Archive for December, 2015

Companion Dogs in the Courtroom

posted by Judge_Burke @ 15:30 PM
December 31, 2015

Dog wins its day in court after defendant challenged canine’s presence in Akron trial

The Akron Beacon Journal recently had an article that begins, ”An Ohio appeals court has rejected an Ohio prisoner’s claim that the wagging tail of a dog brought into an Akron courtroom to put a young victim at ease swayed the jury in the case.”

In the opinion, the Court of Appeals said, “[s]pecial accommodations . . . are often allowed for child victims of sexual abuse to minimize the emotional trauma and stress of having to testify in a courtroom full of strangers, along with the accused.” State v. Gutierrez, 3d Dist. Hancock No. 5-10-14, 2011-Ohio-3126, ¶ 100; see also Holder, All Dogs Go to Court: The Impact of Court Facility Dogs as Comfort for Child Witnesses on a Defendant’s Right to a Fair Trial, 50 Hous.L.Rev. 1155, 1158 (2013) (“Children experience unique challenges on the witness stand, and in response, they receive special accommodations.”).

You can access the ruling of Ohio’s Ninth District Court of Appeals at this link.



California & The Boy Scouts

posted by Judge_Burke @ 15:30 PM
December 30, 2015

The California Ethics Advisory Committee published an advisory statement saying judges could keep their Boy Scout affiliations for either of two reasons: if the troop allows gays and lesbians as leaders, or if it excludes them for religious reasons. The ban on discrimination in the judicial ethics code contains an exemption for exclusions motivated by religion.

To comply with ethical standards, a judge must determine that a Scout troop with an antigay policy is “an organization dedicated to the preservation of religious values of legitimate common interest to the troop members,” the committee said.

The ethical code has long forbidden judges to belong to organizations that discriminate on the basis of sexual orientation. But since 1996, the state’s high court has exempted membership in “nonprofit youth organizations” to accommodate judges affiliated with the Boy Scouts. That exemption will end in January.



How courts can more effectively deal with sexual violence/domestic abuse cases is one of the greatest challenges facing judges. While it is often difficult for courts to simply adopt innovations or approaches from foreign countries, at a minimum thinking about how thoughtful leaders approach reform is useful. At a minimum, it requires us to think about what we do, why, and can it be more effective.

On December 14, 2015, the New Zealand Law Commission released its report: The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes:

In this report, the Law Commission reviews the trial processes in New Zealand in relation sexual violence cases and makes recommendations for change. These recommendations include “a consideration of whether a non-criminal process is a viable alternative way of dealing with certain incidents of sexual violence.” Interestingly, the Law Commission recommends that “judicial specialisation should be achieved by requiring judges to hold a designation before they may sit on sexual violence cases” (at page 102). The Law Commission also suggests that there is a lack of confidence among participants in the criminal justice system (at page 128):

Research indicates that participants in the criminal justice system find it to be “an artificial, alienating and disempowering process that does not produce an outcome in which they have confidence.”

In the forward to its report, the Law Commission suggests that “incremental change…will not bring about the desired result of bringing…complainants within the formal justice system or satisfying their legitimate needs”:

…a significant number of complainants are “opting out” of the very system that is supposed to recognise their rights and support their needs. They are doing so largely because they perceive the formal criminal justice system to be alienating, traumatising, and unresponsive to their legitimate concerns.

The fundamental task for the Law Commission in this Report has been to assess and make recommendations on how the position of complainants might be improved, but without compromising the trial rights of defendants. It has to be said that this is no easy task. Indeed, it is one of the more challenging law reform exercises that can be posed today.

The Commission is of the view that useful improvements can and should be made to the existing formal system, and we have addressed these in our Report. The Commission has however also reached the view that incremental change, which has been struggling forward over the last three decades, will not bring about the desired result of bringing these complainants within the formal justice system or satisfying their legitimate needs.

The Law Commission concludes that “a specialist sexual violence court, however formally constituted, is required, and potentially as a division of the District Court.”


Among the Law Commission’s eighty-two recommendations are the following:

R1 Legislation should require that, save in exceptional circumstances, all cases involving sexual violence should be set down for hearing within a specified time of the filing of the charge.

R19 The objectives of the specialist court should be:

·to bring specialist judges and counsel together in a venue that enables robust fact-finding without re-traumatising the complainant; and

·to facilitate a coordinated and integrated approach among the various organisations and people who deal with complainants in sexual violence cases.

