(Cross-posted from the C.D. Cal. Federal Public Defender Blog.)
In This Edition (to use bookmarks, first click blog post title):
Blind Mule Variations. The good folks at the Office of Defender Services have put up a new resources page to help with your blind mule defenses.
What Works in Reentry. The National Reentry Resource Center has made available a What Works in Reentry Clearinghouse, which offers "easy access to important research on the effectiveness of a wide variety of reentry programs and practices." An easy-to-spot visual ratings key (with "high rigor" and "basic rigor" rating sets) is included. (H/T SentenceSpeak.)
Constructive Alternatives to Criminalization. A new guide published by the Department of Justice seeks to "generate greater awareness" about the resources available through the DOJ to serve homeless people involved in the criminal justice system. The tool "should be used as a guide for stakeholder seeking to implement innovative justice system strategies" for dealing with this vulnerable population.
Terror Management and Entrapment. Over at Rolling Stone, Rick Perlstein (Nixonland, Before the Storm) has a report on "How FBI Entrapment Is Inventing 'Terrorists' - and Letting Bad Guys Off the Hook."
The <strike>Week</strike> Fortnight in Gunn. Former AFPD Carl Gunn continues his blogging streak with a pair of interesting posts - this one on forestalling ICE detainers on defendants when they are out on bond in criminal cases; and this one on wiretaps that were applied for by a state attorney who was not "the principal prosecuting attorney" of the state or state subdivision.
Top of the Ninth - 9th Cir. decisions released during the week.
• U.S. v. Johnson (§924(a)(1)(A) making false statement with respect to information required to be kept by a federal licensed firearms dealer does not require that false statement relate to lawfulness of underlying sale) ("actual buyer" question on ATF form is required information, and proof that defendant falsely identified himself as actual buyer at time of purchase was sufficient for conviction) (instruction on witness credibility was sufficient).
• U.S. v. Leal-Vega (California Health & Safety Code §11351 conviction is not categorical "drug trafficking offense" under §2L1.2) (but it was a "drug trafficking offense" under modified categorical approach, where complaint, minute order and abstract of judgment established defendant plead to sale of tar heroin, a covered substance) (district court's erroneous holding otherwise was not made harmless by statement that sentence complied with §3553(a)). UPDATE (6.6.12): Ninth Circuit Blog's analysis here. UPDATE (6.6.12): Ninth Circuit Blog's analysis here.
• U.S. v. Gomez-Hernandez (Arizona's attempted aggravated assault statute is categorical crime of violence under §2L1.2; generic aggravated assault does not require threat or use of violence, and generic aggravating factors include intent to cause serious bodily injury and use of deadly weapon to cause bodily injury).
• U.S. v. Perea-Rey (Border Patrol's warrantless search within curtilage when they entered carport visible from sidewalk was not justified by "knock and talk," where officer's actions - following suspected undocumented alien through gate, bypassing front door, and ordering everyone outside - were inconsistent with attempt to initiate consensual contact with occupants of home).
• U.S. v. King (en banc order to review decision that had held suspicionless probation search valid under Fourth Amendment).
• Ordonez v. U.S. (defendant was not entitled under Fed. R. Crim. P. 41(g) to return of property seized during his arrest) (claim for money damages under Rule 41(g) was barred by sovereign immunity).
• Flournoy v. Small (§2254) (forensic analyst's testimony on results performed by other analysts did not violate any law clearly established at the time) (trial counsel's failure to object on confrontation grounds did not support IAC claim) (counsel's alleged failure to offer expert evidence to respond to crime lab reports and testimony was trial tactic and not deficient performance, and so no COA would issue).
• Lewis v. Ayers (§2254) (appeal from district order finding petitioner competent and denying stay of habeas proceedings was not immediately appealable and did not satisfy factors for mandamus relief).
• Martinez v. Ryan (§2254) (on remand from Supreme Court, reversing and remanding for proceedings consistent with Court's decision)
SCOTUS Focus. The Court summarily reversed the Third Circuit in Coleman v. Johnson, holding that the state's rejection of Johnson's sufficiency challenge to his conviction as accomplice and co-conspirator in the murder of Taraja Williams was not unreasonable under AEDPA. The Court also vacated four unpublished judgments in the Ninth for further consideration in light of Holder v. Gutierrez (parent's lawful permanent resident status cannot be imputed to minor child to show continuous residence for cancellation of removal). And from SCOTUSblog, an updated stat pack.
Short Circuits (and Solid States).
• U.S. v. Louchart (district court erred by enhancing based on number of firearms charged in indictment, where defendant had not admitted at plea to receiving that number) .
• Evans v. Sec. Dep't of Corrections (11th Cir.) (§2254) (state supreme court unreasonably discounted evidence of brain damage, which competent counsel could have used in mitigation).
• U.S. v. Peter (N.D. Ind.) (dog sniff on porch violated Jones).
The Week in Sausage Making. Measures introduced include H.R. 5869 (bill to authorize cancellation of removal and adjustment of status for long-time resident aliens who entered as children).
For the Bookworms - New books and scholarly articles of note.
• "Predicting Reoffense for Community-Based Sexual Offenders: An Analysis of 30 Years of Data," Rebecca E. Swinburne Romine et al., Sexual Abuse (2012) (abstract) (study finds that only 4% of "noncontact" offenders recidivated during follow-up period, that reoffending drops precipitously after age 45, and that life-time probation and registration requirements are unlikely to improve community safety). See also Karen Franklin's blog for a quickie overview of some recent studies assessing evaluator disagreement in applying SVP risk tools.
• "The Fourth Amendment's Exclusionary Rule as a Constitutional Right," Thomas K. Clancy, Ohio St. J. Crim. L. (2012) (SSRN).
• "Punitive Preventive Justice: A Critique," Bernard E. Harcourt, in Preventive Justice, Oxford U. Press (forthcoming) (SSRN) (argues that besides getting the empirics wrong, current theories of punitive preventive detention, stop-and-frisks, and other preventive measures rely on economic cost-benefit justifications that effectively displace political contestation).
• "A Lockean Argument against the Death Penalty," Vernon Thomas Sarver, Jr., Brit. J. Am. Legal Stud. (2012) (SSRN).
• The Honest Truth about Dishonesty: How We Lie to Everyone - Especially Ourselves, Dan Ariely (2012) (Amazon) (except me).
Suggestions or corrections? Email Michael Drake.