Odds and Ends

[Miriam Siefer <Miriam_Siefer@fd.org>]

1.  I have attached a list of training
videos available through www.
fd.org for your viewing pleasure.

2. Challenges to the Residual Clause
of the Armed Career Criminal Statute-  18 USC 924(e):

I am attaching an excellent position
paper on approaching ACCA and Career Offender Predicates.

I am also attaching a sample brief arguing
that the residual clause of the statute is unconstitutionally
vague.

Note, that the Supreme Court has been
struggling with the reach of the residual clause of the ACCA statute
in its determination of whether a particular
felony conviction is a crime of violence as defined in the statute.
(The residual clause is that part of
the statute's definition of violent felony that states " or otherwise
involves conduct 
that presents a serious potential risk
of physical injury to another")
In Sykes v. US, decided last
term, the court ultimately determined that knowing or intentional flight
from a law enforcement officer
by vehicle was a violent felony.  But,
in a dissent, Justice Scalia stated:
        
        As
was perhaps predictable, instead of producing a clarification of the Delphic
        residual
clause, today's opinion produces a fourth ad hoc judgment that
        will
sow further confusion.  Insanity, it has been said, is doing the same
thing
        over
and over again, but expecting different results. Four times is enough.
 We
        should
admit that ACCA's residual provision is a drafting failure and declare
it 
        void
for vagueness.

The Fourth Circuit just issued a lengthy
en banc opinion in an ACCA case, U.S.v Vann.
The issue was whether the North Carolina
Indecent Liberties statute is a crime of 
violence.  The case resulted in
six separate opinions and a per curiam.  At least
two judges suggest that Scalia may well
be right and that 924(e) is unconstitutionally
vague.  
        
3.  Since the Supreme Court issued
its opinions in Neil v. Biggers in 1972 and Manson v. Braithwaite
in 1977 there have been approximately 
2000 studies related to eyewitness identification.
 Recently, the New Jersey Supreme Court issued a 134 page decision
that revises the Supreme Court's 
test for eyewitness identification-
 State v. Larry R. Henderson (A-8-08) (062218),  8/24/11.
note- the opinion requires trial judges
to consider a broader range of factors when determining the reliability
of identifications and approves
more robust use of jury instructions
on how science says various factors affect the reliability of identifications.

The US Supreme Court will address eyewitness
id this term  in Perry v. New Hampshire, No. 10-8974.

     






Miriam L. Siefer
Chief Federal Defender
Legal Aid & Defender Assn
  Federal Defender Office
613 Abbott, 5th Floor
Detroit, MI 48226
313-967-5868  -  Direct Line

Attachment: 20111013145121.pdf
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Attachment: ACCA violent felony pred.pdf
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Attachment: ACCA unconstitutional.pdf
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