For the week of June 12, 2015
In this edition:
News to Use | Top of the Ninth |
SCOTUS Focus | Short Circuits | For the Bookworms
News to use
- When Bail Is Out of Defendant’s Reach, Other Costs Mount (New York Times)
- Retired judge fires on officers he called to Westside home, police say (Los Angeles Times)
- To write well and efficiently, choose the right level of editing (without bullshit)
- Some More Observations on Their Own Discovery Policies (Carl Gunn)
Top of the Ninth
- U.S. v. Yamashiro (victim allocution is critical stage of sentencing, and district court’s decision to permit one victim’s allocution before newly retained counsel arrived in court was plain structural Sixth Amendment error) (no abuse of discretion in denial of motion to withdraw guilty plea) (reassignment for resentencing was appropriate because error was structural and “victim’s statements were highly significant” in judge’s sentencing consideration). UPDATE (6.15.15): More at Ninth Circuit Blog.
- U.S. v. Alcantara-Castillo (plain error, where government implicitly then explicitly asked defendant to comment on border agent’s veracity, then concededly vouched for that agent’s credibility by noting he was “sworn to uphold the law”) (“misconduct”—it’s not personal; it's strictly business).
- U.S. v. Osuna-Alvarez (per curiam) (aggravated identity theft, 18 U.S.C. §1028A, does not require theft as an element of offense, and applies regardless of knowledge or consent of person who owns means of identification).
- Zapata v. Vasquez (§2254) (trial counsel’s failure to object to prosecutor’s fictional attribution to defendant of “despicable, inflammatory ethnic slurs” at end of closing argument was IAC, and California court’s contrary conclusion was based on unreasonable factual determination and application of CEFL).
- Lee v. Jacquez (§2254) (even if California state law procedural bar under Ex parte Dixon is independent, state failed to show it was adequate, where state relied on statistical analysis showing application of rule in seven to twenty-one percent of habeas cases around time of petitioner’s default).
- Bemore v. Chappell (§2254) (penalty-phase IAC, where trial counsel went with good-character mitigation strategy without first investigating potentially mitigating mental health evidence; state court decision to contrary was unreasonable application of Strickland) (fraudulent misuse of court-issued investigative funds by state trial counsel wasn’t error under Cuyler without showing that misuse caused less thorough investigation) (counsel’s presentation of weak alibi defense after failure to investigate was IAC but harmless, and petitioner wasn’t entitled to evidentiary hearing).
- U.S. v. Crooked Arm (per curiam) (one of two counts alleging felony violation under Migratory Bird Treaty Act stated a misdemeanor only).
- U.S. v. Gonzalez-Flores (in collateral attack under §1326, any error in colloquy with IJ about eligibility for voluntary departure was harmless, where defendant failed to show relief was plausible for someone with his “scant” equities).
SCOTUS focus
- Luis v. U.S. (cert. grant on whether pretrial restraint of defendant’s untainted assets needed to retain counsel violates Fifth and Sixth Amendments).
Short circuits.
- U.S. v. Presley (7th Cir.) (Posner, J.) (defense loss with nonetheless helpful language urging sentencing judges, prosecutors, and probation officers to consider recidivism, aging prisoners, rates of violent and drug crimes in older populations, and specific deterrence when recommending sentences, and inviting district court to revisit within-guideline sentence here in light of the opinion).
- U.S. v. Ramirez (7th Cir.) (Speedy Trial Act violation, where district court impermissibly considered its crowded calendar, and record was unclear whether district court considered any permissible factors).
- U.S. v. Moore (7th Cir.) (district court’s failure to make findings to justify term of supervised release was reversible procedural sentencing error).
- U.S. v. Alisuretove (10th Cir.) (restitution in wire fraud case erroneously included amounts for institutions never shown to have been directly and proximately harmed by scheme, as well as losses never shown to have been caused within time frame of charged conspiracy). (H/T)
For the bookworms
- Unfair: The New Science of Criminal Injustice, Adam Benforado (2015) (Amazon).
- “‘Frightening and High’: The Frightening Sloppiness of the High Court's Sex Crime Statistics,” Ira Mark Ellman & Tara Ellman, working paper (SSRN). (H/T)
- “American Punitiveness and Mass Incarceration: Psychological Perspectives on Retributive and Consequentialist Responses to Crime,” Mark R. Fondacaro & Megan O’Toole, ___ New Crim. L. Rev. ___ (forthcoming) (SSRN). (H/T)
- “Managing Collateral Consequences in the Sentencing Process: The Revised Sentencing Articles of the Model Penal Code,” Margaret Colgate Love, ___ Wisc. L. Rev. ___ (2015) (SSRN).
- “Demons are everywhere: The effects of belief in pure evil, demonization, and retribution on punishing criminal perpetrators,” Russell J. Webster & Donald A. Saucier, 74 Personality & Ind. Diff. 72 (2015) (ScienceDirect). (H/T)
- “Invisible Women: Mass Incarceration's Forgotten Casualties,” Michele Goodwin, 94 Tex. L. Rev. ___ (2015/2016) (SSRN). (H/T)
- “DNA Without Warrant: Decoding Privacy, Probable Cause and Personhood,” Ken Strutin, 18-3 Richmond J. L. & Pub. Int. 319 (2015) (SSRN). (H/T)
- “And Justice for All? Racial and Ethnic Sentencing Disparities in California's Federal Drug Sentencing,” Elsa Y. Chen & Kevin Nomura, 7-2 Cal. J. Politics & Pol’y ___ (2015) (SSRN). (H/T)
- “Assessing Unconventional Applications of the 'Terrorism' Label,” Sudha Setty, from The War on Terror & Beyond: Moving from Military Action to Civil Rights, Satvinder Juss & Clive Walker, eds., U. Penn. Press (2015) (SSRN). (H/T)
- “Bases and Baselessness in Secondary Liability,” Matthew Dyson, working paper (SSRN). (H/T)
- “Third Amendment Penumbras: Some Preliminary Observations,” Glenn Harlan Reynolds, 82 Tenn. L. Rev. ___ (2015) (SSRN). (H/T)
- “Minor Physical Anomalies as a Window into the Prenatal Origins of Pedophilia,” Fiona Dyshniku et al., ___ Archives of Sexual Behavior ___ (2015) (Springer). (H/T)
- “Chivalry, Masculinity, and the Importance of Maleness to Judicial Decision Making,” Rebecca D. Gill et al., working paper (SSRN). (H/T)
- “The Death Penalty: Should the Judge or the Jury Decide Who Dies?,” Valerie P. Hans et al., 12 J. Empirical Legal Stud. 70 (2015) (pdf).
