AJA Member in the News

posted by Judge_Burke @ 17:16 PM
June 27, 2017

AJA Past President Mike Cicconetti is again in the news (see this blog’s post dated June 20, 2017). Drunk driving kills a lot of people and causes a lot of damage. Innovative approaches toward reducing recidivism are an imperative, and not surprisingly, Judge Mike Cicconetti has an approach that might just work:  This Judge is Using a Phone App to Combat Drunk Driving




Judicial Wisdom from Judge Wayne Gorman

posted by Judge_Burke @ 16:59 PM
June 26, 2017

Being a trial judge sometimes can be a challenge. Managing our emotions can be challenging. Managing other people’s emotions presents another layer of challenge.

Sometimes we do things that are not intended or not carefully thought out. Judge Wayne Gorman shared a case which provides a summary of where any of us can get in trouble:

R. v. Murray, 2017 ONCA 393, May 17, 2017, at paragraph 94:

The principal types of intervention that attract appellate disapprobation include, but are not limited to:

i. questioning an accused or witnesses in such a way as to convey an impression that the judge aligns him or herself with the case for the Crown;

ii. questioning witnesses in such a way as to make it impossible for counsel to present the defence case;

iii. intervening to such an extent in the testimony of the accused that it prevents the accused from telling his or her story; and

iv. inviting the jury to disbelieve the accused or other defence witnesses.


Advocacy for Mentally Ill Youth

posted by Judge_Burke @ 14:30 PM
June 21, 2017

Historically, judges in Canada are far more reluctant to engage with the press than judges in the United States. So this story stands out not just for the content, but for the willingness of the Canadian judge to talk with the press. The Canadian Broadcasting Corporation recently had this article: “‘I’m trying to save his life’: Judge blasts Alberta government for mentally ill teen with nowhere to go.”

Here are some excerpts:

An exasperated youth court judge summoned members of the media to his courtroom on Thursday as he dealt with the case of a mentally ill, drug addicted boy who has nowhere to go. Judge Steve Lipton who has served on the youth court for two decades says he is “very, very angry” about the lack of services and supports available for the vulnerable boy. “As a last resort I asked the media to come here because of my frustration of what is going on right now in the child welfare system,” said Lipton. “I am trying to save his life.”

The 14-year-old Indigenous boy — whose identity is protected by a publication ban — faces charges of assault, failure to appear, mischief, and theft. The teen also suffers from paranoia and hallucinations, has been diagnosed with gonorrhoea and is heavily addicted to crystal meth and alcohol. He believes people are going to kill him and inject him with drugs when he’s sleeping. “He’s mentally ill and I’m keeping him in jail and he’s a kid,” said Lipton. “What is wrong with this picture?”

The first option for the boy was to send him to a secure treatment bed under the Child Youth and Family Enhancement Act. All of those beds are full in the southern Alberta region. Lipton said he even inquired about having the boy sent to a secure safe house for children and youth who need substance abuse treatment under the Protection for Children Abusing Drugs Act. Again, all of those beds are full. The judge noted the boy’s social worker has gone “above and beyond” her duties in her efforts to try and secure a placement for the teen.

“I’m angry, very angry. He deserves to be in a treatment facility not in jail.” Lipton said he is “sick and tired” of the government not prioritizing programs and services for vulnerable, at-risk youth.

The full article is online here.



Require an App as a Condition of Probation?

posted by Judge_Burke @ 14:00 PM
June 20, 2017

Most first time drunk driver defendants have learned their lesson and do not repeat offend, but some do. So, would an app be an appropriate condition of probation? Get a Lyft from the bar, or get a lift to the slammer?

Ohio Judge Michael Cicconetti has been ordering drunk driving defendants to download ride-hailing apps as part of their sentences.

On June 6, a first-time offender who blew a .200 on a breathalyzer test was ordered to go through a prevention program, pay court costs, relinquish her license and, as part of her probation, download and activate Lyft or Uber on her phone. Cicconetti got the idea for the sentence after dealing with a repeat offender who would drive drunk despite living just blocks away from the bar, according to The News-Herald, a Cleveland-area newspaper.

For Judge Cicconetti, the requirement is a no-brainer. “If you can save one person from getting another [DUI], one person from getting into an accident, one person from hurting somebody else, it makes sense,” he told The News-Herald. “It doesn’t cost anybody anything to install it and activate it, and it’s far cheaper than paying the thousands of dollars you’d have to pay for another [DUI].”


