For the week of January 10, 2011 (cross-posted from the C.D. Cal. Federal Public Defender blog).
In Case You Hadn't Heard... At least nineteen people were shot last Saturday in Tucson, six fatally, while Congresswoman Gabrielle Giffords was meeting with constituents. Giffords was shot through the head point-black, but appears to be recovering. District of Arizona Chief Judge John Roll was among those killed in the incident. The Wall Street Journal looks at some of the legal issues ahead.
Proposed Amendments to Guidelines. You can find them here. Of particular interest is the proposal for § 2L1.2, which would limit the use of convictions for enhancement under § 2L1.2(b)(1)(A) and (B).
A Little Too Private. The Fifth Circuit recently held that warrantless searches are permitted under the private search doctrine even when the police doing the searching didn't know about the private search. Orin Kerr explains why the Fifth gets it wrong.
We'll Always Have Paris. Federal law prohibits speech coordinated with and benefitting any group designated by the State Department as a "terrorist organization" - even if the speech advocates only lawful activities. Which made Georgetown Law Professor David Cole wonder how it is that Michael Mukasey, Rudolph Giuliani, Tom Ridge and Frances Townsend were permitted to speak in support of the Mujahedin-e Khalq - a designated terrorist group - at an MEK event last month in Paris. The entourage's main defense: MEK was unreasonably designated. But that argument, as Cole subsequently pointed out, hasn't cut it so far in the Ninth. (H/T ACSblog.)
Tweet It. The government subpoenaed Twitter for information about WikiLeaks supporters. Twitter wasn't too keen, and quashed it like a bug.
Law and Language. Via Language Log, the Philadelphia Inquirer reports on a recent case involving a deaf defendant so lacking in any language skills that the court remains at a loss about how (and whether) to try him. Meanwhile, the DSM-5 (of all things) may be having linguistic competence issues of its own.
Reentry Works in Wisconsin. The Wisconsin State Journal has a story on the state's "historic" drop in its prison population - due, say corrections officials, to the reentry program begun there five years ago.
They're So Strict. Google declined "to enter a proper and professional relationship with [British] police forces" and provide law enforcement with "street view" images whenever they think it might help. To wit, as Google puts it, the company will honor requests from law enforcement as long as they're "legally valid and follow the correct processes."
The Week in Sausage Making. No significant legislative activity this week.
Top of the Ninth - 9th Cir. decisions released during the week.
· U.S. v. Begay (en banc) (defendant's turning from conversation, walking to car, getting rifle, then shooting was sufficient evidence of premeditation, where there was no evidence that defendant was agitated or rushed) (lesser-included instruction on voluntary manslaughter was not required) (admission of evidence that defendant sought to intimidate witnesses was proper) (absent objection, government's failure to give notice of other-acts evidence does not require reversal) (prosecutor's misstatement in closing was not prejudicial).
· U.S. v. Doss (18 U.S.C. § 1512(b) witness tampering statute requires "corrupt" persuasion, and thus does not apply where defendant asked co-conspirator to exercise privilege not to testify) (severance of witness tampering and sex trafficking counts was not required) (any impermissible vouching by prosecutor did not require reversal) (vacating life sentences on three sex trafficking counts and remanding to determine whether prior child pandering conviction under Nevada law involved "minor" within 18 U.S.C. § 3559(e). UPDATE (1.18.11): Ninth Circuit Blog's analysis here.
· U.S. v. Lindsey (in light of Rivera v. Illinois, a district court's erroneous denial of peremptory challenge no longer requires automatic reversal, and such was not plain error here) (rejecting defendant's sufficiency-of-the-evidence and Confrontation Clause/hearsay challenges, as well as challenge to dismissal of jurors for cause) (denial of substitute counsel was not abuse of discretion) (incorrect conspiracy instruction was harmless) (sentence was not unreasonable, and both physical restraint and brandishing enhancements were proper).
· Huff v. City of Burbank (civil) (residential search after report of student threat to "shoot up" school lacked probable cause; fact that residents did not answer door or telephone did not create exigent circumstances).
SCOTUS Focus. The Court denied cert in Alderman v. U.S., hence letting stand the Ninth Circuit decision below upholding federal prohibition on body armor possession; Justice Thomas, with Justice Scalia dissented from the denial based on Commerce Clause concerns. The Court granted a temporary stay of execution in Foster v. Texas. The Court heard oral arguments in Sykes v. U.S. (audio) (summary and transcript) and Kentucky v. King (audio) (summary and transcript).
Short Circuits - other persuasive authority.
· U.S. v. Townsend (11th Cir.) (corrections officer's gift of greater freedoms to defendant on pretrial release was a "thing of value of $5,000 or more" for purposes of federal bribery statute).
· Sarlog v. U.S. (6th Cir.) (unpub'd) (appellate waiver was not made knowingly and intelligently after district court said defendant could challenge certain guideline enhancements and parties did not object).
· People v. Wilkins (Cal. Ct. App.) (California felony murder encompasses death caused when stolen item fell of defendant's truck causing tractor-trailer to swerve and lose control, killing person in third vehicle).
For the Bookworms - New books and scholarly articles of note.
· "Is Punishment Relevant After All? A Prescription for Informing Juries of the Consequences of Conviction," Jeffrey Bellin, 90 B.U. L. Rev. 2223 (2010) (pdf) (argues that severe punishment should be admissible as relevant anti-motive evidence where the defendant was aware of the punishment before the crime was committed).
· "Is the Fourth Amendment Relevant in a Technological Age?," Christopher Slobogin (working paper, 2011) (SSRN) (argues that extant Fourth Amendment doctrine continues to ignore virtual searches, a problem that has fostered enforcement abuse, mission creep, mistaken seizures and so forth; outlines a more technologically-sensitive Fourth Amendment framework).
· "An Investigation of Top-Down vs. Bottom-Up Processing in Post-Appellate Review of a Criminal Case," Andrew M. Smith et al., U. Wis. Legal Studies research paper (2011) (SSRN) (159-participant study suggests that knowledge that a case has passed pre-screening by an innocence project influences case-review judgment about the likelihood of guilt).
· "The People's Right: Reimagining the Right to Counsel," Martin Guggenheim, NYU research paper (2011) (SSRN) (argues based on separation-of-powers concerns that courts are constitutionally empowered to fix constitutionally deficient indigent defense systems by requiring that more money be made available).
· "The First Amendment in Trans-Border Perspective: Toward a More Cosmopolitan Orientation," Timothy Zick, B.C. L. Rev. (forthcoming) (SSRN) (argues that First Amendment can embrace and protect cross-border exchange and information flow, preserving citizens' speech and other First Amendment interests at home and abroad).
· "Freedom of Speech, Support for Terrorism, and the Challenge of Global Constitutional Law, Daphne Barak-Erez & David Scharia, Harv. Nat'l Security J. (2011) (SSRN) (analyzes the recent Humanitarian Law Project case and its implications in the context of global efforts to define the limits of speech that aims to promote terrorism).
· False Justice: Eight Myths that Convict the Innocent, Jim & Nancy Petro (2011) (Amazon).
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Suggestions or corrections? Email Michael_Drake@fd.org.
