Florida Supreme Court Rules on Cell Phone Privacy

posted by Judge_Burke @ 14:35 PM
October 30, 2014

Police in Florida aren’t allowed to use a cellphone to track someone’s movements, according to a sweeping new ruling from the Florida Supreme Court.  The decision can be found here.

The court, by a 5-2 vote, ruled Thursday that authorities in Broward County had no right to stop and arrest Shawn Tracey for possession of more than 400 grams of cocaine.

Law enforcement had a warrant that allowed them to monitor the phone numbers of incoming and outgoing phone calls.  But, a majority of justices said that did not give them permission to track Tracey’s movements through location of his phone.

A defense attorney called the ruling an “enormous victory” for privacy rights.

One of the dissenting justices contends that people should have no expectation of privacy if they keep their cellphones turned on.


Padilla v. Kentucky & What Judges Should Consider Doing

posted by Judge_Burke @ 14:00 PM
October 29, 2014

Craig Estlinbaum has posted Effective Plea Bargains for Noncitizens (The Scholar Vol. 16, pp. 607-629 (2014)) on SSRN.

Here is the abstract:

In Padilla v. Kentucky, the United States Supreme Court held that the Sixth Amendment requires criminal defense attorneys to advise non-citizen clients regarding the deportation risks associated with a guilty plea. The Court held in that case that a defendant’s guilty plea may be involuntarily made when defense counsel fails to advise the client about those deportation risks. Trial judges accepting guilty pleas from criminal defendants have a duty to confirm the defendant makes the plea voluntarily and intelligently. Judges make this determination through the plea colloquy — a series of admonishments and questions with the pleading defendant done prior to accepting the plea. Padilla at a minimum requires trial judges to inquire whether or not the defendant is a non-citizen, and if so, whether the defendant has received the correct advice regarding the guilty plea’s immigration consequences. The judge’s failure to do so may result in a conviction tainted by ineffective assistance or supported by a plea not voluntarily and intelligently made.

This Article suggests trial judges should take affirmative steps prior to accepting a non-citizen’s plea to reveal whether counsel has provided relevant and correct immigration advice to the defendant.



A Humorous Look at the United States Supreme Court

posted by Judge_Burke @ 13:55 PM
October 27, 2014

Among the best legal blogs is How Appealing.  Recently, the blog had this post:

Millions view talking dogs online spoof of U.S. Supreme Court

Lawrence Hurley of Reuters has a report that begins, “A comedy sketch with dogs portraying members of the U.S. Supreme Court — picture Ruth Bader Ginsburg as a Chihuahua — had scored more than two million YouTube views by Thursday, drawing attention to the high court’s secretive ways via some cheap laughs.”

You can access the video on YouTube by clicking here.


10 United States Supreme Court Cases State & Local Government Care About

posted by Judge_Burke @ 15:23 PM
October 24, 2014

The Council of State Governments reports:

Gregory Holt, an inmate at the Arkansas Department of Corrections, wants to grow his beard as a practicing Salafi Muslim. But Arkansas Corrections restricts beard length to a quarter of an inch. In protest, Holt filed a petition, arguing that the policy is a violation of his religious liberties under the federal Religious Land Use and Institutionalized Persons Act. Holt’s case is one of many scheduled to be heard by the U.S. Supreme Court in its [current] term.

Justices have already agreed to hear a host of cases that could affect state or local government. The disputes cover a range of issues, from a small town sign code that could be restricting free speech to a state regulatory board alleged to be violating federal antitrust laws.

In the Holt case, scheduled for a hearing Oct. 7, attorneys general from 18 states have written to support Arkansas, contending that “uniform grooming policies serve compelling interests in security, order, hygiene and discipline.” Judges should defer to prison officials in balancing religious rights with public health and safety, the attorneys general say.

The attorneys general supporting Arkansas note that in other state prisons, inmates have hidden shanks, wire, rocks, razor blades and handcuff keys in their hair and beards. They also say that when inmates are allowed to grow facial hair and then shave it, the dramatic change in appearance poses a security risk, as prison guards might not recognize the inmate. If the court sides with Holt, the ruling will probably have narrow implications for prison grooming policies, but it could have larger meaning in terms of how prisons and jails balance safety concerns with religious liberties.

