Archive for March, 2016

Your “Gut” May Not Be as Good as You Think

posted by Judge_Burke @ 14:17 PM
March 31, 2016

A 10-minute training video for judges (available here) is the centerpiece of an upcoming toolkit designed to increase awareness of implicit bias and provide positive steps to bias-proof the justice system. Featuring noted judges, law professors and implicit bias experts, the video is part of ABA President Paulette Brown’s Diversity and Inclusion 360 Commission’s effort to bring together the finest minds to ensure a just system for all Americans.

Achieving excellence as a judge is not easy.  What is easy is to get so consumed in the need to get the cases done, get the orders issued, and deal with all the tasks we have, that we put off self-reflection.

Take ten minutes today to watch the video. It may be the best 10 minutes you will spend.


This Should Make Us Uncomfortable

posted by Judge_Burke @ 14:01 PM
March 30, 2016

When the judge, prosecution and defense all agree that a sentence is too harsh or that they made a mistake, one might think that the conditions are ripe to just fix it. The legal profession has at its core a lot of lawyers who are great problem solvers.  But, as a story in The Washington Post illustrates, perhaps it is not so simple:

The judge who sentenced Raymond Surratt Jr. to life in prison didn’t think he deserved that tough a penalty. His attorneys said it was based on bad math. Even the government lawyers who prosecuted him say the sentence was a mistake.

Yet they all also agree Surratt might stay locked up forever.

How that came to be is at the heart of arguments to be heard Wednesday when the U.S. Court of Appeals for the 4th Circuit takes up Surratt’s case, which turns on how many times inmates can appeal a sentence, particularly if the law becomes more lenient after they are sent to prison.

“Raymond Surratt will die in prison because of a sentence that the government and the district court agree is undeserved and unjust,” a judge wrote last summer, siding with Surratt in a divided panel decision from the same court.

The judges who ruled against him in the 2-to-1 decision are also sympathetic. They just don’t think the courts have the power to do anything about it.


The full story is here


Police Body Cameras (Will Judges Be Next?)

posted by Judge_Burke @ 14:41 PM
March 28, 2016

Almost all of the discussion about police body cameras has occurred among the broader police community (so far no one is suggesting judges have body cameras on them while in court).  The use of police body cameras will inevitably come up in court, and so this article by Professor Bryce Clayton Newell (Tilburg University – Tilburg Institute for Law, Technology, and Society (TILT)) Collateral Visibility: Police Body Cameras, Public Disclosure, and Privacy (Indiana Law Journal, Forthcoming) on SSRN seems interesting.

Here is the abstract:

Law enforcement use of body-worn cameras has recently become a subject of significant public and scholarly debate. This article presents the findings from an empirical examination of the legal and social implications of body-worn camera adoption by two police departments in Washington State. In particular, this study focuses on the public disclosure of body-worn camera footage under Washington State’s Public Records Act (PRA), provides an analysis of state privacy and access to information law, and presents empirical findings related to officer attitudes towards — and perceptions of — the impact of these laws on their work, their own personal privacy, and the privacy of the citizens they serve. The law in Washington State requires law enforcement agencies to disclose substantial amounts of footage, and options for withholding footage based on privacy grounds are very limited under the PRA and recent Washington State Supreme Court case law. Additionally, broad public records requests for body-worn camera footage have posed significant problems for civilian privacy. Police officers report strong concerns about public disclosure of their footage, largely because of the potential for such footage to impact civilian privacy interests, and officers also report high levels of disagreement with the current requirements to disclose most footage to any member of the public. However, officers are supportive of limited access policies that would allow individuals connected to an incident to obtain footage. This article concludes by making a normative argument for restricting public access to some body-worn camera footage on privacy grounds while still preserving adequate space for robust civilian oversight and police accountability.


Every Judge Should Read this Article by Judge Richard Posner

posted by Judge_Burke @ 18:13 PM
March 23, 2016

Judge Richard A. Posner has an article titled, “What Is Obviously Wrong With the Federal Judiciary, Yet Eminently Curable, Part I.   Here is an except:

Law is wedded to the past as no other profession is. You don’t hear doctors bragging about thirteenth-century medicine, but you hear lawyers bragging about the thirteenth-century Magna Carta (without even understanding it – they think it guaranteed the ancient liberties of the English, whereas in fact it guaranteed just the rights of barons, and in any event was soon annulled, later restored, and eventually demoted to the purely symbolic).

