Tuesday, November 22, 2016

New Appellate Procedure Rules of Procedure

The 2017 Federal Rules of Appellate Procedure will take affect on December 1, 2016, and new Tenth Circuit Local Rules will be effective on January 1, 2017. All the updated rules are available at http://www.ca10.uscourts.gov/clerk/rules. Notable changes to the federal rules include a reduction in the word count for primary briefs (from 14,000 to 13,000 words) and reply briefs (from 7,000 to 6,500 words). FRAP 26(c) allows for the addition of three days to all deadlines if service is accomplished by certain methods. Pleadings delivered electronically had been under this rule. However, Rule 26(c) has been amended so that papers delivered electronically are treated as delivered on the date of service and the three additional days will no longer be added to any applicable deadline. 10th Cir. Rule 46.4(B)(1) has been amended to make clear counsel’s obligations when filing a no-merits brief in a criminal case involving a non-English-speaking defendant. A memo setting out all the changes to the rules is available at the Tenth Circuit’s website.

New Mexico Aggravated Assault With a Deadly Weapon is Categorically a Crime of Violence; Sixth Circuit's Contrary Decision Rejected

U.S. v. Maldonado-Palma, 839 F.3d 1244 (10th Cir. 2016): New Mexico aggravated assault with a deadly weapon is categorically a crime of violence under the former version of U.S.S.G. § 2L1.2. N.M.S.A. 1978, § 30-3-2 is divisible because it sets out alternative elements for aggravated assault in three subsections. The defendant was convicted under subsection (A), which prohibits “unlawfully assaulting or striking at another with a deadly weapon.” Both parties agreed that the offense is broader than generic aggravated assault, thus the issue was whether the offense had an element of the use, attempted use, or threatened use of physical force against the person of another. In this context, “physical force” means violent force that is capable of causing pain or injury. The defendant contended his offense did not categorically include an element of use of force. He pointed to N.M.S.A. 1978, § 30-3-1(C), which includes in the definition of “assault” “the use of insulting language toward another impugning his honor, delicacy or reputation,” and argued that assaulting someone by using insulting language while possessing a deadly weapon would qualify as aggravated assault but would lack any element of use of physical force. The panel rejected the argument, relying on New Mexico’s pattern jury instructions on aggravated assault. All the jury instructions require that the deadly weapon be “used.” Aggravated assault with a deadly weapon cannot be committed by insulting someone while possessing a weapon; rather, the weapon itself must be used or employed. “Employing a weapon that is capable of producing death or great bodily harm or inflicting dangerous wounds in an assault necessarily threatens the use of physical force, i.e., ‘force capable of causing physical pain or injury to another person.’” The Tenth Circuit rejected the contrary decision in U.S. v. Rede-Mendez, 680 F.3d 552, 560 (6th Cir. 2012).

Monday, November 14, 2016

Trial Manual Available for Free Download

The electronic Sixth Edition of the Trial Manual for the Defense of Criminal Cases has been made available for free download from the American Law Institute's website, a press release from the ALI announced. The manual is authored by Anthony G. Amsterdam and Randy Hertz and published by the American Law Institute Continuing Legal Education. It was originally a joint project of the American College of Trial Lawyers, National Defender Project of the National Legal Aid and Defender Association, and ALI-ABA Committee on Continuing Professional Education.

The authors say: "The primary goal of the manual has always been – and continues to be – to serve as a resource for criminal defense lawyers at the trial level. It covers the information a defense attorney has to know, and the strategic factors s/he should consider, at each of the stages of the criminal trial process. It is organized for easy access by practitioners who need ideas and information quickly in order to jump-start their work at any given stage."

A softbound print version will be made available for sale at the ALI CLE website before the end of the year. Meanwhile, the electronic version can be obtained here.

