(Cross-posted from the C.D. Cal. Federal Public Defender blog.)
In This Edition (to use bookmarks, first click blog post title):
News to Use
Top of the Ninth
SCOTUS Focus
Short Circuits
The Week in Sausage Making
For the Bookworms
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A Dialogue Concerning Habeas Understanding. Berman earlier this week noted an interesting concurrence by Pennsylvania Chief Justice Ronald D. Castille, in which Castille castigated the FPD for what he characterized as "overtly obstructionist" tactics in state habeas proceedings. The FPD has since filed this reply. The exchange makes for an entertaining primer on the contrasts and interplay between federal and state habeas litigation, and on some of the rudiments of state exhaustion.
Your Judge Not Necessarily Included. This story at USA Today takes a look at a pair of studies that suggest judges have been growing more skeptical about certain types of forensic evidence.
"Are Your Gadgets Spying On You?" That's the topic in this episode of Science Friday. Note that if you listen to it on your smart phone, someone will find out.
The Execution Quotient. "Some people in the US may have been wrongly executed because of inaccuracies in the IQ tests used to assess them. But the inaccuracies may also have seen some escape execution if they scored lower on the tests than their real IQ." That, according to recent work by psychologist Simon Whitaker, as discussed here in New Scientist.
And Speaking of High IQs... Jeanne Woodford, former director of the California Department of Corrections and warden at San Quentin, will now head the anti-death penalty nonprofit Death Penalty Focus.
"State to Double Crime Searches Using Family DNA." That story at the Los Angeles Times.
DSM 5: Rape Not a Psychiatric Disorder. At Karen Franklin's blog, Allen Frances looks at the upshot of the DSM 5's rejection of the idea that rape (cast as "coercive paraphilia") is a mental illness, from the standpoint of civil commitment proceedings.
Great Expectations (of Privacy). Do you have a right not to be "made to look bad" by being videotaped? As it happens, some in the law enforcement community object to being videotaped based on that very theory. Not that they don't have a point.
Top of the Ninth - 9th Cir. decisions released during the week.
· U.S. v. Escamilla-Rojas (collective advisement followed by individual questioning may satisfy FRCP 11(b)(1) requirement that district court "personally address" defendant, but was not satisfied here, where defendant was not individually questioned until two hours after adivisement began, though the error was harmless) (magistrate's failure to ask defendant whether plea was voluntary was not plain error under the circumstances) (temporary separation from counsel did not violate Sixth Amendment).
· Harrison v. Gillespie (habeas) (order denying reh'g en banc, noting changes to the lineup in the original opinion).
· Velasquez v. Kirkland (habeas) (petitioner was not entitled to gap or equitable tolling for delays in state court filings; Supreme Court's decision in Carey v. Saffold had put petitioner on notice that federal courts would address timeliness if state did not).
· U.S. v. Tsosie (waiver of appeal was ineffective as to restitution order because defendant lacked notice, where agreement did not set forth amount or reasonable estimate) (restitution order was improper where district court failed to explain reasoning and order was based on inadequate evidentiary basis).
· U.S. v. Havelock (order granting reh'g en banc).
SCOTUS Focus. No new opinions or orders this week at the Court. So consider one thought about last month's decision in AT&T Mobility LLC v. Concepcion. The Court there noted the "in terrorem" pressures created by class action suits, because of the "devastating loss" a civil defendant might suffer. Query whether the in terrorem risk to criminal defendants in the plea context - the risk of, say, death, or even merely 25-to-life - should be an object of similarly renewed concern.
Short Circuits, Solid States, and other persuasive authority.
· U.S. v. Curley (2d Cir.) (vacating interstate stalking conviction, where for purposes of proving victim girlfriend's fear district court improperly admitted evidence that defendant had been caught driving a stolen rental car with weapons, armor and a last will and testament, and had pressured girlfriend not to testify in unrelated case about his brother's beating her).
· U.S. v. Cedeno (2d Cir.) (district court's precluding cross of prosecution witness regarding prior state court's finding that witness had lied under oath about the constitutionality of a search in another case violated defendant's right to confrontation, though the error was harmless).
· U.S. v. Reed (2d Cir.) (unpub'd) (vacating special condition requiring drug and alcohol treatment for offense committed in prison without access to drugs or alcohol).
