Procedural Fairness from the Center for Court Innovation

posted by Judge_Burke @ 15:00 PM
November 14, 2017

From the Center for Court Innovation:

In a new TED Talk, Judge Victoria Pratt draws on her experience with Newark Community Solutions to explain the real-life impact of procedural justice.

“It’s a concept that says if people perceive that they are treated fairly and with dignity and respect, they’ll obey the law,” says Pratt.

The experience of Newark Community Solutions suggests that by addressing people respectfully, using plain language to ensure understanding, allowing defendants to voice their concerns, and emphasizing neutrality, justice agencies can help restore public trust in justice.

To learn more about procedural justice, watch our video or read our new book, and to learn how we have promoted this and other evidence-based strategies, follow us on Twitter or Facebook or subscribe to our newsletter.


Should We Drink Strong Coffee on the Bench?

posted by Judge_Burke @ 16:40 PM
November 13, 2017

Many years ago I had a civil trial where by week two, five of the six jurors had fallen asleep. When the last juror nodded off the lawyers approached the bench and pointed to the sleeping juror. In frustration, I responded that although I would wake up the juror, this was the last time I would. “The two of you put these jurors to sleep, so if you do it again you figure out how to wake them up.”  

The issue of whether it is an abuse of discretion not to wake up jurors was never raised on appeal, but I do allow jurors to drink coffee and indeed serve it to them. So, what about us? What happens if we fall asleep? Not to worry if you are a judge in Illinois.

Judges sleeping during trial? No problem, says Illinois appeals court:

It’s not “reversible error” requiring a new trial for the defendant. The case involved a defendant in a quadruple murder case whose judge fell asleep during the presentation of security camera footage. He was then “allegedly poked awake” by his clerk. Defense attorneys say the judge fell asleep repeatedly during the trial. The judge said he was listening with his eyes closed. Chicago Tribune


The Law of Stop

posted by Judge_Burke @ 15:30 PM
November 7, 2017

Each day many judges are confronted with how to apply the law of stop. We do it so often that there is a danger we could become a bit callous. Alexandra Natapoff (University of California, Irvine School of Law) has posted A Stop is Just a Stop: Terry’s Formalism (Ohio State Journal of Criminal Law, Vol. 15, 2017, Forthcoming) on SSRN.

Here is the abstract:

Terry v. Ohio expanded police authority by creating a new legal category—the stop based on reasonable suspicion, an easier standard to meet than an arrest based on probable cause. The formal line between those two categories, however, has turned out to be blurry. In practice, stops morph easily into arrests even without new evidence, an elision that Terry doctrine does not contemplate. The implications are significant for the enormous misdemeanor arena where legal rules generally lack traction, and Terry stops are common. Once those stops become arrests, they typically convert smoothly into criminal charges, which easily become convictions. Terry stops thus influence eventual outcomes far more than they should given their lightweight evidentiary basis. This slippery slope undermines the integrity of basic distinctions between policing and prosecution throughout the petty offense process, an unprincipled state of affairs exacerbated by the original Terry compromise.


How Would You Rule?

posted by Judge_Burke @ 15:31 PM
November 6, 2017

When a suspect has invoked the right to consult with a lawyer is occasionally not clear. It surely helps when there is a record such as an audio or video tape, but even then it may not be clear. Professor Eugene Volokh had this recent piece in The Washington Post. How would you rule? 

From last Friday’s opinion by Justice Scott J. Crichton, concurring in the Louisiana Supreme Court’s denial of review in State v. Demesme (paragraph breaks added):

I agree with the Court’s decision to deny the defendant’s writ application and write separately to spotlight the very important constitutional issue regarding the invocation of counsel during a law enforcement interview.

The defendant voluntarily agreed to be interviewed twice regarding his alleged sexual misconduct with minors. At both interviews detectives advised the defendant of his Miranda rights and the defendant stated he understood and waived those rights. Nonetheless, the defendant argues he invoked his right to counsel. And the basis for this comes from the second interview, where I believe the defendant ambiguously referenced a lawyer — prefacing that statement with “if y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.”

