(Cross-posted from the C.D. Cal. Federal Public Defender Blog.)
Administrative note: Due to a CJA panel training next week and a possible (though, let's face it, not likely) stint on jury duty the week after that, the next edition of the Roundup will post no earlier than Monday, April 2.
In This Edition (to use bookmarks, first click blog post title):
Submitted for Your Deconstruction. Defender commentary and testimony for the U.S. Sentencing Commission's 2012 proposed amendment to the guidelines is available here. Guidelines addressed include those for fraud loss and victim tables, BZP equivalency and safety valve for chemical precursors, human rights offenses, criminal history, and sentencing on multiple counts that include at least one mandatory minimum.
Probation and Pretrial Services "Client Mapping." "A new software application will give the federal court system's probation and pretrial services officers much more information" about federal supervisees, according to U.S. Courts.
Exercise Bad for IDs. If you are challenging an ID by a witness who was doing heavy cardio at the time, you might want to check this write-up at New Scientist on a study about the effects of physical exertion on recall and recognition.
Too Dangerous To Go Free - Or To Get a Hearing. The commitment is in the present; the crime, in the future - along with due process. USA Today has this investigation into the federal system of civil commitment.
The Cognitive Costs of Colorblindness. Interesting post over at the Jury Room on a recent study suggesting that priming racially mixed groups for color-blindness (as opposed to priming them for multiculturalism) negatively affective the cognitive function (through "cognitvie depletion") of the ethnic minority. There was no effect on the white majority.
Top of the Ninth - 9th Cir. decisions released during the week.
• U.S. v. Cotterman (granting reh'g en banc in case involving "border search" of computer conducted 170 miles from any border).
• U.S. v. Nguyen (campaign letter by defendant, who was candidate for House of Representatives, to foreign-born registered voters supported magistrate's probable cause finding that mailing likely violated California state law prohibiting intentional acts of voter intimidation, despite that defendant was never charged under California law) (voter-intimidation law did not violate First Amendment).
• Peng v. Holder (immigration) (aliens convicted of crime involving moral turpitude before enactment of IIRIRA are eligible for repealed INA §212(c) relief even if they went to trial, as long as they can show reliance).
• U.S. v. Resuleo-Flores (N.D. Cal.) (dismissing §1326 indictment because immigration judge failed to inform defendant about eligibility for U-Visa).
· Martinez v. Ryan (habeas) (reversing Ninth, holding that federal court may excuse procedural default of IAC claim that was not properly presented in state post-conviction proceedings due to attorney's errors).
· Lafler v. Cooper (habeas) (proper remedy where incompetent advice to reject favorable plea resulting in trial and more severe sentence is either (1) resentencing to sentence in plea, to same sentence already imposed, or to anything in between; or (2) deciding whether to vacate conviction and accept plea or leave conviction undisturbed). (Huh?)
· Missouri v. Frye (habeas) (defense counsel must communicate potentially favorable, formal plea offers from prosecution) (showing of prejudice requires reasonable probability that defendant would have accepted offer and that prosecution or trial court would not have prevented implementation of agreement).
Grants of Certiorari:
· Tibbals v. Carter/Ryan v. Gonzales (habeas) (whether capital prisoners have right to be competent in habeas proceedings and whether court can stay those proceedings).
· Vasquez v. U.S. (whether harmless error review or Sixth Amendment require consideration of effects of error on jury - here, erroneous admission of trial counsel's statements that client would lose and should plead out).
· Reichle v. Howards (effect of probable cause on First Amendment challenge to arrest).
· Miller v. Alabama/Jackson v. Hobbs (whether LWOP imposed on 14-year-old for capital murder violates Eighth Amendment).
· Southern Union Co. v. U.S. (whether Apprendi applies to criminal fines).
• U.S. v. Ibisevic (4th Cir.) (in cash smuggling and failure-to-report case, district court's conceded error in improperly excluded defendant's mother's testimony regarding his statements at time of arrest was not harmless, where statements would have shown he misunderstood questions about checked luggage).
• U.S. v. Doswell (4th Cir.) (use of chemist's drug analysis report in revocation hearing failed to balance need for cross under Fed. R. Crim. P. 32.1(b)(2)(C)).
• U.S. v. McCraney (6th Cir.) (where officers outnumbered defendant and passenger, Gant barred search incident even though detainees weren't handcuffed).
• U.S. v. Miller (7th Cir.) (in cocaine distribution case, testimony about defendant's eight-year-old conviction for cocaine possession with intent to distribute to show "intent" here was impermissible propensity evidence).
• U.S. v. Aquino (8th Cir.) (defendant's "nervous" appearance and his interest in police encounter with another bus passenger were not probable cause to lift defendant's pant leg after he was in handcuffs).
The Week in Sausage Making. Measures introduced include H.R. 4223 (theft of medical products); H.R. 4232 (to narrow FOIA exemptions so they don't include quasi-commercial transactions by federal instrumentalities).
For the Bookworms - New books and scholarly articles of note.
• "Undercover Policing, Overstated Culpability," Katie Tinto, working paper (2012) (SSRN) (argues for a doctrine of sentencing manipulation that directs courts' focus to the inducements used by police that overstate a defendant's culpability, and that elicit conduct that should not be included in the sentencing calculus).
• NOTE: "Safe for Work? Analyzing the Supreme Court's Standard of Privacy for Government Employees in Light of City of Ontario v. Quon," Sheila Anne Bentzen, Iowa L. Rev. (2012) (SSRN) .
• "Protecting Apartment Dwellers from Warrantless Dog Sniffs," Joseph Magrisso, U. Miami L. Rev. (forthcoming) (SSRN) (advice to the SCOTUS about how it should decide Florida v. Jardines).
• "No More Chipping Away: The Roberts Court Uses an Axe to Take Out the Fourth Amendment Exclusionary Rule," Tracey Maclin & Jennifer Marie Rader, 81 Miss. L.J. 151 (2012) (SSRN).
• The Machinery of Criminal Justice, Stephanos Bibas (2012) (Amazon) (from a sort of restorative-justice-meets-victims-rights-retributivism perspective, describes and laments how the plea machine has come to silence both victims and defendants, and advocates various policy prescriptions ranging from requiring military service to restorative sentencing juries). Greenfield says beware.
Suggestions or corrections? Email Michael_Drake@fd.org.