Cert.granted: District of Columbia v. Wesby, 15-1485 (Jan. 19, 2017). Issues: (1) Whether police officers who found late-night partiers inside a vacant home belonging to someone else had probable cause to arrest the partiers for trespassing under the Fourth Amendment, … Continue reading →
Cert.granted: District of Columbia v. Wesby on qualified immunity
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When Will Our Judges Speak Out Forcefully Against Perjury?
In yet another British Columbia family law decision, the court fails to denounce, in the strongest terms, a litigant whose testimony is rife with lies. Yes, this judge addresses credibility, but in the same anemic way that permeates most family law cases, namely ” I accept the evidence of the claimant where it differs from the evidence of the respondent.” That’s it, no rebuke, no censure, not even an award of special costs, despite the litigant’s devious conduct requiring untold extra preparation and court time to present a narrative that is flagrantly false, requiring a robust defence….yes, a rebuttal to a pack of lies. Ngo v. Do 2017 BCSC 83 focuses on the breakdown of the marriage of a Vietnamese couple who agreed they married and immigrated to Canada in 1994. From that point on the parties’ evidence is sharply divergent. He said their marriage ended two years later, in 1996, while she maintained they lived together as husband…
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Kushner Cleared to be Presidential Advisor
Donald Trump has been given the green light for son-in-law Jared Kushner to serve as his advisor. Here's the legal opinion of the Justice Department’s Office of Legal Counsel. (My opinion: Forget Mike Pence. Apparently, America... [[ This is a content summary only. Visit my website for full links, other content, and more! ]]
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New Jersey Adopts Federal Standard for Sentencing Juvenile Defendants Found Guilty of Crimes that Carry Life Sentences
I have never believed that most lawyers or judges take juvenile delinquency cases seriously. Many of them frequently refer to these matters as “kiddie crime”. Indeed, it is not unusual for a judge who has sat in an adult criminal trial court to feel offended as a result of being transferred to a juvenile court. Attorneys and judges who have such views of the juvenile justice system have, however, failed to see its importance. One of the system’s most significant functions is to prevent juvenile offenders from becoming adult offenders. It is generally believed that a juvenile who is charged with acts of delinquency is more susceptible to rehabilitation because they are young, and the probability of successful rehabilitation decreases as the juvenile moves toward, and eventually attains, adulthood. Thus, successfully retraining and rehabilitating juvenile offenders while they are still relatively young reduces the likelihood…
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Forensic Science Commission deserves funding, and other stories
A few odds and ends which merit Grits readers' attention:The Texas Senate zeroed out the budget for the Forensic Science Commission, despite that agency having been charged with licensing all forensic technicians by 2019. Surely that cannot stand. The House budget continued to fund the agency with small cuts.The Houston Chronicle makes the case for raising the age of criminal responsibility in Texas from 17 to 18.TDCJ bans more than 15,000 books in Texas prisons; in Utah, they ban only two.A TDCJ prison guard is facing retaliatory prosecution after he released video of fellow officers improperly using tear gas in a fashion which injured an inmate.Whoops. Frio County hired a fake cop to run its jail.Jerry Hartfield's conviction was overturned. Then he waited inside TDCJ 32 years while nothing happened. Here's a useful Texas Appleseed handout promoting bail reform.See a roundup of state decarceration initiatives from 2016.Proud of my friend Vanita Gupta…
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Top-Ten Recent SSRN Downloads in Criminal Law eJournal
are here. The usual disclaimers apply. Rank Downloads Paper Title 1 218 Bail Nullification Jocelyn Simonson Brooklyn Law School Date posted to database: 5 Dec 2016 2 169 Law and Moral Dilemmas Bert I. Huang Columbia Law School Date posted...
