BLOG BULLETS: While courts must still proceed to the third Batson step when a prosecutor does not or cannot offer race-neutral reasons for a challenge, Ninth Circuit case law holds that a failure to offer race-neutral reasons is itself evidence and that it is evidence which will establish purposeful discrimination in most cases. Where a race-neutral reason […]

Forgive me if I digress from the law a little bit today.  Donald Trump has been telling us he’ll “make America great again.”  That requires us to construe “great” – if you’ll let me be a little lawyerly about it. When was the “great” Donald Trump has in mind?  Is it the first part of […]

BLOG BULLETS: Batson requires a three-step inquiry: (1) the defendant must make a prima facie case of discriminatory intent; (2) the state must then offer a race-neutral justification for the challenge; and (3) the trial court must decide whether the defendant has proven purposeful discrimination. The Supreme Court has stated that the requirement of establishing […]

BLOG BULLETS: On the good side, a defendant can raise a Batson challenge even if the defendant isn’t the same race as the juror. On the bad side, Batson applies to defense challenges just like prosecution challenges. In addition, Batson isn’t limited to challenges of minority jurors; it’s been held to apply to any challenge […]

BLOG BULLETS: Batson requires an affirmative intent to discriminate, not just disparate impact. Disparate impact is simply evidence of discrimination. Still, some characteristics may be so closely tied to race that they serve as a surrogate for race under Batson.   NOW THE BLOG: In a related vein to my post last week, how are […]

BLOG BULLETS: Batson clearly prohibits discrimination based on race and gender, under the Supreme Court’s own decisions. Lower courts have rejected the extension of Batson to white ethnic groups such as Irish Americans and Italian Americans and have also rejected its extension to characteristics such as obesity, age, and long hair. The Ninth Circuit did […]

BLOG BULLETS: A recent Ninth Circuit opinion confirms two opinions from several years ago holding that Rule 16’s right to discovery of items “material to preparing the defense” isn’t limited to admissible evidence, sets a very low threshold, and includes evidence that affects choice of defenses, witness preparation, and other such things. The opinion also […]

BLOG BULLETS: Another unpublished Ninth Circuit opinion has held the Arizona drug statutes overbroad and indivisible and so not subject to the modified categorical approach. You can look to this case, along with another similar case earlier this year, for guidance in challenging the divisibility of other states’ drug statutes.   NOW THE BLOG: I’ve […]

BLOG BULLETS: The Ninth Circuit has granted en banc review in a case raising the question of whether the California drug statutes, which have already been held to be overbroad under the categorical approach, are indivisible so the modified categorical approach can’t be used. One issue presented in this case is whether the California sale/transportation […]

BLOG  BULLETS: You can argue for an adjustment to the statutory mandatory minimum for time served on another sentence for related conduct even when the other sentence has been completed. The reasoning in cases from other circuits that reject such an adjustment overlook a parallel guideline provision, brush past the question of what makes up […]