(Cross-posted from the C.D. Cal. Federal Public Defender blog. Administrative note: No Roundup next week due to the Thanksgiving holiday.)
In This Edition (to use bookmarks, first click blog post title):
News to Use
Top of the Ninth
The Week in Sausage Making
And the Nominees Are
For the Bookworms
Don't Ask Us. AAG Lanny Breuer gave a talk this week on unwarranted sentencing disparities, which - citing a Sentencing Commission study from last year - he attributed to increased judicial discretion. Berman wonders why Breuer "made no mention of the USSC's more recent study noting the racial skew" due to mandatory minimum provisions, "which are primar[ily] impacted by the exercise of prosecutorial discretion."
Assembly-Line Sentencing. AFPD Juan Rocha provides an insider's look at Arizona's undermined "streamlined" sentencing procedures.
Our People Will Call Your People. Alexandra Natapoff of Snitch Blog launched a new main site to provide a "comprehensive resource on criminal informants."
False Confessions Poison the Well. Innocence Blog flags a new study revealing that for some reason, errors occur more often in false confession cases than in eyewitness identification cases. The study is "Confessions that Corrupt: Evidence from the DNA Exoneration Case Files," Saul Kassin (in press).
At the Movies. "Into the Abyss," Werner Herzog's troubling inquiry into capital punishment in the U.S., opens this week.
But This Is a Family-Friendly Blog. At Reason, Jacob Sullum limns the Sentencing Commission's report on mandatory minimums (which we flagged last fortnight), characterizing them as "mindlessly Draconian." For our part, we might have used a different adjective.
Top of the Ninth - 9th Cir. decisions released during the week.
· Ortiz v. Uribe (habeas) (affirming denial of relief for petitioner challenging interrogation tactics used to secure his confession). UPDATE (11.22.11): Ninth Circuit Blog's analysis here.
· Rhoades v. Reinke (habeas) (aff'g denial of stay of execution to be carried out according to protocol insufficiently distinguished from those previously approved by court).
· Rhoades v. Blades (habeas) (denying stay of execution pending Supreme Court decision in Martinez v. Ryan, where lateness of request lacked legitimate reason).
· Lopez-Cardona v. Holder (immigration) (after Aguila-Montes de Oca, California residential burglary still not a crime of violence under 18 U.S.C. §16(b)).
· U.S. v. Gonzalez-Aparicio (amended opinion).
SCOTUS Focus. The Court GVR'd in McEwen v. Thompson (9th Cir. decision below) for further consideration in light of last week's Greene v. Fisher. SCOTUSblog has the January argument schedule here, and elsewhere notes a couple of interesting relists: Fisher v. U.S. Dist. Ct. (right vel non of crime victim to appeal district court's disposition of claim under CVRA); and Amy v. Monzel (proximate causation in CP possession cases).
Short Circuits, Solid States, and other persuasive authority.
· U.S. v. Simmons (2d Cir.) (officers whose attention was attracted by shiny object next to defendant in bedroom late one night while they were accompanying roommate who'd reported that defendant had pulled gun few days earlier did not have exigent circumstances to seize gun after securing defendant).
· U.S. v. Persing (2d Cir.) (unpub'd) (district court erred in allowing statement's by defendant's loan-shark as nonhearsay admissions of co-conspirator without explicit finding that both were involved in single conspiracy).
· U.S. v. Baadhio (2d Cir.) (unpub'd) (whether or not BOP recommendation is final order, and notwithstanding defendant's release, court of appeals is free to send case back for district court to consider making written recommendation conforming to oral pronouncement); cf. Ninth's decision last week in Ceballos (finding recommendation (or lack of it) unappealable).
· U.S. v. Roy (2d Cir.) (unpub'd) (remanding where district court sentenced defendant pro se without any Faretta inquiry, after defendant had moved to fire attorney).
· U.S. v. Powell (4th Cir.) (fish sandwiches not only fishy thing about post-vehicular-stop search of defendant in back seat eating; his armed-robbery prior and purported misrepresentation of driver's license did not "remotely" suggest he was armed and dangerous).
· U.S. v. Robertson (7th Cir.) (district court did not adequately consider unusually strong evidence of self-motivated rehabilitation, which included full-time work, raising children and community involvement).
· Tuckel v. Grover (10th Cir.) (habeas) (prisoner with objectively reasonable fear of retaliation from officials may be excused from exhaustion requirement).
· Brown v. Montoya (10th Cir.) (habeas) (probation's direction to probationer to register as sex offender and placement of him in sex offender unit without notice and hearing violated clearly established due process right).
· Reedy v. Werholtz (10th Cir.) (prisoner's rights) (prison had no legitimate interest in "forced savings accounts" for inmates sentenced to LWOP).
