Nov

18

Sentences Merit Closer Scrutiny by Appellate Courts

Posted by: Michael M. O'Hear | November 18, 2009 | 1 Comment

I have a new article on SSRN entitled “Appellate Review of Sentences: Reconsidering Deference.”  As the title suggests, I review the standard arguments in favor of the prevailing rubber-stamp approach to appellate review of sentences, and I conclude that the arguments are something short of compelling.  Here is the abstract:
American appellate courts have long resisted calls [...]

Nov

16

Ambiguity Is Ambiguous

Posted by: Michael M. O'Hear | November 16, 2009 | Leave a Comment

In an earlier post, I offered some preliminary thoughts about the Supreme Court’s six criminal statutory interpretation cases last term.  I observed that Justice Scalia’s textualist approach now seems dominant on the Court.  The six opinions thus reflect a great deal of effort to parse the texts of the statutes, and we get a number [...]

Nov

15

Seventh Circuit Criminal Case of the Week: Yes, Eco-Terrorists Are Real Terrorists

Posted by: Michael M. O'Hear | November 15, 2009 | 1 Comment

On the night of July 20, 2000, Katherine Christianson, Bryan Rivera, and two companions damaged or destroyed more than 500 trees at a United States Forest Service facility.  Was it a prank?  A dare?  A harvest for the thneed industry? No, Christianson and Rivera were members of the eco-terrorist group Earth Liberation Front, and their target was the Forest Service’s genetic-engineering [...]

Nov

13

Do the Justices Play Nicely Together?

Posted by: Michael M. O'Hear | November 13, 2009 | 2 Comments

For the second autumn in a row, the federal public defenders here in Milwaukee were kind enough to invite me to speak on the U.S. Supreme Court’s criminal docket, reviewing last term’s cases and previewing the new term.  The event is a great opportunity for me to think about patterns and themes that cut across individual [...]

Nov

7

Seventh Circuit Criminal Case of the Week: If You Own a Gun, Don’t Steal Cable

Posted by: Michael M. O'Hear | November 7, 2009 | 1 Comment

In 2005, Kevin Schultz pled guilty to one count of trafficking in counterfeit telecommunications instruments.  His offense involved modifying telecommunications equipment for the purpose of stealing cable.  His sentence? Two years on probation, including a period of home detention.
Two and a half years after his first conviction, federal agents searched Schultz’s home and found a [...]

Nov

3

Pondering the Wisconsin Supreme Court’s Criminal Docket

Posted by: Michael M. O'Hear | November 3, 2009 | Leave a Comment

Last week, I was delighted to participate in the Conference on the Wisconsin Supreme Court organized by Rick Esenberg.  The panel I moderated reviewed some of the court’s most significant criminal cases last term.  But “most significant” is a relative term, and I don’t think any of the panelists found the court’s recent criminal cases [...]

Nov

3

Drug Courts after Twenty Years: What Next?

Posted by: Michael M. O'Hear | November 3, 2009 | 3 Comments

I’ve been meaning to blog about the interesting new report from the National Association of Criminal Defense Lawyers on drug courts, but alum Tony Cotton (a member of the NACDL Board of Directors) has beaten me to the punch.  (For my own take on drug courts — voicing some of the same concerns as Tony – see [...]

Oct

31

Seventh Circuit Criminal Case of the Week: Of Hearsay and Bootstraps

Posted by: Michael M. O'Hear | October 31, 2009 | 1 Comment

The court staked out no new legal ground in its opinions last week, so I’ll just briefly describe a case that nicely illustrates a classic problem in evidence law.  Based on information provided by a confidential informant, Milwaukee police stopped a Ford Excursion on suspicion of drug activity.  Inside were Marc Cannon (the driver), David Harris (Cannon’s cousin), [...]

Oct

26

Seventh Circuit Criminal Case of the Week: Other Bad Acts and the “Intricately Related” Doctrine

Posted by: Michael M. O'Hear | October 26, 2009 | Leave a Comment

Criminal law and procedure are structured around the act requirement: a defendant is prosecuted for performing a specifically identified unlawful act, the criminal trial is designed to determine whether the defendant actually committed that act, and, once the defendant has been convicted and punished, we commonly say that he has paid his debt to society and should be [...]

Oct

21

Federal Sentencing and the Lack of Theory in Criminal Justice

Posted by: Chris Donovan | October 21, 2009 | 1 Comment

Defendants in federal criminal cases often cooperate with the government to get their sentence reduced, especially when facing an extremely high statutory mandatory minimum (it is not uncommon for federal defendants to face mandatory minimums of ten years or higher).  In these cases, to get below the mandatory minimum, the government must file a motion to [...]

Oct

19

Seventh Circuit Criminal Case of the Week: Good Enough for Government Work

Posted by: Michael M. O'Hear | October 19, 2009 | Leave a Comment

Under 21 U.S.C. § 841(b)(1)(A), certain drug offenders face a mandatory sentence of life imprisonment if they have two prior drug felony convictions.  As befits such a draconian statute, special procedural protections have been adopted to ensure that the mandatory minimum does not take defendants by suprise at sentencing.  Thus, 21 U.S.C. § 851(a)(1) requires [...]

Oct

14

When the Answer is No: Constitutional Protection for Faith Healing?

Posted by: Richard M. Esenberg | October 14, 2009 | 2 Comments

The tragic case of  Kara Neumann highlights one of the problems with robust protection for the free exercise of religion. Kara died of untreated diabetes because her parents chose to pray rather than take her to the doctor. Both have been convicted of second degree reckless homicide. How does their prosecution square with robust protection [...]

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