CrimProf Blog

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
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 Alan Dershowitz, 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 Will Tress, 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) Doug Keller, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: December 1, 2009 [8th last week]

Next week's criminal law and procedure arguments

Description of issues from ScotusWiki, which also provides links to briefs and opinions below:

Monday

• Berghuis v. Thompkins: Whether the Sixth Circuit expanded the Miranda rule to prevent an officer from attempting to non-coercively persuade a defendant to cooperate where the officer informed the defendant of his rights, the defendant acknowledged that he understood them, and the defendant did not invoke them but did not waive them.
• Holland v. Florida: Whether the Eleventh Circuit erred in denying equitable tolling to the defendant to excuse his late filing of his habeas petition, based on the conclusion that the late filing was due to “gross negligence” of counsel, while factors beyond “gross negligence” are required for equitable tolling; whether equitable tolling is available to toll the statute of limitation under the AEDPA.
• Skilling v. United States: Whether the federal “honest services” fraud statute, 18 U.S.C. § 1346, requires the government to prove that the defendant’s conduct was intended to achieve “private gain” rather than to advance the employer’s interests, and, if not, whether § 1346 is unconstitutionally vague. Whether the government must rebut the presumption of jury prejudice, which arose because of pretrial publicity and community impact of the alleged conduct, and, if so, whether the government must prove beyond a reasonable doubt that no juror was actually prejudiced.

Tuesday

• McDonald v. City of Chicago: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

Kolber News Roundup (Kolber)

Here are some interesting criminal-law-related stories:

(1) Toyota Acceleration: A Minnesota man sentenced to eight-years in prison on two counts of vehicular homicide is seeking to present new evidence that his accident was caused by the sudden accelaration of his defective 1996 Toyota Camry.  Though this model year has apparently not been part of an official recall, the man's attorney believes to have accumulated some evidence that the car was defective (even though no mechanical problems were identified at the time of trial).  Interestingly, the family of the victims now support the man's original claim of innocence (and are suing Toyota).  Story here (via Huffington Post and May-lee Chai).

(2) Perjured Claim of Rape: A woman who falsely accused a man of rape was sentenced to 1 to 3 years in prison (and will be eligible for parole in one year).  The falsely accused man has already spent four years in prison, so there has been some discussion of whether her sentence is too lenient.  I imagine that if X kidnaps Y and forces Y to stay in a large cage for four years with little opportunities to do much of anything, X's punishment would be quite severe.  In this case, having provided what the woman now admits is perjured testimony seems quite a bit like the kidnapping case with the state as the (comparatively more) innocent agent.  If anyone knows of prosecutions (for say, false imprisonment by means of deception) in a perjury case like this, I'd be interested to hear in the comments.  The story in the New York Post is here (via Eugene at the Volokh Conspiracy).

(3) Tarasoff and Homicide Rate: An Emory economist has amassed some interesting empirical data suggesting that the duties to warn created by the Tarasoff case have led to an increase in homicides (apparently because therapists avoid treating or avoid thoroughly treating the most at-risk patients).  Paper here.

"Case of John Michael Farren seen as refresher course on domestic violence"

That's the title of the article by Karl Vick in the Washington Post.  The article is here. 

Nevins-Saunders on Mental Retardation and Statutory Rape

Elizabeth Nevins-Saunders (Acting Assistant Prof. of Lawyering, NYU Law) has posted "Incomprehensible Crimes: Defendants with Mental Retardation Charged with Statutory Rape" (forthcoming, NYU Law Review) to SSRN.  Here is the abstract:

