Is Criminal Justice Reform A Place For Bi-Partisanship?

posted by Judge_Burke @ 13:30 PM
May 22, 2020

Over the past decade, the longstanding challenge of criminal-justice reform has emerged into the spotlight with a new twist: Republicans and Democrats alike are on board. But if both parties want to lower the incarceration rate, why are our jail and prison populations still so large? The latest series from POLITICO Magazine works to answer this important question and take a deeper look into what it will take to make progress in the policy and politics of justice reform. READ THE FULL ISSUE.


From the Brennan Center:

An increasing number of state high courts are working to mitigate the impact of implicit racial bias in jury selection, according to The Marshall Project.
In 1986, the U.S. Supreme Court held that race discrimination in jury selection is unconstitutional in Batson v. Kentucky, and since then, prosecutors have been required to provide a “race neutral” reason for striking prospective jurors. Despite Batson, the discriminatory use of preemptive strikes has continued across the country because courts have been willing to accept almost any reason from prosecutors as race neutral, even if the result is an all-white jury.
Over the past two years, however, state supreme courts in WashingtonConnecticut, and California have taken steps beyond Batson to protect against race-based jury selection. Earlier this month, North Carolina became the latest state to strengthen protections against jury selection bias, with the state’s high court issuing a decision that trial judges are required to provide more scrutiny for allegations of racial discrimination in jury selection.

Setting Deadlines As a Case Management Strategy

posted by Judge_Burke @ 13:30 PM
May 20, 2020

There are those who, in a quest to speed up the disposition of criminal cases, set plea cut off dates. Rarely does anyone say in family court cases, “if you do not settle your case before the trial date I am going to deny your divorce and mandate you remain married to your spouse.”

Michael D. Cicchini has posted Under the Gun: Plea Bargains and the Arbitrary Deadline (93 Temple Law Review __ (2021 Forthcoming)) on SSRN. Here is the abstract:

Before a prosecutor and defendant may settle their criminal case by plea bargain, they must first obtain the trial judge’s approval. The judge is allowed to reject a plea bargain if, in the exercise of sound discretion, the judge finds it is not in the public interest. However, some judges will also reject plea bargains simply because the parties reached their agreement after the court’s arbitrary plea deadline expired. At first glance, setting a plea deadline appears to be a routine administrative matter of little significance. However, plea deadlines can implicate important constitutional principles and often have a tremendous negative impact on the parties.

Courts justify their imposition of plea deadlines under the theory of judicial economy. But in reality, arbitrary deadlines are highly inefficient and create several additional problems: they often lead to rushed, unjust plea bargains; they obstruct the defendant from entering his or her plea knowingly and intelligently; they are the antithesis of the case-by-case discretion the judge is obligated to exercise before rejecting a plea; and they violate the separation-of-powers doctrine, infringing upon the prosecutor’s discretion to resolve the state’s cases when and how the prosecutor deems appropriate.

In light of these and other problems, this Article advocates for simple legal reform: the abolition of arbitrary plea deadlines or, in the alternative, severe constraints on the trial judge’s power to impose them. But the legal system is often resistant to change. Therefore, this Article makes a more immediate and useful contribution: it provides a strategy for the parties to obtain the judge’s approval of their plea deal, even when that plea deal is reached after the court’s arbitrary deadline has expired.


How Should Courts Approach Their Coronavirus Budget Crisis?

posted by Judge_Burke @ 13:30 PM
May 19, 2020

There are no easy answers. Courts are instituting hiring freezes and taking other similar actions. But perhaps the Federal Courts approach is correct, even if unlikely to be successful at a state level. Ask for more money now.

Federal Judiciary Requests Additional $36.6 Million from Congress for Covid-19 Response

The federal judiciary has requested additional funding and legislative changes from Congress to help federal courts respond to the Covid-19 pandemic. Previously, the judiciary was awarded $7.5 million in relief funding via the CARES Act, the $2 trillion relief package signed by the President in late March.


On April 28, the judiciary sent a letter to the leaders of the Senate and House Committees on Appropriations requesting an additional $36.6 million in funding for “emergent needs such as enhanced cleaning of court facilities, health screening at courthouse entrances, information technology hardware and infrastructure costs associated with expanded telework and videoconferencing,” among other costs for probation and pretrial services and costs related to security.


