Bail Reform in Maryland

posted by Judge_Burke @ 15:30 PM
February 17, 2017

The Maryland Court of Appeals recently adopted a rule ending the practice of holding criminal defendants in jail before trial when they cannot afford bail. The rule does not abolish the practice of required money for bail [Baltimore Sun report] but instructs judges to seek other ways of ensuring a defendant appears for trial. The rule keeps the option of money bail but provides judicial discretion to find other options when appropriate. It was argued that keeping defendants in jail solely because they could not afford bail is unconstitutional and that if there is a concern of public safety, then it is better to hold defendants without bond rather than placing a high bail amount in order to keep them behind bars. Some other options besides setting a bail amount are pretrial supervision and electronic monitoring. The new rule will take effect July 1.


Criminal Intent

posted by Judge_Burke @ 15:42 PM
February 16, 2017

Michael Tonry (University of Minnesota – Twin Cities – School of Law) has posted Fairness, Equality, Proportionality, and Parsimony: Towards a Comprehensive Jurisprudence of Just Punishment (Penal Censure (Anthony E. Bottoms & Antje Bois-Pedain, eds., Oxford: Hart, Forthcoming)) on SSRN.

Here is the abstract:

The retributive conception of punishment as a process for censuring blameworthy conduct is an important component of a complete theory of punitive justice, but by itself is not enough. Nor are ‘mixed’ theories that incorporate traditional retributive ideas as constraints on pursuit of consequentialist crime prevention goals. If punishment were unidimensional, involved only first offenders convicted of a single offence, and based solely on censuring blameworthy behaviour, theorizing would be easier: offenders should be censured, and punished, precisely as much as they deserve relative to the censure and punishment of others convicted of the same and different offences. In mixed theories, punishments of individuals should never exceed what is deserved relative to the punishments of others. All that would be needed is a sufficiently discriminant ordinal scale of offence seriousness tied to proportionate punishments. Theories of punitive justice, however, cannot be unidimensional. Nor can they be premised on the situations of first offenders, on single offences, or on a single overriding value such as censure. More is at stake. A complete theory of punitive justice must also satisfy the requirements of independently important principles of fairness, equal treatment, and human dignity.


Do you call it the F-word? Use asterisks instead of some of the letters? Substitute the word “expletive”? Or write it out in full?

Appellate opinions are more frequently choosing the last option, reports. Since 2006, the full word was quoted in about 445 federal appellate opinions, according to the publication’s search of court records. That’s about the same number of times the word was spelled out in the prior four decades combined. spoke with judges for their take on use of the word. One judge who says he avoids obscenities in his opinions is U.S. District Judge Fred Biery of San Antonio, Texas. “This culture has become so coarse in many respects … I would never put that kind of stuff in a written opinion,” Biery told “My father would turn me over his knee if I put that kind of language—that’s the way I was raised.”

Taking the other side, Judge Richard Posner of the Chicago-based 7th U.S. Circuit Court of Appeals said it was absurd to hide profanity if it’s relevant to the case.

“Look at what judges deal with—you have murderers, people who steal hundreds of millions of dollars. To the extent that their activities are connected with obscenities, obscene messages, that’s part of the case,” Posner told “The question is, is it germane? Is it helpful to the readers’ understanding of what was going on? Then you have to put it in.”

The story notes that some judges will write out the F-word in full, but not the N-word. Chief Judge Theodore McKee of the Philadelphia-based 3rd U.S. Court of Appeals explained his thinking. The N-word, he said, is “not just an obscenity, but it is something that is suggestive of a kind of mindset that is incredibly hurtful to people.”


Criminal Intent

posted by Judge_Burke @ 15:30 PM
February 14, 2017

One could go through an entire judicial career without confronting the issue of brain scan evidence, but if you do, a recent piece is a great position to start your education:  Deborah W. Denno (Fordham University School of Law) has posted Concocting Criminal Intent (Georgetown Law Journal, Vol. 105, pp. 323-78 (2017)) on SSRN.

Here is the abstract:

My empirical study, which examines neuroscience evidence in 800 criminal cases over the course of two decades, is the first to determine how, when, and why victim brain scan evidence is introduced and used in court. My study reveals that although courts commonly rely on brain scans to show the extent of a victim’s injury, the actual application of this neuroscience evidence extends far beyond the purpose for which it is admitted. Indeed, victim brain scans are introduced primarily by prosecutors, and nearly half of these cases are based on medical expert testimony that the victims suffer from shaken baby syndrome, a medical diagnosis with controversial scientific underpinnings and distorted legal ramifications. The diagnosis often successfully serves as the sole foundation for a prosecutor’s case, with no proof of the defendant’s act or intent beyond the victim’s brain scan and the accompanying medical expert testimony. Shaken baby syndrome cases thus portray a troubling phenomenon in which the key element of mens rea is either unclear or overlooked altogether and prosecutors are permitted to concoct intent out of brain scans that were admitted for the sole purpose of presenting the victim’s injury. My study further reveals that shaken baby syndrome cases are merely the more transparent examples of the criminal justice system’s failure to deal adequately with the surging influx of neuroscience evidence into the courtroom. Shaken baby cases thus represent a microcosm of prosecutorial misuse of victim neuroscience evidence more generally, particularly when the evidence is employed to determine a defendant’s mental state.


Bail Reform in Maryland

posted by Judge_Burke @ 16:18 PM
February 13, 2017

Maryland’s highest court voted to change the state’s bail policies for criminal defendants, writes Ovetta Wiggins and Ann E. Marimow for The Washington Post.

According to the authors, “[t]he rule change, which takes effect July 1, requires judges to impose the ‘least onerous’ conditions when setting bail for a defendant who is not considered a danger or a flight risk.” They write that this “essentially abolish[es] a system in which poor people could languish behind bars for weeks or months before trial because they could not post bond.” Vinnie Magliano, president of East Coast Bailbonds, criticized the decision saying “the court was ‘moving one million miles an hour in the wrong direction.’” However, Maryland’s Attorney General Brian Frosh (D) said the change is a “‘huge step forward’ that will lead to ‘more justice in Maryland.’” He added: “If you’re poor, you’re not going to be held in jail just because you can’t make bail.” The rules, he concluded, will “‘keep dangerous people behind bars’ and ‘let the vast majority who are not a threat out’ before trial.”



posted by Judge_Burke @ 15:48 PM
February 9, 2017

Judges often make decisions framed as what is reasonable. The judge’s background, experience as a judge and, yes, implicit bias can color the result. So thinking about constitutional reasonableness is something we all ought to do. 

Brandon L. Garrett (University of Virginia School of Law) has posted Constitutional Reasonableness on SSRN. Here is the abstract:

The concept of reasonableness pervades constitutional doctrine. The concept has long served to structure common law doctrines from negligence to criminal law, but its rise in constitutional law is more recent and diverse. This Article aims to unpack surprisingly different formulations of what the term reasonable means in constitutional doctrine, which actors it applies to, and how it is used. First, the underlying concept of reasonableness that courts adopt varies, with judges using competing objective, subjective, utility-based or custom-based standards. For some rights, courts incorporate more than one usage at the same time. Second, the objects of the reasonableness standard vary, assessed from the perspective of judges, officials, legislators, or citizens, and from the perspective of individual decision-makers or general institutional or government perspectives. Third, judges may variously apply a constitutional reasonableness standard to a right, to the assertion of defenses, waivers, or limitations on obtaining a remedy for the violation of a right, or to standards of review. The use of the common term “reasonableness” to such different purposes can blur distinctions between each of these three categories of standards. The flexibility and malleability of reasonableness may account for its ubiquity and utility. Entire constitutional standards can – and have – shifted their meaning entirely as judges shift from one concept or usage of reasonableness while appearing not to change the “reasonableness” standard or to depart from precedent. That ambiguity across multiple dimensions explains both the attraction and the danger of constitutional reasonableness. In this Article, I point the way to an alternative: regulatory constitutional reasonableness, in which reasonableness is presumptively informed by objective and empirically-informed standards of care, rather than a set of shape-shifting inquiries.


