For the week of August 30, 2010.

Is Court Use of Violence-Risk Tools Too Risky? It might be, according to a new metaanalysis, discussed here by forensic psychologist Karen Franklin. Franklin says that all nine of the leading risk assessment instruments analyzed in the study had only moderate predictive accuracy, and none "were sufficiently accurate for courts to rely upon . . . as a primary basis" for decisions that require "a high level of predictive accuracy, such as preventive detention."

Ways of Making You Talk.  Via Innocence Blog, ABC's new Primetime: Crime series will look at police interrogation techniques.

Judge v. FPDO. According to the Pittsburgh Post-Gazette, the Federal Public Defender's Office in the Western District of Pennsylvania has filed motions asking District Judge Arthur J. Schwab to recuse himself from every case the office has pending before him. The judge appears poised to grant the motions, and may well order his own automatic disqualification for all future cases in which the FPD represents the defendant.

Giving "M.O." the Old Heave-Ho. New Scientist profiles the method of criminal profiling, and finds madness in't.

Defense Fail. The Innocence Project has another in what looks to be a series of reports on various failures in the criminal justice system based on an analysis of the first 255 DNA exoneration cases. Last week we noted one on prosecutorial misconduct. This week's is about IAC. 

Facebooking at Voir Dire - Why It's the New Due Diligence. During the prosecution's case, juror Hadley Jons thought she was "gonna [have] fun [telling] the defendant they're [sic] GUILTY." So much so that she posted it on her Facebook page - an uncommon bout of frankness that didn't go over so well with the judge.

Sorry - We're All out of Death this Year. "A nationwide shortage of several anesthesia drugs has left several states scrambling to find enough doses to carry out lethal injections ” potentially delaying executions well into next year." So reports USA Today.

Elsewhere, Alas, Supplies Last. Dueling judicial orders on the death penalty in California this week. A state court judge blocked California officials from immediately resuming executions, standing on an injunction she ordered three years ago and which she has not yet lifted. Meanwhile, a U.S. District Court judge has denied a last-minute appeal by Cal Coburn Brown, now scheduled to be executed on September 10. 

Grace of State. Over a unanimous state parole board recommendation, and in spite of evidence making guilt assertedly "far more likely" than not, Ohio Governor Ted Strickland has commuted death row inmate Kevin Keith's sentence to life without parole.

Bad Times for Good Time. After the damage done in Barber v. Thomas, Oregon Chief Deputy Federal Public Defender Steve Sady points the way for Congress and the President to pick up the pieces.

Away from Our Regularly Scheduled Programming. Reuters reports that scientists are suggesting "a fresh look" at psychedelic drugs. Which of course might suggest a fresh look at certain Schedule I sentencing rationales. An abstract of the study discussed in the article is here; more on the study here.

Isn't That Part of the Meaning of "Criminal Informant"? Did you hear the one about the jailhouse snitch whose affidavit exculpating the defendant didn't require Brady disclosure? Turns out, prosecutors didn't think it mattered because (among other things) the informant had a criminal history.

Winning the Balloon Race. David McCandless has this really interesting TED Talk on data visualization, demonstrating its singular capacity to make complex data effortlessly comprehensible.

You Might Also Try Reading Melville. Tips for sleepless lawyers here.

New Rules. The U.S. Sentencing Commission has released its emergency proposed amendment (reader friendly version) implementing the Fair Sentencing Act, along with its notice of final priorities, for public comment.

The Week in Sausage Making. Congress is in summer recess.

