Plea Bargaining: Where Are You On The Spectrum?

posted by Judge_Burke @ 14:30 PM
October 9, 2015

Plea bargaining makes some judges uncomfortable and others simply see it as the criminal equivalent of alternative dispute resolution:  a thing that is not feared, but increasingly accepted practice. Better understanding of where plea bargaining falls is essential for good trial court judges. In that spirit there is an interesting piece about plea bargaining.

I. Bennett Capers of the Brooklyn Law School has posted The Prosecutor’s Turn (William & Mary Law Review, Forthcoming) on SSRN.

Here is the abstract:

Many criminal justice advocates have heralded Lafler v. Cooper and Missouri v. Frye as game changers when it comes to plea bargaining law. My interest is in shifting the focus somewhat. Lafler and Frye certainly signal an increased attention to the regulation of defense counsel in criminal cases, as did an earlier case, Padilla v. Kentucky. But what about prosecutors? For the most part, prosecutors remain under-examined and under-regulated. Put differently, the problem brought to the fore in Lafler and Frye — the failure of defense counsel to properly advise their clients of plea offers — is not the only problem in this new, old world of negotiated pleas. With Lafler and Frye, there will now be more judicial oversight of defense counsel when it comes to plea negotiations. But if judges are watching defense counsel, who is watching prosecutors?

This symposium essay makes the argument for more regulation of prosecutors during the plea bargaining stage. I suggest that the next goal of “plea-bargaining” law should be to remedy this lack of oversight, and offer the Due Process Clause, and to a lesser extent internal and external regulation, as one possible route for getting there.


There is Something Wrong in Kansas

posted by Judge_Burke @ 20:59 PM
October 8, 2015

Conflicts between the branches of government are not something peculiar to Kansas.  Educational funding lawsuits ferment conflict, as witnessed by the litigation in the State of Washington.  But, what is happening in Kansas is frankly regrettable.

Recently, the legislature passed – and the governor signed – a law that would stop all state funding of the state judiciary system if a court invalidated a change in the way chief district court judges are selected.  In response, several judges have filed a lawsuit alleging that the law “significantly interferes” with the authority of the courts to hear and decide cases, and violates the Kansas Constitution in several ways.  The judges argue that the law creates “an undue temptation for a court to reject such a challenge for fear that the entire judiciary will lose its funding.”  The judges filing suit are:  Robert Fairchild, chief judge of the 7th judicial circuit; Jeffry Jack, 11th judicial district court judge; Larry Solomon, chief judge of the 30th judicial district; and Meryl Wilson, chief judge of the 21st judicial district.

In 2014, lawmakers approved a measure to transfer the power to appoint chief district court judges from the Kansas Supreme Court to judges in each of the state’s 31 judicial districts. Reasonable minds can differ about the wisdom of the legislation. Many states have this model, but many states have the model Kansas has historically used to appoint chief judges of the trial court. But what followed was the approval of House Bill 2005. That law said that if Kansas courts ruled the new selection policy invalid, the judicial branch’s budget through 2017 also would be “null and void.”

Read more here.


The president of the Kansas Bar Association calls 2016 a “defining moment.”  Natalie Haag, of Topeka, serving in the top office since June, is part of a crusade to fight for the independence of the Kansas Supreme Court, which she believes will be threatened at election time. There is little doubt that the litigation about court leadership, coupled with cutting off all funding to the courts, presents a rather unprecedented threat to judicial independence, but why 2016…surely the litigation over funding and appointment authority will be resolved by then?

In November 2016, several Supreme Court Justices will be up for retention. Kansas has no recent history of highly charged retention elections. The fear is that current Supreme Court Justices could be swept from the bench by a highly politicized retention campaign

Two of the seven justices were appointed by former Republican Governor Bill Graves, and four were appointed by former Governor Kathleen Sebelius, a Democrat. Current Republican Governor Sam Brownback has named one, Caleb Stegall.

Haag anticipates an ideological movement to oust the three justices up for retention not appointed by Brownback. That would give Brownback the chance to appoint justices more aligned with his agenda.

Read more here.


Trust in the Judiciary

posted by Judge_Burke @ 19:01 PM
October 7, 2015

From Politico:

Trust in the federal government’s judicial branch has dropped to an all-time low, according to the results of the newest Gallup survey — and Republicans’ unhappiness with the Supreme Court is likely the reason.

