For the week of September 11, 2015
In this edition:
News to Use | Top of the Ninth | Short Circuits | For the Bookworms
News to use
- Case o’ The Week: Ninth Scrubs Gov’t Theories, Conviction Washes Away (Ninth Circuit Blog)
- Federal Indigent Defense 2015: The Independence Imperative (NACDL) (H/T)
- The Collateral Victims of Criminal Justice (New York Times)
- The Pointless Banishment of Sex Offenders (New York Times)
- Clashing courts: Law restricts federal judges’ ability to intervene in state criminal cases (Los Angeles Times)
- The Worst of the Worst (New Yorker)
- Maybe We Don’t Need to Worry. . . . Well, if They Do What Their Bosses Say. (Carl Gunn)
Top of the Ninth
- Taylor v. Sand Diego County (§2254) (no unreasonable application of CEFL in California court’s denial of equal protection and due process challenges to release procedures and allocation of burden of proof under Sexually Violent Predator Act).
- U.S. v. Augare (defendant’s coordinated and repetitive steps to transfer money from Indian tribal project to personal bank account supported sophisticated means enhancement under §2B1.1(b)(10)(C)).
- U.S. v. Aubrey (funds that Indian tribal organization pays to contractor continue to belong to it under §1163 as long as it maintains sufficient supervision and control over funds and their ultimate use) (evidence was sufficient to sustain jury finding that funds misappropriated or converted by defendant belonged to organization even though they were reimbursement for work performed, and that the tribal organization had sufficient supervision and control of funds allocated by federal agency) (related theory of defense was adequately covered by jury instructions) (government witness’s “two passing references” to particular accounting method he’d used to construct summary charts did not transform his testimony into expert testimony, so it was legit under FRE 701; no abuse of discretion in permitting summary charts based on concededly admissible evidence, either) (enhancement for abuse of position of trust was proper). UPDATE (9.15.15): More at Ninth Circuit Blog.
Short circuits
- U.S. v. Falor (7th Cir.) (panel grants full resentencing on remand for inadequately explained supervised release conditions).
- U.S. v. LeCompte (10th Cir.) (defendant on supervised release for SORNA violation could bring as-applied constitutional challenge to condition that prohibited his being in presence of minor without another adult approved by probation, even though he had not challenged condition at original sentencing) (motion to dismiss revocation petition should have been granted, where district court had never made individualized assessment, and where defendant had been in presence of minor along with several adults, though none approved by probation). (H/T)
- U.S. v. Martinez-Torres (district court lacked reasoned basis for restricting legal adult pornography on supervised release) (two other conditions—one restricting alcohol, the other requiring psychosexual evaluation and treatment—were plain error). (H/T)
- U.S. v. Braun (11th Cir.) (prior battery on pregnant woman, Fla. Stat. §§784.045(1)(b), and battery on law enforcement officer, id. §784.07(2)(b), were not “violent felonies” under ACCA on modified categorical analysis) (PSR from different case was not valid Shepard document; it didn’t matter that defendant never objected to PSR findings in that case). (H/T)
- U.S. v. Martinez (11th Cir.) (per curiam) (conviction for threatening communication under §875(c) was error under Elonis). (H/T)
For the bookworms
- “Plea Bargaining's Baselines,” Josh Bowers, ___ Wm. & Mary L. Rev. ___ (forthcoming) (SSRN). (H/T)
- “Training for Bargaining,” Jenny Roberts & Ronald F. Wright, 57 Wm. & Mary L. Rev. ___ (2016) (SSRN). (H/T)
- “Damp Squib: The Disappointing Denouement of the Sentencing Commission's Economic Crime Project (And What They Should Do Now),” Frank O. Bowman III, 27 Fed. Sent’g Rep. 270 (June 2015) (SSRN). (H/T)
- “Constitutional Retroactivity in Criminal Procedure,” Dov Fox & Alex Stein, 91 Wash. L. Rev. ___ (2016) (SSRN). (H/T)
- “Statistical Testing of Peremptory Challenge Data for Possible Discrimination: Application to Foster v. Chatman,” Joseph L. Gastwirth, working paper (SSRN). (H/T)
- “Post-Sentencing Appellate Waivers,” Kevin Bennardo, 48 U. Mich. J. L. Reform 347 (2015) (pdf).
- “Dignity and the Eighth Amendment: A New Approach to Challenging Solitary Confinement,” Laura Rovner, ACS Issue Brief (September 2015) (pdf). (H/T)
- “The Hidden Psychology of Constitutional Criminal Procedure,” Jesse-Justin Cuevas & Tonja Jacobi, working paper (SSRN). (H/T)
- “Reinvigorating and Enhancing Jury Trials Through an Overdue Juror Bill of Rights: WWJW — What Would Jurors Want? — A Federal Trial Judge's View,” Mark W. Bennett, 38 Ariz. L. Rev. ___ (2016) (SSRN). (H/T)
- “Tough on Crime or Tough Luck for the Incarcerated? Exploring the Adverse Psychological Impacts of Mandatory Minimum Sentencing and Pushing for Action,” Robert C. NeSmith, 39 L. & Psych. Rev. 253 (2015) (SSRN). (H/T)
- “Preserving the Good Elements in Punishment and Avoiding a Purely Therapeutic Approach: An Outline,” Michael Louis Corrado, working paper (SSRN). (H/T)
- “Motivating Compliance Behavior Among Offenders: Procedural Justice or Deterrence?,” Kristina Murphy et al., ___ Crim. J. & Behav. ___ (forthcoming) (SSRN). (H/T)
- “The Life of Crimmigration Law,” César Cuauhtémoc García Hernández, 92-4 Denver U. L. Rev. ___ (2015) (SSRN). (H/T)
- “When Judges Have Reasons Not to Give Reasons: A Comparative Law Approach,” Mathilda Cohen, 72 Wash & Lee L. Rev. 483 (2015) (pdf).