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Case o' The Week: Double Trouble - Joey and Double Counting in Sex Offenses
Courts can punish a defendant for committing a new crime, after a previous crime that lead to sex registration. Courts can punish a defendant for committing a new crime, after a previous crime that lead to sex registration. (Double vision maybe: double counting, no). United States v. Roy Red Joey, 2017 Westlaw 218029 (9thCir. Jan. 19, 2017), decision available here. Players:Decision by Judge Ikuta, joined by Chief Judge Thomas and Judge Bea. Hard fought appeal by D. Arizona AFPD Dan Kaplan. Facts: Joey was convicted after trial of two counts of abusive sexual contact, in violation of 18 U.S.C. § 2244(a)(5), and two counts of committing a felony with a minor while required to register as a sex offender, under 18 U.S.C. § 2260A. Id.at *1. At sentencing, the district court used USSG § 4B1.5 for the § 2244(a) counts – even though Joey had been convicted under § 2260A, which (the defense) contended punishes the same…
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Update: Commercial Vehicle Crash With Blockage On U.S. Highway 93
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer DO NOT REPLY --------------------------------------------------------------------------- IDAHO STATE POLICE NEWS RELEASE District 4 Patrol 218 West Yakima, Jerome, ID 83338-5904 (208) 324-6000 Fax (208) 324-7897 For Immediate Release: 1/22/2017 7:59 p.m. Please direct questions to the District Office *****UPDATE***** Shortly after 7:00 a.m. this morning, January 22, 2017, the Idaho State Police investigated a one-vehicle rollover southbound on US93 at milepost 23, about three miles south of Hollister. Harpreet Dham, age 26 of Calgary, Alberta was driving southbound on US93 in a Freightliner Cascadia with a commercial trailer when he went off the right shoulder of the road, came back on, went into a broad slide, rolled over onto his side, and came to rest blocking both the northbound and southbound lanes of US93. Traffic was blocked for approximately 9 hours. Dham was not injured. The crash is under…
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What Our Founding Fathers Would Say: Impeach Trump!
Wholly apart from any quid pro quo arrangements of demonstrable bribes or payoffs, the Emoluments Clause will be violated whenever a foreign diplomat stays in a Trump hotel or hosts a reception in one; whenever foreign-owned banks offer loans to Mr. Trump’s businesses or pay rent for office space in his buildings; whenever projects are jump-started or expedited or licensed or otherwise advantaged because Mr. Trump is associated with them; whenever foreign prosecutors and regulators treat a Trump entity favorably; and whenever the Trump Organization makes a profit on a business transaction with any foreign state or foreign-owned entity. -- Eisen, Painter & Tribe, The Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump.Republicans, when it is convenient, favor an originalist interpretation of the Constitution. They believe that the Constitution should be interpreted based on what the Founding Fathers intended -- or as the late…
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NY2: Search of house for weapon after protective sweep was unreasonable
Defendant was reported to have assaulted people outside his house with a small bat and a brandishing a firearm. Police arrived, and he ran inside. Police kicked the door in, secured him, cleared the house [a protective sweep] putting the … Continue reading →
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KY: Blood and debris trail to def’s open door and his refusal to talk about who was inside or what happened justified entry
Exigent circumstances justified the officers’ entry into defendant’s home. There was a blood trail that did not go all the way back to his apartment, but there was a debris trail, too, he was badly hurt and bleeding, and he … Continue reading →
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MN: 5A not violated by order to use fingerprint to open cell phone for search
Defendant’s cell phone was properly seized, and the order compelling him to provide his fingerprint to unlock the phone didn’t violate his privilege against self-incrimination because there was nothing testimonial about it. State v. Diamond, 2017 Minn. App. LEXIS 9 … Continue reading →
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Criminal defense- Beware executive liability and the two-inference jury instruction
A January 19, 2017, opinion from the federal Fourth Circuit provides important insight into the criminal liability of corporate executives, and the so-called “two-inference” jury instruction. United States v. Blankenship, ___ U.S. ___ (4th Cir., Jan. 19, 2017). Although the foregoing legal issues may sound dry at first blush, they are important for lawyers to consider in advising corporate executives on their criminal liability for employees’ actions and their own actions, and also for avoiding damaging jury instructions in any criminal case. Furthermore, the factual allegations of this case show the very tragic underlying human story which — if believed — make Blankenship far from a sympathetic character: “This case arises from a tragic accident on April 5, 2010 at the Upper Big Branch coal mine in Montcoal, West Virginia, which caused the death of 29 miners. Massey [Energy Company] owned and operated the Upper Big Branch…