Just 53 percent said they had “a great deal” or “a fair amount” of trust in the judiciary’s ability to do its job. But in an indication of just how dissatisfied Americans are with the federal government’s direction, the judicial branch remains — by far — the most trusted of the three branches, as it has traditionally been.

For the executive branch, just 45 percent said they trusted its ability to do its job, while only 32 percent said the same of the legislative branch. Shortly after President Barack Obama took office, for example, 76 percent expressed trust in the judicial branch, 61 percent said they trusted the executive branch and 45 percent said they trusted the legislative branch.

The decline is most pronounced among Republicans and essentially unchanged among Democrats and independents (though nominally declined). Republican trust of the judiciary dropped from 59 percent to 42 percent compared to September 2014, likely a result of the Supreme Court’s two decisions this year that overturned same-sex marriage bans nationwide and again upheld a key provision of Obamacare.

As has been the case with Gallup’s poll dating back to 1993, a plurality of Americans (40 percent) described the Supreme Court as “about right” ideologically. But the share of Americans describing it as “too liberal” jumped from 30 percent to 37 percent in the last year. And among Republicans, it jumped from 51 percent to 63 percent.

Results from this survey came from Gallup’s Governance poll, conducted Sept. 9-13, which surveyed 1,025 adults nationwide with an overall margin of error of plus or minus 4 percentage points.


Black Litigants in the South

posted by Judge_Burke @ 14:30 PM
October 6, 2015

In the antebellum American South, among the sprawling plantations of the Natchez district, in a society in which slavery was deeply entrenched and violently defended, black people sued white people. They often won. This is a phenomenon that has largely been overlooked by historians. But it ought not to be, because it speaks to the heart of the ways in which we understand the operation of power, of law, and of racial hierarchies in the slave South.

Black Litigants is a historical study of free and enslaved African Americans’ use of the local courts in the antebellum American South. The project investigates unpublished and previously unexplored lower court records from the Natchez district of Mississippi and Louisiana between 1800 and 1860 in which free blacks and slaves sued whites and other African Americans. Although they present technical and interpretive challenges, local court records represent an important resource for understanding the relationship between legal systems and formally marginalized peoples in racially and economically stratified societies. In this case they undermine the longstanding assumption that African Americans were legal outsiders. Free blacks and slaves were not strangers to the courts. They resided at the center of antebellum southern legal culture—as the objects of white concerns about social control and racial hierarchy and as active protectors of their own interests. Their litigation indicates that the legal system was not solely the province of the elite. On significant occasions it could serve it as a tool of the subordinated, even in a slave society.

Black Litigants in the American South, 1820-1860

Professor Kimberly Welch


Professor Welch’s study of free and enslaved African Americans’ use of the local courts in the antebellum American South examines trial court records from the Natchez district of Mississippi and Louisiana between 1820 and 1860 in which free blacks and slaves sued whites and other African Americans.  The study investigates both common-law (Mississippi) and civil-law (Louisiana) regimes and will generate a dataset of all extant lower court cases involving black litigants in four counties in the Natchez district (about 2,000 cases).

Specifically, Black Litigants asks what the legal action of those denied formal legal and political rights reveals about the operation of power on the ground in a slave society.  Although they present technical and interpretive challenges, unpublished local court records stored in courthouse basements and storage sheds in the Natchez district (records that are rarely accessed and rapidly deteriorating) represent an important resource for understanding the relationship between legal systems and formally marginalized peoples in racially and economically stratified societies.  In this case they undermine the longstanding assumption that African Americans were legal outsiders.  Free blacks and slaves were not strangers to the courts.  They resided at the center of antebellum southern legal culture—as the objects of white concerns about social control and racial hierarchy and as active protectors of their own interests.  Their litigation indicates that the legal system was not solely the province of the elite.  On significant occasions it served as a tool of the subordinated, even in a slave society.  Reimagining African Americans as shrewd litigators does much to complicate our narratives of race and power in the American South and will serve as a model for understanding the legal action of other subordinated groups.  By hearing anew the voices of marginalized peoples and accounting for the political importance of access to courts, we will be better placed to understand the centrality of legal institutions in the long struggle for full citizenship.




One of the best legal blogs is How Appealing. It recently had this post:

So much for that U.S. Supreme Court victory:  This past April, in a case captioned Rodriguez v. United States, the U.S. Supreme Court ruled in favor of the convicted defendant who was challenging his extended traffic stop detention for purposes of a drug dog sniff. You can access the ruling at this link.

