You Cannot Get Rid of the Judge for this Reason

posted by Judge_Burke @ 14:22 PM
April 24, 2014

A San Diego Superior Court commissioner who presided over a lawyer’s wedding was not required to disqualify herself from hearing a case involving the attorney, the Fourth District Court of Appeal ruled recently.  As reported in Metropolitan News-Enterprise:

The “average person on the street” would not assume that a judicial officer is biased merely because she acted as an officiant, Justice Judith Haller wrote for Div. One. But taking a more active role, such as by attending the reception, might indicate the type of social relationship that would give rise to a reasonable doubt as to the judge’s impartiality, the justice said.

The ruling came as a result of postjudgment proceedings between Kenneth Wechsler and his former wife, Kimberly Wechsler. The ex-wife’s then-attorney, Alexandra O’Neill, informed the ex-husband’s attorney, Cary Cotton, in late October of last year that the commissioner hearing the case, Patti Ratekin, would be officiating at O’Neill’s wedding in December.

Motion to Disqualify

Less than a week after the disclosure, Cotton brought a motion to disqualify Ratekin for cause. Ratekin responded with a declaration explaining that she did not have a social relationship with O’Neill, but that during an appearance about a month earlier, the attorney asked her to perform the ceremony. Ratekin said she agreed to perform the ceremony but had no plan to attend the reception.

O’Neill said in her own response:

“Because Commissioner Ratekin is only appearing at the ceremony, and leaving immediately thereafter, I will not have a chance to speak with her at the ceremony and the expectation is only that she will be supervising the recitation of the vows, exchange of wedding rings and signing the marriage license.”

Judge Jeffrey Barton, who heard the challenge under Code of Civil Procedure §170.3(b), said the facts as set forth in the declarations would not cause a reasonable person to doubt Ratekin’s objectivity, and rejected the challenge.

The ex-husband sought writ review. Although the ex-wife later changed attorneys, the Court of Appeal said the petition raised an important issue that was likely to recur and declined to dismiss the petition as moot.

Case Cited

Haller said the trial judge was correct, citing People v. Carter (2005) 36 Cal.4th 1215. The court held in that case that the judge who officiated at the wedding of the prosecutor’s daughter several months earlier was not disqualified from hearing a murder case.

The facts of that case, Haller explained, indicated that the relationship between the prosecutor and the judge was “professional and casual,” rather than a close social relationship; that the request to officiate came from the prosecutor’s daughter, not from the prosecutor; that no fee was paid or requested—the Code of Judicial Ethics allows judges to accept payment for performing weddings on weekends and holidays—and that it is customary for judges in San Bernardino County to perform weddings for lawyers and their families.

It is not unusual for judges to perform wedding ceremonies purely as an official function, signifying no bias in favor of the persons being married or their family members, the justice said, and requiring their disqualification for having done so would have negative consequences.

She wrote:

“These observations are consistent with the public policy of encouraging judges to provide this public service for couples who prefer a secular wedding ceremony. A holding that the agreement to officiate at an attorney’s wedding automatically disqualifies a judge from presiding over a matter in which the attorney appears would preclude judges from performing this public service and/or would require assignment to a new judicial officer, thus unnecessarily interrupting and delaying case resolution.”

Close Relationship

Disqualification would be required, Haller suggested, if the judge were asked to officiate because of a close relationship with the person being married or his or her family, of if close ties were created in the process of planning the wedding, “reflected by the judicial officer participating in prewedding planning events, attending the wedding reception or other related social functions, or accepting monetary or other gifts in exchange for performing the wedding.”

In deciding whether to accept the invitation to preside, she said, a judge should consider “the extent of the judge’s involvement in the ceremony and in other related events; the nature of the parties’ past and current social/personal relationship; any ties or connections with the families of the wedding party; and the nature of the issues pending or likely to come before the court. “ And if the judge is going to officiate, he or she should disclose that within a reasonable time, she said.


The case is Wechsler v. Superior Court (Wechsler), 14 S.O.S. 1115.


Wallace Jefferson: A Quite Remarkable Person

posted by Judge_Burke @ 14:47 PM
April 23, 2014

There is an interesting interview in The Atlantic with Wallace B. Jefferson, Texas’s former Chief Justice:

The newly retired Chief Justice of Texas’s Supreme Court is remarkable for many reasons. A Republican in the most Republican state in the Union, a black man in a state dominated by white conservatives, he has nonetheless been a dogged voice on behalf of Texas’s poorest and least powerful litigants. He has also been a consistent critic of the dubious way in which Texas selects and retains its judges—through a series of judicial elections that are unabashedly partisan.

