Posts

In Gagne v. Booker, 07-1970, the Sixth Circuit faced a challenge to the district court’s grant of defendant’s petition for a writ of habeas corpus in a conviction for criminal sexual misconduct on the ground that trial court’s exclusion of certain evidence of victim’s past sexual conduct violated defendant’s due process rights to present a meaningful defense. In stressing that its holding is fact-based in the extreme, the court wrote: “Under the circumstances present here, the exclusion of evidence of the complainant’s consensual three-way sex with the defendant only a month before the subject incident, in a three-way rape case in which extensive evidence of the victim’s sexual conduct had already been admitted at trial, and where the question of guilt or innocense turned almost entirely on the credibility of the victim’s testimony regarding consent, was an unreasonable application of the principles set forth by the Supreme Court in Crane....

Largely unnoticed in the huge COVID relief bill Congress passed in 2020 was a law intended to finally regulate horse racing in the U.S. The Horseracing Integrity and Safety Act of 2020 did not, however, create uniform rules governing horse racing. Neither did it delegate the promulgation of those rules to a federal agency. Congress instead vested the power to create and enforce rules to a private entity, the Horseracing Integrity and Safety Authority (HISA), under the oversight of the Federal Trade Commission....

Howard v. Clark, No. 08-55340, involved a murder and attempted murder prosecution. The court of appeals affirmed in part the denial of petitioner’s habeas petition, holding that the district court correctly denied petitioner’s claim based on his trial counsel’s failure to call an expert witness on eyewitness identifications. However, the court reversed in part, on the ground that the record was not sufficiently developed to determine whether petitioner was entitled to relief based on his attorney’s allegedly inadequate investigation of the victim....

Confession: We don’t want the individual mandate challenge to end. Sure, we want to know how the Supreme Court will rule on the most controversial provision of the Affordable Care Act, but we recently realized that there will soon be a void in the legal community: we’ll no longer need to daydream about healthcare constitutionality arguments. Alas, the end is nigh. The Supreme Court announced today that the epic, three-day, five-and-a-half hour arguments will be happening March 26-28, 2012....

As we mentioned last week, the Supreme Court’s popularity is waning. A recent Pew Research Center poll showed that only 52 percent of Americans have a favorable view of the Court, its lowest approval rating in a quarter-century. So what’s an aging institution to do when it loses its sex appeal? Why, get a face lift, of course. This week, workers started a nearly two-year Supreme Court renovation project on the building’s marble facade....

Early this month, a death row inmate was exonerated, thanks to a little DNA that was recently uncovered and tested. This was not particularly remarkable – there have been many DNA-based exonerations over the last couple of decades. But the case drew attention because of a passing reference to the crime by Justice Antonin Scalia, who mocked the inmate’s appeal while discussing Justice Blackmun’s famous “tinker with the machinery of death” dissent....

David Cunningham sounds like the kind of person you would want to see locked up in jail for at least 17 years. In 2007, state and federal law enforcement agents nabbed Cunningham in a child-porn file-sharing investigation. He was arrested and charged for receiving, possessing, and distributing the illegal videos. Cunningham pleaded not guilty – claiming the porn wasn’t his – but the court convicted and sentenced him to 210 months in jail on the receiving charge....

The Second Circuit Court of Appeals ruled on Monday that two Queens County prosecutors are entitled to absolute immunity in Karla Giraldo’s civil rights lawsuit. If you read the Post or the Daily News, Giraldo’s name may ring a bell. Giraldo’s boyfriend, former State Senator Hiram Monserrate, brought her to a hospital emergency room in 2008 for treatment. She had a laceration above her left eye that required 20 stitches....

In August, a three-judge panel (despite being divided on the issue) reinstated a lawsuit filed by two Minnesota filmmakers who wish to limit their services based on their religious beliefs. Now, the state officials named in the suit have spoken out, explaining why they will not take their argument to the Supreme Court just yet. In Case You Missed It Carl and Angel Larsen run a videography business out of St....

