McDaniel v. Brown SCOTUS Preview:  On SCOTUSblog, Erica Goldberg reports on McDaniel v. Brown, a criminal case that the Supreme Court will hear on October 13th.  Brown involves the brutal rape of a nine-year-old girl in Carlin, Nevada. While her mother was at a local bar, "Jane Doe" was raped in her home by an identified assailant.  When she was interviewed at the hospital Jane described her attacker as resembling Troy Brown, and Brown was eventually tried in state court.  During the trial, a DNA expert testified for the prosecution.  The expert had tested a sample from the victim's underwear using Restriction Fragment Length Polymorphism (RFLP) analysis, and testified to a conservative estimate that the chance that a person chosen at random would match the profile was one in three million.  Brown was convicted and sentenced to life.  As Goldberg points out, the expert's testimony is "at the heart of McDaniel v. Brown."  After state courts affirmed his conviction, Brown filed a federal habeas petition and the district court granted relief.  The district court permitted petitioner Brown to expand the record with an affidavit from another DNA expert, who criticized the testimony of the state's DNA expert in response to a question by the prosecutor but not the conclusion in her main testimony.  The district court granted relief, and the Ninth Circuit affirmed.  The Supreme Court granted certiorari in January 2009.  In its merits brief, the State argued that a federal habeas court must limit its consideration to evidence presented at trial when determining whether evidence is insufficient as a matter of law.  It argued that a habeas court cannot consider evidence outside of the trial record in assessing a sufficiency claim.  The State's brief also emphasizes that based on the evidence, it is highly likely that Troy Brown, and not one of his brothers, is guilty.  Brown's merit brief raises an entirely new argument to the Supreme Court, apparently recognizing that the the Ninth Circuit's sufficiency analysis and relief were seriously flawed.  He argues that the Ninth Circuit must have been conducting due process analysis instead of an assessment of the sufficiency of the evidence, and argues that the questions presented (pertaining to a sufficiency-of-the-evidence analysis) were not relevant.  He asked that the judgment be remanded for the Ninth Circuit to clarify its decision.

  Unfortunately, a couple of important points are missing or only implicit in Goldberg's summary. To begin, Goldberg's description of Brown as a "potentially innocent defendant" is a stretch. The chance of his brother matching the profile is low, and if he did that fact could easily be confirmed by just testing the brother.  Second, the DNA evidence remains powerful even considering the issues raised by the defendant's expert. This evidence alone excludes all unrelated suspects to a near certainty and excludes Brown's brother to a high degree of confidence. Third, the defendant is taking the audacious step of trying to introduce an entirely new theory for the first time in his brief on the merits in the Supreme Court. The notion that the Ninth Circuit "must have been" doing an analysis different from the one it plainly said it was doing is nonsense. Should be an interesting oral argument.
 
  CJLF also filed a brief in Brown, available here.  Our brief had to be filed before the defendant's, unfortunately, so we were not able to discuss the defendant's change of theory, but the state does so in its reply brief.

Guilty Plea Ends "One of the Largest" Identity Theft Prosecution:  At Blog of Legal Times, Mike Scarcella reports that Albert Gonzalez, 28, a one-time Secret Service informant, has agreed to plead guilty in U.S. District Court for the District of Massachusetts next month. (USDoJ information on United States v. Gonzalez is available here.)  Gonzalez allegedly participated in a conspiracy that netted more than 40 million credit and debit card accounts from at least nine big time corporations, including Barnes & Noble, Sports Authority and, TJX Companies.  TJX, which owns discount clothing stores T.J. Maxx and Marshalls, has claimed more than $130 million in losses stemming from the intrusion.  In the agreement, Gonzalez also agreed to plead guilty to charges brought in the U.S. District Court for the Eastern District of New York.  Gonzalez was indicted in New York in May 2008 for allegedly breaking into the computer system of Dave & Buster's restaurant chain. He agreed to serve 15 to 25 years for offenses.  Scarcella reports the sentence will run concurrent to any sentence that is imposed in a case pending in New Jersey.  Scarcella also fills readers in on some interesting facts of the case.  For example, Prosecutors have fought for restrictions on what evidence Gonzalez and his legal team could see, because the USDoJ and Secret Service created new technology--spending $150,000 at Carnegie Mellon University in Pittsburgh for a secure database--to hold the billions of files containing names, passwords, account numbers, and corporate network data that make up the bulk of electronic evidence being gathered in the case. Lawyers for the defrauded companies have encouraged these restrictions. Lawyers for TJX told a judge that allowing Gonzalez access to its trade secrets could expose the company to further computer attacks.

Conference on the Philosophical Foundations of Criminal Law:  For those who will be in or around Rutgers School of Law-Newark on September 25-26th, CrimProf Blog has posted the schedule for a conference entitled "Philosophical Foundations of Criminal Law."  The post informs that the papers presented at the conference will be published by Oxford University Press in a book by the same title.