How Should Courts Approach Ineffective Assistance of Counsel Claims?

posted by Judge_Burke @ 22:19 PM
November 19, 2019

Almost all of the time defendants get competent lawyers and credible representation. But occasionally there are lawyers who because of high caseloads, competence or their own afflictions simple to not perform to the standards we should expect of defense counsel. Eve Brensike Primus (University of Michigan Law School) has posted Disaggregating Ineffective Assistance of Counsel Doctrine: Four Forms of Constitutional Ineffectiveness (Stanford Law Review, Vol. 72, 2020) on SSRN. Here is the abstract:

For years, experts have blamed Strickland v. Washington’s lax standard for assessing trial attorney effectiveness for many of the criminal justice system’s problems. But the conventional understanding of Strickland as a problem for ineffectiveness claims gives Strickland too much prominence, because it treats Strickland as the test for all such claims. That is a mistake. Properly understood, the Supreme Court has recognized four different constitutional forms of trial attorney ineffectiveness, and Strickland’s two-pronged test applies to only one of the four. If litigants and courts would notice the complexity and relegate Strickland to its proper place, it would pave the way for meritorious ineffectiveness claims of the other three kinds. This Article disaggregates strands of Sixth Amendment doctrine that others have jumbled together so as to enable courts and litigants to confine Strickland to its proper domain and use more appropriate analyses elsewhere.

The Article also explains why additional disaggregation is necessary within the category of cases where Strickland rightly applies. Implicitly, the Supreme Court has created not one but three tests for assessing deficient performance within that domain, and it has indicated a willingness to soften the outcome-determinative prejudice prong as well. Failure to recognize these different forms of Strickland ineffectiveness has made the test seem much harder for defendants to satisfy than needs to be true. Recognizing these complexities, and applying the right test in the right case, is necessary if individual defendants are to be treated fairly and systemic constitutional problems in the provision of indigent defense services are to be addressed.


Restricting ICE Arrests In Courthouses

posted by Judge_Burke @ 21:23 PM
November 18, 2019

Oregon Supreme Court Chief Justice Martha Walters enacted a new rule Thursday that will make it harder for immigration agents to make civil arrests in the state’s courthouses.

The new rule requires U.S. Immigration and Customs Enforcement officers to have a signed judicial warrant if they plan to enter a courthouse to make an arrest. In the past, ICE agents have used administrative warrants that are signed by other ICE officers, rather than a neutral third party, like a judge.

The new rule follows a petition that was sent to the court by immigrants’ rights groups in December 2018. They have argued, among other things, that immigration arrests around and near courthouses puts a chilling effect on those seeking access to the justice system.

“Adopting this rule protects the integrity of the state judicial process and will allow state courts to fully hold accountable people accused of a crime,” Walters said in a release. “Arrests in courthouses have interfered with judicial proceedings and removed criminal defendants before they have been sentenced or completed their sentences. We are adopting this rule to maintain the integrity of our courts and provide access to justice — not to advance or oppose any political or policy agenda.”

The rule also bans civil immigration arrests in courthouses, their parking lots, sidewalks and entryways, unless a judge has signed an arrest warrant.

Oregon is the third state, after New York and New Jersey, to issue a statewide court rule. California lawmakers passed a rule that offers similar protections to immigrants, according to the ACLU of Oregon. For the full story:


It Is Just A Bunch Of Garbage

posted by Judge_Burke @ 23:38 PM
November 15, 2019

Tanner Russo has posted Garbage Pulls Under the Physical Trespass Test (Virginia Law Review, Vol. 105, No. 6, 2019) on SSRN. Here is the abstract:

By reintroducing the physical trespass test to the Fourth Amendment search inquiry, United States v. Jones (2012) and Florida v. Jardines (2013) supplemented the Katz privacy test with a property-based trespassory inquiry. Jones asks courts to consider whether police have physically trespassed on a personal effect with an investigatory purpose, and Jardines asks courts to consider whether police have engaged in an unlicensed physical intrusion into a constitutionally protected area, such as the curtilage of a home. This Note addresses one area of doctrinal uncertainty in the wake of Jones and Jardines: garbage pulls, a practice the Supreme Court found in California v. Greenwood (1988) did not constitute a Fourth Amendment search where garbage awaits collection on the curb.

