(Cross-posted from the C.D. Cal. Federal Public Defender blog.)
In This Edition (to use bookmarks, first click blog post title):
ESI Does It. Defender Services and the DOJ have jointly developed a set of recommendations for electronically stored information (ESI) discovery production in federal criminal cases.
PACER Tracer. PACER now has automatic case notification through RSS in select courts (yes, the C.D. Cal. is one of them). The RSS feeds provide summarized text, including the name of the document filed, along with links to the document and docket report.
Brady: Just Give It Up. White Collar Crime Prof Blog's Sol Wisenberg uses the Eleventh Circuit's recent reversal of Robert Ignasiak's conviction as a teachable moment: "prosecutors can't be trusted to make their own judgments" about what counts as Brady/Giglio.
"Innocent Man Unrepentant." Story at The Onion.
Top of the Ninth - 9th Cir. decisions released during the week.
• Mardesich v. Cate (habeas) (AEDPA's one-year limitations period applies to each claim individually) (in challenge to administrative decision affecting "fact or duration" of confinement, limitations period runs from when factual predicate could have been discovered with due diligence) (predicate here was when decision became final, not subsequent resentencing).
• Haskell v. Harris (civil) (California law requiring DNA testing of all adult arrestees does not violate Fourth Amendment). UPDATE (2.27.12): Ninth Circuit Blog's analysis here.
• U.S. v. Louis (forfeiture) (claimant's interrogatory response conditionally claiming ownership of seized cash while reserving Fifth Amendment privilege was properly struck to prevent his using privilege as both sword and shield; he otherwise failed to show some evidence of ownership or lawful possession, and so lacked standing).
Opinions and Orders:
• Wetzel v. Lambert (habeas) (circuit court's conditional grant on Brady claim improperly failed to consider state courts' determination that notations on undisclosed "police activity sheet" were ambiguous).
• Howes v. Fields (habeas) (there is no clearly established Supreme Court rule that prisoner removed from general population and questions about outside-prison events is per se "in custody" for Miranda purposes - as indeed petitioner so questioned here was not).
• Kawashima v. Holder (immigration) (filing false tax returns and aiding and abetting it are categorical crimes involving fraud or deceit).
• Messerschmidt v. Millender (civil) (officers were qualifiedly immune for executing search warrant for firearms and evidence of gang activity in home after victim reported suspect had threatened her with gun).
• U.S. v. Alvarez (whether Stolen Valor Act violates First Amendment).
• Blueford v. Arkansas (whether reprosecution of offense regarding which jury announced not guilty verdict violates double jeopardy when jury deadlocked on lesser-included offense).
• Long v. Atlantic City Police Dep't (3d Cir.) (prison's delay in forwarding delivery of district court order denying Rule 59(e) motion was excludable from time limit on filing motion for reconsideration).
• In re Grand Jury Subpoena (11th Cir.) (act of decrypting computer contents is "testimonial" and therefore implicates Fifth Amendment).
• Doe v. Jindal (M.D. La.) (Louisiana statute banning sex offender access to chat rooms, social networking sites, etc., was vague and overbroad).
For the Bookworms - New books and scholarly articles of note.
• "Non-Capital Habeas Cases after Appellate Review: An Empirical Analysis," Nancy J. King, Fed. Sent'g Rep. (forthcoming) (SSRN) (review of outcomes of randomly selected, non-capital habeas cases reveals rate of relief remains less than one percent post-AEDPA; provides detailed information on each case in which relief was granted).
• "Impulse Control and Criminal Responsibility: Lessons from Neuroscience," Steven Penney, Int'l J. L. & Psych. (2012) (SSRN) (argues that contemporary neuroscience shows shore up validity of irresistible impulse defense).
• "Comparing Sexual Offenders at the Regional Treatment Centre (Ontario) and the Florida Civil Commitment Center," Robin J. WIlson et al., Int'l J. Offender Therapy and Comparative Criminology (2012) (abstract) (per Karen Franklin, study finds that reoffense rate after average seven-month treatment period in Canadian system is less than 6 percent - far lower than predicted by Static-99/99R).
• "Latent Print Examination and Human Factors: Improving the Practice through a Systems Approach," NIST report of the expert working group (2012) (abstract|pdf) (provides a "comprehensive discussion" on the topic).
• "Smooth and Bumpy Laws," Adam J. Kolber, working paper (2012) (SSRN) (analyzes how the law creates bumpy relationship between gradual conduct and much more severe effects in outcome, and identifies opportunities to make the law (both criminal and civil) smoother than it is).
• "Protecting Liberty and Autonomy: Desert/Disease Jurisprudence," Stephen Morse, 48 San Diego L. Rev. 1077 (2011) (SSRN) (argues that sexual predator commitments are punishment by other means, but that ultimately respect for liberty and autonomy is best guaranteed by genuine desert and disease limitations on detention despite an asserted increased public safety cost).
• "Anti-Snitching Norms and Community Loyalty," Bret D. Asbury, 89 Or. L. Rev. 1257 (2011) (pdf) (argues that refusal by poor, black community members to cooperate with police investigations should be viewed as a natural extension of innate human loyalty, which can be overcome only through police efforts aimed at strengthening loyalty bonds in the community).
• "Executions, Imprisonment and Crime in Trinidad and Tobago," David F. Greenberg & Biko Agozino, 52-1 Brit. J. Criminology 113 (2012) (abstract) (per write-up here, claims that analysis of homicides and serious crimes in Trinidad and Tobago - which has a high level of death-penalty sentencing - "seriously undermines the contention that capital punishment offers a solution" the the "soaring homicide rate" there).
• "Rebellious State Crimmigration Enforcement and the Foreign Affairs Power," Mary D. Fan, Wash. U. L. Rev. (2012) (SSRN) (argues that inconsistent state immigration enforcement policy and resulting foreign affiars complications render the new breed of state laws "mirroring" federal immigration infirm).
• "Comments on Three Recent Fourth Amendment Articles," Christopher Slobogin, working paper (2012) (SSRN) (responding to recent papers on equilibrium adjustment theory, "disentanglement," and crime severity analysis).
• Jury Decision Making: The State of the Science, Dennis J. Devine (2012) (Amazon) (forthcoming volume summarizes existing theories of jury decision making, identifies findings, and offers a new integrated theory, with ramifications for the courts).
• In Doubt: The Psychology of the Criminal Justice Process, Dan Simon, Harvard U. Press (2012) (SSRN) (forthcoming volume examines how flawed investigations produce erroneous evidence and why well-meaning juries send innocent people to prison and set the guilty free).
Suggestions or corrections? Email Michael_Drake@fd.org.