The AJA Labor Day Weekend Post

posted by Judge_Burke @ 21:16 PM
August 29, 2014



40-hour work week grows to 47-60 hours


By Paul Bedard | August 29, 2014


The old “9 to 5” work week is becoming about as obsolete as the American Dream.

A new Gallup poll finds that economically-stressed Americans are now working an “average” of 47 hours, with a growing number clocking 60 hours or more.

“Adults employed full time in the U.S. report working an average of 47 hours per week, almost a full workday longer than what a standard five-day, 9-to-5 schedule entails. In fact, half of all full-time workers indicate they typically work more than 40 hours, and nearly four in 10 say they work at least 50 hours,” said Gallup, based on their 2014 Work and Education survey.

Full time workers:

— Less than 40 hours per week, 8 percent.

— 40 hours, 42 percent.

— 41-49 hours, 11 percent.

— 50-59 hours, 21 percent.

— 60 hours or more, 18 percent.

Gallup said that salaried workers are putting in more hours, on average five hours more per week, 49 vs. 44 for hourly workers.

That comes with a cost. “While workers earning a salary may enjoy greater income than their counterparts who are paid hourly, they do pay a price in lost personal time,” said Gallup.




Police & The United States Supreme Court

posted by Judge_Burke @ 18:10 PM
August 28, 2014

The vast majority of police in this country are dedicated public servants. Being a police officer has rewards, but – make no mistake – it is also a job that can take a personal toll. And there are officers who do not live up to the standards we hope for.

American Judges Association members who have attended our annual conferences know there are few more thoughtful commentators on the United States Supreme Court than Professor Erwin Chemerinsky. Fortunately for us, he will again be at our conference in Las Vegas.

How the Supreme Court Protects Bad Cops:  Erwin Chemerinsky recently had this op-ed in The New York Times.


Public Access to Criminal Trials

posted by Judge_Burke @ 16:00 PM
August 27, 2014

Thanks to Judge Wayne Gorman, we have an illustration of the differences between public access to a criminal trial in the United States and in Canada.

Recently, the Supreme Court of Canada considered when an accused person must be allowed to testify in the absence of the public.

The United States perspective is illustrated by Justice Brenan, who wrote for the United States Supreme Court,

“[A]t the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open. And since that time, the presumption of openness has remained secure. Indeed, at the time of this Court’s decision in In re Oliver, the presumption was so solidly grounded that the Court was unable to find a single instance of a criminal trial
conducted in camera in any federal, state, or municipal court during the history of this country.  This uniform rule of openness has been viewed as significant in constitutional terms not only because the Constitution carries the gloss of history, but also because a tradition of accessibility implies the favorable judgment of experience.”

Globe Newspaper Co. v.  Superior Court, 457 U.S. 596, 605 (1982) (internal quotations and citations omitted).

But, the fact situation that the Supreme Court of Canada considered was a bit odd:

In R. v. Hart, 2014 SCC 52, July 31, 2014, the accused was convicted of murdering his two young daughters. The accused confessed to the murders during a “Mr. Big” operation.  In  such an operation the police pretend to be involved in a large scale criminal organization in which membership requires an interview with the head of the crime organization (“Mr. Big”) in which “confessing to the crime provides a ticket into the criminal organization and safety from the police.”

During his trial, the accused sought to testify with the public excluded.  The trial judge dismissed the application and the accused did not testify.

The convictions entered at the trial were overturned by the Court of Appeal.  The Crown appealed to the Supreme Court of Canada. The following issues were raised:

1) Did the trial judge err in admitting the confessions made by the respondent during the Mr. Big operation?

2) Did the trial judge err in precluding the respondent from testifying with the public excluded from the courtroom?

The Supreme Court of Canada dismissed the appeal.  It held that the accused should have been allowed to testify in the absence of the public.  In addition, it created a new common law test for the admission of “Mr. Big” confessions (such a confession is presumptively inadmissible and admissibility requires the Crown to establish on a balance of probabilities that the probative value of the confession outweighs its prejudicial effect). The Supreme Court applied this test to the confession elicited in this case and ruled that it was inadmissible.



The Supreme Court of Canada held “that where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him, any  confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility will be overcome where the Crown can   establish, on balance, that the probative value of the confession outweighs its prejudicial effect.  In this context, the confession’s probative value is a function of its reliability.  Its prejudicial effect stems from the harmful character evidence that necessarily accompanies its admission.  If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidence surrounding the Mr. Big operation becomes irrelevant.”