This Note assesses the status of garbage pulls under the physical trespass test. First, it argues that under Jones, household garbage could qualify as an effect because of its status as personal property and its close connection to domestic intimacy. Second, it presents arguments that under Jardines, police likely exceed the boundaries of the implied license by entering the curtilage of a home to seize or investigate garbage. Here, the Note highlights a series of federal and state appellate court decisions that have historically dismissed the importance of the curtilage in cases involving garbage pulls. Ultimately, this Note demonstrates how the physical trespass test as articulated in Jones and Jardines could significantly restrict the permissible scope of garbage pulls.


What Groups Should A Judge Feel Comfortable Attending?

posted by Judge_Burke @ 23:28 PM
November 14, 2019

The web site How Appealing had this post recently,  ““I Was a Federal Judge. My Former Colleagues Must Stop Attending Federalist Society Events.” Former U.S. Magistrate Judge James P. Donohue (W.D. Wash.) has this jurisprudence essay online at Slate.” There are many judges who are members of the Federalist Society some of which sit on the United States Supreme Court. Most of the members of the American Judges Association are either state court judges or Canadian judges. Each of us have different ethical rules or more importantly different interpretations of the same rules. Perhaps there is no universally good answer to the question but for sure it is worth thinking about.


The Right To Beg

posted by Judge_Burke @ 22:26 PM
November 13, 2019

Anatole France — ‘The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.’ The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread. A ban on harassing panhandling in Arkansas is likely unconstitutional, and enforcement of the law may be banned statewide, a federal appeals court has ruled.

The 8th U.S. Circuit Court of Appeals at St. Louis upheld a statewide preliminary injunction in a First Amendment challenge filed by the American Civil Liberties Union of Arkansas. Courthouse News Service, the Arkansas Democrat-Gazette and the Associated Press have coverage of the Nov. 6 decision. A press release is here.

The law bans begging in a manner that is harassing, causes alarm or impedes traffic.

The ACLU had filed its suit on behalf of Michael Andrew Rodgers and Glynn Dilbeck, two men cited under a prior version of the law. Rodgers and Dilbeck said they had changed their begging behavior because they fear arrest under the new law.

The 8th Circuit said the law is a content-based restriction that singles out charitable solicitation, and it is not “narrowly tailored to achieve its public and motor-vehicle safety interest.”

The panel majority upheld the statewide reach of the preliminary injunction banning enforcement of the law. Such broad relief may be appropriate when a facial First Amendment challenge is likely to succeed, the 8th Circuit said. Judge Michael Melloy wrote the majority opinion.

In a partial dissent, Judge David Stras said enforcement of the law should be enjoined only as applied to the two plaintiffs. “I do not agree that the district court could prevent the entire Arkansas State Police force from enforcing the law against anyone, anywhere, at any time based on the harm faced by two individual plaintiffs,” he wrote.


Batson Challenge Is Introduced in Canada

posted by Judge_Burke @ 22:35 PM
November 8, 2019

For judges in the United States, dealing with Batson challenges to peremptory challenges is a staple of our law. The Globe & Mail has a story that shows it is now Canadian judges’ turn on how to ensure that juries are representative.

The Globe story:

A federal ban on unexplained objections to potential jurors, enacted after a defence lawyer appeared to use the legal tactic to keep Indigenous people off a jury in a high-profile case, has been struck down by an Ontario judge. The ruling highlights the potential for chaos in jury trials across the country, now that the selection process has become an unsettled area of law.

The Liberal government intended the ban to address perceived bias in jury selection after a Saskatchewan jury acquitted white farmer Gerald Stanley of second-degree murder last February in the shooting death of Colten Boushie, an Indigenous man, who had been on his property.

The judge’s ruling this week was in response to an Indigenous defendant who argued that the seven-week-old law discriminated against him – the opposite of its stated purpose. By the judge’s own description, the ruling throws jury trials into uncertainty in the province, because several other Ontario judges have upheld the ban.

But the ruling could have wider implications. Although it does not apply directly to other provinces, jury verdicts nationwide could be on shaky ground if the Supreme Court ultimately rules against the jury process as set out in the new law.