The judiciary also urged Congress to implement 17 legislative changes, including proposals intended to protect incarcerated people and criminal defendants, address administrative court matters after the pandemic, and alleviate certain statutorily imposed deadlines in bankruptcy cases. “The underlying objective behind each proposal is to ensure that the federal [j]udiciary continues to meet its constitutional mandate while protecting the health and safety of court personnel, litigants, and the public,” the judiciary wrote.

Implicit Bias & Jury Selection

posted by Judge_Burke @ 14:07 PM
May 18, 2020

From the Marshall Project:

       Toward accountability for implicit racial bias in jury selection. What happens when a prosecutor during jury selection rejects a person of color for a dubious reason that isn’t explicitly based on race? A handful of state judges across the country have recently signaled they are open to exploring how unconscious bias may affect jury selection and what ought to be done about it. In Washington, trial judges now must consider “implicit, institutional, and unconscious biases, in addition to purposeful discrimination.” In California and Connecticut, judicial task forces are studying the matter. And a ruling earlier this month in North Carolina, a state with a long history of racial discrimination in jury selection, offers some hope for reform. TMP’s Beth Schwartzapfel has our story. 


A Pyrrhic Victory

posted by Judge_Burke @ 13:30 PM
May 15, 2020

The definition of a pyrrhic victory may well be you won your case in the United States Supreme Court. And then you end up losing. On remand from Byrd v. United States, 138 S.Ct. 1518 (2018), holding that defendant had standing in his rental car, defendant loses on the merits because there was probable cause for the search of his car because of the admission there was a blunt in the car. United States v. Byrd, 2020 U.S. App. LEXIS 14758 (3d Cir. May 8, 2020):

The officers here developed probable cause to search the vehicle when, in response to questioning, Byrd acknowledged that he had a “blunt” in the car. The officers reasonably understood the term “blunt” to refer to a marijuana cigarette and took Byrd’s statement to indicate he had marijuana in the car. In a related context, we have held that “the smell of marijuana alone, if articulable and particularized, may establish not merely reasonable suspicion, but probable cause” to search a vehicle. United States v. Ramos, 443 F.3d 304, 308 (3d Cir. 2006). Even more so than the smell of marijuana, Byrd’s admission that he might have a blunt in the car gave the officers an articulable and particularized basis to believe the vehicle contained drugs. Byrd’s admission, coupled with the knowledge that Byrd was nervous, had a significant criminal history, and had used an alias, established a fair probability that illegal drugs would be found in the car and gave the officers probable cause to search for contraband.

Byrd contends that any probable cause to search for the blunt was limited to the passenger area of the vehicle and did not justify the further search of the trunk. We disagree. “[T]he police need have no more exact suspicions to search a trunk than are required to search the passenger compartment under the automobile exception, nor need they have independent reason to believe that the contraband for which they are searching is located specifically in the trunk.” United States v. Rickus, 737 F.2d 360, 367 (3d Cir. 1984); see also United States v. Ross, 456 U.S. 798, 825 (1982). The officers here had probable cause to search the entire vehicle for drugs, and they needed nothing more to justify a search of the trunk.


Coronavirus And Jury Deliberations

posted by Judge_Burke @ 13:30 PM
May 14, 2020

From the EvidenceProf Blog:

A Utah jury hadn’t completed deliberations as the weekend approached on Friday, March 13, 2020. The jury then completed deliberations on Monday, March 16, 2020, finding the defendant guilty. After the defendant was convicted, he appealed, claiming that the judge should have asked the following questions to the jury before the weekend:

These were the facts in United States v. Derman, 2020 WL 1676770 (D. Utah 2020).