On remand from the Supreme Court, the U.S. Court of Appeals for the Eighth Circuit ruled that the defendant’s conviction must stand given the state of Eighth Circuit law before the Supreme Court’s reversal in this very case. You can access [that] ruling at this link.


Then there was a piece in The Huffington Post:

A Tennessee judge said the Supreme Court’s decision to legalize gay marriage nationwide has left him unable to determine what constitutes divorce.

A Signal Mountain couple, Thomas and Pamela Bumgardner, are still legally married even though they don’t want to be because of Hamilton County Chancellor Jeffrey Atherton’s stance, according to the Chattanooga Times Free Press.

“The conclusion reached by this Court is that Tennesseans have been deemed by the U.S. Supreme Court to be incompetent to define and address such keystone/central institutions such as marriage, and, thereby, at minimum, contested divorces,” Atherton wrote in his decision.

“With the U.S. Supreme Court having defined what must be recognized as a marriage, it would appear that Tennessee’s judiciary must now await the decision of the U.S. Supreme Court as to what is not a marriage, or better stated, when a marriage is no longer a marriage,” he added.

Lawyers for the Bumgardners did not immediately return a request for comment from The Huffington Post.

Regina Lambert, one of the lawyers who represented Tennessee plaintiffs in the landmark Supreme Court case that legalized same-sex marriage in June, told the Guardian that Atherton was “grandstanding.”


An Interesting Case the United States Supreme Court Will Decide this Term

posted by Judge_Burke @ 14:29 PM
October 2, 2015

Seizing Assets.  In Luis v. United States (564 Fed. Appx. 493 (11th Cir. 2014), cert. granted, 135 S. Ct. 2798 (2015)), the  United States  Supreme Court will revisit the issue of seizing assets: Does the pretrial seizure of a criminal defendant’s assets violate the Sixth Amendment right to counsel when it prevents the defendant from being able to afford a defense lawyer? The wrinkle in Luis is that it involves assets that are untainted by the alleged crime.


The Brennan Center Reports

posted by Judge_Burke @ 14:32 PM
October 1, 2015

The proliferation of what NBC News described as a “new generation of debtors’ prisons” – the jailing of people unable to pay fines imposed by state and local courts as punishment for minor crimes – continues to raise ethical and constitutional questions.

“The burden of revenue for [the] vastly expanding criminal justice system has been shifted to those who find themselves defendants in courts or inmates in prisons,” Lauren-Brooke Eisen recently told The New York Times, which highlighted a New Orleans lawsuit alleging that judges and court officials are targeting the city’s poorest residents with these fines.

Practically, these policies rarely benefit the communities that impose them; as Inimai Chettiar told Mother Jones, “Having taxpayers foot a bill of $4,000 to incarcerate a man who owes the state $745 … makes sense in no reasonable world.”

As CNN noted, a recent Brennan Center report, Charging Inmates Perpetuates Mass Incarceration, those already in prison are increasingly subject to “incarceration fees.” For example, one Florida inmate was released after a three-year prison term and billed for $55,000, a staggering amount for someone with no meaningful income.


The Amazing Judge Peggy Hora

posted by Judge_Burke @ 14:15 PM
September 30, 2015

Thanks to the National Judicial College, we know more about the retirement life of Judge Peggy Hora…and when you are done reading this, you may well be exhausted.


Life After the Bench


Hon. Peggy Fulton Hora (Ret.)


If you were to have asked me how I envisioned my retirement, I could not have conjured up how fabulous it has been.  After 21 years on the California bench, I retired in 2006 and haven’t slowed down since.  Some people complain that they are bored by retirement. I have no idea what they’re thinking.  I’m so busy and engaged that I have no idea how I had time to work.

Editor’s Note:  Life expectancy rates are growing in the United States, as most Americans are expected to live 78.8 years, according to Centers for Disease Control and Prevention.

But for many judges nationwide, laws on mandatory retirement ages have not changed, leaving them with more years than ever to explore life and opportunities when their work on the bench is complete.  More judges are finding themselves with ample time to explore life beyond the bench, finding ways to explore a new professional identity alongside new hobbies and interests.  We’ve heard from judges who are training animals, writing books, traveling the world and caring for grandchildren.  Many are consulting, traveling, teaching or returning to law practices.

Here, the Hon. Peggy Fulton Hora chronicles her experiences as a judicial educator, a “Thinker in Residence” in Australian academic communities, a published author, and a worldwide traveler.

