The University of Pennsylvania PENNumbra has an interesting dialogue about plea bargaining, the unlimited unregulated powers of prosecutors, and those who might be innocent, but plead guilty anyway.
There are three points of view. Of the most interesting seems to be that innocent accused’s may plea guilty to avoid a wrongful conviction and increased sentence risk; and that’s a good thing for society and the innocent accused.
We talk a lot about appellate issues and whether they should be raised. Of course in the military we have United States v. Grostefon. There is also talk about changing the post-trial process and possibly placing more responsibility on the trial defense counsel to initially raise appellate issues (a broadening of Palenius). So here is an interesting little case on how a federal district court resolves appellate issues under Anders.
After a jury trial, Jeffery Carter was convicted of distributing crack, see 21 U.S.C. § 841(a)(1), and the district court sentenced him to 180 months in prison. Carter filed a notice of appeal, but his appointed counsel now seeks to withdraw under Anders v. California, 386 U.S. 738 (1967), because he cannot discern a nonfrivolous basis for appeal. Because counsel’s supporting brief is adequate, we limit our review to the potential issues identified in counsel’s brief and Carter’s Circuit Rule 51(b) response to his lawyer’s motion to withdraw. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
United States v. Carter, No.08-1419, 2009 U.S. App. LEXIS 9939, at *1 (7th Cir. 2009).
Andrew Taslitz has a comment on Concurring Opinions today: Government Lawyers’ Ethical Obligations and the War on Terror. This piece could apply equally to trial counsel and staff judge advocates, as well as defense counsel. The comment is about the current call(s) for action against the Bush administration lawyers and torture memos.
These stories stress the importance of government lawyers’ advisory role and start from the assumption that there is a sort of “truth” about what the law is on a particular matter. That need not mean that there is only one “right” answer, but it does mean that some answers are outside the realm of the plausible; that even within the plausible, the case for some answers is far weaker than for others; and that there are widely understood standards for what is “good lawyering,” including adequate research, factual investigation, consideration of opposing arguments, and sensitivity to the practical effects of government policy.
The articles also assume that government lawyers as advisors have an obligation to tell their client things he or she might not care to know, to act as the government’s conscience, and to be attentive to history and constitutional values as much as case law precedent.
FLETC’s The Informer is out for this month. In addition to commentary on Ventris and Gant, here are a couple of summaries of two computer search cases.
10th CIRCUIT United States v. Otero, 2009 U.S. App. LEXIS 9001, April 28, 2009.
The modern development of the personal computer and its ability to store and intermingle a huge array of one’s personal papers in a single place increases law enforcement’s ability to conduct a wide-ranging search into a person’s private affairs, and accordingly makes the Fourth Amendment particularity requirement that much more important. A warrant authorizing a search of “any and all information and/or data” stored on a computer is the sort of wide-ranging search that fails to satisfy the particularity requirement. Warrants for computer searches must affirmatively limit the search to evidence of specific federal crimes or specific types of material.
In some, non-U.S., police circles it’s called gilding the lily. But you are not supposed to get caught.
Officer Investigated For Perjury After DUI Case Falls Apart, By Dan Morse, Washington Post, 7 May 2009.
Although gilding the lily is really more subtle than this. It’s those oft remembered micro-facts months after the case, arrest, interrogation, etc.
Here is a fascinating article and it references CAAFLog.
Lee has concerns about the potential for bloggers to impact the outcome of a case. She even suggests that advocates may go so far as to "game" a case, by writing publicly about it in a blog to spur the Court to grant cert or rule a particular way. Because Lee believes that bloggers could impact the outcome of a case, she argues that the legal profession should consider regulating ex parte blogging, despite the positive benefits — e.g., discovery of errors and stimulating public debate — that blogging brings to the table.
This comes from several sources, but see, “Do we need ethics rules on ex-parte blogging?” on Legal Blog Watch.
DOJ has dropped its appeal and Watada will not be retried because of double jeopardy concerns.
Here is a more detailed SeattlePI.com report.
There will be no more oral arguments this term. The “watch” now relates to two pending decisions of importance to military justice practitioners.
The most important is when will the Supremes issue an opinion in Melendez-Diaz. Currently the law in the military for admission of forensic reports is Harcrow (for which M-D is on point). It is possible that the decision could also have some influence over the CAAF decision in United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006). I can only hope. I appreciate that I’m among the very few that believes Magyari wrongly decided because of the need to protect the military urinalysis program. Having had a case in which Dr. Pappa of the A.F. Drug Testing Lab testified on some specific points contradictory to some of the assumptions of the Magyari opinion I’m hopeful there might be some useful language out of M-D. Although as Chief Inspector Wilcox would say, “I’m not sanguine, not sanguine at all.”
Then there is the coram nobis case of Denedo, which will impact military writ practice and some CAAF juridisctional issues.
Here is an item from the FayObserver.com
Why is Ronald Adrin Gray still alive?
Computer search warrant was badly drafted, and it lacked particularity. However, the good faith exception saved the search because the officer sought counsel from the USMJ and AUSA in executing it. United States v. Otero, 2009 U.S. App. LEXIS 9001 (10th Cir. April 28, 2009).
Police who were actually investigating the possibility child porn was on defendant’s computer did not misrepresent what they were looking for when they said credit card fraud, but they really knew that defendant had used his credit card on a child porn website. Possibility of credit card fraud was enough. [HA!] People v. Prinzing, 2009 Ill. App. LEXIS 234 (April 21, 2009).
Court-Martial Trial Practice Blog