Should a Judge Remove the Defendant’s Choice of Attorney?

posted by Judge_Burke @ 15:43 PM
February 15, 2018

David McGowan (University of San Diego School of Law) has posted The Criminal Conflicts Paradox on SSRN.

Here is the abstract:

Prosecutors may seek to disqualify defense counsel based on conflicts among defendants. In doing so prosecutors do not assert rights of current, former, or prospective clients, as in the usual conflicts assertion. They instead assert other interests, the most concrete of which is the interest in not wasting resources in a retrial if a conviction is tainted by a conflict.

Wheat v. United States sets a lenient standard for assessing such assertions. Judges may disqualify defense counsel even if the relevant parties are willing to waive conflicts that should be waivable as both a positive and normative matter. Wheat rested this standard on a set of concerns that are insufficient to justify its holding. As colloquy at argument showed, the Court was particularly concerned that defendants would not be held to waivers but instead would challenge on appeal even knowing and intelligent waivers of waivable conflicts.

Wheat was wrong on the facts, wrong on the law, and sets bad policy. It was wrong on the facts because the conflict at issue was waivable and the trial court abused its discretion in holding that it was not. It was wrong on the law because it collapsed materially different conflicts into one category and because it refused to decide whether a knowing waiver would bind a court. It set bad policy because it sought to offset the free option of appeal with a free option to prosecutors to challenge defense counsel.

The Court’s concern illustrates the risk to defendants of permissive standards of appeal. A defendant unable to commit credibly to a waiver may lose the benefits a waiver would provide, with little or no gain to offset the loss. This paper frames the problem of permissive standards of appeal by drawing a partial analogy to the familiar “lemons” framework. The problem is discussed more fully in future work.

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I Will Just Look it Up on the Internet

posted by Judge_Burke @ 15:30 PM
February 14, 2018

In Formal Opinion 478, the ABA Standing Committee on Ethics and Professional Responsibility addresses the restrictions imposed by the 2007 ABA Model Code of Judicial Conduct on a judge searching the internet for information helpful in deciding a case. The ABA opinion concludes that Rule 2.9(C) of the Model Code prohibits a judge from researching adjudicative facts on the internet unless a fact is subject to judicial notice.

Rule 2.9(C) clearly and definitively declares that “a judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.” Acknowledging the integral part that search engines play in everyday life, Comment 6 to Rule 2.9 bluntly tells judges that the prohibition “extends to information available in all mediums, including electronic.”

While recognizing that the internet, including social networking sites, provides immediate access to a limitless amount of information potentially useful to a judge laboring over difficult case-specific factual issues, the recent ABA opinion highlights two important justifications for the prohibition against electronic factual research.

First, information found on the web may be fleeting, biased, misleading and sometimes downright false. Second, unless the narrow judicial-notice exception applies, gathering even trustworthy information from the internet compromises the division of responsibility between the judge and the parties so essential to the proper functioning of the adversarial system. The committee emphasizes this point by describing the “defining feature” of the judicial role as a judge’s duty to base decisions only on evidence presented in court and available to the parties.

The limitations on independent factual research by judges are not solely a matter of judicial ethics. Rule 2.9(C) is one of the few provisions of the Model Code that integrates an evidentiary rule into an ethical standard. Rule 2.9(C) permits a judge to consider a fact from sources other than the evidence submitted by the parties as long as the judge abides by his or her jurisdiction’s requirements for taking judicial notice of the fact. Incorporating a rule of evidence into an ethical rule complicates the analysis because, as noted by the committee, judicial notice standards and procedures vary significantly from jurisdiction to jurisdiction. 

For more of this article which appeared in the ABA Journal, go here.

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Bush v. Gore, the Sequel

posted by Judge_Burke @ 15:30 PM
February 13, 2018

There are many people who believe that Bush v. Gore was a very political decision, which may explain why the majority in that decision arguably limited the case’s precedential authority. While the Court in Bush v. Gore stated that its “‘consideration is limited to the present circumstances,’ I believe that statement was not meant to deprive the decision of all precedential weight but, rather to make clear that the precise facts of the case were unique.”  Chief Justice Roberts said  at his confirmation hearing.

So, what now of the case from the Commonwealth of Pennsylvania? The Supreme Court of  Pennsylvania held that there was unconstitutional gerrymandering…and they ruled that gerrymandering violated Pennsylvania’s Constitution. So, will the present United States Supreme Court become the modern day “activist” or “partisan” court?