The court rejected this argument, finding that

Defendant’s argument in this regard is not only unsupported by the law, it is wholly at odds with his prior stance on the issue. At no time before the jury returned with a verdict did Defendant request that jurors be questioned regarding potential concerns about coronavirus. In fact, Defendant’s current argument is directly contrary to the position articulated in his initial memorandum in support of his motion for mistrial. In that memorandum, Defendant affirmatively stated that “[a] third individual voir dire of the jurors will not suffice[,]” and that “[a] third inquiry of these jurors will cause the jurors to turn on this process all together and feel as if they are on the receiving end of an attack by this Court and the parties.”…Defendant further argued that “any individual inquiry is limited by HIPPA protections as to the status of [jurors’] physical and mental health” and that “an inquiry will not only invade the sacred province of juror deliberations as contemplated by FRE 606 but also jeopardize Mr. Dermen’s rights to a fair and impartial jury.” Id. In essence, prior to the return of the verdict, Defendant affirmatively and explicitly urged the court not to question the jurors. It was only after the jury returned with a guilty verdict that Defendant changed course, arguing for the first time that jurors should have been questioned. Having urged the court not to question jurors before the return of the verdict, Defendant cannot now credibly argue that the court erred in failing to do so.

The court then concluded that

that inquiring into jurors’ views regarding the coronavirus outbreak when no concern had been raised by any member of the jury would have constituted an improper intrusion into their deliberations in violation of Rule 606(b)(1)of the Federal Rules of Evidence. Information concerning the outbreak of the coronavirus does not constitute “extraneous prejudicial information” or “an outside influence.” Accordingly, any inquiry into the juror’s thoughts regarding coronavirus would have been improper.


Immunity | What Should The Law Be?

posted by Judge_Burke @ 13:30 PM
May 13, 2020

The vast majority of police officers are dedicated public servants. Particularly now when the coronavirus pandemic is going on it is natural for the police to be sensitive to criticism.

BIG REUTERS INVESTIGATION – “For cops who kill, special Supreme Court protection: The U.S. high court’s continual refinement of an obscure legal doctrine has made it harder to hold police accountable when accused of using excessive force,” by Andrew Chung, Lawrence Hurley, Jackie Botts, Andrea Januta and Guillermo Gomez.


Canada’s Supreme Court Leaps Ahead

posted by Judge_Burke @ 13:30 PM
May 12, 2020

From the blog How Appealing:

“Supreme Court of Canada to hold virtual hearings in June”: Sean Fine of The Globe and Mail of Toronto has an article that begins, “The country’s highest court is about to begin an experiment in a key stage of its legal process: oral argument.”

According to the article, “The video hearings will put the Supreme Court far in front of its U.S. counterpart, which this month began holding hearings by telephone conference calls.”


What Did Batson Accomplish?

posted by Judge_Burke @ 16:09 PM
May 11, 2020

Anna Offit (Southern Methodist University – Dedman School of Law) has posted an abstract of Race-Conscious Jury Selection (Ohio State Law Journal, Forthcoming) on SSRN. Here is the abstract:

Among the central issues in scholarship on the American jury is the effect of Batson v. Kentucky (1986) on discriminatory empanelment. Empirical legal research has confirmed that despite the promise of the Batson framework, both peremptory strikes and challenges for cause remain tools of racial exclusion. But these studies, based on post-facto interviews, transcript analysis, and quantitative methods offer little insight into Batson’s critical impact on real-time decision-making and strategy in voir dire. If we increasingly know what kinds of juries are produced in the post-Batson world, we know very little about how they are produced.

This Article addresses this problem with data derived from a five-year field study of Assistant U.S. Attorneys. Through interviews and participant observation during jury selection proceedings, it provides an unprecedented empirical perspective on how Batson has made race central to the ways prosecutors perceive, pick, and strike jurors. Rather than diminishing race’s influence on voir dire, Batson has made it an essential consideration for prosecutors concerned with their in-court performance and professional reputations.

This race-conscious approach to jury selection has arisen in part due to a clear doctrinal shift in courts’ analysis of juror questioning and striking. This shift has expanded the scope of judicial inquiry during the adjudication of Batson challenges from scrutiny of individual “neutral” rationales for juror dismissals to a more robust comparative juror analysis. My empirical findings indicate that there is a meaningful connection between this latter approach and the incorporation of anti-discrimination norms into prosecutorial approaches to voir dire. Having identified and described this link, it becomes possible to perform a deeper audit of the Batson framework, and suggest, as this Article does, that with reform and expansion to address well-documented limitations, it may serve to close the gap between juries as they are and juries as the constitution would have them be.