For the full story, go here.



Changes in New Mexico

posted by Judge_Burke @ 16:49 PM
June 19, 2017

New Mexico’s supreme court has overhauled the state’s rules of practice and procedure to make the detention system more transparent and rational. The revised rules do not eliminate the use secured money bond, but they do take New Mexico closer to a pretrial system that balances fairness and public safety effectively and transparently. 


Achieving Diversity In Jury Pools

posted by Judge_Burke @ 14:00 PM
June 14, 2017

Five counties in Illinois have begun the first phase of a pilot program to increase jury diversity, Bernard Schoenburg recently wrote in The State Register-Journal. According to an Illinois State Courts E-Newsletter, the program was implemented following “a recommendation to test a new system for jury selection through a pilot program” by the Conference of Chief Circuit Judges.

According to Andy Kravetz of the Journal Star, the counties will “gather demographic on their jury pools and then use ZIP codes to ensure they get the right mix based upon population,” with the goal being to have the demographics of the state reflected in the pool of potential jurors. Schoenburg writes that the court will collect data from before and after the pilot is instituted to measure the impact of the new system. Circuit Judge John Schmidt said he “think[s] it’s important that every member in every segment of our society be represented for jury duty, to the best of the system’s ability.” Judge Steve Kouri added that under the current system “[w]e have a segment of the population who think the system is rigged, slanted, and a number of those aren’t people who are defendants” and that “[i]t’s very important that people think a verdict at trial, guilty or not guilty, is legitimate.”


Peacemaking In State Courts

posted by Judge_Burke @ 14:56 PM
June 9, 2017

New guide explores the restorative practice of peacemaking in state courts

In recent years, several state courts have been inspired by the Native tradition of peacemaking, which focuses on healing and restoration rather than an adversarial model of justice. With support from the State Justice Institute, the National Center for State Courts and the Center for Court Innovation partnered to produce a new guide, Inspired by Peacemaking: Creating Community-based Restorative Programs in State Courts. This guide describes the peacemaking method and its benefits, and provides implementation advice for state courts interested in launching their own program. The guide profiles state court peacemaking programs in Michigan, New York, and Illinois and describes how these programs are showing promising outcomes in helping communities address the revolving door of crime and disorder and their underlying causes of poverty, trauma, and violence.



The Amazing Justice Dana Fabe

posted by Judge_Burke @ 15:34 PM
June 6, 2017

Alaska Justice named recipient of the 2017 Sandra Day O’Connor Award for the Advancement of Civics Education


(Williamsburg, VA) May 9, 2017 – Former Alaska Supreme Court Chief Justice Dana Fabe has been named recipient of the 2017 Sandra Day O’Connor Award for the Advancement of Civics Education, presented annually by the National Center for State Courts.

The award honors an organization, court, or individual who has promoted, inspired, improved, or led an innovation or accomplishment in the field of civics education related to the justice system. The award will be presented August 8 in Philadelphia during the annual meeting of the Conference of Chief Justices and Conference of State Court Administrators.

Justice Fabe was selected for her decades-long commitment to promoting, inspiring, nurturing, and leading countless efforts in civics education. One of her most notable achievements was her role in supporting and expanding the Supreme Court LIVE program, which brings oral arguments in actual cases to high school students in various parts of the state. In the past seven years, 55 volunteer attorneys, 63 teachers, and thousands of Alaskan students have participated in this program.

“Justice Fabe has impacted thousands of students and has been nothing short of stellar in inspiring, improving and leading innovations in civics education as it relates to the justice system,” said Christine E. Johnson, administrative director of the Alaska Court System.

A few of Justice Fabe’s many achievements include:

  • Establishing the Alaska Supreme Court Judicial Outreach Commission, a diverse group of leaders from throughout the state.
  • Instituting the Alaska Teaching Justice Network, a program that encourages and assists educators interested in teaching their students about the role of the judiciary.
  • Promoting Justice O’Connor’s iCivics program.
  • Promoting Alaska’s Color of Justice Program.

In a letter of nomination, Superior Court Judge Mark Rindner said of Justice Fabe: “She understands that civics education strengthens our democracy and legitimizes the role of the court system in that democracy. She has made judicial outreach and the civics education that follows from such outreach an institutional priority of the Alaska Court System.”

