Strange Doctrines: The FPD’s TGIF Roundup

For the week of October 2, 2015

U.S. v. Fowlkes (superseding opinion) (“brutally and physically invasive” rectal search of arrestee in jail without a warrant or medical training required suppression of evidence recovered).
Hinojosa v. Davey (§2254) (retroactive application of California law that reduced credits for prison-gang members and associates in SHU was ex post facto violation) (no AEDPA deference because last reasoned state opinion disclaimed ruling on federal merits).

Duncan v. Owens (§2254) (cert. granted on whether any CEFL bars inferences drawn about non-element motives of defendant).
Puerto Rico v. Sanchez Valle (cert. granted on whether PR and federal government are separate sovereigns for double jeopardy purposes).
RJR Nabisco, Inc. v. The European Community (civil) (cert. granted on whether civil RICO applies extraterritorially).
Utah v. Strieff (cert. granted on whether Fourth Amendment bars use of evidence from search based on outstanding arrest warrant discovered during valid traffic stop, where warrant turned out to have been illegal).
Taylor v. U.S. (cert. granted on whether under Hobbs Act government prove robbery of drug dealer actually affects interstate commerce.).
Molina-Martinez v. United States (cert. granted on what effect should be given to sentence based on incorrect sentencing range, where sentence was within overlap). (H/T)

U.S. v. McLean (10th Cir.) (evidence was insufficient to sustain conviction for program bribery under §666; though county redevelopment agency had received funding from city and county, which in turn received funds from federal government, government provided no evidence about amount of county funds that were federal, or about nature of federal program that authorized those funds) (whether something is a “benefit” within §666 is a jury question). (H/T)
U.S. v. Malik (10th Cir.) (unpub’d) (two-year supervised release term imposed based on district court’s misapprehension it wouldn’t be able to extend a shorter one was plain error). (H/T)
U.S. v. Archuleta (10th Cir.) (unpub’d) (defendant’s presence in high-beer-theft area at 1:25 a.m. while carrying gun in bag and drug misdemeanor/arrests on his record wasn’t reasonable suspicion to extend Terry stop). (H/T)
Sharp v. Rohling (§2254) (state court unreasonably found that interrogator didn’t promise leniency or help in finding shelter for defendant and her children) (those promises rendered some of her statements involuntary, and the error was prejudicial). (H/T)

It’s not a bill quite yet, but Doug Berman has the rundown on the Sentencing Reform and Corrections Act of 2015, here.

“Consent Searches and Fourth Amendment Reasonableness,” Alafair S. Burke, 67 Fla. L. Rev. 509 (2015) (SSRN). (H/T)
“The Prosecutor’s Turn,” I. Bennett Capers, ___ Wm. & Mary L. Rev. ___ (forthcoming) (SSRN). (H/T)
“Juvenile Life Without Parole in Law and Practice: The End of Superpredator Era Sentencing,” John R. Mills et al., ___ Am. U. L. Rev. ___ (forthcoming) (SSRN). (H/T)
“Comment on Prof. Imwinkelried's 'Formalism V. Pragmatism in Evidence[]’: Just What Evidence of Witness Misdeeds Does Federal Evidence Rule 608(B) Exclude?,” Paul F. Rothstein, ___ Creighton L. Rev. ___ (forthcoming) (SSRN). (H/T)
“Silencing Grand Jury Witnesses,” R. Michael Cassidy, ___ Ind. L. Rev. ___ (forthcoming) (SSRN). (H/T)
“The Great Divergence: The Death Penalty in the United States and the Failure of Abolition in Transatlantic Perspective,” Moshik Temkin, working paper (SSRN). (H/T)
“Gang Policing: The Post Stop-and-Frisk Justification for Profile-Based Policing,” Babe Howell, 5 Denver Crim. L. Rev. 1 (2015) (SSRN). (H/T)
“Are You (Still) My Great and Worthy Opponent?: Compassionate Release of Terminally Ill Offenders,” Jalila Jefferson-Bullock, 83-3 U. Mo.-Kan. City L. Rev. ___ (2015) (SSRN). (H/T)
“Evidence-Based Sentencing: Public Openness and Opposition to Using Gender, Age, and Race as Risk Factors for Recidivism,” N. Scurich & J. Monahan, ___ L. & Hum. Behav. ___ (2015) (SSRN (pending)). (H/T)

Strange Doctrines