The FPD's TGIF Roundup

In This Edition:

News to Use | Top of the Ninth | Short Circuits | The Week in Sausage Making | For the Bookworms

News to Use.

• Psychologists' scoring of forensic tools depends on which side they believe has hired them
• Gender, Weight, Stereotypes, and Prejudice
• DOJ agrees with US Sentencing Commission that child porn guidelines are badly broken
• Heavyweight - How Ruth Bader Ginsburg has moved the Supreme Court

Top of the Ninth - 9th Cir. decisions released during the week.

• U.S. v. Brizan (appeal waiver was valid, and covered appeal from denial of motion, filed after change of counsel, to withdraw plea).
• U.S. v. King (Fourth Amendment permits suspicionless search of probationer's residence when defendant agreed to probation condition permitting warrantless searches absent probable cause) (dissenting, Berzon says majority gives short shrift both to agreement's distinctive language and to probationers' expectations of privacy). UPDATE (3.26.13): Ninth Circuit Blog's analysis here.
• U.S. v. Cotterman (en banc) (examination of computer in "border search" 170 miles away from border where initially seized was not "extended border search," where computer never cleared customs and defendant never regained possession) (but in border searches, "uniquely sensitive nature" of electronic devises like computers renders exhaustive exploratory search more intrusive than usual, and so requires reasonable suspicion) (there was reasonable suspicion here in light of circumstances that included TECS alert and fact that files were password-protected). UPDATE (3.11.13): Ninth Circuit Blog's analysis here.
• Walker v. Martel (§2254) (attorney's failure to object to shackling did not prejudice client at trial or penalty phase) (in partial dissent, Gould states he would find penalty-phase violation).
• Schad v. Ryan (order denying reh'g of unpublished order that had reconsidered prior denial of Martinez relief (in decision here) and stayed mandate).

Short Circuits.

• U.S. v. Moore (4th Cir.) (district court's denial of motion for new trial because of defendant's "perjured testimony" and "disingenuous" defense was abuse of discretion). (H/T)
• U.S. v. Rousel (5th Cir.) (down payment on bribe was one bribe under §2C1.1(b)(1), notwithstanding future installments supposedly contemplated). (H/T)
• U.S. v. Hunter (7th Cir.) (defendant's statement - "Can you call my attorney?" - was unambiguous invocation of right to counsel) (subsequent question by officers - "What do you want me to tell these people?" - was interrogation). (H/T)
• U.S. v. Bell (D.C. Cir.) (on direct appeal, remand appropriate to resolve whether trial counsel was ineffective for failure to advise about possible safety-valve application in his case). (H/T)

The Week in Sausage Making. Measures introduced include S. 443/H.R. 955 (to provide penalties for gun straw-purchasers); H.R. 964 (to provide that federal drug laws don't preempt state drug laws); S. 478 (to bar judicial review of alien visa revocations).

For the Bookworms - New books and scholarly articles of note.

• "Constitutional Line Drawing at the Intersection of Childhood and Crime," Stan. J. Civ. RIghts & Civ. Liberties (2013) (SSRN).
• "The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information," David Pozen, Harv. L. Rev., forthcoming (SSRN).
• "Criminal Constitutional Avoidance," William W. Berry III, working paper (SSRN).
• "How Many False Convictions Are There? How Many Exonerations Are There?," Samuel R. Gross, from Wrongful Convictions and Miscarriages of Justice: Causes and Remedies in North American and European Criminal Justice Systems (2013) (SSRN).
• "Prospective Perjury by a Criminal Defendant: It's All about the Lawyer," Ray McKoski, Az. St. L.J. (2012) (SSRN) (purports to debunk the idea that a rule defining counsel's response to a client's planned perjury is necessary to prevent false evidence from infecting trial, and presents an alternative, "supplemental counsel" approach).
• "When Deference Is Dangerous: The Judicial Role in Material-Witness Detentions," Lauryn P. Gouldin, Am. Crim. L. Rev. (2012) (SSRN).
• "Deporting the Pardoned," Jason A. Cade, 46 U.C. Davis L. Rev. 355 (2012) (pdf) (argues that under federalism principles, Congress should be required to clearly state its intent to override state pardons and the like).

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Suggestions or corrections? Email Michael Drake.