Archive for November, 2012

Oregon Supreme Court Issues Important Eyewitness Evidence Opinion

posted by Judge_Burke @ 16:40 PM
November 30, 2012

The current issue of Court Review (Volume 48, Issues 1-2) is a special issue devoted entirely to eyewitness evidence. Yesterday the Oregon Supreme Court issued an important opinion changing how that states will in the future deal with eyewitness evidence. The opinion can be found at

 The Oregonian story about the case begins…

About a month before Samuel Lawson was to go on trial for the 2003 murder of a Douglas County man, a detective in the case quietly took a star witness to one of Lawson’s hearings to get a look at him.
Sherl Hilde had been unable to consistently identify Lawson as the suspect who shot her and killed her husband in the attack at a national forest campsite.
But a few weeks after her courtroom visit, the doubt was gone. “I’ll never forget his face as long as I live,” Hilde told jurors. Lawson was convicted of five counts of aggravated murder and is serving a life sentence.
In a sweeping ruling Thursday, the Oregon Supreme Court not only ordered a new trial for Lawson, but also established a new procedure for evaluating whether eyewitness identifications can be used as evidence.
The Supreme Court found “serious questions” about the reliability of Hilde’s identification of Lawson, Justice Paul De Muniz wrote in the unanimous decision. Police asked Hilde leading questions, gave her a photo of the suspect and made suggestive statements that could have implanted in her mind that Lawson — who had encountered the couple earlier in the day — was the shooter, the justices said.


Greg Berman who leads the Center for Court Innovation is among the nation’s great thinkers about courts so that when he makes observations people should read them. He recently posted on his blog the following commentary:
One of the more enjoyable assignments I have had of late was provided to me by the good folks at Quid Pro Books, who asked me to write the foreword for a new edition of Malcolm Feeley‘s Court Reform on Trial: Why Simple Solutions Fail.  I was flattered by the ask.  I am a big fan of Feeley’s work, which also includes the classic The Process Is The Punishment.

It was a pleasure to be given an excuse to re-read Court Reform on Trial, which was one of the few books that directly influenced Trial & Error in Criminal Justice Reform.  As a teaser to encourage sales of the reprint when it becomes available, I offer this small taste of Feeley’s prose from Court Reform on Trial:

“Whatever one’s goals, there is a tendency to expect too much of the courts.  Higher standards can lead to improvements, but exaggerated expectations can also foster disillusionment…Courts cannot solve the problem of crime or event make a significant dent in it.  Thus, in a very real sense the courts — charged with handling society’s failures — will always fail.  What the family, the church, the workplace, and the school cannot do, neither can the courts.”


Recently I had the privilege of speaking at a conference of Alaska judges, prosecutors, and public defenders on hearsay and confrontation issues. Perhaps the only notable thing that I said was the splintered opinion in Williams v. Illinois will inevitably result in a lot of litigation on the parameters of the Confrontation Clause.

The California Supreme Court issued two decisions recently on the Confrontation Clause and forensic reports.  The first case, People v. Lopez, involves a lab report of blood alcohol content.   A majority of the court says that the analyst doesn’t have to show up because the lab report was not sufficiently formal.
The second case, People v. Dungo, involved an autopsy report in a murder case.  The majority decision says the autopsy was not testimonial because it was not made with the primary purpose of creating evidence for trial. But the fact situation does illustrate that there may be reasons for courts to be cautious about forensic experts or applying the rationale of People v. Dungo in your jurisdiction.  The prosecution prior to trial informed the court that pathologist George Bolduc, who had performed the autopsy of victim’s body, would not be called as an expert witness. Instead, the prosecution‘s witness would be forensic pathologist Robert Lawrence who at the time of trial was Dr. Bolduc‘s employer. The prosecution did not indicate that Dr. Bolduc was unavailable to testify. Defendant objected to the prosecution‘s tactic.

At a  pretrial evidentiary hearing, Dr. Lawrence testified on cross-examination by the defense that Dr. Bolduc had at one point been a coroner in Kern County but was fired, a fact not disclosed in Bolduc’s résumé. The record showed that in his previous employment as a coroner for Orange County, Dr. Bolduc had resigned under a cloud. As a result of these incidents, Dr. Lawrence said, some newspaper articles asserted that Dr. Bolduc was incompetent, and prosecutors in several counties in California refused to use him as an expert witness in homicide cases. Dr. Lawrence had seen no evidence that [Dr. Bolduc] ever did anything incompetent.  He said the allegations against Dr. Bolduc were generated by people who don’t know what they’re talking about, and he described much of the criticism of Dr. Bolduc as ridiculous and patently absurd.  Dr. Lawrence agreed with the conclusion in Dr. Bolduc’s autopsy report that the victim died from asphyxia due to neck compression.


