NEWS RELEASE: USSC Unanimously Adopts 2018 Guideline Amendments
To access the new amendments, click here: https://bit.ly/2JLNGj6. -CCE
NEWS RELEASE: USSC Unanimously Adopts 2018 Guideline Amendments
To access the new amendments, click here: https://bit.ly/2JLNGj6. -CCE
The new App gives you access to:
It also includes Frequently Used Tables and the Archive. -CCE
Suspect Who Asks About His “Other Murder Case” Is Charged With That One, Too, by Kevin Underhill, Lowering the Bar Blog
A good friend has a saying that ranks as some of the best advice I’ve ever heard: “You can think anything you want. You just don’t have to say it.”
I have found that it works well in most work and life situations. In this particular instance, it would have been ideal. -CCE
Most Popular South Carolina Blawgs, Blawg Search, Justia
For my paralegal friends in South Carolina, here’s the top legal blogs in South Carolina sorted by popularity. There’s a little bit of everything here, and several caught my eye. It will take a while to digest it all. I recommend bookmarking this site, and visiting it often. -CCE
2016 Sentencing Guidelines, United States Sentencing Commission
This Sentencing Guideline became effective November 1, 2016. Because there have been no new amendments to the Guidelines, these guidelines are still effective as of November 1, 2017.
This website provides more than just the federal sentencing guidelines. There are also sections on Research, Policymaking, Education, and “By Topic.” If you wish, you can subscribe to receive updates from the website by email. -CCE
United States Sentencing Commission
This federal government website has a honey pot of information. It has six categories. Here are some highlights you will find under each category:
1. About (includes Mission Statement and online seminar titled ‘An Insider Look at the United States Sentencing Commission’);
2. Guidelines (the 2016 Guidelines Manual, Sentencing Table, and Organizational Guidelines, including the most recent primers on various areas of criminal law);
3. Policymaking (Rules of Practice and Procedure);
4. Education (Guideline Training Materials);
5. By Topic; and
6. Research (Public Access to Commission Data and Documents List Of all Publications, 2016 Sourcebook, Quick Facts, and Data Reports).
The information you will find here is current and up to date. You can be sure that you are researching the most recent and updated guidelines, primers, sentencing table, policy, and laws. -CCE
Research Guides, Pace Law School Library
Administrative Law, Bar Exam, Copyright and IP Law, Corporate, Business & Securities Law, Criminal Law and Procedure, Environmental and Energy Law, Health and Elder Law, Immigration Law, International and Foreign Law, Land Use Law, and more. Definitely worth a look. -CCE
Chicago Citizens Police Data Project, by Sabrina I. Pacifici, BeSpacific Blog
‘The information contained on this website comes primarily from three datasets provided by the Chicago Police Department (CPD), spanning approximately 2002 to 2008 and 2011 to 2015. The CPD has released these lists in response to litigation and to FOIA Requests. . . .’
2015 USSC Guidelines Manual, United States Sentencing Commission
The 2015 Guidelines Manual (effective November 1, 2015) is available in HTML and Adobe PDF formats (large file and broken into chapters), which can be viewed, downloaded or printed via the website. . . .
Livor Mortis & Placing a Victim in the Trunk of a Car, by Colin Miller, EvidenceProf Blog
For the past week, I’ve been trying to find a case involving lividity and a body in a trunk. The only case that I was able to find is State v. Persitz, 518 N.W.2d 843 (Minn. 1994). The Persitz case isn’t especially factually similar to the Adnan Syed case, but it does provide some interesting points of comparison/contrast. . . .
United States Sentencing Commission
There simply is too much at this website to describe it all. The list below is only a portion of the data. Most importantly, it includes the 2015 USSC Guidelines Manual, updated November 1, 2014, as well as a wealth of research, statistics, training, tables, demographics, sentencing information, and more. Here is a quick summary.
Missed by a Mile – How Hard Is It To Count Deaths By Police?, by Eli Hager, The Marshall Project
A day before administering a searing condemnation of the police department of Ferguson, Mo., where an unarmed black teenager was shot and killed by a white police officer, the Department of Justice quietly published a separate report on the number of Americans killed at the hands of law enforcement.
The verdict? In a startling admission, the Bureau of Justice Statistics confirmed that the government’s own data on so-called police-involved deaths have been off for more than a decade — by more than 100 percent.
