Plea Negotiations And Waivers: A Reminder
The Fifth Circuit started 2019 with a reminder to counsel. In United States v. Hicks, No. 17-51101 (5th Cir. Jan. 2, 2019) (unpublished), the court cautioned counsel: “pursuing an appeal contrary to a valid waiver and without responding to the Government’s invocation of the waiver is a needless waste of judicial resources and could result in […]
Void For Vagueness: Constitutional Issues Raised By The Texas Statutory-Rape Sections
In the next few weeks, we will explore the constitutional infirmities of Texas Penal Code §§ 22.011(a)(2) and (c)(1), which are unconstitutionally vague on their face because they fail to specify the necessary mens rea. Under § 22.011(a)(2), it is a crime to “intentionally and knowingly” commit certain sexual acts with a “child.” Section 22.011(c)(1) […]
Rehaif May Mean A New Take On Reading Statutes, One That Could Call For Revisiting Old Perceptions Of Mens Rea For Texas Statutory Rape
Last week, we discussed certain constitutional issues raised by the Texas statutory-rape provisions. Timing here seems especially fitting given the U.S. Supreme Court’s grant of certiorari in Rehaif v. United States, No. 17-9560, on January 11, 2019. As the petitioner in Rehaif couched the issue, that case involves the question of “Whether the ‘knowingly’ provision […]
Another Look At Rehaif, Justice Gorsuch’s Jurisprudence, And Mens Rea
Earlier this week, we discussed the U.S. Supreme Court’s very recent grant of certiorari in Rehaif v. United States, No. 17-9560. In his petition for cert, Mr. Rehaif relied heavily on then-Judge Gorsuch’s concurrence in United States v. Games-Perez, 667 F.3d 1136 (10th Cir. 2012). In that concurrence, then-Judge Gorsuch pointed out that “just because […]
Mens Rea: Returning To Texas Statutory Rape
Our discussion of mens rea started out with a brief exploration of statutory rape and Texas case law. Let’s go back to that context for a few posts. After the Texas Court of Criminal Appeals announced its decision in Fleming v. State, 441 S.W.3d 253 (Tex. Crim. App. 2014), which we discussed in this blog […]
Further Examination Of The Evolution Of Mens Rea Concepts In The Context Of Statutory Rape
We’ve been considering the evolution of concepts of mens rea in the context of statutory rape, especially as that offense is defined in Texas. In our last post, we started examining the cert petition that arose out of the decision in Fleming v. State, 441 S.W.3d 253 (Tex. Crim. App. 2014). You can read the […]
Timbs, Fines, And The 8th Amendment
Timbs v. Indiana, No. 17-1091 (U.S. Feb. 20, 2019). So now we know: The Eighth Amendment’s Excessive Fines Clause is an “incorporated” protection applicable to the states under the Fourteenth Amendment’s Due Process Clause. Yesterday, the Supreme Court decided Timbs v. Indiana, letting us know that the excessive-fines clause is “‘fundamental to our scheme of […]
Notices Of Appeal, Appellate Waivers, And Effective Assistance: Scotus Gives Us Garza V. Idaho And Another Reminder To File Those Noas
Last week, the Supreme Court decided Garza v. Idaho, No. 17-1026, giving defendants with appellate waivers a point on the scoreboard. In Roe v. Flores-Ortega, 528 U. S. 470 (2000), the Court said that prejudice is presumed when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued. A […]
Does The Insanity Defense Carry A Constitutional Dimension?
Today (March 18, 2018), the Supreme Court granted cert in Kahler v. Kansas to consider whether the Eighth and Fourteenth Amendments allow states to eliminate the insanity defense. At this time, Kansas and four other states (Alaska, Idaho, Montana, and Utah) do not recognize a defense to criminal liability involving mental disease precluding knowledge that […]
From A Practical Perspective, What Could Gamble Mean In The Supervised-Release Context?
With Kahler and the insanity defense, it seems fairly straightforward to see how a Supreme Court decision favorable to the petitioner could affect jurisprudence going forward: states would not have the option of eroding/eliminating the insanity defense. A decision favorable to the petitioner in Gamble would likewise have constitutional dimensions obvious from its main issue, […]