BLOG BULLETS: The same rule that allows a court to order an independent mental health examination of the defendant if he gives notice of intent to introduce mental health evidence provides that no “fruits” of the examination can be used against the defendant unless he actually ends up introducing the mental health evidence he gave […]

BLOG BULLETS: The government’s right to a mental health examination of the defendant when the defense gives notice of expert testimony about the defendant’s mental health condition under Rule 12.2 is an absolute right only when the notice is of an actual insanity defense; otherwise, the court has discretion to either order or not order […]

BLOG BULLETS: A recent Ninth Circuit case holds that e-mails transmitted over a Wi-Fi network are “electronic transmissions” subject to the requirements of the wiretap statute. The case rejected an argument that an exception for transmissions “readily accessible to the public” applies, so the general requirements for a wiretap such as probable cause, a warrant, […]

BLOG BULLETS: The Attorney General’s memo cautioning against the indiscriminate use of mandatory minimums contains conflicting language about whether it applies only to defendants who plead guilty or also those who go to trial. A recent Human Rights Watch report shows how mandatory minimums are used to coerce defendants into pleading guilty and giving up […]

BLOG BULLETS: Amendments significantly reducing both the drug guidelines and the statutory mandatory minimums are presently being considered by the Sentencing Commission and Congress. An Attorney General memorandum issued in August directs prosecutors not to charge mandatory minimum triggering quantities in cases where they aren’t appropriate and provides guidelines for making that determination. Use the […]

BLOG BULLETS: If your detained client is kept in custody at an overly remote location, consider a Sixth Amendment challenge that this prevents the attorney-client consultation required for effective assistance of counsel. There’s also a statutory argument based on 18 U.S.C. § 3142(i)(3), which requires that a defendant detained without bail “be afforded reasonable opportunity […]

BLOG BULLETS: There are now 16 separate cases approving bond for defendants even though the defendants were in the country illegally. The cases also suggest that an immigration detainer alone has almost no relevance to the detention issue. You can not only argue against detention but can argue that the government isn’t even entitled to […]

BLOG BULLETS: A recent Chief Judge Kozinski dissent from the denial of rehearing en banc decries an “epidemic” of Brady violations. Chief Judge Kozinski also decries an appellate review standard that will often allow convictions to stand despite the epidemic of Brady violations. Use these concerns in pretrial litigation of Brady issues, by arguing that […]

BLOG BULLETS: Treating the guidelines as advisory also means a court can look to the underlying purpose of a guideline in considering whether and how to apply it and can also look to guidelines other than the ones that technically apply. You can use this approach to reconstruct a better and more appropriate guideline for […]

BLOG BULLETS There’s a five-step process you can use to “deconstruct” a guideline. Step 1 is to track the history of the guideline, through Commission reports and other records and through the amendment history of the guidelines. Steps 2, 3, and 4 are to look for analysis and criticism of the guideline in the Commission’s […]