Strange Doctrines

The FPD's TGIF Roundup

For the week of July 26, 2010 (cross-posted from the Central District Federal Public Defender blog).

Crack Sentencing Reform Passes. After almost 25 years of 100-to-1 crack-to-powder sentencing, Congress has passed the Fair Sentencing Act of 2010, which would reduce to 18-to-1 the ratio of the threshold quantities triggering the mandatory minimums, and completely eliminate the five-year mandatory minimum for simple possession of crack cocaine. President Obama has vowed to sign the legislation. NPR has more on the story, here (featuring Federal Public Defender Michael Nachmanoff (E.D.Va.)). Naturally, so do many others.

Sauce for the Gander? When District Judge James Holderman excluded fingerprint evidence and accused government attorneys in the case of lying, U.S. Attorney General Patrick Fitzgerald complained to the Seventh Circuit. Sua sponte, the Circuit removed the judge from the case. The opinion is here.

New ICE Breaker. In case you weren't aware, ICE now has an online detainee locator, which allows online searching for detainees by name, county and date of birth, or A-Number.

Heavily Leveraging Skilling. "Skilling's reaffirmation of the doctrine of constitutional avoidance is a good reminder that we should be using this defendant-friendly rule of construction," explains Steve Sady.

Is Padilla Retroactive or Not? Noelleen Walder limns some of the points and authorities running in either direction.

The FPD's TGIF Roundup

For the week of July 19, 2010 (cross-posted from the Central District Federal Public Defender blog).

Top Secret America. That's the target of the Washington Post's major new investigative piece. Two years in the making, the investigation assays the complex of government organizations and private companies engaged in top secret government projects "hidden from public view and lacking in thorough oversight."

The Week in Exonerations. Innocence Blog notes several wrongfully convicted inmates who won big victories last week. As Snitching Blog observes, the 1993 Ohio murder case noted in IB's post is yet "another example of a shaky case built on compensated snitch testimony" that illustrates "how powerful an informant's allegations can be."

Ya Think? The Economist has commentary and separate "briefing" on the ever-upward ratcheting of custodial sentencing in America, concluding that the "extreme toughness of American laws . . . seems increasingly counterproductive."

In the Aftermath of the Broadcom Debacle. The Los Angeles Times "surveys the wreckage."

Disparate Impact. That's the reason the Justice Department says it wants the U.S. Sentencing Commission to investigate post-Booker sentencing trends in fraud and child pornography cases. The National Law Journal discusses the issue here.

Federal Offenders Sentenced to Supervised Release. That's the subject of a new, "comprehensive" study from the U.S. Sentencing Commission. To download a copy, click here. 

Throw the Books at 'Em. The Guardian reports on an alternative sentencing program - in Texas, mind you - called Changing Lives Through Literature, in which serious repeat offenders are sentenced to attend a reading group instead of prison. According to the article, the public "have been largely won over by the [program's] success rate[]." Did we mention that this was in Texas?

The FPD's TGIF Roundup

For the week of July 12, 2010 (cross-posted from the Central District Federal Public Defender blog).

The "Lie to Me" Effect. Watching the television drama "Lie to Me" makes viewers think they're better at detecting lies. Truth be told, it only makes them worse. That, according to research discussed here.

Is That a Fact? The Boston Globe reports on research findings suggesting that persons with erroneous beliefs who are exposed to factual corrections not only don't generally change their minds to conform to new evidence, but actually become more set in their prior beliefs. The studies noted in the article can be found here and here.

True Stories about False Confessions. Why would anyone confess to horrible crimes they didn't commit? "Seemingly unfathomable, it happens far more often than most people believe, experts say." So reports the Chicago Tribune.

Because There's No Better Adrenaline Rush. Ever wondered how interdiction officers bring in the big-time drug hauls? Now, you too can know their secrets - for only $29.95. (H/T Simple Justice.)

The FPD's TGIF Roundup

For the week of July 5, 2010 (cross-posted from the Central District Federal Public Defender blog).

Revised Standards for Correctional Psychologists. Criminal Justice and Behavior has published the newly revised standards for psychologists who work in correctional facilities. To download a copy, click this.

Neurolaw Made Me Do It. NPR follows up on its three-part series on neuroscience, genetics and psychopathy (noted last week's Roundup) with this Talk of the Nation piece on "[b]reakthroughs in neuroscience [that] are changing the way criminals are defended in court."