Objections to potential jurors, without a reason being given – known as peremptory challenges – have been around since the Magna Carta of 1215. They were seen as a way to give defendants confidence in the people who were judging them.

And Justice Andrew Goodman stressed that he still sees them that way. Ruling on a constitutional challenge by Dale King, who is accused of second-degree murder, he said Mr. King had been denied the right to participate in the selection of a representative jury.

“In order to provide for a measure of protection against the discrimination of jurors, Parliament has abolished [Mr. King’s] ability to prevent discrimination against himself,” the Ontario Superior Court judge wrote in an 81-page ruling released this week.

A spokesman for the Ontario Attorney-General’s department declined to say whether the province would appeal. Jonathan Shime, a lawyer representing Mr. King, also declined to comment on the case while it is before the courts.

Mr. King is accused in the shooting death of Yosif Al-Hasnawi two years ago in Hamilton. The case has a high profile because Mr. Al-Hasnawi was a good Samaritan breaking up a dispute when he was shot, and because two paramedics who arrived at the scene were charged with failing to provide the “necessaries of life” to him, after allegedly deeming him to have faked his distress.

The ban on peremptory challenges took effect on Sept. 19. Both the defence and prosecution had a certain number of challenges, depending on the seriousness of the offence; both sides had those challenges taken away from them in Bill C-75.

But even if, as an Ontario prosecutor argued in the King case, the system is fair and has the appearance of fairness to the public, that is not good enough for Mr. King, Justice Goodman wrote.

“He is entitled to the appearance of fairness, not only to the community at large, but more importantly to him, as the individual whose liberty is at stake.”

Justice Goodman ruled that the peremptory-challenges ban violated Section 7 of the Charter of Rights and Freedoms – the right to life, liberty and personal security – because it was broader than it needed to be. The government could simply have given enhanced power to judges to step in when either side discriminates in their use of peremptory challenges, or reduced the numbers of such challenges available, he said.

The immediate effect of the decision is to give Mr. King a right to peremptory challenges of prospective jurors. But it also creates uncertainty about what will happen for others exercising their right to a jury trial.

And that uncertainty is nationwide, Vancouver lawyer Marianna Jasper says, because if people are convicted under the new system, and the new system is ruled unconstitutional, they could be entitled to new trials. (The dispute over the ban’s constitutionality is not the only one. There have been conflicting decisions in Ontario and other provinces on whether the ban applies to charges laid before the law took effect.)

“The lawfulness of jury verdicts across the country will remain doubtful until (many years from now) the Supreme Court of Canada has addressed the constitutionality of the new regime, when it started to apply, and how it is to be administered,” Ms. Jasper said in an e-mail.

Ontario Superior Court Justice John McMahon had upheld the ban on Sept. 24, saying the law had several safeguards for accused rights, including the vesting of greater discretion in the trial judge to reject jurors.

Usually, judges are bound by rulings of other judges at the same level in a province – unless they deem them plainly wrong. And that is exactly how Justice Goodman termed Justice McMahon’s ruling.

For instance, under the new system, an accused might object that a potential juror sneered at them; a prosecutor might disagree, and the judge may not have seen it. The expanded judicial discretion is no help, Justice Goodman wrote, because it is unclear how judges would use it. Ignore disputed objections? he asked. Accept them? Ask questions, as yet unspecified, of the potential juror?

“Will the selection system descend into the morass of juror questioning, polling, submissions and the like that is found with our American cousins?”

University of Toronto law professor Kent Roach said the ban is fair because the Canadian legal system “utterly failed in attempting to prevent the discriminatory use of peremptory challenges,” and Parliament was justified in abolishing them.





Thoughts About Implicit Bias

posted by Judge_Burke @ 22:16 PM
November 7, 2019

It is safe to say that this might be one of the issues where there is unanimity among judges with  concern about implicit bias in the justice system. I will confess I have no solution, but I thought I’d share some thoughts developed for a talk I am giving.

Former Federal Judge Mark Bennet has an interesting implicit bias instruction:

Growing scientific research indicates each one of us has “implicit biases,” or hidden feelings, perceptions, fears, and stereotypes in our subconscious.  These hidden thoughts often impact how we remember what we see and hear and how we make important decisions.  While it is difficult to control one’s subconscious thoughts, being aware of these hidden biases can help counteract them.  As a result, I ask you to recognize that all of us may be affected by implicit biases in the decisions that we make.  Because you are making very important decisions in this case, I strongly encourage you to critically evaluate the evidence and resist any urge to reach a verdict influenced by stereotypes, generalizations, or implicit biases.