As this Court has written, “[i]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable police officer in light of the circumstances would have understood only that the suspect might be invoking his right to counsel, the cessation of questioning is not required.” State v. Payne(La. 2002); see also Davis v. United States (1994) (agreeing with the lower courts’ conclusion that the statement “[m]aybe I should talk to a lawyer” is not an unambiguous request for a lawyer). In my view, the defendant’s ambiguous and equivocal reference to a “lawyer dog” does not constitute an invocation of counsel that warrants termination of the interview and does not violate Edwards v. Arizona (1981).

Of course, amusing as this is, it’s possible that the transcript didn’t do the request justice: If there was a pause before and after “dog” (“why don’t you just give me a lawyer, dog”), then maybe the request was fairly clear. On the other hand, if the defendant did want a lawyer, he could have presumably asked again, and more clearly.



Plan For Your Disaster

posted by Judge_Burke @ 14:30 PM
November 3, 2017

Given the current hurricane season in the South, wildfires in the West, and who knows what other calamities elsewhere, we should all be thinking about how to handle disaster. Trends in State Courts has a review of recent efforts, mostly by legislatures, to give courts more power to handle disasters:

Maintaining Court Operations When Disaster Strikes: Emergency Powers

What happens when a courthouse is rendered unusable following a man-made or natural disaster? Many states have started to grant special powers to chief justices and court leadership to help courts meet these challenges.



Should We Create More Drug Courts?

posted by Judge_Burke @ 14:30 PM
November 2, 2017

As a long time proponent of drug courts, the easy answer to this question is:  of course. But perhaps……just perhaps……the answer is we ought to mainstream how the criminal justice system deals with addiction. 


More drug courts, easier access to opioid alternatives, urged by White House drug commission. 

The panel, led by New Jersey Governor  Chris Christie, also recommends changing an old federal policy that blocked Medicaid payments to inpatient treatment facilities with more than 16 beds for victims of substance abuse, clearing the way for more people to get more care more quickly. The administration still hasn’t authorized more funding to combat the opioid epidemic. THE WASHINGTON POST. Drug courts throughout the country have struggled with getting to scale. For many communities the problem is not the creation of a drug court it is getting more defendants in the existing drug court. Surely that is a money issue but it also is a criteria for admission to drug court  issue as well. Our drug court does not take dealers! Fair enough but an awful lot of users are simultaneously dealers. They buy some sell some and self finance their addiction. It might just be easier to self finance addiction by selling part of your drugs  as opposed to stealing and using the proceeds of theft to buy drugs. Our drug court does  not accept snitches or we do accept snitches but the police  don’t charge them right away. Law enforcement lets them “work” their way into eligibility for drug court. Today you maybe a dealer ineligible for drug court but a few months from now and a few arrests from now you will be eligible. Is there a solution? First, there needs to be real money to finance effective treatment. Second, An open minded assessment of criteria for eligibility needs to occur. Third getting people into treatment has to happen fast, real fast. If an arrest is the functional equivalent  of intervention then within hours connecting the defendant to treatment needs to occur. Finally, drug court need to have a supportive environment. 


Kristine A. Huskey (University of Arizona – James E. Rogers College of Law) has posted Justice for Veterans: Does Theory Matter? (59 Arizona Law Review 697 (2017)) on SSRN.

Here is the abstract:

The Veterans Treatment Court (“VTC”) movement is sweeping the nation. In 2008, there were approximately five courts. Currently, there are over 350 VTCs and veteran-oriented tracks in the United States. Most view this rapid proliferation as a positive phenomenon. VTC growth, however, has occurred haphazardly and most often without deliberate foundational underpinnings.

While most scholars assume that a therapeutic jurisprudence (“TJ”) modality is the paradigm for VTCs, there has been little examination of other theories of justice as appropriate for veterans and the courts that treat them. This Article addresses whether an alternative theory of justice — specifically, restorative justice (“RJ”) — can inform the theoretical foundation of a VTC to enhance its beneficial impact on veterans with post-traumatic stress disorder (“PTSD”), traumatic brain injury (“TBI”), or substance abuse issues. 