Criminal law norms assume that all defendants are alike. But social science research has demonstrated that most defendants with mental retardation are unlike their peers of average intelligence in their cognitive and behavioral capacity, a difference with profound effects on their blameworthiness. The law acknowledges this difference in a few limited areas, most notably in the Supreme Court’s categorical exclusion of defendants with mental retardation from the death penalty. But while that decision has begun to percolate into the rest of criminal law, it has not yet reached the law of statutory rape. When prosecuted as a strict liability offense, statutory rape precludes the fact-finder from considering the defendant’s state of mind altogether. The total exclusion of mens rea is an anomaly in criminal law, where a finding of guilt typically requires proof not only of an “evil act,” but also of an “evil mind.” Commentators have criticized the strict liability doctrine, but have ignored how the standard is especially unjust when applied to defendants with mental retardation. A close analysis of statutory rape law reveals certain assumptions which allow such a low standard of proof for such a significant offense: would-be defendants are presumed to have notice that sex with underage partners is unlawful; to be in the best position to prevent any harm from occurring; and to be deviant, immoral aggressors. When examined in light of research about mental retardation, however, these assumptions collapse. Indeed, punishing a person with mental retardation without regard to his awareness of the law, social cues, and the nature of his conduct may also run afoul of constitutional due process and proportionate sentencing principles. This article therefore argues that the prosecution of statutory rape should be modified for defendants with mental retardation. The government should have to prove that a defendant with mental retardation had the mens rea to commit the offense. In addition, this article recommends formalizing the existing ways of addressing the difference in culpability of this population through charging and sentencing. The failure to account for defendants’ mental retardation in the context of statutory rape provides just one example of the theoretical and constitutional problems when criminal law disregards people who cannot comprehend the significance of their conduct.

Madoff and White Collar Sentencing

The WSJ Law Blog post, "Possible Madoff Effect: Triple-Digit White-Collar Prison Sentences," by Amir Efrati is here.

Oral Argument Transcript in United States v. Marcus

is here.

Argument Transcript in Carr v. United States

is here.

Today's Miranda Opinion in Maryland v. Shatzer

is here. The syllabus:

In 2003, a police detective tried to question respondent Shatzer, who was incarcerated at a Maryland prison pursuant to a prior conviction,about allegations that he had sexually abused his son. Shatzer invoked his Miranda right to have counsel present during interrogation, so the detective terminated the interview. Shatzer was released back into the general prison population, and the investigation was closed. Another detective reopened the investigation in 2006 and attempted to interrogate Shatzer, who was still incarcerated. Shatzer waived his Miranda rights and made inculpatory statements. The trial court refused to suppress those statements, reasoning that Edwards v. Arizona, 451 U. S. 477, did not apply because Shatzer had experienced a break in Miranda custody prior to the 2006 interrogation. Shatzer was convicted of sexual child abuse. The Court of Appeals of Maryland reversed, holding that the mere passage of time does not end the Edwards protections, and that, assuming, arguendo, a break-in-custody exception to Edwards existed, Shatzer’s release back into the general prison population did not constitute such a break.

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Yesterday's Miranda Opinion in Florida v. Powell

is here. The syllabus:

In a pathmarking decision, Miranda v. Arizona, 384 U. S. 436, 471, this Court held that an individual must be “clearly informed,” prior to custodial questioning, that he has, among other rights, “the right to consult with a lawyer and to have the lawyer with him during interrogation.” After arresting respondent Powell, but before questioning him,Tampa Police read him their standard Miranda form, stating, inter alia: “You have the right to talk to a lawyer before answering any of our questions” and “[y]ou have the right to use any of these rights at any time you want during this interview.” Powell then admitted he owned a handgun found in a police search. He was charged with possession of a weapon by a convicted felon in violation of Florida law. The trial court denied Powell’s motion to suppress his inculpatory statements, which was based on the contention that the Miranda warnings he received did not adequately convey his right to the presence of an attorney during questioning. Powell was convicted of the gun-possession charge, but the intermediate appellate court held that the trial court should have suppressed the statements. The Florida Supreme Court agreed. It noted that both Miranda and the State Constitution require that a suspect be clearly informed of the right to have a lawyer present during questioning. The advice Powell received was misleading, the court believed, because it suggested that he could consult with an attorney only before the police started to question him and did not convey his entitlement to counsel’s presence throughout the interrogation.

