Examining Our Own Implicit Bias About Gender

posted by Judge_Burke @ 17:43 PM
July 10, 2020

How reporting domestic violence can work against women in family court. 

The bitter custody battle in Texas between Tara Coronado and Ed Cunningham over the couple’s four children is illustrative of a dynamic women’s rights advocates say is both prevalent and unfair. Women who allege they are victims of domestic violence often are viewed by judges and court-appointed doctors as angry and aggressive, traits that count against them in the murky calculus that governs custody determinations. The case also highlights many of the flaws inherent in the legal and medical standards that are supposed to help judges make reasoned choices about the lives of parents and their children. In collaboration with Longreads, Kathryn Joyce has our story. View THE MARSHALL PROJECT‘s story.


A Question On Voir Dire That You Need To Anticipate

posted by Judge_Burke @ 17:44 PM
July 8, 2020

Can you support the Black Lives Matter movement and serve on a jury?

From the Marshall Project:

Prosecutors around the country have taken to asking potential jurors if they support the aims of the BLM movement as a stand-in for their views about race and policing.  If the answer is “yes” the prosecutor then moves to remove that juror from the criminal trial.  Defendants have challenged some of these strikes and appeals courts around the country have come to different conclusions about whether they violate Supreme Court precedent outlawing discrimination against jurors.  Now pending in California is another test case, involving a double-murder conviction.  TMP’s Abbie VanSickle has our story.


Is There Drift In Your Courthouse?

posted by Judge_Burke @ 20:53 PM
July 6, 2020

Elizabeth Nevins-Saunders (Hofstra University – Maurice A. Deane School of Law) has posted Judicial Drift (American Criminal Law Review, Vol. 57, No. 2, 2020) on SSRN. Here is the abstract:

Although there is broad consensus on what constitutes procedural due process in criminal cases, in courtrooms around the country, those ideals are often disregarded. In the wake of rising public attention to misdemeanors, be it through marijuana decriminalization or concern over unduly punitive fees and surcharges, a few scholars have pointed to theories explaining the gulf between rights and reality for low-level defendants. Yet none have expressly considered the impact of administrative rules made (or not made) at the courthouse level. This Article analogizes the courthouse to an administrative agency and borrows the doctrine of “bureaucratic drift” to explain how Supreme Court, legislative, and ethical norms of due process get filtered through a courthouse bureaucracy that ultimately leaves poor defendants without access to basic rights. The argument draws on findings of a five-week court observation project, which documented the daily injustices — in violation of established law — that individuals charged with low-level crimes experienced as defendants in a New York court. To remedy the drift, the Article proposes the appointment of an independent due process ombuds to oversee procedural justice court-wide.


What To Do About Judges?

posted by Judge_Burke @ 13:01 PM
July 2, 2020

The vast majority of judges are honorable people dedicated to doing the right thing. And then there are the very few who give all the rest of us a bad name, as illustrated by a story from Reuters. In the past dozen years, state and local judges have repeatedly escaped public accountability for misdeeds that have victimized thousands. Nine of 10 kept their jobs, a Reuters investigation found – including an Alabama judge who unlawfully jailed hundreds of poor people, many of them Black, over traffic fines.


Filed  June 30, 2020, noon GMT

Judge Les Hayes once sentenced a single mother to 496 days behind bars for failing to pay traffic tickets. The sentence was so stiff it exceeded the jail time Alabama allows for negligent homicide.

Marquita Johnson, who was locked up in April 2012, says the impact of her time in jail endures today. Johnson’s three children were cast into foster care while she was incarcerated. One daughter was molested, state records show. Another was physically abused.

“Judge Hayes took away my life and didn’t care how my children suffered,” said Johnson, now 36. “My girls will never be the same.”

Fellow inmates found her sentence hard to believe. “They had a nickname for me: The Woman with All the Days,” Johnson said. “That’s what they called me: The Woman with All the Days. There were people who had committed real crimes who got out before me.”

For the full story:



Jury Trials

posted by Judge_Burke @ 21:23 PM
June 30, 2020

From the Brennan Center:

In-Person Jury Trials Resume in Some Jurisdictions with Social Distancing
After initially closing their doors to the public and suspending in-person proceedings due to the Covid-19, some courts have begun holding in-person jury trials with social distancing.
Oregon was one of the first states to resume in-person jury trials. For this first trial, the Multnomah County judge asked jurors to maintain distance throughout the process and provided masks but wearing them was optional. “There’s an inherent conflict between the rights of someone on trial and our social distancing policies,” said Dylan Potter, the defense attorney in the case. His client was found guilty.
California and Ohio have begun to hold in-person socially distanced jury trials as well. But other state courts have taken a different approach. Notably, Texas has experimented with remote jury trials. Last month, a judge in Collin County held a day-long civil trial over Zoom in which the verdict was nonbinding.
Both defenders and prosecutors have raised concerns with the use of virtual jury trials, citing evidentiary concerns, technology glitches, lack of privacy, among other drawbacks.

ICE Arrests Around the Courthouse

posted by Judge_Burke @ 11:55 AM
June 29, 2020
From the Brennan Center: Federal Judge Bans ICE Courthouse Arrests in New York State 



On June 10, U.S. District Court Judge Jed Rakoff of the Southern District of New York ruled that U.S. Immigration and Customs Enforcement (ICE) must stop arresting immigrants in and around New York state courthouses.