R27 The Government should consider the desirability of funding a long-term research project to examine the feasibility and design of a specialist sexual violence court to operate post-guilty plea, in the form proposed in the Law Commission paper Alternative Pre-trial and Trial Processes: Possible Reforms (NZLC IP30, 2012).



The United States Supreme Court to Address DUI/DWI Cases This Term

posted by Judge_Burke @ 15:30 PM
December 25, 2015

The three cases to be reviewed are Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. North Dakota:  Whether a blood or breath test for drunk driving can be made without a search warrant and whether, if there is no warrant, an individual can be charged with a crime for refusing to take such a test.


What Can You Sentence a Defendant Convicted of a Hate Crime to Do?

posted by Judge_Burke @ 15:30 PM
December 24, 2015

Among the best legal blogs is Howard Bashman’s How Appealing.  He recently had this post:

Court to decide whether Islam-education order went too far

The Associated Press has a report that begins, “After a landlord was convicted of pushing her Muslim tenant down a flight of stairs, a judge ordered her to respect the rights of all Muslims and to take an introductory course on Islam. Now the highest court in Massachusetts is being asked to decide whether the judge violated the landlord’s constitutional rights.”

The case is scheduled to be argued on January 8, 2016 in the Supreme Judicial Court of Massachusetts. You can access the parties’ briefs via the court’s docket entries for the case.



Plain language in Appellate Decisions: Wisdom From Richard Zorza

posted by Judge_Burke @ 15:30 PM
December 23, 2015

One of the legal profession’s great thinkers has some wisdom for appellate judges (and trial judges) when writing their opinions and orders:

A Way For Courts to Show They Are Serious About Making The Law Accessible — Plain Language Explanations of Appellate Decisions

by richardzorza

Here is an idea for how appellate courts could demonstrate their commitment to making the law accessible. They could include in all decisions a short explanation of the decision in plain language (great examples of plain language in box in linked doc). This would help ensure that the increasing free access now being developed would actually be comprehensible, and would maybe help answer fears that providing such access would be inadequate, misleading, or even cause judicial hostility if it lead to real or apparent failure to understand and correctly argue from cases (for a frightening example, see here).

Including such a plain language explanation might be made a formal requirement by court rule. Appellate court staff would then be responsible for drafting the explanation, for review by the writing judge. Sometimes the staffer would get it wrong — surely a signal that the opinion needed revision to clarify the intent of the court. At other times the staff might be unable to find the words, again an indication of something needing attention. In any event, such a process would surely sensitize staff and judges to the practicalities of plain language.

There are many tools for measuring comprehensibility. Indeed Word has one built in. In an embarrassing disclosure, I should admit that the score using the Flesch-Kincaid Grade Level test for the text above is 11.7, meaning that you would have to be very near graduating from high school to understand it. Oops.

Perhaps some courts should experiment with this, so that they can develop the skills and experience needed, and then share that with others.”



Reasonable, but Unconstitutional

posted by Judge_Burke @ 15:30 PM
December 22, 2015

Gabriel J. Chin and Charles Vernon (University of California, Davis – School of Law and University of Arizona – James E. Rogers College of Law) have posted Reasonable But Unconstitutional: Racial Profiling and the Radical Objectivity of Whren V. United States (George Washington Law Review, Vol. 83, No. 3, April 2015) on SSRN.

Here is the abstract:

In Whren v. United States, the Supreme Court held, unanimously, that Fourth Amendment analysis was so radically objective that an otherwise legitimate search or arrest would not be invalidated even if an officer’s decision to act was based on race. Although the Court has adhered to the view that the Fourth Amendment is applied objectively, the controversy over Whren’s practical legitimation of racial profiling has only grown over time. This Article argues that it has become clear that Whren was wrongly decided, for reasons courts and scholars have not previously articulated.

First, the Court never explained why it created a rule making motivation absolutely irrelevant when there was a readily available alternative, namely applying the standard applicable to review of prosecutorial discretion. Prosecution decisions are unassailable, unless they are based on unconstitutional grounds. The Court did not have to approve racial profiling to preserve the broad scope of legitimate law enforcement discretion. Second, since Whren, the Court has elaborated the reasons for an objective approach; these include grounds such as holding officers to objectively high standards and promoting even-handed law enforcement. The Court’s aims would be promoted by prohibiting race-based searches whereas they are undermined by allowing them. Most fundamentally, searches or arrests motivated by race are “unreasonable” under the Fourth Amendment. First, based on the Court’s precedents, other provisions of the Constitution inform Fourth Amendment reasonableness. A search based on motives violating other parts of the Constitution is therefore unreasonable. Second, under the fruit of the poisonous tree doctrine, a search is unreasonable if it rests on an antecedent constitutional violation. Unless the Equal Protection Clause is a distinctly unimportant part of the Constitution, a proposition the Court has rejected, its violation should trigger application of the doctrine, just like violations of other provisions. Application of these principles would minimally affect police discretion, and it would remain difficult to prove that police engaged in illegal racial profiling. But, it would also eliminate Whren’s unfortunate and influential statements that racial discrimination is constitutionally reasonable.