As reported in How Appealing:

Supreme Court signals it might block Pennsylvania ruling against partisan gerrymandering

David G. Savage of The Los Angeles Times has this report. The petition seeking the United States Supreme Court’s intervention in a case decided squarely on independent state grounds cites Bush v. Gore as the reason the United States Supreme Court should intervene.

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Something About Hawaii You May Have Missed

posted by Judge_Burke @ 19:17 PM
February 12, 2018

The issue will perhaps never arise in your court, but in light of the American Judges Annual Conference being held in Hawaii this September, it might be of interest.

The Washington Times recently reported:

A criminal defendant’s controversial use of the Hawaiian language during a Wailuku District Court hearing this week has prompted the Aloha State to revise its policy for providing interpreters.

The Hawaii State Judiciary on Friday announced it will start offering Hawaiian language interpreters, albeit two days after Wailuku District Judge Blaine Kobayashi issued a bench warrant for the arrest of Samuel Kaeo, a Maui man who refused to answer the judge’s questions in English. 

Mr. Kaeo, though an English speaker, addressed the court in Hawaiian, which has also been recognized in the state constitution alongside English as an official language since 1978.

“The Judiciary will provide or permit qualified Hawaiian language interpreters to the extent reasonably possible when parties in courtroom proceedings choose to express themselves through the Hawaiian language,” the state’s court system said in a press release.

“The Judiciary will develop implementation procedures for this policy, and welcomes input from the community,” the announcement said.”

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As the Sergeant Said on Hill Street Blues: “Be Careful Out There”

posted by Judge_Burke @ 15:00 PM
January 30, 2018

Glen J. Dalakian II has posted Open the Jail Cell Doors, HAL: A Guarded Embrace of Pretrial Risk Assessment Instruments (87 Fordham L. Rev., Forthcoming) on SSRN.

Here is the abstract:

In recent years, criminal justice reformers have focused their attention on pretrial detention as a uniquely egregious and solvable contributor to modern mass incarceration. While bail reform can take many forms, one of the most pioneering and controversial techniques is the adoption of actuarial models to inform bail decisions. These models are designed to supplement or replace the unpredictable and discriminatory status quo of judicial discretion when setting bail. This Note argues that policymakers should experiment with risk assessment instruments as part of their bail reform efforts, but only if proper safeguards are in place. 

Concerns for protecting constitutional rights, mitigating racial disparities, and avoiding the drawbacks of machine learning are key challenges for reformers. Absent proper precautions, risk assessment instruments can reinforce modern disparities rather than alleviate them. Drawing from a case study of New Jersey’s recent bail reform program, this Note examines the efficacy, impact, and pitfalls of risk assessment instrument adoption. Finally, this Note offers a broad framework for policymakers seeking to thoughtfully experiment with risk assessment instruments in their own jurisdictions.

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Reflecting Upon What You Want to Accomplish as a Judge

posted by Judge_Burke @ 15:00 PM
January 26, 2018

When your career is over and you look back on what is it that you would like to say about what you accomplished, one thing is, I was fair (check). Fairness means you gave voice to the people who appeared in your court. Those people left your court understanding what you decided and why you decided it. I communicated well in either what I said or what I wrote (check). I took the opportunity to use my position as a judge to leave the justice system a better place? There are judges who may not put a check here.

There is in interesting new article written by Jessica Roth (Yeshiva University – Benjamin N. Cardozo School of Law) that begins:

The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire. For too long, too many judges (including me) have been too quiet about an evil of which we are ourselves a part: the mass incarceration of people in the United States today.

You do not have to agree fully with Chief Justice Roberts’ insistence that Supreme Court Justices never do anything but call balls and strikes to believe that, most of the time, judges should try to act as umpires, not players. When the ground rules are relatively clear, the strike zone is well-defined, and the game is working well, an umpire/judge should seek to apply the rules fairly and blend into the background. What should happen, though, when an experienced umpire/judge believes that the rules are harming the game, threatening one or more of the players with serious injury? Notwithstanding Justice Roberts’s insistence that “nobody  ever went to a ballgame to see the umpire,” over the last decade, a cohort of well- respected and experienced federal trial judges have engaged in an unmistakably public campaign for criminal justice reform that causes them to look more like players than umpires.

So, you may be thinking, “I am not a federal judge (and am not likely to be one) nor I am a family court, limited jurisdiction, or civil trial court judge…so why read an article about the escapades of Federal District Court judges?” The answer is, because we become better judges by occasionally putting a question mark on things we have for too long taken as a given.

