In an interesting and perhaps even landmark decision decided in U.S. v. Kentucky Bar Assn., the Supreme Court of Kentucky unanimously rejected a challenge by federal prosecutors to Kentucky Bar Association Ethics Opinion E-435, which states that the use of ineffective assistance of counsel (IAC) waivers in plea agreements violates Kentucky’s Rules of Professional Conduct.

According to the court, this means that whether in state or federal court in Kentucky, “either defense counsel or prosecutors inserting into plea agreement waivers of collateral attack, including IAC, violates our Rules of Professional Conduct.”  The Court held that “the use of IAC waivers in plea agreements (1) creates a nonwaivable conflict of interest between the defendant and his attorney, (2) operates effectively to limit the attorney’s liability for malpractice, (3) induces, by the prosecutor’s insertion of the waiver into plea agreements, an ethical breach by defense counsel.”

The decision also relies on the McDade-Murtha Amendment (28 USC § 530B), which requires that federal prosecutors abide by state ethics laws. The National Association of Criminal Defense Lawyers (NACDL) advocated for passage of this important check on prosecutorial misconduct and has worked to defeat efforts to repeal or dilute the measure.

The Kentucky Bar Association adopted Ethics Opinion E-435 in late 2012, shortly after NACDL adopted Formal Opinion 12-02, cited in today’s Kentucky Supreme Court decision. The NACDL opinion determined that it is not ethical for a criminal defense lawyer to participate in a plea agreement that bars collateral attacks in the absence of an express exclusion for prospective claims based on ineffective assistance of counsel. The NACDL opinion further states that prosecutors may not ethically propose or require such a waiver. It also describes an attorney’s duty when the government attempts to extract such a waiver.

NACDL filed an important amicus curiae brief joined by numerous legal ethics professors and practitioners in U.S. v. Kentucky Bar Assn. and was also afforded the opportunity to present oral argument before the Supreme Court of Kentucky in this matter.



Domestic Abuse: A Thought Provoking Article

posted by Judge_Burke @ 13:59 PM
September 18, 2014

Thanks to the National Football League, our nation has seen a lot of discussion about domestic violence recently which actually, in the long run, might be good. Surely there are areas the criminal justice system can improve on.

So, when an article is published that suggests we need to be thoughtful about how to improve the criminal justice system, it is worth reading. The Criminal Law Professor’s blog has a posting on an article by Erin R. Collins (New York University School of Law) posted on SSRN:  The Evidentiary Rules of Engagement in the War Against Domestic Violence (New York University Law Review, May 2015, Forthcoming).

Here is the abstract:

Our criminal justice system promises defendants a fair and just adjudication of guilt, regardless of the character of the alleged offense. Yet, from mandatory arrest to “no-drop” prosecution policies, the system’s front-end response to domestic violence reflects the belief that it differs from other crimes in ways that permit or require the adaptation of criminal justice response mechanisms. Although scholars debate whether these differential responses are effective or normatively sound, the scholarship leaves untouched the presumption that, once the adjudicatory phase is underway, the system treats domestic violence offenses like any other crime.

This article reveals that presumption is false. It demonstrates that many jurisdictions have adopted specialized evidence rules that authorize admission of highly persuasive evidence of guilt in domestic violence prosecutions that would be inadmissible in other criminal cases. These jurisdictions unmoor evidence rules from their justificatory principles to accommodate the same iteration of domestic violence exceptionalism that underlies specialized front-end criminal justice policies. The article argues that even though such evidentiary manipulation may be effective in securing convictions, enlisting different evidence rules in our war on domestic violence is unfair to defendants charged with such offenses and undermines the integrity of the criminal justice system. It also harms some of the people the system seeks to protect by reducing the efficacy of the criminal justice intervention and discrediting those complainants who do not support the prosecution.




New Hampshire Joins Other States on Juvenile Offenders

posted by Judge_Burke @ 15:25 PM
September 17, 2014

As first reported in the Sentencing Law & Policy blog, “The New Hampshire Supreme Court in In re Petition of State of New Hampshire, No. 2013-0566 (N.H. Aug. 29, 2014) (available here), declared that the Supreme Court’s Eighth Amendment ruling in Miller v. Alabama should be applied retroactively. Here is how the court’s ruling begins and ends:

In this Rule 11 petition, see Sup. Ct. R. 11, the State appeals the determination of the Superior Court (Smukler, J.) that the rule announced in Miller v. Alabama, 132 S. Ct. 2455 (2012), precluding the imposition of mandatory life-without-the-possibility-of-parole sentences on juvenile offenders under the age of eighteen at the time of their crimes, applies retroactively to the respondents (petitioners in the trial court), Robert Dingman, Eduardo Lopez, Jr., Michael Soto, and Robert Tulloch on collateral review.  We affirm….