Determining credibility is among the most difficult things judges and jurors do.  Judges regularly make credibility determinations. But before you think with practice judges get better at this there are studies which found that judges are not necessarily better than others at figuring out who is telling the truth.  For example, in a controlled study of 110 judges with an average of 11.5 years on the bench, judges did not do better than chance in telling who was being truthful and who was not.  See Paul Ekman & Maureen O’Sullivan, Who Can Catch a Liar?, 46 Am. Psychologist 913 (1991); Richard Schauffler & Kevin S. Burke, Who Are You Going to Believe?, 49 Court Rev. 124 (2013).  Judge Learned Hand once said, “The spirit of liberty is the spirit which is not too sure that it is right.”

If judges are the “experienced pros” at determining credibility what about jurors? Minnesota’s  pattern jury instructions say that jurors should consider the manner in which a witness testifies.  See Minnesota CIVJIG 12.15 Evaluation of Testimony–Credibility of Witnesses – Guidelines for evaluating testimony and Minnesota CRIMJIG 3.12 Evaluation of Testimony — Believability of Witnesses. Most states have something similar to Minnesota’s jury instruction.   Telling jurors to consider the manner of a witness may well be appropriate, but is it possible that we unintentionally invite jurors to decide credibility based upon implicit bias as a result of this part of the instruction?  Perhaps we can learn from New Zealand.

The New Zealand Supreme Court said:

[R]esearch which indicates that a person’s demeanour when giving evidence in court generally provides little or no assistance to a fact-finder charged with determining whether or not the witness is telling the truth. A witness who presents as confident, articulate and honest may be mistaken or dishonest; a witness who presents as diffident, hesitant or awkward may be telling the truth and their evidence may be accurate. Not only can appearances be deceptive, but fact-finders may over-estimate their ability to recognise those who are truthful from those who are not, by, for example, relying on unreliable behaviours such as fidgeting or looking away.

Taniwha v. The Queen [2016] NZSC, September 8, 2016.

New Zealand’s suggested Jury Instruction:

I must warn you, though, that simply observing witnesses and watching their demeanour as they give evidence is not a good way to assess the truth or falsity of their evidence. For example, a witness may not appear confident or may hesitate, fidget or look away when giving evidence. That doesn’t necessarily mean that their evidence is untruthful. The witness may be understandably nervous giving evidence in an unfamiliar environment in front of unknown people. Or there may be cultural reasons for the way a witness presents. On the other hand, a witness may appear confident, open and persuasive but nevertheless be untruthful. And remember that even an honest witness can be mistaken.

Things like gestures or tone of voice may sometimes help you to understand what the witness actually means. But you should be cautious about thinking that they will help you much in determining whether or not the witness is telling the truth.


Should Judges Be Concerned About Breath Testing Devices Accuracy?

posted by Judge_Burke @ 21:18 PM
November 6, 2019

There is a saying that I am fond of: “Every once in a while we should hang a question mark after the things we take for granted.” Forensic science is not only important in DWI cases but in all criminal cases. A major cause of wrongful convictions is forensic science was wrongfully applied. That is among the reasons the Justice Speakers Institute and the National Judicial College published the Judge’s Science Bench Book.  See  Perhaps the most frequently used forensic tools in criminal law are breath tests given to suspected drunk drivers. We mostly assume the machines are accurate, however The New York Times has a piece on breath testing devices that may challenge our thinking, including frightening allegations against some of those responsible for guaranteeing accurate testing and a survey of recent legal challenges.

The New York Times piece is  quite interesting. I hope others read it. It is easy to be dismissive about the claims that defense counsel make, or to develop such an ingrained sense of cynicism that we don’t readily put the question mark after things we, for so long, take for granted. So, whether you agree with the conclusions of the article may not be as important as being far more open minded when hearing challenges to the technology that we employ in DWI  cases.


From The Emory Wheel

Posted by  | Oct 30, 2019 | 

Canadian Supreme Court Justice Rosalie Abella stressed the importance of pursuing universal democratic values and human rights in an emotional speech at the eighth annual David J. Bederman Lecture, held in the Tull Auditorium at the Emory School of Law.