I have been a judicial educator for more than 25 years and spent lots of time giving back to the profession while still on the bench.  I would speak at out-of-state conferences, speak at California judicial education programs and, of course, teach at The National Judicial College.   Some of that work included international travel, a particular passion of mine. I became involved with law professors who had founded a field called therapeutic jurisprudence (TJ)1 and wrote a law review article coupling TJ and drug treatment courts.2  This led to my attendance at the first International Conference on Therapeutic Jurisprudence in Winchester, England in 1998.

I was in Israel in 2005 and was chatting with consulate staff when my impending retirement came up.  They said as soon as the deed was done I must come back and speak to Dorit Beinish, the new president judge of the Supreme Court of Israel and president judges in each division about drug courts.  My official retirement day, Feb. 29, 2006, was spent sipping champagne at the U.S. Consulate in Jerusalem.  My trip back to Jerusalem to speak with the judges was funded by the State Department.  While there, I taught at the Institute for Advanced Judicial Studies in Neve Ilan, Israel.

In 2008 the State Department also sent me to Chile to do onsite technical assistance with their drug courts and the Organization of American States brought me to Argentina where the first drug court was opened in Salta in 2014.

The Second International TJ Conference was in Perth, Australia in 2008 where the keynote speaker fell ill and I was substituted in at the last minute.  How fortuitous that turned out to be. As a direct result of that trip I was one of 100 people nominated to become South Australia’s Thinker in Resident. Ultimately, I was appointed by the Premier and spent three months consulting on the justice system.  I produced a report with my findings and recommendations.3  It was an incredible experience and, coincidentally, the longest I’d ever been away from home.

Because of my work as Thinker in Residence, I became known in Australia’s national legal community.  I’ve taught at the National Judicial College of Australia; keynoted the national Drug Treatment Court Conference in Melbourne; keynoted the Community Legal Center’s conference in Tasmania; keynoted the Victorian Association of Drink & Drug Driver Services conference; key noted the Australian Institute of Criminology conference in Adelaide and, spoken at three AustralAsian Institute of Judicial Administration conferences.  On the academic side I’ve spoken at Griffith University School of Criminology in Brisbane and Flinders University in South Australia.  I was a visiting scholar at the University of Tasmania School of Law.

I’ve been to Bermuda three times for training and will present a workshop in September during a pleasure cruise from New York.  The first time I combined tourism with teaching was on a small ship trip to Holland during tulip season.  I met a TJ friend in Delft and he whisked me to Utrecht where I spoke to “Raad voor de rechtspraak” (Council for Court-Jurisdiction, The Hague).  My fellow travelers on the tour were blown away by my adventure.

I’ve taken seven trips to New Zealand helping them set up their Alcohol and Other Drug Treatment Courts.  Beginning in 2010 when I put on a drug court workshop I became the official international consultant to the courts.  The courts opened in Auckland in 2012 as a five year pilot project and are blooming.  Their Maori name is Te Whare Whakapiki Wairua (“The House that Heals the Spirit”).  I am in constant contact with the judges who preside and have sat with them on the bench during court sessions each time I’m there.  I’ll be going back for a big ceremony on March.

Besides all the national and international travel, I’ve published 10 articles since retirement and enjoy writing and research.4

Last, but by no means least, retirement has allowed me more time with my family. I downsized a big, two-story house and now live in a 1,056 sq. ft. condo near my sons.  I have a tradition of taking my grandchildren on an “international adventure” when they are 10 or 11.  We’ve gone to Costa Rica, the Galapagos, Egypt, Grand Cayman and on safari in Kenya and Tanzania.  In the Spring, I take my second granddaughter on “A Taste of Italy” trip to visit some of her relatives near Genoa and take cooking classes in Tuscany and Rome. I’m known as “Venture Grandma.”

Judge Hora retired from the California Superior Court after serving 21 years.  She had a criminal assignment that included presiding over the drug treatment court.  She is a former dean of the B.E. Witkin Judicial College of California and has been on the faculty of The National Judicial College for more than 20 years.



2.         Hora, Peggy Fulton, Hon. William G. Schma and Rosenthal, John T.A., “Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System’s Response to Drug Abuse and Crime in America.” Notre Dame Law Review Vol. 74, No. 2., (1999)


4.         For a complete list of Judge Hora’s publications, see


Will More People Vote for Judges in Ohio?

posted by Judge_Burke @ 13:42 PM
September 29, 2015

Sponsors of a new website hope more information about judges, and Ohio courts in general, will result in more ballots cast in Ohio judicial races:

VOTING:  The goal of a new website is to provide information and get more voters to cast a ballot for judges.