We conclude that, pursuant to the Teague framework, the rule announced in Miller constitutes a new substantive rule of law that applies retroactively to cases on collateral review.  Consequently, we find that the respondents are entitled to the retroactive benefit of the Miller rule in post-conviction proceedings.  In light of our decision, we decline to address the respondents’ argument that we should “apply a broader retroactivity doctrine than the federal courts apply.”


Threats to Judicial Independence

posted by Judge_Burke @ 14:00 PM
September 16, 2014

Judicial independence from political interference seems like such an indisputable concept. It gets complicated when dealing with the independence of administrative law judges – as two cases (below) illustrate – and that is decidedly not good.

The Brennan Center reports:

“Gov. Terry Branstad’s [R] administration has changed a high-ranking administrative law judge’s position to ‘at-will’ status — a move that effectively strips the job of protection from political influence,” writes Clark Kauffman for The Des Moines Register. “‘This sets a really dangerous precedent,’ said Rep. Bruce Hunter, a Des Moines Democrat on the House Labor Committee. ‘When you turn this job into an at-will position, the judge is serving at the whim and desires of the governor rather than deciding cases on their merit.’” This marks the second time Branstad has attempted to make the administrative judgeship an at-will position. “In April 2013, the administration notified Joseph Walsh, then the chief administrative law judge at Iowa Workforce Development, that he would soon become an at-will employee. Walsh challenged the move, citing federal labor laws that prohibit such a move to protect the integrity of the judicial process. The administration backed down, but four weeks later included Walsh in a layoff of state workers, citing budgetary reasons. Walsh is now suing the state.”


Meanwhile, the Associated Press reports:

An immigration judge has sued the Justice Department, alleging that an order recusing her from hearing the cases of Iranian immigrants because of her involvement in the Iranian-American community is discriminatory.

Immigration Judge A. Ashley Tabaddor in Los Angeles filed the lawsuit Tuesday in federal court, claiming she was targeted in the 2012 recusal order after she attended the Roundtable with Iranian-American Community Leaders organized by the White House Office of Public Engagement.

Other immigration judges who were active in their religious and ethnic communities had not been subject to a blanket recusal order when Tabaddor, who was born in Iran and participated in dozens of public speaking engagements, was recused, the lawsuit said.

“Unless the agency is prevented from having unbridled power to issue recusal orders against immigration judges, based on their race, national origin, religion or perceived interests, the effect is that immigration judges will be improperly manipulated and intimidated by Justice Department officials, and their decisional independence will be severely threatened,” the suit said.

Kathryn Mattingly, a spokeswoman for the Executive Office for Immigration Review, which oversees the immigration courts, declined to comment on pending litigation or personnel matters. A message left at the Justice Department was not immediately returned.

Tabaddor, a former federal prosecutor, wants the order reversed and to be assigned cases randomly, as is done with other immigration judges. Since the order was issued, she has recused herself from eight cases. Officials did not accuse Tabaddor of bias but issued the order to avoid an appearance of impropriety, the lawsuit said.

Later in 2012, the office sought to recuse an Armenian-American immigration judge from cases involving Armenians if she attended a meeting with the U.S. Ambassador to Armenia, the lawsuit said.

“The whole theory of judges is to be blind,” said Ali Mojdehi, Tabaddor’s lawyer. “You are supposed to be calling balls and strikes without being partial toward who is in front of you, and this sort of order upends that notion that our system is based on.”

Immigration judges are encouraged to engage in civic life and the recusal order violates their right to participate in speaking and educational activities on their own time, the National Association of Immigration Judges said in a statement.

While the government once sought to appoint judges who reflected the country’s racial and ethnic.


The Brandeis Brief on Steriods?

posted by Judge_Burke @ 14:00 PM
September 15, 2014

The Brandeis Brief was a pioneering legal brief, claimed to have been the first in United States legal history to rely more on a compilation of scientific information and social science than on legal citations.