This month, Jefferson returned to private practice, leaving his post on the highest civil court in Texas nine years after he was appointed its chief by Governor Rick Perry. I recently interviewed him by telephone on a series of issues. First up was the notion of judicial elections. Here’s a slightly edited version of our lengthy conversation (the first of a series I’ll be posting here at The Atlantic over the next few weeks). Jefferson’s remarks aren’t just notable for their candor about the structural failure of the state’s judicial campaigns. They also shed valuable insight into the motivations behind that failure — and explain why things aren’t likely to change anytime soon.


Read the full story here.



United States Supreme Court Upholds Anonymous Tips to Stop Cars

posted by Judge_Burke @ 15:45 PM
April 22, 2014

The Supreme Court has ruled that an anonymous tip can be sufficient to justify a decision by police to pull a car over on suspicion of reckless or drunken driving.

The justices voted 5-4 to uphold a traffic stop in northern California in which officers subsequently found marijuana in the vehicle. The officers themselves did not see any evidence of reckless driving.

Justice Clarence Thomas said the tip phoned in to 911 that a Ford pickup truck had run the caller off the road was sufficiently reliable to allow for the traffic stop without violating the driver’s constitutional rights.

Justice Clarence Thomas delivered the opinion of the Court in Prado Navarette v. California, No. 12-9490.  Justice Antonin Scalia issued a dissenting opinion, in which Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan joined.

You can access the oral argument via this link.


The Illusory Eighth Amendment

posted by Judge_Burke @ 14:00 PM
April 22, 2014

This notable new article by John Stinneford (University of Florida Levin College of Law) is now available via SSRN.

Here is the abstract:

Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect.

This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a substitute for constitutional interpretation. A growing body of scholarship has shown that constitutional adjudication involves at least two distinct judicial activities: interpretation and implementation. Prophylactic rules are defensible as implementation tools that are necessary to reduce error costs in constitutional adjudication.

This Article contributes to implementation rules theory by showing that constitutional interpretation, defined as a receptive and non-instrumental effort to understand constitutional meaning, normally must precede constitutional implementation. When the Supreme Court constructs implementation rules without first interpreting the Constitution, the rules appear arbitrary and overreaching because they do not have a demonstrable connection to constitutional meaning. Such rules also narrow the scope of the Constitution itself, denying protection to any claimant who does not come within the rules. The only way to remedy this dysfunction and provide meaningful protection across a broad range of cases is to interpret the Constitution before implementing it.


More State Courts Consider Life Without Parole for Juveniles

posted by Judge_Burke @ 17:00 PM
April 21, 2014

A Hamilton County court must reconsider the life-without-parole sentence of Springdale’s Eric Long, convicted of murdering two men in 2009, when he was 17.

In a 24-page decision, the Ohio Supreme Court found that when juveniles are convicted of murder and the potential sentence is life in prison without the possibility of parole, judges must consider the juvenile’s age as a factor in that sentencing.

The Ohio Supreme Court sent the case back in a 5-2 ruling handed down Wednesday. Republican justices Sharon Kennedy and Terrence O’Donnell dissented.


Judges as Framers of Plea Bargaining

posted by Judge_Burke @ 14:00 PM
April 21, 2014

Daniel S. McConkie Jr. (Brigham Young University – J. Reuben Clark Law School) has posted Judges as Framers of Plea Bargaining on SSRN.

Here is the abstract:

The vast majority of federal criminal defendants resolve their cases by plea bargaining, with minimal judicial input or oversight. This presents significant issues concerning transparency, fairness, and effective sentencing. Federal prosecutors strongly influence sentences by the charges they select. The parties bargain informally outside of court and strike a deal. But defendants often plead guilty without a realistic understanding of their likely sentencing exposure. Instead, they plead guilty based on their best guess as to how judges will resolve certain issues and their own fear that they could get an unspecified but severe post-trial sentence. The judge is often reluctant to reject the parties’ deal, partly because the judge may have little information about the case, and partly because the judge lacks the resources for courtroom-clogging jury trials. What is needed is a public, court-supervised, advocacy procedure early in the case to guide the parties in considering key sentencing issues and fashioning a just and reasonable sentence based on the judge’s feedback.




The Right to Allocution

posted by Judge_Burke @ 14:00 PM
April 18, 2014

“Last Words: A Survey and Analysis of Federal Judges’ Views on Allocution in Sentencing”


The title of this post is the title of this notable new article available via SSRN co-authored by a federal judge and a law professor. The piece, by Mark Bennett and Ira Robbins, examines an arena of sentencing law and practice that rarely gets any attention.

