U.S. v. King, No. 11-10182 (8-1-12) (en banc per curiam).

A pithy en banc opinion that overrules 9th precedent in light of the Supremes" decision in Samson v. California, 547 US 843, 850 (2006), which holds that "parolees have fewer expectations of privacy than probationers." The 9th had held the standard for probationers and parolees were the same. Is this a defense win? To quote Dan Blank, the AFPD (ND Calif) who won the case:  "Yes, this is absolutely a win for defendants (particularly probationers) in general, and hopefully also for Mr. King in particular. It is now no longer the rule of the Ninth Circuit that a probation search (like a parole search) categorically never requires reasonable suspicion. What new rule will be established on the return to the original merits panel -- (1) that reasonable suspicion is categorically required for probation searches, or (2) that something greater than a hunch but less than reasonable suspicion is categorically required for probation searches, or (3) that there will be a totality of the circumstances review on a case by case basis -- remains to be seen." In any event, this is good news for the defendant.

Congratulations to Dan Blank, AFPD (ND Calif).

Scott v. Ryan, No. 11-99002 (8-1-12) (Per curiam with Kozinski, Farris and Bea)

(Disclosure: This is a Az FPD case).

The petitioner had a history of brain damage, and concrete evidence of organic brain damage. In his federal habeas, he argued that state defense counsel was ineffective for failing to bring this to the attention of the sentencing judge. The petitioner was facing sentencing for the murder of a four year old boy, orchestrated by his mother and involving petitioner and another friend. The district court held that petitioner failed to show prejudice. the 9th affirmed, holding that the district court did not abuse its discretion. Trial defense counsel had argued that the petitioner was duped buy the others, and had a minimal role. This strategy made failure to develop or present evidence of brain damage harmless. The court pointed to petitioner's confession, development of the plan, and subsequent acts. The 9th even held that it would not have impacted his decision not to take a cooperation plea, or other decisions. It would not even had made a difference for mitigation, opined the 9th, because it was a brutal crime.