The report estimates that there were ‘an average of 928 law-enforcement homicides per year’ from 2003-2009 and 2011 — which means that previous yearly tallies by the BJS and the FBI included fewer than half of all such deaths. The FBI, for example, reported an average of only 383 ‘justifiable homicides by law enforcement’ per year over the same period. The BJS was slightly closer to reality, averaging 454.
These numbers, by the way, do not include the deaths of bystanders, deaths during vehicular pursuit, or deaths at the hands of federal agents.
The new report was released at a pivotal moment in the national conversation about policing and the use of force. Not only was the ‘Ferguson Report’ released on Wednesday, but national outrage about violence by the police has spawned recent calls from President Obama and top officials for reforms, beginning with more accurate data on just how many people are killed by the police.
‘There was a great emphasis on the need to collect more data,’ the president said after a meeting of his task force on policing. ‘Right now, we do not have a good sense…of how frequently there may be interactions with police and community members that result in death.’
In February, in a moment of candor during a speech at Georgetown University, FBI Director James Comey admitted that, ‘It’s ridiculous that I can’t tell you how many people were shot by the police in this country — last week, last year, the last decade. It’s ridiculous.’
The dearth of reliable statistics, widely suspected but never before acknowledged in such detail by a government report, goes to show why Congress last year reauthorized the Death in Custody Reporting Act. The law, an earlier version of which expired in 2006, requires the BJS to compile data on killings by law enforcement and in prisons. That data is to be gathered from a wide range of sources, including coroner’s reports, direct reports from police, media reports, Google alerts, and analysis by program staff. The notion is that this mesh of information will offer a more complete picture than the FBI data, which rely mainly on self-reporting by the police.
However, even in the years before the old reporting law expired, when the BJS was supposedly harvesting information from a wide range of sources, the bureau fell far short of a complete tally. In its best year, it identified only 49 percent of police-involved deaths.
Advisory Committee on the Rules of Criminal Procedure, beSpacific Blog., Federal Rules of Criminal Procedure, Google, Law Enforcement, Legal Technology, Richard Salgado, Rule 41, Sabrina I. Pacifici, Search Warrant
Small Rule Change That Could Give the U.S. Government Sweeping New Warrant Power, posted by Richard Salgado, Legal Director, Law Enforcement and Information Security, by Sabrina I Pacifici, BeSpacific Blog
‘At the request of the Department of Justice, a little-known body — the Advisory Committee on the Rules of Criminal Procedure — is proposing a significant change to procedural rules that could have profound implications for the privacy rights and security interests of everyone who uses the Internet. Last week, Google filed comments opposing this change. It starts with the Federal Rule of Criminal Procedure 41, an arcane but important procedural rule on the issuance of search warrants. Today, Rule 41 prohibits a federal judge from issuing a search warrant outside of the judge’s district, with some exceptions. The Advisory Committee’s proposed change would significantly expand those exceptions in cases involving computers and networks. The proposed change would allow the U.S. government to obtain a warrant to conduct ‘remote access’ searches of electronic storage media if the physical location of the media is ‘concealed through technological means,’ or to facilitate botnet investigations in certain circumstances. The implications of this expansion of warrant power are significant, and are better addressed by Congress. First, in setting aside the traditional limits under Rule 41, the proposed amendment would likely end up being used by U.S. authorities to directly search computers and devices around the world. Even if the intent of the proposed change is to permit U.S. authorities to obtain a warrant to directly access and retrieve data only from computers and devices within the U.S., there is nothing in the proposed change to Rule 41 that would prevent access to computers and devices worldwide. The U.S. has many diplomatic arrangements in place with other countries to cooperate in investigations that cross national borders, including Mutual Legal Assistance Treaties (MLATs). Google supports ongoing efforts to improve cooperation among governments, and we are concerned that the proposed change to Rule 41 could undermine those efforts. The significant foreign relations issues associated with the proposed change to Rule 41 should be addressed by Congress and the President, not the Advisory Committee.’
Pennsylvania Top Court Strikes Down Law On Juvenile Sex Offenders, by Allison Sacriponte, JURIST Blog
The Pennsylvania Supreme Court [official website] ruled [opinion, PDF] 5-1 last week that the requirement that all sex offenders who were juveniles at the time of their crimes must remain on the Megan’s Law Registry for life is unconstitutional. The court upheld a 2013 decision by a York County judge that struck down portions of the Sexual Offenders Registration and Notification Act (SORNA) [text; JURIST news archive]. The court declared the law unconstitutional because it allowed no appeal and assumed that all juvenile sex offenders posed a high risk of committing crimes as adults, even though according to studies, barely one percent of them commit new crimes. In addition to public contempt, being on the Megan’s Law Registry required offenders to report quarterly to state police and report changes of address, job or personal appearance within three days.
