So When Should A Judge Recuse?

posted by Judge_Burke @ 19:50 PM
July 19, 2019

Your spouse represents one of the parties in a case assigned to you. Should you recuse? Of course. But what if someone hires the firm where your spouse works after bad rulings from you in an attempt to disqualify you as the judge? That is a harder question to answer as illustrated by this story from Florida, By Dara Kam, The News Service of Florida

A federal judge who has routinely ruled against the state in election-related lawsuits has withdrawn from overseeing a challenge to a new state statute aimed at carrying out a constitutional amendment restoring voting rights to Floridians convicted of felonies.

U.S. District Judge Mark E. Walker on Wednesday filed an order disqualifying himself from the case, saying his wife works for the same law firm as an attorney who recently signed up to represent two of the defendants, including Secretary of State Laurel Lee.

George Meros of Holland & Knight LLP filed a notice with the court Tuesday, saying he would represent Lee and Broward County Supervisor of Elections Pete Antonacci. Walker’s wife, Karen, also works for the firm.

In his order Wednesday, Walker, who serves as the chief judge of Florida’s Northern District, hinted that the move to hire Meros may have been intended to force Walker off the case, writing that “the conduct at issue here is deeply troubling.”

Walker pointed to a 2015 lawsuit in which defendants hired Holland & Knight mid-way through the judicial proceedings. Plaintiffs in the lawsuit accused the defendants of “judge shopping” by intentionally hiring a lawyer from the firm where Walker’s wife worked so another judge would be assigned to the case. Walker did not recuse himself, but asked for an opinion from another judge in the matter.

Senior District Judge Maurice Paul instead disqualified Holland & Knight from the case, allowing Walker to remain in charge of a contentious legal battle over a fuel surcharge fee being charged by a waste removal company.

In his April 2016 decision keeping Walker as the judge in the case, Paul wrote that Holland & Knight “should be disqualified because of the potential for manipulation of the judicial system, the lack of need by defendants for this particular counsel, and the potential delay and loss of judicial activity,” a finding Walker referred to in Wednesday’s order.

The 11th Circuit Court of Appeals “has outlined a process to differentiate legitimate judicial recusal necessary under federal law from frivolous recusals brought on by unscrupulous shenanigans,” Walker wrote.

While Walker asked another judge to weigh in on his recusal in the fuel surcharge case, the federal judge said he “will not employ that process” now.

“Although the conduct at issue is deeply troubling, I am relieved of those concerns by confidence in my collegues on this court to preside over the remainder of this case and judge it fairly and wisely,” he wrote.”

For the full story see:




posted by Judge_Burke @ 21:33 PM
July 16, 2019

From Judge Wayne Gorman:


In R. v. Gill, 2019 BCCA 260, July 16, 2017, the police arrested the accused during the execution of an impression warrant. A struggle ensued, during which an envelope fell on to the ground. A police officer picked it up and discovered it contained cocaine. The envelope was seized. The accused was charged with and convicted of the offence of possession of cocaine for the purpose of trafficking.


The accused appealed from conviction.  He argued that the seizure of the envelope was unreasonable and that the trial judge erred in holding that the seizure was authorized by the plain view doctrine.


The appeal was dismissed.


The Plain View Doctrine:

The British Columbia Court of Appeal noted that “the plain view doctrine, a creature of the common law, has its origins in American jurisprudence and reflects ‘an application of the Fourth Amendment’s central requirement of reasonableness to the law governing seizures of property’: Texas v. Brown, 460 U.S. 730 at 739 (1983). The doctrine provides that where, during the course of executing a legal warrant, an officer locates anything he or she reasonably believes is evidence of the commission of a crime, the officer has the power to seize it…The key to the application of the plain view doctrine is the principle that s. 8 of the Charter protects reasonable expectations of privacy against state intrusions. The premise is that a person can have no reasonable expectation of privacy in an item in plain view to officers where the officers have a right to be present and are carrying out their lawful duties” (at paragraphs 24 and 32).

The Court of Appeal indicated that it “is clear that the officer must be lawfully in the place and acting lawfully in the exercise of police powers when the officer discovers the evidence, in order for the plain view doctrine to apply…It is also uncontentious that the evidence has to be in plain view” (at paragraphs 38 and 39).

The Court of Appeal also indicated that “for the plain view doctrine to apply, the discovery of the item by the officer must be ‘inadvertent’ in the sense that it is not discovered by unauthorized search, but rather, because it is in the open when the police are lawfully in the place where it is visible, and lawfully exercising police duties” at paragraph 52).

Finally, the Court of Appeal held that “in order to justify seizure of an item without a warrant under the plain view doctrine, it must be immediately apparent to the officer that there are reasonable and probable grounds to believe the item is evidence of criminal conduct. The immediacy requirement means that it is apparent without further investigations. The reasonable and probable grounds requirement means that more than mere suspicion is required, but certainty is not required” (at paragraph 59).