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Infusing Civil Rulemaking with Economic Theory
Paul Stancil, Substantive Equality and Procedural Justice, Iowa L. Rev. (forthcoming), available at SSRN. Linda Mullenix For the most part, civil procedure teachers are dedicated doctrinalists. Nothing wrong in that, especially if well done. Departing from this norm, Paul Stancil’s Substantive Equality and Procedural Justice is a highly ambitious piece that strives to anchor civil procedure and the rulemaking process in a theoretical construct, largely moored in sophisticated economic analysis. Continue reading "Infusing Civil Rulemaking with Economic Theory"
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Bloomberg: Microsoft Asserts Clients’ Rights in FBI E-Mail Searches Fight
Bloomberg: Microsoft Asserts Clients’ Rights in FBI E-Mail Searches Fight by Kartikay Mehrotra: –First hurdle is convincing judge it can sue on their behalf –Tech industry says future of mobile, cloud computing at stake Microsoft Corp.’s effort to halt the … Continue reading →
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Iftene on Mr. Big Scenarios
Adelina Iftene (York University - Osgoode Hall Law School) has posted The ‘Hart’ of the (Mr.) Big Problem ((2016) 63 Criminal Law Quarterly 151) on SSRN. Here is the abstract: In 2014, the Supreme Court of Canada in R v...
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SIZE MATTERS
The honourable United States District Judge Federico Moreno (and REGJB alumunus) saw fit to comment about our comment about George Herbert Walker Bush, the 41st President of the United States: Fred Moreno said...Rumpole, whomever you are, I have only commented once before in your blog when Judge Richard Hickey died. Now, I could not resist complimenting you on the description of President Bush 41 as a real American hero. I forwarded your remarks to former Governor Jeb Bush and he emailed me to "please thank the blogger for the kind words about my dad." FAMDear Judge Moreno:Thank you for reading the blog. Your efforts are appreciated. As to Jeb Bush, your email is appreciated, but just between us- our former governor knows how we feel about his dad. SIZE MATTERSApparently, size matters to the 45th president of the United States. Size of the crowds, size of his hands, how many times he has been on the cover of Time…
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Update on Fingerprints, Phones, and the Fifth Amendment
Can a court order a suspect to use the suspect’s fingerprint to unlock his or her smartphone? Or would that violate the suspect’s Fifth Amendment privilege against self-incrimination? I wrote about that issue here. This post updates the previous one with two new cases and some additional discussion. Background. The Fifth Amendment provides in part that no person may be “compelled in any criminal case to be a witness against himself.” This privilege against self-incrimination applies during the investigative phase of a case as well as at trial. And it applies to the disclosure of information that may lead to incriminating evidence even if the information is not itself directly indicative of guilt. However, it applies only to “testimonial” activity, not to nontestimonial actions like providing fingerprints, blood samples, or voice exemplars. The “act of producing” evidence that is not itself testimonial “may have a compelled…
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SCOTUS denies cert on handful of Alabama cases raising Hurst and other issues
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Avoiding Mistakes When Filing Bankruptcy
Important Information for Filing Bankruptcy in Jacksonville, FL As FBI Agent William J. Maddalena stated in a recent press release, “[f]ederal bankruptcy proceedings can be a lifesaver for honest individuals overwhelmed by debt.” But why was an FBI agent talking about filing bankruptcy? Isn’t the FBI’s job to investigate crimes? Bankruptcy Fraud is a Crime As a matter of common sense and ethics, most bankruptcy filers know that they should not lie in their bankruptcy filings. But sometimes, individuals and businesses do make misrepresentations in their filings or take action like moving their assets shortly before filing for bankruptcy to “protect” them. It’s just “working the system,” right? Wrong. Bankruptcy fraud is not just ethically wrong, it is a crime. The criminal law provisions governing bankruptcy fraud can be found at 18 U.S.C. §§ 152 to 157. There are different types of bankruptcy fraud but it…
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