For the week of January 17, 2010 (cross-posted from the C.D. Cal. Federal Public Defender blog).
Evolution in Restitution. "Federal prosecutors intent on stemming child pornography and helping care for its victims are increasingly going after the assets of offenders under an evolving change in Justice Department policy." So reports the Wall Street Journal.
DOJ Creates Internal Watchdog Office. Story at USA Today. More at the BLT. Stephen Gillers at Legal Ethics Forum is skeptical that this is a positive development.
And on the Topic of Prosecutorial Indiscretion... Wendy Kaminer wonders why the public's mistrust of government is so selective. "Parole board members are not to be trusted with discretion in granting parole, and judges are not to be trusted with discretion in sentencing convicted defendants; but prosecutors are invariably trusted with significantly increased discretion, despite their track records of abusing it."
"A killer deal: Be a star witness, escape execution." The Washington Times tells the story of how contract killer Oscar Veal avoided the death penalty - by testifying for the government.
Travelers Come Not To Praise Seizures. Glenn Greenwald explains why.
Reform Group Seeks Ethics Probe of Scalia and Thomas. The political advocacy group Common Cause has asked the Justice Department to look into possible conflicts of interest involving Justices Scalia and Thomas. The charges center on the Justices' involvement in the Citizens United case. More from Jonathan Turley here and here; more still from the BLT.
It's Like Making Law Review. If you have a sentencing issue you're passionate about and want to submit commentary for the April issue of the Federal Sentencing Reporter, Doug Berman's got the low down.
Google's on the Case(s). You can now search for cases on Google Scholar by circuit.
Top of the Ninth - 9th Cir. decisions released during the week.
· Miller v. Oregon Bd. of Parole (habeas) (state murder statute creates constitutional liberty interest in early eligibility for parole, but parole board's denial did not violate petitioner's due process rights).
· U.S. v. Basher (officers' interaction with defendant at campsite was valid Terry encounter) (Miranda-less questioning was noncustodial, notwithstanding defendant's asserted fear that by not cooperating he would violate Forest Service regulation, and public safety exception applied in any case) (retrieval of firearms did not violate Fourth Amendment) (area outside tent on undeveloped camp visible from officers' camping area was not curtilage).
· Lopez v. Ryan (habeas) (Arizona courts provided individualized sentencing determination and independent review, notwithstanding petitioner's contention that state law required mitigation evidence to be causally related to crime) (expansion of IAC claim to include counsel's alleged failure to furnish psychiatric expert with needed evidence was unsupported by evidence) (handwritten note later discovered in police file wasn't Brady).
· U.S. v. Liu (Speedy Trial clock restarted on filing date of second superseding indictment naming another defendant in same overarching conspiracy) (district court's failure to give multiple conspiracy instruction was not plain error because there was no potential for spillover guilt) (district court's failure to require jury to unanimously agree on which overt act was committed in furtherance of conspiracy was not plain error where court had given general unanimity instruction). UPDATE (1.24.11): Ninth Circuit Blog's analysis here.
SCOTUS Focus.
Opinions:
· NASA v. Nelson (civil) (upholding NASA's employee background checks) (assuming arguendo that there is a constitutional right to "informational privacy").
· Harrington v. Richter (habeas) (federal habeas courts must defer to unreasoned state summary dispositions) (failure to consult blood evidence when planning strategy for trial was not IAC)(reversing 9th Cir. below).
· Premo v. Moore (habeas) (state court reasonably concluded that in light of other admissible confessions, counsel's decision not to move to suppress conviction was justified by futility, and assistance was therefore neither deficient nor prejudicial) (reversing 9th Cir. below).
Oral Arguments:
· Boeing Company v. U.S./General Dynamics Corp. v. U.S. (state secrets privilege case).
Short Circuits - other persuasive authority.
· U.S. v. Jones (6th Cir.) (reversing conviction, where plea agreement's and district court order's description of offense - "possession of a firearm during and in relation to a drug crime" - mixed elements from separate offenses).
· U.S. v. Delgado (5th Cir.) (witness's nonresponsive answer that volunteered other-acts evidence violated Fed. R. Evid. 404(b), and instruction did not cure prejudice).
The Week (and a Half) in Sausage Making. Measures introduced include H.R. 218 (would allow naturalization for certain high school graduates); H.R. 221 (would penalize publicly displaying nooses to harass or intimidate because of race, color, religion or national origin); H.R. 223 (would provide alternate release date for certain nonviolent offenders); H.R. 224 (would improve federal enforcement of hate crimes); H.R. 231 (would increase evidentiary standard required for drug conviction, require screening of officers participating in drug task forces, etc.); H.R. 263 (would limit ability to transfer business inventory firearms for those whose licenses/applications-to-renew suffer certain deficiencies); H.R. 308 (would prohibit transfer/possession of large capacity ammunition feeders); H.R. 313 (would clarify that conspiracy within U.S. to engage in or aid and abet drug trafficking outside U.S. is federal crime); H.R. 318 (would punish violent threats against members of congress); H.R. 323 (would establish corporate crime database); H.R. 324 (would grant Department of Defense officers power to execute warrants, make arrests and carry firearms); H.R. 327 (would redefine "law enforcement officer" to ensure inclusion of certain positions); H.R. 367 (would prohibit knowingly possessing firearm near member of congress campaigning or performing official duties); H.R. 381 (would provide grants for more police); H.R. 386 (would penalize aiming laser pointers at airplanes).
For the Bookworms - New books and scholarly articles of note.
· "Automation and the Fourth Amendment," Matthew Tokson, 96 U. Iowa L. Rev. 581 (2010) (pdf) (argues against application of third-party doctrine in the context of disclosures merely processed by automated Internet systems, and proposes an alternative model of Internet privacy).
· "Reasonable Officers vs. Reasonable Lay Persons in the Supreme Court's Miranda and Fourth Amendment Cases," Susan F. Mandiberg, Lewis & Clark L. Rev. (forthcoming) (SSRN) (notes how Court affords the reasonable police officer more room for perceptual and behavioral imperfections and idiosyncrasies, leading to covert balancing of interests).
· "Police are People Too: Cognitive Obstacles to, and Opportunities for, Police Getting the Individualized Suspicion Judgment Right," Andrew E. Taslitz, Ohio St. J. Crim. L. (2010) (SSRN) (examines claim that police reasoning is not susceptible to systematic analysis because it is intuitive and unconscious (and normatively so), concluding that requiring justification for intuitions can improve accuracy).
· "How the Post-Framing Adoption of the Bare-Probable-Cause Standard Drastically Expanded Government Arrest and Search Power," Thomas Y. Davies, 73 Law & Contemp. Probs. 1 (2010) (SSRN) (tells the story of how state and federal judges "surreptitiously engineered a massive expansion of government arrest and search power").
· "Independent Appellate Review of Knowledge of Falsity in Defamation and False Statements Cases," Tung Yin, 15 Berkeley J. Crim. L. 330 (2011) (SSRN) (argues that in some cases, the independent appellate review doctrine available to defendants in civil defamation cases should be extended to criminal cases).
· "Modeling the Influence of Investigator Bias on the Elicitation of True and False Confessions," Fadia M. Narchet et al., Law & Hum. Behav. (2010) (abstract) (study results suggest that investigator bias leads to increased use of minimization tactics and so increases likelihood of false confessions).
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Suggestions or corrections? Email Michael_Drake@fd.org.
