Law Commons^™

Brown V. Eighth Judicial Dist. Ct, 133 Nev. Adv. Op. 113 (December 28, 2017, Ebeth Rocio Palafox

Nevada Supreme Court Summaries

The Court clarified the definition of an indigent person and the demonstration of need sufficient required for an indigent person’s request for defense services. The Court additionally held that Widdis v. Second Judicial Dist. Court does not require an indigent defendant to request a sum certain before the consideration or granting of a motion for defense services at public expense.

It's Still Too Easy To Push Blacks, Minorities Off Of Juries, Jeffrey Bellin

Popular Media

No abstract provided.

Doe V. State Ex Rel. Legislature Of The 77th Session, 133 Nev. Adv. Op. 93 (Dec. 7, 2017), Shady Sirsy

Nevada Supreme Court Summaries

The Nevada Supreme Court held that (1) a medical marijuana registry in Nevada does not encroach upon a medical marijuana user’s fundamental right; (2) the registry is rationally related to legitimate state interests beneficial to the public; and (3) the registry does not implicate a registrant’s right against self-incrimination.

Policy Paper: The Need To Enhance Victims’ Rights In The Florida Constitution To Fully Protect Crime Victims’ Rights, Paul Cassell, Margaret Garvin

Utah Law Faculty Scholarship

Given the emerging consensus concerning victims' rights as reflected in many state constitutions as well as in federal law, Florida should not simply rest on the nearly thirty-year-old provison currently in its constitution. Instead, Florida should, through its established and recognized procedures, expand the protections contained in its provision to cover the rights reflected in provisions enacted across the country and reflected in Marsy's Law.

Collins V. State, 133 Nev. Adv. Op. 88 (Nov. 22, 2017), Casey Lee

Nevada Supreme Court Summaries

The court determined that (1) the district court may constitutionally remove a criminal defendant from the courtroom for disrupting courtroom procedure, (2) a defendant does not have the right to appear at trial in shackles, (3) testimony about a detective’s investigation leading to the defendant’s arrest is not opinion about the defendant’s guilt, (4) the district court may decide not to instruct a jury on a lesser-included offense if no evidence on the record establishes an element of that offense, and (5) a specific cause of death is not required to find that a person’s death was caused by criminal …

Farmer V. State, 133 Nev. Adv. Op. 86 (Nov. 16, 2017), Maliq Kendricks

Nevada Supreme Court Summaries

The Nevada Supreme Court determined that (1) Under NRS 173.115(2), separate offenses may be joined against a defendant when they are committed as parts of a common scheme where the defendant’s separate crimes share features idiosyncratic in character; and (2) under NRS 174.165(1), joinder is proper in situations where a defendant commits similar offenses in separate instances.

City Of Las Vegas V. Eighth Judicial Dist. Court, 133 Nev. Adv. Op. 82 (Nov. 16, 2017), Jocelyn Murphy

Nevada Supreme Court Summaries

(1) The Court held the district court’s order was “contrary to the evidence” because the record was not sufficient to determine that any unpreserved issues were “plain” error. (2) The court also determined that NRS 50.155(1) does not presently bar witnesses from communicating outside of the courtroom about topics other than witness testimony when the witness exclusion rule is in effect.

Defense Counsel And Public Defence, Eve Brensike Primus

Book Chapters

Public-defense delivery systems nationwide are grossly inadequate. Public defenders are forced to handle caseloads that no one could effectively manage. They often have no funding for investigation or expert assistance. They aren’t adequately trained, and there is little to no oversight of their work. In many jurisdictions, the public-defense function is not sufficiently independent of the judiciary or the elected branches to allow for zealous representation. The result is an assembly line into prison, mostly for poor people of color, with little check on the reliability or fairness of the process. Innocent people are convicted, precious resources are wasted, and …

Sweat V. Eighth Judicial Dist. Court, 133 Nev. Adv. Op. 76 (October 5, 2017), Shannon Zahm

Nevada Supreme Court Summaries

The Double Jeopardy Clause does not protect a defendant from prosecution of any original charges when the defendant accepts a plea agreement for a lesser-included offense and then fails to comply with all the terms of the agreement. The Court ultimately determined that a defendant waives his double jeopardy rights when he pleads guilty and fails to comply with the remaining terms of the agreement.