The Third Circuit recently struck down an attempt by New Jersey to legalize sports betting, holding that the state law conflicts with federal gambling rules. The ruling marks the second time the court has slapped down New Jersey’s attempts to legalize betting. New Jersey has sought for years to allow sports betting, in hopes that letting sports fans put a few bucks down on the home team would liven up the state’s faltering casinos....

For some folks, after a car accident and filing a claim with the other party’s insurance carrier, it can sometimes seem suspiciously easy to get paid back for all your medical bills and property damage. When this unusual phenomenon happens, it is usually because insurance companies have handling basic auto-accident claims down to a science and your claim fit into their model and was easy-peasy (though you may want to get a second opinion from an attorney before signing any settlement agreements)....

See the problem? “The defendant has pleaded guilty to the charges.” Except, this was on the eve of trial. And there would be no trial if he had pleaded guilty. This seems like common sense. Except, as many lawyers have found out, jurors lack common sense. I will now explain the presumption of innocence and the people’s burden of proof. The defendant has pleaded guilty to the charges. The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true....

In a petition for habeas relief from petitioner’s convictions for first degree riot and second degree assault under New York law, denial of the petition is affirmed where the New York courts’ rejection of petitioner’s due process claim and, specifically, his contention that the law did not make it reasonably clear at the relevant time that his conduct was criminal, was not an unreasonable application of clearly established federal law....

Petition for review of an order holding plaintiff statutorily ineligible for a waiver of inadmissibility and dismissing plaintiff’s appeal is denied where the Board of Immigration Appeals’ interpretation of “lawfully resided continuously” as used in Immigration and Nationality Act sec. 212(h) and applied to plaintiff is reasonable, and thus plaintiff is ineligible for a INA sec. 212(h) waiver because he did not lawfully reside continuously in the United States for the disputed period of time....

For those of you who can’t wait for the Supreme Court to get back from summer recess, there’s some good news. No, the Court hasn’t decided to call its vacation off. But it has released the schedule for the first oral arguments of the 2015 term. All told, the Court will hear 11 cases in its first sitting. The topics covered range from relatively mundane to pretty dang interesting. Here’s a quick overview of a few of the best:...

If you’re in business, you better be in the data security business. Even if you don’t transact all of your business online, and even if you don’t even have a website, if you’re processing payments electronically, that data could be at risk. Everything from customer information to proprietary technology can be valuable to hackers, making cybersecurity perhaps your most important investment. Not sure where to get started? Here are five important cybersecurity questions, and where to go for answers....

In a prosecution for illegal reentry into the U.S. following removal, denial of defendant’s motion to suppress is vacated and remanded where the court of appeals could not determine based on the record whether the evidence of defendant’s identity needed to be suppressed in light of the police’s Fourth Amendment violation in searching defendant’s vehicle. Read US v. Pena-Montes, No. 08-2169 Appellate Information Filed December 7, 2009 Judges Opinion by Judge Lucero...

Hollywood was rocked by the recent news that a cinematographer was killed and a director was hurt when legendary actor Alec Baldwin fired what he thought were blanks from a gun while filming a movie. So far, Baldwin is cooperating with an investigation by local authorities in Santa Fe County, New Mexico, the site of the film set. The district attorney is refusing to rule out charges against the actor or anyone else....

If you’re looking for treasure troves of interesting Fourth Amendment issues, it seems like your two go-to crimes are drugs and child pornography. This case from the Seventh Circuit involves the latter. An informant allowed an FBI agent to assume his identity online. The agent corresponded with defendant Michael Borostowski, who offered to provide the agent with child pornography in exchange for a webcam “session” with a child. After receiving the promised pornography, the agent got a warrant to search Borostowski’s Yahoo email account, revealing, shockingly, more pornography!...

In 2003, at the start of the Iraq war, a U.S. Army Sergeant Hasan Akbar turned on his fellow soldiers, tossing three grenades into the tents of the sleeping 101st Airborne Division, then opening fire as the soldiers fled. Two men were killed, 14 wounded. Akbar, who had been suffering from psychiatric problems, was court-martialed and sentenced to death. Now, as Steve Vladeck notes in the Just Security blog, the Supreme Court could soon decide to review his case....