Mary C. McQueen, president of the National Center for State Courts (NCSC), said, “You can’t think of Justice Fabe without thinking of the tireless work she has done in promoting education of the judicial system. She has literally devoted her career to it, and we are thrilled to honor her service with this award.”

Justice Fabe was the first woman to serve on Alaska’s highest court when she was appointed in 1996, and in 2000 she became that court’s first female chief justice. She retired from the bench in 2016 but continues much of her work in civics education.

The award is named for retired U.S. Supreme Court Justice Sandra Day O’Connor.  Justice O’Connor, the first woman to serve on the U.S. Supreme Court, retired in 2006, and has since become a leading advocate for improving civics education in our nation. She established iCivics, a program that uses web-based educational tools to teach civics education and to inspire students to be active participants in our democracy.


When Should a Judge Recuse?

posted by Judge_Burke @ 15:39 PM
May 25, 2017

There was recently a story in The New York Times about recusal:

An Alabama judge who once complained on Facebook of being racially profiled by the police refused on Thursday to recuse himself in a case involving a white police officer’s fatal shooting of a black man.Defense lawyers had argued that two posts by the judge, Greg Griffin of the Montgomery County Circuit Court, created the appearance of a conflict, one of the lawyers, Roianne Conner, said in a phone interview. But Judge Griffin denied the defense’s motion during a hearing on Thursday morning, Ms. Conner said.

“He took it very personally,” she said. “He told me he could take off his black robe, but he couldn’t take off his black skin.”

Continue reading this story


Recusal motions can be quite emotional for a judge. We all like to think of us as being fair, and recusal conjures up images of judicial inferiority.

Years ago there was a judge from northern Minnesota who explained his view of recusal. The judge had grown up in a reasonably small town and, except for attending law school, spent his whole life there. “I know most everyone.” he said, and he therefore believed that recusal — because he knew litigants — was impractical. “The only time I recused myself was when there was a strike at the plant. Many of the strikers were arrested when they picketed the plant. I simply could not win.”

Seems reasonable? What about taking positions before you became a judge? Surely no one would expect Thurgood Marshal to recuse in cases involving racial discrimination.

The Washington Post recently reported that: “Two years after a Kentucky county clerk stirred national attention for refusing to issue marriage licenses to same-sex couples, a family court judge in the same state announced he will no longer hear adoption cases involving gay parents, calling his stance on the issue “a matter of conscience.”

Judge W. Mitchell Nance, who sits in Barren and Metcalfe counties in Kentucky, issued an order recently in which he wrote that he believes allowing a “practicing homosexual” to adopt would “under no circumstance” promote the best interest of the child. The judge disqualified himself from any adoption cases involving gay couples, citing judicial ethics codes requiring that judges recuse themselves whenever they have a “personal bias or prejudice” concerning a case. Nance’s “conscientious objection” to the concept of gay parents adopting children constitutes such a bias, he argued. Judge Nance’s request to amend the Kentucky Code of Judicial Conduct to allow his recusal was denied by the Chief Justice  within the last couple of days.



Constitutional Crisis in New Mexico?

posted by Judge_Burke @ 15:43 PM
May 23, 2017

What if a legislature was so fed up with the Governor that they decided not to appropriate any money for the Office of Governor? That did not happen in New Mexico, but something like that did happen – and so far the New Mexico Supreme Court has decided not to intervene:

The New Mexico Supreme Court rejected a request to override budget vetoes, leaving negotiations about how to solve the state’s budget crisis — and restore funding to the Legislature — in the hands of the governor and lawmakers. In a two-page order, the court said it was too soon to consider any possible constitutional violations related to Gov. Susana Martinez’s vetoes of all funding for the Legislature and state universities in the coming fiscal year. The order said the Legislature’s lawsuit was “not ripe for review,” siding with attorneys for the governor who cautioned justices against an abuse of their judicial power. The Republican governor has called a special session for May 24 in an attempt to resolve the state budget crisis linked to faltering tax revenues and a weak state economy. The Democratic-led Legislature had argued that Martinez overstepped her authority by defunding the legislative branch of government and all state institutions of higher education. Martinez had urged the state Supreme Court to stay out of budget negotiations and said her vetoes were made in pursuit of reductions to state spending and never sought to abolish the Legislature.