Happy holidays!

The blog is unlikely to have any additions for the next couple of weeks, as I will be taking a vacation. I would like to wish you a happy holiday, a prosperous and healthy new year, and many, many, many not-guilty verdicts.

District Court's Refusal to Reinstate Civil Rights Suit Against City OK'd

Manzanares v. City of Albuquerque, 2010 WL 5116912 (12/16/10) (Published) - District judge did not abuse his discretion when he refused to reinstate a law suit against the city. The judge had initially dismissed the suit on the grounds the separate suit against the officer involved was meritless. But the 10th reversed the officer suit and on remand the plaintiff received a total of $200,000 in damages from a jury. The plaintiff would only be entitled to nominal damages from the city. So continuing the suit would accomplish little if any justice.

After Serving 17 Years, Exonerated Plaintiff Not Allowed to Hold City Responsible for False Testimony

Bryson v. Oklahoma City, 2010 WL 4923894 (12/6/10) (Okl.) (Published) - After serving 17 years in prison, the plaintiff was exonerated by DNA evidence where a forensic chemist had falsely testified at the plaintiff's trial that semen found at the crime scene was consistent with samples taken from the plaintiff, when in fact her own lab tests indicated the plaintiff could not have been the semen donor Although the city may have been deficient in training and supervising the chemist, the plaintiff could not establish the city's deliberate indifference that is required to obtain relief, because the city didn't know about the chemist's shortcomings until after the plaintiff's trial. It was not highly predictable or plainly obvious the city's deficiencies would lead to the chemist falsifying tests and concealing evidence. That a former city police chief testified the chemists were on the prosecution team and would testify in a way that is most incriminating did not establish a custom for which the city would be liable.

Oklahoma Allwed to Substitute Drugs for Execution

Pavatt v. Jones, 2010 WL 5072132 (12/14/10) (unpub'd) - The capital petitioners could not show Oklahoma's substitution of pentobarbitol for the hard-to-acquire sodium thiopental as part of the lethal-injection regimen had a high enough risk of causing intense pain to warrant an injunction.

Appeal Waiver Could Not Be Enforced

U.S. v. Flores, 2010 WL 5128715 (12/16/10) (Wyo.) (unpub'd) - The government concedes an appeal waiver is unenforceable when it was not mentioned at the plea hearing.

Life Sentence For Probation Violation Affirmed

Schumaker v. Ortiz, 2010 WL 5094282 (12/15/10) (Colo.) (unpub'd) - 10th denies habeas relief where petitioner received a life sentence after violating probation for a sex abuse offense. The petitioner violated the condition that he could not deny he committed the offense to which he was pleading guilty. The petitioner could not show he was prejudiced by counsel's alleged failure to mention the condition he violated or the possibility of a life sentence upon violation of that condition. The written plea agreement did mention the condition, he said at the plea hearing he read the agreement and the judge at the plea hearing told him about the life sentence. There is no prejudice from counsel's inadequate advice about consequences, if the defendant is correctly informed of the consequences by some other source.

15-year Fraud Sentence Affirmed Despite Failure to Establish Guideline Range

U.S. v. Zaler, 2010 WL 5097758 (12/15/10) (Colo.) (unpub'd) - The 10th affirms an upward variance of unclear length to 15 years for fraud. The district court never clarified what the disputed guideline range was. When the defendant complained the court had not addressed his guideline arguments, the court responded: "I think I addressed that the guidelines are not being applied and hence the objections regarding the guidelines have no bearing at all upon my sentence." If the failure to calculate a range was error, the error was harmless, the 10th held, because the judge was obviously going to give a 15-year-sentence, no matter what the range was. The judge adequately explained the variance. The court did not have to distinguish the defendant's characteristics from the ordinary offender contemplated by the guidelines. And the court did explain that the variance was warranted due to the defendant's "hard-core" recidivism, its belief the defendant would never cease committing crimes until he was too old to offend [he was 60 at the time of sentencing], the harm caused to his girlfriend and victims, his refusal to seek treatment for his bipolar disorder and his returning to the U.S. to face the charges only because he was facing fraud charges in Israel.

IJ's Revocation of Immigration Petition Held Unreviewable

Green v. Napolitano, ___ F.3d ___ , 2010 WL 5157366, (10th Cir. 2010).
Immigration judge’s decision to revoke an immigration petition under 8 USC § 1155 is discretionary and therefore not reviewable. In this case, the petition by a citizen for alien spouse was revoked when ex of alien said the marriage was a sham. 8 USC §1252(a)(2)(B)(ii) strips federal courts of jurisdiction to review. Discretionary authority embodied in a regulation, as opposed to a statute, is not subject to the §1252 bar under Kucana, 130 S. Ct. 827 (2010). District court cannot entertain affirmative due process complaint regarding the §1155 action under federal question and declaratory judgment acts jurisdiction.