Here is the abstract:

Allocution — the penultimate stage of a criminal proceeding at which the judge affords defendants an opportunity to speak their last words before sentencing — is a centuries-old right in criminal cases, and academics have theorized about the various purposes it serves. But what do sitting federal judges think about allocution? Do they actually use it to raise or lower sentences? Do they think it serves purposes above and beyond sentencing? Are there certain factors that judges like or dislike in allocutions? These questions — and many others — are answered directly in this first-ever study of judges’ views and practices regarding allocution.

The authors surveyed all federal district judges in the United States. This Article provides a summary and analysis of the participants’ responses. Patterns both expected and unexpected emerged, including, perhaps most surprisingly, that allocution does not typically have a large influence on defendants’ final sentences. Most of the judges agreed, however, that retaining this often-overlooked procedural right remains an important feature of the criminal-justice process.

This Article also synthesizes judges’ recommendations for both defendants and defense attorneys aiming to craft the most effective allocution possible. Critical factors include preparing beforehand, displaying genuine remorse, and tailoring the allocution to the predilections of the sentencing judge.


There are Limits to Courtroom Security

posted by Judge_Burke @ 14:00 PM
April 17, 2014

Court security is a legitimate concern but the seventh Circuit has an interesting opinion that shows there are limits.

Inmate’s shackles and prison uniform at trial necessitate new trial in excessive force case against prison guards:  Circuit Judge Richard A. Posner issued this ruling on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit.

Here is an exerpt:

The sight of a shackled litigant is apt to make jurors think they’re dealing with a mad dog; and just the contrast between a litigant’s wearing prison garb and his opponents’ wearing law enforcement uniforms is likely to influence the jury against the prisoner, and has long been recognized as being highly prejudicial. See, e.g., Holbrook v. Flynn, 475 U.S. 560, 568–69 (1986); Estelle v. Williams, 425 U.S. 501, 504–05 (1976); Illinois v. Allen, 397 U.S. 337, 344 (1970); Stephenson v. Wilson, 619 F.3d 664, 668–69 (7th Cir. 2010). Although the issue has arisen mainly in criminal (including post-conviction) cases, as in the cases just cited, it arises from time to time in civil cases as well, such as this case, and the prejudicial effect of visible shackling and prison clothing has been recognized in those cases too. See, e.g., Lemons v. Skidmore, 985 F.2d 354, 356–57 (7th Cir. 1993); Davidson v. Riley, 44 F.3d 1118, 1122– 23 (2d Cir. 1995); Holloway v. Alexander, 957 F.2d 529, 530 (8th Cir. 1992).


Understanding Facebook, Social Media & Judicial Ethics

posted by Judge_Burke @ 14:09 PM
April 16, 2014

The abstract says it all:

This paper was written for judges to assist them in understanding: their obligations concerning Facebook and other social networking sites, including “friending” lawyers; the confidentiality of email, texts, and other e-communications; the use of the Internet by lawyers to research jurors or potential jurors; the use of the Internet by judges to research the facts and law; and how to admonish jurors not to use the Internet to research the case before them or to discuss it prior to deliberations.


The full paper is here.


Can We Add a Function to Spell Check?

posted by Judge_Burke @ 14:00 PM
April 15, 2014

Thanks to Minnesota Lawyer, judges (and lawyers) might be able to write better:

Legal writing guru Brian Wagner has a list of words or phrases all lawyers should do away with in their writing immediately.  He calls it his “verbal blacklist” and there are some familiar ones. Thankfully, “said”–the most useless word of all, makes the list.

said   As the past tense of say, this word is fine. As a fancy-pants substitute for the (such as said agreement), it isn’t fine at all. It’s foolish. It doesn’t add one iota of precision. It makes you sound like a parody of law-talk.

and/or   Is it a word? Is it a phrase? American and British courts have held that and/or is not part of the English language. The Illinois Appellate Court called it a “freakish fad” and an “accuracy-destroying symbol.” The New Mexico Supreme Court declared it a “meaningless symbol.” The Wisconsin Supreme Court denounced it as “that befuddling, nameless thing, that Janus-faced verbal monstrosity.” More recently, the Supreme Court of Kentucky called it a “much-condemned conjunctive-disjunctive crutch of sloppy thinkers.” Now if Apple can just had the list of words to the spell check function on judge’s computers there will be far more readable orders.