Upcoming Webcast

posted by Judge_Burke @ 18:00 PM
January 16, 2015

Today (at 12 p.m. PST | 1 p.m. MST | 2 p.m. CST | 3 p.m. EST), there will be a jointly sponsored webcast between IAALS and NJC on E-Discovery.  It is available at no cost and will have great information for state court judges.

For more information, and to sign up, go here.


In the United States, there are a lot of judges who get “creative” in trying to deny pretrial jail credit.  Thanks to Judge Wayne Gorman, there is an interesting pretrial jail credit case from Canada:

In R. v. Slack, 2015 ONCA 94, February 11, 2015, the accused was convicted of a series of weapon related offences and sentenced to a period of eight years imprisonment.  In imposing sentence, the trial judge declined to grant the accused an enhanced credit for pre-sentence custody.


The trial judge reached her conclusion “based on the appellant’s institutional conduct.”  The trial judge stated:

The difficulty here is that Mr. Slack has three misconducts in his record during his time in custody: March 20th, 2012, March 12th, 2012 and October 31st, 2012.  Although the circumstances which could give rise to enhanced credit include ineligibility for remission and parole while in custody, the conduct during his custodial time, in my view has caused me not to grant the enhanced credit.  I do not consider enhanced credit necessary to [achieve] a fair sanction.

The accused appealed from the sentence imposed, arguing in part that an enhanced credit should have been provided for the time he spent in pre-sentence custody.


The Ontario Court of Appeal agreed.  It suggested that the Supreme Court of Canada’s decision in R. v. Summers, [2014] 1 S.C.R. 575, “lays to rest any suggestion that the loss of eligibility for early release cannot, standing alone, warrant enhanced credit for pre-sentence custody.”  The Court of Appeal indicated that “the fact of pre-sentence custody is generally sufficient to give rise to an inference that the offender has lost eligibility for parole or early release, thereby justifying enhanced credit.  It then falls to the Crown to challenge this inference, for example, by demonstrating that the offender’s bad conduct while in jail renders it unlikely that he or she will be granted parole or early release.”

The Court of Appeal held that the trial judge erred in denying “enhanced credit for the appellant’s pre-sentence custody based solely on the evidence of the appellant’s institutional misconduct” (at paragraphs 13 and 14):

The appellant’s conduct during pre-sentence detention included three documented incidents of misconduct.  On one occasion, the appellant was charged with possession of contraband when the smell of marijuana was detected coming from his cell, which he occupied with another inmate.  No marijuana was found on the appellant’s person, and he was not seen using the drug.  The remaining two incidents involved a second charge of possession of contraband, and making a gross insult at another person.  There was no other evidence before the sentencing judge concerning the nature of or the circumstances surrounding these two incidents.

The sentencing judge denied enhanced credit for the appellant’s pre-sentence custody based solely on the evidence of the appellant’s institutional misconduct.  And it is here, with respect, that I conclude the sentencing judge fell into error.  In my view, given the nature of the thin record of institutional misconduct by the appellant, it cannot be said that the Crown demonstrated that the appellant’s institutional misconduct would disentitle him to parole or statutory release.

The Court of Appeal concluded that the “evidence of the appellant’s minor misconduct while in pre-sentence custody did not support the inference that his right to statutory release would or could be revoked” (at paragraphs 19 and 20):

In this case, the evidence of the appellant’s institutional misconduct did not reasonably support the inference that he would likely be denied parole or statutory release based on bad conduct.  The limited record before the sentencing judge concerning the appellant’s conduct in jail established only a minor instance of misconduct – the possession of marijuana based on the smell of that drug emanating from a cell occupied by the appellant with another offender.  Nothing in that incident or in the two other generally unparticularized incidents of misconduct established reasonable grounds to believe that the appellant, during the period of his statutory release, would commit an offence of the type envisaged under ss. 129 and 130 of the CCRA.  Nor was the loss of statutory release an available punishment for the appellant’s reported incidents of misconduct.

In short, the evidence of the appellant’s minor misconduct while in pre-sentence custody did not support the inference that his right to statutory release would or could be revoked.  As a result, the refusal of enhanced credit for the appellant’s pre-sentence custody on the ground of his institutional misconduct was unjustifiable and the sentencing judge’s denial of enhanced credit solely on this basis cannot stand.



