CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, March 7, 2011

Opinion in DNA-access case

The case is Skinner v. Switzer. Here is the syllabus:

District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U. S. ___, ___, left unresolved the question whether a convicted state prisoner seeking DNA testing of crime-scene evidence may assert that claim in a civil rights action under 42 U. S. C. §1983 or may assert the claim in federal court only in a petition for a writ of habeas corpus under 28 U. S. C. §2254.

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March 7, 2011 | Permalink | Comments (0)

Opinion on meaning of "collateral review" in AEDPA

The case is Wall v. Kholi. Here is the syllabus:

Respondent was convicted in Rhode Island Superior Court on 10 counts of first-degree sexual assault and sentenced to consecutive life terms. His conviction became final on direct review on May 29, 1996. In addition to his direct appeal, he filed two relevant state motions. One, a May 16, 1996, motion to reduce his sentence under Rhode Island Superior Court Rule of Criminal Procedure 35, was denied. The State Supreme Court affirmed on January 16, 1998. The second, a state postconviction relief motion, was also denied. That decision was affirmed on December 14, 2006. When respondent filed his federal habeas petition, his conviction had been final for over 11 years. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) generally requires a federal petition to be filed within one year of the date on which a judgment became final, 28 U. S. C. §2244(d)(1)(A), but “a properly filed application for State post-conviction or other collateral review” tolls that period, §2244(d)(2). Respondent’s postconviction relief motion tolled the period for over nine years, but his Rule 35 motion must also trigger the tolling provision for his habeas petition to be timely. The District Court dismissed the petition as untimely, adopting the Magistrate Judge’s conclusion that the Rule 35 motion was not “a properly filed application for . . . collateral review” under §2244(d)(2). The First Circuit reversed.

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March 7, 2011 | Permalink | Comments (0)

Sunday, March 6, 2011

DiBari on restitution in cases involving possession of child pornography

Dennis F. DiBari has posted Restoring Restitution: The Role of Proximate Causation in Child Pornography Possession Cases Where Restitution is Sought (Cardozo Law Review, Vol. 33, 2011, Forthcoming) on SSRN. Here is the abstract:

The issue of causation is the central reason why possession cases are so problematic for many district courts. Unlike cases involving direct abuse or actual production of child pornography, defendants in possession cases usually have had no contact with the victims. The defendants often do not know the victim's true identity. In fact, the victims usually do not know the defendants exist until only after they are alerted by notices from the federal government. The only link defendants have to their victims is, of course, the physical possession of their image. It is difficult for courts to even begin to quantify the amount of harm done to the victim by the defendant's possession of their depiction. In addition, most victims have experienced the trauma of multiple crimes and therefore have different layers of victimization; isolating the damage done by the original abuse, the production, the distribution, and end-use possession has been described as an “evidentiary nightmare.” Simply put, courts are stumbling over causation before they award restitution in possession cases because they are having great difficulty linking the defendant's act to the victim's harm.

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March 6, 2011 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

Ssrn logo in criminal law and procedure ejournals are here. The usual disclaimers apply.

Rank Downloads Paper Title
1 451 An Equilibrium-Adjustment Theory of the Fourth Amendment
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: January 26, 2011 [3rd last week]
2 382 Who May Be Killed? Anwar al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force
Robert Chesney,
University of Texas School of Law,
Date posted to database: February 4, 2011 [1st last week]
3 354 Is the Fourth Amendment Relevant in a Technological Age?
Christopher Slobogin,
Vanderbilt University - Law School,
Date posted to database: January 10, 2011 [2nd last week]
4 309 Plan Now or Pay Later: The Role of Compliance in Criminal Cases
Charlotte Simon, Ryan D. McConnell, Jay Martin,
University of Houston - Law Center, Haynes and Boone LLP, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: January 11, 2011
5 256 Prosecuting the Exonerated: Actual Innocence and the Double Jeopardy Clause
Jordan M. Barry,
University of San Diego - School of Law,
Date posted to database: February 11, 2011
6 243 EU Antitrust Enforcement Powers and Procedural Rights and Guarantees: The Interplay Between EU Law, National Law, the Charter of Fundamental Rights of the EU and the European Convention on Human Rights
Wouter P. J. Wils,
European Commission,
Date posted to database: February 12, 2011
7 221 'Death is Different’ No Longer: Graham v. Florida and the Future of Eighth Amendment Challenges to Noncapital Sentences
Alison Siegler, Barry Sullivan,
University of Chicago Law School, Loyola University Chicago School of Law,
Date posted to database: January 27, 2011
8 208 Emotion, Neuroscience, and Law: A Comment on Darwin and Greene
John Mikhail,
Georgetown University - Law Center,
Date posted to database: February 14, 2011 [10th last week]
9 179 Must Virtue Be Particular?
Frederick Schauer,
University of Virginia School of Law,
Date posted to database: January 14, 2011
10 167 Flipping the Culpability Coin: How the Model Penal Code Fails Defendants
Francis X. Shen, Morris B. Hoffman, Owen D. Jones, Joshua D. Greene, Rene Marois,
Vanderbilt Law School, Second Judicial District (Denver), State of Colorado, Vanderbilt University - Law School & Department of Biological Sciences, Harvard University, Depatment of Psychology, Vanderbilt University - Department of Psychology,
Date posted to database: February 24, 2011 [new to top ten]

March 6, 2011 | Permalink | Comments (1)