Archive for February, 2016

The Next Justice of The United States Supreme Court

posted by Judge_Burke @ 18:57 PM
February 25, 2016

After the retirement of Justice Lewis Powell, President Ronald Reagan nominated Justice Anthony Kennedy on Nov. 30, 1987. Reagan had 14 months left in office and a Democratic Senate, which confirmed Kennedy in early February 1988. President Barack Obama has 11 months left in his term and a Republican-controlled Senate. Justice Kennedy was confirmed even though President Reagan had only three months more left in his lame-duck term than Obama. So does less than three months make that much difference?

Not much thought was given to this history given the rapid reaction to Justice Antonin Scalia’s death. Before his body reached the funeral home, the chorus was saying that Obama need not submit a nominee. Sen. Mitch McConnell and others expressed their determination not to give Obama the opportunity to nominate anyone. It would have been perfectly understandable for McConnell to have said, “Finding someone who is acceptable to both political parties is paramount. It can be done as illustrated by the fact that Justice Scalia was confirmed by the United States Senate unanimously. It will be hard, but we owe it to the nation and the Supreme Court to try.” But that is not what he said.

President ‘shall nominate’

The U.S. Constitution states that the President “shall nominate, and by and with the Advice and Consent of the Senate (appoint) … Judges of the Supreme Court.” Justice Scalia believed that the U.S. Constitution is not a document that is living and breathing. For conservatives, Scalia is an icon. And so perhaps reflecting on what he may have said about the process of finding a replacement for him is worthwhile. He explained how he looks at the Constitution:

The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. … I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.

Before those who admire Scalia join the stampede to just put off the decision on his replacement for the rest of this Supreme Court term and most if not all of the next term perhaps they should answer the question of how Justice Scalia would rule on the obligation under the Constitution of a president to nominate a justice and the Senate to give its advice and consent? “I would rather do it later” is not in the text of the Constitution.


For the rest of the article, go here.



The Double Jeopardy

posted by Judge_Burke @ 15:46 PM
February 24, 2016

When to declare a mistrial is not always a clear cut decision.

Mistrials inevitably raise the prospect that double jeopardy may prevent a second trial.  If the motion for a mistrial is made by the defense, many appellate courts find the defense waived a double jeopardy claim.  When the motion is made for a mistrial by the prosecution, there is real risk that double jeopardy will prevent a second trial.

There are two important caveats:  first, the double jeopardy clause of the United States Constitution is not a mere technicality.  It is a fundamental feature of the American legal system.  Second, being consciously aware that manifest necessity is the current standard for finding a mistrial can permissively allow a second trial.  The judge died during trial….one of the lawyers had a heart attack….are pretty easy to understand.  The ABA Journal’s recent report illustrates the stakes in these decisions:

The Georgia Supreme Court on Monday ruled that an accused killer can’t be retried because the trial judge mistakenly declared a mistrial after the defense gave its opening statement.

The court said that requiring the defendant, Geary Otis, to be retried would violate the ban on double jeopardy, reported the Associated Press, the Fulton County Daily Report (sub. req.) and

At a news conference on Tuesday, family members of the murder victim joined with Atlanta’s mayor and the Fulton County district attorney to urge the supreme court to reconsider its opinion, according to the Fulton County Daily Report.

“We can’t let Geary Otis get away with this,” said Atlanta Mayor Kasim Reed, who practiced law before taking office. “Would you want a technical error to allow someone who stabbed your loved one to walk away without consequences?”

Otis was accused of attacking two residents of an independent living facility with a knife in June 2013, killing a 75-year-old woman and injuring a 71-year-old man. Police had to use a stun gun to subdue Otis, who was 64 at the time.

During opening arguments in Otis’ April 2014 trial, his defense lawyer argued her client had “just snapped” and asked jurors to consider that mental illness comes in many forms. Prosecutors objected because the defense had not given notice of an insanity defense. The defense lawyer said no notice was required because she intended to rely on the testimony of lay witnesses rather than independent experts.

Judge Ural Glanville declared a mistrial over the defense lawyer’s objections and rescheduled a new trial to begin in two weeks.