Application to this Case:


The British Columbia Court of Appeal concluded as follows (at paragraphs 109 to 110):

I see no error in the judge’s application of the plain view doctrine, which was based on her findings of fact which were supported by the evidence.

I therefore see no error in the judge’s admission at trial of the evidence of the seized cocaine brick.


Confirmation Bias & More

posted by Judge_Burke @ 21:50 PM
July 15, 2019

Kim Rossmo and Joycelyn Pollock (Texas State University and Texas State University) have posted Confirmation Bias and Other Systemic Causes of Wrongful Convictions: A Sentinel Events Perspective (Northeastern University Law Review, Vol. 11, No. 2, 2019) on SSRN. Here is the abstract:

Wrongful convictions are a form of criminal investigative failure. Such failures are sentinel events that signal underlying structural problems within a weak system environment. Similar to transportation or medical accidents, they are often the result of multiple and co-occurring causes. However, unlike the response to an airplane crash, the criminal justice system typically makes little effort to understand what went wrong. These failures tend to be ignored and systemic reviews are rare. As a consequence, important necessary procedural changes and policy improvements may not occur. In this article, we discuss a National Institute of Justice-funded research project that was designed to develop a more comprehensive understanding of how—as opposed to why— such failures occur. We deconstructed 50 wrongful convictions and other criminal investigative failures in order to identify the major causal factors, their characteristics and interrelationships, and the systemic nature of the overall failure. We focus on the central role played by confirmation bias and other thinking errors.


Punishing Homelessness

posted by Judge_Burke @ 20:21 PM
July 10, 2019

Sara Rankin (Seattle University School of Law) has posted Punishing Homelessness (22 New Criminal Law Review 1, 99–135 (2019)) on SSRN. Here is the abstract:

Homelessness is punishing to those who experience it, not just from the inherent and protracted trauma of living exposed on the street, but also due to widespread and pervasive laws that punish people for being homeless. People experiencing homelessness, particularly chronic homelessness, often lack reasonable alternatives to living in public. Yet cities throughout the country are increasingly enacting and enforcing laws that punish the conduct of necessary, life-sustaining activities in public, even when many people have no other option. These laws are frequently challenged in court and often struck down as unconstitutional. But legally sound, cost-effective, and non-punitive alternatives to ending chronic homelessness exist. This article exposes some of the problems with criminalization laws, not only for people experiencing homelessness, but also for the broader community.

It discusses how current approaches often make chronic homelessness worse and explains why non-punitive alternatives, especially Housing First and permanent supportive housing, are the most cost-effective means of addressing chronic homelessness. Ultimately, this article urges cities and their constituents to stop punishing homelessness and instead to start solving it.


What Is The Effect Of Legalizing Marijuana

posted by Judge_Burke @ 17:11 PM
July 9, 2019

This may be an area where evidence does not necessarily drive our views. From Governing Magazine: “New research suggests legalizing recreational marijuana for U.S. adults in some states may have slightly reduced teens’ odds of using pot.”

One reason may be that it’s harder and costlier for teens to buy marijuana from licensed dispensaries than from dealers, said lead author Mark Anderson, a health economist at Montana State University.

The researchers analyzed national youth health and behavior surveys from 1993 through 2017 that included questions about marijuana use. Responses from 1.4 million high school students were included.

Thirty-three states have passed medical marijuana laws and 11 have legalized recreational use — generally for ages 21 and up, many during the study years. The researchers looked at overall changes nationwide, but not at individual states.

There was no change linked with medical marijuana legislation but odds of teen use declined almost 10% after recreational marijuana laws were enacted.

View Full Story From the Associated Press.


An Unfortunate Development In Alaska

posted by Judge_Burke @ 18:37 PM
July 8, 2019

This report is pretty straightforward. It isn’t the only time when the budget has been used as a weapon to “punish” the judiciary. But each time it happens there is an erosion of the independence that courts need to have in order to be effective. The founding fathers knew this risk and so many state constitutions provide that judges salaries can’t be cut as retribution for rulings the political branches dislike.

ANCHORAGE (KTUU) - Officials from the Alaska Court System say judges will not be pressured by “the politics of the day” after the governor cut funding to the Alaska Supreme Court due to rulings made on abortion funding.

On Friday, the governor announced that $334,700 would be vetoed from the Alaska Supreme Court’s budget. Documents provided by the Office of Management and Budget made clear that the decision was due to multiple rulings by the Alaska Supreme Court that funding for so-called “elective” abortions is constitutionally required by the State.

