(Cross-posted from the C.D. Cal. Federal Public Defender blog.)
In This Edition (to use bookmarks, first click blog post title):
Extreme Due Process: Locked and Loaded. Attorney General Eric Holder explained on Monday that the United States can target its own citizens for killing (Holder eschewed "assassination" as a term that was too "loaded") when, in the administration's view, the "target" poses an "imminent threat" of violent attack and can't be captured by American authorities. Holder also explained, however, that this totally complies with all the relevant due process protections - which apparently happen not to include judicial review. Or legislative review. Or any review. Or formal, public procedures. Or (it probably goes without saying) notice and an opportunity to be heard. But other than that... And as for whether targeted killing can happen in the U.S., well, who can really say? More at Slate, Politico, and the New York Times.
The Inside (?) TRAC on Federal Sentencing... "[A]fter a 15-year struggle to get records from a reluctant Justice Department," the Transactional Records Access Clearinghouse has created a database of sentencing records that you can sort by judge. It's available (alas, subscription only) here. Exciting news? Maybe. FPD Michael Nachmanoff counsels some skepticism, at least about TRAC's initial analyses and the surrounding media coverage. More data-unpacking from Berman here.
A Jones for Warrantless GPS. After the Supreme Court's decision in U.S. v. Jones, it was widely reported that the FBI had ordered agents to stop using GPS tracking devices until further notice. Turns out, there were almost 3,000 of them.
Constitution Project on Brady Reform. The Constitution Project has published a Call for Congress to Reform Federal Criminal Discovery. The report is endorsed by among other people, 10 current and former AUSAs. (It is not, however, endorsed by this one.)
Seeing Through Online Deception. Karen Franklin flags a forthcoming study (no link yet available) suggesting that in an online chat environment, people can deduce the true age and gender of someone (like, say, a covert police operative) trying to deceive them from the other end.
Prisoners Guaranteed with Purchase. The economy is still sputtering along. And Corrections Corporation of America wants to help.
700 Is the New 420. Pat Robertson has stated he now favors decriminalization of marijuana use, according to Time's Healthland.
Top of the Ninth - 9th Cir. decisions released during the week.
• U.S. v. Loughner (involuntary pretrial medication of defendant requires substantive and procedural due process, which was met here) (with Berzon partially dissenting).
• U.S. v. Lequire (insurance agency treasurer's use of collected premiums for personal expenses wasn't embezzlement because funds were not "in trust" under state law)).
• U.S. v. Whitney (government's breaches of plea agreement - disclosure during court debriefing of information parties had agreed would remain confidential, and advocacy for sentence above low end - were plain error) (court also erroneously imposed guideline role enhancement) (case reassigned on remand). UPDATE (3.12.12): Ninth Circuit Blog's analysis here.
• U.S. v. George (order vacating prior opinion dismisses SORNA indictment because Act was not applicable to defendant under Valverde). UPDATE (4.4.12): Ninth Circuit Blog's analysis here.
• Pizzuto v. Blades (habeas) (successive petition was barred because based on same evidence as first petition) (new claims were barred for failure to show actual innocence) (petitioner could not show actual innocence of death penalty because one of the aggravators under Idaho law was sufficient) (with Fletcher dissenting).
• Wagner v. County of Maricopa (civil/evidence) (district court erred by limiting testimony of plaintiff-prisoner's sister, which went to state of mind) (suppression of any reference to pink underwear was abuse of discretion, since it showed how plaintiff's humiliation at "dress out" during jail transfer to psychiatric unit weighed on his mind).
• Oyeniran v. Holder (immigration) (Board was judicially estopped by prior determinations regarding violence against petitioner's family due to father's religious activism, and abused its discretion in denying motion to reopen to consider new evidence of religiously motivated arrest warrant).
SCOTUS Focus. The Court decided Martel v. Clair (habeas) (reversing 9th Cir.) (motions for substitute counsel under §3599 are assessed under same "interests of justice" standard that applies in noncapital cases under §3006A) (district court did not abuse its discretion applying that standard to deny petitioner's second request for new counsel despite claim that he wasn't pursuing potentially important evidence).
• U.S. v. Lewis (3d Cir.) (illegal tint did not provide reasonable suspicion for traffic stop after the fact) (tip from known source about guns in vehicle was not PC because the information didn't indicate guns were possessed illegally).
• U.S. v. Foster (4th Cir.) (order denying en banc review of ACCA decision 7-7, with some back-and-forth on whether the name of a business is sufficient to determine whether its address is a "building").
• U.S. v. Wright (E.D.N.C.) (slow response to officer's command to put hands on steering wheel was not reasonable suspicion).
• U.S. v. Salceda (C.D. Cal.) (warrant search for "further analysis" was vague as between analysis of previously discovered contraband and analysis to gather additional evidence of contraband).
And the Nominees Are... ...still waiting.
The Week in Sausage Making. The Senate passed S. 1886 ("Counterfeit Drug Penalty Enhancement Act"); next stop, the House. Measures introduced include S. 2169 (to require that Director of BOP be appointed with Senate's advice and consent); S. 2175/H.R. 4192 (to amend National Defense Authorization Act to provide for trial of covered detainees and repeal military custody requirement); H.R. 4154 (to decrease violent crimes against Indian women); H.R. 4171 (to repeal provisions of Lacey Act related to violations of foreign law); H.R. 4190 (to enhance penalties for straw purchasers of firearms).
For the Bookworms - New books and scholarly articles of note.
• "Habeas Corpus and Due Process," Brandon L. Garrett, 98-1 Cornell L. Rev. ___ (2012) (SSRN) (argues that Boumediene correctly located procedures governing military detention in the Suspension Clause, which could also ground domestic innocence claims).
• Note: "'Knowingly' Ignorant: Mens Rea Distribution in Federal Criminal Law after Flores-Figueroa," Leonid Traps, 112-3 Colum. L. Rev. ___ (2012) (SSRN) (argues that Flores-Figueroa interpretive approach should be extended to other statutory contexts).
• "Jurisprudence that Necessarily Embodies Moral Judgment: The Eighth Amendment, Catholic Teaching, and Death Penalty Discourse," Kurt M. Denk, 88 Notre Dame L. Rev. ___ (2012-2013) (SSRN) (explores certain historical and conceptual parallels between Catholic death penalty teachings and U.S. death penalty jurisprudence as a means to advance death penalty discourse).
• "Passwords, Profiles, and the Privilege against Self-Incrimination: Facebook and the Fifth Amendment," Caren Myers Morrison, Ark. L. Rev. (forthcoming) (SSRN).
• "From Peer-to-Peer Networks to Cloud Computing: How Technology Is Redefining Child Pornography Laws," Audrey Rogers, working paper (SSRN) (policy analysis argues the Sentencing Commission should adopt three categories of harm, respectively covering producers, traders, and endusers).
• Note: "Rising from the Ashes, but Not High Enough: Sykes' Clear-but-Failed Remedy for the Vague Residual Clause of the Armed Career Criminal Act," Mark R. Morgan, working paper (2011) (SSRN).
• Flagrant Conduct: The Story of Lawrence v. Texas, Dale Carpenter (2012) (Amazon).
• Defending Jacob: A Novel, William Landay (2012) (Amazon) (story of a DA whose fourteen-year-old son is charged with murder).
Suggestions or corrections? Email Michael_Drake@fd.org.