The Brief is named after Supreme Court Justice Louis Brandeis, who presented it in his argument for the 1908 US Supreme Court case, Muller v. Oregon. The Brief was submitted in support of a state law restricting the number of hours women were allowed to work.

The Brandeis Brief consisted of more than 100 pages – only two of which were devoted to legal argument. Are we now in an era of the Brandeis Brief on steroids?

Adam Liptak has an interesting sidebar in The New York Times:

The Supreme Court received more than 80 friend-of-the-court briefs in the Hobby Lobby case. Most of these filings, also called amicus briefs, were dull and repetitive recitations of familiar legal arguments.

Others stood out. They presented fresh, factual information that put the case in a broader context.

The justices are hungry for such data. Their opinions are increasingly studded with citations of facts they learned from amicus briefs.

But this is a perilous trend, said Allison Orr Larsen, a law professor at the College of William and Mary.

“The court is inundated with 11th-hour, untested, advocacy-motivated claims of factual expertise,” she wrote in an article to be published in The Virginia Law Review.

Some of the factual assertions in recent amicus briefs would not pass muster in a high school research paper. But that has not stopped the Supreme Court from relying on them. Recent opinions have cited “facts” from amicus briefs that were backed up by blog posts, emails or nothing at all.

Some amicus briefs are careful and valuable, of course, citing peer-reviewed studies and noting contrary evidence. Others cite more questionable materials.


The full story is here.



Slate: Justices Make Up Facts

posted by Judge_Burke @ 14:49 PM
September 12, 2014

Slate has an interesting commentary which begins:

In 2003, Supreme Court Justice Anthony Kennedy penned a great gay rights opinion in which he ruled that no state may constitutionally criminalize gay sex. The case dealt with two men, John Lawrence and Tyron Garner, who, the court informed us, were arrested while having sex in Lawrence’s apartment. In overturning the conviction, Kennedy slammed the state for degrading the “dignity” of Lawrence and Garner’s intimacy and relationship, describing their sex act as “but one element in a personal bond that is more enduring.”

But there’s a problem with these statements. Lawrence and Garner weren’t really having sex when the police entered the apartment. They weren’t even in a relationship. Kennedy rested his holding on fabrications—but through the power of the court, those fabrications were woven into law.

How could a Supreme Court justice be suckered into believing a set of facts with no bearing in reality? Actually, it happens pretty often. As Adam Liptak’s recent investigation illustrates, many of the justices have rather poorly calibrated bullshit detectors. Justice Samuel Alito recently cited a statistic about employee background checks that is, by most accounts, made up; Kennedy has relied on his intuition to assert that “an increasing number of gang members” are entering prison. Even Justice Stephen Breyer, whose usual fact fixation has led him to affix epically long appendices to multiple opinions, has gotten a little lazy, once citing a statistic that originated on a blog that has since been discontinued.

One possible culprit for the court’s sloppy fact-finding is the sudden profusion of amicus curiae (“friend of the court”) briefs. These briefs, written by third-parties with interests in the case, were once fairly limited; today, a high-profile case can draw dozens or hundreds of them. (Scores of groups filed amicus briefs in United States v. Windsor, from ex-gays to ex-ex-gays.) Nowadays, writing amicus briefs is nearly a profession in itself, as nonprofits, for-profits, cities, states, congressional representatives, and law professors compete to sway the court in their direction. Given the authors’ vested interest in a particular outcome, a number of these briefs are high on ideology, not so high on strict factual rigor.




When Can You Text “While Driving”?

posted by Judge_Burke @ 14:00 PM
September 11, 2014

It seems so simple:  In an increasing number of states there are laws that prohibit texting while driving, and in every state it seems like a good idea because accidents do occur when the driver is distracted.  But, when the law is the basis for not texting while driving, following the law may not be as clear as one might think.

From FindLaw:

Florida’s ban on texting while driving specifically notes that “a motor vehicle that is stationary is not being operated and is not subject to the prohibition.” As The Northwest Florida Daily News has explained, the law “allows texting while stopped at a red light, in a traffic jam or reporting criminal activity.”

In other states, the law is less clear. For example, California’s texting while driving prohibition merely states “a person shall not drive a motor vehicle” while writing or reading a text message (except if using a hand’s free operation). So is being stopped at a stoplight “driving” for purposes of this law? The California Highway Patrol seems to think so, telling San Francisco’s KGO-TV that it’s not OK to check email or read text messages while at a stoplight or in bumper-to-bumper traffic.