Does The Judge Have An Obligation To View The Evidence?

posted by Judge_Burke @ 15:44 PM
November 19, 2012

Of course a judge does……what a silly comment. But during the oral argument on the Affordable Health Care Act Justice Scalia jokingly asked or mused that surely no one expected him to read all the Act in its entirety.  Given the fact that judges not infrequently get briefs with appendices that would take hours to carefully read, perhaps the honest answer is not so clear, but at least in the United States, there are few cases which directly address the responsibility of judges to read briefs or view evidence. Now there is a case out of Canada.

Canada’s highest court has defended the right of a judge to refuse to view graphic video in a child sex abuse case.

The Ontario Court of Appeal, in a precedent-setting ruling earlier this year, supported the decision of Justice Stephen Hunter, who refused to view video of a father having sex with his child before delivering a sentence in the sexual assault case.

The Supreme Court of Canada upheld that decision Thursday, dismissing a request by the Crown to appeal the ruling.

“The Crown is disappointed that the Supreme Court has declined to hear this case,” Crown attorney Lee Burgess said.

The March decision by the Ontario appeal court judges garnered national headlines when the majority opinion upheld Hunter’s decision.

Hunter said he believed he knew the specifics of the case and that he had seen enough graphic sexual assault evidence as a former lawyer for the local children’s aid society. He said he didn’t need to see any more.

Hunter’s decision sparked debate over whether a judge is obligated to view all video evidence — disturbing or otherwise — before arriving at an appropriate sentence.



More On Court Funding In California

posted by Judge_Burke @ 17:15 PM
November 16, 2012

Perhaps because of its size, no state has attracted more national attention to court funding (or lack of court funding) than California. There are some who argue that the California courts funding problem were a result of the decision to go to state funding and just about as many who argue that state funding is not the culprit.  A working group established by the Chief Justice and the Governor to evaluate state trial court funding will held its first meeting on November 6 in Sacramento.

Governor Brown proposed establishing the working group to conduct a comprehensive evaluation of the state’s progress in achieving the goals outlined in the Lockyer-Isenberg Trial Court Funding Act of 1997. That legislation provided that the state assume primary responsibility for funding trial court operations.

The new Trial Court Funding Workgroup consists of 10 members, 6 selected by the Chief Justice Cantil-Sakauye and 4 selected by Governor Brown.



More Intiguing Thinking From Richard Zorza: Mobile Access To Justice

posted by Judge_Burke @ 20:13 PM
November 14, 2012

There are few more people who are more thoughtful about court improvement than Richard Zorza. His blog had an interesting post recently about mobile access to justice.

  Time For a National Center on Mobile Access to Justice

by richardzorza

Several organizations have been stepping up to the plate on mobile, for example, LSC with its TIG grantsIllinois LegalAidOnline with their informational and pro bono apps, the State Bar of Georgia. Not to mention the Pro Bono Net, Northwest Justice Project and Montana Legal Services partnership.

But, more generally, we are way behind where we should be.  See here one blog post on possibilities for the courts.

How many courts get you mobile messages reminders of court appearance dates, community service obligations — with maps, tools to get you to the right courtroom service locations, reminders of risk of default as you fail to check in at the court?

How many legal aid programs remind you of appointments (including with social service, public benefits, etc.) again with the tools, help, chat to help you navigate the interview?

Maybe we need a jointly-funded national Center on Mobile Access to Justice (C-MAJ, pronounced Madge), to push the envelope, work with the main mobile technology platforms, and incentivize the developer community.  (For a depressing search, try putting access to justice into the Google Play Store., or the Mac App Store (nothing!))

By now, every court and every state legal aid system should have something on mobile.  Remember, the Pew data on how low income folks use mobile for their Internet access. (High school grad only, 49% of mobile owners using mobile for Internet.)


Should Newly Admitted Lawyers Be Required to Perform Pro Bono Services?

posted by Judge_Burke @ 20:19 PM
November 13, 2012

Daniel Wiessner who writes for Reuters reports that, “ Following the lead of the New York state court system, New Jersey’s top judge has formed a committee to consider requiring prospective attorneys to complete pro bono work before being admitted to the state bar.

The 17-member panel, which Chief Justice Stuart Rabner created last week, will be chaired by Judge Glenn Grant, the acting administrative director of New Jersey’s court system. The committee will review New York’s pro bono mandate, which requires 50 hours of work, and make recommendations to Rabner.

The panel includes private attorneys, bar association officials, legal service providers and officials from the state’s three law schools, as well as a third-year law student and a retired state judge.

According to an Oct. 15 letter Grant wrote inviting the officials to join the committee, 97 percent of small claims litigants and 99 percent of tenants in housing cases in New Jersey show up to court without a lawyer.

