Law Commons^™

The Hallmark Of A Champion—Or Not, Robert Sanger

Robert M. Sanger

Two decisions that just came down, one from the United States Supreme Court and the other from the California Supreme Court. The former is Hall v. Florida and the latter is In re Champion on Habeas Corpus. The Hall and Champion cases, although they do not cite each other, both discuss significant issues with regard to who is eligible for execution under the Atkins decision.

Hall and Champion perpetuate the myth that capital punishment can be imposed accurately and consistently. Additionally, both cases contain serious errors in interpreting science while suggesting that life and death decisions can be based on …

Shredded Fish Redux, Robert Sanger

Robert M. Sanger

The Yates case, in which certiorari had been granted to the United States Court of Appeals for the Eleventh Circuit had been discussed in a previous column of Criminal Justice. The article was entitled “Shredded Fish” because the sea captain in Yates was prosecuted under the document shredding provisions of the Sarbanes-Oxley Act of 2002 for destroying fish. That case has now been decided by the United States Supreme Court in Yates v. United States, on February 25, 2015. The case involves the rule of lenity as well as a discussion of overcriminalization.

Science Is Not Waiting For The Courts, Robert Sanger

Robert M. Sanger

The Forensic Science Community and the federal government are moving far beyond the courts in an effort to improve the quality of scientific evidence and expert testimony in the courts. Major events in forensics have caused a top to bottom reconsideration of what should count as expert testimony. Last month, the National Institute of Standards and Technology (NIST) and the federal Department of Justice (DOJ) convened the first set of meetings of the Organization of Scientific Area Committees (OSAC). This is a forward-looking approach to forensic science.

The first OSAC meetings were held on February 16 and 17, 2015, at …

Sentencing Trends For Economic Crime, Robert Sanger

Robert M. Sanger

Economic crime is something that intersects with the work of many practitioners, whether corporate counsel, business lawyers, civil litigators, estate planners, or family lawyers. As many know, the United States Sentencing Guidelines (“Guidelines”) have treated economic crimes with stiff guideline sentences. When the amount of intended loss rises, the sentences accelerate to the level of being extremely harsh. The United States Sentencing Commission has just published the results of their study of sentencing for economic crimes as applied in practice.The Guidelines have been declared to be advisory by the United States Supreme Court in United States v. Booker, 543 U.S. …

New Criminal Laws For California,, Robert Sanger

Robert M. Sanger

This brief article surveys some of the over 900 new laws that were enacted last year in California. Most of them took effect on January 1, 2015. Some were effective immediately upon signing by the Governor as urgency legislation or as the result of a ballot initiative. Others are phased in with effective dates later in the year.

Full-Scale Intelligence Quotient Test Scores And The Impropriety Of “Ethnic (Or Socio-Economic) Adjustment” In Atkins Cases, Robert Sanger

Robert M. Sanger

After attending this presentation, attendees will gain new information regarding developments in epigenetics which relate to the validity of Full-Scale Intelligence Quotient (FSIQ) scores in determining intellectual disability for the purpose of eligibility of a criminal defendant to be executed if otherwise subject to the death penalty. (Complete Abstract at page 727 of the proceedings: http://www.aafs.org/sites/default/files/2015/2015Proceedings.pdf )

Managing Big Data In Complex Litigation, Robert Sanger

Robert M. Sanger

Any lawyer doing complex litigation, civil or criminal, has confronted what seems like an insurmountable sea of data. Many of us have used computer relational database programs and otherwise fought through the mass of information to prepare to try a case. There have been some advancements in managing data made by law enforcement in recent years to make their investigations manageable. During law enforcement investigations, the goal is somewhat different than that of the lawyer preparing for trial; however, the concepts are useful.

