Archive for January, 2012

Guest Post on Wellness: Chuck A. Ericksen, Ed.D.

posted by Judge_Burke @ 17:11 PM
January 30, 2012

The great John W. Gardner identified four sources of stress endemic to leadership: hostile criticism, invasion of privacy, work overload, and combat. He noted that negative consequences such as alcoholism, bitterness, paranoia and self-pity are among the most common afflictions leaders frequently experience. Gardner also highlighted the importance of leaders’ recognizing their need for stress reduction strategies such as obtaining adequate rest, occasions of isolation and inactivity, seeking solace in friends, family, and faith, and maintaining a healthy perspective on life. My experience in leadership development and wellness promotion has taught me that continually practiced, those strategies that Gardner mentions enable self-renewal by releasing human energy and talent, equipping leaders to facilitate the renewal process in their sphere of influence. I have also seen that to avoid those strategies is to risk doing harm to self, others, and ultimately to the organization in which the leader serves.

 

Charles A. Ericksen, Ed.D.

 

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Guest Post: Chuck A. Ericksen, Ed.D.

posted by Judge_Burke @ 16:39 PM
January 27, 2012

The debate in the leadership literature continues over the extent to which leadership qualities and personal characteristics that are less amenable to change (drive, perseverance, emotional resilience, etc.) can be developed. Bennis and Thomas (2002) took a developmental approach in their study of 43 leaders when they examined “why some people are able to extract wisdom from experience, however harsh, and others not” (p. 2). Their focus was less about the traits of sampled leaders than on the leaders’ transformative learning journey. They stressed “Our study confirmed our belief that traits and other individual factors are given too much prominence in studies of leadership” (p. 91). Bennis and Thomas termed those transformative learning journeys the “crucibles of leadership” (p. 87). The authors generalized respondent’s narratives about emerging stronger from an ordeal by hypothesizing the existence of an adaptive capacity in those individuals. Judicial education can provide an important opportunity for developing judges’ adaptive capacity. The opportunity for judges to engage in discussions about difficult matters, totally off the record, can build collegiality as well as strengthen judicial performance. Judicial educators and conference planners should consider this part of the central mission of judicial education.

 

Charles A. Ericksen, Ed.D.

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Guest Post: Leading Resilient Organizations, Chuck A. Ericksen, Ed.D.

posted by Judge_Burke @ 22:07 PM
January 26, 2012

Since the 1970’s, the subjects of stress and coping have received considerable empirical attention in the social and personality psychology, developmental psychology, and behavioral medicine literature. One construct that emerged from the research pertains to an individual’s capacity to maintain psychological and physical well-being despite suffering risk experiences. Resilience studies originally focused on high risk populations with an interest in children at risk for psychopathology and problems in development owing to emotional, developmental, economic, or environmental challenges. Early on, the field of study reflected an interest in not only what factors insulate and protect an individual but also how the protective processes exert their influence. The combination of an emerging emphasis in positive psychology and recent advances in the study of adult development suggests that resilience may have much broader applicability, with relevance to virtually any population that encounters acute or chronic stress. Ultimately, the early research laid a foundation for the recognition that stress is ubiquitous and resilience is a much more common phenomena than previously thought.     

         Resilience is associated with flexibility, buoyancy, and adaptation. It may be the key skill for surviving and thriving in the multitude of changes we all are experiencing as we move into the Digital Age. Resilience and learning go hand in hand. Like intelligence or athletic ability, resilience comes in many forms and can be developed.   If we are to have resilient organizations, leaders must of course be resilient themselves, possessing the human capacity to learn from and be transformed by adversity, challenge and change. In addition, they must cultivate the resiliency of the workforce and create appropriate systems that sustain healthy workplaces and learning organizations.

Chuck A. Ericksen, Ed.D.

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The State of Eyewitness Identification

posted by Judge_Burke @ 23:16 PM
January 25, 2012

 Last fall, there were a series of events that held promise that the criminal justice system was about to see major re-thinking about how courts deal with eyewitness identification.  The New Jersey Supreme Court issued an extensive order which outlined in detail the problem with eyewitness identification. http://www.courts.state.nh.us/supreme/orders/StatevPerry.pdf   The American Judicature Society issued a report on eyewitness identification.  http://www.ajs.org/ajs/ajs_editorial-template.asp?content_id=1000   The United States Supreme Court accepted cert on an eyewitness identification case.  Among the amicus briefs filed with the Supreme Court was one filed by the American Psychological Association. http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/Other_Brief_Updates/10-8974_petitioneramcuapa.authcheckdam.pdf  The Supreme Court, with only one dissent, refused to require a new screening procedure in situations where police have not actually manipulated the identification. Perry v. New Hampshire (docket 10-8974) http://www.scotusblog.com/case-files/cases/perry-v-new-hampshire/?wpmp_switcher=desktop 

Justice Ruth Bader Ginsburg’s opinion that the practice of allowing jurors, not judges, in a mid-trial screening process, to decide whether to believe eyewitness testimony was all that was constitutionally required.  Justice Sonia Sotomayor, the lone dissenter, would have required a screening procedure by the judge any time an identification had been made in a “suggestive” setting.