“The Legislative and Executive Branch are opposed to State-funded elective abortions; the only branch of government that insists on State-funded elective abortions is the Supreme Court,” read the document from the OMB. “The annual cost of elective abortions is reflected by this reduction.”

Margaret Newman, a spokesperson for the Alaska Court System, released a statement Wednesday in response to the governor’s veto. “Legislators, governors, and all other Alaskans certainly have the right to their own opinions about the constitutionality of government action, but ultimately it is the courts that are required to decide what the constitution mandates,” her statement read.

“We assure all Alaskans that the Alaska Court System will continue to render independent court decisions based on the rule of law, without regard to the politics of the day,” she added.

In 1998, the Department of Health and Social Services implemented regulations restricting state funding for abortions through Medicaid. In 2001, the Alaska Supreme Court ruled that all women, regardless of income, are owed the same access to healthcare under the equal protection clause of the Alaska Constitution.

In February, the Alaska Supreme Court essentially reaffirmed its 2001 decision after a 2014 statute and a 2013 regulation attempted to re-define which abortions are deemed “medically necessary.”

Conservatives have long argued that Alaska’s courts have a liberal bias on the issue of abortion.

“The Alaska Supreme Court has a long history of extremist rulings on abortion. But until today, they never suffered any real consequences for it,” read a statement released Friday by Jim Minnery, the executive director of the Alaska Family Council.

House Minority Leader Lance Pruitt, R-Anchorage, said he was surprised by the veto, but that the governor may believe the courts aren’t as “impartial as they could be.” Pruitt said that was because the Alaska Bar Association has a prominent voice on the Alaska Judicial Council, the independent body that appoints judges to the bench.

The Alaska Judicial Council is made up of seven members: Three members of the Alaska Bar Association, three people confirmed by the Legislature who are not attorneys and the Chief Justice of the Supreme Court.

Senate Minority Leader Tom Begich, D-Anchorage, spoke out strongly against the perceived pressuring of the judiciary by the executive. “That is inappropriate by any measure, whether you’re pro-choice, pro-life. That is an inappropriate use of the governorship.”


United States Supreme Court Issues An Important Ruling On Drunk Driving

posted by Judge_Burke @ 14:29 PM
June 28, 2019

Justice Alito announced the judgment of the Court in Mitchell v. Wisconsin and delivered an opinion joined by the Chief Justice and Justices Breyer and Kavanaugh. Justice Thomas concurred in the judgment. Justice Sotomayor filed a dissenting opinion, joined by Justices Ginsburg and Kagan. Justice Gorsuch also filed a dissenting opinion.

So what does it say? It is a bit confusing, but it appears that if you are drunk and passed out that is an exigent circumstance and there is not a need for a search warrant. The plurality of justices did not address whether if you are not passed out but tell the officer you don’t want to take a test whether that too is an exigent circumstance.


Algorithms in the Courtroom

posted by Judge_Burke @ 20:27 PM
June 24, 2019

Kia Rahnama has posted Science and Ethics of Algorithms in the Courtroom (Journal of Law, Technology and Policy, Vol. 2019, No. 1, 2019) on SSRN. Here is the abstract:

This Article analyzes the societal and cultural impacts of greater reliance on the use of algorithms in the courtroom. Big-data analytics and algorithms are beginning to play a large role in influencing judges’ sentencing and criminal enforcement decisions. This Article addresses this shift toward greater acceptance of algorithms as models for risk-assessment and criminal forecasting within the context of moral and social movements that have shaped the American justice system’s current approach to punishment and rehabilitation. By reviewing salient problems of scientific uncertainty that accompany the use of these models and algorithms, the Article calls into question the proposition that greater reliance on algorithms in the courtroom can lead to a more objective and fair criminal sentencing regime.

Far from liberating the society from the biases and prejudices that might pollute judges’ decision-making process, these tools can intensify, while simultaneously concealing, entrenched cultural biases that preexist in the society. Using common themes from the field of Science and Technology Studies (STS), including boundary-work analysis and Public Understanding of Science (PUS), this Article highlights unique technical characteristics of big-data analytics and algorithms that feed into undesirable and deeply-held values and beliefs. This Article draws attention to specific gaps in technical understanding of algorithmic thinking, such as the black box of algorithms, that can have discordant impact on communicating uncertainty to the populace and reduce accountability and transparency in regulating the use of algorithms. This Article also provides specific policy proposals that can ameliorate the adverse social and cultural effects of incorporating algorithms into the courtroom. The discussion of policy proposals borrows from the STS literature on public participation in science and encourages adoption of a policy that incorporates diverse voices from political actors, most affected communities, and the offenders themselves.