What is the Right Thing to Do?

posted by Judge_Burke @ 15:31 PM
February 8, 2017

Children can do horrific things. There are children who are out of control, and it is fair for society to hold people accountable. All of this sounds straightforward. But, sentencing children for horrific acts requires the best of judges. Insight into the law and the cognitive development of children is certainly a perquisite. Among the best blogs is Professor Douglas Berman’s Sentencing Law & Policy blog. He had this thoughtful and troubling post:  

Jody Kent Lavy, who is executive director of the Campaign for the Fair Sentencing of Children, has this notable new commentary headlined “Supreme Court’s will on juvenile offenders thwarted.” Here are excerpts:

A little more than a year ago, the U.S. Supreme Court ruled 6-3 in Montgomery vs. Louisiana that Henry Montgomery — and anyone else who received mandatory life without parole for a crime committed when they were younger than 18 — was serving an unconstitutional sentence and deserved relief.

The sweeping opinion augmented three earlier decisions that had scaled back the ability to impose harsh adult penalties on youth, recognizing children’s unique characteristics made such penalties cruel and unusual. The Montgomery case made clear that the Eighth Amendment bars the imposition of life without parole on youth in virtually every instance.

But, in violation of the decision, prosecutors are seeking to re-impose life without parole in hundreds of cases, and judges are imposing the sentence anew. Hundreds of people serving these unconstitutional sentences — primarily in Louisiana, Pennsylvania and Michigan — are still awaiting their opportunities for resentencing. Henry Montgomery is among them.

I recently met Montgomery, now 70, at the Louisiana State Penitentiary in Angola, notorious as a place where most of its thousands of prisoners are destined to die. Montgomery, who is African-American, was convicted of killing a white police officer as a teenager. At the time, John F. Kennedy was president. Though his resentencing has yet to be scheduled, prosecutors say they plan to again seek life without parole.

Given last year’s ruling from the nation’s highest court, it might seem surprising that Montgomery, remorseful for the crime he committed more than five decades ago, is still languishing in prison. This is indeed outrageous, and it highlights the failings of our justice system, especially as it pertains to juveniles….

Henry Montgomery is living on borrowed time. He is a frail, soft-spoken, generous man. When it was lunchtime at the prison, I noticed that he wasn’t eating. When I asked why, he said he wasn’t sure there was enough food to go around. On the anniversary of the ruling that was supposed to bring him a chance of release, we owe it to Montgomery, as well as the thousands of others sentenced as youth to die in prison, to seek mercy on his behalf. We cannot give up until the day comes when children are never sentenced to life — and death — in prison.


So, How Much Do You Need for Reasonable Suspicion?

posted by Judge_Burke @ 15:30 PM
February 6, 2017

Officers don’t have to actually see drugs pass in an apparent hand-to-hand transaction in a high crime area to have reasonable suspicion. Reasonable suspicion isn’t a certainty. United States v. Slaughter, 2017 U.S. Dist. LEXIS 569 (W.D.Ky. Jan. 4, 2017):

The R&R labels the officers’ observation as a hand-to-hand drug transaction. Both detectives at the suppression hearing testified, however, that they did not see drugs, or anything, being exchanged, but instead observed hand movements consistent with a hand-to-hand drug transaction. (R&R 13; Hr’g Tr. 28:7-11, 37:2-5, 43:14-16). Defendant emphasizes this fact in urging that reasonable suspicion is lacking, but his argument misses the [*10] mark, as a finding of reasonable suspicion does not require certainty, and the appearance of criminal activity is enough to give rise to reasonable suspicion. See Flores, 571 F.3d at 545. Thus, the fact that the detectives did not observe what was handed to Defendant is not determinative. The detectives witnessed Scott reach into his pocket and then place his hand inside of Defendant’s car window, actions that lead the detectives to believe a drug transaction was occurring, an activity with which they are familiar through their law enforcement experience. (Hr’g Tr. 29:3-8, 37:2-5, 39:4-6, 43:14-16); see Paulette, 457 F.3d at 606 (“[T]he officers had a reasonable suspicion that [the defendant] was engaged in criminal activity based upon his hand movements consistent with drug-dealing activity, efforts to evade the police upon noticing them, and presence in a high crime area.” (citation omitted)) Therefore, the hand movements coupled with the fact that Defendant was in a high crime area would support the reasonable belief that criminal activity was occurring and thus, the officers had reasonable suspicion to seize Defendant.


Over 50 years ago the United States Supreme Court pronounced that every defendant in a criminal case has the right to counsel. At the time, there was little discussion about who was going to pay for this and insure it got implemented. Years later, when Strickland v. Washington was decided, there were critics who said that the standard of what constitutes ineffective assistance eviscerated the right to counsel; the critics claimed that surely Gideon stood for more than counsel in name only.

Fast forward to crushing public defender caseloads and there is where the criminal justice system sits. But, perhaps that may change this term. The United States Supreme Court has agreed to hear three cases:

WEAVER, KENTEL M. V. MASSACHUSETTSWhether a defendant asserting ineffective assistance that results in a structural error must, in addition to demonstrating deficient performance, show that he was prejudiced by counsel’s ineffectiveness, as held by four circuits and five state courts of last resort; or whether prejudice is presumed in such cases, as held by four other circuits and two state high courts.

McWILLIAMS, JAMES E. V. DUNN, COMM’R, AL DOC, ET AL.:  Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution. Finally, 

DAVILA, ERICK D. V. DAVIS, DIR., TX DCJ : Whether the rule established in Martinez v. Ryan and Trevino v. Thaler, that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims.


Is Sorry Enough?

posted by Judge_Burke @ 22:17 PM
January 25, 2017

I recently finished a medical malpractice case. It was well tried. But rarely do judges really know about the events that led up to the decision to sue. Sometimes patients with bad outcomes do not sue, and sometimes they do. Vanderbilt University Working Paper series includes a study: “Sorry Is Never Enough: The Effect of State Apology Laws on Medical Malpractice Liability Risk.“ The authors are Benjamin J. McMichaela, R. Lawrence Van Hornb, & W. Kip Viscusic.

Here’s how it opens:

The traditional response to limit medical malpractice costs includes liability reforms such as caps on noneconomic damages. Another reform option, which has become popular among states over the last 15 years, is enacting laws that facilitate greater communication between patients and their providers (see Ho and Liu 2011a; 2011b). Because patients report that, in addition to seeking compensation, they sue their physicians out of anger (Vincent et al. 1994), apologies from their physicians could potentially assuage this anger and prevent some marginal suits from being filed. However, physicians are often advised to avoid apologizing to patients in order to avoid providing those patients with evidence that could be used in a lawsuit (Lamb et al. 2003).

State apology laws, which states enact to address this paradox faced by physicians, are reforms to state rules of evidence and exclude from trials statements of apology, condolence, or sympathy made by healthcare providers (sometimes only physicians) to patients. In the absence of an apology law, expressions of sympathy may generate a successful medical malpractice claim. In the presence of an apology law, physicians can more freely express sympathy without those statements being admissible in future lawsuits. Reflecting the growing popularity of apologies and communication as a malpractice mitigation strategy, the Agency for Healthcare Research and Quality (AHRQ) has developed the Communication and Optimal Resolution (CANDOR) process, which is based in part on facilitating apologies by physicians to patients. And many healthcare facilities across the country have developed specific apology and disclosure programs (see, e.g., Adams et al. 2014).


Another excerpt:

For physicians who do not regularly perform surgery, apology laws increase the probability of facing a lawsuit and increase the average payment made to resolve a claim. For surgeons, apology laws do not have a substantial effect on the probability of facing a claim or the average payment made to resolve a claim. Overall, the evidence suggests that apology laws do not effectively limit medical malpractice liability risk.


The article closes:

In general, apology laws increase the probability of malpractice lawsuits for non-surgeons. While these laws reduce non-suit claims brought against non-surgeons, the evidence suggests that injured patients simply substitute lawsuits for non-suit claims. Additionally, apology laws increase indemnity payments for non-surgeons and, in doing so, narrow the gap between the average payment made by surgeons and non-surgeons. Overall, the results suggest that, unless a physician routinely performs surgery, her risk of facing a lawsuit increases and the average payment she makes as part of a claim increases. Surgeons do not see similar increases, but neither do they see decreases in the probability or severity of malpractice claims. In other words, the evidence reported here suggests that apology laws do not, in general, attenuate medical malpractice liability risk.


The study is available online here.