Wisdom from Richard Zorza: Goals for Serving the Self-Represented

posted by Judge_Burke @ 15:00 PM
March 2, 2015

Richard Zorza is one of the legal system’s most profound thinkers about how we can provide better service to self-represented people.  He may well have had more impact than anyone else in this field. He recently wrote that he had “discovered that Volvo Cars has set a zero death goal for its new cars by 2020″:

Our vision is that no one is killed or injured in a new Volvo by 2020,” the chief of governmental affairs is reported to have sad.  Whether or not they actually achieve the specifics of that goal is less important than the fact that by setting such a goal, and doing so publicly, they change their whole system from thinking day to day, or year to year, to where they really want to be. Interestingly, it turns out that a bit less than 20 years ago Sweden set as a goal that “Nobody should be killed or seriously injured within the road transport system” so this is also an example of corporate culture following governmental policy.

So the obvious question is this:  What similar realistic, but challenging goals could we set for access to justice — goals that would require long term strategic thinking, and that recognize that system problems require systemic solutions.  Different organizations should set such component goals for themselves.

Indeed, Katherine Alteneder of SRLN has already promised here, that:  “The Self-Represented Litigation Network, leading advocates for an accessible and integrated justice system, has made a commitment to help facilitate the development of self-help centers in every state by 2020, and to ignite local and regional dialogues on how to connect self-represented litigants with attorneys providing limited scope services.”

More generally, how about these as such goals:

- No unintentional defaults in our court — no one abandons a case without making an informed decision

- Every case and situation with significant non-lawyer caseload has a plain English and easy to use free online form system

- All judges have been fully trained in handling self-represented cases, including having the opportunity to see themselves on video

- All states have an Access to Justice Commission or Equivalent

- Every jurisdiction has an accessible and functioning referral system for unbundling cases

- Every court has self-help services

- Every state has a funding system for when judges find a right to counsel not covered by existing funding mechanisms

- Every Rules Committee has an expert on self-represented cases.

In the short term, the Justice Index can help us establish, and monitor movement towards, such goals.  But establishment of such goals is clearly in part a national leadership and state partnership function.

I have deliberately avoided listed what should be really the overall goal — no cases wrongly decided because of lack of access help — because that seems too huge — but then Volvo’s goal seems pretty massive from here.


Like I said, Richard Zorza is a profound thinker.


Assisted Suicide in Canada

posted by Judge_Burke @ 16:13 PM
February 27, 2015

Canadian adults in grievous, unending pain have a right to end their life with a doctor’s help, the Supreme Court of Canada has ruled.

The Court explained why it was creating a new constitutional right to autonomy over one’s death in some circumstances:  Those who are severely and irremediably suffering, whether physically or psychologically, “may be condemned to a life of severe and intolerable suffering” by the government’s absolute ban on assisted dying. “A person facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel.”

The unanimous ruling extends constitutional rights into a new realm. The decision was summarized by Judge Wayne Gorman:

In Carter v. Canada (Attorney General), 2015 SCC 5, February 6, 2015, T was diagnosed with a fatal neurodegenerative disease. She challenged the constitutionality of the Criminal Code  provisions prohibiting assistance in dying (section 241(b) of the Criminal Code prohibits anyone from aiding or abetting a person in committing suicide and section 14 of the Criminal Code indicates that no person “is entitled to consent to have death inflicted on him”).

The trial judge found that the prohibition against physician assisted dying violated section 7 of the Charter and was not justified under section 1 of the Charter.  The Crown appealed.

A majority of the British Columbia Court of Appeal allowed the appeal on the ground that the trial judge was bound to follow the Supreme Court of Canada’s decision in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, where a majority of the Court upheld the blanket prohibition on assisted suicide.

An appeal was taken to the Supreme Court of Canada.

The appeal was allowed.  The Supreme Court held that section 241(b) of the Criminal Code  unjustifiably infringes section 7 of the Charter  and was of no force or effect to the extent that it prohibits physician assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

The Supreme Court also held that the prohibition on assisted suicide is, in general, a valid exercise of the federal criminal law power under s. 91(27)  of the Constitution Act, 1867, and it does not impair the protected core of the provincial jurisdiction over health.

Though the constitutionality of sections 14 and 241(b) of the Criminal Code were the main issues in this appeal, from a trial judge’s perspective this decision also raises another interesting legal issue: the application of the doctrine of stare decisis.


