Strange Doctrines

This Post Contains Six Errors

Ron Rosenbaum makes it clear by his third sentence here that he simply does not know anything about his chosen subject matter:

[Agnosticism] is radical skepticism, doubt in the possibility of certainty, opposition to the unwarranted certainties that atheism and theism offer.

I count three incorrect definitional statements and one false presupposition - four errors, in a mere 20 words. And all stated with a self-certitude that, given Rosenbaum's overarching thesis, should count as a fifth. Impressive.

(Via 3 Quarks Daily.)

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.

Next Thing You Know, They'll Be Residing in Extravagant, State-Funded Housing

"Michelle Obama" has asked James Lindgren to sign Obama's mass birthday card. James "find[s] it hard to say precisely why [he finds] this email a bit creepy." Fortunately for aficionados of shark-jumping, though, he gives it a college try:

[A]sking millions of Americans to sign a birthday card for the President suggests a tone-deafness about the cult of personality. If we lived in a dictatorship, getting millions of subjects to celebrate the Dear Leader’s birthday would be routine, but in a free republic this appeal to get millions of citizens to celebrate a current president’s birthday strikes a discordant note to my ear. 

No, I am not saying we are in a dictatorship; I am saying that because we are not, we should not be emulating the trappings characteristic of that fundamentally different sort of regime. Nor do I think this is particularly ominous, just a very small step in the wrong direction.

A small step, comrades, or a giant leap?

On the Worthlessness of Inauthentic Snobbery as a Criterion of Evaluative Judgment

I think "Achy Breaky Heart" is a goofy track, but that doesn't make "Sin City" a benchmark of genius.

Anyway, it's interesting how few of Lemieux's commenters seem secure enough in their own taste not to be bothered by the fact that it's merely their own taste. Besides which, if you're going to engage in music snobbery, why not exercise it in the service of Bach or Stravinsky or something? (You know, something worthy of it.)

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.)

Michael Drake Finds This Hard to Fathom

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).

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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).

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Suggestions or corrections? Email Michael_Drake@fd.org.