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Blog Scan

Justice Sotomayor Hires Her Clerks:  Tony Mauro reports on Blog of Legal Times that Justice Sotomayor has hired four clerks for the upcoming term, and two of them are Supreme Court clerk veterans.  Justice Sotomayor has hired Jeremy Marwell, Eloise Pasachoff, Lindsey Powell and Robert Yablon help her through the October 2009 term.  Robert Yablon and Lindsey Powell, former clerks of Justice Ginsburg and Justice Stevens, respectively, will be returning to the Court to serve Justice Sotomayor.  Mauro reports that it is common for new Justices to bring on compatriots former clerks "who already know the Court's intricate and sometimes baffling procedures and quirks."  Jeremy Marwell clerked for D.C. Circuit Judge Stephen Williams and is an alum of the Department of Justice Office of Legal Counsel, and Eloise Pasachoff clerked most recently for Second Circuit Judge Robert Katzmann.  Above the Law Blog broke the news Tuesday. 

SCOTUS Preview of Johnson v. U.S.:
  On SCOTUSblog, Natasha Fedder, an Akin Gump Summer Associate, provides a SCOTUS preview of Johnson v. U.S. (08-6925), a case which could decide whether, for purposes of the Armed Career Criminal Act (ACCA), a prior state conviction for battery is in all cases a "violent felony," even when the state's highest court has held that the offense does not include the element the use or threatened use of physical force.  In 2007, Charles Darnell Johnson pleaded guilty to possession of ammunition by a convicted felon.  He had three other violent felony convictions and was sentenced to to 185 months in prison.  He appealed on grounds that federal courts applying the ACCA were bound by the Florida Supreme Court decision State v. HearnsHearns held physical force or violence is not a necessary element of simple battery, and therefore, Johnson argued the crime of battery does not fit the ACCA's definition of "violent" crime as one that "has as an element the use, attempted use, or threatened use of physical force against the person of another."  The Eleventh Circuit rejected the argument. In his brief on the merits, Mr. Johnson frames the issue as whether battery by touching is a violent felony under the ACCA.  He argues the Eleventh Circuit fails to take into account the history of the ACCA, which is rife with testimony indicating that Congress's intent in passing the ACCA was to target the very worst offenders, and not those who commit garden-variety battery by touching.  The government counters with arguments that Florida's definition of battery tracks the common law approach, and finds battery where a person applies force to another person which results in physical injury or offensive touching.  It also argues that the Hearns Court interpreted a state battery statute not at issue in Mr. Johnson's case and materially different from the relevant ACCA provision.  The Court will hear arguments on October 6th.

California's Changes in Felony Murder Doctrine:  At CrimProf Blog, University of San Diego law professor Jean Ramirez discusses two recent California Supreme Court decisions that have limited the reach of the felony murder rule in California.  She writes that in People v. Farley, 46 Cal.4th 1053 (2009), the Court overruled People v. Wilson, 1 Cal.3d 431 (1969), and held that the merger doctrine does not apply to first degree felony murder. The merger doctrine, as this term is used in criminal law, states that lesser included offenses generally merge into the greater offense. Therefore, a person who commits a robbery can not be convicted of both the robbery and the larceny that was part of it.  Wilson had applied the merger doctrine to first degree felony murder based upon a burglary committed with the intent to assault the murder victim. Farley finds Wilson to be in error.  The court reasoned there no ambiguity in Section 189 of the California Penal Code, which defines murder in the course of a burglary as first degree murder.  The court found the language of Section 189 did not support application of the merger doctrine to its terms, and emphasized the legislative prerogative in defining crime and fixing penalties.  Moving on, Professor Ramirez discusses People v. Chun, 45 Cal.4th 1172 (2009), where the court considered the merger doctrine in the context of second degree felony murder and held that a felony merges with the homicide and cannot be the basis of a felony murder instruction when that felony is assaultive in nature.  Chun did not define the felonies that are assaultive in nature, but explained they involve "a threat of immediate violent injury."    

More Rehnquist Papers Released:  Last November, we blogged on the release of a few of Justice Rehnquist papers at the Hoover Institution Archives at Stanford University.  Today, Tony Mauro reports that a second batch - including an extensive compilation of Rehnquist's correspondence with justices and with others as recently as 2005 - has been released.  He has several posts on the papers today, including one on Justice Thomas' oath-taking ceremony, and the former-Chief Justice's correspondence with D.C. Circuit Judge Malcolm Wilkey.   

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