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Perlin and McClain on the Role of Neuroimaging in the Criminal Trial Process

Michael L. Perlin  (New York Law School; pictured) and Valerie Rae McClain have posted Unasked (and Unanswered) Questions About the Role of Neuroimaging in the Criminal Trial Process (American Journal of Forensic Psychology, Vol 28, 2009) on SSRN.  Here is the abstract:

The robust neuroimaging debate has dealt mostly with philosophical questions about free will, responsibility, and the relationship between brain abnormalities, violence and crime. This debate, however, obscures several important issues of criminal procedure to which little attention has as of yet been paid: an indigent defendant's right of access to expert testimony in cases where neuroimaging tests might be critical; a defendant's competency to consent to the imposition of a neuroimaging test; and the impact of antipsychotic medications on a defendant's brain at the time that such a test is performed. This article considers these questions from the perspectives of both law and neuropsychology, and, from a clinical perspective, also focuses on identifying cases appropriate for referrals for neuroimaging studies, including preliminary testing based on neuropsychological assessment; understanding the importance of brain impairment as relates to criminality and violence; establishing criteria for determining competency to consent to such tests, and the potential impact of medications on brain functioning when neuroimaging tests are conducted.

Today's Argument Transcript in United States v. O'Brien

is here.

Bruhl on How Appellate Procedure Distributes the Costs of Legal Change

Aaron-Andrew P. Bruhl  (University of Houston Law Center) has posted Deciding When To Decide: How Appellate Procedure Distributes the Costs of Legal Change on SSRN.  Here is the abstract:

Legal change is a fact of life. The need to deal with legal change has spawned a number of complicated bodies of doctrine. Some of these issues have been studied extensively, such as doctrines concerning the retroactivity of new law and the question whether inferior courts can anticipatorily overrule a moribund superior court precedent. How such questions are answered affects the size and the distribution of the costs of legal change. Less appreciated is the way that heretofore almost invisible matters of appellate procedure and case handling also allocate the costs of legal transitions. In particular, this Article focuses on lower courts’ discretionary decisions about when to decide the cases that come before them: should lower courts continue to decide cases in the regular course even when a change in law is in the offing, or should they delay adjudication until after the dust has settled?

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This Week's Criminal Law and Procedure Arguments

Summary of issues from ScotusWiki:

Tuesday

• United States v. O’Brien and Burgess: Whether the mandatory minimum sentence enhancement under 18 U.S.C. § 924(c)(1) to a 30-year minimum when the firearm is a machinegun is an element of the offense that must be charged and proved to a jury beyond a reasonable doubt, or instead a sentencing factor that may be found by a judge by the preponderance of the evidence.

Wednesday

• Carr v. United States: Whether a person may be criminally prosecuted under 18 U.S.C. § 2250 for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.
• United States v. Marcus:  Whether the Second Circuit departed from the Court’s interpretation of Rule 52(b) of the Federal Rules of Criminal Procedure by adopting as the appropriate standard for plain-error review of an alleged ex post facto violation whether there is any possibility that the defendant could have been convicted based exclusively on conduct that took place before the enactment of the statutes in question.

Demeanor-Based Dismissal of Jurors

The Court's summary reversal in Thaler v. Haynes is here, involving the special standards applicable in this habeas case. From the opening paragraph of the opinion:

This case presents the question whether any decision of this Court “clearly establishes” that a judge, in ruling on an objection to a peremptory challenge under Batson v. Kentucky, 476 U. S. 79 (1986), must reject a demeanor based explanation for the challenge unless the judge personally observed and recalls the aspect of the prospective juror’s demeanor on which the explanation is based. The Court of Appeals appears to have concluded that either Batson itself or Snyder v. Louisiana, 552 U. S. 472 (2008), clearly established such a rule, but the Court of Appeals read far too much into those decisions, and its holding, if allowed to stand, would have important implications. We therefore grant the petition for certiorari, grant respondent’s motion to proceed in forma pauperis, and reverse the judgment of the Court of Appeals.