· U.S. v. Cedeno (2d Cir.) (unpub'd) (district court's charge to jury that for purposes of § 924(c) "a gun is a firearm" was error, though harmless).
· U.S. v. Galaviz (6th Cir.) (reasonable suspicion to stop driver dissipated once officers saw he was not person identified in radio report, though gun subsequently discovered in plain view was not tainted).
· U.S. v. Garcia-Robles (6th Cir.) (upon general remand for resentencing, defendant has a right to plenary sentencing hearing).
· U.S. v. Yarrington (7th Cir.) (in trial for possession of cocaine with intent to distribute, district court erroneously admitted portion of witness statement that was "unnecessary" to show completeness within FRE 106, though the error was harmless).
· U.S. v. Bowler (10th Cir.) (unpub'd) (under modified categorical approach, Oklahoma assault and battery with a dangerous weapon was not ACCA act of juvenile delinquency involving a firearm, knife or destructive device).
· U.S. v. Martikainen (11th Cir.) (§ 3C1.2 enhancement for recklessly endangering another in court of fleeing law enforcement does not apply when defendant was unaware of pursuit).
· U.S. v. Murray (S.D. Ga.) (under the totality of the circumstances, defendant driver of borrowed rental car had standing to challenge search, notwithstanding deception of rental car agency as to who would be driving).
U.S. v. Corona-Torres (N.D. Iowa) (consent given after illegal stop was tainted).
The Week in Sausage Making. Measures introduced include S. 944/S. 982 (would reaffirm authority to detain enemy belligerents at Gitmo); S. 952 (would authorize removal cancellation and status adjustment for certain alien students who entered U.S. as children); S. 977 (would "fight" criminal gangs); S. 978 (would amend penalties for criminal infringement of copyright); S. 995 (would prohibit public officials from undisclosed self-dealing);H.R. 1805 (would extend sunset on PATRIOT Act provisions); H.R. 1823 (would modernize, shorten and simplify criminal code); H.R. 1853 (would provide for deferred action and parole in immigration matters only for urgent humanitarian reasons or for significant public benefit); H.R. 1885 (would require state and local pretrial services receiving federal funds to report to the DOJ on defendants released); H.R. 1826 (would reinstate criminal penalties for persons charging veterans unauthorized fees).
For the Bookworms - New books and scholarly articles of note.
· "DNA and the Fifth Amendment," Erin Murphy, working paper (2011) (SSRN) (argues that the Fifth Amendment ought to cover certain kinds of DNA investigative activity, specifically, DNA collection for brute-force database searching as opposed to same for matching samples from a specific crime scene).
· "Arizona v. Gant: The Illusory Restriction of Vehicle Searches Incident to Arrest" (student Note), Seth Stoughton, Va. L. Rev. (forthcoming) (SSRN) (argues that in most cases, Gant will do nothing to limit vehicle searches incident, a deficiency in design that flows from inattention to actual law enforcement arrest and search procedures, which the Note aims to set out for adequate guidance).
· "Criminal Law Emphasizing Privacy of the Home and Limiting Third Party Consent Under the State Constitution," Lawrence Friedman & David M. Siegel, 93 Mass. L. Rev. ___ (2011) (SSRN) (discusses search and seizure limitations on third-party consent under Massachusetts constitutional law, with some potentially useful comparison with current Fourth Amendment law).
· "Nothing To Hide: The False Tradeoff between Privacy and Security, Daniel J. Solove, Yale U. Press (2011) (Amazon) (chapter download at SSRN) ("exposes the fallacies of many pro-security arguments," pointing out "the failings of our current system and offer[ing] specific remedies").
· "Residential Change as a Turning Point in the Life Course of Crime: Desistance or Temporary Cessation?," David Kirk, working paper (2011) (SSRN) (study based on data in wake of residential displacement caused by Hurricane Katrina finds that likelihood of reincarceration was substantially less likely among parolees who moved to new neighborhoods).
· Race, Crime, and Punishment: Breaking the Connection in America, Keith O. Lawrence ed., Aspen Institute Publications (2011) (website and pdf) (essays by multiple authors addressing the titular issue).
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Suggestions or corrections? Email Michael_Drake@fd.org.