“These numbers, combined with the ongoing limits of resources for Legal Services of New Jersey, continue to cause concern about access for a considerable portion of those who could be most in need,” he wrote.”

New Jersey is not the only state that is examining how to get more lawyers involved in pro bono activity.  New York’s Chief Judge, Jonathan Lippman, proposed a requirement for mandatory pro bono service New York in May. The New York proposal designated an array of existing law school programs, such as clinics, internships and judicial clerkships, to qualify as mandatory pro bono hours. New York’s  rule will  apply to anyone admitted to the bar after Jan. 1, 2015.



How Strong Should The Language Of An Order BE?

posted by Judge_Burke @ 20:30 PM
November 8, 2012

Most of the time court orders or appellate decisions are, to be charitable, pretty bland. But occasionally judges use strong language. Where is the right line? Surely there are instances when strong language is called for and just as surely judges can overdo it. The American Bar Association Journal reports, “The District of Columbia’s Office of the Attorney General is taking issue with a federal judge’s scathing opinion finding that city attorneys violated a discovery order.  In a motion , District of Columbia Attorney General Irvin Nathan , accused U.S. District Judge Royce Lamberth of using “vituperative rhetoric” in his opinion, according to The BLT: The Blog of Legal Times. The motion (PDF) asks Judge Lamberth to reconsider his opinion or, in the alternative, to stay sanctions pending appellate review.  Lamberth’s opinion had said the district conducted unauthorized discovery in response to a suit claiming a right to post political signs on lamp posts. In the Oct. 4 opinion (PDF), Lamberth wrote: “The central issue is whether defendant was authorized to propound any discovery at all. The answer is clear: No. Given the history of this litigation, the District’s position and arguments are as untenable as they are ridiculous. Defendant asks this court to enter an Orwellian world where all arguments are devoid of context, and all court orders magically mean whatever the District wishes them to mean. The court rejects this invitation.”


What Were The Results Of Judicial Elections?

posted by Judge_Burke @ 18:17 PM
November 7, 2012

Two years ago, the talk about judicial elections was about the defeat of three members of the Iowa Supreme Court. There was fear that the results of Iowa might be a harbinger of bad things in other states. As Justice At Stake and the Brennan Center have reported, over the last several election cycles, there has been a lot of money spent on judicial elections. Some of the television ads have been very tough. To be sure, there are serious academics such as professor James Gibson who argue that how the public reacts to contested judicial elections is more nuanced than just saying “nothing good can come from them.” So here in part is what happened yesterday.

In Florida where the Republican Party (and others) sought to defeat three members of the Florida Supreme Court, the justices won handily. They got 67% of the vote. In Indiana, where a Supreme Court Justice became the foil of some Tea Party types for a decision of that state’s court last year, the retention was 68%. In Iowa, the fourth member of the Iowa Supreme Court who was targeted for the Iowa Supreme Court decision on gay marriage was retained with 54% of the vote.

In Michigan, Republican Brian Zahra defeated Democratic challenger Shelia Johnson in a contest to serve a partial term. In the combined race to win two full terms, the two top vote-getters in a close race were University of Michigan law professor Bridget McCormack, a Democrat, and incumbent Justice Stephen Markman, a Republican.  In North Carolina, incumbent Justice Paul Newby, a Republican, won a new eight-year term. He had faced a stiff challenge from appeals court judge Sam Ervin IV, a Democrat.  In Alabama, former Chief Justice Moore will be returning to the Supreme Court. In Louisiana, American Judges Association President Toni Higgginbotham ran a strong race for the Supreme Court, but not strong enough to make it to the runoff. Ballot measures to change the appointing process in Missouri and Arizona were soundly defeated. Others will no doubt have much more detailed analysis, but this much is clear: state courts in the United States still have to be concerned about the public’s perception of fairness and the legitimacy of our decisions; courts still have in many parts of the country enormous budget challenges, but there is a reservoir of goodwill toward the judiciary. The times dictate that judges seek to enhance that reservoir with ever more sustained commitment to fairness in our courts.



Follow Judicial Elections 2012

posted by Judge_Burke @ 22:00 PM
November 6, 2012

There will no doubt be a few folks distracted from following the judicial races in the United States and who will fixate on the Presidential race and maybe even the Senate, House, Governor and legislative races, but for the true judicial political junkie, there is nothing like following judicial races. Let’s be honest, neither Fox nor MSNBC will have their act together. But thanks to the National Center for State Courts, there is a way to follow the retention races in Florida and Iowa, the Chief Justice race in Alabama and for true AJA judicial political junkies, the important Supreme Court race in Louisiana where AJA President Toni Higgenbothem  is one of the candidates. To see the site and follow the news go to: