What is a Reasonable Condition of Probation?

posted by Judge_Burke @ 15:28 PM
May 21, 2015

There are some judges who get in the habit of “always” making certain activity prohibited as a condition of probation.  Perhaps no condition is more frequently set than prohibiting the use of alcohol. So, a recent Eighth Circuit case is worth noting.

In United States v. Woodall, the Appellant was convicted and sentenced for failing to register as a sex offender.  As a condition of supervised release, the sentencing court prohibited Appellant from consuming alcohol or entering bars or similar establishments.  The Eighth Circuit struck this condition, noting that Appellant only lightly consumed alcohol and occasionally used marijuana.  Absent evidence that Appellant was “drug dependent,” or that alcohol spurred his criminal behavior, the court held that the condition could not be justified.

The district court had rejected Mr. Woodall’s objection to the special condition relating to alcohol prohibitions.  The court based its imposition of the condition on its conclusion that “[t]here’s codependence between marijuana or other street drugs and alcohol.  When a person who has a history of substance abuse can’t use illegal drugs, they frequently will resort to alcohol, and that’s the basis for the alcohol condition.”


CCI Seeks Criminal Courts to Participate in Procedural-Fairness Project

by Steve Leben

The Center for Court Innovation (CCI) is seeking courts to participate in an assessment of each court’s procedural-fairness practices. CCI is accepting applications until June 12 from local courts with the jurisdiction to hear criminal cases.

The official Request for Proposals gives full details on the project, but CCI says that it hopes to advance procedural-justice goals “by (1) highlighting promising practices for the field at large, (2) helping jurisdictions identify problem areas, and (3) outlining short- and longer-term plans to implement appropriate interventions.”

CCI suggests that this project “is targeted to criminal courts interested in deepening their understanding of procedural justice and examining whether and how their current practice promotes the core elements of procedural justice: voice, respect, understanding, and neutrality.” The selected sites will gain the feedback of outsiders who are familiar with the background research in this area.

The project will focus on four key areas at each site:

· Providing information about court procedures to court users and to the community;

· Fostering a user-friendly courthouse environment;

· Developing mechanisms to solicit and respond to feedback from staff and court users; and

· Improving the communication strategies used by judges and other court staff.

Project staff will provide suggestions for improving practices in each court.


In R. v. Dick (K.D.), 2015 MBCA 47, April 27, 2015, the accused pleaded guilty to the offence of manslaughter.  The trial judge imposed a period of seven years imprisonment.  The accused appealed form sentence and argued that the sentencing judge erred in her consideration of his expression of remorse at the sentence hearing.

The Manitoba Court of Appeal noted that following sentencing submissions “the defence produced a written apology stated to be from the accused that defence counsel read to the court.  The sentencing judge questioned whether it was the accused’s words, given that, in her view, the sophistication of the vocabulary did not match the reduced level of his intellectual functioning as found by Dr. Somers.  Defence counsel said that the accused told her that he had help preparing it from his case manager and another inmate at the institution where he was being held.  Defence counsel also stated that the accused said that ‘these are his words, this is what he wanted to say and he had some help writing it out.’”

In response to the sentencing judge’s comments, defence counsel “offered to contact the case manager and get more information regarding the preparation of the apology, but the sentencing judge refused.  Instead, she suggested that the accused make his statement orally in court.  He attempted, but spoke only a few words to say that he was sorry.  This was significantly simpler than the written apology and did not demonstrate the insight into the effects of his criminal behaviour and the commitment to rehabilitation that was expressed in his written apology.”

In her written reasons for imposing sentence, the sentencing judge stated that “[t]he prepared statement is a sham attempt to demonstrate any sense of true remorse.”

On appeal, the Manitoba Court of Appeal concluded that the sentencing judge did not improperly consider the expression of remorse proffered.  The Court of Appeal held, at paragraphs 16 and 17, that given “all of the evidence available to the sentencing judge, it was open to her to conclude that the written apology was not that of the accused and that the remorse was not genuine…we do not find that the sentencing judge erred in her conclusion that the written apology was a sham on the part of the accused or that she gave it too much weight.  Thus, in the end, she did not commit any error in relation to her treatment of circumstances of the written apology, the accused’s lack of true remorse or the weight that she gave to those circumstances.”

However, the Court of Appeal also pointed out that “many accused have difficulties expressing themselves, both verbally and in writing” and that therefore there “is absolutely nothing wrong with an accused receiving some assistance in preparing a statement to be presented in court, as long as that statement expresses the true sentiments and insights of the accused” (at paragraphs 13 and 14):

It is clear that many accused have difficulties expressing themselves, both verbally and in writing.  There is absolutely nothing wrong with an accused receiving some assistance in preparing a statement to be presented in court, as long as that statement expresses the true sentiments and insights of the accused.  These statements are intended to have an impact on the sentence imposed, and, if they do not express the true sentiments and insights of an accused, then their use will result in an improper sentence.

In this case, given her later, rather strong finding that the written apology was a sham, it would have been better had the sentencing judge first permitted the defence to speak to the case manager to try to clear up the details of the preparation of the written apology.  In the end, however, there was evidence to support her findings that the apology was not written by the accused and that his remorse was not genuine.  The vocabulary and sophistication of the apology was inconsistent with Dr. Somers’ assessment of the accused’s mental deficits.  Further, as the sentencing judge noted, the pre-sentence report “further noted that [the accused] had expressed no remorse for his involvement in the death of [the deceased], but was more concerned about his own safety should he go to a federal institution” (reasons at para. 9).  This pre-sentence report was compiled only three months before the sentencing submissions.  In addition, while she does not specifically refer to this aspect of Dr. Somers’ report, she had clearly read it closely and there is no reference in Dr. Somers’ report to the accused expressing any remorse, although the accused did talk of the risk to himself in federal prison.  Dr. Somers’ report was prepared only one week before the presentation of the written apology.  Thus, if the accused did feel true remorse, it came very late in the game, which could lead to questions about whether it was genuine.


If Judges Are Not Politicians, Why are Corporations People?

posted by Judge_Burke @ 14:45 PM
May 13, 2015

In Citizen’s United, The United States Supreme Court granted corporations the First Amendment right of people to participate in the political process. Now, in a 5-4 ruling the United States Supreme Court has held that laws barring judicial candidates from personally asking for campaign cash do not run afoul of First Amendment free speech rights.

“Judges are not politicians, even when they come to the bench by way of the ballot,” Chief Justice Roberts wrote. . “A state may assure its people that judges will apply the law without fear or favor – and without having personally asked anyone for money.”

The court’s four liberal justices joined Roberts.

The ruling took note of concerns that lawyers in particular might have a hard time refusing to contribute when a judge personally asks for campaign cash. Chief Justice John G. Roberts delivered the opinion of the Court (except as to Part II of his opinion) in Williams-Yulee v. Florida Bar. No. 13-1499. Justice Stephen G. Breyer issued a concurring opinion. Justice Ruth Bader Ginsburg issued an opinion concurring in part and concurring in the judgment, which Justice Breyer joined in part. Justice Antonin Scalia issued a dissenting opinion, in which Justice Clarence Thomas joined. And Justices Anthony M. Kennedy and Samuel A. Alito, Jr. also issued dissenting opinions.


Civil Justice Reform

posted by Judge_Burke @ 15:30 PM
May 12, 2015

My friend Becky Kourlis recently wrote, “Lawyers and judges may have been the last to know, or maybe just the last to admit the truth. The American public is fed up with the civil justice system.  It costs too much, is convoluted and agonizingly slow.  In the end, it seems to be all about putting both parties in a posture where anything is better than forging ahead, and they settle — often with little attention to the facts or the law, but rather on the basis of who blinks first.  The parties who can afford it often escape into alternative dispute resolution systems where they can control the pace and, to some extent, the process.  The civil jury trial is all but gone, and the development of appellate case law arising out of trial court decisions in civil cases is waning.  In short, the American civil justice system — the bulwark of our social contract with one another that protects individuals, enforces constitutional rights and contracts — is in trouble. But, there is hope.”

I met Becky shortly after she resigned from the Colorado Supreme Court in a quest to establish an action-oriented think-tank devoted to reform of the American legal system (an admittedly daunting task).  IAALS under Becky’s leadership has been spectacularly successful in addressing issues of system change in our nation’s state and federal courts.  IAALS has issued a new publication Reforming Our Civil Justice System: A Report on Progress and Promise. The report calls for a sharp realignment of the discovery process and greater court resources to manage cases.

•           The “one size fits all” approach to trying cases is not optimal; the process appropriate for one case is not necessarily the process appropriate for another case. Both court rules and judicial case management strategies should reflect that reality.

•           Effective case management by judges is critical to each case, ultimately saving the parties time and money, and leading to more informed and reasonable resolutions. Management should be tailored to the needs of the case.

•           To accomplish this greater involvement by judges, courts need more resources. Where judicial resources are in short supply, those resources should be increased to allow courts and judges to work more efficiently and effectively.

•           Proportionality is reaffirmed to be a guiding principle for all discovery. This is a consistent theme across the country and a significant aspect of the proposed amendments to the federal rules of civil procedure.

Many of the ideas in this report are common practices in our states. But before we become too self-righteous, we owe it to the litigants to recommit to not just being good, but being the best at what we do.  To again quote Becky, “Great changes are underway already in some places, but our legal system and profession must unite around principles that can be extended nationwide, so that every court—and every litigant—will benefit.”


How Direct Should a Trial Judge Be in Written Opinions?

posted by Judge_Burke @ 15:06 PM
May 11, 2015

It is often difficult for a trial judge to be blunt in written opinions. “The police officers’s description of what happened is simply not credible” are words that do not frequently appear. So, perhaps there is a lesson for all judges in an opinion from Canada:

In R. v. Kennedy, 2015 SKCA 32, April 8, 2015, the accused was convicted of the offense of assault with a weapon. The complainant (Mr. Cheon) testified that the accused was the person who assaulted him.  The accused denied doing so and argued the complainant was lying based upon a prior dispute.  

The trial judge cautioned herself concerning the frailties of eye-witness evidence and concluded that the evidence provided by the accused was “vague and evasive.” 

The accused appealed from the conviction, arguing that the trial judge’s reasons were insufficient.

In convicting the accused the trial judge reviewed Mr. Cheon’s testimony. The Saskatchewan Court of Appeal noted that “the trial judge listed various factors that she saw as either detracting from or supporting its weight.”  However, the Court of Appeal also noted that at “no point in her decision did the trial judge speak to, or consider, the question of Mr. Cheon’s credibility. In our respectful view, this was a significant oversight given the defence theory that Mr. Cheon was not telling the truth about the identity of his attacker and given defence counsel’s submission that Mr. Cheon was attempting to get Mr. Kennedy into criminal law difficulties just as the evidence suggested he had done on an earlier occasion.”

The Court of Appeal concluded that this required the ordering of a new trial (at paragraph 41):

In short, given the defence theory in this case, and given the nature of the evidence before her, it was incumbent on the trial judge to deal directly with the question of Mr. Cheon’s credibility. Her failure to do so means the trial decision was not responsive to the central argument of the defence or to the “live issues” in the case. See: R v Dinardo, 2008 SCC 24 (CanLII) at para 25, [2008] 1 SCR 788. It also means that it is not possible for this Court to properly discharge its appellate review function.


Perhaps an Idea Others Could Try

posted by Judge_Burke @ 15:18 PM
May 8, 2015

Achieving Justice is a serious task. Each day judges makes decisions that affect many people’s lives. Trying to find ways to directly address morale in the court house and collegiality within the legal community is an important task for all judicial leaders. So, the brief story in the ABA Journal may be an idea that others could try:

Shocked years ago to learn that many of the clerks for the 9th U.S. Circuit Court of Appeals had never seen 12 Angry Men, Judge Alex Kozinski arranged a screening of the classic film, starring Henry Fonda as a holdout juror.

That was the beginning of a free public movie night hosted by Kozinski several times annually at the 9th Circuit’s headquarters in San Francisco or its Pasadena, California, building, reports the Los Angeles Times (sub. req.).

Himself a film buff, the judge not only selects which film to screen for the Kozinski’s Favorite Flicks event, he also often arranges for a related speaker and provides food and drink. (That costs $10, for those who wish to partake.)

Guest speakers often have a legal background, or know someone who does, and have included U.S. Supreme Court Justice Stephen G. Breyer and his brother, a judge in San Francisco. Peter Fonda, who starred in Easy Rider, came to a screening of that film. Last year, when the 9th Circuit held its annual conference, Kozinski showed Gran Torino, and star Clint Eastwood was interviewed by Kozinski and another judge.

The 64-year-old judge calls the event a labor of love. He purchases the food at Costco, and his longtime administrative assistant, Donna Salter, makes a famous salad, the newspaper reports.

“It’s a lot of work, but it’s fun,” she told the Times, noting that “my mother, who is 93, always comes” when movie night is held in Pasadena.

In addition to acquainting others with some of his favorite films, Kozinski says the event helps the public see the judicial system in a different light.

“We should be viewed as being part of the community,” he told the newspaper. “We have these glorious facilities, and I want to bring the public in and show that this is a place where they are welcome.”


Prayer to Open Public Meetings

posted by Judge_Burke @ 14:49 PM
May 6, 2015

Last fall in Town of Greece v. Galloway the United States Supreme Court held in a 5-4 decision  that the town’s practice of opening its town board meetings with a prayer offered by members of the clergy does not violate the Establishment Clause when the practice is consistent with the tradition long followed by Congress and state legislatures, the town does not discriminate against minority faiths in determining who may offer a prayer, and the prayer does not coerce participation with non-adherents.  Now the Supreme Court of Canada has issued its opinion.

The Globe and mail reported:

Cities and towns across Canada began to review their tradition of reciting prayers at the start of council meetings after the Supreme Court ruled that the practice in one Quebec community violated religious liberties.

In a unanimous judgment tackling faith and freedoms in Canadian public life, the court ordered the city of Saguenay to cease its prayer inside its council chambers and pay damages to the citizen who fought the case on the basis his rights as an atheist had been trampled.

The court awarded the citizen, Alain Simoneau, more than $30,000 in damages, and issued a legal rebuke to the outspoken and staunchly devout mayor of Saguenay, Jean Tremblay. The mayor had invoked history and Quebec’s Roman Catholic heritage to justify his council’s prayer, an argument the court rejected.

“Sponsorship of one religious tradition by the state in breach of its duty of neutrality amounts to discrimination against all other such traditions,” Justice Clément Gascon, from Quebec, said in writing for the court.

Prayer is a religious practice, the court said. “Even if it is said to be inclusive, it may nevertheless exclude non-believers.”

The judgment affirmed governments’ responsibility to remain neutral, and its impact reached immediately into municipalities across Canada. Mayors in Ottawa, Lévis, Que., and Dieppe, N.B., began to review the towns’ practice of reciting prayers, and some already vowed to jettison them.


Public Service Appreciation Week

posted by Judge_Burke @ 16:00 PM
May 5, 2015

President Obama issued a proclamation just for us (and our fellow public servants across the country)!

Being a judge too often does not generate a lot of thanks, so from the AJA leadership…thanks to each of you!!


Covey on Jailhouse Snitch Testimony

posted by Judge_Burke @ 14:41 PM
May 5, 2015

Russell D. Covey (Georgia State University College of Law) has posted Abolishing Jailhouse Snitch Testimony (Wake Forest Law Review, Vol. 49, 2014) on SSRN.

Here is the abstract:

Jailhouse snitch testimony is inherently unreliable. Snitches have powerful incentives to invent incriminating lies about other inmates in often well-founded hopes that such testimony will provide them with material benefits, including in many cases substantial reduction of criminal charges against them or of the time they are required to serve. At the same time, false snitch testimony is difficult, if not altogether impossible, for criminal defendants to impeach. Because such testimony usually pits the word of two individuals against one another, both of whose credibility is suspect, jurors have little ability to accurately or effectively assess or weigh the evidence. Moreover, research suggests that jurors frequently succumb to fundamental attribution error and unwittingly fail to properly discount the reliability of evidence supplied by biased and self-interested witnesses.

Although a few jurisdictions have placed modest limits on jailhouse snitch testimony, no jurisdiction has banned jailhouse snitch testimony outright, relying instead on the traditional tools of trial practice – cross-examination and post-conviction review – to screen out unreliable evidence and safeguard defendants’ rights.

These methods, however, are plainly insufficient, as demonstrated by the mounting evidence of wrongful convictions resulting from false snitch testimony. The only truly effective solution is the flat preclusion of jailhouse snitch testimony. The doctrinal infrastructure already exists to permit courts to move in this direction; the Supreme Court’s longstanding preclusion of coerced confession evidence provides a precedent readily applicable to confession evidence provided by jailhouse snitches. Although constitutionally-based exclusion of jailhouse snitch evidence is warranted, in all likelihood, change in this area will come, if it does, not through the courts but instead through legislative or executive action to take meaningful steps to reduce wrongful convictions.