Wednesday, June 21, 2006

US v. Weber, No. 05-50191 (6-20-06). In an important opinion regarding SR conditions and plethysmographs, the 9th (Berzon) recognizes the highly intrusive nature of the testing, the questionable results, and the deprivation of liberty. To require such a condition, the gov't bears the burden of persuading the court that it advances sentencing needs, such as the protection of the public, the nature of the offense, and the rehabilitation of the defendant. There must be specific findings, and the test targeted. The 9th also found the issue ripe, and not dependent on waiting for the condition itself to be effecuated on SR (this case went up on appeal). The opinion offers a comprehensive look at the test, how it operates, the controversy surreounding it, including no standard scoring, no regulation, sordid history, and the intrusiveness. The 9th decided the issue on statutory grounds.

In a concurrence, Noonan write sthat the test smacks of Orwellian programing. The test requires an intrusion into the mental process of the defendant, who Noonan stresses, is still a person withsome rights, and the requirement that to take the test, the defendnat must masterbate or arouse himself is an unwarranted state condition that is unconstitutional.
Congrats to Maria Stratton and Jonathan Libby of the FPD C.D. Ca office.

[Practice warning: will the gov't now require, as part of a plea, that the defendnat agree to such testing? Can it be challenged, per Noonan, as unconstitional. Is the other test, Abel, really any better?]

US v. Manzo-Jurado, No. 05-30186 (6-20-06). The 9th found a stop lacked reasonable suspicion. Defendant was convicted of misuse of a social security card in a bench trial. On appeal, writing for the panel, Bea found that the circumstances of the stop didn't amount to reasonable suspicion. The defendant was attending a state high school football game in Harve, Montana. He appeared hispanic, was with what appeared a work crew, stood apart, and spoke Spanish with the crew and to the officer. The town was close to the Canadian border. The behavior of the men was not suspicious. These factors didn't trigger reasonable suspicion. In dissent, Gould argues that the experience of the border patrol officer should be given deference in assessing these factors.

The case is a good one for a listing of factors, and past cases of similar situations.
Congrats to Tony Gallagher of the Federal Defenders of Montana.


Anonymous Anonymous said...

What happened to that Federal Public Defender in Las Vegas?

Heard he was beaten really badly while soliciting a prostitute?

Wednesday, June 21, 2006 8:22:00 PM  
Anonymous Anonymous said...

If this was the case heard in Seattle last month, I saw Tony's oral argument. It was excellent.

Sunday, July 02, 2006 8:54:00 AM  

Post a Comment

<< Home