Beth Caldwell (Southwestern Law School) has posted Miller v. Alabama as a Watershed Procedural Rule: The Case for Retroactivity (Harvard Law & Policy Review, Vol. 9, 2015) on SSRN. Here is the abstract: Three years ago, in Miller v. Alabama,...
Caldwell on Miller v. Alabama as a Watershed Procedural Rule
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When the Defense Is Correct
This last July saw a "Blue Moon," i.e., two full moons in a month.This happens as often as my agreement with the defense in a criminal case. So I guess it's fitting that I agree with it in this one, as reported by the NYT.It's a Brady case. An amicus brief taking the view that the Supreme Court should grant cert was signed by, among others, former Attorney General Michael Mukasey and Peter Keisler. Mr. Mukasey was my debate partner last year on sentencing reform, and Peter is a friend of mine of many years, having been both Acting Attorney General in the Bush Administration and, along with my wife, a co-founder of the Federalist Society. And I have a confession. I have not read either the petition or the Third Circuit's opinion, which sided with the government (as have other circuits on the question presented). If Mr. Mukasey and Peter Keisler say so, that's good enough for me. The amicus brief was also signed by…
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Maybe It Was the Blue Moon [A Bizarre DUI Tale]
Some people claim that full moons can influence people in strange ways, causing unusual behaviors around the time that they appear. July 2015, with its two full moons (the second is known as a blue moon), saw more than its share of unusual DUI stories from around the country. (No word yet on any weird arrests for DUI in Los Angeles during this time.) Police in Shelbyville, Tennessee, certainly had their hands full when they arrested Lawrence Howard, Jr., age 52, on a charge of DUI. The timesfreepress.com reports that Howard kicked and screamed in the back of the patrol car after the officer hauled him inside. When that didn’t get Howard any results, he started yelling that officers had messed up because he was the one keeping ISIS out of Shelbyville. The cops apparently were unalarmed by the warning, presumably because they had previously seen Howard run a stop sign and fail field sobriety tests. The police charged Howard not only with DUI but also with running a stop…
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Texas court denies motion to compel discovery of relator’s disclosure statement
On July 31, U.S. District Judge Amos L. Mazzant denied a qui tam defendant’s motion to compel a relator to produce a copy of the disclosure statement he filed with the United States. The case, in which the government declined to intervene, involved allegations that a mortgage company failed to provide Truth in Lending Act and Regulation Z disclosures in mortgage modification applications. Judge Mazzant reasoned: The Court finds that the disclosure statements submitted to the Government by Relators pursuant to 31 U.S.C. § 3730(b)(2) constitute at least ordinary work product for the purposes of the work product doctrine. Public policy favors the full and frank communication between Relators and the Government concerning the prosecution of the case, and as such, the communications must be protected from disclosure. Therefore, protection was not waived when Relators disclosed the information to the Government as the common-interest doctrine applies. Additionally, the…
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The Explosion of Cell Phone Evidence
Two recent cases in the news confirms the role that cell phone evidence is playing in cases around the country. First , Tom Brady destroyed his cellphone in March of this year right after the folks investigating asked for the cell phone. Mr.Brady claimed it was his routine practice to destroy his old cell phone even though two of his old phones were still around.It appears there were a high amount of texts between Mr.Brady and equipment manager John Jastremski days after deflategate was discovered. Mr.Brady was lucky it was just a NFL investigation. Under Tennessee criminal law. Mr. Brady would be facing a felony tampering with evidence charge. The second case is an opinion for the 6th Circuit Court of the U.S. Court of Appeals. a man inadvertently pocket dialed a person. The court held there was no expectation of privacy during an accidental cell phone call. Folks use cell phones for a variety of purposes. texts messages come up in all types of cases…
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News Scan
Suspect in Killing of Memphis Officer Charged with Murder: The man accused of fatally shooting a Memphis police officer over the weekend turned himself in on Monday, and has been charged with murder and is being held under $9 million bail. Fox News reports that 29-year-old Tremaine Wilbourn shot 33-year-old Officer Sean Bolton on Saturday evening after the officer interrupted a drug deal and the confrontation turned physical. Wilbourn was free on supervised release after a robbery conviction, for which he received a sentence of over 10 years, but was released on probation last summer. After using marijuana in December 2014, he was ordered to undergo mental health treatment on July 7, less than a month before the murder. Massive Search for CA Murderer: Kern County Sheriff's deputies, police officers and rangers are scouring the desolate area of Weldon, California in pursuit of a suspect who wounded two deputies late Saturday night and is also…
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Child-Abuse Testimonies: Not Covered By the Confrontation Clause
When undergoing litigation, criminal defendants are given the power to invoke and use their constitutional right to cross-examine accusers. This is a right that is specifically stated in the Confrontation Clause. This clause is quite logical since it is understood that when an individual is put on trial, his future and freedom are at risk of being lost. Of course, the contents of the Confrontation Clause aren’t only valid for witness testimonies. The clause covers any type of material that can be used to incarcerate an individual who is being charged. Such materials must pass the criteria of having relevance, reliability, and material existence. True Purpose of the Confrontation Clause In the process of court trial, it is a known fact that out-of-court-statements cannot be recognized as valid proofs of guilt of the accused. This is because the Constitution’s Confrontation Clause is in effect. Such statements are declared as mere idle talk and have no bearing on the…
