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In considering whether conduct of a private citizen is subject to the Fourth Amendment, our court considers “whether the government had knowledge of and acquiesced in the intrusive conduct; whether the citizen intended to assist law enforcement agents or instead acted to further his own purposes; and whether the citizen acted at the government’s request.”…

“In Internet ‘sting’ cases such as this,” the issue of “what a defendant’s state of mind was immediately prior to his contact with a sexual target purporting to be a minor is routinely a serious point of contention. We call the issue one of ‘predisposition,’ and it is primarily a question of fact.” United States…

United States v. Smither, No. 09-3-KSF, 2009 U.S. Dist. LEXIS 17231 (E.D. Ky. March 6, 2009), is worth the read for a refresher on challenging search warrants because the information is stale. Those of us who have tried are well aware that it’s almost impossible to have a child pornography warrant suppressed for staleness. The…

Kevin Maurer, Wounded soldier’s care probed, FayObserver.com, 11 March 2009. If this report is believed, injured and wounded soldiers in medical holding company’s are disciplined at a higher rate than line company’s. Apparently, it is not an excuse for a failure to go that your prescribed medication for you injury or illness causes you to…

Background on the DP (courtesy of CAAFLog): Since the military death penalty was reinstated in 1984, there have been 15 known military death sentences. Two were set aside in the initial CA’s action. Eight have been set aside on direct appeal. In three of those cases, retrials or resentencing proceedings are still in their very…

Here is one for the what was he thinking category. Eugene Volokh, Lawyer Disbarred for Switching Vote as a Juror Solely in Order To Return To His Busy Law Practice, 11 March 2009. And what else was he thinking? Of course, if Fahy had only remained quiet about his true motivation (something he initially revealed…

Drew Brooks, Kreutzer enters guilty plea, no longer faces death penalty, FayObserver.com, 11 March 2009. Some observations (on the article, and assuming the article is correct). There is no word in the article about how the family is taking this and what role they did or did not play in the negotiations. As we’ve discussed…

You have to love it, Thomas E. Ricks, Throwing money away from the problem, The New ForeignPolicy.com, 9 March 2009. Remember, do not take fees in cash or by check from a client such as this. Get it on plastic, or from a relatives own funds.

The Supreme Court has decided Vermont v. Brillon. The case is a Sixth Amendment speedy trial case. The significant delays in the accused getting to trial were caused by Brillon’s public defender counsel or himself. The bottom line issue is who is accountable for those delays — the government or the defense. Brillon was, to…

Prof. Colin Miller, Can I Get A(n Eye) Witness: 60 Minutes Story Exposes Problems With Eyewitness IDs, Evidence Prof Blog, 9 March 2009. Those of you who watched 60 Minutes last night saw the interesting story, Eyewitness: How Accurate is Visual Memory? And the answer is, “Not very.” The story detailed how Jennifer Thompson misidentified…