Williams V. State Dep’T Of Corr., 133 Nev. Adv. Op. 75 (Oct. 5, 2017), Xheni Ristani

Nevada Supreme Court Summaries

The Nevada Supreme Court considered whether an offender must serve the minimum term of his or her sentence before any credits earned pursuant to the Credits statute apply to eligibility for parole. The Court disagreed with this argument and held that credits earned can factor-in for parole eligibility if the offender was sentenced under a state that requires a minimum term but does not explicitly mention parole eligibility.

Johnson V. State, 133 Nev. Adv. Op. 73 (Oct. 5, 2017) (En Banc), Ebeth Rocio Palafox

Nevada Supreme Court Summaries

When the Court reverses a death sentence on direct appeal and remands for a new penalty hearing, there is no longer a final judgment that triggers the one-year period set forth in NRS 34.726(1) for filing a post-conviction petition for a writ of habeas corpus.

Left Behind: How The Absence Of A Federal Vacatur Law Disadvantages Survivors Of Human Trafficking, Jessica Emerson, Alison Aminzadeh

All Faculty Scholarship

After a hamstring injury in October of 2004 forced her to surrender her athletic scholarship at St. John's University, Shamere McKenzie chose to spend her winter break working in order to save the money she needed to pay the remainder of her tuition. In January of 2005, Shamere met a man named Corey Davis, who expressed an interest in dating her. After getting to know him for several weeks, she eventually shared with him the challenges she was having earning the money she needed to continue her enrollment in college. Davis encouraged her to consider exotic dancing as a way …

The Miranda Custody Requirement And Juveniles, Paul Marcus

Faculty Publications

Concerns about the interrogation process and the ability of minors to navigate the criminal justice system often intersect. The impact of the age of juveniles can be seen in a variety of judicial decisions, most markedly those dealing with punishment. But judicial concern for juveniles goes well beyond sentencing. The interrogation process raises especially grave fears.

Since the Supreme Court issued its landmark ruling in Miranda v. Arizona disallowing compelled inculpatory statements by criminal suspects and defendants, there has been concern as to whether juveniles fully understand and appreciate their rights as articulated in Miranda and based in the Fifth …

Terry V. Ohio And The (Un)Forgettable Frisk, Seth W. Stoughton

Faculty Publications

No abstract provided.

Is Having Too Many Aggravating Factors The Same As Having None At All?: A Comment On The Hidalgo Cert. Petition, Chad Flanders

All Faculty Scholarship

While the Court does not dispute that at first blush the defendant's argument appears logical, it is disturbed by the prospect of how one determines the point at which the number of aggravating circumstances causes the death penalty statute to be generally unconstitutional. Is the Court to engage in some mathematical calculation as to who might be covered by the statute and who is not; and if so, what would be reasonable and logical factors to include in the formula? Can the Court arbitrarily declare that fifty aggravating circumstances is too many but forty-nine is permissible? Even assuming one could …

African Americans And Punishment For Crime: A Critique Of Mainstream And Neoliberal Discourses, Jason M. Williams, Nishaun Tarae Battle

Department of Justice Studies Faculty Scholarship and Creative Works

Understandings of punishment within the criminological enterprise have failed to capture the nuances associated with experiencing punishment. Moreover, mainstream academic discourses are inherently anachronistic in their conclusions on punishment, thus leaving significant gaps to be filled. One such gap is that of racialized history. This article attempts to make sense of punishment discourses (past and present) by situating them in their proper context. We argue that punishment, in particular for Blacks, is ideological and longstanding. Moreover, we posit that the prolonged punishment of Blacks is hyper manifested in contemporary society via neoliberal logic that has increasingly disabled race as a …

Thomas V. Eighth Judicial Dist. Ct., 133 Nev. Adv. Op. 63 (Sept. 14, 2017), Sara Schreiber

Nevada Supreme Court Summaries

When a defendant requests and is granted a mistrial, jeopardy will attach if a prosecutor’s conduct is so egregious that it results in prejudice to the defendant that cannot be remedied by anything short of a mistrial.