In 2014, more than 3 million votes were cast for Ohio governor, but only about 2.5 million voters made a choice for the Ohio Supreme Court.

A 2014 survey found this drop-off in voters was primarily due to a lack of information about judicial candidates and the court system in general.

The new website,, hopes to educate voters and address the lack of information.

JudicialVotesCount is a joint effort of the Ray C. Bliss Institute of Applied Politics at the University of Akron, Ohio Supreme Court Justice Maureen O’Connor, the League of Women Voters of Ohio, and the Ohio State Bar Association, the co-sponsors of the judicial elections survey.

John Green, director of the Bliss Institute, said the website explains the court system, offers links to websites about voting, and provides basic information about the judges. It will display details on 55 municipal court judges up for election in November, with plans for a bigger push in 2016  when more judges are on the ballot.


When is it Appropriate to Use the Internet?

posted by Judge_Burke @ 14:34 PM
September 28, 2015

In Rowe v. Gibson, 2015 No. 14-3316 (U.S.C.A.), the plaintiff, a prisoner, sued a prison and its staff in relation to medical treatment. The suit was dismissed, but reversed on appeal by the Seventh Circuit of the United States Court of Appeals.

The interesting point in the Court of Appeals’ decision was described by one of the justices as follows (at page 27):

…a disagreement about the outcome of this relatively simple case has morphed into a debate over the propriety of appellate courts supplementing the record with Internet research.

In a partly dissenting judgment, Justice Hamilton took umbrage at his colleagues’ use of the internet (at pages 39 and 40):

The ease of research on the internet has given new life to an old debate about the propriety of and limits to independent factual research by appellate courts.  The majority’s approach turns the court from a neutral decision-maker into an advocate for one side. The majority also offers no meaningful guidance as to how it expects other judges to carry out such factual research and what standards should apply when they do so. Under the majority’s approach, the factual record will never be truly closed. This invites endless expansion of the record and repetition in litigation as parties contend and decide that more and more information should have been considered.

Justice Posner, writing the majority judgment suggested that modern trial judges are not “like the English judges of yore” (at page 12):

In citing even highly reputable medical websites in support of our conclusion that summary judgment was premature we may be thought to be “going outside the record” in an improper sense. It may be said that judges should confine their role to choosing between the evidentiary presentations of the opposing parties, much like referees of athletic events. But judges and their law clerks often conduct research on cases, and it is not always research confined to pure issues of law, without disclosure to the parties. We are not like the English judges of yore, who under the rule of “orality” were not permitted to have law clerks or other staff, or libraries, or even to deliberate—at the end of the oral argument in an appeal the judges would state their views seriatim as to the proper outcome of the appeal.

Judge Richard A. Posner wrote the majority opinion, including an appendix responding to the dissent.

Circuit Judge Ilana Diamond Rovner issued a concurring opinion that begins, “A disagreement about the outcome of this relatively simple case has morphed into a debate over the propriety of appellate courts supplementing the record with Internet research.”  Circuit Judge David F. Hamilton issued an opinion concurring in part and dissenting in part. In dissenting, Judge Hamilton writes, “the reversal is unprecedented, clearly based on ‘evidence’ this appellate court has found by its own internet research.”

What is a bit fascinating about this appellate judge skirmish is that it is also going on in Canada, where a similar issue arose in R. v. C.D.H., 2015 ONCA 102.

In C.D.H. the accused was charged with a number of offences, including the offence of sexual assault. The trial judge entered an acquittal for sexual assault, but entered a conviction for the included offence of assault.

The Crown appealed from the acquittal, arguing that the trial judge had erred in conducting his own research on the website “” (the evidence at trial had been that the complainant and the respondent had met on and that during the alleged sexual assault encounter, the respondent had become angry and searched that website to see the complainant’s other contacts there).

On appeal, the Ontario Court of Appeal indicated “that the circumstances we have outlined gave rise to a reasonable apprehension of bias. The acquittals must be set aside and a new trial ordered.” The Court of Appeal held that the “conduct of the trial judge in conducting his own evidentiary research while the decision was under reserve – whether or not he had already written his reasons or he accessed any actual details about the complainant – and his comment to the officer about using the website information to ‘hang’ the complainant, created the appearance of bias.”

The Court of Appeal held that the trial judge’s conduct contravened the “basic principle that judges and jurors must make their judicial decisions based only on the evidence presented in court on the record.”