A primary feature of the RJ philosophy is that it is community-driven: it involves the victim, offender, and “community of interests” in the solution, process of restoration, and prevention of future misconduct. These principles are well suited for a VTC, which is also collaborative, community-based, and places extreme importance on the reintegration of the veteran back into society. These characteristics stem from an evolved theory that the community is ultimately responsible for the misconduct that was caused by the defendant’s military service. A hypothetical criminal case common in a VTC illustrates that RJ principles and framework may enhance the beneficial impact of VTCs. RJ may be just the theory of justice that brings to bear Sebastian Junger’s notion of a tribe as a means for the successful reintegration of veterans back into the community.


Is the Reasonable Expectation of Privacy Standard Doomed?

posted by Judge_Burke @ 14:30 PM
October 23, 2017

David C. Gray (University of Maryland Francis King Carey School of Law) has posted an abstract of The Fourth Amendment Categorical Imperative (116 Michigan Law Review Online 14 (2017)) on SSRN.

Here is the abstract:

In an effort to bring the Fourth Amendment into the twentieth century, the Court formulated a brand-new definition of “search” in Katz v. United States based on reasonable expectations of privacy. Although perhaps progressive for its time, the Katz definition of “search” has rendered the Fourth Amendment nearly moot in the twenty-first century. That is because modern tracking, surveillance, data aggregation, and data analysis technologies — all of which engage in “searches” by any common definition — exploit information in which, the Court has held, we do not have reasonable expectations of privacy. As a consequence, searches conducted using these means and methods are not regulated by the Fourth Amendment because they are not regarded as “searches” at all. 

In 2012 the Court indicated that it was inclined to revisit or revise Katz. It appears poised to do just that during the October 2017 term, but has yet to signal where it might go or why. This essay offers a way forward that relies on the text and history of the Fourth Amendment and insights from Immanuel Kant to provide a concise test the Court can apply to determine when the Fourth Amendment restrains the otherwise unfettered discretion of government agents to engage in searches and seizures.


Ever Wonder Where the Phrase “Criminal Justice System” Came From?

posted by Judge_Burke @ 14:30 PM
October 20, 2017

Sara Mayeux (Vanderbilt University – Law School) has posted The Idea of ‘The Criminal Justice System’ (American Journal of Criminal Law, Forthcoming) on SSRN.

Here is the abstract:

The phrase “the criminal justice system” is ubiquitous in discussions of criminal law, policy, and punishment in the United States — so ubiquitous that almost no one thinks to question the phrase. However, this way of describing and thinking about police, courts, jails, and prisons, as a holistic “system,” dates only to the 1960s. This essay contextualizes the idea of “the criminal justice system” within the rise of systems theories more generally within intellectual history and the history of science. The essay first recounts that more general history of systems thinking and then reconstructs how it converged, in 1967, with the career of a young systems engineer working for President Johnson’s Crime Commission, whose contributions to the 1967 report The Challenge of Crime in a Free Society launched the modern and now pervasive idea of “the criminal justice system.” Throughout, the essay reflects upon the assumptions and premises that go along with thinking about any complex phenomenon as a “system” and asks whether, in the age of mass incarceration, it is perhaps time to discard the idea, or at least to reflect more carefully upon its uses and limitations. For instance, one pernicious consequence of “criminal justice system” thinking may to be distort appellate judges’ interpretations of Fourth Amendment doctrine, because they imagine their rulings to be hydraulically connected in a “system” with crime rates.


Preventive Detention

posted by Judge_Burke @ 14:30 PM
October 19, 2017

The National Center for State Courts’ Pretrial Justice Center for Courts has issued a policy brief on preventive detention. The paper provides historical legal context to preventive detention, outlines due process concerns, and identifies jurisdictions that employ preventive detention. Additional, in-depth information about preventive detention is available in “Model” Bail Laws: Re-Drawing the Line Between Pretrial Release and Detention by Tim Schnacke, of the Center for Legal and Evidence Based Practices.