The State and Local Legal Center (SLLC) has identified 10 cases, including Holt’s, that might affect state and local government. The center files amicus briefs with the Supreme Court on behalf of the National Governors Association, the Council of State Governments, the National Association of Counties, the National League of Cities and the International City/County Management Association.  Lisa Soronen, the executive director at SLLC, also has curated a separate list of other relevant cases that the Supreme Court could decide to hear this term.


The Strange Case of Judge Jones

posted by Judge_Burke @ 15:48 PM
October 23, 2014

Judge Edith Jones was nominated to the bench by President Ronald Reagan, and until recently was the chief judge of the Fifth Circuit.  She was mentioned during Republican administrations as a possible Supreme Court nominee.

In 2013, Judge Jones gave a speech to the Federalist Society chapter in Pennsylvania.  Shortly after the speech a group of legal ethicists and civil rights groups claimed, among other things, that Judge Jones said in her speech that “racial groups like African-Americans and Hispanics are predisposed to crime.”

The complaint said such statements violated the judicial code’s requirement that a judge be impartial and avoid damaging public confidence in the judiciary.  In the Washington Post, Professor Eugene Volokh wrote,

The decision is here; it was handed down in August, but it’s only now being publicized, together with an appeal by complainants. The facts are complicated, and the Report of the Special Committee (which begins on page 5) is pretty readable, though long, so I’ll refer readers to it.

Because Jones’s speech wasn’t recorded, and because the witnesses’ recollections differ (and in any case fall prey to the perils inherent in such recollections), it’s not easy to know just what was said.


The propriety of judicial speech is not a simple matter.  Although long, for those interested in the subject, the decision is worth reading.





Wisdom from Linda Greehouse: We Need Explanations

posted by Judge_Burke @ 14:00 PM
October 22, 2014

One of the key things judges at every level of service can do to build trust in the judiciary is to be very good in giving explanations.

Understandable explanations are bedrock to procedural fairness – and essential in an era where trust in the judiciary is not what it should be.  Linda Greenhouse has a short commentary about the opening week of this term of the United States Supreme Court. She writes, in part,

I keep thinking of Chief Justice John Marshall’s famous declaration in Marbury v. Madison 211 years ago that launched the Supreme Court on its project of judicial review:  “It is emphatically the province and duty of the judicial department to say what the law is.” O.K., at this point, I would settle for something less ambitious. I’d be grateful if the Supreme Court would say something.


The full commentary cany be found here.


Anchoring is an Issue All Thoughtful Judges Need to Be Aware Of

posted by Judge_Burke @ 14:27 PM
October 21, 2014

Anchoring is an issue which all thoughtful judges need to be aware of.  Mark W. Bennett has posted Confronting Cognitive ‘Anchoring Effect’ and ‘Blind Spot’ Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw (Journal of Criminal Law and Criminology, Vol. 104, No. 3, p. 489, 2014) on SSRN.  Although the article is focused upon federal sentencing practices, it contains lessons for all judges.

Here is the abstract:

Cognitive “anchoring effect” bias, especially related to numbers, like sentencing guidelines ranges, is widely recognized in cognitive psychology as an extremely robust and powerful heuristic. It is a cognitive shortcut that has a strong tendency to undermine judgments by “anchoring” a judgment to an earlier disclosed number, the anchor. Numerous studies prove anchoring bias produces systematic errors in judgment in wide-ranging circumstances, including judgments by experts — doctors, lawyers, real estate agents, psychologists, and auditors — as well as a variety of decisions by foreign and American federal and state judges. The anchoring effect occurs even when the anchor is incomplete, inaccurate, irrelevant, implausible, or even random. Roughly corresponding in time with the developing understanding of the anchoring effect, federal sentencing has undergone a revolution from judges having virtually unlimited discretion, to virtually no discretion, and back to considerable discretion, as the Federal Sentencing Guidelines went from mandatory to advisory in a single monumental U.S. Supreme Court decision, United States v. Booker, 543 U.S. 220 (2005). Surprisingly, since judges were granted much greater discretion in Booker, the length and severity of federal sentences, for the most part, has not changed. This remains true despite long-standing, persistent, and widespread dissatisfaction among federal district court judges with the Guidelines and the length of sentences. This Article argues that this is because judges’ sentences are subconsciously anchored by the calculated Guidelines range.


