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IAC in negotiations

March 19, 2009 | The Law Office of Philip D. Cave

United States v. Pitcher, 05-3182r, 2009 U.S. App. LEXIS 5103 (2d Cir. March 11, 2009). In this case appellant claimed IAC. He claimed on direct appeal that he wouldn't have plead not guilty, but for the overly rosy picture of his chances of success painted by his trial defense counsel. He lost. So he took a habeas petition and succeeded in having the district court vacate the findings and sentence based on IAC. Pitcher v. United States, 371 F. Supp. 2d 246

(E.D.N.Y. 2005).

I may have read too much into the case, but there is an underlying theme that defense counsel may have a duty to strong arm an 'obviously guilty' client into a pretrial agreement. There were issues raised in the collateral attack about the procedures under 28 U.S.C.S. § 2255, which aren't relevant for our story. The points for trial defense counsel are the client who lies, giving a proper assessment of the client's chances based on the facts available, and it's improper to arm-twist a client into accepting a pretrial agreement.

CLE with relevance.

March 18, 2009 | The Law Office of Philip D. Cave

Entitled as a "shameless plug" Mike Navarre is moderating a 1.5 hr CLE tomorrow. Here, shamelessly, is the whole item lifted.

Last chance to register for the on-line ABA-CLE

tomorrow on Criminal Accountability for Civilians in the Battle Space.

Another one.

March 17, 2009 | The Law Office of Philip D. Cave

No. 09-0185/AR. U.S. v. Makisha I. MORTON. CCA 20060458. Review granted on the following issue:

WHETHER, AFTER FINDING THE EVIDENCE FACTUALLY INSUFFICIENT TO SUPPORT A FINDING OF GUILTY TO THE ADDITIONAL CHARGE AND ITS SPECIFICATION (FORGERY), THE ARMY COURT ERRED IN FINDING APPELLANT GUILTY OF A LESSER INCLUDED OFFENSE ON A THEORY NOT PRESENTED TO THE TRIER OF FACT.

The court might consider the resolution in United States v. Thompson, 67 M.J. 106 (C.A.A.F. 2009).

USERRA.

March 17, 2009 | The Law Office of Philip D. Cave

A little off topic, but I thought sufficiently interesting for a military justice audience.

Martha Neil, DOJ Files USERRA Suit Against Indiana Law Firm, ABA Journal Law News Now, 16 March 2009.

Referenced is another: Matthew Whittle, lawsuit involving braswell and former magistrate settled, Goldsboro News-Argus (on-line), 8 March 2009).

Judge OK’s Use of Pepper Spray in (Naval) Police Training

March 16, 2009 | The Law Office of Philip D. Cave

Yes, this is a story of some naval police who sued the DON for using real live "pepper" spray to have realistic training. It's possible these are civilian police employed by DON.

Some articles of interest.

March 16, 2009 | The Law Office of Philip D. Cave

Here are several articles of some interest.

Roger P. Alford, International or Foreign Law as an Interpretive Aid in Supreme Court Jurisprudence, 9(3) Engage 79 (October 2008).

Tom Gede, Kent Scheidegger, Fon Rychlak, The Supreme Court's 21st Century Trajectory in Criminal Cases, 9(3) Engage 44 (October 2008).

On the reliability of “expert” testimony — the ears (don’t) have it.

March 16, 2009 | The Law Office of Philip D. Cave

It app-ears that ear print comparisons have been advocated as a method of identifying a perpetrator. But, it app-ears that the British courts are giving the so-called expert an earful of doubt.

Andre A. Moenssens, Another Ear Print Conviction Reversed! (Prof. Moenssens is one of several law professors to follow on issues of forensics and evidence. A lot more can be found at Forensic-Evidence.com.

Credibility is always an issue.

Private looking or search subject to the Fourth Amendment?

March 15, 2009 | The Law Office of Philip D. Cave

In considering whether conduct of a private citizen is subject to the Fourth Amendment, our court considers "whether the government had knowledge of and acquiesced in the intrusive conduct; whether the

citizen intended to assist law enforcement agents or instead acted to

further his own purposes; and whether the citizen acted at the

Predisposition in child sex sting operations.

March 15, 2009 | The Law Office of Philip D. Cave

"In Internet 'sting' cases such as this," the issue of "what a defendant's state of mind was immediately prior to his contact with a sexual target purporting to be a minor is routinely a serious point of contention. We call the issue one of 'predisposition,' and it is primarily a question of fact." United States v. Curtin, 489 F.3d 935, 951 (9th Cir. 2007) (en banc). Concerning such predisposition, "contextual and circumstantial evidence becomes acutely relevant to a defendant's material state of mind 'prior to his contact' with the object of his sexual attention and . . . such evidence is not only admissible, but may be critical." Id. at 952.

Here, the district court did not err in ruling that the ten images depicting child pornography were fairly attributable to Knowles. Forensic testimony indicated that the ten images at issue were kept in the same "AOL Downloads" folder found on Knowles' laptop as a photo depicting "Sassy13 Sarah" sent to Knowles by FBI Special Agent Brillhart, and that storing images in that folder involved a series of interactive steps requiring the user's management (viz., clicking on "save" to download an image attached to an email into the designated folder). This process contrasted with the routine automatic downloading and temporary "caching" of files on the laptop's hard drive by web browser software without any user participation or choice. (emphasis added.)

Nor did the district court err in ruling that the ten images were relevant to the issue of Knowles' intent, in particular his predisposition for sex with underage girls. The fact that Knowles had saved images of child pornography to his "AOL Downloads" folder tended to show such predisposition, in turn supporting an inference that his intent was to travel to Portland [*4] to attempt to entice a minor to engage in sexual activity. As to Knowles' predisposition, the probative value of these ten images outweighed their potential prejudicial effect, and the district court did not abuse its discretion by admitting them.

Search warrants and staleness – CP cases.

March 14, 2009 | The Law Office of Philip D. Cave

United States v. Smither, No. 09-3-KSF, 2009 U.S. Dist. LEXIS 17231 (E.D. Ky. March 6, 2009), is worth the read for a refresher on challenging search warrants because the information is stale. Those of us who have tried are well aware that it's almost impossible to have a child pornography warrant suppressed for staleness. The author at fourthamendment.com comments.

Most cases just dispose of this argument simply. This opinion explains

it far better. To my knowledge no child porn defendant has won a