Tuesday, November 08, 2016

District Court's Revocation of Supervised Release Reversed

United States v. Henry, 2016 WL 6211808 (October 25, 2016): relying US v. Jones, 818 F.3d 1091 (10th Cir. 2016) and Fed.R.Crim.P 32.1(b)(2)(C), the panel reverses Henry’s supervised release revocation sentence because the trial court did not apply Jones’ balancing test before accepting hearsay statements as proof of one of Henry’s violations. The government does not win on harmless error grounds either because Henry asked for a variance. The panel reasoned that the court considered all the violations together (there were 3) when fashioning its sentence. The panel could not know how the hearsay proven violation affected the court’s sentencing decision. Had the court ruled differently on the hearsay proven violation, the panel suggested, it might have varied as Henry proposed. In sending the case back to the district court, the panel offered numerous suggestions on how it can avoid mistakes at the next hearing. Still, Henry illustrates the benefits of asking for a variance even in a supervised release revocation sentencing.

Court Could Consider Newly Disclosed Pretrial Conduct To Deny 3582 Sentence Reduction

United States v. Piper, 2016 WL 6211807 (October 25, 2016): Piper appealed the district court’s decision to deny his 18 U.S.C. § 3582 (c)(2) motion. In the lower court, the government agreed that his offense level had been retroactively lowered for the drug offense to which he pleaded guilty. But it opposed the reduction because of a rap video Piper made during his pretrial release. In that video he supposedly accused certain people of cooperating against him. The district court agreed that the video and Piper’s underlying offense demonstrated he was a significant danger to the community. Consequently it ruled he should not get the sentencing reduction. The panel affirmed that decision. It was unpersuaded by Piper’s four arguments. First, the panel said that the district court did not abuse its discretion by not addressing Piper’s policy arguments. Sec. 3582(c)(2) does not incorporate sec. 3553(c) which requires the court to state its reasons for the particular sentence. The court considered all the sec. 3553(a) factors and that was all it was required to do. Second, the court did not exceed its authority by considering the rap video which Piper labeled newly alleged presentencing conduct. The panel reasoned that nothing in USSG sec. 1B1.10 or Dillon require a court to disregard new allegations of presentencing conduct. Third, the court did not err in not having an evidentiary hearing before finding Piper created the video so it would be published and viewed as a threat to cooperators. To begin with, Piper did not request a hearing. According to USSG sec. 6A1.3(a), when an accused challenges certain facts the court does not have to hold a hearing unless the accused requests one. Finally, even without a hearing the court could glean Piper’s intent to threaten from watching the video. The court concluded that the video’s content and Piper’s decision to perform in a video in which he suggests a violent threat and leaving the video with a third party demonstrate the video was intended to be a threat to cooperating witnesses.

Monday, November 07, 2016

Sentencing Court Committed Plain Error By Failing to Make Relevant Conduct Findings

U.S. v. Godinez-Perez, 2016 WL 6155934 (10/24/16) (Kan.) - in sentencing Godinez for meth conspiracy, the district court erred by failing to make particularized findings regarding relevant conduct attributable to him. Even if the defendant does not lodge any objections to the PSR, the district court must still make particularized findings as to the scope of the criminal activity a particular defendant agreed to jointly undertake. The facts set out in the PSR and those admitted by Godinez in his plea were insufficient to determine whether a quantity of meth seized from a storage unit was properly attributed to Godinez. The plain error standard was met because a higher Guidelines range resulted from the district court's use of the wrong framework. There was a reasonable probability of a different outcome without the district court's error and a presumption applies that the unobjected-to error affected Godinez's substantial rights. The district court is ordered to resentence Godinez.

The Tenth rejects Godinez's argument that the meth mixture, which was over 80% pure, was improperly considered "Ice" for guideline purposes. And the district court was not required to examine the empirical grounding for the § 2D1.1 offense levels for meth offenses.

