CrimProf Blog

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

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Saturday, November 5, 2011

Next week's criminal law/procedure arguments

Issue summaries are from ScotusBlog:

Monday

  • Kawashima v. Holder: (1) Whether the Ninth Circuit erred in holding that Petitioner's convictions of filing, and aiding and abetting in filing, a false statement on a corporate tax return in violation of 26 U.S.C. §§ 7206(1) and (2) were aggravated felonies involving fraud and deceit under 8 U.S.C. § 1101(a)(43)(M)(i), and Petitioners were therefore removable.

Tuesday

  • Smith v. Cain: 1) Whether there is a reasonable probability that the outcome of Smith's trial would have been different but for Brady and Giglio/Napue errors; 2) whether the state courts violated the Due Process Clause by rejecting Smith's Brady and Giglio/Napue claims.
  • U.S. v. Jones: (1) Whether the warrantless use of a tracking device on respondent's vehicle to monitor its movements on public streets violated the Fourth Amendment; and (2) whether the government violated respondent's Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.

November 5, 2011 | Permalink | Comments (0)

Argument transcript from habeas case

The transcript from Wednesday's argument in  Gonzalez v. Thaler is here.

November 5, 2011 | Permalink | Comments (0)

Argument transcript from eyewitness identification case

The transcript from Wednesday's argument in Perry v. New Hampshire is here.

November 5, 2011 | Permalink | Comments (0)

Delgado on the "Rotten Social Background" Criminal Defense and Accounting for Poverty and Environmental Deprivation

Delgado, Richard - Seattle University SoLRichard Delgado (Seattle University School of Law) has posted The Wretched of the Earth (Alabama Civil Rights and Civil Liberties Law Review, Forthcoming) on SSRN. Here is the abstract:

In the following essay, part of a symposium on criminal punishment and social deprivation, Richard Delgado revisits a subject he addressed 25 years ago in a classic article on the "rotten social background" defense. He ponders why this defense has found only a slight foothold in the law of criminal defenses and asks what this failure means about our basic social commitments.

November 5, 2011 | Permalink | Comments (0)

Friday, November 4, 2011

Robbins on the Difficulties in Authenticating Evidence from Social Networking Websites

Robbins, Ira P. - American University Washington CoLIra P. Robbins (American University - Washington College of Law) has posted Writings on the Wall: The Need for an Authorship-Centric Approach to the Authentication of Social-Networking Evidence (Minnesota Journal of Law, Science & Technology, Vol. 13, No. 1, 2011) on SSRN. Here is the abstract:

People are stupid when it comes to their online postings. The recent spate of social-networking websites has shown that people place shocking amounts of personal information online. Unlike more traditional modes of communication, the unique nature of these websites allows users to hide behind a veil of anonymity. But while social-networking sites may carry significant social benefits, they also leave users—and their personal information—vulnerable to hacking and other forms of abuse. This vulnerability is playing out in courtrooms across the country and will only increase as social-networking use continues to proliferate.

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November 4, 2011 | Permalink | Comments (0)

Creel on Respecting Native American Tribal Court Convictions in U.S. Federal Criminal Sentencing

Creel, Barbara - University of New Mexico SoLBarbara Creel (University of New Mexico School of Law) has posted Tribal Court Convictions and the Federal Sentencing Guidelines: Respect for Tribal Courts and Tribal People in Federal Sentencing (University of San Francisco Law Review, Forthcoming) on SSRN. Here is the abstract:

This article critiques a proposal to include tribal court criminal convictions and sentences in the federal sentencing scheme. The proposal, as articulated by Kevin Washburn, calls for an amendment to the Federal Sentencing Guidelines to count tribal court convictions in calculating an Indian defendant’s criminal history score to determine a federal prison sentence. Currently, tribal court convictions are not directly counted in criminal history, but may be used to support an “upward departure” to increase the Native defendant’s overall federal sentence.