· Klen v. City of Loveland (10th Cir.) (civil) (plaintiff-owners of premises under construction had reasonable expectation of privacy therein).
· U.S. v. Fulford (11th Cir.) (guideline enhancement for distribution of child pornography to minor does not apply without evidence that person who received materials was minor).
· In re Application for Cell Site Data (S.D. Tex.) (you need a warrant for that, and §2703(d) doesn't meet constitutional standard).
The Week in Sausage Making. Measures introduced this week include S. 1877 (reporting-requirements for child abuse); S. 1879 (encourages same for states); S. 1887/S. 1889 (other child abuse/neglect legislation); S. 1886 (trafficking in counterfeit drugs). Ninth Circuit Blog has an update on BOP's recalcitrance in giving meaningful effect to the Second Chance Act.
For the Bookworms - New books and scholarly articles of note.
· "Post-Booker Leniency in Child Pornography Sentencing," Carissa Byrne Hessick, 24-2 Fed. Sent'g Rep. ___ (2011) (SSRN) (sets out arguments for district court sentencing and for appeal of within-guideline sentence).
· "Fortuity and Forensic Familial Identification," Natalie Ram, 63 Stan. L. Rev. 751 (2011) (pdf|html) (argues against the distinction between "fortuitous" and "deliberate" partial matching because it obscures what they both do: provide genetically-based leads to possible perpetrators while making innocent persons investigatory targets by virtue of their genetic relationship with a past offender or arrestee).
· "The Incredible Shrinking Confrontation Clause," Jeffrey Bellin, working paper (2011) (SSRN) (argues to expand scope of confrontation rights to encompass nontestimonial hearsay).
· "Considering the Scope of Advisal Duties Under Padilla," Lindsay C. Nash, 33-2 Cardozo L. Rev. 101 (2011) (SSRN) (argues that Sixth-Amendment and other, practical interests require that attorneys advise noncitizen clients as specifically as research allows about immigration consequences of contemplated criminal dispositions).
· "Padilla v. Kentucky: A New Chapter in Supreme Court Jurisprudence on Whether Deportation Constitutes Punishment for Lawful Permanent Residents?," Anita Ortiz Maddali, Am. U. L. Rev. (2011) (SSRN) (addresses punitive nature of deportation and advocates an analytical approach modeled after constitutional protections that apply in juvenile proceedings).
· "Wavering on Waiver: Montejo v. Louisiana and the Sixth Amendment Right to Counsel," Katie Tinto, 48 Am. L. Rev. 1335 (2011) (SSRN) (offers several lines of argument against the Montejo rule).
· "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," Jennifer E. Laurin, 111 Colum. L. Rev. 670 (2011) (pdf|html) (argues that what Herring leaves unexplained is due to influence of constitutional tort doctrine, which gives a view to Herring's likely fallout, and provides a cautionary tale of risks that borrowing and convergence pose to constitutional standards and values). See also "Response: Metaphor and Meaning in Trawling for Herring," Colin Starger, 111 Colum. L. Rev. Sidebar 109 (2011) (pdf|html).
· "Prevention as the Primary Goal of Sentencing: The Modern Case for Indeterminate Dispositions in Criminal Cases," Christopher Slobogin, 48 San Diego L. Rev. ___ (2011) (SSRN) (outlines a properly constituted indeterminate sentencing regime, then defends it against objections).
· "Populism and Punishment," Wayne A. Logan, 26-37 Crim. Just. ___ (2011) (SSRN) (surveys ex post facto challenges to registration laws and similar and their prospects in light of recent toughening of the laws).
· "The Dark at the Top of the Stairs: Four Destructive Influences of Capital Punishment on American Justice," Franklin E. Zimring & David T. Johnson (SSRN).
· "Challenging the Habeas Process Rather than the Result," Justin F. Marceau, 69 Wash. & Lee L. Rev. ___ (2011) (SSRN) (argues for and discusses strategies toward achieving focus on need for changing state processes rather than results).
· "Justice Blocks and Predictability of U.S. Supreme Court Votes," Roger Guimera & Marta Sales-Pardo, PLoS ONE 6(11) (abstract) (study finding higher predictability in case outcomes than would be expected from ideal court composed of perfectly independent justices).
· The Blind Goddess: A Reader on Race and Justice, Alexander Papachristou & Patricia J. Williams (eds.), New Press (2011) (Amazon) (collection of essays on the racial aspects of America's hypercarcerality).
· Living Originalism, Jack M. Balkin, Belknap/Harvard U. Press (2011) (Amazon) (details Balkin's approach to constitutional interpretation).
Suggestions or corrections? Email Michael_Drake@fd.org.