Questonable Expert Testimony Allowed

U.S. v. Chapman, No. 15-2143 & 15-2173 (10/24/16)(NM) - A troubling affirmation of the district court's admission of expert testimony in a hard-fought appeal. Husband and wife ("D.V.") accused each other of instigating an assault. The defense noted that photos of D.V. taken four hours after the altercation showed scratches on her chest that were not evident in photos taken shortly after the altercation occurred. D.V. had reported to police that Chapman had scratched her chest, but when confronted with the defense's observation, conceded that she must have caused the scratches herself. The district court permitted the government to present testimony from a SANE "expert" that domestic violence victims often injure themselves--without realizing it--as a coping mechanism. Although this "expert" had never spoken with D.V. and merely read the police report and looked at photos, she testified that what D.V. did was consistent with cases she had seen involving victims' self-injury. A condition called non-suicidal self-injury is characterized by self-infliction of injury on at least five occasions during a year. Here, however, there was no indication that D.V. had injuring themselves. Despite a dearth of supporting data, the district court permitted expert testimony that a single trauma could be so upsetting that a victim could injure herself one time only as a way to deal with trauma. The Tenth decides this was not an abuse of discretion - the testimony was sufficiently reliable, could help the jury understand the evidence, did not directly bolster D.V.'s testimony about why she scratched herself, and did not unfairly prejudice Chapman.

The Tenth rejects the government's cross-appeal sentencing argument that, despite the Assimilative Crimes Act requirement that a defendant is subject to the minimum and maximum punishments provided by state law, the district court had authority under 18 U.S.C. § 3551(a) to impose a higher sentence than state law permits. Section 3551(a) requires the sentencing court to apply the guidelines to impose a sentence within the range state law provides.

Friday, September 30, 2016

ADA Who Signed Off On Search Warrant Not Responsible for Subsequent Highly Unreasonable Forced Medical Intrusions

Eckert v. Doughterty, No. 15-2204 (10th Cir. 9/14/16) (unpublished): This is the infamous case of Mr. Eckert, who was stopped by for failing to obey a stop sign in Deming, NM, and who ended up being subjected to numerous humiliating and painful medical procedures, including a colonoscopy, because his "posture [was] erect and he kept his legs together," leading Officer Chavez to suspect Mr. Eckert had drugs concealed in his rectum. This particular appeal involved District Attorney Dougherty, who was granted qualified immunity by the district court. The Tenth Circuit affirmed the grant of qualified immunity and the dismissal of Mr. Eckert's lawsuit against Mr. Dougherty. ADA Dougherty had approved Officer Chavez's application for a search warrant, in which the officer had included the information that a narcotics dog alerted to the driver's seat and that two other officers said Mr. Eckert was known to conceal drugs in his anal cavity. This information was false. No narcotics were ever found. The claim against Mr. Dougherty was primarily based on his approval of the search warrant. The Tenth Circuit agreed that the affidavit established probable cause. Officer Chavez could reasonably rely on the statements of other law enforcement officers. The magistrate (and Mr. Dougherty) could reasonably rely on the officer's evaluation of Mr. Eckert's posture. Additionally, there was the dog alert. Given all this, an objectively reasonable official could find probable cause. For all these reasons, Mr. Dougherty was properly granted qualified immunity and the case against him dismissed. However, the panel stated in the beginning that "[n]othing in this decision ... should be read to condone any of the procedures, given the significant privacy interests in avoiding forced medical intrusions."

OIG Report on DEA's Use of Informants

The Office of the Inspector General of the Deportment of Justice released a report on the DEA's use of informants in drug cases today. The Audit of the Drug Enforcement Administration's Management and Oversight of its Confidential Source Program, Audit Report 16-33, is available here. Anyone dealing with federal drug cases must look at this report.

Unpublished decisions

U.S. v. Aguilar-Ramos, 2016 WL 1599775 (4/21/16) (N.M.) (unpub'd) - The 10th holds that California robbery in violation of Cal Penal Code § 211 is a "crime of violence" under § 2L1.2, even under the force part of § 211. The 10th rejects Mr. Aguilar-Ramos's attempt to distinguish the 10th's previous unfavorable decision regarding § 211 in U.S. v. Castillo, 811 F.3d 342 (10th Cir. 2015), on the grounds that Castillo only addressed § 211's fear part. The 10th said "all crimes under § 211 were crimes of violence under § 2L1.2," so end of story. Anyway, the 10th thinks the force argument is unpersuasive. Mr. Aguilar-Ramos relied on the notion that § 211 did not require enough force under the 2010 Johnson case, 559 U.S. 133. But the 10th notes it is talking about generic robbery and generic extortion, not the physical force clause. Possibly helpfully for our robbery/physical-force-clause arguments, Judge McHugh concurs. She observes that generic robbery only requires sufficient force to overcome a victim's resistance, which implies that generic robbery force may not be as much as the 2010 Johnson case requires.