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November 4, 2011 | Permalink | Comments (0)

Thursday, November 3, 2011

Corn on Equating U.S. Self Defense Targeting with Willful Blindness

Corn, Geoffrey S. - South Texas CoLGeoffrey S. Corn (South Texas College of Law) has posted Self Defense Targeting: Conflict Classification or Willful Blindness? on SSRN. Here is the abstract:

Willful blindness is a criminal law evidentiary concept used when knowledge of a particular fact or result is at issue. It allows the finder of fact to impute such knowledge to a criminal defendant when the evidence indicates the defendant willfully avoided learning true facts in the face of obvious indicators. In essence, it transforms a reckless failure to verify critical facts into knowledge of those facts. This doctrine seems to almost perfectly characterize the apparent effort to avoid the jus in bello classification of counter-terror military operations by relying on the overarching jus ad bellum legal justification for these operations. This so called ‘self-defense targeting’ concept, or what Professor Kenneth Anderson calls ‘naked self-defense,’ appears to provide the U.S. legal framework for employing combat power to destroy or disrupt the capabilities of transnational terrorist operatives. This essay will address why reliance on this self-defense targeting concept is in essence an exercise in international legal willful blindness, and why as a result the jus in bello classification of such operations should be imputed by the invocation of jus ad bellum self-defense.

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November 3, 2011 | Permalink | Comments (0)

Ferzan on the Basis for Moral Liability to Defensive Killing

Ferzan, Kimberly - Rutgers SoLKimberly Kessler Ferzan (Rutgers, The State University of New Jersey - School of Law - Camden) has posted Culpable Aggression: The Basis for Moral Liability to Defensive Killing (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract: 

The use of the term, “self-defense,” covers a wide array of defensive behaviors, and different actions that repel attacks may be permissible for different reasons. One important justificatory feature of some defensive behaviors is that the aggressor has rendered himself liable to defensive force by his own conduct. That is, when a culpable aggressor points a gun at a defender, and says, “I am going to kill you,” the aggressor’s behavior forfeits the aggressor’s right against the defender’s infliction of harm that is intended to repel the aggressor’s attack. Because the right is forfeited, the aggressor cannot fight back, numbers do not count (the defender may kill as many culpable aggressors as he needs to), third parties may only aid the defender, and the defender does not owe the aggressor compensation for harms inflicted.

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November 3, 2011 | Permalink | Comments (0)

Covey on the Defense of Temporary Insanity

Covey, Russell - Georgia State University CoLRussell D. Covey (Georgia State University College of Law) has posted Temporary Insanity: The Strange Life and Times of the Perfect Defense (Boston University Law Review, Vol. 91, 2011) on SSRN. Here is the abstract:

The temporary insanity defense has a prominent place in the mythology of criminal law. Because it seems to permit factually guilty defendants to escape both punishment and institutionalization, some imagine it as the “perfect defense.” In fact, the defense has been invoked in a dizzying variety of contexts and, at times, has proven highly successful. Successful or not, the temporary insanity defense has always been accompanied by a storm of controversy, in part because it is often most successful in cases where the defendant’s basic claim is that honor, revenge, or tragic circumstance – not mental illness in its more prosaic forms – compelled the criminal act. Given that the insanity defense is considered paradigmatic of excuse defenses, it is puzzling that temporary insanity also functions as a sort of justification defense.

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November 3, 2011 | Permalink | Comments (0)

Wednesday, November 2, 2011

Woodhouse on the Constitutional Rights of Parents and Children in Child Protective and Juvenile Delinquency Investigations

Woodhouse, Barbara Bennett - Emory University SoLBarbara Bennett Woodhouse (Emory University School of Law) has posted Constitutional Rights of Parents and Children in Child Protective and Juvenile Delinquency Investigations (International Society of Family Law: North American Regional Conference, 2011) on SSRN. Here is the abstract:

This report addresses the balance between the authority of the child protective system to investigate allegations of child abuse and the constitutional rights of parents and children to family privacy and autonomy. It also discusses rights of parents and children in the juvenile delinquency context, where the child is a suspected perpetrator of a crime rather than a victim. In the principal case discussed, Camreta v. Greene, the Supreme Court was asked to decide whether, absent exigent circumstances, the 4th Amendment prohibition of unreasonable searches and seizures is violated when a child protective services investigator accompanied by a police officer interviews a suspected child victim at school, without first obtaining a judicial warrant or parental permission. While it remains to be seen whether the Court will reach the merits of the case, the oral arguments and outpouring of friend of the court briefs illustrate the difficulty of balancing values of child protection, public safety and family autonomy. Note: In an opinion issued on March 26, 2011, the Court dismissed the Camreta case as moot leaving the controversial 4th Amendment issues unresolved.