And even in states that explicitly allow or have a stoplight loophole in their texting-while-driving laws, any time being distracted by your phone causes you to impede traffic in a way that creates a dangerous condition for other drivers, such as not going on a green light, you can potentially be cited for distracted driving or even reckless driving.


Would They Say the Same Thing about Judges?

posted by Judge_Burke @ 14:00 PM
September 10, 2014

From the Pew Research Center for the People & the Press:

Amid continuing tensions over the police shooting of an unarmed teen in Ferguson, Mo., most Americans give relatively low marks to police departments around the country for holding officers accountable for misconduct, using the appropriate amount of force, and treating racial and ethnic groups equally.

However, most also continue to express at least a fair amount of confidence in their local police forces to avoid using excessive force and to treat blacks and whites equally, though there are large racial gaps in opinion here as well as in views of police performance nationally. Public confidence in community police in these areas has not changed substantially since 2009.

The new national survey by the Pew Research Center and USA TODAY, conducted August 20-24 among 1,501 adults, finds that overall perceptions of relations between blacks and whites are only modestly changed from five years ago.

Currently, 69% of the public, including majorities of both whites (75%) and blacks (64%), say blacks and whites in this country get along “very well” or “pretty well.” Since 2009, the share of blacks with a positive view of relations between the races has fallen 12 points (from 76% to 64%) while remaining largely unchanged among whites (80% in 2009).


The full report can be found here.


Good Faith, or Not? How Would (or Will) You Rule?

posted by Judge_Burke @ 16:04 PM
September 9, 2014

The Fourth Circuit Court of Appeals, in upholding a firearms conviction, has held that police in Baltimore acted in good faith when using a tracking device without a warrant to follow the movement of a suspect:

In 2011, the police installed the battery-operated Global Positioning System device under the rear bumper of a vehicle parked in a public lot in suburban Baltimore. Officers used visual surveillance and the GPS tracker to find and stop the driver, Henry Stephens, the target of a gun and drug investigation. The police found a loaded pistol in Stephens’ vehicle.

Stephens pleaded guilty but kept alive his challenge of the admission of the evidence in the case. The installation of the device occurred before the U.S. Supreme Court, in January 2012, ruled in United States v. Jones that the warrantless use of a tracking device was a “search” under the Fourth Amendment that implicated privacy rights.

“The court did not, however, rule that all warrantless GPS searches violate the Fourth Amendment; instead, the court expressly declined to decide whether reasonable suspicion or probable cause may justify warrantless GPS attachment to vehicles, and that remains an open question,” Judge Dennis Shedd of the Fourth Circuit wrote for the majority.


Read more here (log-in required).



Are there Lessons Courts Can Learn from Ferguson?

posted by Judge_Burke @ 14:00 PM
September 8, 2014

Governing Magazine has an interesting perspective on the causes of the trouble in Ferguson, MO…and perhaps there are lessons that courts can learn:

Much has been made of the apparently poor police-community relations in Ferguson, Mo., where a confrontation with the police two weeks ago left 18-year old Michael Brown dead and sparked weeks of community unrest. But there are other less visible yet no less serious indicators of simmering conflict in Ferguson, say experts, including one buried in the city’s Comprehensive Annual Financial Report (CAFR).

Ferguson’s budget relies heavily on public safety and court fines that have skyrocketed in recent years. A review of Ferguson’s financial statements indicates that court fine collections now account for one-fifth of total operating revenue. The St. Louis suburb of about 21,000 residents took in more than $2.5 million in municipal court revenue last fiscal year, representing an 80 percent increase from only two years prior, when fines netted about $1.4 million.

While the media has focused largely on the police department’s testy relationship with the majority black community and the city’s shifting demographics, longstanding frustration with the municipal court system may have also contributed to the civil unrest, say some.

Brendan Roediger, an assistant professor at the Saint Louis University School of Law who supervises a local civil advocacy clinic, said practices of the local court system are a major driver of Ferguson residents’ distrust of government and law enforcement. Roediger described a court system in Ferguson and select areas of St. Louis that function primarily as a revenue generator. “They don’t want to actually incarcerate people because it costs money, so they fine them,” he said. “It appears to be a blatant money grab.”

From his time representing clients in Ferguson, Roediger estimates the court — which holds three sessions each month — heard 200 to 300 cases per hour some days.


The full article is here.