The article is: The ‘New’ District Court Activism in Criminal Justice Reform (NYU Annual Survey of American Law, Forthcoming) on SSRN. Here is the abstract:

Historically, the debate over the judicial role has centered on the constitutional and administrative law decisions of the United States Supreme Court, with an occasional glance at the Federal Courts of Appeals. It has, moreover, been concerned solely with the “in-court” behavior of Article III appellate judges as they carry out their power and duty “to say what the law is” in the context of resolving “cases and controversies.” This Article seeks to deepen the discussion of the appropriate role of Article III judges by broadening it to trial, as well as appellate, judges; and by distinguishing between an Article III judge’s “decisional” activities on the one hand, and the judge’s “hortatory” and other activities on the other. To that end, the Article focuses on a cohort of deeply respected federal district judges-many, although not all, experienced Clinton appointees in the Southern and Eastern Districts of New York–who, over the last decade, have challenged conventional norms of judicial behavior to urge reform of fundamental aspects of the federal criminal justice system. These “new” judicial activists have made their case for reform in the pages of their judicial opinions, often in dicta; in articles and speeches; and through advocacy within and beyond the judicial branch. This Article summarizes this activity, places it in historical context, and assesses its value as well as its risks.

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Mental Health Courts and Sentencing Disparities

posted by Judge_Burke @ 15:00 PM
January 24, 2018

E. Lea Johnston and Conor Flynn (University of Florida – Levin College of Law and University of Florida – Levin College of Law) have posted Mental Health Courts and Sentencing Disparities (62 Vill. L. Rev. 685 (2017)) on SSRN.

Here is the abstract:

Despite the proliferation of mental health courts across the United States, virtually no attention has been paid to the criminal justice effects these courts carry for participants. This article provides the first empirical analysis of differential sentencing practices in mental health and traditional criminal courts. Using a case study approach, the article compares how Pennsylvania’s Erie County Mental Health Court and county criminal courts sentenced individuals who committed the same offenses and held the same average criminal history score. Information on the mental health court — including eligibility criteria, plea bargaining and sentencing procedure, sentencing policies, program length, graduation rates, likelihood of early discharge, and consequences of unsuccessful termination — derive from interviews with key mental health court professionals, five years of collected sentencing and dispositional data, and court materials. The Pennsylvania Commission on Sentencing provided the county-level data, which were disaggregated by offense and criminal history score. The article analyzes sentencing for twelve offenses spanning four offense grades. 

The findings are striking. First, analysis reveals that anticipated mental health court sentences typically exceed — by years — the supervisory periods that offenders would otherwise receive in a county criminal court. Second, mental health court participants with multiple convictions were significantly more likely to receive consecutive, as opposed to concurrent, sentences than those sentenced by traditional courts. Third, the analysis suggests the mental health court usually does not divert individuals from jail or prison sentences — a primary justification for these courts — but instead merely extends state control over individuals with serious mental illnesses. Fourth, key mental health court actors appear unaware of likely sentencing disparities or the high rate of participant failures. Thus, offenders choosing between mental health and traditional courts may go uninformed about these fundamental differences. The article concludes with suggestions for future research.

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Should Judges Be More Cautious About Risk Assessment Instruments?

posted by Judge_Burke @ 20:49 PM
January 23, 2018

In the last decade there has been a proliferation of risk assessment tools, mostly driven by the attempt to achieve “evidence based sentencing” or more rational pretrial release decisions. More recently there have been notable skeptics like former Attorney General Holder. But, even if you don’t go quite that far, there are judges who employ the instruments with such rigidity that they become a substitute for judgment, not an aid for judgment.

As reported by Professor Doug Berman in his Sentencing Law & Policy blog, a new research article in the latest issue of Science Advances provides a notable new perspective on the debate over risk assessment instruments. The article is authored by computer scientists Julia Dressel and Hany Farid and is titled, “The accuracy, fairness, and limits of predicting recidivism.”

Here are parts of its introduction:

In the criminal justice system, predictive algorithms have been used to predict where crimes will most likely occur, who is most likely to commit a violent crime, who is likely to fail to appear at their court hearing, and who is likely to reoffend at some point in the future.

