You are Full of It? A Better Way to Find the Witness Lacked Credibility

posted by Judge_Burke @ 14:15 PM
August 28, 2015

Professor Eugene Volokh had this short piece in the Washington Post recently about the Michigan Court of Appeals decision in Wehbe v. Wehbe:

As a reviewing court, we rely on the trial court to make credibility assessments and we are substantially assisted when the trial court refers to such assessments on the record. However, such references should always be consistent with a court’s duty to treat the parties in a patient, dignified, and courteous manner. Assessments of credibility stated informally in phrases such as “completely full of it” and “full of it up to your eyeballs” lack dignity and courtesy and are of less assistance to this Court, as the tone suggests that the trial court may be motivated by pique rather than an objective credibility determination. We urge the trial court to use more judicious language in the future.



When Sentencing, Watch Your Language

posted by Judge_Burke @ 14:15 PM
August 27, 2015

There is a recent Seventh Circuit case that might best be described as an admonition to “watch your language when sentencing.”  (See United States v. Sandidge.)

In that case, the trial court had imposed several standard and special conditions of supervised release.  The Seventh Circuit vacated all of these conditions because the sentencing court offered no explanation as to their propriety, and conducted no review of the statutory sentencing factors.  The court noted that several of the conditions were too vague, including requirements that Appellant meet “family responsibilities” and “not associate with any persons engaged in criminal activity.”  The court also noted that several conditions were broader than necessary, such as a requirement not to “consume . . . any mood-altering substances.”

The opinion says, in part:

We have previously found that several of those [standard conditions] imposed on Sandidge suffer from fatal degrees of vagueness. See Thompson, 777 F.3d at 375, 376-80. These include, paraphrased, the requirements that Sandidge:

Support his dependents and meet other family responsibilities;

Notify the probation officer at least ten days prior to any change of employment;

Not associate with any persons engaged in criminal activity, and not associate with any person convicted of a felony unless given permission to do so by the probation officer; and

Not frequent places where controlled substances are illegally sold, used, distributed, or administered.

Without further explanation by the court, these conditions are too vague to provide adequate notice to the defendant as to what conduct is prohibited. Under Thompson, should any of these conditions be reimposed, they must be further defined in order to provide Sandidge with proper notice as to what conduct is prohibited.

Likewise, we have previously found that several of the conditions imposed on Sandidge are too broad to meet the statutory requirement that they “involve[ ] no greater deprivation of liberty than is reasonably necessary for the purposes set forth” in the applicable § 3553(a) provisions. See 18 U.S.C. § 3583(d)(2); see also Thompson, 777 F.3d at 375, 376-80. These include, again paraphrased, the conditions that Sandidge:

Answer truthfully all inquiries by the probation officer; and

Permit the probation officer to visit him at any time at home.


Recognition for a Great Public Defender

posted by Judge_Burke @ 14:15 PM
August 26, 2015

Mary Moriarty, chief public defender for Hennepin County public defender office in Minneapolis, Minnesota, has been selected as the 2015 Stephen B. Bright Award recipient from Gideon’s Promise.

Gideon’s Promise is a nonprofit organization that works tirelessly to mobilize and train public defenders to provide the highest quality representation to people unable to afford an attorney.

The Stephen B. Bright Award – whose namesake continues to be one of the nation’s greatest champions for indigent defense in the South and beyond – is given annually to a member of the Gideon’s Promise community who has done the most to help support and drive the organization’s effort to build a movement to transform indigent defense.

“Mary has been a core faculty member for Gideon’s Promise since its inception,” says Jonathan Rapping, founder of Gideon’s Promise and MacArthur Genius Fellow. “She volunteers countless hours training and mentoring our public defenders, and helping develop curriculum. Mary has also been one of our strongest ambassadors. She frequently uses social media, speaking invitations and interview opportunities to raise awareness of Gideon’s Promise’s work and its impact on criminal justice reform. We are proud to give this year’s honor to Mary.”

Recently celebrating her one year anniversary as the head of the Hennepin County public defender office, Moriarty has worked to bring many of the lessons of Gideon’s Promise to her staff. She continuously looks for ways to help build a movement for reform where the need is the greatest and to engage in outreach to build support for our efforts.

To learn more about Gideon’s Promise and the work it is doing, visit, or contact (404) 921-3836.


Thinking About Something Important? Think About Trends.

posted by Judge_Burke @ 16:37 PM
August 25, 2015

Submissions for the 2016 Trends in State Courts are now being accepted.