As to how probative value is to be assessed, the Supreme Court held that a court must consider “the circumstances in which the confession was made” and look to “the confession itself for markers of reliability” (at paragraph 105).  The Supreme Court held that in “the end, trial judges must weigh the probative value and the prejudicial effect of the confession at issue and decide whether the Crown has met its burden.  In practice, the potential for prejudice is a fairly constant variable in this context” (at paragraph 108).


 In addition, the Court held that trial judges “must also carefully scrutinize the conduct of the police to determine if an abuse of process has occurred.  No matter how reliable the confession, the courts cannot condone state conduct — such as physical violence — that coerces the target of a Mr. Big operation into confessing.  Where an accused establishes that an abuse of process has occurred, the court can fashion an appropriate remedy, including the exclusion of the confession or a stay of proceedings.”  The Court concluded, at paragraph 115, that the “police cannot be permitted to overcome the will of the accused and coerce a confession.  This would almost certainly amount to an abuse of process.”


The Supreme Court of Canada noted, at paragraph 51, while “the importance of the open court principle cannot be doubted, s. 486(1)  of the Criminal Code, R.S.C. 1985, c. C-46 , provides trial judges with a discretion to exclude the public from the courtroom in several
circumstances, including where such an order is in the interests of ‘the proper administration of justice’. In Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, this Court set out three factors trial judges are to consider in making such an order: (1) the availability of reasonable and effective alternatives; (2) whether the order is limited as much as possible; and (3) the importance of the order’s objectives and its probable
effects when weighed against the importance of openness and the particular expression that will be limited.”

The Supreme Court concluded that the trial judge’s “error lay at the third stage of the test” (at paragraphs 53 to 55):

 A trial judge’s decision under s. 486(1)  is entitled to deference and “should not lightly be interfered with” (Canadian Broadcasting Corp., at para. 78).  Here, however, I am respectfully of the view that the trial judge erred in refusing the respondent’s request.  The trial judge’s error lay at the third stage of the test.  To begin, the respondent’s testimony was critically important in the circumstances of this case.  If he was to be acquitted, the jury would have to believe, or at least have a reasonable doubt, that the confessions he made during the Mr. Big operation were false.  Testifying in order to disavow them was a near tactical necessity for the respondent.  The respondent sought to testify outside of the
presence of the public in part because he was concerned that the stress of testifying in front of a full courtroom would cause him to have a seizure.  It was incumbent on the trial judge, in the unique circumstances of this case, to take reasonable steps to accommodate the respondent’s disability and to facilitate his testimony. 

Unfortunately, the trial judge mistook the nature of the respondent’s request, as is apparent from his comment that he was reluctant to prevent the public from “hear[ing]” the respondent’s evidence.  The respondent was not asking that the public be completely foreclosed from hearing his evidence.  Rather, he simply wanted to testify outside of their physical presence.  As such, his evidence could have been made available to the public, while granting his request, by broadcasting his testimony into another courtroom on closed  circuit television.  In the particular circumstances of this case, granting the accommodation sought would not, in my view, have undermined the open court principle. 

As a result, I agree with the conclusion of the Court of Appeal.  This error alone necessitates a new trial.


After excluding the accused’s confession, the Supreme Court of Canada said: “it is doubtful whether any admissible evidence remains upon which a jury, properly instructed and acting reasonably, could convict.  However, the final decision on how to proceed rests with the Crown.”




No Weed for Colorado Judges

posted by Judge_Burke @ 14:00 PM
August 26, 2014

By Hannah Garcia, Law Week Colorado

Although a state constitutional amendment allows Coloradans to legally light up and buy marijuana from retail shops, judges in the state are still barred from using the decriminalized drug.

The Colorado Judicial Ethics Advisory Board issued Opinion 2014-01 on July 31, advising Colorado judges that use of recreational or medicinal marijuana violates Rule 1.1 of the Code of Judicial Conduct because it is still illegal under federal law. The opinion came after a judge submitted a request regarding if Colorado judges can use marijuana privately and consistently with the state’s constitution.

