For the week of August 28, 2015
In this edition:
News to Use | Top of the Ninth | Short Circuits | For the Bookworms
News to use
- From the Bench, a New Look at Punishment (New York Times)
- New research report examines impact of “Realignment” on crime in California in 2014 (SL&P)
- Do tough sex offender restrictions really hurt women and children more than keeping them safe? (SL&P)
- A different take on the Second Circuit’s Microsoft warrant case (Orin Kerr) (H/T)
- Over half of psychology studies fail reproducibility test (Nature) (H/T)
Top of the Ninth
The Ninth Circuit has a new en banc report here, with links and status information on pending en banc cases.
- Daire v. Latimore (en banc order in case involving whether noncapital sentencing-phase IAC is cognizable under §2254).
- U.S. v. Mujahid (§§2241, 2242, and 2244 are not facially unconstitutional exercise of congressional power under Necessary and Proper Clause, nor unconstitutional as applied to person in federal custody being held in state facility under contract with federal agency) (whether facility is one in which custody is by direction of or agreement with head of any federal department or agency is question of law).
- Curiel v. Miller (§2254) (en banc order in equitable tolling case).
- U.S. v. Christensen (in case involving convictions for RICO enterprise that offered illegal private investigation services, jury instructions that defined computer fraud and unauthorized access under CFAA were plain error under Nosal) (one of government’s two aiding-and-abetting theories was error under Noel) (panel affirms on remaining “staggering number of issues” that include sufficiency, honest services fraud, identity theft, improper juror dismissal, and sentencing issues disposed of in this opinion and concurrently filed mem dispo) (C.D.J. Christensen (no relation) in dissent would hold district court improperly dismissed juror for supposedly engaging in nullification). UPDATE (10.5.15): More at Ninth Circuit Blog.
- Carillo v. Cnty. of Los Angeles (§1983) (right to impeachment evidence from police officers as well as prosecutors under Brady was well-established by 1984)
- U.S. v. Sanchez-Gomez (economic and other strains on U.S. Marshal staff did not justify general policy of full restraint for in-court detainees). UPDATE (8.31.15): More at Ninth Circuit Blog.
- Acevedo v. Lynch (immigration) (“child” within §1101(c)(1) of INA does not include stepchildren, even though §1101(b)’s definition does).
- U.S. v. Andrade-Castillo (unpub’d) (district court erred at resentencing when it declared it would not erroneously consider costs as it had previously done, but then failed to otherwise explain reasons for sentence) (presumption of vindictiveness arose from 5-year “probation” sentence imposed (itself illegal since defendant had served time on previous sentence) when original sentence included supervised release term of only 3 years). (H/T Steve Sady)
Short circuits
- U.S. v. Morales (1st Cir.) (categorical approach applies when determining whether prior conviction is “comparable to or more severe than” any SORNA Tier III offense, which Rhode Island first-degree child molestation, Gen. Laws §11-37-8.1, categorically isn’t). (H/T Jim Locklin)
- Lee v. Superintendent (3d Cir.) (§2254) (on review for plain error without AEDPA deference, panel affirms habeas grant on claim that murder conviction based on fire-science and gas-chromatography violated due process, where state conceded fire forensics used had been shown to be bogus by scientific advances, though state argued other evidence supported conviction). (H/T)
- U.S. v. Maday (7th Cir.) (Posner, J.) (30 year sentence consecutive to state sentence was not adequately explained, where defendant, though a career criminal, was a petty bank robber who at age 43 was nearing mean for “retirement” among bank robbers, and district court’s remarks cut against its purported specific-deterrence justification) (Anders motion denied).
- Rowe v. Gibson (7th Cir.) (Posner, J.) (§1983) (without taking judicial notice, panel uses information from websites for drug manufacturer and Mayo Clinic to discredit prison doctor’s affidavit district court relied upon in granting summary judgment, where prisoner’s motion for expert funds had been denied) (“It is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence.”) (H/T)
- Attocknie v. Smith (10th Cir.) (§1983) (“hot pursuit” requires “immediate or continuous” pursuit from crime scene). (H/T)
For the bookworms
- Law and Lies: Deception and Truth-Telling in the American Legal System , Austin Sarat, ed., Cambridge U. Press (2015) (Amazon). (H/T (chapter available))
- “From Jones to Jones: Fifteen Years of Incoherence in the Constitutional Law of Sentencing Factfinding,” Benjamin J. Priester, working paper (SSRN). (H/T)
- “Guns and Drugs,” Benjamin Levin, Fordham L. Rev. ___ (forthcoming) (SSRN). (H/T Steve Sady)
- “Taming Madison's Monster: How to Fix Self-Execution Doctrine,” David L. Sloss, ___ BYU L. Rev. ___ (forthcoming) (SSRN). (H/T)
- “Response: Implicit Racial Bias and the Perpetrator Perspective: A Response to Reasonable But Unconstitutional,” L. Song Richardson, 83-3 Geo. Wash. L. Rev. ___ (2015) (SSRN). (H/T)
- “Moving Beyond Miranda: Concessions for Confessions,” Scott Howe, 110 Nw. U. L. Rev. ___ (forthcoming) (SSRN). (H/T)
- “A Brief Assessment of Supreme Court Opinion Language,” Adam Feldman, working paper (SSRN).
- “The More You Say, the Less They Hear,” Elsbeth D. Asbeek Brusse et al., ___ J. Media Psych. ___ (2015) (abstract). (H/T)
- “DNA by the Entirety,” Natalie Ram, 115 Colum. L. Rev. 873 (2015) (SSRN). (H/T)
- “Petty Offenses and Article III,” Stephen I. Vladeck, ___ 19 Green Bag 2d ___ (2016) (SSRN). (H/T)
- “Victim or Thug? Examining the Relevance of Stories in Cases Involving Shootings of Unarmed Black Males,” Sherri Lee Keene, 58-3 How. L.J. ___ (2015) (SSRN).
- “‘But I Still Haven’t Found What I’m Looking For’: The Supreme Court’s Struggle to Understand Factual Investigations in Federal Habeas Corpus,” Tiffany Murphy, working paper (SSRN).
