For the week of June 5, 2015
In this edition:
- Sentencing Manipulation/Sentencing Entrapment (updated) (Katharine Tinto) (H/T)
- New Quick Facts on §§922 & 924(c) (Sentencing Commission)
- State to create new lethal injection method under legal settlement (Los Angeles Times)
- New Deputy AG suggesting every too-long federal prison sentence hurts public safety (SL&P)
- Remind Them of Their Own Discovery Policies (Carl Gunn)
- UPDATE (6.8.15): Case o' The Week: Meeting of Minds in Different Times? Johnston and Conspiracy to Produce Child Pornography (Ninth Circuit Blog)
- Pensinger v. Chappell (Tallman, with Bea and Owens) (pre-AEDPA trial court failure to provide sua sponte kidnap-murder special circumstance instruction required under Green was nonharmless error, and required reversal of death sentence for murder of five-month-old child) (panel rejected state’s request to apply Teague).
- Cal. State Bar Formal Op. (proposed opinion) (detrimental information learned by lawyer during course of representing client must be protected as a “client secret” even if publicly available). (H/T)
Paul Rashkind’s Supreme Court Review-Preview-Overview (updated June 1) is here.
- Elonis v. U.S. (federal interstate threat statute, 18 U.S.C. §875, requires more than negligence).
- Mellouli v. Lynch (immigration) (courts must use categorical approach when applying removal statute for convictions “relating to” federally defined controlled substances, 8 U.S.C. §1227(a)(2)(B)(i)) (BIA’s interpretation makes “scant sense” given “incongruous upshot” that alien is not removable for possessing a substance controlled only under Kansas law, but is removable for using a sock to contain that substance under Kansas paraphernalia provision).
- U.S. v. Adams (4th Cir.) (sealing order) (in case where panel held for defendant on unknown grounds relating to unknown issues, some interesting back-and-forth between majority and concurrence about government’s duty under Berger to ensure “justice shall be done”). (H/T)
- U.S. v. Batamula (5th Cir.) (citing U.S. v. Bonilla, 637 F.3d 980 (9th Cir. 2011)) (district judge’s statement that deportation is “likely” does not cure counsel’s Padilla failure). (H/T)
- U.S. v. Clark (7th Cir.) (under false statements provision, 18 U.S.C. §1001, government must prove false statements were material to federal government).
- U.S. v. Macias No. 13-2166 (7th Cir.) (Posner, J.) (deliberate indifference (or “ostrich”) instruction requires evidence defendant did something that could reasonably be seen as intended to shield him from confirmation of his suspicion he was doing something illegal).
- Martinez v. Mares (10th Cir.) (unpub’d) (§1983) (law is clear that once it’s known person handcuffed isn’t person wanted, officers can’t keep cuffs on “until [they] could sort matters out”). (H/T)
- “The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court’s Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences,” Stephen R. Reinhardt, 113 Mich. L. Rev. 1219 (2015) (pdf).
- “The Presumption of Innocence and Trial Court Judges: Our Greatest Failing,” Hon. Mark W. Bennett, 39-APR Champion 20 (2015) (Champion).
- “Client Choice for Indigent Criminal Defendants: Theory and Implementation,” Stephen Schulhofer, ___ Ohio St. J. Crim. L. ___ (forthcoming) (SSRN). (H/T)
- “Stepping on (or Over) the Constitution’s Line: Evaluating FISA Section 702 in a World of Changing 'Reasonableness' Under the Fourth Amendment,” Patrick Walsh, ___ N.Y.U. J. Legislation & Pub. Pol’y ___ (forthcoming) (SSRN). (H/T)
- “Two strikes: race and the disciplining of young students,” J.A. Okonofua & J.L. Eberhardt, 26-5 Psychol. Sci. 617 (2015) (SSRN). (H/T)
- “Constructing Crimmigration: Latino Subordination in a 'Post-Racial' World,” Yolanda Vázquez, 76-3 Ohio St. L.J. ___ (2015) (SSRN). (H/T)
- “Bifurcation Nation: Strategy in Contemporary American Punishment,” Christopher Seeds, working paper (SSRN). (H/T)
- “Who is Responsible for the Stealth Assault on Civil Rights?,” Samuel R. Bagenstos, 114 Mich. L. Rev. ___ (2016) (SSRN). (H/T)
- “ The Parolee-Parole Officer Relationship as a Mediator of Criminal Justice Outcomes,” Brandy L. Blasko et al., ___ Crim. Just. & Behavior ___ (2015) (SAGE).