“Rule 1.1 requires judges to comply with the law,” the opinion read. “Although neither the rule nor the terminology section specifies that Rule 1.1 requires compliance with federal as well as state law, it is beyond dispute that judges are required to comply with federal law.”

At the heart of the issue is the idea of “minor” violations, like a parking ticket or letting a dog run off leash. Because drug-related offenses are not listed as exceptions in the Code of Judicial Conduct, the advisory board decided that a judge’s marijuana use is not a “minor” violation of the law. The idea of “minor” violations of law being exempt from ethics discipline, as provided in Rule 1.1(b), is something unique to Colorado.


The High Cost of Justice

posted by Judge_Burke @ 14:00 PM
August 25, 2014

In a search for revenue, many counties, states (and courts) have been pretty creative in finding things to charge for. The East Bay Express has an interesting article written by Beth Winegarner which raises questions about at what point is a fee for service wrong….or unconstitutional:

Alameda County is now charging high fees to look at court documents online — a new cost that some legal experts say may be unconstitutional.

Ben Rosenfeld is the sort of litigator that many young attorneys start out hoping they’ll become: He defends political activists, victims of police misconduct, and injured bicyclists. Many of his clients have little to no money, meaning Rosenfeld only gets paid if he wins. It also means that when courts charge for access to documents, it undermines his ability to research the legal landscape — and threatens his ability to keep assisting low-income clients.

In April, the Alameda County Superior Court quietly began charging $1 per page to view most of its legal documents online. Although the price drops to 50 cents after the fifth page, and the total cost for any document is capped at $40, those costs add up quickly when Rosenfeld is studying similar cases to determine which legal arguments are most likely to help his client. “It caught me by surprise,” he said. “I represent almost exclusively indigent plaintiffs in civil-rights cases, and it’s my responsibility to do everything I can to try to limit my clients’ costs.”

In response, Rosenfeld launched a petition urging the court to reconsider its fees, which are ten times higher than the cost of accessing files in the federal court’s system, PACER. In the petition, hosted at, Rosenfeld contends that the fees might violate the Sixth and Fourteenth Amendments of the Constitution, which protect citizens’ right to counsel, due process, and access to justice.


The full article can be found here.


Florida Supreme Court Regulates Informant Testimony

posted by Judge_Burke @ 14:20 PM
August 21, 2014

In 2012, the Florida Innocence Commission made a series of reform recommendations in recognition of the “dangers of false informant and jailhouse snitch testimony.” The Florida Supreme Court has now amended the rules of evidence to reflect those recommendations. See In re: Amendments to Florida Rules of Criminal Procedure 3.220 (Fla. 2014).

The Miami Herald reported the story:

Florida’s high court puts brakes on snitches’ testimony


The Florida Supreme Court . . . finally has changed the rules of evidence. Beginning this month, prosecutors now are required to disclose both a summary of the jailhouse informant’s criminal history and just what kind of deal a snitch will be getting in return for testimony. And now, jurors will hear about prior cases that relied on testimony from that particular informant.

The justices ordered new restrictions on the much abused informant testimony, because snitches, the court noted, “constitute the basis for many wrongful convictions.” It was an unanimous decision. It was about time.



New Jersey’s Eyewitness Jury Instruction

posted by Judge_Burke @ 14:00 PM
August 20, 2014

Athan P. Papailiou, David V. Yokum, and Christopher T. Robertson (University of Arizona; University of Arizona – James E. Rogers College of Law; and University of Arizona – James E. Rogers College of Law) have posted The Novel New Jersey Eyewitness Instruction Induces Skepticism But Not Sensitivity on SSRN.

Here is the abstract:

In recent decades, social scientists have shown that the reliability of eyewitness identifications is much worse than laypersons tend to believe. The courts have only recently begun to react to this evidence, and New Jersey has, in particular, reformed its instructions to jurors, notifying them about the frailties of human memory, the potential for lineup administrators to nudge witnesses towards suspects that they police have already identified, and the advantages of certain lineup procedures including blinding of the administrator.


Deciding Whether to Recuse Yourself When the Appearance of Bias is Alleged

posted by Judge_Burke @ 14:27 PM
August 19, 2014

If you sit on the bench for any length of time, you will be faced with a motion to recuse.  Some motions are legitimate, some are frivolous, but they all require a judge to engage in honest self -reflection that is not always easy.  It is perhaps natural to get defensive when someone questions whether you can be fair.  When the basis of the recusal motion involves issues like race or religion, it is particularly hard.

