March 6, 2010
Norton on the Quarles Exception to MirandaRorie Norton has posted Matters of Public Safety and the Current Quarrel Over the Scope of the Quarles Exception to Miranda (Fordham Law Review, Vol. 78, pp. 101-139, 2010) on SSRN. Here is the abstract:
As the only exception permitting an intentional violation of Miranda, this circuit split concerning the scope of the Quarles exception poses a substantial threat to the ongoing role of Miranda in the criminal justice system. In light of this conflict and the possible repercussions, this Note endorses the narrow approach as the most consistent with the language and intent of Quarles. It further proposes a formal, three-prong test for applying the Quarles exception that requires officers to have actual knowledge of an immediate threat, with all pre-Miranda suspect questioning objectively evaluated to ensure that it is narrowly tailored to that threat. Finally, this Note concludes by justifying its proposed test as the best method to ensure uniformity in the future application of Quarles among the lower courts and to prevent the exception from being applied in a manner threatening to the Miranda doctrine.
Perlin on Neuroimaging and Competency after Panetti
Michael L. Perlin (New York Law School) has posted on SSRN. Here is the abstract:
What has not yet been considered, to the best of my knowledge, is the potential significance of such evidence on an issue that combines aspects of these inquiries from one singular perspective: its potential impact on cases determining whether a seriously mentally disabled death row defendant is competent to be executed.
In Panetti v. Quarterman (127 S. Ct. 2842 (2007)),,the Supreme Court ruled that such a defendant had a constitutional right to make a showing that his mental illness “obstruct[ed] a rational understanding of the State’s reason for his execution,” expanding its jurisprudence in this area beyond its earlier decision in Ford v. Wainwright that had regularly be interpreted to require that competency-to-be-executed depended only on three findings: that the prisoner is aware he committed the murders, that he is going to be executed, and he is aware of the reasons the State has given for his execution.
Although it is too early to come to any definitive conclusions as to the “real life” implementation of Panetti, we know that, in many jurisdictions, implementation of Ford was simply nonexistent, suggesting that fact-finders were utterly disinterested in the testimony presented at hearings designed to thwart execution in cases where it was alleged that the defendant did not meet the Ford standard. To the best of my knowledge, it does not appear that neuroimaging testimony was relied on in any of the (published) cohort of these cases.
Panetti suggests that competency-to-be-executed hearings may necessarily have to become more sophisticated and complex, especially in light of the other Panetti holding that the trial court’s failure to provide the defendant an adequate opportunity to submit expert evidence in response to the report filed by the court-appointed experts, deprived him of his “constitutionally adequate opportunity to be heard.” This also leads to the question that I explore in this paper: what impact will neuroimaging testimony have on future Panetti hearings?
This question subsumes multiple sub-questions:
• Will defense counsel seek to introduce such testimony, and what, exactly, can we expect such testimony will say?
• In cases involving indigent defendants, will Ake v. Oklahoma be interpreted expansively or restrictively?
• Will prosecutors seek to introduce such testimony to rebut defendant’s Panetti applications?
• To what extent are judges more or less impervious to the “dazzle” or “Christmas tree effect” of such testimony than are jurors?
• How will such testimony be dealt with if there is a Daubert challenge?
• How will judges deal with such testimony in cases where the evidence revealed by neuroimaging testimony does not comport with their (false) “ordinary common sense” view of “crazy” criminal defendants?
I offer preliminary answers to all these questions in this paper.
March 5, 2010
"US death penalty stance increasingly at odds with international community"Jurist has the piece by Richard Dieter, executive director, Death Penalty Information Center.
March 4, 2010
"The Good Faith Exception and Changing Law"FourthAmendment.com links to "three great posts by Orin Kerr on the good faith exception and changing law."
"Chelsea King tragedy heats up politics around sex offender monitoring"Doug Berman links to and excerpts the story at Sentencing Law and Policy.
March 3, 2010
Police, "Flipping the Bird," and the First Amendment (Kolber)
Man claims police retaliated against him for "flipping them the bird". (How often did he do it? "Not once, not twice, but three times.")
"2d Amendment extension likely"Lyle Denniston reviews yesterday's much anticipated argument in McDonald v. City of Chicago at ScotusBlog.
March 2, 2010
Opinion in Johnson v. United States
is here. The syllabus:
Petitioner Johnson pleaded guilty to possession of ammunition by a convicted felon. 18 U. S. C. §922(g)(1). The Government sought sentencing under the Armed Career Criminal Act, which authorizes an enhanced penalty for a person who violates §922(g) and who “has three previous convictions” for “a violent felony,” §924(e)(1), defined as, inter alia, an offense that “has as an element the use . . . of physical force against the person of another,” §924(e)(2)(B)(i). Among the three prior felony convictions the Government proffered was Johnson’s 2003 Florida conviction for simple battery, which ordinarily is a first-degree misdemeanor, Fla. Stat. §784.03(1)(b), but was a felony conviction for Johnson because he had previously been convicted of another battery, Fla. Stat. §784.03(2). Under Florida law, a battery occurs when a person either “[a]ctually and intentionally touches or strikes another person against [his] will,” or “[i]ntentionally causes bodily harm to another person.” §784.03(1)(a). Nothing in the record permitted the District Court to conclude that Johnson’s 2003 conviction rested upon the “strik[ing]” or “[i]ntentionally caus[ing] bodily harm” elements of the offense. Accordingly, his conviction was a predicate conviction for a “violent felony” under the Armed Career Criminal Act only if “[a]ctually and intentionally touch[ing]” another constitutes the use of “physical force” under §924(e)(2)(B)(i). Concluding it does, the District Court enhanced Johnson’s sentence under §924(e)(1), sentencing him to a term of 15 years and 5 months.The Eleventh Circuit affirmed.