Summary Reversal in Wilkins v. Gaddy

is here. From the opinion:

In Hudson v. McMillian, 503 U. S. 1, 4 (1992), this Court held that “the use of excessive physical force against a prisoner may constitute cruel and unusual punishment [even] when the inmate does not suffer serious injury.” In this case, the District Court dismissed a prisoner’s excessive force claim based entirely on its determination that his injuries were “de minimis.” Because the District Court’s approach, affirmed on appeal, is at odds with Hudson’s direction to decide excessive force claims based on the nature of the force rather than the extent of the injury, the petition for certiorari is granted, and the judgment is reversed.

Justice Thomas, joined by Justice Scalia, concurred in the judgment but wrote separately to argue that Hudson was incorrectly decided.

Today's Criminal Law and Procedure Cert Grants

Issue summaries from ScotusBlog, which also links to cert papers and opinions below:

Los Angeles County v. Humphries:  (1) For a claim for declaratory relief against a local public entity, must the plaintiff demonstrate that the constitutional violation was the result of a policy, custom or practice attributable to the local public entity; and (2) if the plaintiff has not made such a showing, may he or she be a “prevailing party” under 42 U.S.C. § 1988 for purposes of a fee award?

Harrington v. Richter: (1) Does a defense lawyer violate the Sixth Amendment right to the effective assistance of counsel when he does not investigate or present available forensic evidence supporting the theory of defense he uses during trial and instead relies on cross-examination and other methods designed to create reasonable doubt about the defendant’s guilt?  (2) Does AEDPA deference apply to a state court’s summary disposition of a claim including a claim under Strickland v. Washington?

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	337	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 [new to top ten]
2	262	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	225	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	216	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 [5th last week]
5	207	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 [4th last week]
6	158	Vagueness Challenges to the Computer Fraud and Abuse Act Orin S. Kerr, George Washington University - Law School, Date posted to database: December 23, 2009
7	125	Unintended Collateral Consequences: Defining Felony in the Early American Republic Will Tress, University of Baltimore - School of Law, Date posted to database: December 4, 2009
8	120	Why the Prior Conviction Sentencing Enhancements in Illegal Re-Entry Cases are Unjust and Unjustified (and Unreasonable Too) Doug Keller, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: December 1, 2009
9	113	Criminalization and Regulation Victor Tadros, University of Warwick - School of Law, Date posted to database: December 14, 2009
10	113	Judging Police Lies: An Empirical Perspective Melanie D. Wilson, University of Kansas - School of Law, Date posted to database: January 11, 2010

"Plain view encourages violations of the Fourth Amendment"

FourthAmendment.com has this post summarizing Judge Kozinski's diatribe against the plain-view exception in a dissent from denial of rehearing en banc in United States v. Lemus:

How has it come to this? There’s a simple answer: Plain view is killing the Fourth Amendment. Because our plain view case law is so favorable to the police, they have a strong incentive to maneuver into a position where they can find things in plain view, or close enough to lie about it.

. . .

Plain view encourages the police to find every possible loophole to get themselves into a place where they can take a good look around, discover some evidence and then get a warrant to seize what they already know is there. This tiresome two-step is the new dropsy evidence. As often as not, the chance of hitting the plain-view jackpot is what drives the police into a man’s house, his doctor’s office or his ISP. Carefully drawn limitations in a warrant and narrow justifications for exceptions to the warrant requirement are becoming afterthoughts. “Police officer safety,” the narrow justification in Buie, had nothing to do with this search. Gathering evidence did. We should not abet such skirting of the Fourth Amendment by the police; it only encourages them to do worse.

"F.B.I., Laying Out Evidence, Closes Anthrax Letters Case"

The New York Times story is here. From the DOJ release:

The investigative summary and the attachments are now accessible to the public and have been posted to the Justice Department Web site at www.usdoj.gov/amerithrax under the Freedom of Information Act. In addition, roughly 2,700 pages of FBI documents related to the Amerithrax case are now accessible to the public and have been posted to the FBI website at http://foia.fbi.gov/foiaindex/amerithrax.htm under the Freedom of Information Act.