The Chicago Sun Times recently had a story on a motion to recuse which began as follows:

A Jewish federal judge whose family has raised more than $3 million for a pro-Israeli charity angrily refused on Thursday to recuse himself from the terrorism-related trial of a southwest suburban Palestinian immigrant.

U.S. District Judge Paul Borman accused lawyers for Rasmieh Odeh of “careless and rank speculation” for suggesting that he couldn’t be impartial in Odeh’s case. He said Odeh’s lawyers do not have “a shred of factual support” for their “startling” suggestion that his many trips to Israel mean he has information about torture in Israeli prisons — a key issue in Odeh’s defense.

About 50 Chicagoans traveled by bus from Chicago to Michigan on Thursday to protest outside the Detroit courthouse where Borman sits. They later packed into his courtroom to show their support for the 66-year-old Odeh, who denies she lied to immigration officials about a terrorist past when she emigrated to the U.S. in 1995.

Odeh spent 10 years in an Israeli prison after an Israeli court convicted her of two terrorist bombings — one of which killed two people — in Jerusalem in 1969. But she failed to acknowledge that fact when she came to the U.S., and again when she successfully applied for U.S. citizenship in 2005, the feds said when they arrested her in the Chicago area in October.

In his order denying the motion to recuse, Judge Paul Borman said his religious and philanthropic activities were commonplace, and fell far short of the standard for personal involvement where a judge should remove himself from a case such as the prosecution of Arab-American activist Rasmea Odeh for allegedly failing to disclose her convictions by an Israeli military court in connect with a pair of bombings in Jerusalem in 1969.


“The law of recusal is clear that a judge’s prior activities relating to his religious convictions are not a valid basis for questioning his impartiality in a particular case,” Borman wrote in an 11-page ruling rejecting the defense motion.




Effective Assistance of Counsel in Plea Bargaining

posted by Judge_Burke @ 17:43 PM
August 18, 2014

Peter A. Joy and Rodney J. Uphoff (Washington University in Saint Louis – School of Law and University of Missouri School of Law) have posted Systemic Barriers to Effective Assistance of Counsel in Plea Bargaining on SSRN.

Here is the abstract:

In a trio of recent cases, Padilla v. Kentucky, Missouri v. Frye, and Lafler v. Cooper, the U.S. Supreme Court has focused its attention on defense counsel’s pivotal role during the plea bargaining process. At the same time that the Court has signaled its willingness to consider ineffective assistance of counsel claims at the plea stage, prosecutors are increasingly requiring defendants to sign waivers that include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims such as those that proved successful in Padilla and Frye. Had Jose Padilla and Galin Frye been forced to sign a waiver of any ineffective assistance of counsel claim as a condition of entering their pleas, and if the Supreme Court approved of such waivers, then neither Padilla nor Frye would have secured the relief the Court held that they deserved.

Waivers of ineffective assistance of counsel claims pose both legal and ethical issues.


Exploring the Impacts of Incarceration on Poor Black Men

posted by Judge_Burke @ 14:00 PM
August 14, 2014

We are a nation with great ideals, but we are also a nation with an over-incarceration and race problem.

Plugging the work of a local academic seems perfectly appropriate if you write a blog…so here goes:

Nekima Levy-Pounds (University of St. Thomas School of Law) has posted Par for the Course?: Exploring the Impacts of Incarceration and Marginalization on Poor Black Men in the U.S. (14 Journal of Law and Society 29 (2013)) on SSRN.

Here is the abstract:

African Americans represent 13% of the U.S. population, but represent nearly 40% of those who are incarcerated in local jails and state and federal prisons. Poor black men in particular are more susceptible to experiencing incarceration due to high rates of poverty, unemployment, marginalization, and exclusion from mainstream society. Additionally, laws and policies that comprise the war on drugs have fueled a tremendous growth in rates of incarceration for this segment of the population, with devastating consequences to boot for the children, families, and communities of those who are incarcerated. Further, this paper explores the links between the historical links between Thirteenth Amendment to the Constitution and the current over-representation of African Americans within the criminal justice system. Finally, this paper examines disturbing trends in unemployment, poverty, and incarceration of African American men in Detroit, Michigan.