Summary Dispos and Cert Practice. Tony Mauro notes the uptick in summary decisions by the Supreme Court this term. The upshot is that the Court may be more willing to correct errors that might not normally meet the criteria for granting review, and that practitioners "need to be more careful than ever adequately to address the merits at the cert stage." 

Pretty Sketchy. Here's one example of how police drawings might not make the most reliable of identification instruments.

Good Thing the Jury Couldn't See Any Shackles. Otherwise, this man might have been unfairly prejudiced or something.

The Week in Sausage Making. Congress is in recess until next week.

Top of the Ninth - 9th Cir. decisions released during the week.
U.S. v. Johnson (Farreta waiver was binding on defendants under Edwards, notwithstanding their eccentric behavior and absurd legal theory).
Lee v. Lampert (habeas) (there is no actual-innocence exception to one-year limitations period under 28 U.S.C. § 2244(d)(1) for original petitions).
U.S. v. Graf (defendant was "functional employee" of corporation, and conversation with corporate counsel was not privileged under Bevill test).
U.S. v. Chavez (parsimony provision under § 3553(a) does not create statutory maximum for Apprendi purposes).
U.S. v. Brooks (charges brought under 18 U.S.C. §§ 1591(a) and 2423(a), both governing interstate trafficking of minors, are not multiplicitous) (detective was qualified "expert" on relationship between pimps and prostitutes, a subject not common knowledge to jury) (pimp-to-prostitute relationship falls outside scope of § 2G1.3(b)(1)(B) enhancement).
U.S. v. Evans-Martinez (court improperly used 120-month mandatory minimum for child sex exploitation count as "starting point" for sentencing on counts of child sexual abuse and witness tampering).

SCOTUS Focus. The Supreme Court is in recess until October 4.

Short Circuits - other persuasive authority.
U.S. v. Malki (2d Cir.) (district court's low-end sentence based on improper guideline was not harmless error, notwithstanding judge's statement that sentence was "reasonable" and that in light of certain PSR findings "anything less would be inappropriate," where bottom of correct guideline range was 58 months less).
U.S. v. Kaiser (2d Cir.) (jury instruction on conscious avoidance, which suggested that consciously avoiding available facts was legally equivalent to knowledge, was plain error) (witness testimony about defendant's accounting decision was inadmissible hearsay and in any event unduly prejudicial).
U.S. v. Woltmann (2d Cir.) (district judge's refusal to consider 5K1.1 letter recommending sentence below guideline range stipulated to in plea agreement rendered appeal waiver invalid; reassignment for resentencing was appropriate given judge's pattern of errors and that resources would not be wasted by allowing new court to do what "courts do as a matter of routine").

For the Bookworms - New books and scholarly articles of note.
· "Jury Poker: A Statistical Analysis of the Fair Cross-Section Requirement," Richard M. Re (AUSA), 8 Ohio St. J. Crim. L.  (forthcoming, 2011) (SSRN) (critiques existing approaches of measuring probability of injury from fair cross-section violations, and suggests two alternative approaches that are both mathematically simpler and more accurate).

___________________

Suggestions or corrections? Email Michael_Drake@fd.org

A Study in Contrasts

Yesterday, the Ninth Circuit decided Lee v. Lampert. Mr. Lee had proven to the district court that he was actually innocent of the state charges for which he was convicted. Too bad, replied the Ninth on appeal: you missed the statutory deadline for filing an original habeas petition, and you don't get a free pass merely because you are actually innocent.

Lee follows on the heals of a Supreme Court case, Dolan v. United States. In Mr. Dolan's case, the district judge had ordered restitution after the ninety-day statutory deadline had passed. No problem, replied the Court in that case: your judge clearly meant to order restitution before the deadline, so what's the problem?

I guess the take-home lesson here is that if you're going to miss a deadline, make sure it's not to assert a right that's safeguarded by the Constitution. Also, it might not hurt to be a judge.

The FPD's TGIF Roundup

For the week of June 28, 2010 (cross-posted from the Central District Federal Public Defender blog).

Great Expectations. Bloomberg has this report on the "growing number" of white collar cases in which the charges were ultimately dropped. This phenomenon puzzles legal experts, says the article, because federal prosecutors are "expected to have thoroughly investigated the facts and law before asking a grand jury to bring charges."

