Tuesday, June 25, 2013
From Bill Otis at Crime & Consequences. In part:
Senators Patrick Leahy (D-VT) and Rand Paul (R-KY) have introduced a bill (S.619) that would effectively end mandatory minimum sentencing in federal law. Judges would be able to sentence at any level below the minimum they wished, provided only that they explain the sentence (which should be routine anyway under existing sentencing standards). The government would be able to appeal, but that prospect is largely both illusory -- given the resistance at Main Justice to approving any sentencing appeals except in the most egregious cases -- and ineffective even when it happens, given the very deferential appellate standards imposed on the circuits by Booker, Gall and Kimbrough. The overall effect is that district judges so inclined would be able to go below the mandatory minimum whenever they wished, and almost always get away with it.
The Leahy/Paul bill is a disaster, both for US Attorneys Offices and, more importantly, for the country.
Pamela Metzger (Tulane University - Law School) has posted Confrontation Control (45 Texas Tech Law Review 83 (2012)) on SSRN. Here is the abstract:
After Crawford v. Washington, 541 U.S. 36, 42 (2004), face-to-face confrontation between accused and accuser is the constitutionally normative mode of presentation for testimonial evidence. Yet, eight years into the Crawford revolution, courts routinely hold that counsel can waive a defendant's confrontation rights without even discussing the matter with the defendant. Why? Because counsel, not client, has the authority to decide whether to confront and cross-examine government witnesses.
This Essay, written as part of the Texas Tech Sixth Amendment Symposium, explores this peculiar and perplexing rule.
Raneta Lawson Mack (Creighton University School of Law) has posted Reestablishing Jury Trials in Japan: Foundational Lessons from the Russian Experience (2 Creighton Int'l & Comp. L.J. 100) on SSRN. Here is the abstract:
This Article examines the foundational and systemic impact of Japan's transition to a lay participation jury in an inquisitorial system accustomed to near-perfect conviction rates. Part I of the Article discusses Japan's Act Concerning Participation of Lay Assessors in Criminal Trials, the statute outlining the criteria for participation in the jury trial process as well as the responsibilities of lay assessors. Next, for purposes of comparison, Part II explores Russia's transition to a lay jury system in the early 1990s. Russia's "experiment" with jury trials is a very instructive comparative assessment because, like Japan, Russia reestablished jury trials after a sweeping reform of its judge dominated criminal justice system with near universal conviction rates. However, Russia's revival of lay participation in the criminal justice system was short-lived, and a mere fifteen years later jury trials were eliminated for most cases primarily due to a perception that leniency by jurors was resulting in excessive acquittals. The political and social dynamics that led to Russia's shift away from citizen participation in the criminal justice system is a cautionary tale that is discussed with an eye toward analyzing whether Japan's new system might suffer a similar fate.
Monday, June 24, 2013
"Girlfriend Who Had Permission to Use Boyfriend’s Computer Can Consent to Search of It While a Weekend Guest At His Parents’ Home, Wisconsin Supreme Court Holds"
Kathleen Wayland and Sean O'Brien (Habeas Corpus Resource Center and University of Missouri at Kansas City - School of Law) have posted Deconstructing Prejudicial Psychiatric Labels: A Guidelines-Based Approach (42.1 Hofstra L. Rev. (2013), Forthcoming) on SSRN. Here is the abstract:
Prejudicial psychiatric labels such as antisocial personality disorder and psychopathy have an inherently prejudicial effect on courts and juries, particularly in cases involving the death penalty. This article explains how and why these labels are inherently aggravating, and also discusses the mental health literature indicating that they are subjective, unreliable and non-scientific. The authors conclude that no competent defense lawyer would pursue a mitigation case based on such a damaging and scientifically questionable psychiatric label. Further, a proper life history investigation conducted in accordance with the ABA Guidelines on the Appointment and Performance of Defense Counsel in Death Penalty Cases and the Supplementary Guidelines on the Mitigation Function of Defense Teams in Death Penalty Cases will lead to more fruitful avenues of mitigation and enable the defense to avoid or refute prejudicial psychiatric labels in virtually every case.