U.S. v. Bowman, 2016 WL 1598745 (4/21/16) (Okl.) (unpub'd) - The 10th holds a defendant cannot challenge a career offender designation based on Johnson in a § 3582(c)(2) motion.

Banks v. Katzenmeyer, 2016 WL 1598669 (4/21/16) (Col.) (unpub'd) - The 10th reverses a district court's dismissal of a prisoner's First Amendment retaliation claim. Mr. Banks alleged that he told Captain Kazenmeyer he planned to pursue legal action against the captain for "certain hostile actions." According to Mr. Banks, the captain responded that the captain would instruct the staff to write up Mr. Banks at random. Lo and behold, the staff did write up "multiple fabricated reports" within six days. These accusations were enough to allege: the engagement in a constitutionally protected activity; a sufficient injury, (even though Mr. Banks did not say what happened following the reports); and that the reports would not have been made but for Mr. Banks' announcement that he intended to pursue legal action.

Thursday, September 29, 2016

A Not-so-Little Change in Constructive Possession Law

The Tenth Circuit reversed years of law on the constructive possession of contraband in United States v. Cody Little, 2016 WL 3902581 (10th Cir. July 19, 2016). Henceforward, “constructive possession exists when a person not in actual possession knowingly has the power and intent at a given time to exercise dominion or control over an object.” Id. at *3. This decision overruled a line of cases beginning with United States v. Colonna, 360 F.3d 1169 (10th Cir. 2004), which had held that “[i]t is not necessary to show that the defendant intended to exercise ... dominion or control” for purposes of constructive possession. Id. at 1179 (emphasis added). The Court also provided some good language on the aiding and abetting and deliberate ignorance pattern instructions. The Tenth Circuit's Pattern Jury Instruction on constructive possession is no longer accurate.

Despite critical commentary from legal academics and other circuits, the Court had rejected prior challenges to its pattern constructive possession instruction because “a panel may not overrule Colonna ‘[a]bsent intervening Supreme Court or en banc authority to the contrary.’” 2016 WL 3902581 *2 (quoting U.S. v. Ledford, 443 F.3d 702, 716 (10th Cir. 2005). This time, it found that intervening Supreme Court authority in Henderson v. United States, 135 S.Ct. 1780 (2015), which had observed that “[c]onstructive possession is established when a person, though lacking physical custody, still has the power and intent to exercise control over the object.” Id. at 1784 (emphasis added). Accordingly, it overruled its prior line of cases and brought Tenth Circuit law into agreement with the majority of other circuits.

The deliberate ignorance instruction was also improper. The Court affirmed that this instruction should only be given in the limited circumstance “when evidence has been presented showing the defendant purposely contrived to avoid learning the truth.” 2016 WL 3902581 *5. The Court rejected the government’s argument that evidence Little should have known about the firearms was sufficient to support the instruction. It also found fault with the trial court for allowing the instruction based on evidence Little knew or should have known about the firearms in the well house, stating, “Allowing a deliberate ignorance instruction premised on evidence of constructive possession reduces the standard for conviction from knowledge to recklessness or negligence.” Id.

However, as so often happens, the fact that two instructions central to the government’s case were erroneously given was not grounds for reversal because two members of the panel thought the evidence that Little knew about the firearms in the well house was overwhelming.

Judge Holmes dissented on this point, and would have reversed and remanded based on giving an incorrect instruction on constructive possession.

Although Little will not receive a third trial, he will be resentenced. Following the decision in United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015), the government agreed that Little’s prior New Mexico convictions for battery on a peace officer should not have been considered crimes of violence for purposes of the sentencing guidelines, and his sentence was therefore improperly enhanced.

