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Mr. Badger burrows through the known Internets so you don’t have to …

Mike Sacks, back in the saddle, now sallying forth from HuffPost.

Effective Assistance / GPS litigation. Although recent Ohio precedent establishes that GPS surveillance isn’t a “search” or “seizure” under the 4th A warrant requirement, persuasive foreign authority holds to the contrary, namely United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010) – therefore, trial counsel was ineffective in failing to seek suppression, State v. Jefferson, 2011 Ohio 4637, 2011 Ohio App. LEXIS 3849. Note that Wisconsin takes a starkly different analytical approach, State v. Jackson, 2011 WI App ¶10 (“When the law is unsettled, the failure to raise an issue is objectively reasonable and therefore not deficient performance.”). More importantly, and though you wouldn’t know it from Jefferson, cert was granted in Maynard (now: Jones), so notwithstanding that the law in this area is unsettled in Wisconsin, State v. Sveum, 2010 WI 92 ¶3, warrantless GPS tracking ought not go unchallenged. More: Adam Liptak has some fun with, um, GPS-lit (“The precedent is novel. More precisely, the precedent is a novel.”). And Daniel Solove tries to illuminate “a workable approach in the law that isn’t too vague and mush” – shorter Solove: anyone and everyone uses a flashlight but few if any use a GPS device to track someone else. (Given that anyone can get their hands on a GPS locator, you’d want some empirical proof of its usage at a bare minimum. In any event, it’s affixing the thing to someone else’s property without committing a trespass of some sort that, maybe, is problematic.) While we’re on an extrasensory kick: “Using powerful magnets … applied to the forehead so as to impact the functioning of the dorsolateral prefrontal cortex, appears to impact the ease with which a person can lie.” Maybe someday we can dispense with the GPS device and instead just put a powerful magnet to someone’s forehead and ask them where they’ve been.

First Amendment. Loud-music statute not unconstitutionally vague but is unconstitutionally overbroad,  Montgomery v. State, 2011 Fla. App. LEXIS 14662 (9/16/11). Not that it helps Montgomery: “applying the exclusionary rule in this case would deprive the State of the benefit of evidence obtained as a result of the officer’s good faith conduct.”

Fourth Amendment. Suppression granted on passenger-ID search:  although warrantless search of passenger compartment has been upheld, “the Court has never sanctioned a vehicle search simply because there was probable cause to arrest a passenger or because a passenger could not provide identification. The Fourth Amendment requires more.” United States v. Rodgers, 2011 U.S. App. LEXIS 18564 (9th Cir. 9/7/11). CompareState v. Black, 2000 WI App 175 (officer conducting Terry stop may “perform a limited search for identifying papers”).

The ultimate in judicial outsourcing. Not ready for prime time quite yet, however. (Hmm. Maybe we can hasten that day by equipping Watson with a powerful magnet.)

Lawyers behaving badly.

From the academy.

  • Louis J. Virelli III, “The Unconstitutionality of Supreme Court Recusal Standards.” (“This Article … argues that any legislative interference with Supreme Court recusal decisions is an unconstitutional intrusion into the judicial power vested in the Court by Article III of the Constitution.” And Mr. Badger argues that someday we will put a powerful magnet up to the forehead of the judge or justice and simply ask whether they are biased.)
  • David Bernstein, “Lochner and Constitutional Continuity.” (“But despite the calumny heaped on the due process liberty of contract decisions and the Supreme Court Justices who wrote them, modern constitutional jurisprudence implicitly (and sometimes explicitly) draws a great deal from pre-New Deal due process decisions rejecting novel assertions of government power.”) Revisionism in the best sense of the word. Substantive due process is taken entirely for granted, even as Lochner is casually trashed as a reactionary dead-end, but it turns out that you can trace the one to the other.
  • Guy Padraic Hamilton-Smith & Matthew Vogel, “The Ballot as a Bulwark: The Impact of Felony Disenfranchisement on Recidivism.” (“One argument which has never been examined empirically is the notion that disenfranchisement hampers efforts to rehabilitate offenders, which is what this article does.”)
  • Heidi Reamer Anderson, “Funding Gideon’s Promise by Viewing Excessive Caseloads as Conflicts of Interest.” (“Under Sullivan, the most egregious excessive caseload conflicts could be deemed unconstitutional. As a result, courts effectively could require states to do what few legislatures are willing to do on their own – finally provide adequate funding for indigent representation consistent with Gideon’s promise.”)
  • Michael O’Hear, “New Evidence That Registration for Juvenile Sex Offenders Is a Bad Idea.” (“At a minimum, the study suggests that federal registration criteria are drawing arbitrary distinctions among juvenile sex offenders: those who have to register are no more dangerous than those who do not.”)
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