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Urging Prez Obama to appoint a "new, visionary Bureau of Prisons head"
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Seventh Circuit authorizes successive 2255 attack on ACCA sentence based on Johnson
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Hopwood on Mass Incarceration and Failure to Fix Sentencing Mistakes
Shon Hopwood has posted Preface for: Failing to Fix Sentencing Mistakes: How the System of Mass Incarceration May Have Hardened the Hearts of the Federal Judiciary (Georgetown Law Journal, Forthcoming, 43 Geo. L.J. Ann. Rev. Crim. Proc. iii (2014)) on...
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Regaining Your Driving Privileges with Minnesota’s Ignition Interlock Program
One of the worst punishments Minnesota drivers convicted of DWI can face is the loss of driving privileges. Without a doubt, having to ask for rides to and from work and elsewhere can place a huge burden on both friends and family members. If you’ve recently been arrested for DWI, one of the first things you’ll want to address is exactly how to regain your driver’s license as soon as possible. First let’s examine how state law determines suspension lengths based on the circumstances of your case: How long are driving privileges revoked for first time offenders? 1st time offenders over the age of 21 with BAC below .16: 90 days. 1st time offenders under the age of 21 with BAC below .16: 180 days. 1st time offenders who refuse sobriety tests: 1 year. 1st time offenders with BAC above .16: 1 year. How long are driving privileges revoked for second time offenders? 2nd offense within 10 years (BAC below .16): 1 year. 2nd offense within 10 years (BAC…
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North Carolina Criminal Makes It Hard On His Defense Attorney
Charlotte Criminal Lawyer Brad Smith answers the question: What is an expungement? In a case that will surely make headlines across the country, a man from Clayton, North Carolina has been arrested after police say he left his wallet at the scene of the crime. Being arrested and charged with a crime is bad enough and often requires the skills of an experienced attorney to help defend your freedom and argue on behalf of innocence. Putting on a strong defense goes from merely difficult to nearly impossible when the burglar leaves behind a picture ID at the victim’s house. If recent news reports are true, this means that Joseph Alan Sherman’s attorney is going to need all the help he can get. The incident happened earlier this week when authorities say that a homeowner came home to find that she had been burglarized. The criminal had forced open the back door and eaten two frozen dinners, one with spaghetti and the other pizza. After having a hearty…
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Illinois to Set Up Financial Aid Fund for Wrongfully Convicted
Illinois passed a law which was signed into law on July 30th which will provide tuition assistance for residents who have been wrongfully convicted and exonerated. Section 62 of the Higher Education Student Assistance Act will provide financial aid for anyone pardoned by the Illinois governor due to actual innocence or awarded a certificate of innocence by a circuit court. The funds can be used to obtain high school equivalency, undergraduate or graduate studies, part-time or full time, at any public university or public community college in the state. The law allows the student to continue to receive the funds as long as he or she remains in good academic standing for up to eight semesters or 12 quarters. Under the state’s exoneration compensation statute, Illinois currently provides $85,350 to those who served up to five years, $170,000 for those who served between five and 14 years and $199,150 for those who served more than 14 years. The law also reimburses…
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Costa Mesa Police Officer Arrested For Insurance Fraud
Ryan Patrick Natividad, a 30-year-old resident of Corona was arrested and charged with several felony counts related to a worker’s compensation claim he made. Natividad, claimed he injured his fist while attempting to prevent an arrestee from falling into a wall while being escorted to the police car. Natividad, a Costa Mesa police officer was directed by the police department to seek medical attention for his injury but an internal investigation revealed there were discrepancies as to how and when the injury occurred. If convicted, Natividad faces up to six years in prison, fines and the likely loss of a carrier. Worker’s compensation is a fund that both California employers and employees pay into to pay for work related injuries. Worker’s Compensation fraud typically involves workers making false claims of injuries sustained on the job while employers are likely to face similar charges if they fail to pay the appropriate fees into the fund.…
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What Sandra Bland's Death Says About the Police
It seems like every week now, there's another person who dies after being roughed around by police. It's to the point where it's difficult to keep the names and places straight. Michael Brown was in Ferguson, Missouri, and Eric Garner was in New York, and Freddie Gray was in Baltimore, but where was Sandra Bland? And what was the name of the guy who got shot on video in South Carolina? The lesson that we need to be learning from this is that law enforcement has changed, somehow, at some time in the recent past. The change has been to how they enforce the law, and the change has not been for the better. At the core of the wrong tactical changes that have been made in many police departments across America is how officers are promoted up in the ranks. Officers now succeed or fail in the force based on the number of arrests they make. Fewer arrests mean that they are not doing their job. More arrests show that the officer knows how to ferret out crime. It…
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Stop for that school bus!
