Eric Black is a writer for Minn Post. He has a three part series on the Second Amendment. Eric Black is among the Midwest’s most thoughtful journalists. He frequently writes about the constitution. A part of the first of the Second Amendment trilogy:

Key words

The Second Amendment, like the rest of the first 10 amendments which we call “The Bill of Rights,” was drafted by the First Congress in 1789 and quickly ratified as part of the compromise for final acceptance of the then-brand-new U.S. Constitution.

The Second Amendment arose at time when most its key words and phrases meant something quite different from what they would mean today and from circumstances also fundamentally different — so different that its modern meaning is almost completely detached from its original purpose.

For two centuries, the Second Amendment was pretty much a dead letter. States and the federal government adopted various gun-control measures. None were ever struck down on Second Amendment grounds. Until, that is, starting in 2008, when two recent 5-4 Supreme Court rulings stirred up such a Second Amendment mess that it is perfectly unclear what the Court’s conservative majority might eventually decide would violate the Second Amendment.

They have stirred it up so much that I can’t help but wonder whether the jurisprudence of gun control will soon join abortion and campaign finance as (sub rosa) litmus test issues for future Supreme Court nominees.

The full article can be found at:

http://www.minnpost.com/eric-black-ink/2013/04/second-amendment-mess

The American Bar Association Journal reports that,

An unusual court of inquiry held to probe the conduct of a former Texas district attorney has concluded with a blistering opinion by the presiding judge.

Former Williamson County District Attorney Ken Anderson was briefly booked into jail Friday before being released on $7,500 bail after District Judge Louis Sturns determined that there was probable cause to support charges that Anderson had violated state law and acted in contempt of court by lying to a trial judge decades ago to win a conviction in a murder case, the American-Statesman reports.

The convicted man, Michael Morton, served nearly 25 years before he was exonerated.

“This court cannot think of a more intentionally harmful act than a prosecutor’s conscious choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and a life sentence,” Sturns said.

His ruling represents the first step toward a potential prosecution of Anderson, who is now a sitting state court judge. Sturns issued a separate show-cause order requiring Anderson to appear in court to defend a criminal contempt citation, for which he could be sentenced to a maximum $500 fine and six months in jail if he is convicted.”

 

The Toronto Globe and Mail has an article written by Kirk Makin that begins, “Constitutional experts are questioning whether the Supreme Court of Canada still has the stomach to guarantee fundamental rights.” Of the 70 appeals the court heard last year, only 10 involved Charter claims – and the claimants succeeded in just two of them, said Jamie Cameron, a professor and constitutional expert at York University’s Osgoode Hall Law School.

Effective Trial Counsel after Martinez v. Ryan: Focusing on the Adequacy of State Procedures

Eve Brensike Primus

University of Michigan Law School

January 19, 2013

Yale Law Journal, Forthcoming
U of Michigan Public Law Research Paper No. 311

Abstract:
Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life into Gideon. Many disclaim any possibility that federal habeas corpus review of state criminal cases could catalyze reform given the many procedural obstacles that currently prevent state prisoners from getting into federal court. But the Supreme Court has recently taken a renewed interest in using federal habeas review to address the problem of ineffective attorneys in state criminal cases. This year, in Martinez v. Ryan, the Supreme Court relied on equitable principles to sweep aside procedural barriers to federal habeas review and permit state prisoners to raise ineffective-assistance-of-trial-counsel claims in federal court.

Not surprisingly, many lower courts have resisted the Supreme Court’s recent attempts to permit state prisoners to have their ineffective-assistance-of-trial-counsel claims heard on the merits. But this battle is far from over. After documenting the ways in which lower courts are restrictively interpreting the Supreme Court’s recent decisions expanding the grounds for cause to excuse a state prisoner’s procedural default of an ineffective-assistance-of-trial-counsel claim, I will suggest that the defendants still have an important equitable card to play. That card is the idea of adequacy. As lower courts attempt to re-characterize state procedures so as to avoid recent Supreme Court holdings that would open the federal doors to state prisoners’ ineffective-assistance-of-trial-counsel claims, they inadvertently set themselves up for challenges to the adequacy of their state procedures. This shift is significant, I will explain, because of important differences in how cause and adequacy arguments influence state behavior. Whereas cause grounds are typically personal to the defendant, adequacy challenges are often used to expose systemic failures in a state’s procedures. As a result, adequacy challenges have more potential to catalyze change in states’ procedures.

Effective Trial Counsel after Martinez v. Ryan: Focusing on the Adequacy of State Procedures

Eve Brensike Primus

University of Michigan Law School

January 19, 2013

Yale Law Journal, Forthcoming
U of Michigan Public Law Research Paper No. 311

Abstract:
Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life into Gideon. Many disclaim any possibility that federal habeas corpus review of state criminal cases could catalyze reform given the many procedural obstacles that currently prevent state prisoners from getting into federal court. But the Supreme Court has recently taken a renewed interest in using federal habeas review to address the problem of ineffective attorneys in state criminal cases. This year, in Martinez v. Ryan, the Supreme Court relied on equitable principles to sweep aside procedural barriers to federal habeas review and permit state prisoners to raise ineffective-assistance-of-trial-counsel claims in federal court.

