilty vote on that offense but deadlocked on lesser-included offense).
· Greene v. Fisher (re: point during state criminal proceedings at which relevant Supreme Court decisions become clearly established Federal law for purposes of AEDPA). Interesting recap by Rory Little, here.
· Florence v. Bd of Chosen Freeholders (re: jail's suspicionless strip searches of new admittees - here, a man jailed because of a computer error on past traffic fine).
· Judulang v. Holder (whether lawful permanent resident convicted of offense rendering him deportable and excludable, but who did not depart and reenter between conviction and commencement of removal proceedings, can seek discretionary relief from removal under Immigration and Nationality Act).
· Reynolds v. U.S. (re: standing under SORNA to challenge AG's interim retroactivity rule).
· Maples v. Thomas (whether procedural default caused by state and blameless petitioner's counsel is excusable).
· Howes v. Fields (whether it is clearly established that a prisoner is per se "in custody" whenever isolated from general population and questioned).
· Martinez v. Ryan (whether state criminal defendant barred from raising IAC on direct appeal but who has state law right to raise IAC in first post-conviction proceeding has right to effective assistance at that proceeding ).
Short Circuits, Solid States, and other persuasive authority.
· U.S. v. Pleau (1st Cir.) (once the government has opted to request custody under Interstate Agreement on Detainers, it is bound by IAD's terms, which include governor's right to refuse request).
· U.S. v. Archer (2d Cir.) (extrapolation from four fraudulent I-687 amnesty applications presented at trial was insufficient to prove 100 or more fraudulent documents at sentencing, where government "presented no evidence" the four applications were representative sample) (defendant's calling former employee a "pussy" for testifying was not obstruction, notwithstanding epithet's recipient being "afraid" of the "unpleasant name") (restitution order was improper where alien victims' use of defendant attorney's services may have been part of independent visa fraud).
· Prus v. Holder (2d Cir.) (immigration) (New York third-degree promoting prostitution is not aggravated felony).
· U.S. v. Vann (4th Cir.) (en banc) (even if subsection of state "indecent liberties" offense was an ACCA violent felony under modified categorical approach, government did not prove convictions were sustained under that subsection, though indictment charged in conjunctive).
· U.S. v. Smith (6th Cir.) (defendant originally sentenced below applicable guidelines range due to erroneous calculation was nonetheless entitled to benefit of new crack guidelines based on the same (mis)calculation).
· U.S. v. Blechman (10th Cir.) (admission of AOL and PACER records as business records to show account ownership info was error (though harmless) because relevant information was unverified user input).
· U.S. v. Scott (D. Nev.) (impound of SUV parked in front of house that reeked of marijuana was pretext for general search).
The Week in Sausage Making. Measures introduced this week include S. 1691 (would remove certain restrictions on interstate firearms transactions). The House Subcommittee on Crime, Terrorism, and Homeland Security held hearings on the post-Booker federal sentencing system, which Berman limns here and tasseographs here.
For the Bookworms - New books and scholarly articles of note.
· "'Interrogation-Related Regulatory Decline:' Ego-Depletion, Failures of Self-Regulation and the Decision to Confess," Deborah Davis & Richard A. Leo, working paper (2011) (SSRN) (reviews scientific evidence of the unexpected ease with which self-regulation abilities can be significantly compromised in interrogation setting).
· "Forensic Science: Why No Research?," Paul C. Giannelli, working paper (2011) (SSRN) (explores why there is a lack of research across so many forensic disciplines).
· "Mandatory Mitigation: An Eighth Amendment Mandate to Require Presentation of Mitigation Evidence, Even When the Sentencing Trial Defendant Wishes to Die," Jules Epstein, Temp. Pol. & Civ. Rts. L. Rev (forthcoming) (SSRN).
· "Recalibrating Constitutional Innocence Protection," Robert J. Smith, Wash. L. Rev. (forthcoming) (SSRN) (explores how realigning the importance of innocence protection with realities of the criminal justice system would impact regulation of post-conviction procedures, with consideration of the implications of decline of trial as the center of gravity for innocence protection).
· "The Sacrifice of Unarmed Prisoners to Gladiators: The Post-AEDPA Access-to-the-Courts Demand for a Constitutional Right to Counsel in Federal Habeas Corpus," Emily Garcia Uhrig, U. Pa.. J. Const. L. (forthcoming) (SSRN) (argues for a constitutional right to counsel for state inmates in all initial federal habeas corpus proceedings based on access-to-the-courts doctrine).
· Five Chiefs: A Supreme Court Memoir, John Paul Stevens (2011) (Amazon) (memoir by the former Justice, reviewed here in the Atlantic).
· Lost Memory of Skin: A Novel, Russell Banks (2011) (Amazon) (tells of the isolation and redemption of a convicted sex offender living under a Florida causeway with others like him, "despicable and impossible to remove and thus ... simply wished out of existence").
Suggestions or corrections? Email Michael_Drake@fd.org.