Circuit Snippets
Applying the gross disproportionality test of Solem v. Helm and Harmelin v. Michigan, the California Court of Appeal, Fourth District, held that a sentence of LWOP for a 14-year-old convicted of "no-injury" kidnapping violated both the 8th Amendment and the comparable provision of the California constitution. In re Nunez, No. G040377 (Cal. Ct. App. 4th Dist. 4/30/09)
The en banc Sixth Circuit reversed an earlier panel ruling that had granted habeas relief based on the petitioner's counsel's failure to raise an Apprendi challenge to the Federal Sentencing Guidelines. The en banc court held that, even if that were true, the defendant in this case could not establish prejudice because the Sixth Circuit had repeatedly, pre-Booker, rejected such arguments. Nichols v. US, No. 05-6452 (6th Cir. 4/29/09) en banc, on rehearing 501 F.3d 542
FRE 608 and 609, which allow impeachment of witnesses with prior bad acts and convicitions, do not allow a party to cross-examine a witness about the details of prior bad acts for which the witness was convicted, the 9th Circuit held. Defendant was on trial based on charges arising out of a tussle with a corrections officer. His version and the officer's version were, of course, quite different. It was reversible error for the district court to allow the government to cross-examine the defendant about the details of his prior bank fraud conviction to show that he had "lied to the bank." US v. Osazuwa, No. 08-50244 (9th Cir. 5/7/09)
Defendant had locked his live-in girlfriend out of their shared home in an effort to keep her from leaving him. She told the cops. After she proved she lived there, they helped her enter through a window to get her luggage. In the process, she showed the officers where the defendant kept a gun he was forbidden to possess. The Second Circuit held that the defendant's fourth amendment rights were not violated because the officers' entry was pursuant to the girlfriend's consent. US v. McGee, No. 07-4509-cr (2d Cir. 4/24/09)
The en banc Sixth Circuit reversed an earlier panel ruling that had granted habeas relief based on the petitioner's counsel's failure to raise an Apprendi challenge to the Federal Sentencing Guidelines. The en banc court held that, even if that were true, the defendant in this case could not establish prejudice because the Sixth Circuit had repeatedly, pre-Booker, rejected such arguments. Nichols v. US, No. 05-6452 (6th Cir. 4/29/09) en banc, on rehearing 501 F.3d 542
FRE 608 and 609, which allow impeachment of witnesses with prior bad acts and convicitions, do not allow a party to cross-examine a witness about the details of prior bad acts for which the witness was convicted, the 9th Circuit held. Defendant was on trial based on charges arising out of a tussle with a corrections officer. His version and the officer's version were, of course, quite different. It was reversible error for the district court to allow the government to cross-examine the defendant about the details of his prior bank fraud conviction to show that he had "lied to the bank." US v. Osazuwa, No. 08-50244 (9th Cir. 5/7/09)
Defendant had locked his live-in girlfriend out of their shared home in an effort to keep her from leaving him. She told the cops. After she proved she lived there, they helped her enter through a window to get her luggage. In the process, she showed the officers where the defendant kept a gun he was forbidden to possess. The Second Circuit held that the defendant's fourth amendment rights were not violated because the officers' entry was pursuant to the girlfriend's consent. US v. McGee, No. 07-4509-cr (2d Cir. 4/24/09)
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