Ebola and Court Administration

posted by Judge_Burke @ 14:22 PM
October 20, 2014

Ebola Response:

A Practical Approach for Court

By Gregory J. Cowan


With Ebola in the news, judges, court administrators, and other court officials may be considering how best to respond.  Provided below are three main issues judges, court administrators, and other court officials may wish to consider.  Also, court specific emergency planning implications are provided for each of these three main issues.


Issue One: Use Your Court’s All-Hazards Emergency Planning

Courts should consider responding to the Ebola threat within their existing all-hazard emergency management planning efforts.  These planning efforts should involve 1) critical incident/evacuation plans, 2) continuity of operations plans (COOP), and 3) IT disaster recovery plans.  In developing these three plans, at least seven key elements of court emergency management should have been considered or addressed.  These seven key elements are:

  1. ​Address leadership issues;
  2. Dedicate court staff to emergency management issues;
  3. Build and strengthen collaborative relationships with individuals within the emergency management community;
  4. Develop redundant communications;
  5. Develop a self-sufficient workforce;
  6. Develop a written version of each of the three plans; and
  7. Test, maintain, and exercise each of the three plans.

Hopefully, some level of this type of all-hazard emergency planning has occurred within the court.  If so, the response to the Ebola incident should fall within the context of this all-hazards planning.

Additionally, the National Center for State Courts (NCSC) has materials as well as education and consulting services available to assist.


Issue Two: Consider the Unique Nature of Health Emergencies on the Courts

Judges, court administrators, and other court officials should consider the unique issues associated with an event like Ebola or other health emergency (i.e., pandemic influenza.)  Below are four unique aspects of these health related emergency events with planning implications provided for each.

  1. ​Unlike many emergency events, health emergencies are not necessarily short-term, singular events.  Rather, health emergencies may occur over a longer timeframe or may come in multiple “waves” of varying duration and varying virulence.  Among other planning adjustments, extra attention should be paid to the impact on staff created by the uncertainty of the nature of the event itself. 
  2. The duration of the event may be longer than can be addressed within the 30 day event horizon standard for COOP.  Therefore, COOP activation for such an event may need to be extended perhaps to as long as 90 days.
  3. The impact of these events is primarily on people not physical property or technical infrastructure.  Therefore, rather than considering a move to an alternate facility as required in COOP, planning may need to consider how to perform the mission essential functions in an environment requiring limited or no face-to-face contact.
  4. Unique legal issues (i.e., quarantine/isolation issues, issues of contaminated waste, etc.) outside of the standard mission essential functions may be required.  Numerous courts have developed bench books or other guides to assist in handling these issues.  Court emergency planning should include a familiarization and preparation to handle these legal matters. 

The NCSC has available and has produced a number of resources to educate and assist with the management of these unique health related emergency events.


Issue Three: Semper Gumby

In response to all emergency events, flexibility and stress management are a must.  It is impossible to remove the “emergency” from emergency management.  As stated by Dr. Bruce Ribner, an infectious disease specialist, “It doesn’t matter how much you plan. You’re going to be wrong half the time.”

Maintaining composure and systematically addressing issues under the existing court emergency management structure will go a long way to successfully responding and recovering from any emergency event.  This type of stability is especially necessary for an institution such as courts given our critical role of maintaining the rule of law.


This Issue Will Not (Nor Should It) Go Away

posted by Judge_Burke @ 14:00 PM
October 17, 2014

For the public, when they hear the jury acquits, the conclusion is that is the end of it.  But, for those of us who are part of the criminal justice system, we know that sometimes judges sentence based upon conduct that was not proven beyond a reasonable doubt (acquitted conduct).

Lyle Denniston has this post at SCOTUSblog:  “The jury acquits, the judge still sentences. Can that be?“  His piece is worth reading.



There may be few issues as troublesome as end of life decisions.

There are people who have deeply held moral beliefs that any attempt to end life is immoral. There are a large number of people who are very comfortable with “do not resuscitate” instructions. And, now we have an interesting case pending before the Canadian Supreme Court on physician-assisted death.

There are two informative and thought-provoking articles about the case in The Globe and Mail. The first can be found here. The second looks at components of what the case is or is not about, and can be found here.