Should Judges Be More Cautious About Revocation of Probation

posted by Judge_Burke @ 20:34 PM
June 20, 2019

The law is clear that prior to revoking probation, a judge has to analyze what the appropriate alternative is. It is not always an easy analysis. Several years ago I had a contested revocation hearing. The defendant was a long time crack addict. He had been clean for nearly a year and  had become employed for substantially all of that year. He liked his job and his employer liked him. And then he tested positive for marijuana. His probation officer wanted to send him to prison. I asked the probation officer, “Not to excuse the weed smoking, but with these facts do you see the defendant as making progress or being a failure?” The probation officer unhesitatingly said, “He is a failure.” I replied that I saw the defendant as making progress.  Dealing with chemically dependency is not easy because relapse is a prevalent part of the disease.

Governing Magazine reports that, “Probation and parole were designed as alternatives to time in prison, but they often end up having the opposite effect.Nationwide, 45 percent of admissions to state prisons are the result of probation or parole violations. Sometimes these violations are serious, but most involve technicalities, such as botched paperwork, curfew violations or missing a drug test, according to a report released Tuesday by the Council of State Governments (CSG) Justice Center.

“Many states have made recidivism reduction a public safety priority,” says Megan Quattlebaum, the center’s director, “but the harsh reality is that supervision fails nearly as often as it succeeds.”

States spend $9.3 billion a year incarcerating people for parole or probation violations, according to CSG. About a third of that, $2.8 billion, is spent locking people up for technical violations. That doesn’t include the cost of housing inmates in local jails.

Although it has long been clear that parole and probation violations account for a substantial share of prison admissions, the CSG report is the first effort to collect information from all 50 states.

“We’ve had data on individual states but never a complete national picture,” says Adam Gelb, founder and director of the Council on Criminal Justice, a nonprofit group.

Many states have changed their sentencing laws and reentry programs to cut down on prison recidivism over the past decade, but the incarceration of parole and probation violators is just starting to draw wider attention.

“This has been the dirty little secret of the system for decades,” Gelb says. “It’s a huge driver of prison populations and costs.”

See also,

Criminal Justice Reform Paves the Way for Welfare Reform

On Felons’ Rights,

2 States Take 2 Different Directions,

For Some, ‘Ban-the-Box’ Laws Are Making It Harder to Get a Job,

The Changing Relationship Between Ex-Criminals and Their Parole Officers,

To Work on Parole Boards, No Experience Necessary


Dual Sovereignty Is Here To Stay

posted by Judge_Burke @ 18:40 PM
June 18, 2019

From The Sentencing Law & Policy Blog:

Unsurprisingly, the Supreme Court has decided not to overturn its longstanding “dual sovereignty” doctrine in the case of Gamble v. US, No. 17-646 (S. Ct. June 17, 2019) (available here). Here is how the Court’s majority opinion, authored by Justice Alito, gets started:

We consider in this case whether to overrule a longstanding interpretation of the Double Jeopardy Clause of the Fifth Amendment. That Clause provides that no person may be “twice put in jeopardy” “for the same offence.” Our double jeopardy case law is complex, but at its core, the Clause means that those acquitted or convicted of a particular “offence” cannot be tried a second time for the same “offence.” But what does the Clause mean by an “offence”?

We have long held that a crime under one sovereign’s laws is not “the same offence” as a crime under the laws of another sovereign. Under this “dual-sovereignty” doctrine, a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute.

Or the reverse may happen, as it did here. Terance Gamble, convicted by Alabama for possessing a firearm as a felon, now faces prosecution by the United States under its own felon-in-possession law. Attacking this second prosecution on double jeopardy grounds, Gamble asks us to overrule the dual-sovereignty doctrine. He contends that it departs from the founding-era understanding of the right enshrined by the Double Jeopardy Clause. But the historical evidence assembled by Gamble is feeble; pointing the other way are the Clause’s text, other historical evidence, and 170 years of precedent. Today we affirm that precedent, and with it the decision below.

Notably, Justice Thomas pens an extended concurrence in Gamble, but does so “to address the proper role of the doctrine of stare decisis.” Thereafter, Justice Ginsburg authors a lengthy dissent, and Justice Gorsuch authors an even longer dissent. I hope to have more to say about all these opinions in the days to come, but the close of Justice Gorsuch’s dissent seem immediately blogworthy:

Enforcing the Constitution always bears its costs. But when the people adopted the Constitution and its Bill of Rights, they thought the liberties promised there worth the costs. It is not for this Court to reassess this judgment to make the prosecutor’s job easier. Nor is there any doubt that the benefits the framers saw in prohibiting double prosecutions remain real, and maybe more vital than ever, today. When governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is “the poor and the weak,” and the unpopular and controversial, who suffer first — and there is nothing to stop them from being the last. The separate sovereigns exception was wrong when it was invented, and it remains wrong today.