Top of the Ninth - 9th Cir. decisions released during the week.
· U.S. v. Kuo (on remand) (in case involving conspiracy to violate civil rights, restitution order was timely under Dolan but calculation was improperly based on market value of prostitution services rather than victims' actual losses).
· U.S. v. Kloehn (district court committed reversible error when during defendant's testimony it refused to continue trial for two days to allow defendant to visit his dying son).
· U.S. v. Armstrong (racial motivation and obstruction enhancements were appropriate in sentencing of defendant who joined attack started by codefendant, and who was found to have falsely disclaimed racial motivation).
· U.S. v. Melchor-Meceno (Colorado menacing is a "crime of violence" within § 2L1.2).
· U.S. v. Wipf (18 U.S.C. § 3553(a) does not permit district court to impose sentence below a mandatory statutory minimum).
U.S. v. Millis (placing bottles of water on federal lands to alleviate exposure deaths among undocumented immigrants is not "littering" or dumping of "garbage" within 50 C.F.R. § 27.94(a)).
· Camacho-Cruz v. Holder (immigration) (Nevada assault is categorically a "crime of violence" within 18 U.S.C. § 16).
· McCormick v. Adams (habeas) (Faretta waiver was knowing and voluntary, and remained valid notwithstanding trial judge's comment that petitioner could reconsider "at any time" and periodic questions to petitioner about whether petitioner wished to withdraw the waiver) (state appellate court's determination that judge's denial of continuance and/or counsel was not unreasoanble application of clearly established federal law).
· U.S. v. Munoz-Camarena (district court's application of eight-level increase under § 2L1.2(b)(1)(C) for defendant's three previous convictions for simple possession was error under Carachuri-Rosendo) (Kimbrough and Gall effectively overruled harmless error analysis of Menyweather, and so guideline calculation error was reversible notwithstanding district court's statement that it would apply the same sentence regardless). UPDATE (9.7.10): Ninth Circuit Blog's analysis here.

SCOTUS Focus. The Court is in recess until October 4.

Short Circuits - other persuasive authority.
· U.S. v. Master (6th Cir.) (where state court lacked jurisdiction under state law to issue warrant in neighboring county, warrant violates Fourth Amendment).
· People v. Garcia (N.Y. Sup. Ct.) (court's earlier, general warning to defendant that he could be subject to deportation if he pleaded guilty to misdemeanor did not alleviate IAC).
· In re Application for Release of Cell-Site Information* (E.D.N.Y.) (order) (applying mosaic theory of D.C. Circuit's Maynard decision, finding historical cell-site data protected by Fourth Amendment); some good discussion in this thread.
California v. Mendez (Cal. Ct. App.) (teen's 84-year sentence was effective LWOP and therefore unconstitutional under traditional "proportionality" test).

For the Bookworms - New books and scholarly articles of note.
· "Pervasive Surveillance and the Future of the Fourth Amendment," Russell D. Covey, Miss. L.J. (forthcoming 2010) (SSRN) (arguing that courts should abandon the third-party doctrine because modern technology effectively requires the disclosure to third parties of private information, and that in general courts should shift the Fourth Amendment focus from regulating the acquisition of information to regulating its use). 
· "Bargained Justice: Plea Bargaining's Innocence Problem and the Brady Safety-Valve," Lucian E. Dervan (working paper 2010) (SSRN) (arguing that incentives to plead guilty in contemporary plea bargaining practice violate Brady v. U.S., which tempered its sanctioning of plea bargaining with a "safety-valve" intended to ensure pressures to plead would not result in guilty pleas by innocent defendants).
· "The New Habeas Revisionism," Stephen I. Vladeck, 124 Harv. L. Rev. (forthcoming 2011) (SSRN) (reviewing Paul Halliday's Habeas Corpus: From England to Empire, previously noted in a Roundup here). 
· "A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition," David M. Golove & Daniel J. Hulsebosch, N.Y.U. L. Rev. (forthcoming) (SSRN) (arguing that cosmopolitan aspirations of the founding era led framers to seek constitutional devices designed to ensure that the nation would comply with treaties and the law of nations).
· "Impeding Reentry: Agency and Judicial Obstacles to Longer Halfway House Placements," S. David Mitchell (working paper 2010) (SSRN) (arguing that BOP's presumptive six-month transition time in halfway houses for reentering inmates fails to comply with its statutory authority).

     *NOTE: Direct link to case docket report on PACER.

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Suggestions or corrections? Email Michael_Drake@fd.org.