(Cross-posted from the C.D. Cal. Federal Public Defender blog.)
In This Edition (to use bookmarks, first click blog post title):
New Developments on the Sex Offender Front. Karen Franklin has a mini-roundup of those developments here. Topics include problems with the Static-99, lax evaluators, the neuroscience of sex offending, and an amicus brief in a challenged to Jessica's Law.
Well That Takes the Cake. And we mean that literally.
Top of the Ninth - 9th Cir. decisions released during the week
· U.S. v. Lopez-Avila (government's misleading partial quotation of defendant's prior testimony required mistrial) (though retrial won't violate double jeopardy - prosecutor's move wasn't to "goad" defense into moving for mistrial but merely to "win at all costs" - district court may consider dismissal as sanction for misconduct (on defendant's motion), or discipline prosecutor directly).
· U.S. v. Alcala-Sanchez (vacating and remanding to new judge, finding government clearly breached plea where it promised to recommend level-12 with a 33-month cap but then submitted sentencing chart recommending level-20 and 70 months; the error required was not cured by government's admission of mistake before sentencing). Ninth Circuit Blog's analysis here.
· U.S. v. Morales (memorandum) (reassigning case where district judge had "expressed strongly-held opinions about the credibility of various defense theories").
· Minneci v. Pollard (prisoner's rights) (Bivens remedy can't be implied where state tort law authorizes adequate alternative damages).
· Smith v. Cain (habeas) (county prosecutor violated Brady by withholding evidence that sole eyewitness made statements that he could not identify any perpetrator, which required reversal).
· Gonzalez v. Thaler (habeas) (court of appeals may have jurisdiction to hear habeas appeal even if district judge failed to indicate constitutional issue in certificate of appealability as required by 28 U.S.C. §2553(c)(3)) (when state prisoner does not seek direct review in state's highest court, judgment becomes "final" under §2244(d)(1)(A) on date opportunity to seek that review expired).
· Perry v. New Hampshire (habeas) (due process does not require reliability inquiry into eyewitness identification that wasn't procured under unnecessarily suggestive circumstances arranged by law enforcement).
Grants of Certiorari:
· Cavazos v. Williams (whether state adjudicated petitioner's claim "on the merits" within §2254(d) when it denied relief in an explained decision but without acknowledging federal basis of claim).
· Cash v. Maxwell (denying cert. requested by California challenging Ninth Circuit decision holding state court was unreasonable to conclude petitioner had not shown serially-fabricating snitch had lied in petitioner's case) (significant back and forth in statements on AEDPA and discretionary review by JJ. Sotomayor and Scalia).
· FCC v. Fox Television (vagueness of FCC's indecency enforcement regime).
· U.S. v. Collins (2d Cir.) (in "highly complex fraud case," district court's ex parte, mid-deliberations discussion with juror regarding "odd behavior" required new trial).
· U.S. v. Spriggs (11th Cir.) (mere use of file-sharing program does not support five-level enhancement under §2G2.2(b)(3)(B), which requires exchange for "valuable consideration") (creating circuit split).
· Moore v. Ryan (D.Ariz.) (granting habeas for IAC based on lawyer's grossly inaccurate advice about potential sentence, reviewing IAC claim de novo because state fact-finding procedures were deficient).
· U.S. v. Ware (E.D. Pa.) (granting post-FSA §3592(c) reduction, holding that statutory term "based on" trumps application note limiting relief to range "determined before consideration of any departure provision ... or variance").
· People v. Pearson (Cal.) (vacating death sentence where trial court erroneously struck juror for her assertedly "equivocal views" about death penalty).
For the Bookworms - New books and scholarly articles of note
· "Arrests for Child Pornography Production: Data at Two Time Points from a National Sample of U.S. Law Enforcement Agencies," Janis Wolak et al., 16 Child Maltreatment 184 (2011) (pdf) (nationwide study of arrest data provide little or no evidence that production is on the rise or that depictions are trending toward younger victims or greater violence, and suggest that many CP producers create images for own use rather than for distribution).
· "Evaluation of Multiple Transfer of DNA Using Mock Case Scenarios," 14-1 Legal Medicine 40 (2012) (abstract) (discussed in New Scientist article here).
·"Capital Punishment in Connecticut, 1973-2007: A Comprehensive Evaluation from 4686 Murders to One Execution," John J. Donahue, working paper (2011) (pdf) (argues that the state's death penalty system is arbitrary and discriminatory; write-up in New York Times here).
· Sex Panic and the Punitive State, Roger N. Lancaster (2011) (Amazon) (tracks the rise of a modern suburban culture of fear and its relation to the carceral state).
Suggestions or corrections? Email Michael_Drake@fd.org.