Expert Analysis

• States Can't Ignore Biden Admin Police Misconduct Findings

  

  While the federal government retreats from Biden-era Department of Justice findings of police misconduct, those same findings may have triggered significant legal obligations for state and local prosecutors under the Brady rule, says Matthew Segal at the ACLU.

• Justices' Sentencing Ruling Is More Of A Ripple Than A Wave

  

  The U.S. Supreme Court’s decision last week in Esteras v. U.S., limiting the factors that lower courts may consider in imposing prison sentences for supervised release violations, is symbolically important, but its real-world impact will likely be muted for several reasons, say attorneys at Perkins Coie.

• The Reforms Needed To Fight Sexual Abuse By Prison Staff

  

  Prisoners sexually assaulted by corrections staff, such as the California women who recently won a consent decree against FCI Dublin, often delay reporting out of fear of retaliation by their abusers, but several practical reforms could empower prisoners to disclose abuse while the evidence necessary to indict perpetrators is still available, says Jaehyun Oh at Jacob D. Fuchsberg Law.

• Calif. Protests May Fuel A New Wave Of Excessive Force Suits

  

  The protests in Los Angeles this week may spur a new round of excessive force suits against law enforcement, wading into an underdeveloped area of law being shaped by similar cases filed after Black Lives Matter protests in 2020, and generating crucial precedents in a new age of activism, says Scott Brooks at Levy Firestone.

• Shaping Warrantless Arrest Standard Post-Certiorari Denial

  

  Though the U.S. Supreme Court declined to hear the Gonzalez v. U.S. warrantless arrest case, Justice Sonia Sotomayor's statement regarding the denial suggests that the defense bar should continue pursuing federal court arguments that the Fourth Amendment incorporates an in-the-presence limitation, say attorneys at Sullivan & Cromwell.

• Reading Tea Leaves In High Court's Criminal Law Decisions

  

  The criminal justice decisions the U.S. Supreme Court will announce in the coming weeks will reveal whether last term’s fractured decision-making has continued, an important data point as the justices’ alignment seems to correlate with who benefits from a case’s outcome, says Sharon Fairley at the University of Chicago Law School.

• State Efforts To End Slavery Loophole Are Just The Start

  

  Though several states have changed their constitutions to close the 13th Amendment’s carveout that allows slavery as punishment for a crime, it is now incumbent on the legal profession to transform the amendments into effectuated rights, says Adam Davidson at University of Chicago Law School.

• Court-Involved Supervised Release Shows Promising Results

  

  With questions about supervised release currently before the U.S. Supreme Court, the whole of our criminal justice system should look to a successful court-involved supervised release model created by U.S. District Judge Richard Berman, which provides a blueprint for improving reintegration outcomes post-incarceration, say Carrie Cohen and Savanna Leak at MoFo, and Marjorie Berman at Krantz & Berman.

• The Growing Role Of Wearable Health Tech In Criminal Probes

  

  The use of data from health-tracking devices such as Fitbits and Apple Watches as criminal evidence raises significant constitutional and reliability concerns, and practice tips for defense counsel include questioning the direct correlation between aberrant data and criminal behavior, say attorneys at Barclay Damon.

• 10 Years After Obergefell, Dignity Rights Hang In The Balance

  

  A decade after the U.S. Supreme Court’s ruling in Obergefell v. Hodges, it's clear that the right to equal dignity remains a selectively granted privilege, a stratification that must change with a shift in American legal practice, says Iván Espinoza-Madrigal at Lawyers for Civil Rights.

• What A Federal Kidnapping Case Means For Recovery Agents

  

  A recent Eighth Circuit decision in U.S. v. Lozier reversing a ruling ordering a bounty hunter to face federal kidnapping charges, and ordering a new trial, raises pressing questions on the risks surrounding fugitive recovery and the balance between state and federal authority, says Ken Good at The Good Law Firm.

• 11th Circ. Ruling Shows How AEDPA Limits Habeas Relief

  

  The Eleventh Circuit's recent decision to uphold an Alabama man's death sentence reveals how the Antiterrorism and Effective Death Penalty Act can prevent meaningful review and has eroded the power of habeas corpus petitions by forcing federal courts to pay extraordinary deference to state-level rulings, says Paul Shechtman at Yale Law School.

• Deterring Dubious Prosecutions Could Avoid Pardon Issues

  

  The controversial pardons by former President Joe Biden and President Donald Trump should spur a few key reforms to deter dubious prosecutions, ensuring that the legal system gets it right initially and earns the confidence of all Americans, say Marc Levin and Khalil Cumberbatch at the Council on Criminal Justice.

• Accountant-Owned Law Firms Could Blur Ethical Lines

  

  KPMG’s recent application to open a legal practice in Arizona represents the first overture by an accounting firm to take advantage of the state’s relaxed law firm ownership rules, but enforcing and supervising the practice of law by nonattorneys could prove particularly challenging, says Seth Laver at Goldberg Segalla.

• DC Circ. Cellphone Ruling Upends Law Enforcement Protocol

  

  The D.C. Circuit’s recent U.S. v. Brown decision, holding that forcibly requiring a defendant to unlock his cellphone with his fingerprint violated the Fifth Amendment, has significant implications for law enforcement, and may provide an opportunity for defense lawyers to suppress electronic evidence, says Sarah Sulkowski at Gelber & Santillo.