Administrative Note: Jury duty potentially looms for the editor, so the Roundup may be a bit sporadic over the next several weeks. As always, cross-posted from the C.D. Cal. Federal Public Defender Blog.
In This Edition (to use bookmarks, first click blog post title):
"Convicted Defendants Left Uninformed of Forensic Flaws Found by Justice Dept." So reports the Washington Post.
Don't Blink. Jonah Lehrer has this preview in the Wall Street Journal of a forthcoming paper that argues eyewitness identification can be improved by severely limiting the time witnesses have to make up their minds. Turns out that giving witnesses more than the minimal time actually needed for identification (about two seconds) to "deliberate" only gives them more time to look for cues and guidance, or to be swayed by hints from police or lawyers, and so to "talk [them]selves into having a memory that doesn't actually exist."
It Matters If You're Black Or White. In a study, discussed here, researchers found that juries from all-white jury pools in Florida convicted black defendants 16 percent more often than they did white defendants.
Report: Deterrent Effect of Death Penalty Still Unclear. Research to date on the effect of capital punishment is not useful determining whether the death penalty increases, decreases, or has no effect on homicide rates, according to this new report from the National Research Council/National Academy of Sciences. UPDATE (6.15.12): Some more on the report at Bloomberg.
Gunn-ing for California Priors. Another good one this week from Carl Gunn on how to Taylor those California priors. (See what we did there?)
Ninth Circuit Annual Report (2011). It's here, with sections devoted to the new e-voucher system, circuit judges' "embrace" of the iPad, and the challenges to posed to defender offices (and others) by growing caseloads.
If SCOTUS Won't Deal with Prosecutorial Misconduct... Maybe the state bar association will.
New Rules. Friday the 13th was a lucky day for some of your clients. The Sentencing Commission promulgated new amendments - and some of them are even favorable. The good folks at Defender Services have prepared a handy summary of the favorable (and not so favorable) changes. The Commission's press release is here. Barring congressional action, the amendments will take effect on November 1.
Top of the Ninth - 9th Cir. decisions released during the week.
• U.S. v. Swank (in sentence for abusive sexual contact violation, enhancement under §2A3.1(b)(3) was not error, where defendant resided in home and shared caretaking responsibilities for two children who lived there, was present while victim - wife's minor niece - stayed there, and prepared food for all three children).
• Cross v. Sisto (habeas) (California Supreme Court's citations to Swain and Duvall did not necessarily mean state petition was denied as untimely, and so §2254 petition was tolled while properly filed state petitions were pending).
• U.S. v. Austin (under Freeman, district court lacked jurisdiction to grant §3582(c) motion to reduce sentence because it was based on (c)(1)(C) agreement rather than on sentencing range subsequently lowered by Sentencing Commission). UPDATE (4.23.12): Ninth Circuit Blog's analysis here.
• Noble v. Adams (habeas) (vacating denial of §2254 and remanding for determination of whether under California law four and a half month delay between petitioner's first state habeas petition and petition in appellate court was reasonable).
• In re: Pacific Pictures (civil) (declining to adopt "selective waiver" doctrine, under which disclosure to government does not otherwise waive privilege; declining same as to such disclosures by victims of crime; and declining to enforce confidentiality agreement purportedly established by letter from U.S. Attorney's Office).
• Filarsky v. Delia (civil) (private party temporarily retained by government to carry out government work is entitled to seek qualified immunity from §1983 suits).
• Dorsey v. U.S./Hill v. U.S. (application of FSA to pipeline cases).
• U.S. v. Rodriguez (D.C. Cir.) (defendant who eventually came clean was eligible for safety valve even though he'd lied during debriefing, and counsel's failure to request it was IAC).
• U.S. v. Heicklen (E.D.N.Y.) (distributing pamphlets about jury nullification in front of courthouse is not jury tampering). Jacob Sullum has more.
The Week in Sausage Making. Measures introduced include H.R. 4362 (identity theft legislation); H.R. 4388 (would clarify that military authorization statutes do not bar habeas relief to certain detainees).
For the Bookworms - New books and scholarly articles of note.
• "Requiring Dangerousness: An Idea Whose Time Has Come (Again)," Steve R. Morrison, working paper (SSRN) (rejects the idea that conspiracies are a distinct evil" per se and argues that instead a given conspiracy must be shown to be dangerous before criminal liability should attach).
• "American Criminal Justice Exposed: A Review of The Collapse of American Criminal Justice by William Stuntz," Christopher Slobogin, Crim. J. Ethics (2012) (SSRN) (review of Stuntz's book).
• "The Constitution on Trial: Article III's Jury Trial Provision, Originalism, and the Problem of Motivated Reasoning," Stephen A. Siegel, Santa Clara L. Rev. (2012) (SSRN).
• "Choosing Punishment," Miriam H. Baer, B.U. L. Rev. (2012) (SSRN) (argues that it's easier to attract public and political support for state-sponsored punishment than for regulation, which undermines and crowds out nonpunitive, regulatory alternatives that are more effective).
• "Expanding Stare Decisis," Loy. L. Rev. (2012) (SSRN) (argues that justificatory stare decisis has facilitated expansion of criminal due process while formal stare decisis has constrained doctrinal growth, mapping out the dialectic with a focus on Brady).
• "Evidentiary Instructions and the Jury as Other," David Alan Sklansky, Stan. L. Rev. (2012) (SSRN) (argues that limiting instructions are both more effective and less necessary than widely believed).
• In Chambers: Stories of Supreme Court Law Clerks and Their Justices, Todd C. Peppers & Artemus Ward, eds. (2012) (Amazon) (collection of essays from former law clerks, legal scholars, biographers, historians and political scientists).
Suggestions or corrections? Email Michael_Drake[email protected]