New Sentencing Resources. The Sentencing Project has created a "State Recidivism Studies" database, providing references for 99 studies conducted between 1995 and 2009, in all 50 states and the District of Columbia. The Project has also released its Annual Report, available here. Meanwhile, the good folks at Defender Services have a host of freshly-updated sentencing materials, including Henry Bemporad's Introduction to Federal Sentencing (12th ed.), as well as handy guides on ACCA/career offender predicates and how to use Begay.

Marijuana Arrests a Black and White Issue. A new report by the Drug Policy Alliance finds substantial race-based disparities in marijuana arrests "in every country and nearly every police department in California."

Show and Tell. The ASTC's blog Deliberations has this post about the importance of integrating well-crafted visual materials into your presentation of a case to your jury (as well as the importance of not overdoing it).

Brains, Genes and Crime. NPR has a new three-part series on neuroscience, genetics and psychopathology.

"The Case for Treating Drug Addicts in Prison." That article in Newsweek.

The Week in Sausage Making. Bills presented to the president include H.R. 2194 ("Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010"). Measures introduced include H.R. 5662 (stalking under title 18); H.R. 5675 (border security); H.R. 5688 (criminal penalties for torture by law enforcement under color of law); S. 3546 (auto insurance fraud).

Top of the Ninth - 9th Cir. decisions released during the week.
Seaton v. Mayberg (records of compelled medical examination of defendant to determine whether mental illness leaves him likely to engage in sexually predatory behavior are not constitutionally protected).
U.S. v. Struckman (government misconduct, which included misrepresentations to Panamanian government to secure defendant's removal, serious Brady/Giglio violations, and reliance on a fictional CI, was appropriately remedied by suppression of evidence rather than dismissal of indictment; misconduct in bringing defendant to U.S. did not vitiate jurisdiction or require dismissal under court's supervisory powers).
Blaza v. Holder (immigration) (knowing misapplication of bank funds in violation of 18 U.S.C. § 656 was aggravated felony under modified categorical approach).
Kittel v. Thomas (habeas) (petition for RDAP early release benefit was moot as petitioner was no longer in BOP custody, and court would not issue protective ruling to support § 3583(e)(2) motion for reduction of supervised release).

SCOTUS Focus.
Opinions:
McDonald v. Chicago (individual right to bear arms applies to the states).
Sears v. Upton (habeas) (trial counsel's ultimately presenting "reasonable" mitigation theory to jury does not obviate requirement under Strickland that habeas court analyze whether counsel's failure to conduct adequate investigation prejudiced defendant) (Strickland prejudice inquiry is required even where counsel presented "some" evidence in mitigation).
Grants of Certiorari:
Pepper v. U.S. (whether in resentencing district court had to use same percentage applied for downward departure in initial sentencing) (whether post-sentencing rehabilitation is impermissible basis for varying downward at resentencing); see also government's opposition (via Douglas Berman) (conceding that answer on second question is "no").

Short Circuits - other persuasive authority.
U.S. v. Wilson (2d Cir.) (vacating death sentences because of improper jury arguments bearing on remorse and acceptance of responsibility).
U.S. v. Marcavage (3d Cir.) (upholding free speech rights of anti-abortion protestor arrested for demonstrating near entrance to Liberty Bell Center).
U.S. v. Liburd (3d Cir.) (vacating conviction in light of government's failure to abide by pretrial promise not to rely on "any" of defendant's statements, which was prosecutorial misconduct).
Davis v. Lafler (6th Cir.) (habeas) (evidence was insufficient to support state conviction for aiding and abetting a carjacking).
U.S. v. Diaz (E.D. Wisc.) (arguing, inter alia, that § 2G2.2 CP guideline very nearly renders Ch. 4 of the guidelines a nullity).

