(X-posted from the C.D. Cal. Federal Public Defender Blog.)
In This Edition:
For the weeks of January 25 and February 1.
The Thin Blue Lie. Michelle Alexander ("The New Jim Crow") writes at the New York Times on why police lie under oath.
From Harris County to Your County. A Harris County DA has "asked that evidence in hundreds of drug cases be retested because of questions that have arisen about a crime lab analyst who did the original testing," reports the Houston Chronicle. The local angle comes courtesy of Grits for Breakfast: the analyst, Jonathan Salvador, formerly worked for the Los Angeles Police Department's crime lab.
"Minimize" Recordings to Maximize Your Defense. Dan Broderick returns to Carl Gunn's blog for another guest stint. This time around, he points out that we need to seek more disclosure about the software the government is using (when it's clear the government is using it) in its wiretaps to ensure that the program in question "minimizes" the recording of calls as required by statute.
How Do You Spell "Sufficient, but Not Greater than Necessary"? If you're the U.S. Attorney General for the Southern District of Indiana, it appears that you spell it "Producing the longest average prison sentences in the country."
Petrified Opinions. The Judicial Conference has opened up its pilot project to provide free public access to text-searchable court opinions. Until now, the project had been limited to twenty-nine courts, but it's now open to all. You can check out the database on the FDsys website. You can click on the district or circuit and year you want to run your search on, and go. Or just go to the advanced search page, here. (So far, there are nineteen districts reporting; alas, the Central District is not yet one of them.)
Top of the Ninth - 9th Cir. decisions released during the fortnight.
• U.S. v. Jesus-Casteneda (CI's testimony at trial while wearing wig-and-mustache disguise for safety did not violate Confrontation Clause, where reliability was otherwise assured) (any due process violation caused by the disguise was harmless BARD).
• U.S. v. Davis (forfeiture need not be offset by restitution to avoid double recovery, since the one is punitive, the other compensatory). UPDATE (3.4.13): Ninth Circuit Blog's analysis here.
• U.S. v. Doe (defendant had burden to prove public authority defense because it would not negate "knowning" mens rea required by particular statute charged) (failure to instruct jury as to burden and standard was error, but not plain) (denial of defense discovery requests as overbroad was abuse of discretion) (procedural errors at sentencing cumulatively required vacatur). Ninth Circuit Blog's analysis here.
• Thompson v. Runnels (§2254) (state court reasonably denied relief based on Oregon v. Elstad) (despite state's "extraordinary delay" [Berzon, dissenting], state did not waive argument that only Elstad was relevant CEFL, and court would not consider his two-step interrogation claim under Missouri v. Seibert, even though prior panel had assumed Seibert was CEFL at the time).
• Barragan-Lopez v. Holder (immigration) (California Penal Code §210.5, false imprisonment, is categorical crime of violence under 18 U.S.C. §16(b)).
Grants of Certiorari:
• U.S. v. Bond (whether Congress may implement treaty with legislation that, as applies, exceeds scope of treaty and intrudes on state prerogatives) (whether implementing legislation here, 18 U.S.C. §229, can be interpreted not to reach ordinary poisoning cases).
• Metrish v. Lancaster (whether Michigan Supreme Court decision recognizing that state statute abolished diminished-capacity defense was unexpected change in common law under Rogers v. Tennessee) (whether Michigan Court of Appeal's retroactive application of that decision justified habeas relief under Harrington v. Richter).
