Habeas Corpus and Civil Commitment for Sexually Violent Predators

Beginning in the 1990’s, many states adopted civil commitment statutes for “sexually violent predators.”  (For background, see my article here.)  Inhabiting a twilight zone between civil law and criminal law, the statutes have put pressure on a variety of legal doctrines.  The Seventh Circuit explored one such area of tension earlier this week in Martin v. Bartow (No. 09-2947).  Specifically, the court clarified the interplay between Wisconsin’s SVP law and the one-year statute of limitations for federal habeas petitions.

Here’s what happened.

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How Qualified Are Judges to Judge Harmlessness?

Earlier this week, Adam Liptak’s “Sidebar” column for the New York Times described the angry reaction of veterans’ groups to the Ninth Circuit’s decision in United States v. Hinkson, 611 F.3d 1098 (2010).  The controversy nicely illustrates a troubling aspect of appellate review of criminal convictions.

Here’s what happened.  A jury convicted Hinkson of solicitation to commit murder.  The alleged solicitee was a military veteran named Swisher, who was the government’s key witness at trial.  Liptak describes Swisher’s testimony this way:

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Federal Judge Opens Door to Use of Preliminary Breath Test Results in Wisconsin

Talk about snatching victory from the jaws of defeat.  Richard Fischer was convicted at trial of an OWI offense and then lost challenges to his conviction in both the Wisconsin Court of Appeals and the Wisconsin Supreme Court.  He petitioned for habeas relief in the Eastern District of Wisconsin, but the deference to state-court decisions that is required by the Antiterrorism and Effective Death Penalty Act means that a habeas petition can only generously be characterized as a longshot.  Last week, however, U.S. Magistrate Judge Aaron Goodstein granted Fischer’s petition (Case No. 10-C-553, Sept. 29, 2010).  In so doing, Judge Goodstein ruled that Wisconsin’s statutory ban on the use of preliminary breath test evidence at trial had been applied in violation of Fisher’s constitutional right to present a defense.   Continue reading “Federal Judge Opens Door to Use of Preliminary Breath Test Results in Wisconsin”

Upcoming SCOTUS Oral Arguments

With the new term Supreme Court term kicking off next week, I’ve been previewing the upcoming oral arguments.  Here are the cases I am especially interested in following:

United States v. Abbott (09-479) & Gould v. United States (09-7073): is a defendant eligible for the mandatory minimum of 18 U.S.C. § 924(c) when he is also subject to a greater mandatory minimum for a different count of conviction charging a different offense?

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The ACCA Saga Continues

The U.S. Supreme Court granted cert today in several interesting new cases.  As I noted here, there has been a great deal of appellate litigation over the past couple years as to what counts as a “violent felony” for purposes of triggering the fifteen-year mandatory minimum of the Armed Career Criminal Act.  The Supreme Court initiated this period of ferment with its 2008 decision in Begay v. United States (see my commentary on Begay here).  The Court will now be returning to the issue in Sykes v. United States (No. 09-11311).  The specific question is whether using a vehicle while fleeing from a law enforcement officer constitutes a “violent felony.”

The other new case that I will have a particular interest in following is Freeman v. United States (No. 09-10245).  The case involves a defendant who pled guilty under Fed. R. Crim. P. 11(c)(1)(C) and thereby agreed to a specific sentence or guidelines range.  The applicable sentencing range was subsequently reduced by the Sentencing Commission.  The question now is whether the plea agreement disqualifies the defendant from taking advantage of the reduced range under 18 U.S.C. § 3582(c)(2).