Speaking on the state of international law, Abella described what she saw as an atmosphere “polluted by bombastic anti-intellectualism, sanctimonious instability and a moral free-for-all,” which she believes sets a dangerous precedent for the future.

“Everyone is talking, and no one is listening,” she told the audience. “We are in danger of a new status quo where anger triumphs over indignity and indignity over decency.”

A renowned human rights advocate, Abella pointed to recent events concerning the treatment of Syrian Kurds, which she described as the “latest unconscionable global tragedy,” as confirmation of her “deepest fears” that the relationship between international human rights law and justice is becoming increasingly dysfunctional.

Abella clarified that one cause of this increasing dysfunctionality may be confusion over the term “rule of law,” which she argued was used merely as a justification for the legitimacy of a perspective.

“This generation has seen the rule of law impose apartheid, segregation and genocidal discrimination,” she said.

Abella instead called for the universalization of democratic values such as due process and the right to religious freedom, which she argued were more important.

“When we trumpet those core democratic values, we trumpet the instruments of justice, and justice is what laws are supposed to promote,” Abella said.

Abella related to the audience a narrative of American legal history, which she argued was synonymous with liberal democracy, and how attitudes towards individual rights were in part responsible for rights discrimination, a reality that was not confronted the aftermath of the Holocaust.

“We were so far removed from what we thought were the limits of rights discrimination,” Abella explained. “[After 1945], we had no moral alternative but to acknowledge that individuals could be denied rights not in spite of, but because of their differences.”

Abella reckoned that we have since relapsed into individualistic thought with regard to human rights, rationalising it with terms such as “political correctness”, “cultural relativism” and “domestic sovereignty.”

“These are concepts that excuse intolerance,” she said. “Silence in the face of intolerance means that intolerance wins.”

Abella identified recent incidences of religious terrorism in Pittsburgh, New Zealand and Sri Lanka as evidence that the “horrifying spectacle of group destruction” had returned.

“We have also had, among others, the genocide of Rwanda, the massacres in Bosnia and the Congo, the repression in Chechnya, child soldiers in Sudan, Zimbabwe, China, Myanmar, Pakistan and more,” Abella continued.

Abella also cited the fact that, since 1945, 40 million people have been killed as a result of military conflicts.

Nevertheless, Abella did recognize the “great success” of several UN agencies in their efforts since 1945. However, given the “enormous capacity” for constructing legal systems and institutions to advance international human rights law, Abella noted her disappointment in the overall lack of progress in the area, particularly when compared to progress in international economic law.

“What states have been unable to achieve in 65 years of international human rights law is up and running after 25 years of international trade regulation,” Abella said. “I find this dissonance startling and unsettling.”

Although Abella did admit she had “no solutions,” she elucidated that her ideas were not purely hypothetical but also based largely on her experiences.

“To me this is not just theory,” she explained. “I am the child of Holocaust survivors.”

Born in Stuttgart, Germany, in 1946, many of Abella’s relatives were killed in the Treblinka extermination camp in German-occupied Poland.

“My father was the only person in his family to survive the war,” Abella disclosed.

Abella came to Canada in 1950, shortly after the publication of the Nuremberg principles, a set of guidlines for determining what constitutes a war crime. She admitted that the publication of these principles provided little consolation for her family.

“I’m sure that they would have preferred by far that the sense of outrage that inspired the Allies to establish the military tribunal at Nuremberg had been around many years earlier, before the events that led to it ever took place,” she explained.

Abella made history in 2004 when she was appointed to the Supreme Court of Canada, becoming the first Jewish woman to ever do so. Abella was also the youngest and first pregnant judge in Canadian history when she was appointed to Ontario Family Court in 1976.

Speaking on her own life and career, Abella revealed that it had “never occurred to [her] to be anything but a lawyer.”

“My life started in a country where there had been no democracy, no rights and no justice,” she said. “It created an unquenchable thirst in me for all three.”

Abella also revealed that the best advice she could give law students was to not listen to anyone.

“Don’t take anybody’s advice!” she quipped. “If I had, … I would not be a lawyer, and I certainly would not be serving on the Supreme Court.”