For the Bookworms - New books and scholarly articles of note.
· "The Repercussions of Anonymous Juries," Christopher Keleher, 44 U.S.F. L. Rev. 531 (2010) (discusses how jury anonymity impacts the fairness, transparency and juror psychology, concludes that courts should curtail use of anonymous juries).
· "Civil, Criminal, or Mary Jane: Stigma, Legislative Labels, and the Civil Case at the Heart of Criminal Procedure," W. David Ball (working paper, 2010) (SSRN) (sketches an Apprendized, Winshipped, consistently functional approach toward assessing what procedural protections should apply to impositions of stigma and deprivations of liberty, whether they are labeled "civil" or "criminal").
· "The Not So Great Writ: Trapped in the Narrow Holdings of Supreme Court Precedents," Ursula Bentele, 14 Lewis & CLark L. Rev. 741 (2010) (argues that "clearly established federal law" should not be limited to fact-based holdings of Supreme Court cases).
· "Evidence for Response Bias as a Source of Error Variance in Applied Assessment," Robert E. McGrath et al., 136 Psych. Bull. 450 (2010) (technical paper, noting that failure to find consistent support for bias indicators is "troubling" because they are routinely used in "high-stakes circumstances" like competency hearings and other forensic psychological assessment).

___________________

Suggestions or corrections? Email Michael_Drake@fd.org.

Privileges and Inanities

Shorter Randy Barnett: As the lone, concurring voice of Justice Thomas goes, so goes the great sweep of American constitutional law.

The FPD's TGIF Roundup

For the week of June 21, 2010 (cross-posted from the Central District Federal Public Defender blog).

Defenders in the News. The New York Times has a write-up on DFPDs Julia Gatto and Philip Weinstein, who both represent Faisal Shahzad, the suspect in the alleged Times Square bombing plot.

Recent § 2G2.2 Sentencing Trends. You'll find data from the Sentencing Commission on that topic here via Doug Berman, who also posts a useful summary prepared by District Judge Gregory Presnell.

Lyin' Eyes. A new report by New Jersey special master Geoffrey Gaulkin recommends that the state "go beyond what any state or the federal court system has done" to gauge the accuracy of eyewitness testimony.

Probably Not So Good for Weight Loss, Though. Science News chronicles the "long march to credibility for cannabis research." The possible medical applications now appear to go beyond pain management to include multiple sclerosis, Crohn?s disease and other inflammatory conditions, as well as cancerous tumors. (H/T Kay Otani.)

There's a New Judge in Town. The Senate has confirmed Josephine S. Tucker to be United States District Judge for the Central District of California. Welcome, Judge.

The Week in Sausage Making. Measures introduced include H.R. 5566 (animal "crush" videos); S. 3538 (cyber-security); H.R. 5599 (scope of the Wire Act).

Top of the Ninth - 9th Cir. decisions released during the week.
Murdoch v. Castro (habeas) (state court's adjudication was "good enough for government work" (Kozinski, C.J., dissenting)).
U.S. v. Batson (district court may order restitution "for any offense" as part of probation and supervised release).
U.S. v. King (transferee district court has jurisdiction to revoke for violations committed before transfer).
U.S. v. Buzo-Zepeda (defendant's state court "Johnson waiver" of time served in jail is not relevant to calculating term-of-imprisonment calculation under § 4A1.1).
Harrison v. Gillespie (granting reh'g en banc to reconsider ruling that petitioner cannot be sentenced to death).
U.S. v. Valencia-Barragan (denying reh'g/reh'g en banc).

SCOTUS Focus.
Opinions:
Holder v. Humanitarian Law Project (material-support statute's prohibition on speech that "supports" a foreign terrorist organization - including speech with humanitarian or peaceful aims - does not violate the First Amendment, where the speech is controlled by or coordinated with the group).
Magwood v. Patterson (defendant's habeas petition was not "second or successive" because it challenged an intervening judgment).
Skilling v. U.S. (federal "honest services" fraud is confined to fraudulent schemes that involve bribes or kickbacks) (pretrial publicity did not prevent fair trial).
Black v. United States (defendants did not relinquish objection to honest-services jury instruction by declining to acquiesce in government's proposed special-verdict forms).
Grants of Certiorari:
Walker v. Martin (whether California's timeliness rule for state habeas petitions is sufficiently defined and consistently-applied that it precludes federal habeas review of petitions untimely under the rule).
Other Orders:
Weyhrauch v. U.S. (9th Cir. below) (vacatur and remand in light of Skilling, supra).

Short Circuits - other persuasive authority.
Gilbert v. U.S. (11th Cir.) (habeas) (a federal prisoner whose career offender status - a separate "offense" - was retroactively extirpated by Begay may resort to § 2241 to overcome § 2255 limit on successive petitions).
Hill v. Schofield (11th) (habeas) (state requirement that exemption from execution requires proof of defendant's mental retardation beyond a reasonable doubt is contrary to law clearly established by Atkins).