One widely used criminal risk assessment tool, Correctional Offender Management Profiling for Alternative Sanctions (COMPAS; Northpointe, which rebranded itself to “equivant” in January 2017), has been used to assess more than 1 million offenders since it was developed in 1998. The recidivism prediction component of COMPAS — the recidivism risk scale — has been in use since 2000.  This software predicts a defendant’s risk of committing a misdemeanor or felony within 2 years of assessment from 137 features about an individual and the individual’s past criminal record.

Although the data used by COMPAS do not include an individual’s race, other aspects of the data may be correlated to race that can lead to racial disparities in the predictions. In May 2016, writing for ProPublica, Angwin et al. analyzed the efficacy of COMPAS on more than 7000 individuals arrested in Broward County, Florida between 2013 and 2014.  This analysis indicated that the predictions were unreliable and racially biased.  COMPAS’s overall accuracy for white defendants is 67.0%, only slightly higher than its accuracy of 63.8% for black defendants.  The mistakes made by COMPAS, however, affected black and white defendants differently: Black defendants who did not recidivate were incorrectly predicted to reoffend at a rate of 44.9%, nearly twice as high as their white counterparts at 23.5%; and white defendants who did recidivate were incorrectly predicted to not reoffend at a rate of 47.7%, nearly twice as high as their black counterparts at 28.0%. In other words, COMPAS scores appeared to favor white defendants over black defendants by under predicting recidivism for white and over predicting recidivism for black defendants….

While the debate over algorithmic fairness continues, we consider the more fundamental question of whether these algorithms are any better than untrained humans at predicting recidivism in a fair and accurate way.  We describe the results of a study that shows that people from a popular online crowdsourcing marketplace — who, it can reasonably be assumed, have little to no expertise in criminal justice — are as accurate and fair as COMPAS at predicting recidivism. In addition, although Northpointe has not revealed the inner workings of their recidivism prediction algorithm, we show that the accuracy of COMPAS on one data set can be explained with a simple linear classifier.  We also show that although COMPAS uses 137 features to make a prediction, the same predictive accuracy can be achieved with only two features. We further show that more sophisticated classifiers do not improve prediction accuracy or fairness. Collectively, these results cast significant doubt on the entire effort of algorithmic recidivism prediction.

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What is Appropriate Attire in a Courtroom?

posted by Judge_Burke @ 16:59 PM
January 19, 2018

No shoes, no shirt, no justice. By providing courthouse staff with broad discretion and few guidelines, courtroom dress codes can violate constitutional rights. One solution:  getting more judges involved in deciding what’s appropriate and what is not. Here is original TMP commentary from Jeff Campbell, a third-year Harvard law student:  The Marshall Project.

There is more case law about courtroom attire than you may think. For example, a priest serving as an attorney may be required to wear non-clerical garb, at least where the dictates of his or her religion will not be violated. In La Rocca v. Lane, 37 N.Y.2d 575 (N.Y. 1975), the trial court held that the attorney, who was also a priest, could not wear his clerical collar while he was representing his client during a criminal trial. On appeal, the Court of Appeals agreed and held that the court of necessity limited defense counsel’s right to free exercise of religion in that he was compelled to remove the symbol of his religious calling, a requirement of his calling which is not unconditional or beyond dispensation. The risk that a fair trial could not be had outweighed this incidental limitation.

Chief Justice Robert N. Wilentz once wrote a memorandum entitled, “Courtroom Decorum and Respect for Courtrooms.” The memo contained a directive to trial judges not to restrict litigants from dressing as they choose. The memo stated, in pertinent part:

I do not believe we should try to influence how litigants or witnesses dress, absent something that approaches the obscene. I believe the fact finder, be it the jury or the judge, should see the litigant or witness as that person wishes to appear and reach whatever conclusions flow from that ‘fact.’ If a worker believes that he or she should dress the way he or she always does, I would not stop that; nor would I try to prevent that worker from dressing in a way he or she never does. I realize though this may not be in accord with present practice and welcome your views on it.

So, what is your take on the issue?

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Racial Profiling

posted by Judge_Burke @ 16:09 PM
January 17, 2018

If you are the victim of racial profiling, someone once said, you better hope you have a pound of marijuana in the trunk of your car–because of the marijuana, you will get a lawyer and a decent chance to be vindicated. 

But, what if you just get a ticket and no lawyer…what then? The fallout continues from Florida “walking while black” series. The Jacksonville state attorney last week issued a directive educating local police officials about the state’s pedestrian statutes, which have been enforced, a media investigation concluded, in a racially disparate fashion for years. Local officials immediately called for a suspension of the enforcement of those laws.

The article is here: ProPublica

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