The Constitutional Right To Collateral Post-Conviction Review, Carlos Manuel Vázquez, Stephen I. Vladeck

Georgetown Law Faculty Publications and Other Works

For years, the prevailing academic and judicial wisdom has held that, between them, Congress and the Supreme Court have rendered post- conviction habeas review all but a dead letter. But in its January 2016 decision in Montgomery v. Louisiana, the Supreme Court may have dramatically upended that understanding in holding—for the first time—that there are at least some cases in which the Constitution itself creates a right to collateral post-conviction review, i.e., cases in which a prisoner seeks to enforce retroactively a “new rule” of substantive constitutional law under the familiar doctrine of Teague v. Lane.

On the …

Corporate Deferred Prosecution As Discretionary Injustice, Peter Reilly

Faculty Scholarship

A recent federal appellate court ruling of first impression permits the resolution of allegations of serious corporate criminal wrongdoing by way of an Alternative Dispute Resolution mechanism called Deferred Prosecution, without appropriate judicial review. This Article describes why this ruling is ill-advised, and suggests how other courts might address these same legal issues while arriving at different conclusions. This Article argues that if federal prosecutors are going to continue using Deferred Prosecution Agreements (“DPAs”) in addressing allegations of corporate criminal misconduct, then that discretionary power must be confined and checked through meaningful judicial review. The overriding concern with the appellate …

We Need To Talk About Police Disciplinary Records, Kate Levine

Faculty Publications

In March 2017, an employee of New York’s Civilian Complaint Review Board leaked the disciplinary record of Daniel Pantaleo to the media. Pantaleo, the police officer who choked Eric Garner to death in the video that went public and horrified many citizens, is under federal investigation after a Staten Island grand jury refused to indict him for Garner’s death. Legal Aid Society attorneys had unsuccessfully sought the release of his records in the courts for years. The leak of his records is the public face of an important but rarely discussed issue facing police, legislators, judges, lawyers, and scholars who …

The Constitution Of Police Violence, Alice Ristroph

Faculty Scholarship

No abstract provided.

Jeffries V. State, 133 Nev. Adv. Op. 47 (July 6, 2017), Hayley Cummings

Nevada Supreme Court Summaries

In denying appellant’s motion for a mistrial, the Court held that (1) to prove prosecutorial misconduct, an appellant must show that a prosecutor’s statements resulted in a denial of due process; and (2) to prove juror misconduct, an appellant must show that misconduct occurred and that the misconduct was prejudicial. The Court also clarified Bowman v. State’s applicability by stating that when juror misconduct occurs before the verdict, and defense counsel is aware of the misconduct, it is defense counsel’s responsibility to request an investigation regarding prejudice. Finally, the Court defined the scope of Gonzalez v. State by stating …

Removal Of Women And African-Americans In Jury Selection In South Carolina Capital Cases, 1997- 2012, Ann M. Eisenberg

Faculty Publications

The Supreme Court’s May 2016 decision in Foster v. Chatman involved smoking-gun evidence that the State of Georgia discriminated against African-Americans in jury selection during Foster’s 1987 capital trial. Foster was decided on the thirtieth anniversary of Batson v. Kentucky, the first in the line of cases to prohibit striking prospective jurors on the basis of their race or gender. But the evidence of discrimination for Batson challenges is rarely so obvious and available as it was in Foster.