The Supreme Court of Canada noted that the “doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system.  It provides certainty while permitting the orderly development of the law in incremental steps.  However, stare decisis is not a straitjacket that condemns the law to stasis.  Trial courts may reconsider settled rulings of higher courts in two situations:  (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate” (Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 42)”

The Supreme Court held that both conditions were met in this case (at paragraphs 46 to 48):

The argument before the trial judge involved a different legal conception of s. 7  than that prevailing when Rodriguez was decided.  In particular, the law relating to the principles of overbreadth and gross disproportionality had materially advanced since Rodriguez.  The majority of this Court in Rodriguez acknowledged the argument that the impugned laws were “over-inclusive” when discussing the principles of fundamental justice (see p. 590).  However, it did not apply the principle of overbreadth as it is currently understood, but instead asked whether the prohibition was “arbitrary or unfair in that it is unrelated to the state’s interest in protecting the vulnerable, and that it lacks a foundation in the legal tradition and societal beliefs which are said to be represented by the prohibition” (p. 595).  By contrast, the law on overbreadth, now explicitly recognized as a principle of fundamental justice, asks whether the law interferes with some conduct that has no connection to the law’s objectives (Bedford, at para. 101).  This different question may lead to a different answer.  The majority’s consideration of overbreadth under s. 1  suffers from the same defect: see Rodriguez, at p. 614.  Finally, the majority in Rodriguez did not consider whether the prohibition was grossly disproportionate.

The matrix of legislative and social facts in this case also differed from the evidence before the Court in Rodriguez.  The majority in Rodriguez relied on evidence of (1) the widespread acceptance of a moral or ethical distinction between passive and active euthanasia (pp. 605-7); (2) the lack of any “halfway measure” that could protect the vulnerable (pp. 613-14); and (3) the “substantial consensus” in Western countries that a blanket prohibition is necessary to protect against the slippery slope (pp. 601-6 and 613).  The record before the trial judge in this case contained evidence that, if accepted, was capable of undermining each of these conclusions (see Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, at para. 136, per Rothstein J.).

While we do not agree with the trial judge that the comments in Hutterian Brethren on the s. 1  proportionality doctrine suffice to justify reconsideration of the s. 15  equality claim, we conclude it was open to the trial judge to reconsider the s. 15  claim as well, given the fundamental change in the facts.


The Rundown: A Report from AJA President Brian MacKenzie

posted by Judge_Burke @ 15:19 PM
February 26, 2015

The Rundown


This is the first release of The Rundown, which will hopefully be a series of broadcasts aimed at explaining some of what the American Judges Association, and I as the president, do on behalf of the members of the association.

Recently I had the opportunity to attend the mid-year meeting of the Conference of Chief Justices which was held in San Antonio, Texas.  The Conference is made up of the all of the State Chief Justices from around the US, and the Chief Justices of the various territories including Guam and the U.S. Virgin Islands. By the way, the Chief Justices of Guam and the Virgin Islands are both great people, and they said to invite all of you to come visit.

Actually, all of the Justices I met were hard working and friendly and while I could not attend every session, their conference was filled with things that might interest you.  Let me simply mention two of them.  The Amicus Review Team met to discuss the conference’s amicus brief filled in the case of Yulee v. the Florida Bar Association. The plaintiff in Yulee, as many of you know, sued to overturn the ban on direct judicial fundraising. The Justices on the committee discussed their brief in support of the Florida ban and possible outcomes including how the ethics rules in all of the states that have elections would have to be changed if the plaintiff prevails.  Those of you in states with judicial elections might want to take a moment to read the transcript of the Supreme Court argument:


William C. Hubbard, the President of the American Bar Association was the keynote speaker for the judicial luncheon. He spoke about the problem of over-incarceration, noting that while the United States has only five percent of the world’s population it has twenty-five percent of the world’s prisoners.  He pointed out that sentencing reform was one of the few places where the ACLU and the Heritage Foundation are in agreement. He argued there is a need to reform the way we sentence defendants. His speech received a warm reception from the Justices. I had a chance to speak with him later at a social event and found him to be quite the southern gentleman.

On the evening of the second day of the conference we attended a special dinner event at the Mission San Jose, known as the “Queen of Missions”.  This Mission is the largest in the United States, and was fully restored by the WPA in the 1930’s. As you can see from the picture, it was a wonderful place for a meal and conversation.