Trends is the only publication of its kind and enjoys a wide circulation among the state court community. It is distributed in hard copy and electronically.

Please email abstracts of no more than 500 words by October 15, 2015 to Deborah Smith at  Abstracts received after this date are welcome and will be considered for inclusion in our monthly online edition.

Visit the Trends in State Courts website here.


There are Reasons to Eliminate Mandatory Retirement for Judges

posted by Judge_Burke @ 14:15 PM
August 20, 2015

Federal judges have no mandatory retirement, and as a result they can keep working on cases and avoid the disruption a retirement can cause mid-litigation. States frequently have mandatory retirement requirements for judges and, as the ABA Journal article points out, these retirement mandates would make it virtually impossible to have a 93 year-old judge handle a case that has been going on for 44 years.

Forty-four years after then-U.S. District Judge Damon Keith found evidence of housing discrimination by a Detroit area community, the case still isn’t over.

Keith is now 93 years old and a federal appeals judge, and he wants the case wrapped up, the Associated Press reports. Keith still oversees the case despite his elevation to the Cincinnati-based 6th U.S. Circuit Court of Appeals.

According to the AP account, Keith told lawyers during a recent meeting in his office that, “This thing can’t go on … I’m not a quitter.”  Keith added, though, “I just get tired,” and – if the case can’t be resolved soon – another judge will take over.

The community of Hamtramck, Michigan, had resolved the discrimination case with an agreement to offer 200 family housing units, as well as 150 units for senior citizens. The town still hasn’t developed three of the promised houses, and it doesn’t have enough money on hand to fund the construction.

The lawyer representing the civil rights plaintiffs, Michael Barnhart, is seeking a court order to force the city to pay for the remaining units, the Hamtramck Review reported in June.

The city is criticizing $900,000 in legal fees paid to Barnhart over the last four years. According to a legal filing by the city, the money “could have been used to finish the remaining three houses and finally bring an end to this litigation.”

Barnhart refused to comment on litigation matters when contacted by the Hamtramck Review. In court documents, he said dealing with agencies helping Hamtramck meet its housing goal is “complex and difficult.”


Thinking About the Burden of Proof

posted by Judge_Burke @ 14:15 PM
August 19, 2015

Kevin M. Clermont (Cornell Law School) has posted Trial by Traditional Probability, Relative Plausibility, or Belief Function? on SSRN.

Here is the abstract:

Almost incredible is that no one has ever formulated an adequate model for applying the standard of proof. What does the law call for? The usual formulation is that the factfinder must roughly test the finding on a scale of likelihood. So, the finding in a civil case must at least be more likely than not or, for the theoretically adventuresome, more than 50% probable. Yet everyone concedes that this formulation captures neither how human factfinders actually work nor, more surprisingly, how theory tells us that factfinders should work.

An emerging notion that the factfinder should compare the plaintiff’s story to the defendant’s story might be a step forward, but this relative plausibility conjecture has its problems. I contend instead that the mathematical theory of belief functions provides an alternative without those problems, and that the law in fact conforms to this theory. Under it, the standards of proof reveal themselves as instructions for the factfinder to compare the affirmative belief in the finding to any belief in its contradiction, but only after setting aside the range of belief that imperfect evidence leaves uncommitted. Accordingly, rather than requiring a civil case’s elements to exceed 50% or comparing best stories, belief functions focus on whether the perhaps smallish imprecise belief exceeds its smallish imprecise contradiction. Belief functions extend easily to the other standards of proof. Moreover, belief functions nicely clarify the workings of burdens of persuasion and production.


A recently released Pew Research Center report found that:

Over the past year, there has been a substantial rise in the share of Americans — across racial and ethnic groups — who say the country needs to continue making changes to give blacks equal rights with whites, and a growing number of Americans view racism as a big problem in society.

Today, 50 years after the passage of the Voting Rights Act, roughly six-in-ten Americans (59%) say the country needs to continue making changes to achieve racial equality, while 32% say the country has made the changes needed to give blacks equal rights with whites. A year ago — and at previous points in the last six years — public opinion was much more closely divided on this question.

Though a substantial racial divide in these views remains, a majority of whites (53%) now say more needs to be done. Last year, just 39% of whites said this. And although large majorities of African Americans have consistently said that changes must continue to be made to achieve racial equality, the share saying this now (86%) is greater than in the past.


The full report can be found here.


Communication and notes from jurors are fairly common in the United States. The safest (and frequently required) response from the trial judge is give the lawyers a copy of the note, solicit their input and then do what you, as a judge, think is right. But how do other courts deal with this issue?