Not surprisingly, many lower courts have resisted the Supreme Court’s recent attempts to permit state prisoners to have their ineffective-assistance-of-trial-counsel claims heard on the merits. But this battle is far from over. After documenting the ways in which lower courts are restrictively interpreting the Supreme Court’s recent decisions expanding the grounds for cause to excuse a state prisoner’s procedural default of an ineffective-assistance-of-trial-counsel claim, I will suggest that the defendants still have an important equitable card to play. That card is the idea of adequacy. As lower courts attempt to re-characterize state procedures so as to avoid recent Supreme Court holdings that would open the federal doors to state prisoners’ ineffective-assistance-of-trial-counsel claims, they inadvertently set themselves up for challenges to the adequacy of their state procedures. This shift is significant, I will explain, because of important differences in how cause and adequacy arguments influence state behavior. Whereas cause grounds are typically personal to the defendant, adequacy challenges are often used to expose systemic failures in a state’s procedures. As a result, adequacy challenges have more potential to catalyze change in states’ procedures.

Don’t forget the AJA Midyear Meeting coming up May 2-4 at the Wyndham Lake Buena Vista in Orlando, Florida.  In addition to business meetings and a full day of excellent education sessions on Will Facebook be Friends with Courts:  Social Media, Digital Evidence and Emerging Trends, you and/or your family members may have time to enjoy the many attractions in the area.  Disney has created a complimentary webpage for AJA attendees to have access to some unique options and special savings on pre-arrival purchases for Disney theme park tickets.  The link is http://www.mydisneymeetings.com/wlbv.

For complete information about the meeting, you can go to http://aja.ncsc.dni.us/conferences/.

There appears to be no definitive law review articles on the subject nor does is there any course material available from the National Judicial College. So a Pennsylvania trial court judge had little precedent to guide his decision. The Associated Press reports that, “A county judge in eastern Pennsylvania has ruled against a former Lehigh University graduate student who sued to have a C-plus grade changed to a B.

The Express-Times of Easton said Northampton County Judge Emil Giordano made the ruling in the lawsuit filed by Megan Thode.

Thode was seeking $1.3 million over a grade in a 2009 graduate-level therapist internship course she says was retaliation because she supports gay marriage.

She says the grade is keeping her from becoming licensed therapist.

The teacher, Amanda Eckhardt, testified she stood by the grade. She said Thode’s behavior in class hurt her in the class participation component of her grade.

There is no word yet on how Ms. Thode will grade Judge Giordano in his judicial performance evaluation.

For over a decade the judges in New York got no salary increase. Budget cuts in other states have eliminated perks that judges used to get. Judicial pensions have been under attack in New Jersey. But as the Washington Post reported not many judges have thought about joining a union.

Some District judges have found themselves in the unusual position of envying the city’s teachers, firefighters and garbage collectors. Those jobs come with something not currently available to those who wear robes to work: the ability to join a union.

Now a group of city administrative law judges is seeking to organize for the first time, and the months-long effort — taking place over the strenuous objections of the judges’ supervisor — has generated frustration among union advocates who think Mayor Vincent C. Gray has failed to match his pro-labor rhetoric with action.

It is perhaps more than a bit ironic that the opinion was delayed because of lack of funding but California’s new Committee on Judicial Ethics Opinions has issued its first formal opinion.  The Los Angeles Times reported that the Committee on Judicial Ethics said it was ethical for judges to ask lawyers to lobby for sufficient court funding. The ABA Journal reported that,

“The committee, created in 2007, took longer than originally expected to begin turning out opinions because of lack of funding.

The opinion said that judges may ask lawyers to write op-ed pieces or otherwise engage in educational programs in the community to alert others to the need for full funding for the courts to ensure justice.

The committee carefully delineated various needs and requirements for such solicitations, especially concerning any appearances of impropriety, ranging from implications of favoritism in return for favors to coercion to gain help.

A judge “might avoid the appearance of favoritism by prefacing any request with the caveat that help is sought from anyone willing to volunteer, but without any expectations or benefits attached,” the opinion (PDF) says.”

The Los Angeles Times reports that, “California courts, reeling from years of state budget cuts, are delaying hearings and trials, allowing records to sit unprocessed for months and slashing services at public windows, a judge’s committee has reported.

The report by the Trial Court Presiding Judges Advisory Committee was based on a survey of all presiding judges and prepared for the Judicial Council, the policy-making body for the courts. All but 10 of the state’s counties responded to the survey.

California’s courts have lost about 65% of their general fund support from the state during the last five years, and Gov. Jerry Brown’s proposed budget fails to restore any of the lost revenue. Presiding judges told the committee that the loss of revenue has affected everything from small claims to child custody disputes.”

The full story is available here.