November 2, 2011 | Permalink | Comments (0)

Green on the Possible Impact of Mississippi Measure 26 and Defining the Beginning of a Person

Green, Christopher - University of Mississippi SoLChristopher R. Green (University of Mississippi - School of Law) has posted A Textual Analysis of the Possible Impact of Measure 26 on the Mississippi Bill of Rights (Supra: The Mississippi Law Journal Online, Forthcoming) on SSRN. Here is the abstract:

Measure 26, which Mississippi voters will consider on November 8, 2011, would amend the Mississippi Bill of Rights to clarify that "person" and "persons" begin at fertilization. Backers have claimed it would require the state to protect human embryos and fetuses from the moment of fertilization, while opponents have argued that it would impose liability for life-saving medicine, ban forms of birth control, or require criminal investigations of miscarriages. As the state constitution is currently understood by courts, however, these claims lack a straightforward textual explanation. Whatever the goals of backers, the text of Measure 26 is not a frontal assault on Roe v. Wade. It would offer enhanced tort remedies under section 24 of the Mississippi Constitution when embryos and fetuses are injured and would prevent state action harming embryos and fetuses under section 14. More significant effects than these, however, would depend on a state-constitutional duty to protect or ban on discrimination in the supply of protection. While the Mississippi Supreme Court might disagree with DeShaney v. Winnebago County on state-constitutional grounds or read a ban on discrimination in the supply of protection into section 14, Measure 26 itself introduces no duty to protect or such an antidiscrimination requirement into the Mississippi Constitution.

November 2, 2011 | Permalink | Comments (0)

Tuesday, November 1, 2011

Weddle on the Role of Statutes and the Judiciary in Preventing School Bullying

Weddle, Daniel - Univ. of Missouri, Kansas City SoLDan Weddle (University of Missouri at Kansas City - School of Law) has posted You’re on Your Own, Kid... But You Shouldn’t Be (Valparaiso University Law Review Vol. 44, p. 1083, 2010) on SSRN. Here is the abstract:

This article addresses the question: Should courts recognize a duty on the part of schools to implement proven strategies to reduce and prevent bullying? Nothing influences the answer to that question as understanding the nature of bullying in schools. Once understood, bullying seems less a rite of passage or builder of character and more like child abuse perpetuated by peers. The realization that many school children suffer such abuse that inflicts long-lasting and severe damage shifts the analysis from whether the problem is serious enough for courts to engage to how they might most effectively engage it. This article addresses what educational researchers mean by “bullying in schools,” its effects as well as what has long been known about proven strategies to reduce bullying. It then articulates two bases upon which courts might act to impose a duty on school officials to reduce the problem and protect students.

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November 1, 2011 | Permalink | Comments (0)

Argument transcript in case involving Bivens actions and private prisons

The transcript in Minneci v. Pollard is here.

November 1, 2011 | Permalink | Comments (0)

Argument transcript in case involving immunity for perjured testimony

The transcript in Rehberg v. Paulk is here.

November 1, 2011 | Permalink | Comments (0)

Kolber on the Necessity of Justifying Unintended Hardships Associated with Criminal Punishment

Kolber, Adam - Brooklyn Law SchoolAdam J. Kolber (Brooklyn Law School) has posted Unintentional Punishment (Legal Theory, Forthcoming) on SSRN. Here is the abstract:

Theorists overwhelmingly agree that in order for some conduct to constitute punishment, it must be imposed intentionally. Some have argued that a theory of punishment need not address unintentional aspects of punishment, like the bad experiences associated with incarceration, because such side effects are not imposed intentionally and are, therefore, not punishment.

In this essay, I explain why we must measure and justify the unintended hardships associated with punishment. I argue that our intuitions about punishment severity are largely indifferent as to whether a hardship was inflicted purposely or was merely foreseen. Moreover, under what I call the “justification symmetry principle,” the state must be able to justify the imposition of the side effects of punishment because you or I would have to justify the same kind of conduct. Therefore, any justification of punishment that is limited to intentional inflictions cannot justify a punishment practice like incarceration that almost always causes side effect harms.

November 1, 2011 | Permalink | Comments (0)

Monday, October 31, 2011

Langer on the Confluence of Common and Civil Law Traditions in the Constitutional Right to Disclosure

Langer, Máximo - University of California, Los Angeles SoLMaximo Langer (University of California, Los Angeles - School of Law, pictured) and Kent Roach (University of Toronto - Faculty of Law) have posted Rights in Connection with Criminal Process (Handbook on Constitutional Law, Mark Tushnet, Thomas Fleiner, Cheryl Saunders, eds., Routledge, 2012) on SSRN. Here is the abstract:

This contribution for an edited volume on comparative constitutional law analyzes the claim that common and civil law jurisdictions are converging in criminal procedure because many civil law jurisdictions have moved toward an adversarial system by adopting more rights. By concentrating on the defendant’s constitutional right to disclosure, this chapter shows that the spread of rights is not a simple movement of convergence, but rather a more complex process that achieves convergence while simultaneously maintaining existing divergences and creating new ones between common and civil law.

