(Covering cases and materials for the week of April 2. Cross-posted from the C.D. Cal. Federal Public Defender Blog.)
In This Edition (to use bookmarks, first click blog post title):
Coming to a District Near You (?): DOJ's New Lafler/Frye Motions. White Collar Crime Prof Blog takes a critical look at a new motion the government has been running (in at least one district), which seeks to "make a specific record of plea negotiation activity" in light of the Supreme Court's recent decisions in Lafler v. Cooper and Missouri v. Frye. UPDATE (4.12.12): Another post by WCCPB with some more thoughts and caveats is here.
Brown Grants Clemency in "Shaken Baby" Case. Story at the Los Angeles Times.
At the Movies. Another shaken baby syndrome case is at the center of the new documentary Scenes of a Crime, which chronicles the story of Adrian Thomas, who was wrongfully convicted after falsely confessing to killing his four-month-old son. (H/T Innocence Blog.)
Top of the Ninth - 9th Cir. decisions released during the week.
• U.S. v. Manzo (habeas) (in drug possession and distribution case, counsel's failure to anticipate that offenses would be grouped for sentencing purposes and to advise withdrawal from plea agreement was IAC) (finding government breached plea agreement, even though prior panel found no breach on review for plain error). Ninth Circuit Blog's analysis here.
• U.S. v. Wilbur (in contraband cigarette trafficking case, reversing conviction with respect to what was in effect first of two conspiracies, because it terminated when Washington state retroceded its cigarette taxation to the defendants' Tribe through contract, with the result that the five-year limitations period had run by the time of indictment) (affirming conviction with respect to second conspiracy, holding that retrocession did not cover transport and sale after contract expired, and that the tax laws did not violate due process or the Treaty at Point Elliott).
• U.S. v. Onyesoh (unauthorized access devices under §2B1.1(b)(1)(G) must be usable, and there was no showing here defendant ever tried to use expired credit card numbers he possessed or that he had possessed them before they expired).
• Muth v. Fondren (habeas) (transferee court could proceed to merits of petition once transferor court had properly determined §2241 claim was disguised §2255 claim) (declining to issue COA because no reasonable jurist would conclude petitioner was "actually innocent" of §924(c) "use" enhancement as interpreted in Watson, where evidence showed that he supplied firearm in trade for drugs rather than the other way around).
• Wentzell v. Neven (habeas) (sua sponte dismissal of pro se petition as untimely, without providing petitioner with notice and opportunity to respond, was error) (petition was first to challenge new, intervening, partially amended judgment and so not "second or successive").
• Ben-Sholom v. Ayers (habeas) (in felony-murder robbery case, counsel's undisputedly deficient investigation of petitioner's mental health was not prejudicial in light of overwhelming evidence that he had intended to commit burglary when he entered the victim's home and when he took weapons by force).
• Schneider v. McDaniel (habeas) (state court did not unreasonably apply Dawson in concluding that introduction of petitioner's Aryan Brotherhood membership was harmless error) (petitioner's claim that Dawson claim required an evidentiary hearing did not merit expansion of COA) (rejecting petitioner's other arguments regarding relation back, procedural default, and tolling).
SCOTUS Focus. SCOTUSblog has an update on OT11 and stat pack, here. As for decisions and orders this week:
• Rehberg v. Paulk (civil) (grand jury witnesses are absolutely immune from §1983 suits).
• Florence v. Bd. of Freeholders (civil) (jail strip searches of those in general jail population do not require reasonable suspicion).
• Moncrieffe v. Holder (immigration) (granting cert on whether state offense encompassing free distribution of small amount of marijuana is an aggravated felony).
• Vasquez v. U.S. (order dismissing writ for review of harmless error issue as improvidently granted).
• U.S. v. Keen (11th Cir.) (fraud and bribery convictions secured in different trials and involving conduct three years apart could not be grouped under the guidelines).
• U.S. v. Dossie (E.D.N.Y.) ("This case illustrates how mandatory minimum sentences in drug cases distort the sentencing process...."). Via Steve Sady at Ninth Circuit Blog, who has more analysis.
• U.S. v. Poor (E.D. Ky.) (warrantless 16-hour seizure of FedEx package was unreasonable).
• U.S. v. Hamelin (E.D.N.C.) ("hebephilia" - attraction to pubescent or post-pubescent minors - is not a valid diagnosis for purposes of civil commitment).
For the Bookworms - New books and scholarly articles of note.
• "Racial Disparities, Judicial Discretion, and the United States Sentencing Guidelines," Joshua B. Fischman & Max M. Schanzenbach (working paper) (SSRN) (attributes post-Booker increase in racial disparities to increased relevance of mandatory minimums, and argues that judicial discretion may in fact mitigate such disparities).
• "Race, Prediction & Discretion," Shima Baradaran, Geo. Wash. L. Rev. (forthcoming) (SSRN) (argues that police arrest black defendants more often for drug crimes than they do white defendants, that little evidence supports a link between drugs and crime, but that judges detain white defendants more than similarly-situated black defendants for all types of crimes).
• "Justice in the Shadowlands: Pretrial Detention, Punishment, and the Sixth Amendment," Laura I. Appleman (working paper) (SSRN) (argues that the effectively punitive conditions of incarceration violate the Sixth Amendment; advocates for certain reforms).
• "Confronting Supreme Court Fact Finding," Alli Orr Larsen, Va. L. Rev. (forthcoming) (SSRN) (looks at how new technology has affected and will affect the Court's fact-finding, with over 100 examples of findings made "in house," and examines potential dangers with such findings, including mistake, systematic biasing, and notice/legitimacy problems).
• "The Politics of Privacy in the Criminal Justice System: Information Disclosure, the Fourth Amendment, and Statutory Law Enforcement Exemption," Erin Murphy, Mich. L. Rev. (forthcoming) (SSRN) (examines how the federal statutory approach to regulating privacy mimics, overlaps with, and differs from the Fourth Amendment approach).
• "The Missed Opportunity of United States v. Jones - Commercial Erosion of Fourth Amendment Protection in a Post-Google Earth World," Mary Leary (working paper) (SSRN) (identifies "assault on the expectation of privacy due to 'corporate conditioning' of the consumer").
• "Wrong About the Right: How Courts Undermine the Fair Cross-Section Guarantee by Imposing Equal Protection Standards," Nina Chernoff (working paper) (SSRN).
• "A Spectacular Non Sequitur: The Supreme Court's Contemporary Fourth Amendment Exclusionary Rule Jurisprudence," David C. Gray, Am. Crim. L. Rev. (forthcoming) (SSRN) (argues that exclusion is justified not merely on deterrence grounds but on retributivist grounds as well).
• "The First Amendment's Borders: The Place of Holder v. Humanitarian Law Project in First Amendment Doctrine," David Cole, 6 Harv. L. & Pol'y Rev. 148 (2012) (SSRN) (argues that HLP was wrongly decided, and that until it's overturned, it should be limited to when the government is prohibiting speech coordinated with or directed to foreign organizations that have been subjected to diplomatic sanctions for compelling national security reasons).
• "Why Sit En Banc?," Stephen L. Wasby, 63 Hastings L.J. 747 (2012) (pdf) (presents a detailed description of reasons judges offer).