In June 2013 the US Supreme Court [official website] ruled [JURIST report] that the federal government can compel a convicted sex offender to register with the SORNA even if the offender completed his sentence before SORNA was enacted. In February 2009 a judge in the US District Court for the Eastern District of California [official website] held that the statute violates the Commerce Clause [text] of the US Constitution by making it a federal crime for a sex offender to move to another state while failing to register in a nationwide database. Sex offender laws have been increasingly criticized [JURIST report] for limiting residence options and promoting ostracization.
Case Tossed Vs. Debra Jean Milke, Woman Held 22 Years In Son’s Death, by Jacques Billeaud and Bob Christie, Huff Post Crime
In a scathing critique of Arizona’s criminal justice system, a state appeals court on Thursday ordered the dismissal of murder charges against a woman who spent 22 years on death row for the killing of her 4-year-old son.
The Arizona Court of Appeals leveled harsh criticism against prosecutors over their failure to turn over evidence during Debra Jean Milke’s trial about a detective with a long history of misconduct and lying. The court called prosecutors’ actions ‘a severe stain on the Arizona justice system.’
A three-judge panel of the appeals court said it agreed with Milke’s argument that a retrial would amount to double jeopardy.
The failure to disclose the evidence ‘calls into question the integrity of the system and was highly prejudicial to Milke,’ the court wrote. ‘In these circumstances — which will hopefully remain unique in the history of Arizona law — the most potent constitutional remedy is required.’ . . .
Federal Rules of Practice and Procedure, United States Courts (with hat tip to Andrea Duncan, RP!)
The following rules became effective December 1, 2014:
Location. Location. Location., by Craig Ball, Ball In Your Court Blog
Okay, you have to admit that it’s pretty cool when a judge calls to pick your brain! – CCE
I’m peripatetic. My stuff lives in Austin; but, I’m in a different city every few days. Lately looking for a new place for my stuff to await my return, I’m reminded of the first three rules of real estate investing: 1. Location; 2. Location and 3. Location.
Location has long been crucial in trial, too: ‘So, you claim you were at home alone on the night of November 25, 2014 when this heinous crime was committed! Is that what you expect this jury to believe?’ If you can pinpoint people’s locations at particular times, you can solve crimes. If you have precise geolocation data, you can calculate speed, turn up trysts, prove impairment and even show who had the green light. Location and time are powerful tools to implicate and exonerate.
A judge called today to inquire about ways in which cell phones track and store geolocation data. He wanted to know what information is recoverable from a seized phone. I answered that, depending upon the model and its usage, a great deal of geolocation data may emerge, most of it not tied to making phone calls. Tons of geolocation data persist both within and without phones.
Cell phones have always been trackable by virtue of their essential communication with cell tower sites. . . .
Scalia Weighs In On One of the Most Important Questions in the World of White-Collar Criminal Defense, by Matt Kaiser, Above The Law Blog
Justice Scalia is not a man known for mild opinions. I hear the other Justices have voted him ‘least likely to say ‘this is a question on which reasonable minds could disagree.’
And, at oral argument recently, on what is perhaps the most significant criminal justice issue of the day — how broadly we should interpret criminal statutes — Scalia has turned his considerable intellect again in a defense-friendly way.
How, you ask?
Whether to interpret a criminal statute broadly or narrowly is an intricate question. The ‘Rule of Lenity says that criminal statutes should be interpreted narrowly. Yet courts often read in a meta-‘Rule of Lenity’ that says that the Rule of Lenity itself should be interpreted narrowly.
Moreover, judicial review of the scope of a criminal statute is tricky. There are thousands of federal criminal statutes on the books and Congress makes more every year. About 95% of the time, people charged with federal crimes plead guilty. Courts are highly resistant to litigate the meaning and breadth of a federal criminal statute before trial, which means that challenges to the interpretation of a statute are possible in a very small number of cases.