"The Racial Geography of the Federal Death Penalty" Article Discusses Geographic and Racial Distortions in the Federal Death Penalty

It is well known that Blacks and other minority group members are disproportionately over-represented on death rows across the US. Defendants are more likely to be sentenced to death for killing a white victim, and Black defendants are disproportionately executed. Less often discussed are the geographic disparities in the death penalty. Indeed, application of the federal death penalty is concentrated in just a few districts.

A new article in the Washington Law Review addresses this geographical disparity and identifies a possible explanation. In The Racial Geography of the Federal Death Penalty, by G. Ben Cohen and Robert Smith, the authors discuss how federal prosecutors, in an effort to avoid trying death penalty cases in state jurisdictions with substantial minority populations, are increasingly taking cases to federal court. The decision to prosecute federally often alters the racial composition of the jury pool, generally resulting in a lower percentage of minority venirepersons. Research indicates the changed racial make-up of the venire also affects jury deliberating and outcomes. The authors also suggest strategies to combat this effort to change the jury pool, including returning to a county-based jury pool.

More Ideas for Attacking "Junk" Science

Here is an excellent article at http://www.clpex.com/Information/Draft-McMurtrie_final.pdf - lots of footnotes, "also discusses other areas, notably Comparative Bullet Lead Analysis and Shaken Baby Syndrome, where petitioners have successfully raised post-conviction claims based upon new developments in forensic science."

The article, called "SWIRLS AND WHORLS: LITIGATING POST-CONVICTION CLAIMS OF FINGERPRINT MISIDENTIFICATION AFTER THE NAS REPORT, is by Jacqueline McMurtrie. It begins:

The National Research Council of the National Academies’ recent report, Strengthening Forensic Science in the United States: A Path Forward (“NAS Report”), was heralded as “‘a blockbuster that will completely change the legal landscape regarding forensic evidence.’”1 As the NAS Report notes, “[t]he number of exonerations resulting from the analysis of DNA has grown across the country in recent years, uncovering a disturbing number of wrongful convictions—some for capital crimes—and exposing serious limitations in some of the forensic science approaches commonly used in the United States.” Those of us in the legal community representing individuals claiming they are innocent and that their convictions were based on flawed forensic science awaited the report with great anticipation.
It is undisputed that people are convicted for crimes they did not commit. To date, there have been 255 post-conviction DNA exonerations in the United States. A study of the first 200 exonerations identified 113 cases (57 percent) where forensic evidence was presented against the defendant during the original trial. As DNA technology has continued to improve, individuals convicted on the basis of
other types of expert forensic testimony—including comparisons of bite marks, hairs, voiceprints, earprints, and fingerprints—were freed when post-conviction DNA tests proved the earlier forensic identifications wrong. However, DNA testing cannot provide a remedy for all wrongful convictions because in the vast majority of cases the perpetrator does not leave biological material at the crime
scene and, therefore, there is no evidence to test.
Hence, non-DNA forensic evidence will continue to play a critical role in the criminal justice system, and the work of forensic science practitioners is “widereaching and important.”7 This Article’s focus on fingerprint evidence may at first glance appear to be an inquiry in search of a problem. It is true that only one of the 255 post-conviction DNA exonerations involved an erroneous fingerprint
identification.8 However in 2004, the highly publicized Brandon Mayfield case (discussed in Part IV infra) brought national attention to the question of whether latent fingerprint identifications are reliable. Other documented cases of fingerprint misattributions are less renowned, but exist. In the end, it is impossible to assess the prevalence of error of latent fingerprint identifications. First, no records document how many criminal prosecutions in federal and state courts in the United States are based totally or partially on fingerprint evidence.10 Second, fingerprint misattributions go largely unnoticed, as there is “[n]o mechanism for recording, compiling, reviewing, or analyzing [the] cases.”

10 Cir. Cases:

Lopez v. Trani, -- F.3d --, 2010 WL 4923891 (10th Cir. 12/6/10) (Colo.) - Equitable tolling on the basis of a sufficiently supported claim of actual innocence, which permits a petitioner to get past an untimely filed habeas petition, does not require the petitioner to demonstrate that he has diligently pursued the claim of actual innocence beforehand. While Mr. Lopez overcomes this first hurdle, it is to no avail. The COA denies a certificate of appealability and dismisses the appeal because reasonable jurists would not find it debatable whether his petition presents a valid claim of the denial of a constitutional right.

