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Step One Of Being a Good Client: Do Not Make Your Case Worse While in Detention

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With the average length of time served by federal inmates more than doubling from 1998 to 2012 (from 17.9 to 37.5 months) it should not be surprising that approximately 10,000 federal inmates per year receive substantial assistance departures from judges at sentencing – meaning these inmates receive a break from sentencing judges due to their cooperation with the government.  This figure does not take into account the countless thousands of inmates who are desperately attempting to cooperate with the government but simply are not in a position to substantially assist in the “investigation or prosecution” of another individual – but that certainly is not for lack of trying.  U.S.S.G. §5k1.1.  For these reasons, criminal defendants who are detained prior to their trials face a dangerous reality having nothing to do with dangerous prison conditions: they are surrounded by inmates who will do all that they can to help the government…

Kranchick v. State – DUI on Cough and Cold Medicine

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People get coughs and colds all the time, and most don’t think twice about taking some medicine and getting behind the wheel. Unfortunately, this can result in serious consequences if you are pulled over or involved in an accident and deemed to be “under the influence” of these substances.  F.S. 316.193 prohibits motorists in Florida from “driving under the influence.” Most people define that by the second provision of the statute, which indicates that a person may be considered impaired if his/ her breath-alcohol level exceeds 0.08 or more grams of alcohol per 210 liters of breath (or 0.08 or more grams of alcohol per 100 milliliters of blood). However, the first part of that law says that one can be arrested on this charge if they are under the influence of any chemical substance that results in impairing a person’s normal faculties. This can, indeed, include cough and cold medicine. The penalties can be just as severe as if you…

Photo Finish Senate

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In the race for control of the Senate, the elephant and the donkey are neck and neck in the home stretch.  As of 7:45 am PST, Nate Silver has the probability at 50.1 to 49.9.There is something to be said for having the Senate and the White House in control of opposing parties.  We will get more moderate judges that way.  Yet due to a quirk in the U.S. Constitution, there is a decent chance that His Superfluous Majesty will be anything but superfluous for the next two years and will actually determine control the other way. Silver's bell-shaped probability curve, about half-way down the page, skews slightly to the Republicans in actual Senate seats.  He gives the GOP a 44.3% shot at having an absolute majority of Senators to the Democrats' 39.4%.  That leaves a 16.2% probability of a 50-50 split.  Given his 64-36 estimate of the presidential race, that yields about a 10% chance that Vice President Kaine breaks the tie for the…

Another big NYC white-collar sentencing produces another way-below-guideline sentence

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

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are here. The usual disclaimers apply. Rank Downloads Paper Title 1 228 The Constitutional Right to Collateral Post-Conviction Review Carlos Manuel Vazquez andStephen I. Vladeck Georgetown University Law Center and University of Texas School of Law Date posted to database:...

TN finally adopts GFE after 30 years, at least as to Davis situations

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Having avoided the question for 30 years until it was “squarely presented,” the Tennessee Supreme Court adopts the good faith exception to the extent provided for in Davis. It does not yet signal Leon good faith. State v. Reynolds, 2016 … Continue reading →

OH1: Vehicle weapon frisk reasonable despite def being out of car

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The officer’s frisk of defendant’s vehicle for a weapon was reasonable on reasonable suspicion even though defendant was out of the car. It wouldn’t be hard for him to get back to car. [Seems difficult to imagine a vehicle frisk … Continue reading →

"Life Without the Possibility of Parole for Juvenile Offenders: Public Sentiments"


CO: Human Society employee not statutorily authorized to procure SW, but court refuses to suppress

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While an “animal protection agent” of the Humane Society is not statutorily authorized to seek a search warrant under Colorado law, the court refuses to suppress because there was probable cause and the warrant was otherwise executed reasonably. People v. … Continue reading →

Flip-Flopping Judges

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Is there any value in holding onto a particular point of view?   Children seem free to change their mind, but adults face a bit more peer pressure to remain consistent.  I think children have this issue right; we should feel a bit more freedom to change our position if need be.  Often, we don’t give our positions any sort of deep analysis, and once we’re confronted with a situation that requires some bit of thought, we end up changing our mind anyway. Nothing wrong with changing your mind, unless you’re in politics.  A change of heart will open the flood gates of “flip-flop” negative campaign ads.   In reality, we’d probably be far better off with politicians that don’t have their mind made up about every single topic on Earth (but, they wouldn’t sound very smart, would they?  The Katie Couric’s of the world would have a field day with such intellectual…

Case o' The Week: Seventeen will get you Twenty - Camez and juvenile offenses as substantive federal crimes