For the Bookworms - New books and scholarly articles of note.
· "Arrest Efficiency and the Fourth Amendment," L. Song Richardson, 95 Minn. L. Rev. (forthcoming, 2010) (SSRN) (argues that the peculiar failure of Fourth Amendment jurisprudence to confront the science of implicit social cognition has resulted in a Fourth Amendment regime that exacerbates inefficient policing).
· "Dirty Hands or Deterrence? An Experimental Examination of the Exclusionary Rule," Kenworthey Bilz (working paper, 2010) (SSRN) (arguing that recent findings in psychology and data from study show that judicial integrity rationale is more compelling than deterrence rationale for exclusionary rule).
· Who Are the Criminals? The Politics of Crime Policy from the Age of Roosevelt to the Age of Reagan, John Hagan (2010) (Princeton U. Press) (overview of the shift in American criminal justice between the Roosevelt and Reagan eras, analyzing causal relationship between increasingly harsh punishments for street crime and de facto encouragement of white-collar crime through massive deregulation).

___________________

Suggestions or corrections? Email Michael_Drake@fd.org.

The FPD's TGIF Roundup

For the week of June 14, 2010 (cross-posted from the Central District Federal Public Defender blog).

Videos to Play for Your Jury. Fascinating demonstrations of change blindness here and here. Now if only there were some sort of authority for putting on expert testimony regarding the unreliability of eyewitness identification...

Imagination Feeds Memory. Slate has a fine eight-part series showing how memories can be altered.

Defensive Use of the Collective Knowledge Doctrine. A note on that topic at the Federal Defenders of Eastern Washington and Idaho Blog.

More on the Holder Memo. Alan Vinegrad limns some of the implications of the Holder Memo at the New York Law Journal.

History of Street Gangs in the United States. That report, prepared under the aegis of the Department of Justice, can be found (along with topically related documents) here.

Hare's Antipathy for Psychopathy Peer Review. More on l'affaire Hare (which we touched on in last week's Roundup) at Scientific American.

We Are Shocked, Shocked. Snitching Blog notes a recent case involving convictions secured through testimony by a snitch who later admitted she made the whole thing up. That just doesn't happen. (Admitting it, we mean.)

Penny for Your Shot. Utah executed Ronnie Lee Gardner by firing squad today, and by all accounts Gardner's heart and lungs were obliterated without a hitch. To reward all participating marksmen, the Utah Department of Corrections will issue commemorative coins, which, it explains, are "a little more modern than . . . ribbons."

The FPD's TGIF Roundup

For the week of June 7, 2010 (cross-posted from the Central District Federal Public Defender blog).

District Judges Speak out about the Guidelines. The Sentencing Commission has published the results of a survey of district judges "concerning their views and opinions on a wide range of sentencing policy issues." Those issues include mandatory minimums, safety valve, current guideline ranges, the relevance of certain offender characteristics, the linkage between guidelines and statutory minimums, and more.

It Was Really Only "Double" Jeopardy the Second Time. Curtis Flowers is now being tried on the same capital murder charges for the sixth time.

The FPD's TGIF Roundup

For the week of March 31, 2010.

[Note: Abbreviated Roundup this week due to scheduling; your regular,
full-blown Roundup will return next week, uncut and uncensored.]

Batson Challenges. The Equal Justice Initiative has published a comprehensive study of bias in jury selection here, discussed here.

The Week in Sausage Making. New Public laws include S. 1782 (Federal Judiciary Administrative Improvements Act).

Top of the Ninth - 9th Cir. decisions released during the week.
Jordan v. USDC-CAC (denying mandamus for return of seized motorcycles, where district court did not clearly err in determining government was not required to return property for failure to provide notice, and petitioners had not demonstrated lack of other adequate means to achieve return of seized items).
Schad v. Ryan (habeas) (amending opinion; denying reh'g/reh'g en banc; clarifying mandate).
U.S. v. Castro (California PC § 288(c)(1) is not generic sexual abuse of a minor, and therefore not crime of violence within § 2L1.2(b)(1)(A)(ii)).
Cooke v. Solis (habeas) (California judicial decision rejecting parole was unreasonable application of California "some evidence" requirement).