Finally, my wife and I had a chance to enjoy the Riverwalk and to visit the Alamo. There I learned, to my everlasting disappointment, that John Wayne’s movie had it wrong.  If you too want to be disappointed, here is a link telling the actually story of the Alamo:


That is it for now.  I hope to write again soon.  Thanks and be well. Brian MacKenzie


The Death Penalty in Pennsylvania

posted by Judge_Burke @ 15:12 PM
February 25, 2015

The Associated Press reports:

Pennsylvania Gov. Tom Wolf (D) announced that he has placed a moratorium on the state’s death penalty.

Wolf said the moratorium will remain until has reviewed an upcoming report by the Pennsylvania Task Force and Advisory Commission on Capital Punishment, which was established in 2011 to review the death penalty policy.

“This moratorium is in no way an expression of sympathy for the guilty on death row, all of whom have been convicted of committing heinous crimes,” Wolf said in a statement. “This decision is based on a flawed system that has been proven to be an endless cycle of court proceedings as well as ineffective, unjust, and expensive.”

Wolf’s action put the execution of Terrance Williams on hold. Williams, who was convicted of a 1984 murder, was scheduled to be executed on March 4. Williams would have been the first person executed in the state since 1999.

According to the state, Pennsylvania currently has 186 inmates on death row.


Governor Wolf’s full announcement can be found here.


FBI — Hard Truths: Law Enforcement and Race

posted by Judge_Burke @ 15:29 PM
February 24, 2015

The New York Times story about the director of the FBI’s speech about law enforcement began:

The F.B.I. director, James B. Comey, on Thursday delivered an unusually frank speech about the relationship between the police and black people, saying that officers who work in neighborhoods where blacks commit crimes at higher rates develop a cynicism that shades their attitudes about race.

He said that officers — whether they are white or any other race — who are confronted with white men on one side of the street and black men on the other do not view them the same way. The officers develop a mental shortcut that “becomes almost irresistible and maybe even rational by some lights” because of the number of black suspects they have arrested.

“We need to come to grips with the fact that this behavior complicates the relationship between police and the communities they serve,” Mr. Comey said in the speech, at Georgetown University.

While officers should be closely scrutinized, he said, they are “not the root cause of problems in our hardest-hit neighborhoods,” where blacks grow up “in environments lacking role models, adequate education and decent employment.”

“They lack all sorts of opportunities that most of us take for granted,” Mr. Comey said.

Mr. Comey’s speech was unprecedented for an F.B.I. director. Previous directors have limited their public comments about race to civil rights investigations, like those of murders committed by the Ku Klux Klan and how the bureau wiretapped the Rev. Dr. Martin Luther King Jr.


People will listen because of who Mr. Comey is, but we need more people to speak up. The relationship between judges and people of color is also very important – and there are hard truths to be said about that as well

Lack of role models, adequate education and decent employment affect how judges make decisions about bail and sentencing every day. There may well be no panacea for judges to make this a better world, but remembering that the people who appear before us all too often “lack all sorts of opportunities that most of us take for granted” is a decent place to start.

A copy of Mr. Cormey’s remarks can be found here.


Thinking About Court Governance and Kansas

posted by Judge_Burke @ 15:00 PM
February 23, 2015

In her paper, Governance: The Final Frontier, Mary McQueen writes:

This paper suggests that court leaders and their allies may have based reform efforts on incompatible organizational models, which has hindered progress in improving court governance.  Too much attention and energy has been focused on finding ways to emulate in the court environment what appears to work in administering or governing executive branch agencies and private businesses.  This paper argues that court leaders should instead consider what is called a “loosely coupled organization” model for governing courts and look to the processes and mechanisms that the leaders of those organizations use to achieve effective governance.


So, just how loosely coupled should Kansas courts be? Can they be loosely coupled and simultaneously unified?  Recently, the chief judge for the Thirtieth Judicial District in Kansas, Larry T. Solomon, filed suit against the state, arguing that a new law that strips the Kansas Supreme Court of its power to administer the district courts is unconstitutional.

“The people of Kansas ratified an amendment to the Constitution that says the state judiciary would be administered by a unified judicial system,” Matthew Menendez told the Lawrence Journal World. “This law flies in the face of that amendment and could delay justice for all Kansans.” Judge Solomon is represented by the Irigonegaray & Associates, Kaye Scholer LLP, and the Brennan Center for Justice.


Read more in The Wichita Eagle.


Consumer Fraud & Sexual Orientation

posted by Judge_Burke @ 15:00 PM
February 20, 2015

There has been a lot of legal news regarding same sex marriage in the past few weeks, but what about other legal issues that arise out of sexual orientation?  There is an interesting development in New Jersey that thus far has received little attention:


By Martha Neil, ABA Journal

A New Jersey lawsuit against a group that referred individuals to therapists who claimed to be able to help clients change their sexual orientation won’t be tried before this summer.