Another way to characterize the legal profession in all three of its major branches – the academy, the judiciary, and the bar – is that it is complacent, self-satisfied. Chief Justice Roberts in his annual reports likes to describe the American legal system as the envy of the world. Nonsense. The system has proved itself ineffectual in dealing with a host of problems, ranging from providing useful (as distinct from abstract theoretical) legal training at bearable cost to curbing crime and meting out rational punishment, providing representation for and protection of the vast number of Americans who are impecunious or commercially unsophisticated (so prey to sharpies), incorporating the insights of the social and natural sciences (with the notable exception of economics, however), curbing incompetent regulatory agencies such as the immigration and social security disability agencies, and limiting the role of partisan politics in the appointment of judges. The system is also immensely costly (more than $400 billion a year), with its million lawyers, many overpaid, many deficient in training and experience, some of questionable ethics.” While Judge Posner writes about the federal courts the provocative observations  he writes of should make all judges think about how we can improve our judicial systems. 


Thanks to this post at the Collateral Consequences Resource Center, US District Judge John Gleeson has issued an  opinion concerning the collateral consequences of a federal criminal conviction and what he thinks he can do as a federal judge in response.  Here is how the 33-page opinion in  Doe v. US, No. 15-MC-1174 (EDNY March 7, 2016)(available here) gets started:

On June 23, 2015, Jane Doe moved to expunge a now thirteen-year-old fraud conviction due to its adverse impact on her ability to work.  The conviction has proven troublesome for Doe because it appears in the government’s databases and in the New York City Professional Discipline Summaries.  In other words, the conviction is visible to a prospective employer both as the result of a criminal background check and upon examination of her nursing license.  Numerous employers have denied Doe a job because of her conviction.  On more than one occasion, she was hired by a nursing agency only to have her offer revoked after the employer learned of her record. Despite these obstacles, Doe has found work at a few nursing companies, and she currently runs her own business as a house cleaner.  Doe’s two children help to support her, and during periods of unemployment, her parents have also assisted her financially.

The government opposes Doe’s motion, contending that federal district courts do not have subject matter jurisdiction to expunge a conviction on equitable grounds.  The Second Circuit has ruled, however, that “[t]he application of ancillary jurisdiction in [expungement] case[s] is proper.” U.S. v. Schnitzer, 567 F.2d 536, 538 (1977), cert. denied, 435 U.S. 907 (1978).  Accordingly, I have weighed the equities in this case, which are grounded in my understanding of Doe’s criminal conviction and sentence; I was the judge who presided over her jury trial and imposed punishment.

I conclude that while Doe has struggled considerably as a result of her conviction, her situation does not amount to the “extreme circumstances” that merit expungement.  See id. at 539.  That said, I had no intention to sentence her to the unending hardship she has endured in the job market.  I have reviewed her case in painstaking detail, and I can certify that Doe has been rehabilitated.  Her conviction makes her no different than any other nursing applicant.  In the 12 years since she reentered society after serving her prison sentence, she has not been convicted of any other wrongdoing.  She has worked diligently to obtain stable employment, albeit with only intermittent success. Accordingly, I am issuing Doe a federal certificate of rehabilitation.  As explained below, this court-issued relief aligns with efforts the Justice Department, the President, and Congress are already undertaking to help people in Doe’s position shed the burden imposed by a record of conviction and move forward with their lives.


Mandatory Minimums in Iowa

posted by Judge_Burke @ 14:30 PM
March 17, 2016

Among judges and many others, mandatory minimums are anathema. The American justice system traditionally permits judges to weigh all the facts of a case when determining an offender’s sentence.  But in the 1970s and 1980s, the U.S. Congress and many state legislatures passed laws that force judges to give fixed prison terms to those convicted of specific crimes, most often drug offenses. Over the last few years the push back against this approach to sentencing has increased, but apparently not in Iowa.

The DesMoines Register reports: 

A bill passed by the Iowa House Tuesday would set mandatory minimum sentences for repeat domestic abuse offenders.

The bill, House File 2399, would require those convicted three separate times to serve at least 85 percent of their sentence, regardless of good conduct while behind bars, said Rep. Zach Nunn, R-Bondurant.

“(For those convicted three times), a mandatory sentence is not only recommended, but is just,” Nunn said. “And hopefully for those survivors it affords them the ability to start to re-frame their life, to move forward, to recognize that they don’t live in the victimhood of fear. For when they think their offender is going away for three years and is out 10 months later, they are right back in that cycle of violence that has crippled their life.”

That means those convicted on three separate charges of domestic abuse assault would spend at least three years in prison, for example. And those convicted on their third charge of first-degree harassment would spend at least one year in prison.

The legislation also would expand the use of global position monitoring for those convicted of domestic abuse and create rehabilitation options for those in prison.

The bill was opposed by a handful of legislators who said they disagree with using mandatory minimums.

Rep. Mary Wolfe, D-Clinton, noted the bill is opposed by the Iowa Coalition Against Domestic Violence, because they say lengthening prison sentences won’t necessarily help keep women safe.

“We’ve cut funding for these kinds of programs for years and now we’re telling them that we don’t care what you want, we don’t care about your expertise and what you know through research and study, we know what’s best for you and this is the way we’re going to do it,” Wolfe said. “So I find that verging on offensive.”


James J. Duane 

Regent University – School of Law


Stanford Journal of Criminal Law and Policy, Vol. 3, p. 1, 2015



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.


We Need Strong Leadership from Judges

posted by Judge_Burke @ 16:31 PM
March 14, 2016

For a long time courts throughout the country have taken pride in the amount of fines and fee revenue collected. The National Center for State Courts’ Courtools #7 identified collection of monetary penalties as a core performance measure of trial courts. Yet many have known — and the situation in the Ferguson Missouri court illustrated — that there is a dark side to the fines and fees courts have become increasingly dependent upon.

Constitutional issues were ignored and fairness to poor people was not always paramount.  Now there is a new wave of concern which is illustrated by a story in today’s issue of The New York Times, which begins:

The Justice Department on Monday called on state judges across the country to root out unconstitutional policies that have locked poor people in a cycle of fines, debt and jail. It was the Obama administration’s latest effort to take its civil rights agenda to the states, which have become a frontier in the fight over the rights of the poor and the disabled, the transgender and the homeless. In a letter to chief judges and court administrators, Vanita Gupta, the Justice Department’s top civil rights prosecutor, and Lisa Foster, who leads a program on court access, warned against operating courthouses as for-profit ventures. It chastised judges and court staff members for using arrest warrants as a way to collect fees. Such policies, the letter said, made it more likely that poor people would be arrested, jailed and fined anew — all for being unable to pay in the first place.


Continue reading here.


The Cost of Injustice

posted by Judge_Burke @ 17:06 PM
March 10, 2016

The cost of injustice. Flawed convictions cost California taxpayers more than $282 million from 1989 to 2012, and cost nearly 700 people hundreds of years in prison for crimes they either did not commit or that could not be proven beyond a reasonable doubt. Failed homicide prosecutions, by far, accounted for most of the money. Read The Huffington Post’s detailed piece on this issue.

And for a related piece, read the report  from the Berkeley School of Law that uses a new methodology to track wrongful convictions. 


The Vanishing Jury Trial

posted by Judge_Burke @ 18:56 PM
March 9, 2016

Much has been written about the vanishing jury trial in civil cases, but now there is a concern about what the effect of the vanishing jury trial means for the criminal justice system.

William T. Pizzi has posted The Effects of the ‘Vanishing Trial’ on Our Incarceration Rate on SSRN.

Here is the abstract:

This article focuses on the relationship between two troubling features of the American criminal justice system over the last forty years: the steep rise in our incarceration rate and the sharp decline in the number of criminal trials. The article contends that the lack of a strong trial system for routine cases pushes the incarceration rate higher.

To provide perspective on our problems, the article looks at the criminal trial systems in Canada and England and shows how the availability of a nonjury trial model for misdemeanors and most felonies encourages prosecutors to keep charges low by offering advantages to both prosecutors and defendants if they opt for the nonjury trial model. There is thus not the need for the extreme pressures one sees exerted on defendants in the United States to force them to plead guilty.

This article argues that it was a mistake for the Supreme Court to insist that trials for misdemeanors and most felonies must be jury trials. The result is a worse world for defendants as plea bargaining has come to dominate so completely that trials no longer serve their function as a check on the quality and quantity of cases being filed.

The article concludes that we will struggle to lower our incarceration rate significantly until we face up to the problems inherent in identifying fair trials with jury trials. It is a mistake other common law countries have not made and they are better for it.