Get ready for the big yellow buses-- Gwinnett kids go back to school next Monday. Keep kids and your license safe by remembering stopping when you see a stopped school bus is the law. Who needs to stop for a bus?• ALL traffic traveling in both directions must stop for a stopped bus (unless you are traveling in the opposite direction of a four-lane road with a concrete median). Center turn lanes are not medians!• On big roads with center lanes, be aware that most of the other drivers don't know they should be stopping for a bus in the other direction. Be proud to start the trend knowing you are correct. If you don't stop for a bus, you will get a big ticket that comes with:• A MANDATORY court appearance,• Fines• and SIX points on your driving history (and then your auto insurer will probably raise your rates). That's a lot of points. Officer Friendly really wants you to stop. Parents, tell your teen drivers: drivers under 21 will have…
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Protecting Our Children from Sex Offenders
Besides the fact that we see a group opting for useless laws (residency laws have no recognized public safety value they are feel good laws) there is something of value in this article. Thousands of Level 1 offenders will be removed from the public registry; a good thing. This comes from the state legislature. See highlights.8-4-15 New York: Parents of Megan's Law, Suffolk County officials and
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Toms River Woman Accused Of Trying To Frame Husband With Lewd Photos Of Children
8-4-15 New Jersey: TOMS RIVER, N.J. (CBSNewYork/AP) — A Toms River, New Jersey woman has been on charges that she took lewd photographs of children in an attempt to frame her husband. The Asbury Park Press reports that 35-year-old Jeana Ganun, of Toms River, faces two counts of child endangerment and single counts of false incrimination and invasion of privacy. The indictment was handed up on
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.....AND THEN THERE WERE FOUR DISQUALIFIED CANDIDATES
Ben Carson has joined the ranks of the disqualified. This retired neurosurgeon (He actually was a great surgeon, having been the first to (successfully) separate twins conjoined at the head.), turned politician and right wing tea-bagger, can not answer a simple question on Meet the Press yesterday as to whether the bible has authority over the Constitution. His answer boggles the mind of anyone who actually has a basic understanding of the Constitution.The President's oath of office (as specified in the Constitution) requires that the President "preserve, protect and defend the Constitution of the United States. . . " That includes the First Amendment. So you don't feel left out, Dr. Carson, I call you out as an imbecile, idiot and moron.Site Feed
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SCOTUS Update: Glossip v. Gross
Supreme Court Rules Executions Performed With Controversial Drugs Not Unconstitutional Another day, another 5-4 split on the U.S. Supreme Court along ideological lines. I’m referring to the recent high-court decision in which held that executions carried out by a controversial three-drug protocol did not constitute “cruel and unusual punishment” under the Constitution’s Eighth Amendment. Lead plaintiff Charles Warner, convicted in 2003 of raping and murdering an 11-month-old in 1997, was put to death in Oklahoma while awaiting the ruling in this case. The issue at bar (officially the case was called Glossip v. Gross) was the use of the drug Midazolam, which has been blamed in three problematic executions in different states in 2014. While Warner’s execution was deemed a success by corrections officials, the same cannot be said for the taking of the life of Oklahoma death row Clayton Lockett, also a convicted murderer. He is said to…
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