In Smith v. The Queen [2015] HCA 27, August 5, 2015, the issue of procedural fairness  and disclosure of information by a trial judge arose in the context of a trial before a judge and jury.

In Smith, the accused was charged with the offence of rape. The High Court of Australia noted that after “the jury retired to consider its verdict, the trial judge received a note from the jury which disclosed interim votes of the jury and the voting pattern for each disclosed interim vote. The trial judge told counsel that the note indicated that the jury was not in total agreement but the trial judge did not disclose to counsel those interim votes or interim voting patterns.”

The High Court then asked the following question:

Did the failure of the trial judge to inform counsel of those interim votes and interim voting patterns constitute a denial of procedural fairness?

The High Court provided the following answer:

The answer to that question is no.

Procedural Fairness and a Fair Trial:

The High Court indicated, at paragraph 39, that one “of the requirements of a fair trial is that the accused be accorded procedural fairness.” At paragraph 40, the Court referred to its earlier decision in R v Wise, in which it noted that it “explained one part of procedural fairness in these terms”: “It is an elementary rule, whether in relation to civil or criminal proceedings, that a judge shall not determine any question without affording counsel for each party an opportunity to see and comment upon any material relevant to the issue before the court which is available to the judge and known not to be available to counsel“. (the High Court’s emphasis added)

The High Court of Australia concluded that procedural fairness mandates a judicial obligation to disclose relevant information (at paragraphs 41 and 42):

There are two related aspects of this rule. First, information relevant to issues before the court which is available to the judge and known not to be available to counsel must be disclosed to counsel. The second aspect is that the accused and the prosecution must be afforded an opportunity to make submissions which bear upon questions about the future conduct of the trial. For these reasons, as Chernov JA rightly said in Ucar v Nylex Industrial Products Pty Ltd:

“[T]he general rule [is] that a party should be given the opportunity to respond to matters prejudicial to its interests that are known only to the court and which might be taken into account in the determination of issues that may affect the party’s property, rights or
legitimate expectations.”

It follows that if information made available to a judge is not relevant to an issue before the
court, nor regarded by the judge as relevant, then its non-disclosure to counsel cannot be a denial of procedural fairness.


In the context of this case, the High Court of Australia concluded that the trial judge was not obliged “before determining whether to permit a majority verdict or to discharge the jury to disclose to counsel the precise contents of that note” to counsel “because a jury’s votes can and do change, a statement of what a jury’s votes were at a time prior to verdict is not relevant. It is a statement which adds nothing to the knowledge that the jury is deadlocked or has not yet reached a verdict” (at paragraph 52).




As a few of you know, I am married to Judge Susan Burke.  We serve on the same bench.  The Burlington Free Press recently reported:

Gov. Peter Shumlin is set to make Vermont history by appointing the first husband and wife team to the judiciary.

Vermont Legal Aid lawyer Kirstin Schoonover was named to the Vermont Superior Curt on Wednesday, while the formal announcement about her husband, Brian K. Valentine, as a magistrate judge in the Family Division of Superior Court is due later this week.

Schoonover of Huntington fills the seat left open by the elevation of Judge Harold “Duke” Eaton Jr. of Woodstock to the Vermont Supreme Court.

Valentine will fill the seat left open by the retirement of Magistrate Judge Shelley Gartner. She presided in Chittenden and Orange counties.

Shumlin said his decision is about the quality of the appointments and not making history.


And so…in honor of the newly appointed couple, I am pleased to announce the formation of the National Association Of Married Judges.



Texting While Driving

posted by Judge_Burke @ 14:22 PM
August 12, 2015

Russell L. Weaver and Steven Friedland (University of Louisville – Louis D. Brandeis School of Law and Elon University School of Law) have posted Driving While ‘Intexticated’: Texting, Driving, and Punishment (47 Tex. Tech L. Rev. 101 2014-2015) on SSRN.

Here is the abstract:

In this short article, we argue that texting while driving presents a special danger to society for which preventive solutions are needed. Although a variety of societal responses might be possible, and some other (softer) approaches should generally be preferred (e.g., education), since this is a symposium on homicide, it is appropriate to note that there will be situations when a prosecutor might justifiably (and probably should) bring murder or manslaughter charges against a driver whose texting causes a fatal accident. This article outlines the problems associated with texting, explains the legal basis on which homicide charges might be brought, and suggests some less drastic alternatives for dealing with the problem.