The courts have been split on this issue.  One court had ruled that federal judges must scrutinize all suggestive ID procedures, not just those orchestrated by police.  The New Hampshire Supreme Court and others have taken the opposite view.  In Perry v. New Hampshire, the witness, who had called police to check on a black man allegedly breaking into autos in the parking lot of her apartment complex, was questioned by a police officer in the building.  She then went to the kitchen window of her apartment, looked out, and identified a suspect in the parking lot—the only black person standing next to a police officer who had come to investigate.  About a month later, though, that witness could not pick out the same person from an array of photos shown to her by police.

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How Should Courts Deal With Informants?

posted by Judge_Burke @ 17:18 PM
January 23, 2012

The Supreme Court  recently released an order today denying certiorari in Cash v. Maxwell, formerly Maxwell v. Roe, an important Ninth Circuit decision. Denials of cert usually are without comment, but this case generated a debate between Justice Sotomayor, who supported the denial, and Justices Scalia and Alito who thought the Ninth Circuit’s decision should have been overturned. See SCOTUSblog post here, and L.A. Times story here.

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What Should Be The Law on Common Law Romantic Partnerships?

posted by Judge_Burke @ 17:04 PM
January 20, 2012

Decades ago the term palimony was coined. Palimony is a popular (but not a historical or legal) term used to describe the division of financial assets and real property on the termination of a personal relationship. Many courts, including Canadian courts have not so subtlety encouraged marriage holding that there were minimal if any financial rights for unmarried couples. The Globe and Mail reports that may change in Canada.

At the heart of the case being argued on Wednesday are a Quebec couple, identifiable only as Lola and Eric, who enjoyed a life of fabulous wealth. Lola’s lawyers argue that under Quebec’s legal regime, their client is precluded from obtaining spousal support, let alone a share of Eric’s multibillion-dollar assets.

The first stage of inquiry for the Supreme Court will be to determine whether Quebec should be compelled to join the rest of Canada in offering common-law spouses the same rights as married couples when it comes to obtaining spousal support.

Should it choose to go further, the court could reverse its 10-year-old precedent in the case of Walsh v. Bona, erasing a sharp line the court drew between marriage and common law when it comes to the division of property. National – The Globe and Mail

 

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Perry v. New Hampshire: Eyewitness Identification

posted by Judge_Burke @ 16:39 PM
January 19, 2012

Last fall, there were a series of events that held promise that the criminal justice system was about to see major re-thinking about how courts deal with eyewitness identification.  The New Jersey Supreme Court issued an extensive order which outlined in detail the problem with eyewitness identification. http://www.courts.state.nh.us/supreme/orders/StatevPerry.pdf   The American Judicature Society issued a report on eyewitness identification.  http://www.ajs.org/ajs/ajs_editorial-template.asp?content_id=1000   The United States Supreme Court accepted cert on an eyewitness identification case.  Among the amicus briefs filed with the Supreme Court was one filed by the American Psychological Association. http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/Other_Brief_Updates/10-8974_petitioneramcuapa.authcheckdam.pdf  The Supreme Court, with only one dissent, refused to require a new screening procedure in situations where police have not actually manipulated the identification. Perry v. New Hampshire (docket 10-8974) http://www.scotusblog.com/case-files/cases/perry-v-new-hampshire/?wpmp_switcher=desktop 

Justice Ruth Bader Ginsburg’s opinion that the practice of allowing jurors, not judges, in a mid-trial screening process, to decide whether to believe eyewitness testimony was all that was constitutionally required.  Justice Sonia Sotomayor, the lone dissenter, would have required a screening procedure by the judge any time an identification had been made in a “suggestive” setting.

The courts have been split on this issue.  One court had ruled that federal judges must scrutinize all suggestive ID procedures, not just those orchestrated by police.  The New Hampshire Supreme Court and others have taken the opposite view.  In Perry v. New Hampshire, the witness, who had called police to check on a black man allegedly breaking into autos in the parking lot of her apartment complex, was questioned by a police officer in the building.  She then went to the kitchen window of her apartment, looked out, and identified a suspect in the parking lot—the only black person standing next to a police officer who had come to investigate.  About a month later, though, that witness could not pick out the same person from an array of photos shown to her by police.