SCOTUS Focus.
Carr v. U.S. (SORNA does not apply to sex offenders whose interstate travel predated SORNA's effective date).
Berghuis v. Thompkins (habeas) (suspect who received and understood Miranda warning and does not invoke right waives right by making uncoerced statement to police) (petitioner was unprejudiced by IAC in light of overwhelming evidence of guilt).

Short Circuits - other persuasive authority.
U.S. v. Oluwanisola (2d Cir.) (vacting district court's judgment that defense's arguing specific elements of crime had not been proven would trigger rebuttal clause of proffer agreement).

For the Bookworms - New books and scholarly articles of note.
"Police-Induced Confessions: Risk Factors and Recommendations," Saul M. Kassin et al., 34 L. Hum. Behav. 3 (2009) (pdf) (discusses the characteristics of suspects, interrogation tactics and the "phenomenology of innocence" [ed. more practical than it sounds] that influence confessions, and the effect of those confessions on judges and juries).

___________________

Suggestions or corrections? Email Michael_Drake@fd.org.

The FPD's TGIF Roundup

For the week of May 24, 2010 (cross-posted from the Central District Federal Public Defender blog).

It's a Gender Thing. From Science Daily, "[a] study of 300 simulated court cases shows that experienced judges, lay assessors, prosecutors, police officers, and lawyers . . . convict defendants differently depending on whether they are men . . . and what [they] look like." The study is part of an unpublished dissertation. See related item ("Innocence Is Next to Comeliness") in last week's Roundup.

And Then There Were None. "Careful review" of the files of six convicts in the federal system cited in last week's Graham v. Florida as serving LWOP for nonhomicide offenses committed before the age of 18 has revealed that, well, not so much. 

We Get Mail...  These days, seems complaining to a congressman via email can get you arrested.

FAMM Has Got a Brand New Blog. It's all about sentencing, and it's here.

The FPD's TGIF OMGIM Roundup

For the week of May 17, 2010 (cross-posted from the Central District Federal Public Defender blog).

More Hair than Wit. Claude "Butch" Jones was executed by the state of Texas in 2000. But a single strand of hair found at the crime scene that "matched" Jones' survived him, preserved in a sealed plastic bag, long since forgotten in a county evidence room. The Innocence Project is suing the county to have the lone hair's DNA tested, which would resolve doubts about Jones' guilt. Time Online reports on the hair that nearly got away.

Weinstein on Child Porn Sentencing. The New York Times reports on District Judge Jack Weinstein's efforts to combat "the unnecessary cruelty of the law" on sentencing for possession of child pornography. The article also notes Judge Weinstein's view that a defendant has a constitutional right to have a jury be informed about the punishment a defendant may receive upon conviction. For the judge's extensive analysis of this issue, see U.S. v. Polouizzi, --- F.Supp.2d ----, 2010 WL 318265, at *33-78 (E.D.N.Y., Feb. 11, 2010).

And Now It's All This

Bob Somersby gives Christopher Edley a razzing:

Christopher Edley thinks he’s one of your “betters.” [] According to Edley, rubes like us should want our “betters” in important posts, like the post in which Kagan will serve:

EDLE: The tension between elitism and populism is embedded in our national DNA because America rejected the model of a monarch ruling by divine right in favor of an iffy experiment in democratic self-governance. So now you are responsible for choosing your leader. Do you want someone like you or someone better than you?

What an astonishing framework! But so it goes when people like Edley spends decades inside institutions like Harvard, convincing themselves that they and their peers are “better” than all the rest of us rubes.

Not fair. What Edley meant, of course, was merely to ask whether in choosing your leader you would want someone better than Yoo.

(Via Angry Bear.)

The FPD's TGIF Roundup

For the week of May 10, 2010 (cross-posted from the Central District Federal Public Defender blog).

It Just Seems Like They Have Specific and Articulable Facts Every Time. According to this New York Times story, out of 575,000 Terry stops in NYC, 34,000 led to arrests. For the judges who saw only the 1-in-17 cases in which evidence of wrongdoing was actually found as a result of the seizure and search, of course, that's, like, a hit rate of one hundred percent. Man, those guys are good.

Due Process v.2.0. If the CIA wants to eavesdrop on a U.S. citizen suspected of terrorism, they need a warrant. If they want to assassinate that citizen, well, not so much.

The FPD's TGIF Roundup

For the week of May 7, 2010 (belatedly crossposted from the Central District Federal Public Defender Blog).

You Have to "Know" These Things When You're a Customs Agent, You Know. In 2009, Carlos Simon-Timmerman stopped off in Puerto Rico on his way back home to New York after a stay with friends and family in Venezuela. He had with him a film featuring Columbian adult film star Lupe Fuentes. Fuentes is 23. But statements by government "experts" based on observing the images put her age at the time the footage was shot at between 12 to 14. Despite all of the countervailing information about Fuentes available on the Intertubes and through statutorily required records - including information that AFPDs Hector Ramos and Melanie Carrillo had provided to the prosecuting AUSA - the testimony of these asserted experts was good enough for the government. It was also good enough for the judge. And (let's face it) it probably would have been good enough for the jury. Except that Ramos and Carrillo contacted Fuentes herself, who flew in to testify - much to the surprise of the government, who in short order withdrew all the charges. (H/T Radly Balko and Hector Ramos.)

International Gangs of Mystery. Some insight into the government's "Central American Gang Strategy" is available in the GAO's recent report on "Combating Gangs."

The FPD's TGIF Roundup

For the week of April 26, 2010 (cross-posted from the Central District Federal Public Defender blog).  

The Costs of Confinement. The AO has prepared a new report comparing the costs of imprisonment, RRCs, pretrial detention, and supervision by probation and pretrial services.

Makin' Copies. "Nearly every digital copier built since 2002 contains a hard drive [that stores] an image of every document copied, scanned, or emailed by the machine." That from a CBS news report here.

No Restitution for the Wicked (without Proof beyond a Reasonable Doubt). Doug Berman notes Justice Scalia's interest, apparent from his comments at oral argument in Dolan v. U.S., that it is judges rather than juries who determine a victim's loss, and that they do so based on a standard that falls short of beyond a reasonable doubt. Despite the fact that Apprendi-based challenges to judge-determined restitution awards "never got any real traction in lower courts after Blakely," the Dolan transcript "suggests that perhaps these claims ought [to] still be preserved."

Also, Tase Anyone Who Uses the Word 'Chipotle.' Arizona governor Jan Brewer approved legislation last week that requires any person suspected of being an illegal immigrant to present valid identification to law enforcement. Thankfully, the legislation is drafted so as to be "consistent with federal laws . . ., the civil rights of all persons and . . . the privileges and immunities of United States citizens." So we're good.

The FPD's TGIF Roundup

For the week of April 23, 2010 (cross-posted from the Central District Federal Public Defender blog).

"I Would Like the Firing Squad Please." That was Ronnie Gardner's preferred method of death, which the state of Utah is scheduled to facilitate in about a week.

"The Fallacies Underlying Immigration Guideline § 2L1.2." That handy bit of deconstructive work made available here by your friends at Defender Services.

New Rules. The Sentencing Commission has voted to promulgate amendments to the guidelines that will "expand the availability of alternatives to incarcerations and address the relevance of certain specific offender characteristics in sentencing."

The FPD's TGIF Roundup

For the week of April 12, 2010 (cross-posted from the Central District Federal Public Defender blog).

Ice ICE Baby. The Federal Defenders of Eastern Washington and Idaho have a practice "kit" for getting pretrial release of your noncitizen clients. (H/T Tenth Circuit Blog.)

We Have Ways... From the Daily Journal (subscription): "'When I see someone [cite an unpublished opinion] I say, "Aha, loser argument,"' [said Chief Judge Alex Kozinski]. [snip] Nevertheless, Kozinski conceded, the rule [permitting citation of unpublished opinions] was adopted and so he and his colleagues have adapted. 'We have ways of dealing with it: We just say less....'"

The FPD's TGIF Roundup

For the week of April 6, 2010 (cross-posted from the Central District Federal Public Defender blog).

Stevens Retires. Justice Stevens has formally announced his retirement, effective upon summer recess. Adam Liptak's excellent analysis in the New York Times is here. SCOTUSblog has an extensive roundup of other coverage and comment.

"Courts Not Waiting for Congress' Cocaine Sentencing Solution." The ACSblog has a post on that topic here. We've made a handy syllabus of district court opinions adopting the 1:1 ratio available here.

Take-Away Points on Deportation. In the wake of the Supreme Court's decision last month in Padilla, the Immigrant Defense Project has published a practice advisory, Duty of Criminal Defense Counsel Representing an Immigrant Defendant after Padilla v. Kentucky. Take it away.