But a Tuesday ruling by the judge overseeing the case is being hailed by the Southern Poverty Law Center, which brought the suit, as a significant milestone. For the first time, they say, a court has found that therapists who make such claims are committing consumer fraud, reports the New Jersey Advance.

“It is a misrepresentation in violation of the Consumer Fraud Act, in advertising or selling conversion therapy services to describe homosexuality, not as being a normal variation of human sexuality, but as being a mental illness, disease (or) disorder,” wrote Superior Court Judge Peter Bariso Jr.

He also found there is no factual basis for advertising a claimed success rate for such therapy and, in another ruling last week, barred testimony by defense witnesses who planned to describe homosexuality as an illness.

Charles LiMandri of the Freedom of Conscience Defense Fund is representing the defendant, Jews Offering New Alternatives for Healing.

He said he expects JONAH to prevail at trial because the group did not advertise success rates and did not, “in a scientific sense,” claim that being homosexual is a disorder, the Advance reports.

“This is not a situation in which people are forced into something they don’t want to do,” LiMandri said, contending that the plaintiffs in the suit are trying to prevent others from the right to make choices for themselves.

“Americans want people to have the right to free self-determination,” he said. “I believe when the jury hears all the facts, they will ultimately decide in favor of our clients.”



Thinking About Criminal History

posted by Judge_Burke @ 15:06 PM
February 19, 2015

Melissa Hamilton (University of Houston Law Center) has posted Back to the Future: The Influence of Criminal History on Risk Assessment (Berkeley Journal of Criminal Law (Forthcoming)) on SSRN.

Here is the abstract:

Evidence-based practices providing an empirical basis for predicting recidivism risk have become a primary focus across criminal justice decision points. Criminal history measures are the most common and heavily weighted factors in risk assessment tools, yet is such substantial reliance fully justified? The empirical and normative values placed on criminal history enjoy such commendation by criminal justice officials, practitioners, and the public that these practices are rarely questioned. This paper fills the gap by introducing and exploring various issues from legal, scientific, and pragmatic perspectives.

As a general rule, a common assumption is that past behavior dictates an individual’s likely future conduct. This axiom is often applied to criminal behavior, more specifically, in that prior offending is considered a primary driver to predict future recidivism. Criminal justice officials have a long history of formally and informally incorporating risk judgments into a variety of criminal justice decisions, ranging from bail, sentencing, parole, supervisory conditions, and programming. A more contemporary addendum represents empirically informed risk assessment practices that integrate actuarial tools and/or structured professional judgments. Various criminal history measures pervade these newer evidence-based practices as well. Instead of presuming the value and significance of prior crimes in judging future recidivism risk, this Article raises and critically analyzes certain unexpected consequences resulting from the significant reliance upon criminal history in risk assessment judgments. Among the more novel issues addressed include: (1) creating a ratchet effect whereby the same criminal history event can be counted numerous times; (2) resulting in informal, three-strikes types of penalties; (3) counting nonadjudicated criminal behaviors and acquitted conduct; (4) proportionality of punishment; (5) disciplining hypothetical future crime; (6) punishing status; and (7) inadequately accounting for the age-crime curve. In the end, criminal history has a role to play in future risk judgments, but these issues represent unanticipated outcomes that deserve attention.


The Right to Counsel at Bail Determinations

posted by Judge_Burke @ 15:09 PM
February 17, 2015

Charlie Gerstein has posted Plea Bargaining and the Right to Counsel at Bail Determination (Michigan Law Review, Vol. 111, No. 1513, 2013) on SSRN.

Here is the abstract:

A couple million indigent defendants in this country face bail hearings each year, and most of them do so without court-appointed lawyers. In two recent companion cases, Lafler v. Cooper and Missouri v. Frye, the Supreme Court held that the loss of a favorable plea bargain can satisfy the prejudice prong of an ineffective assistance of counsel claim. If the Constitution requires effective assistance of counsel to protect plea bargains, it requires the presence of counsel at proceedings that have the capacity to prejudice those bargains. Pretrial detention has the capacity to prejudice a plea bargain because a defendant held on bail will plead guilty when faced with any deal that promises he will serve less time than he expects to wait in jail. Because a bad outcome at a bail hearing can prejudice the defendant in subsequent plea bargaining, bail is now a critical stage.