Can We Learn from South Dakota?

posted by Judge_Burke @ 15:40 PM
December 17, 2015

Professor Doug Berman has this post at Sentencing Law & Policy, excerpting an A.P. story.  From the excerpt:

Twice a day for three years, Chris Mexican has showed up at the county jail in Pierre to blow into a tube and prove he hasn’t been drinking. After several drunken driving convictions, it has allowed him to remain free and to become a better, more clearheaded father to his kids….

South Dakota’s 24-7 sobriety program has helped curb drunken driving and domestic violence, and some incentives for states that adopt the model were included in the $305 billion transportation law that President Barack Obama signed [earlier this month].

. . .

An independent study released in 2013 by the RAND Corp., a nonprofit think tank, found that South Dakota’s program cut the rate of repeat DUI arrests at the county level by 12 percent and domestic violence arrests by 9 percent in its first five years. “These are large reductions when you consider that we’re talking about the community level,” said Beau Kilmer, who conducted the study and continues to research the program.



Judge Alex Kozinski, The United States Justice Department & Brady v. Maryland

posted by Judge_Burke @ 15:34 PM
December 14, 2015

Over 50 years ago the United States Supreme Court held in Brady v. Maryland that prosecutors had a duty to disclose exculpatory evidence. In Brady, the United States Supreme Court observed that “our system of the administration of justice suffers when any accused is treated unfairly.” Seeking to alleviate unfair treatment, the Court held that “the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id.

One might reasonably think, why would it take a United States Supreme Court decision to tell prosecutors – whose obligation is to seek justice – that failing to disclose favorable evidence to the accused heightens the risk justice will not be achieved? Surely this principle would 50 years later be ingrained into the fabric of the legal profession. But, sadly it is not. For example, officials at the U.S. Department of Justice are pushing back against recent criticism about prosecutors’ ethics from Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit.

Kozinski wrote in a law journal article this summer that there were “disturbing indications that a non-trivial number of prosecutors” had committed misconduct, such as misleading juries, lying and helping police present false evidence. He quoted from a 2013 opinion in which he wrote that there was an “epidemic” of prosecutors shirking their obligation to turn over potentially favorable evidence to defense lawyers.

Justice Department officials wrote a public letter refuting statements that Kozinski made in the article, which was published as a preface to the Georgetown Law Journal Annual Review of Criminal Procedure.

“Judge Kozinski goes too far in casting aspersions on the men and women responsible for the administration of justice in this country,” Associate Deputy Attorney General Andrew Goldsmith and U.S. Attorney John Walsh of Colorado wrote. They concluded in the letter: “We respectfully dissent.”

There are two reasonably undeniable truths. First, the “overwhelming majority” of prosecutors honor their legal and ethical obligations, including the requirement that they turn over potentially favorable information to defense lawyers. Second, there are far too many cases where the first undeniable truth does not happen.



Public Defending

posted by Judge_Burke @ 15:30 PM
December 11, 2015

Scott Howe (Chapman University, The Dale E. Fowler School of Law) has posted The Perilous Psychology of Public Defending (2015 Journal of the Professional Lawyer pp. 157-175) on SSRN.

Here is the abstract:

This article examining the ethical challenges confronting most public defender attorneys is framed as a fictional talk presented by P.D. Atty, a former public defender attorney, at a small conference of new public defender attorneys. The presentation asserts that public defenders typically face psychological obstacles to providing zealous advocacy for all of their clients and that an essential aspect of the remedy starts with recognition of these psychological barriers. The author contends that these challenges relate to a typically unacknowledged aversion to representing certain kinds of criminal defendants. Contrary to common supposition, the strongest aversion is not to representation of certain guilty offenders, such as murderers or child molesters, but to representation of those who claim to be innocent and especially those who actually seem to be innocent, where a full-blown defense, through trial, would be expected to require an extraordinary commitment of time and effort from an overtaxed public defender.