Held: The Florida felony offense of battery by “[a]ctually and intentionally touch[ing]” another person does not have “as an element the use. . . of physical force against the person of another,” §924(e)(2)(B)(i),and thus does not constitute a “violent felony” under §924(e)(1). Pp. 3–12.
(a) In interpreting the phrase “physical force” in §924(e)(2)(B)(i), the Court is not bound by the Florida Supreme Court’s conclusion in State v. Hearns, 961 So. 2d 211, 218, that, under Florida’s statutory equivalent to the Armed Career Criminal Act, Fla. Stat. §775.084,the offense of battery does not “involve the use . . . of physical force or violence against any individual,” Fla. Stat. §776.08. The meaning of “physical force” in §924(e)(2)(B)(i) is a question of federal law, not state law. The Court is bound, however, by the Florida Supreme Court’s interpretation of the elements of the state law offense, including the Florida Supreme Court’s holding that §784.03(1)(a)’s element of “[a]ctually and intentionally touching” another person is satisfied by any intentional physical contact, no matter how slight. Pp. 3–4.
(b) Because §924(e)(2)(B)(i) does not define “physical force,” the Court gives the phrase its ordinary meaning. Bailey v. United States, 516 U. S. 137, 144–145. The adjective “physical” is clear. The noun “force,” however, has a number of meanings. Its ordinary meaning refers to the application of strength, power, and violence—in this context, against another person. Pp. 4–5.
(c) The Government suggests that “force” in §924(e)(2)(B)(i)’s definition of “violent felony” is a legal term of art describing one of the elements of the common-law crime of battery. At common law, that element was satisfied by even the slightest offensive touching. Although a common-law term of art should be given its established common-law meaning, the Court does not ascribe to a statutory term a common-law meaning where that meaning does not fit. Here “physical force” is used in defining not the crime of battery, but rather the statutory category of “violent felony.” §924(e)(2)(B)(i). In that context, “physical force” means violent force—i.e., force capable of causing physical pain or injury to another person. Cf. Leocal v. Ashcroft, 543 U. S. 1, 11. Moreover, it is significant that the meaning the Government seeks to impute to the term “force” derives from the elements of a common-law misdemeanor. Nothing in the text of §924(e)(2)(B)(i) suggests that “force” in the definition of a “violent felony” should be regarded as a common-law term of art used to define the contours of a misdemeanor. Nor can any negative inference about the amount of “force” required by §924(e)(2)(B)(i) be drawn from §924(e)(2)(B)(ii) and §922(g)(8)(C)(ii). Pp. 5–9.
(d) There is no force to the Government’s prediction that this decision will undermine its ability to enforce §922(g)(9)’s firearm disability against a person previously convicted of a misdemeanor crime of domestic violence that has as an element the “use . . . of physical force,” §921(a)(33)(A)(ii). The Court interprets the phrase “physical force” only in the context of a statutory definition of “violent felony,” and does not decide whether the same meaning applies in the context of defining the scope of misdemeanor offenses. Similarly misplaced is the Government’s assertion that it will now be more difficult to obtain sentencing enhancements for individuals convicted under generic felony-battery statutes that cover both violent force and unwanted physical contact, and to remove an alien convicted of a nonviolent battery conviction under the statutory provision for an alien convicted of a “crime of domestic violence,” 8 U. S. C. §1227(a)(2)(E). See, e.g., Chambers v. United States, 555 U. S. ___, ___; Shepard v. United States, 544 U. S. 13, 26. Pp. 9–11.
(e) Before the District Court the Government disclaimed any reliance upon the so-called “residual clause” of the definition of “violent felony” in §924(e)(2)(B)(ii), which covers an offense that “involves conduct that presents a serious potential risk of physical injury to another.” Accordingly, the Court declines to remand for consideration whether Johnson’s 2003 battery conviction qualifies as a “violent felony” under that provision. Pp. 11–12.
528 F. 3d 1318, reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined.
Argument transcript from McDonald v. City of Chicagois here.