Abella’s elegiac lecture was received tremendously by the Emory community, who gave her a standing ovation at the lecture’s conclusion.


What Role Should Race Play In Sentencing?

posted by Judge_Burke @ 14:00 PM
November 4, 2019

From professor Doug Berman’s Sentencing Law & Policy blog, “The title of this post is the headline of this new Vice piece discussing an interesting sentencing issues being engaged by Canadian courts. The subheadline of the piece summarizes the essentials: “In a case that could change how judges punish Black people, Ontario’s top court will soon decide how much systemic racism should be taken into account when sentencing.” Here are excerpts (links from original):

[W]hen [Kevin] Morris was convicted of possessing a loaded gun, his first offence, Ontario Superior Court Justice Shaun Nakatsuru decided to reduce his sentence from four years to 15 months, noting the systemic disadvantages Morris faced in his life as a Black man growing up in Toronto.  Morris’s sentence was further reduced to one year because police interrogated him after he had requested a lawyer.

To help make his decision, Nakatsuru used a cultural assessment of Morris, written by a clinical social worker and consisting of interviews and data that gave insight on him.  In his judgment, Nakatsuru wrote, “You began to notice how many were dying in your neighbourhood. Dying of violence. You did not have a lot of options. You decided you would live with it. That you would survive. Yet at the same time, you felt hopelessness.”

But in the spring the Crown will challenge that decision in the Court of Appeal, arguing that the judge was too lenient in his decision. If Morris wins, it could set a precedent for the use of cultural assessments in sentencing….

Nana Yanful, a lawyer for the Black Legal Action Centre, one of the 14 interveners on Morris’s appeal case, says that Morris’s case gives courts a chance to address the circumstances of Black offenders. She says the courts should stop asking if race can be a reason for leniency, and start to ask, if the offender wasn’t Black, how likely is it that they would be involved with the criminal justice system?

Judges in Canada already consider personal circumstances such as mental health, age, and past criminal record when sentencing an offender. Since 1999 judges have been legally obliged to consider the systemic disadvantages Indigenous offenders experienced before sentencing.

This is called the Gladue principle, and came into effect after a Cree woman pleaded guilty to manslaughter and was handed a three-year prison sentence. The Crown requested a conditional sentence, due to the offender’s history of substance abuse and lack of education. The judge did not grant the request, since she was off reserve at the time of the murder.

But after the case went to the Supreme Court, and the sentencing decision was upheld, the court clarified a section of the Criminal Code that would allow judges to recommend restorative justice measures for Indigenous offenders, such as reduced sentencing.

There is no similar principle for Black offenders, who make up 9 percent of the federal prison population, even though Black people only represent 3.5 percent of the population. The Office of Correctional Investigators reported a 69 percent increase of Black inmates between 2005 and 2015. While lawyers and judges can request cultural assessments, it’s up to the presiding judge to decide if it’s appropriate based on the circumstances of the case.

In Nova Scotia there has been a growing trend of judges considering cultural assessments in sentencing Black offenders. In one notable Nova Scotia Supreme Court case, Honourable Justice Jamie Campbell reviewed the cultural assessment of an African Indigenous man convicted of second-degree murder, before sentencing him to life in prison in 2017. Although the cultural assessment did not lead to a lighter sentence, it prompted “a judge to struggle with difficult questions for which there may not really be entirely clear answers,” the decision stated.

“That is why the cultural assessment is both a fascinating and a challenging document,” Campbell wrote in his judgment. “It provides information that makes it harder, not easier, to reach a conclusion. That is a good thing. The challenge comes from acknowledging the role that race plays in the prevalence of violent crime among young African Nova Scotian men while not falling into racist traps.”

Nova Scotia has been collecting data for cultural assessments since 2016, with 20 total requests. And requests have been increasing: In 2018 there were five requests for cultural assessments, while 11 have been requested so far this year.

A defence win in Morris’s case would set the same standard in Ontario, and also affect the disproportionate rate of incarcerated Black people in Canada. “What we’ve been doing so far isn’t working. The disproportionate impact is leading to a disproportionate outcome,” Yanful said. “So let’s take a step back and see what the sentencing court, and what the criminal justice system can do to be able to address this issue meaningfully.”