Denial of Access to Classified Material Did Not Violate Defendant's 6th Amendment Rights

U.S. v. Lustyik, 2016 WL 4275592 (8/15/16) (Ut.) - The court rejects the claimed violation of the Sixth Amendment rights of Mr. Lustyik, a former FBI agent, by denying his counsel access to classified materials for use at sentencing. It says he failed to explain what material he needed or show how it would have helped. Counsel, who had requested and been denied time to obtain a security clearance, was given more than a million pages of unclassified documents before sentencing and Mr. Lustyik was able to review almost 7000 pages of classified material. The government said it would not base sentencing arguments on classified material. The district court reviewed the confidential material and did not abuse its discretion in determining the material was not relevant for sentencing. Further, the Classified Information Procedures Act does not help Mr. Lustyik because it does not provide a freestanding right to classified information. The court does remand for sentence clarification because two of the eleven counts carried a 5-year maximum sentence and it was unclear from the judgment whether the district court intended the imposed 120-month sentence to apply to each of the eleven counts

Denial of Summary Judgment in Police-killing Case Stands

Pauly v. White, 817 F.3d 715 (4/11/16) (N.M.) (Published) - The 10th denies rehearing en banc in this § 1983 police-killing-of-a-civilian case on a 6-6 vote. Six voted with the majority of the panel, 814 F.3d 1060, that affirmed the denial of summary judgment on qualified immunity grounds for the officers. Those six were: Judges Phillips, Briscoe, McHugh, Bacharach, Lucero and Matheson. Judge Phillips explains the dissenters fail to credit the district court's fact findings. It is clearly established, he says, that an officer can't shoot and kill without good cause and while not endangered. A contrary ruling in this case, the judge opines, would lea to "potentially deadly ramifications for citizens in this circuit." The dissenters, Judges Tymkovich, Kelly, Hartz, Gorsuch, Holmes and Moritz, interpret the panel majority's holding as meaning that before firing "an officer must identify himself and shout a warning while pinned down, kneeling behind a rock wall." The Judge Moritz dissent says the majority decision "creates new precedent with potentially deadly ramifications for law enforcement officers in this circuit." It's not clear which judge is mimicking the other. Dissenting Judge Hartz calls on the Supreme Court to settle the hotly contested issue.

Unpublished decisions

U.S. v. Hughart, 2016 WL 1445974 (4/13/16) (Okl.) (unpub'd) - The 10th holds the officer did not detain Mr. Hughart when, while Mr. Hughart was stopped in the road, the officer activated emergency lights, requested an ID and ignored Mr. Hughart's request to pull his car into a parking lot. The 10th says: emergency lights were a safety precaution, not an attempt to detain; requesting an ID doesn't turn a consensual encounter into a seizure; and the officer was trying to figure out what was going on when Mr. Hughart requested to move his car. A patdown was okay, the 10th concludes, because the officer had a reasonable belief Mr. Hughart was armed and dangerous, given his touching of his right side near his waistband [furtive movements!!!], the fact that Mr. Hughart was arguing with his crying wife and the officer's experience with domestic disputes.

U.S. v. Saucedo-Avalos, 2016 WL 1444727 (4/13/16) (Kan.) (unpub'd) - The 10th rules it wouldn't render a plea invalid even if Mr. Saucedo-Avalos' lawyer had falsely assured him he would receive no more than a ten-year sentence. The judge's statements at the plea hearing that Mr. Saucedo-Avalos could receive a sentence from ten years to life trumped the lawyer and prevented the plea from being involuntary. Mr. Saucedo-Avalos received 30 years in prison.

Williams v. Wilkinson, 2016 WL 1459529 (4/14/16) (Okl.) (unpub'd) - The 10th reverses a dismissal of a Muslim prisoner's § 1983 and Religious Land Use and Institutionalized Person Act ("RLUIPA") suit. The 10th rules Mr. Williams could be deprived of his RLUIPA and First Amendment rights by the prison's refusal to give him kosher food, even if the prison thinks Muslims are required by their religion to eat halal food, not kosher food.

Thornton v.Goodrich, 2016 WL 1445397 (4/13/16) (Col.) (unpub'd) - Procedural victory for a § 2254 petitioner. The 10th remands where the district court rejected Mr. Thornton's Fourth Amendment claim under Stone v. Powell, 428 U.S. 465 (1976), on the grounds that the state courts had provided a full and fair opportunity to litigate the claim. The 10th holds the district court should have actually examined the state court record before deciding Mr. Thomas was afforded a full and fair opportunity.