Albert W. Alschuler (University of Chicago Law School) has posted Lafler and Frye: Two Small Band-Aids for a Festering Wound (Duquesne University Law Review, Forthcoming) on SSRN. Here is the abstract:
This article contends that two recent Supreme Court decisions concerning the assistance of counsel in plea bargaining do not warrant the hype bestowed upon them by professors and the press. Lafler v. Cooper and Missouri v. Frye did not significantly change the law, and even if these decisions had been bolder, they could not have done much to make effective legal assistance more likely. Our plea-bargaining system both subjects defense attorneys to serious temptations to disregard their clients’ interests and makes it impossible to determine whether defendants have received effective assistance.
Opinion concluding Ninth Circuit abused discretion in failing to issue mandate in death penalty case
Sunday, June 23, 2013
David T. Zaring (University of Pennsylvania - Legal Studies Department) has posted Against Being Against the Revolving Door (University of Illinois Law Review, Vol. 2013, No. 2, 2013) on SSRN. Here is the abstract:
The revolving door between jobs in the public and private sector supposedly incentivizes government regulators to regulate on behalf of the industry interests for whom they will eventually work. It is a critical building block of the critique of government solutions to modern problems, and has, in the last two years, been the subject of one of the Obama administration’s first executive orders, made an appearance in financial regulatory reform legislation, and been blamed for the government’s failure to prevent the Gulf oil spill.
But the revolving door’s explanatory power is remarkably overstated, especially when the subject is law enforcement.
|1||400||Background Checks and Murder Rates
Clayton E. Cramer,
College of Western Idaho,
Date posted to database: April 12, 2013
|2||272||Safeguarding the Commander's Authority to Review the Findings of a Court-Martial
Andrew S. Williams,
Brigham Young University,
Date posted to database: June 9, 2013 [new to top ten]
|3||228||Discovery and Darkness: The Information Deficit in Criminal Disputes
University of Wisconsin Law School,
Date posted to database: May 9, 2013 [second last week]
|4||180||Federal Public Defense in an Age of Inquisition
Federal Defenders of New York,
Date posted to database: May 2, 2013 [3rd last week]
|5||176||Experiments in International Criminal Justice: Lessons from the Khmer Rouge Tribunal
John D. Ciorciari, Anne Heindel,
University of Michigan - Gerald R. Ford School of Public Policy, Documentation Center of Cambodia,
Date posted to database: May 26, 2013 [4th last week]
|6||163||Effective Plea Bargaining Counsel
American University, Washington College of Law,
Date posted to database: April 20, 2013 [5th last week]
|7||146||Crime in Cyberspace: Offenders and the Role of Organized Crime Groups
Peter Grabosky, Roderic Broadhurst,Brigitte Bouhours, Mamoun Alazab,Steve Chon, Chen Da,
Australian National University (ANU), Australian National University (ANU) - Research School of Social Sciences (RSSS), Australian National University, Australian National University (ANU), Australian National University Cybercrime Observatory (ANU) - Regulatory Institutions Network (RegNet) , Australian National University (ANU) - School of Regulation, Justice and Diplomacy,
Date posted to database: February 4, 2013 [6th last week]
|8||118||Transplant Tourism: The Ethics and Regulation of International Markets for Organs
I. Glenn Cohen,
Harvard Law School,
Date posted to database: April 22, 2013
|9||118||Judicial Gatekeeping of Suspect Evidence: Due Process and Evidentiary Rules in the Age of Innocence
Keith A. Findley,
University of Wisconsin Law School,
Date posted to database: June 4, 2013 [new to top ten]
|10||114||Implicit Racial Bias in Public Defender Triage
L. Song Richardson, Phillip Atiba Goff,
University of Iowa - College of Law, UCLA Department of Psychology,
Date posted to database: May 3, 2013 [9th last week]