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 The times that courts operate in demand the best from our court leaders.  Regardless of whether you are a presiding judge or recently sworn in, regardless if you are an experienced court manager or new to the profession, each of us can and need to become more effective court leaders.  We all too often don’t take the time to explore how to be a more effective court leader.  The American Judges Association, thanks to the State of Washington court system, is about to make it a bit easier for judges and court administrators to explore how to be a more effective court leader.

 On January 23, 2012 at 12:15-1:15 Central Standard Time we will be conducting a webinar on court leadership.  The response to the webinar has been quite remarkable, but there are a “few seats” still available.  Thanks to the technology of the State of Washington, participants will be able to participate in polls during the webinar, ask questions and share insights.   Please see below to register and join us.   You need not be a member of the American Judges Association…..but of course we would really like judges to someday join if you are not already a member. If you can’t participate yourself please feel free to share this announcement with judges and administrators you know.

To Register:

Please fax the following information to 757-259-1520

First Name:

Last Name:

Title:

Court:

Phone:

Email Address:

Registration closes on January 20, 2012. Confirmations will be sent to the email address you provide.  Login information will be sent the morning of the Webinar to all registered participants.  For questions regarding registration, please contact Ms. Shelley Rockwell at 757-259-1841 or srockwell@ncsc.org

 

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What Should be the Role of Our Federal Courts?

posted by Judge_Burke @ 18:15 PM
January 12, 2012

Peter Hardin of  Justice at Stake,recently wrote a short but interesting piece on what the American people think should be the role of the federal courts. 

A new poll released by Justice at Stake shows that Americans reject a range of proposals by Newt Gingrich and several fellow GOP presidential hopefuls to severely limit the role of federal courts.

Voters solidly oppose permitting Congress to limit types of cases that courts can hear, or letting Congress or the president ignore or overturn a Supreme Court ruling, according to the poll. Voters oppose former House Speaker Newt Gingrich’s idea of using U.S. marshals to arrest judges and compel them to explain their decisions before Congress.

“The court-bashing coming off the campaign trail is way outside the American political mainstream,” said Bert Brandenburg, JAS executive director. “This poll confirms that Americans don’t want their leaders tampering with the courts. They strongly support courts that are accountable to the Constitution, not to elected politicians.”

Almost all of the specific proposals floated by GOP candidates regarding the courts were rejected in the poll of 1,000 voters nationwide:

  • 57 percent believe Congress and the president should not be able to ignore Supreme Court rulings, while 19 percent agree with the idea;
  • 48 percent say Congress should not be allowed to strip authority from courts to hear cases involving such issues as same-sex marriage and religious freedom. Twenty-nine percent favor letting Congress interfere in this way.
  • 50 percent reject Perry’s proposal for a constitutional amendment permitting Congress to overturn a Supreme Court ruling with a two-thirds majority vote. Thirty percent favor the constitutional amendment idea.
  • 53 percent of voters reject the proposal that Congress eliminate entire courts in response to unpopular decisions, while 26 percent favor the idea.
  • 36 percent oppose the proposal that Congress should be able to ask judges to appear before it and explain their decisions, and 42 percent favor the proposal. By 51 to 38 percent, however, a majority of voters oppose Gingrich’s suggestion that law enforcement officials detain judges for congressional questioning about their decisions.

Texas Gov. Rick Perry’s proposal for nine rotating 18-year terms for Supreme Court justices, instead of lifetime appointments, received support from 48 percent of voters, compared to 31 percent opposed. The proposal has roots in the academic community.

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Sleeping and Tweeting Jurors

posted by Judge_Burke @ 16:48 PM
January 11, 2012

Arguably because of what is at stake, death penalty cases may not be the best way to understand how courts should approach juror misconduct. We quite understandably want near perfection in the conduct of a death penalty case and may well have a less exacting standard for a soft tissue injury auto accident case. But it is in the soft tissue auto accident case that a judge is more likely to find a juror sound asleep, and there maybe all kinds of cases where a juror wants to tweet their friends.

The Arkansas Supreme Court dealt with both issues recently and overturned a death-row inmate’s murder conviction because of jurors who tweeted and slept during his trial. The high court also said that because of changing technology, it is time to consider whether jurors should continue to be allowed access to mobile phones during trials.

The Supreme Court ordered a new trial in Benton County Circuit Court for Erickson Dimas-Martinez in the Dec. 30, 2006, shooting death of 17-year-old Derrick Jefferson in Springdale. Dimas-Martinez had been sentenced to death for capital murder and life in prison for aggravated robbery.

— S.W.3d —- (Ark.)

2011 Ark. 515

2011 WL 6091330

 

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