The Georgia Supreme Court said the defense lawyer was right. Notice of an insanity defense is required only when expert testimony will be offered, the court said.

When a mistrial is improperly declared over the protest of the defense, the accused cannot be retried, the court said.

  • study published in the Journal of Criminal Justice examined crime data in 81 large American cities in the 12 months before and after August 2014, when a Ferguson, Mo., police officer shot and killed teenager Michael Brown. No evidence was found to support the claim that overall violent or property crime increased after Ferguson, although homicide rates did rise in a few cities.
  • The latest report by the Institute for Criminal Policy Research finds that the United States no longer has the world’s highest incarceration rate. The East African nation of Seychelles now has the highest incarceration rate, with 799 jail or prison inmates per 100,000 compared to the United States’ 698 inmates per 100,000 residents.

Citing displeasure at recent state supreme court decisions on abortion drugs, removing a Ten Commandments monument from capitol grounds, and other rulings, the Oklahoma House Elections and Ethics Committee approved on a 4-3 vote a plan to remove all sitting members of the state’s appellate courts and change the way they are selected.

Under HJR 1037 as amended (amended text here), “Any previously stated right to a judicial seat provided for in this Constitution is hereby extinguished.” All sitting appellate judges would have to face off in 2018 in nonpartisan elections.

Currently the state’s constitution provides for a merit/commission based system for the Justices of the Supreme Court and Judges of the Court of Criminal Appeals; by statute the same system applies to the Court of Civil Appeals.

The state’s constitution creates a 15-member Judicial Nominating Commission (JNC):

•        6 non-attorney members appointed by district by the Governor

•        6 attorney members elected by the active member of the bar in the district

•        3 non-attorney members selected from the state at-large by the other 12 members of the JNC

When a vacancy occurs, the JNC sends three nominees to the governor who must select from the list. If the governor fails to do so within 60 days, the chief justice picks.

In lieu of this system the legislature is considering not only HJR 1037 but several other options.


What Happens to a Supreme Court When They Rule on School Funding?

posted by Judge_Burke @ 15:30 PM
February 17, 2016

The Kansas Supreme Court is embroiled in conflict with the legislature over funding of schools. The response from the legislature, among other things, was legislation to change the relationship between the Kansas Supreme Court and the trial courts.  The same thing is happening in the state of Washington.

Two bills before the  Washington State Legislature could affect the composition of  the state’s Supreme Court, writes Bill Raftery for Gavel to Gavel. One bill, HB 2784, seeks to “declare the existing 9-member court unconstitutional.” The Washington State Constitution “provides for a 5-member supreme court, but gives the legislature the power to increase its membership” which the legislature has done, “creating the current 9-member court in the early 1900s.” The bill would return the court to 5 justices and remove the legislature’s ability to increase its size. It would also require “all 9 current members of the court [to] immediately face one another in an election to fill the 5 seats.” Another bill, HJR 4217, would amend the constitution to shorten the court’s terms “from 6 years down to 4 years,” and “justices would be limited to two terms, for a total of 8 years.”

Raftery adds, “If applied retroactively, the amendment could force several members of the court off the bench.”


Judicial Power to Regulate Plea Bargaining

posted by Judge_Burke @ 15:53 PM
February 11, 2016

There are many judges who are uncomfortable with participating in plea bargaining.  Some of those same judges regularly conduct civil pre-trial settlement conferences and/or other forms of ADR.  So, thinking about why judges are hesitant to regulate plea bargaining is an important question.

Darryl K. Brown (University of Virginia School of Law) has posted Judicial Power to Regulate Plea Bargaining (William & Mary Law Review, Vol. 57, No. 102, 2016) on SSRN.

Here is the abstract:

Plea bargaining in the United States is in critical respects unregulated, and a key reason is the marginal role to which judges have been relegated. In the wake of Santobello v. New York (1971), lower courts crafted Due Process doctrines through which they supervised the fairness of some aspects of the plea bargaining process. Within a decade, however, U.S. Supreme Court decisions began to shut down any constitutional basis for judicial supervision of plea negotiations or agreements. Those decisions rested primarily on two claims: separation of powers and the practical costs of regulating plea bargaining in busy criminal justice systems. Both rationales proved enormously influential. Legislative rulemaking and state courts both largely followed the Court in excluding judges — and in effect, the law — from any meaningful role.

This article challenges these longstanding rationales. Historical practice suggests that separation of powers doctrine does not require the prevailing, exceedingly broad conception of “exclusive” executive control over charging and other components of the plea process. This is especially true in the states, many of which had long traditions of private prosecutors and judicial oversight over certain prosecution decisions, as well as different constitutional structures. By contrast, English courts — based on both common law and legislation — retain some power to review such decisions. Moreover, assertions that legal constraints on plea bargaining would fatally impair the “efficiency” of adjudication is belied by evidence of very high guilty plea rates both in England, where bargaining is more regulated, and in U.S. courts before the Supreme Court closed off meaningful grounds for judicial review.


Vexatious Litigants

posted by Judge_Burke @ 15:30 PM
February 10, 2016

Almost everyone plays by the rules. There are, to be sure, aggressive lawyers and occasionally self-represented persons who abuse the system. But, what should courts do with the truly vexatious litigant?  The problem of vexatious litigants is one that many courts in many nations are struggling with:

In Morrow v. Attorney General For Northern Ireland [2015] NICA 69 (21 December 2015), the following order was issued in relation to Mr. Morrow:

(i) That no legal proceedings shall without the leave of the High Court be instituted by the appellant in any court or tribunal;

(ii) That any legal proceedings instituted by the appellant in any court or tribunal before the making of the order shall not be continued by him without such leave;

(iii) That such leave shall not be given unless the court is satisfied that the proceedings are not an abuse of the process of the court and that there is a prima facie ground for the proceedings;

(iv) That notice of the making of an order under this section shall be published in the Belfast Gazette.

Mr. Morrow appealed to the Court of Appeal, referring to the order as being “scandalous.”

The Court of Appeal noted that it “is clear that both under domestic and Strasbourg jurisprudence the court has power to regulate its own affairs to ensure that its processes are not abused.” However, the Court of Appeal indicated that such an order must ensure that (at paragraph 13)

(a) The limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (Stubbings v UK (1997) 23 EHRR 213 at para 48);and

(b) A restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aims sought to be achieved (Bhamjee v Forsdick No. 2).

The Court of Appeal held that the issuing of an order limiting a person’s access to the courts requires evidence establishing that the person who is the subject of the order:

(a) has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings.

(b) whether against the same or against a different person.

and, if so satisfied, may, after hearing the person or giving him an opportunity to be heard, make the order.

The Court of Appeal also indicated that the “following factors ought to be considered by the decision-maker” (at paragraph 14):

(a) The citizen begins with a prima facie right to invoke the jurisdiction of the civil courts. See Barker at para. [2].

(b) There is a countervailing need to provide members of the public with a measure of protection against abusive and ill-founded claims. Again see Barker at paragraph [2].

(c) The need to prevent scarce and valuable judicial resources being extravagantly wasted on barren and misconceived litigation to the detriment of other litigants with real cases to try. (AG v Ebert [2002] 2 All ER 789 DC at 793f).

Applying these principles to this case, Mr. Morrow’s appeal was dismissed.  The Court of Appeal concluded that the order issued could not be “faulted” (at paragraphs 14 and 15):

The judge expressly adverted to all these factors and this court considers that his conclusion from them in the exercise of discretion that an order ought to be made in the terms sought cannot be faulted. The appellant has doggedly pursued each one of this series of hopeless cases with tiresome persistence to every judicial tier, advancing the same baseless contentions repetitively until each case had been advanced as far as he could possibly make it go. He seems impervious to the considered explanations of Masters, High Court Judges and of this court as to why his claims are manifestly ill-founded and that same inflexible approach was again plainly in evidence at the hearing before us. His apparent lack of any insight might be thought unfortunate were it not for the harm which it has done and would, we are satisfied, if uncontrolled be likely to continue to do, both to those who are made Defendants to his misguided and promiscuous litigation and to the orderly administration of justice.

For these reasons we consider that the order made by the judge has not and cannot be faulted and this appeal is accordingly dismissed.



The Federal Sentencing Guidelines significantly limit the extent to which courts can use family ties and responsibilities to reduce or alter a defendant’s sentence. Generally speaking, most states that have sentencing guidelines are similar in their approach.  Is that the right thing for a judge to do or the law to require?

Emily Anderson recently published in the Boston College Law Review.  Here is the abstract:

Incarceration results in negative social, psychological, and economic impacts on an inmate’s family and dependents. These impacts last well beyond the period of incarceration and can cause lifelong challenges.  Federal statutes require courts to consider mitigating factors while calculating a sentence, including a defendant’s characteristics. Family ties and responsibilities are considered an aspect of a defendant’s characteristics.  Yet the Federal Sentencing Guidelines significantly limit the extent to which courts can use family ties and responsibilities to reduce or alter a defendant’s sentence.

This Note first argues that the Guidelines should be amended to indicate that courts can consider family ties and responsibilities when determining a sentence.  This Note then argues that Rule 32 of the Federal Rules of Criminal Procedure should be amended to require that a family impact assessment be incorporated into each presentence investigation report to provide courts with information about a defendant’s family ties and responsibilities. 


For the full article, go here.


Adverse Inferences & The Fifth Amendment

posted by Judge_Burke @ 16:43 PM
February 4, 2016

James J. Duane (Regent University – School of Law) has posted The Extraordinary Trajectory of Griffin v. California: The Aftermath of Playing Fifty Years of Scrabble with the Fifth Amendment (Stanford Journal of Criminal Law and Policy, Vol. 3, p.1, 2015) on SSRN.

Here is the abstract:

This year marks the fiftieth anniversary of the Supreme Court’s landmark ruling in Griffin v. California, 380 U.S. 609 (1965), which forbids the drawing of adverse inferences from a criminal defendant’s decision to exercise his Fifth Amendment privilege at trial because that would unfairly penalize the defendant for exercising a constitutional privilege. But the decision did not immediately answer a host of obvious questions as to how far its logic should extend to other arguably analogous situations, such as defendants who exercise the privilege during pretrial interrogation, at a civil trial, or at sentencing. Only seven years later, the Federal Rules of Evidence Advisory Committee drafted and approved a proposed evidence rule that would have extended Griffin essentially without limitation, but the rule was rejected by Congress, which left the matter to be worked out by the courts. 

This Essay examines how the law was taken in one direction by the Supreme Court for the first decade after Griffin, and how those early precedents were severely cut back over the next four decades after conservatives took control of the Court and started limiting those earlier rulings, often by announcing unprincipled distinctions that were the only possible way to get around those precedents. The Essay shows how the Court’s overt hostility toward those precedents has precisely mirrored the sort of judicial reasoning that Justice Scalia once mockingly compared to judges who see themselves and previous members of the Court as contestants in a game of Scrabble or football — and how this process has created a body of legal doctrine that it is utterly chaotic and unprincipled.


Polls are Sometimes Inaccurate, But…

posted by Judge_Burke @ 15:30 PM
February 3, 2016

Confidence in race relations in America continues to fall, with hopes for the future at their lowest level yet.

A new Rasmussen Reports national telephone survey finds that 50% of American Adults now think race relations in this country are getting worse, up from 44% a year ago  and 30% as recently as January 2014.  Only 20% believe race relations are getting better, a new low that compares to 38% five years ago. Twenty-six percent (26%) say race relations are staying about the same. (To see survey question wording, click here.)

Only 18% rate race relations in America today as good or excellent, unchanged from last year at this time but down from 34% two years ago. Thirty-three percent (33%) now consider race relations poor, up from 15% in 2011 and 29% last January.

Interestingly, unlike most questions related to race, there isn’t a wide difference of opinion on these questions between blacks and whites. Other minority Americans are the least pessimistic.

But blacks are much more likely than whites and other minorities to believe the United States is headed in the right direction.