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October 31, 2011 | Permalink | Comments (0)

Transcripts in arguments on ineffectiveness and guilty pleas

The transcript in Lafler v. Cooper is here. The transcript in Missouri v. Frye is here.

October 31, 2011 | Permalink | Comments (0)

Opinion in case involving federal review of state jury's assessment of experts

The case, Cavazos v. Smith, is summarily reversed here. The Ninth Circuit had granted habeas for a conviction in which the jury credited the prosecution's expert on cause of death rather than the defense's. In dissent, Justice Ginsburg, joined by Justices Breyer and Sotomayor, characterized the Court's action as "a misuse of discretion.'

October 31, 2011 | Permalink | Comments (0)

Sunday, October 30, 2011

This week's criminal law/procedure arguments

Summaries are from ScotusBlog, which also links to briefs and opinions below:

Monday

  • Missouri v. Frye: Can a defendant who validly pleads guilty assert a claim of ineffective assistance of counsel by alleging that, but for counsel's error in failing to communicate a plea offer, he would have pleaded guilty with more favorable terms? What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?
  • Lafler v. Cooper: (1) Whether a defendant seeking habeas is entitled to relief based on ineffective assistance of counsel where counsel’s deficient advice caused the defendant to reject a plea bargain in which the defendant had no vested right, and where the rejection did not deny the defendant a fair trial. (2) What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures.

Tuesday

  • Rehberg v. Paulk: Whether a government official who acts as a complaining witness by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages.
  • Minneci v. Pollard: Whether the Court should imply a cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, against individual employees of private companies that contract with the federal government to provide prison services, when the plaintiff has adequate alternative remedies for the harm alleged and the defendants have no employment or contractual relationship with the government.

Wednesday

  • Perry v. New Hampshire: Do the due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances or only when the suggestive circumstances were orchestrated by the police?
  • Gonzalez v. Thaler: (1) Was there jurisdiction to issue a certificate of appealability under 28 U. S. C. §2253(c) and to adjudicate petitioner's appeal? (2) Was the application for a writ of habeas corpus out of time under 28 U. S. C. §2244(d)(1) due to the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review?

October 30, 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
1 612 Self-Defense
Larry Alexander,
University of San Diego School of Law,
Date posted to database: September 8, 2011
2 358 Overcriminalization 2.0: The Symbiotic Relationship Between Plea Bargaining and Overcriminalization
Lucian E. Dervan,
Southern Illinois University School of Law,
Date posted to database: August 24, 2011
3 249 The Child Pornography Crusade and its Net Widening Effect
Melissa Hamilton,
University of South Carolina - School of Law,
Date posted to database: August 24, 2011
4 237 Tangled Up in Law: The Jurisprudence of Bob Dylan
Michael L. Perlin,
New York Law School,
Date posted to database: September 1, 2011
5 236 The Invisible Man: How the Sex Offender Registry Results in Social Death
Elizabeth Berenguer Megale,
Barry University School of Law,
Date posted to database: October 4, 2011 [new to top ten]
6 222 Moral Grammar and Human Rights: Some Reflections on Cognitive Science and Enlightenment Rationalism
John Mikhail,
Georgetown University - Law Center,
Date posted to database: September 9, 2011 [5th last week]
7 215 The Execution of Cameron Todd Willingham: Junk Science, an Innocent Man, and the Politics of Death
Paul C. Giannelli,
Case Western Reserve University School of Law,
Date posted to database: August 26, 2011 [6th last week]
8 195 Fourth Amendment Remedies and Development of the Law: A Comment on Camreta v. Greene and Davis v. United States
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: August 29, 2011 [7th last week]
9 186 The Evolution of Unconstitutionality in Sex Offender Registration Laws
Catherine L. Carpenter,
Southwestern Law School,
Date posted to database: August 25, 2011 [8th last week]
10 178 The Foreign Corrupt Practices Act & Government Contractors: Compliance Trends & Collateral Consequences
Jessica Tillipman,
The George Washington University Law School,
Date posted to database: September 8, 2011 [9th last week]

October 30, 2011 | Permalink | Comments (0)