• U.S. v. Diallo (3d Cir.) (district court can't presume that combined credit limit of counterfeit cards was intended loss). (H/T)
• U.S. v. Resendiz-Moreno (5th Cir.) (Georgia conviction for cruelty to children categorically not crime of violence under §2L1.2). (H/T)
• U.S. v. Roussel (5th Cir.) (erroneous application of 2-level for more than one bribe and 16-level for expected benefit were harmful despite 99-month downward variance). (H/T)
• U.S. v. Demmitt (5th Cir.) (defendant's deposit of fraudulently obtained cashier's check and subsequent wire of funds to brother under own address and name lacked all indicia of unusualness or concealment required to show money laundering). (H/T)
• U.S. v. Sharma (5th Cir.) (in health insurance fraud case, restitution was improperly based on overstated victim impact statements) ("[A]wards cannot be excused by harmless error; every dollar must be supported by record evidence."). (H/T)
• U.S. v. Dias-Rios (7th Cir.) (district court inadequately explained basis for refusing mitigating-role reduction sponsored by both parties, which was inadvertently left out of PSR). (H/T)
• U.S. v. Vidal (7th Cir.) (district court inadequately explained rejection of defendant's mitigation arguments about his psychological problems). (H/T)
• U.S. v. Block, et al. (7th Cir.) (seeing coconspirator's firearm at his home or on his person does not make possession reasonably foreseeable in connection with conspiracy's drug business as required for application of §2D1.1(b)(1)). (H/T)
• U.S. v. Jimenez (11th Cir.) (conflict of interest alone is insufficient to support conviction for misapplying money from federally-funded organization under §666). (H/T)
• U.S. v. Diaz (E.D.N.Y.) ("I will place almost no weight on the [Guidelines recommendation]. The flaw is simply stated: the Guidelines ranges for drug trafficking offenses are not based on empirical data, Commission expertise, or the actual culpability of defendants."). (H/T)
• U.S. v. Newhouse (D. Ia.) (Career Offender guideline results in sentencing recommendations that are "aperiodic, irrational, and arbitrary").
The Week in Sausage Making. New public laws include H.R. 6029 ("Foreign and Economic Espionage Penalty Enhancement Act"). Measures introduced include S. 162 (to reauthorize and improve the Mentally Ill Offender Treatment and Reduction Act of 2004).
For the Bookworms - New books and scholarly articles of note.
• "Ham Sandwich Nation: Due Process When Everything Is a Crime," Glenn Harlan Reynolds, working paper (SSRN) (argues that the plethora of criminal laws and regulations enables prosecutors to charge almost anyone).
• "Overcoming Overcriminalization," Stephen F. Smith, J. Crim. L. & Criminology (2012) (SSRN) (argues that federal courts can help overcome wanton overcriminalization by Congress through interpreting criminal statutes more narrowly).
• "Rethinking Restitution in Cases of Child Pornography Possession," Jennifer A.L. Sheldon-Sherman, Lewis & Clark L. Rev. (forthcoming 2013) (SSRN).
• "Consent, Dignity, and the Failure of Scattershot Policing," Janice Nadler, from The Constitution and the Future of Criminal Justice in America, Cambridge U. Press (forthcoming) (SSRN) (on the way to calling for local and state solutions, argues that the Supreme Court's Fourth Amendment jurisprudence has encouraged aggressive targeting of large numbers of mostly innocent people for stops and searches, almost all premised on highly questionable notions about consent).
• "Eyewitness Memory for People and Events," Gary L. Wells & Elizabeth F. Loftus, from Handbook of Psychology, Vol. 11 (2013) (SSRN) (research-based explanation of how details of events can be changed, or how events can be implanted entirely, when witnesses are exposed to post-event information).
• "Off the Fourth Amendment Leash?: Law Enforcement Incentives to Use Unreliable Drug-Detection Dogs," Leslie A. Shoebotham, working paper (SSRN).
• "The Juror, The Citizen, and The Human Being: The Presumptions of Innocence and the Burden of Judgment," Sherman J. Clark, Crim. L. & Philosophy (2013) (SSRN) (argues that the presumption of innocence works not primarily as a diagnostic legal rule, but as a moral framing device, encouraging jurors to feel and bear the weight of their judgment).
• "Restitution," Michael M. O'Hear, from Encyclopedia of Criminology and Criminal Justice (forthcoming 2013) (SSRN) (general overview of key issues and controversies on the topic).
• "The Relational Nature of Privacy," Laurent Sacharoff, Lewis & Clark L. Rev. (2012) (SSRN) (argues for a greater expectation of privacy as against government than as against neighbors and friends).
• "The Right to Silence in the Hague International Criminal Courts," Mark Berger, U. San Fran. L. Rev. (2012) (SSRN).
• "Hot Pursuit into Indian Country: What Are the Limits," Alexander Tallchief Skibine, working paper (SSRN).
• Punishment, Thom Brooks (2013) (Amazon) (critical introduction to the philosophy of punishment, which examines all leading contemporary theories, along with several case studies).
• My Beloved World, Sonia Sotomayor (2013) (Amazon) (memoir by the Supreme Court Justice).
Suggestions or corrections? Email Michael Drake.