Acpera And What Business Lawyers Need To Know Right Away In An Antitrust Investigation, Robert Sanger

Robert M. Sanger

Just about every practitioner advising businesses needs to be up-to-date on antitrust law. It is all too easy for a person involved in business to make casual comments or engage in what they think is legitimate activity only to find that they are the subject of a federal or state investigation for horizontal or vertical restraint of trade or price fixing, customer allocation, bid-rigging, or some other form of technically prohibited behavior. Blatant willful violations are, understandably, criminal but technical violations are a part of the trend of state and federal overcriminalization. Potential criminal prosecution for technical antitrust violations is …

Juvenile Offenders: Life Without Parole (Lwop), Term Of Years And A Reasonable Opportunity For Release, Robert Sanger

Robert M. Sanger

A juvenile offender (a person who committed an offense before the age of 18 years) can be tried as an adult and will be subject to adult punishments, with some restrictions. Juveniles cannot be executed and they cannot be mandatorily confined to life imprisonment without the possibility of parole. Justice Kagen of the United States Supreme Court stated for a majority of the Court in Miller v. Alabama, that a mandatory life sentence for a juvenile violates the 8th and 14th Amendments to the United States Constitution. In other words, life without hope should be unconstitutional for juveniles.

Prosecutors have …

Empiricism In Daubert And The California Supreme Court In Sargon, Robert Sanger

Robert M. Sanger

California has become a Daubert state. In Sargon v. The University of Southern California, the California Supreme Court held that judges are the “gatekeepers” with regard to expert or scientific evidence in this state, just as has been the case in the federal system (and many other states) since the decision in Daubert. Now that California is avowedly a Daubert state, it is important to understand why courtroom evidence – scientific, expert or, for that matter, otherwise – is properly grounded in empiricism. Empiricism is the theory that knowledge is derived from experience. Understanding this empirical basis for both Daubert …

Government Denial Under Oath – Hidta, Hemisphere And Parallel Construction, Robert Sanger

Robert M. Sanger

In September of last year, the New York Times reported on a remarkable program of the United States Government that involved spying on domestic phone records without a warrant.1 The news had a limited independent impact as it seemed to be lost in the disclosures of Michael Snowden regarding the National Security Administration (NSA), which purportedly was aimed at foreign terrorists but also included domestic targets. Yet, this program, called “Hemisphere,” was authorized by the Office of the President of the United States, Office of Drug Control Policy, under the High Intensity Drug Trafficking Area Program (HIDTA) and it primarily …

Shredded Fish,, Robert Sanger

Robert M. Sanger

There are just too many criminal laws and their proliferation has expanded exponentially over the last few decades. This is overcriminalization. In addition, the jurisdiction of federal authorities under general or vague laws has vastly expanded federal criminal prosecution of people and organizations for what otherwise would not be a crime. This is overfederalization and overcriminalization. In this article we will look at the current litigation before the United States Supreme Court that had directly taken on this controversy. The case of Yates v. United States involves briefing by the parties and by amici curae directly invoking and defending the …

Death Penalty In America -- Recent Pew Study, Robert Sanger

Robert M. Sanger

The Pew Research Center published the results of its 2013 survey in a release dated February 12, 2014. That study has implications for the continuation of the death penalty in America and California, in particular. It also contains some striking results with regard to the position taken by the game theory strategists who argue against discussing the moral issues.

Capital Punishment In Recent Literature -- Jaques Derrida, Robert Sanger

Robert M. Sanger

The University of Chicago Press has just published The Death Penalty, Volume One (The Seminars of Jacques Derrida) translated by Peggy Kamuf. They are the lectures of the late continental philosopher Jacques Derrida (1930-2004) on capital punishment. Derrida is the author of deconstruction (if deconstruction were allowed to have an author) and has a reputation for being, let us say, opaque in his writings.

In his later years, he took up certain legal and political issues in a fashion that seems more intelligible. Particularly, Derrida’s lectures on moral subjects were popular in the United States as well as Europe. The …

The Limits Of Game Theory On Important Legal Issues, Robert Sanger

Robert M. Sanger

Political strategists often talk in terms of targeting the “persuadable middle.” This term is used regarding volatile issues like same-sex marriage, war, or the death penalty. It is a core feature of undergraduate “game theory” classes taught within Economics departments but it is also a concept that has become a staple of political campaign consultants.

The “persuadable middle” concept is severely flawed in practice. Recent scholarly research has shown that the very fact of utilizing economic “game theory” and concepts like the “persuadable middle” has unintended consequences. By staying away from moral discourse in potentially volatile debates and focusing instead …

The Fda And The Ftc Join Forces,, Robert Sanger

Robert M. Sanger

To those of us in the trenches dealing with civil and criminal enforcement of government regulation, it is not surprising that more than one federal agency will join in an investigation. Sometimes this takes the form of a “tag along” where, for instance, the Internal Revenue Service (IRS) may follow up on a Federal Bureau of Investigation (FBI) white collar fraud case to assert the claim that taxes were not paid on the ill-gotten proceeds of the transaction. There are other cases where two federal agencies both attempt to take the lead in an investigation and clash in a “turf” …

The New Rules For Admissibility Of Expert Testimony: Part Ii, Robert Sanger

Robert M. Sanger

As described in the last Criminal Justice column for the Santa Barbara Lawyer magazine, the California Supreme Court’s opinion in Sargon Enterprises v. University of Southern California, 55 Cal. 4th 747, 149 Cal. Rptr. 3d 614 (2012) made it clear that California is now, (and perhaps unsuspectingly has been for some time), a Daubert jurisdiction. This requires the trial court be the “gatekeeper” and make a determination as to the admissibility of scientific or expert testimony and to determine the limits of any testimony, if it is introduced. The Court held that there are essentially three criteria: The first criterion …

The New Rules For Admissibility Of Expert Testimony: Part I, Robert Sanger

Robert M. Sanger

In a previous series of articles for this magazine, I took the position that California really was a Daubert jurisdiction in the sense that Kelly and Frye and thenexisting case law required that the court be the “gatekeeper” and make a determination as to: 1) whether a science (or area of expertise) was a science (or area of expertise); 2) whether the witness was a scientist (or expert); 3) whether the data was reliable; and then, and only then, 4) what a true scientist (or expert) could say based on the science and based on the reliable data. In the …

New Legal Challenge To Guantanamo Confinement, Robert Sanger

Robert M. Sanger

We will discuss in this article a new Petition for Writ of Habeas Corpus filed in the federal court relating to the non-release of detainees held at Guantanamo Bay notwithstanding the order of the Administration for their release. As of this writing, the President of the United States has issued orders releasing at least 40 detainees, including Ahmed Adnan Ajam who is the subject of the new Petition. Ironically, under the National Defense Authorization Act for the Fiscal Years 2011-20131 (“NDAA”), the President is restricted from releasing detainees under the NDAA which was enacted as a partisan rider to defense …

The Admissibility Of Bayesian Likelihood Ratios, Robert Sanger

Robert M. Sanger

As someone once said, “there are lies, damned lies and statistics.” Anyone who has tried a case where statistics are presented to the jury knows how powerful statistics can be. Jurors are generally not versed in statistics and are vulnerable to being misled. Ironically, judges may not be much better at identifying valid statistical analyses as opposed to bogus ones.

In this Criminal Justice column we will look at statistical analysis and its place in the courtroom. We will look at a recent decision of the British Courts and the implications for that type of thinking on American jurisprudence. To …

The Anniversaries Of The Right To Counsel And Thecreation Of The Public Defender’S Office,, Robert Sanger

Robert M. Sanger

There has been much celebration this year of the 50th Anniversary of the Gideon decision1 rendered by the United States Supreme Court in March of 1963. Gideon guaranteed that indigent persons accused of crime would be entitled to representation. It has been said for some time now, that the full promise of Gideon has never been realized. Nevertheless, the right to counsel in criminal cases is an important constitutional right.

2013 also marks the 120th Anniversary of the first public proposal of a public defender system which was introduced in Chicago in 1893. It also marks the 99th anniversary of …

The National Academy Of Sciences And Juvenile Justice, Robert Sanger

Robert M. Sanger

In March of 1863, during the height of the Civil War in the United States, President Abraham Lincoln founded the National Academy of Sciences (NAS). This spring, the NAS celebrated its 150th anniversary. President Barack Obama gave a speech praising the history of the organization and noting its many achievements. The NAS brings together the finest scientific minds to assist the government on scientific matters from the military, to the space program, to education, to medicine, to global warming, to industrial science, to engineering, to cybersecurity.

The National Academy of Sciences also assists the Federal Judicial Center and the Administrative …