What that means is that prosecutors’ interpretations of federal statutes are highly unlikely to be meaningfully challenged. And, when they are, generally they are interpreted broadly. . . .
iPrivilege: Virginia Beach Judge Finds Prosecution Can Force Defendant To Supply Fingerprint To Unlock iPhone, by Evidence ProfBlogger, Editor Colin Miller, EvidProf Blogger
In relevant part, the Fifth Amendment states that:
“No person…shall be compelled in any criminal case to be a witness against himself….”
The Supreme Court has stated that the Fifth Amendment only covers “testimonial” evidence that results from compelled communicative acts, i.e., acts which disclose the content of one’s mind. Therefore, the Fifth Amendment does not cover a suspect’s act of appearing in a lineup or giving a blood sample to determine whether there are drugs in his system. The Fifth Amendment also does not cover the act of completing a handwriting exemplar. Imagine that the police find an alleged confession note written by the defendant. The prosecution can force the defendant to complete a handwriting exemplar in which the defendant writes a pre-printed paragraph in his handwriting so that a handwriting expert can compare the exemplar and the confession note. All of these and similar acts are not communicative because they are nontestimonial in that they do not force the defendant to disclose the contents of his mind.
Can the prosecution force a defendant to supply his fingerprint to use for the TouchID on his iPhone? For the last year, I’ve used this article to teach my students that a judge could likely order a defendant to supply his fingerprint to unlock his iPhone. Recently, this possibility has become a reality.
According to an article in SlashGear:
[A] judge has ruled that you can be forced to relinquish your fingerprint to investigators seeking access to your device. The reason, says the judge, is that the fingerprint isn’t knowledge like a password, but is instead a physical object of sorts, like a key or a DNA sample.
The ruling was made recently by Virginia Beach Circuit Court Judge Steven Frucci, and was the result of a case against EMS captain David Baust, who was accused of attempted murder. The case’s prosecutors wanted access to Baust’s phone, believing that it might have a video of the alleged crime, but the defendant’s lawyer argued against this.
And, according to an article in the Huffington Post:
[I]t’s unclear how the ruling will impact Baust’s case. If his phone is protected by Touch ID, prosecutors could access it using Frucci’s ruling. If the phone is protected by a passcode or both a passcode and Touch ID, they can’t . . . .
One workaround to this issue could be to just turn off your phone if cops approach. In that case, you’d have to enter your four-digit pin when you turn it back on, even if you use Touch ID. . . .
Recovering Assets By Identifying & Immobilizing Them, by Fred Abrams, Asset Search Blog
Identifying and immobilizing assets in a timely fashion can be paramount to asset recovery cases ranging from an ultra-high net worth divorce to a forced collection proceeding against a debtor.
The abstract about ‘Suspending Suspicious Transactions’¹ similarly mentions the ‘timely identification and immobilization’ of assets. The abstract discusses this with regard to money laundering and terrorist financing:
‘Seizure and confiscation of proceeds of crime, and funds intended to finance terrorism, are key objectives of the global initiative to combat money laundering and terrorism financing. The timely identification and immobilization of such funds are critical to permit the action necessary to prevent the flight of illicit assets beyond the reach of national law enforcement and prosecutorial authorities.’
Suspending Suspicious Transactions was published during July 2013 by the World Bank. It examines the role Financial Intelligence Units, (‘FIUs’), can have in freezing assets and/or postponing financial transactions at banks.
Suspending Suspicious Transactions also supplies fact patterns showing how FIUs work under anti-money laundering/countering financing of terrorism, (‘AML/CFT”), laws. . . .
Why Eyewitnesses Get It Wrong, by Scott Fraser, TED Talks
[interactive Transcript at http://tinyurl.com/l6fokjh.] -CCE
Scott Fraser studies how humans remember crimes — and bear witness to them. In this powerful talk, which focuses on a deadly shooting at sunset, he suggests that even close-up eyewitnesses to a crime can create ‘memories’ they could not have seen. Why? Because the brain abhors a vacuum. Editor’s note: In the original version of this talk, Scott Fraser misspoke about available footage of Two World Trade Center (Tower 2). The misstatement has been edited out for clarity.
Federal Sentencing Guidelines, by Criminal Defense Lawyer.com
Includes a Sentencing Table and other facts that impact how criminal sentences are determined. -CCE
The federal sentencing guidelines are rules that federal judges are required to consider when sentencing someone who has been convicted of a crime. Intended to give federal judges fair and consistent sentencing ranges to consult when they are handing down a sentence, the guidelines are based on both the seriousness of the crime and the particular offender’s characteristics and criminal record.