Gwin on the Federal Sentencing Guidelines and Community Values
James Gwin has posted Juror Sentiment on Just Punishment: Do the Federal Sentencing Guidelines Reflect Community Values? (Harvard Law & Policy Review, Vol. 4, pp. 173-200, 2010) on SSRN. Here is the abstract:
Do the Federal Sentencing Guidelines reflect community sentiment regarding appropriate punishment? This paper describes a study where juries were surveyed after they had given guilty verdicts. The author then compared the jurors' recommendations with the Federal Sentencing Guidelines recommended sentence. Combining 22 cases of various types, the median juror recommended sentence was only 19% of the median Guidelines ranges and only 36% of the bottom of the Guidelines ranges.
The author argues that the Federal Sentencing Guidelines correctly emphasized retribution as the most important sentencing purpose. If retributive considerations should dominate, the author says the ranges chosen should align with community sentiment. Although the study is limited, it suggests the current Guidelines values do not. The author recommends juror questionnaires as an easy facility to better guage community sentiment without diminishing the Guidelines desire to reduce sentencing disparities.
March 1, 2010
Argument transcript from Skilling v. United Statesis here.
Argument transcript from Holland v. Floridais here.
Argument transcript from Berghuis v. Thompkinsis here.
Today's Cert Grant: Testimonial or Not?
The Court granted cert in Michigan v. Bryant. Here's the issue as described on ScotusBlog, which also links to cert papers and the opinion below:
Whether preliminary inquiries of a wounded citizen concerning the perpetrator and circumstances of the shooting are nontestimonial because they were “made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency,” including not only aid to a wounded victim, but also the prompt identification and apprehension of an apparently violent and dangerous individual?
"Utah Bill Would Criminalize Illegal Abortions"
The story is in the New York Times:
Last May in a small town in eastern Utah, a 17-year-old girl, seven months pregnant, paid a man she had just met $150 to beat her up in hopes of inducing a miscarriage that would resolve her crisis. He obliged, taking her to a basement and kicking her repeatedly in the stomach.
. . .
The bill’s sponsor, Representative Carl D. Wimmer, a Republican and former police officer from the suburbs of Salt Lake City, said the beating case, and the decision by a judge last fall that the girl had committed no crime because seeking an abortion is not illegal, revealed “a loophole” in the law.
. . .
But critics say legislation inspired by an unusual, perhaps even freakish criminal case, could open up a vast frontier around the question of intent and responsibility and give local prosecutors huge new powers to inquire about a woman’s intentions toward her unborn child.
Shannon on Sell v. United States
"Boycotting of judges nothing new to DA"
This interesting story in yesterday's San Diego Union Tribune:
Since 2003, prosecutors have targeted at least three other Superior Court judges for whole or partial boycotts.
Sources in the courthouse, the local defense bar and the District Attorney’s Office said all three were targeted shortly after they made rulings that the District Attorney’s Office apparently disagreed with. Two of those judges, Judith Hayes and William McAdam, no longer work in the criminal courts.
Boycotting a judge is seen by some as ham-handed attempt to intimidate or even bully judges. It is done by using a peremptory challenge — a legal move available to prosecutors and defense lawyers — to block a new case from going to a particular judge. A specific reason does not have to be given. The challenge can also be used in a limited form, such as only on serious felony cases.
February 28, 2010
Top-Ten Recent SSRN Downloads
|1||352||The Emerging Law of Detention: The Guantanamo Cases as Lawmaking |
Benjamin Wittes, Robert Chesney, Rabea Benhalim,
Unaffiliated Authors - affiliation not provided to SSRN, University of Texas School of Law, Brookings Institution,
Date posted to database: January 27, 2010
|2||273||Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan |
Jordan J. Paust,
University of Houston - Law Center,
Date posted to database: December 11, 2009
|3||234||Fifty State Survey of Adult Sex Offender Registration Laws |
Brenda V. Smith,
American University - Washington College of Law,
Date posted to database: December 3, 2009
|4||230||The Greatest Legal Movie of All Time: Proclaiming the Real Winner |
Grant H. Morris,
University of San Diego School of Law,
Date posted to database: January 12, 2010
|5||217||The Case Against the Goldstone Report: A Study in Evidentiary Bias |
Harvard Law School,
Date posted to database: January 27, 2010 [new to top ten}
|6||215||How Does International Law Work: What Empirical Research Shows |
Tom Ginsburg, Gregory Shaffer,
University of Chicago Law School, University of Minnesota - Twin Cities - School of Law,
Date posted to database: December 19, 2009 [5th last week]
|7||173||Vagueness Challenges to the Computer Fraud and Abuse Act |
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: December 23, 2009 [6th last week]
|8||129||Unintended Collateral Consequences: Defining Felony in the Early American Republic |
University of Baltimore - School of Law,
Date posted to database: December 4, 2009 [7th last week]
|9||123||Judging Police Lies: An Empirical Perspective |
Melanie D. Wilson,
University of Kansas - School of Law,
Date posted to database: January 11, 2010 [10th last week]
|10||120||Why the Prior Conviction Sentencing Enhancements in Illegal Re-Entry Cases are Unjust and Unjustified (and Unreasonable Too) |
Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: December 1, 2009 [8th last week]