Winkel v. Heimgartner, 2016 WL 1534062 (4/15/16) (Kan.) (unpub'd) - Yet another victory for a § 2254 petitioner. The 10th finds the district court erred in the following ways: in determining whether Mr. Winkel timely filed a pro se petition for review with the Kansas Supreme Court, the district court considered the federal prisoner mailbox rule instead of the appropriate state prisoner mailbox rule; the district court did not properly place the burden on the state to prove the state supreme court consistently applies the prisoner mailbox rule in the same manner as it did in Mr. Winkel's case; and the district court improperly required Mr. Winkel to prove his satisfaction of the prisoner mailbox rule by submitting prison mail logs or other additional evidence, instead of by submitting his and a prison official's affidavits.

Failure to file a reply brief dooms residual-clause argument

U.S. v. Peterman, 2016 WL 1273033 (4/1/16) (okl/) (unpub'd) - Mr. Peterman contended he was ineligible for the ACCA because, to qualify as a violent felony, one of his convictions depended on the unconstitutionally vague residual clause. The government agreed the district court relied on the residual clause to impose the ACCA sentence. However, in its answer brief the government pointed out Mr. Peterman did not argue he was entitled to relief under the plain-error standard in his opening brief. Mr. Peterman did not file a reply brief. Since Mr. Peterman never claimed plain error, he waived any chance for relief, says the 10th. So it affirms a concededly unconstitutional sentence. Hopefully Mr. Peterman files a § 2255 alleging ineffectiive-assistance of appellate counsel and gets relief that way.

"Off-the-cuff" decision fails to satisfy Daubert gate-keeping requirements

Adamscheck v. American Family Mutual Insurance Company, 818 F.3d 576 (3/29/16) (Col.) (Published) - Although a civil case, the expert holding might be useful for challenging the exclusion of a defense expert. The 10th holds the district court failed to engage in its required Daubert gatekeeping function when it made an "off-the-cuff decision based solely on an equivocal one-sentence description of the biochemical engineering expert's testimony by the party opposing its admission." Counsel opposing the admission described the testimony as opining the plaintiff couldn't have been hurt in the type of accident that occurred. The district court made no fact findings and only stated that all-rear-end accidents are different.

Tenth Circuit rejects Moncrieffe-based argument, holds 21 U.S.C. § 841(a)(1) is a “drug trafficking offense”

U.S. v. Dominguez-Rodriguez, 817 F.3d 1190 (3/31/16) (N.M.) (Published) - The 10th turns down an ingenious attack on USSG § 2L1.2 enhancements. The 10th holds a violation of 21 U.S.C. § 841(a)(1) is a “drug trafficking offense” under USSG § 2L1.2(b)(1)(A). The possession with intent to distribute does not have to include an element of commercial dealing and remuneration, the 10th concludes. The 10th justifies the difference from the result in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), which did acknowledge a commercial dealing/remuneration element requirement in the immigration law context, on the grounds that § 2L1.2 had its own distinct definition of “drug trafficking offense.” That definition in application note 1 includes possession with intent to distribute a controlled substance. The 10th looks to the generic contemporary meaning of possession with intent to distribute. The 10th finds that meaning in § 841(a)(1). That provision criminalizes non-commercial, non-remunerative distribution. End of story. The 10th notes the anomaly that under its ruling a state drug offense might qualify for a 16-level enhancement, but under Moncrieffe, not for an aggravated-felony 8-level enhancement. But that anomaly was not before the 10th in this case, the 10th says, so it doesn't have to justify it now.