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Years of federal sentence: twenty.Age at time of offense: seventeen.  Troubling math from the Ninth. United States v. Camez, 2016 WL 6068195 (9thCir. Oct. 17, 2016), decision available here. Players:Decision by Judge Graber, joined by Judge McKeown and District Judge Peterson. Facts: Camez went to trial on RICO counterfeit card and ID charges. Id. at *1. The jury was instructed that it could not convict Camez solelyon conduct that took place before his eighteenth birthday. Id. Over defense objection, however, the jury was instructed that it could “consider Defendant’s pre-majority conduct as proof of the substantive crimes.” Id.   Recall that substantive RICO counts require a pattern of racketeering activity -- specifically, conviction on at least two predicate acts. Id.at *2 (discussing 18 U.S.C. § 1962(c)).   In a special verdict form, the jury convicted Camez of one predicate for conduct before he was 18, a second allegation…

Drugged Driving Accidents in Massachusetts

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For more than a decade, there has been a major heroin epidemic in Boston and across Massachusetts. This has not only been a major problem for society in general, but it I also a major problem in terms of drugged driving and drugged driving accidents. In addition to heroin, there has also been a major increase in drugged driving accidents involving prescription narcotics ranging from methadone to fentanyl.   It’s a common misconception that a prescription for one of these powerful drugs is a license to freely use them before driving. This is of course not true.  Alcohol is the perfect analogy.  Alcohol is legal for anyone 21 or older to consume, but everyone knows it is illegal to drink and drive.  They may still do so, but they can’t claim they were unaware of it being illegal. However, while drugged driving is just as dangerous as drunk driving, it is often harder for police officers to prove a person is under the influence of drugs on the side…

Do we need to worry seriously about voter confusion in the states in which the future of the death penalty is on ballot?

CA10: Bee inspector gets QI for search of apiary apparently in open field and because of unsettled questions of law

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Utah bee inspector gets qualified immunity for the administrative inspection of plaintiff’s apiary because of unsettled questions, the fact the apiary was in open fields, and the lack of clearly established law. Cox v. Cache County, 2016 U.S. App. LEXIS … Continue reading →

D.Kan.: Passenger who had just been given permission to drive car had standing

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Defendant was a passenger and had been given permission to drive this car 10 minutes before the stop, so he had standing (although “it’s a close call”). When he didn’t have a DL, the officer ordered him out of the … Continue reading →

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

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are here. The usual disclaimers apply. Rank Downloads Paper Title 1 298 When and How Corporations Became Persons under the Criminal Law, and Why It Matters Now W. Robert Thomas Cleary Gottlieb Steen & Hamilton LLP Date posted to database:...

Victory At The Court of Appeals: Many Blood and Urine Cases Violate Due Process

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The Minnesota Court of Appeals released an opinion this morning that will affect many blood and urine DWI cases. The court's holding states that it is a violation of a driver's due process rights if they are told refusal to take a blood or urine test is a crime--as those crimes have been held to be unconstitutional.  Due to the  violation, the driver was given his license back. While this result seems to come down to common sense, and frankly it really does, the State of Minnesota's argument was that the threat of a criminal charge was made before the refusal laws were found to be unconstitutional. Essentially, they are saying "it was true at the time it was read."  However, as we blogged about multiple times,  the underlying rulings are retroactive, meaning they apply to cases that occurred before the decisions were made; it is as if the refusal laws were never on the books.  In making its decision today, the Court of…

Trump Supporter's Racist Rant Goes Viral

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This racist rant by a Trump supporter in Memphis at a young black man who cut him off in traffic is just astonishing. It's also going viral. It had 2 million views in 12 hours. FB took it down but other copies are out there. The man has... [[ This is a content summary only. Visit my website for full links, other content, and more! ]]

Houston PD pension mess could spur officer departures. Should we care?

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Houston PD could see more officers retire soon as a result of the proposed pension deal Mayor Sylvester Turner negotiated with the unions, reported the Houston Chronicle last week. City leaders say "huge numbers of first responders are eligible to retire" immediately. In all, "37 percent of police officers and 25 percent of firefighters today are eligible to begin drawing pension checks." The fear is that ending super-generous, budget-busting benefits will spur more officers to leave sooner than later.OTOH, doing nothing isn't an option. And the new recruits who replace aging officers will cost the pension fund (and city budget) less. Even so, it's unlikely that the deal cut will resolve the problem. The new deal slightly boosts employee contributions and lowers the expected rate of return from 8 percent to 7, but IMO that's still a wildly unrealistic number that I don't believe can be sustained for 30 years. If I'm…

Monday Open Thread

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Former Attorney General Janet Reno has died at age 78 from complications from Parkinsons' Disease. Trump's staff has finally taken his Twitter account away from him. (It's too late.) Find your voting place. America deserves... [[ This is a content summary only. Visit my website for full links, other content, and more! ]]
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