Judge Rakoff’s decision was issued in State of New York et al. v. ICE, a case in which the plaintiffs alleged that ICE courthouse arrests “make certain parties and witnesses fear coming to court, but the temporary chaos they create disrupts court proceedings and makes it impossible for judges to do their jobs effectively.” A 2019 report from the Immigration Defense Project found that in 2018, ICE made 178 courthouse arrests in New York, compared to 11 arrests made in 2016.


Advocates and lawyers in other states have likewise pushed back against ICE courthouse arrests. At the end of May, the Brennan Center filed an amicus brief on behalf of 19 former Massachusetts judges, arguing that ICE courthouse arrests undermine equal access to the courts. Other states, including Oregon, New Jersey, and California, have also taken action to prevent such arrests from taking place.


A Tribute To Judge Steve Leben

posted by Judge_Burke @ 13:30 PM
June 26, 2020

No member of the American Judges Association has had the impact on the organization as Judge Steve Leben.  While he will continue to be a member and make contributions to the judiciary, today marks his last day as a judge.  Later this summer he will begin a new chapter of his career as a law school faculty member at at the University of Missouri-Kansas City School of Law.

Court Review is the premier publication for judges in the United States and Canada.  Yes, the numerous authors made significant contributions with their submissions, but it was Steve’s leadership role as the editor that brought it all together.  Steve was a journalism major and while one might speculate he assumed this role to vicariously life the life of a journalist, editor of Court Review was a task that required him to give countless hours with very little praise or thanks.  But there was more.

Steve served as an officer, President and most recently as the Chair of the Budget Committee.  It was during his tenure as President that the American Judges Association adopted its first White Paper on Procedural Fairness.  It was Steve’s idea to trademark the logo “Voice of the Judiciary,” but logos without substance are meaningless.  Steve has been, throughout his career, a person of substance.  Later, Steve would co-found the Procedural Fairness web site, http://www.proceduralfairness.org.  Yale Professor Tom Tyler, who is the academic “parent” of procedural fairness, said of those efforts, “(the) White Paper and the California Initiative put the idea of procedural justice on the map in legal settings.  And the website at the NCSC has kept it moving forward.  The fact that Steve was honored at the USSC (United States Supreme Court when he received the Rehnquist Award) seems very fitting and reflects the high esteem with which your efforts are held in the state court system.  When I look at the NCSC website today I see efforts all over the states.”

Throughout our careers, each of us has known people who made a difference and that is what Steve did.  We should not think of his decision to leave the bench as a sad day for the judiciary.  It is not.  Steve Leben will continue to make a difference.


Reasonable Doubt

posted by Judge_Burke @ 15:14 PM
June 25, 2020

Michael Conklin (Angelo State University) has posted Reasonable Doubt Ratcheting: How Jurors Adjust the Standard of Proof to Reach a Desired Result on SSRN. Here is the abstract:

Research has already been conducted into how jurors alter the reason-able doubt standard based on different legal definitions of the standard provided and perceived harshness of punishment. This article discusses the findings of research that is the first to analyze how jurors also alter the reasonable doubt standard based on their sympathy toward the defendant — namely, how jurors “ratchet up” reasonable doubt to acquit sympathetic defendants and “ratchet down” reasonable doubt to convict unsympathetic defendants. Political affiliation and gender are also analyzed for potential causal relationships with this effect. The results of this novel re-search provide valuable information for trial attorneys, judges, and advocates of criminal justice reform.


American Bar Association Programs On The Pandemic

posted by Judge_Burke @ 19:52 PM
June 23, 2020

From the ABA website:

Trending CLE: COVID-19 Collections

The spread of COVID-19 (coronavirus) is having significant legal implications across the sector: from remote working to dealing with the effects of the pandemic on business, firms, employees and associates. The ABA is pleased to be able to offer a variety of CLE webinars and on-demand products that specifically address some of your questions on the effects of this outbreak. We are pleased to feature free-to-member live webinars for your legal education. Get CLE credit and get informed!


Bail & Race

posted by Judge_Burke @ 14:08 PM
June 18, 2020

David ArnoldWill Dobbie and Peter Hull (Princeton University, Harvard University – Harvard Kennedy School (HKS) and University of Chicago – Becker Friedman Institute for Economics) have posted Measuring Racial Discrimination in Bail Decisions on SSRN. Here is the abstract:

We develop new quasi-experimental tools to measure racial discrimination in the context of bail decisions. Observational comparisons of white and black pretrial release rates suffer from omitted variables bias when there are unobserved racial differences in pretrial misconduct potential. We show that the bias in these observational comparisons is a function of average white and black misconduct risk, which can be estimated from the quasi-random assignment of bail judges. Estimates from New York City show that less than one-third of the release rate disparity between white and black defendants is explained by unobserved differences in misconduct potential, with more than two-thirds explained by racial discrimination. We then develop a hierarchical marginal treatment effects model that imposes additional structure on the quasi-experimental variation to investigate the drivers of this discrimination. Model estimates show that discrimination in bail decisions is driven by both racial bias and statistical discrimination, with the latter coming from a higher level of average risk and less precise risk signals for black defendants.