U.S. v. Frownfelter, 2010 WL 4868012 (12/1/10) (Published) - A defense victory. You probably remember this case from when the 10th reversed an order detaining the defendant pending appeal. The indictment charged the defendant with 11 counts of theft of government funds. Each count alleged a misdemeanor amount of less than $1,000 stolen. The indictment states that in the aggregate the defendant took a felony amount---more than $1,000. The defendant pleaded guilty to one count. Everyone---the government, defense counsel and district court---assumed the defendant had pleaded guilty to a felony. he received a felony sentence of one year and a day. But on appeal the government admitted the defendant had pleaded guilty to a misdemeanor. The 10th "declined to rescue the government from its blunder." It rejected the government's argument that the plea agreement was void due to frustration of purpose and mutual mistake. The felony/misdemeanor distinction was not such a critical part of the agreement, the government assumed the risk the defendant would rely on the plain text of the statute to claim he was convicted of a misdemeanor and the defendant is not seeking to rewrite the agreement for a one-sided benefit. So the d. ct. had to change the conviction to a misdemeanor and resentence the defendant as a misdemeanant

U.S. v. Becker, 2010 WL 4868004 (12/1/10) (Published) - The categorical approach does not apply to whether a child porn defendant was previously convicted of an offense "relating to agg sex abuse, sex abuse or abusive sexual conduct involving a minor" under § 2252(b), which triggers 10 or 15 year mandatory minimums. The phrase "relating to" indicates the categorical approach is inapplicable. This means the sentencing court may look beyond the "mere" elements of the prior conviction to decide if § 2252(b) applies. On the other hand, the 10th implies at least that the court may only look at documents Taylor and Shepard said would be appropriate to look at. In this case, the defendant's indecent-solicitation-of- a-minor conviction satisfied the § 2252(b) requirements, even though the prior was an inchoate offense and even though the "victim" was a police officer posing as a child under 17. The 10th made clear it was not deciding whether the sexual abuse of an adult could qualify as a § 2252(b) offense.

Gee v. Pacheco, 2010 WL 4909644 (10/26/10) (Published) - This case was originally decided on Oct. 26, 2010, remanding for the d. ct. to allow the pro se prisoner to amend his complaint. The ACLU intervened seeking a rehearing because the 10th seemed to be placing a higher pleading burden on a prisoner than other people to meet the Iqbal "plausibility" requirement. The 10th had stated the prisoner's complaint had to explain why what the prison did to the prisoner did not serve a legitimate penological purpose. The 10th had also said "prisoners will rarely suffer from information asymmetry" because they will have learned through the grievance process the prison's justification for its conduct. The 10th reissued its decision with, as far as I can tell, a very minor addition. The 10th kept in every word the ACLU complained about and then added that, if the grievance process does not provide an explanation for the prison's conduct, the claim that prison conduct lacked justification may become plausible. In any event, the 10th explained, the d. ct. will ordinarily dismiss a pro se prisoner's complaint without prejudice and carefully explain to the prisoner what the complaint's deficiencies are so that the prisoner can correct them.

Doe v. Shurtleff, 2010 WL 4888036 (10/26/10) (Published) - This case was also decided on Oct. 26, 2010. It allowed to stand all the sex offender registration requirements Utah had imposed. Upon rehearing the 10th "corrected" the decision, without saying how it corrected the decision. The bottom line is the same. As far as I can tell the 10th filled out a distinction between mandatory disclosure in public of a speaker's identity and the requirement that a speaker provide information to the government---in this case, internet identity information---that could later be used to trace speech back to its source, the latter being more subject to government regulation. The 10th also added that Utah did not permit unrestricted disclosure of personal information to the general public, but only sharing among law enforcement agencies.

U.S. v. Espinoza, 2010 WL 4912312 (12/3/10) (unpub'd) - A true rarity: a granting of a prisoner's petition for rehearing. The pro se prisoner successfully pointed out the d. ct. had not addressed his Brady claim, even though he had persistently pointed out below that the magistrate and the d. ct. had not addressed the claim.

S. Ct. News:

Williams v. Hobbs, 2010 WL 1685380 (12/6/10) - Justice Sotomayor joined by Justice Ginsburg dissents from a cert denial. In a § 2254 capital case, the 8th Circuit held the state could raise on appeal an objection to the holding of an evidentiary hearing in federal court , even if it had not objected below. After the hearing, the d. ct. granted the habeas petition because counsel did a pathetic job presenting mitigating evidence in the penalty phase and the testimony at the federal hearing showed the petitioner had been "subject to every category of traumatic experience generally described as childhood trauma." But the 8th Circuit held the evidentiary hearing should not have been held because the petitioner had a chance to present evidence at the state habeas hearing and that evidence did not entitle the petitioner to federal habeas relief. Justice Sotomayor felt the circuit court had not considered the interests of justice, as it was supposed to do. She thought the state was hoping to use the federal hearing to its advantage. She concluded: "the interests of justice are poorly served by a rule that allows a State to object to an evidentiary hearing only after the hearing has been completed and the State has lost."