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Friday Linkfest

You spent all week studying Bracketology only to find your picks blown up by a school you never heard of (admit it, you wouldn’t have known  Morehead State from the Morehead Planetarium). You’re finished before you barely got started. You can wallow in self-pity or you can dive into Mr. Badger’s linkfest. Your call.

  • Deportation advice. State v. Sandoval, Wn. S.Ct. No. 82175-5, 3/17/11; maj. op.; conc.1; conc.2. (Counsel’s assurance that deportation consequence of plea-based conviction for rape could be “mitigated” – that is, he wouldn’t be immediately deported but would have time to retain immigration counsel – was inaccurate, therefore etablished deficient performance. Good summary of Padilla. Note disagreement between majority and concurrences as to whether deportation consequences of particular offense were in fact clear; all Justices agree, though, that counsel shouldn’t have given assurance of “mitigation.”)
  • Sentence enhancement (Scotusblog Petition of the Day, raising following question): “Is a defendant’s constitutional right to trial by jury violated when the maximum sentence is increased from six months to twenty years based on a prior adjudication at which a defendant had no right to a jury trial?” Louisiana upheld enhancement premised on a prior conviction of a misdemeanor for which there was no right to jury trial. Hence the prior-conviction exception to Apprendi, rears its head yet again. More on this issue generally, at this post.
  • Collateral attack. “Actual innocence” exception to law of the case and abuse of writ doctrines, 28 U.S.C. §§ 2241, 2255: Alaimalo v. United States (9th Cir. 2011). Alaimalo’s federal conviction for “importing” drugs into California from Guam was upheld on appeal in 1998. Years later, the 9th held that you can’t actually “import” drugs from Guam under that statute. Though Alaimalo had himself  unsuccessfully raised that very argument in prior appeals, the court now says that its new holding makes him “actually innocent” of the offense and grants relief. Not, to be sure, directly relevant to a Wisconsin state case, but among other things might bolster a “sufficient reason” exception to our § 974.06 serial-litigation bar, where an offense of conviction has been deemed unconstitutional. That said, you’d think entitlement to relief in such a circumstance would be non-controversial, e.g., State v. Benzel, 220 Wis. 2d 588, 583 N.W.2d 434 (Ct. App. 1998).
  • Good writing. City of Kenosha v. LIRC, 2010AP883, ¶17, quoting trial court decision (“I observe that the plaintiff’s position demands a very unnatural reading of the statute, and would produce byzantine inquiries and bizarre results.  For example, under that analysis, Captain Leipzig would be covered … for choking on a Doritos chip while watching ‘Desperate Housewives’ on the firehouse television, but not for a sprained ankle sustained while jogging outside the station house in order to maintain his endurance.”).
  • Confrontation. Jesse Norris, Who Can Testify About Lab Results after Melendez-Diaz? The Challenge of Surrogate Testimony to the Confrontation Clause. (Author is a sociology professor at Beloit College, with a law degree from UW.) Colin Miller, Avoiding a Confrontation?: How Courts Have Erred in Finding that Nontestimonial Hearsay is Beyond the Scope of the Bruton Doctrine. Richard Friedman (blog post), Due process confrontation rights.
  • Lawyers behaving badly. State v. Dawson, TN Cr. App, 1/13/11 (posing as “federal defender,” detective instructed defendant to stop cooperating with his appointed counsel; prosecutorial involvement left undiscussed, but interference by state actor leads to relief: “Given the unconscionable behavior of the state actors in this case and the fact that the defendant was essentially prevented from proving prejudice through no fault of his own, we have no trouble concluding that the only appropriate remedy in this case is the dismissal of all the indictments.”). State v. (James Dwayne) Smith, Cal App No. A124895, 2/28/11 (“We conclude the prosecutor committed misconduct by urging the jury to convict defendant to give Jane Doe 1 peace, by blatantly misstating the elements of the crime of torture, and by misrepresenting the concept of reasonable doubt.” Curative instruction fixed the problem, though DA exhorted to “personally address this matter with the prosecutor so that this type of misconduct does not reoccur.”). State v. Parker, So. Car. S.Ct. No. 26940, 3/14/11 (various acts of prosecutorial misconduct held to have goaded defense into making successful motion for mistrial and double jeopardy therefore barred retrial).
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