The guidelines are not mandatory. (United States v. Booker, 543 U.S. 20 (2005).) But a judge who wants to impose a sentence that is different—whether it’s harsher or more lenient—from the one calculated by using the guidelines must explain the decision.
The United States Sentencing Commission
Federal sentencing guidelines are written by an independent agency called the U.S. Sentencing Commission, which is part of the judicial branch of the federal government. In addition to promulgating the guidelines, the commission advises the other branches of government on criminal policy matters and collects and analyzes crime and sentencing data.
How the Sentencing Guidelines Work
The guidelines assign most federal crimes to one of 43 ‘offense levels.’ Each offender is assigned to one of six ‘criminal history categories,’ based upon the extent and recency of past criminal activity.
The point at which the offense level and criminal history category intersect on the Commission’s sentencing table determines an offender’s guideline range. To provide flexibility, the top of each guideline range exceeds the bottom by six months or 25 percent (whichever is greater). Judges are advised to choose a sentence from within the guideline range unless they identify a factor that the Sentencing Commission failed to consider that should result in a different sentence. . . .
Disabling Condition: Should Evidence of Defendant’s Disability be Admissible in Assault/Police Brutality Trial?, by Colin Miller, EvidenceProf Blog
According to an article in the Lake Geneva News,
‘A man who is accused of attacking a police officer, but counters that he is the victim of police brutality, is set for his second jury trial next Monday.
Daniel White, 42, of rural Elkhorn, faces three felony counts and a misdemeanor related to an incident in which his two pit bulls bit two deputies and he allegedly struck a deputy with his fist and a wood board.
White, who walked in the courthouse with a cane and collects disability checks, contends that the officer knocked down his stockade fence, beat him up and lied to conceal their actions.’
Prior to trial, the prosecution asked the judge to (1) prohibit White’s cane from being in the jury; and (2) to exclude evidence of White’s disability. How should the judge rule?
Well, the judge has already ruled ‘refused to force White to hide his cane during the trial.’ I think this seems like the only correct outcome. First, there is simply the matter of logistics. For instance, a defendant has to stand when the judge enters the courtroom. Given that, it’s difficult to see how the cane could be completely hidden from view. Second, courts have found no problem with defendants being in shackles in the courtroom when such restraint is necessary. Reciprocity would thus seem to require allowing a defendant in need of a cane to be able to use it in plain view of jurors.
The more difficult question is whether the defense should be able to present evidence of White’s disability. Part of this depends on the defense’s theory of the case. Is the claim that White’s disability made him physically unable to commit the crimes alleged in the complaint? If so, you might recall the infamous O.J. Simpson trial in which Richard Walsh was allowed to give testimony that the former running back’s football injuries caused problems with his problems with knees, back, shoulder and hands.
Is the claim self-defense, with White’s claim being that his disability should be part of the reasonable person analysis? If that’s the case, check out this excerpt from Hendrix v. State, 369 S.W.3d 93 (Mo.App. 2012):
‘Although Ransom was decided in the context of a civil claim of self-defense, its analysis of the ‘reasonable person’ standard is relevant to determining whether Hendrix’s medical records were relevant to his claim of self-defense….Hendrix’s medical records, if entered into evidence at trial, would have merely established that he suffered from degenerative joint disease in his knees. As Ransom indicated, a defendant’s ‘proclivities or propensities are irrelevant’ to the issue of whether the defendant acted as a ‘reasonable person.’…Williams was not ineffective for failing to present irrelevant evidence because it would have been inadmissible at trial….
Even if evidence of Hendrix’s disabilities would have been relevant and, therefore, admissible, Hendrix offered no evidence at the motion hearing to demonstrate that, had Williams entered Hendrix’s medical records detailing his degenerative joint disease, the jury would have acquitted Hendrix. The jury heard Paynter’s testimony that Hendrix wore knee braces, and the defense’s closing argument utilized Hendrix’s knee injuries to argue the relative size difference between Hendrix and Paynter. Despite the jury hearing that evidence and argument, it rejected Hendrix’s self-defense theory. Hendrix has not demonstrated that, had the medical records been admitted, there is a reasonable probability that he would have been found not guilty.’
Hendrix seems to stand for the proposition that some evidence of a defendant’s disabilities is admissible but that medical records are not. But, of course, those records were offered for a particular purpose which might well be different from the purpose at White’s trial. -CM