(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 | New Rules | Top of the Ninth | Short Circuits | For the Bookworms
Chopped Liver Blogging. The New York Times wanted to know whether prosecutors have too much power. So they did the natural thing and invited five "legal observers" to opine - two former prosecutors, two professors, one former judge ... and zero criminal defense attorneys. So that answers that, then. (H/T Simple Justice for the observation.)
New Rules. Via U.S. Courts, a Judicial Conference committee has an updated, proposed model set of jury instructions for warning jurors not to use social media during trial.
Top of the Ninth - 9th Cir. decisions released during the week.
• U.S. v. McTiernan
(district court properly denied motion to suppress recording that
private investigator made of his conversation with defendant film
director, where court assumed recording was to serve as reminder of
illegal acts investigator intended to commit, and was thus not integral
part of those acts) (denial of motions for recusal also affirmed).
• U.S. v. Dreyer (district court's failure sua sponte to order competency hearing before imposing sentence was plain error).
• U.S. v. H.B., Juvenile Male
(sufficient evidence supported adjudication for aiding and abetting
another juvenile's commission of aggravated sexual abuse on Indian
reservation, and sentence was reasonable).
• Frost v. Van Boening
(§2254 noncap) (state court did not violate CEFL in determining that
trial court did not commit structural error in prohibiting defense from
simultaneously arguing alternative defense theories) (if there was IAC,
it was not prejudicial) (in dissent, McKeown would find that prohibiting
simultaneous defense theories contravened and unreasonably applied Herring).
• Cabantac v. Holder (immigration) (California case People v. West
, which holds that guilty plea does not necessarily admit all facts in
indictment, did not foreclose use in federal deportation proceeding of
California prior for possession of controlled substance because
conviction documents clearly specified drug was methamphetamine).
Short Circuits.
• U.S. v. Gonzalez
(2d Cir.) (mention of §841(b)(1)(B) in text of indictment was
insufficient basis to conclude that that charge could be included in
superseding indictment). (H/T)
• U.S. v. Carrion-Soto (3d Cir.) (search of suitcase before dog alert was not justified by inevitable discovery). (H/T)
• U.S. v. Whitfield
(jury instruction for §2113(e) bank robbery enhancement's "death
results" prong that hadn't been charged in indictment was constructive
amendment). (H/T)
• U.S. v. Wooten (6th Cir.) (defendant's saying "I have a gun" during bank robbery was not "threat of death" within §2B3.1).
• U.S. v. Castillo
(7th Cir.) (Posner, J.) (need for compelling justification for variance
from guideline range should generally be assessed by looking at
relative as opposed to absolute measure). (H/T)
• Hoffman v. Ford Motor Company
(10th Cir.) (unpub'd) (civil) (district court failed to make sufficient
reliability findings regarding expert testimony about seat buckles
under crash conditions).
• U.S. v. Gotti (E.D.N.Y.) Texas Hold 'Em is not "predominately a game of chance" within Illegal Gambling Business Act). (Via N.Y. L.J.)
For the Bookworms - New books and scholarly articles of note.
• "How to Address Standardless Discretion after Jones," Erin Murphy & Peter P. Swire, working paper (SSRN)
(proposes a "procedural" mode of Fourth Amendment review that would
give weight to - and so generate incentives for creating - ex ante
executive or legislative policies that reasonably regulate Fourth
Amendment intrusions).
• "Through the Eyes of
Jurors: The Use of Cognitive Psychology in the Application of 'Plain
Language' Jury Instructions," Sara G. Gordon, working paper (SSRN)
(argues that in addition to plainly explaining the law, PL instructions
need to counteract preexisting, inaccurate conceptual legal schemas
that jurors bring with them).
• "Systemic Racial Bias and RICO's Application to Criminal Street and Prison Gangs," Jordan Blair Woods, Mich. J. Race & L. (SSRN)
(argues that labeling of "gangs" may be driven by biases, and that the
labeling in turn enables profiling and sweeps of racial minorities
under RICO).
• "Rethinking the Application of the
Fifth Amendment to Passwords and Encryption in the Age of Cloud
Computing," J. Adam Engel, Whittier L. Rev. (SSRN)
(argues that the "foregone conclusion" loophole to the Fifth Amendment
privilege against self-incrimination should not apply to password or
encryption information for documents stored in the cloud).
• NOTE: "Eyewitness Identifications after Perry v. New Hampshire: A Call for Greater State Involvement in Ensuring Fundamental Fairness," Dana Walsh, Boston College L. Rev. (forthcoming) (SSRN).
• Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption, Shon Hopwood & Dennis Burke (Amazon).
• The U.S. Supreme Court: A Very Short Introduction, Linda Greenhouse (Oxford U. Press) (Amazon).
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Suggestions or corrections? Email Michael Drake.