Where litigants have struggled to produce evidence of discrimination in individual cases, empirical studies have been able to assess jury selection …

The Grand Jury's Role In The Prosecution Of Unjustified Police Killings - Challenges And Solutions, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

One of the most profound tests of trust in a society is when the state must be relied upon to hold itself accountable for violating the rights of the governed. Nowhere is this more true than in the context of the prosecution of law enforcement officers for unjustified violence against civilians. The reasons for this are twofold. First, it should go without saying that police perform a vital - and extremely difficult and dangerous - function, and bravely serve as the prophylactic between civil society and complete chaos. As President Obama recently wrote, "[p]olice officers are the heroic backbone of …

Brioady V. State, 133 Nev. Adv. Op. 41 (Jun. 29, 2017), Maegun Mooso

Nevada Supreme Court Summaries

The Court determined that (1) Appellant’s motion for a new trial complied with the provisions of NRS 176.515(3); and (2) that the district court abused its discretion in denying Appellant’s motion for a new trial based on juror misconduct when it relied on the belief of the Juror who had withheld information during voir dire that she could remain impartial.

Blog Post: Supreme Court Supports Immigrant’S Right To Understand Consequences Of Conviction, Jenny Roberts

Popular Media

The author of the following post about the Supreme Court’s decision in Jae Lee v. United States drafted an amicus brief in the case for several national immigrant rights organizations.

In 2010, Padilla v. Kentucky established that criminal defense lawyers must advise clients about the deportation consequences of a conviction, as part of their duties under the Sixth Amendment right to the effective assistance of counsel. Jose Padilla won in the Supreme Court because his trial lawyer erroneously informed him that he would not be deported after pleading guilty to drug trafficking because he had been in the U.S. for …

Pimentel V. State, 133 Nev. Adv. Op. 31 (June 22, 2017), Ping Chang

Nevada Supreme Court Summaries

The Court determined that (1) the challenge-to-fight theory under NRS 200.450 is not vague and overbroad, (2) all bench conferences must be recorded in criminal trials, (3) self-defense is not available as a defense in a violation of NRS 200.450, and (4) an expert witness cannot impeach defendant’s testimony with statements defendant made during court-ordered psychiatric evaluation.

City Of Henderson V. Amado, 133 Nev. Adv. Op. 36 (June 22, 2017), Andrew Clark

Nevada Supreme Court Summaries

After a prosecutor voluntarily dismisses a criminal case, NRS § 174.085(5)(b) allows that prosecutor to file an amended complaint in the original case with the original case number. Further, a district court acts arbitrarily and capriciously when it requires the prosecutor to file a new complaint with a new case number following voluntary dismissal.

Illegal Marijuana Cultivation On Public Lands: Our Federalism On A Very Bad Trip, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Fueled by increasing demand for marijuana, illegal cultivation of the drug on public lands is causing massive environmental harm. The federal government lacks the resources to wage what would be a difficult and costly campaign to eradicate these illegal grow sites and instead focuses its limited resources on enforcing the federal marijuana ban. Marijuana decriminalization might allow legally grown marijuana to squeeze out its illegal counterpart, but the political likelihood of decriminalization is low. The key is reducing demand for the illegal drug by changing public buying preferences. However, doing this depends on an available legal alternative. This Article discusses …

A Comparative Approach To Counter-Terrorism Legislation And Legal Policy, Paul David Hill Jr

Senior Honors Theses

Since the 9/11 attacks, American legislation and legal policy in regards to classifying and processing captured terrorists has fallen short of being fully effective and lawful. Trial and error by the Bush and Obama administrations has uncovered two key lessons: (1) captured terrorists are not typical prisoners of war and thus their detainment must involve more legal scrutiny than the latter; and (2) captured terrorists are not ordinary criminals and thus the civilian criminal court system, due to constitutional constraints, is not capable of adequately trying every count of terrorism. Other nations, including France and Israel, approach this problem with …