Convicton for violationg SORNA overturned; reversing 10th Circuit

Nichols v. U.S., 136 S. Ct. 1113 (4/4/16) - The Court overturns the 10th Circuit and holds that the federal Sex Offender Registration and Notification Act (SORNA) did not require updating an address with the state a sex offender is leaving when the offender is going to a foreign country where he is not required to register. The Court relies on the use of the present tense, which indicates a person's update requirement corresponds with where that person currently resides, not where he used to reside. The Court also relies on the requirement to update "after" leaving the state, making it hard to update in the state one just left. Plus in the prior sex-offender registration legislation, the Jacob Wetterling Act, Congress specifically required de-registering in the departure jurisdiction. Congress knew how to make such a requirement, but didn't in this case. Finally, the Court feels its interpretation will not create "loopholes and deficiencies," since Congress amended SORNA to make what Mr. Nichols did a violation of SORNA from now on. And, besides, he did violate Kansas law.
Luevano v. Clinton, 2016 WL 1392519 (4/8/16) (Col.) (unpub'd) - The 10th Circuit lets stand the dismissal of a lawsuit seeking an order requiring Hillary Clinton to take a polygraph test.

Group Can Distribute Literature About Jury Nullification On Courthouse Steps

Verlo v. Martinez, 820 F.3d 1113 (4/8/16) (Col.) (Published) - A victory, perhaps temporary, for jury nullification & the First Amendment. The 10th upholds a preliminary injunction against a state district court prohibiting a jury nullification group from passing out literature to, and talking with, folks entering the courthouse. The group stressed it was important in order to get their message across that they be close to the courthouse's front door "to discuss quietly the concept of jury nullification." The defendants hadn't shown the group had caused any problematic obstructions.

Repeated Tasering Was Excessive Force

Perea v. Baca, 817 F.3d 1198 (4/4/16) (N.M.) (Published) - The 10th upholds the district court's refusal to dismiss a § 1983 lawsuit, holding Albuquerque police officers' repeated tasering and resultant killing of Mr. Perea in 2011 after he was subdued constituted excessive force. Officers stopped Mr. Perea for pedaling his bicycle through a stop sign without stopping. They chased him and then pushed him off his bike without explaining why they were chasing him. They struggled with Mr. Perea while he thrashed about with a crucifix in his hand. Judge Brack determined Mr. Perea's holding of the crucifix did not mean he was "armed." [Good news for Christians]. The officers tasered Mr. Perea 10 times within two minutes. It is clearly not reasonable to repeatedly use a taser against a subdued arrestee officers know to be mentally ill, whose crime is minor and who poses no threat to the officers, the 10th concludes.

Tuesday, September 20, 2016

Report on Forensic Science in the Criminal Courts Released

According to a press release from the White House, the President's Council of Advisors on Science and Technology (PCAST) has released its report "Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods." Relevant links are listed below.

Blog post (available at 6am): https://www.whitehouse.gov/administration/eop/ostp/blog

Full report: https://www.whitehouse.gov/sites/default/files/microsites/ostp/PCAST/pcast_forensic_science_report_final.pdf

Additional materials can be found at: https://www.whitehouse.gov/administration/eop/ostp/pcast/docsreports

According to the release, the recommendations—which are directed at the National Institutes of Standards and Technology (NIST), the White House Office of Science and Technology Policy (OSTP), the Federal Bureau of Investigation (FBI) Laboratory, the Attorney General, and the judiciary—include:

NIST should perform evaluations, on an ongoing basis, of the scientific validity of current and newly developed forensic feature-matching technologies and should issue an annual public report on the results.

NIST should take a leadership role in transforming three important feature-comparison methods—DNA analysis of complex mixtures, latent-fingerprint analysis, and firearms analysis—from currently subjective methods, with their heavy reliance on human judgement, into objective methods, in which standardized, quantifiable processes require little or no judgment.

OSTP should coordinate the creation of a national forensic science research and development strategy.

The FBI Laboratory should undertake a vigorous research program to improve forensic science, building on its recent important work on latent-fingerprint analysis.

The Attorney General should direct attorneys appearing on behalf of the Department of Justice (DOJ) to ensure expert testimony in court about forensic feature-comparison methods meets the standards of scientific validity.

The Attorney General should revise and reissue for public comment the DOJ proposed “Uniform Language for Testimony and Reports” and supporting documents to bring them into alignment with standards for scientific validity.

When deciding the admissibility of expert testimony, Federal judges should take into account the appropriate scientific criteria for assessing scientific validity.