Archive for April, 2016

Improving Local Jails

posted by Judge_Burke @ 14:30 PM
April 15, 2016

The John D. and Catherine T. MacArthur Foundation  announced, as part of the Safety and Justice Challenge, nearly $25 million in support for plans to create fairer, more effective local justice systems across the country.  The grants are part of the Safety and Justice Challenge, a national initiative supported by the Foundation with an initial $75 million to reduce over-incarceration by changing the way America thinks about and uses jails.

The Challenge is establishing a network of jurisdictions to model and inspire effective local criminal justice reforms across the country. Last May, MacArthur chose 20 jurisdictions for initial grants and expert counsel to develop plans for reform after a highly competitive selection process that drew applications from nearly 200 jurisdictions in 45 states and territories. All 20 of these Safety and Justice Challenge Network jurisdictions will be eligible for further funding. Depending on continued commitment and significant progress, sites receiving implementation awards will be eligible for additional funding after the initial two years. The remaining jurisdictions are encouraged to sustain their momentum for reform and will be considered for implementation support in 2017.


The Foundation is awarding 11 jurisdictions grants between $1.7 million and $3.5 million over two years to reduce their jail populations and to address racial and ethnic disparities in their justice systems. The jurisdictions include:

  • Charleston County, SC
  • Harris County, TX
  • Lucas County, OH
  • Milwaukee County, WI
  • New Orleans, LA
  • New York City, NY
  • Philadelphia, PA
  • Pima County, AZ
  • St. Louis County, MO
  • Spokane County, WA
  • State of Connecticut

Additionally, nine jurisdictions are receiving $150,000 grants to continue their reform efforts: Ada County, ID; Cook County, IL; Los Angeles County, CA; Mecklenburg County, NC; Mesa County, CO; Multnomah County, OR; Palm Beach County, FL; Pennington County, SD; and Shelby County, TN. (Click through to more information –



Are There Limits to the Right to Allocution?

posted by Judge_Burke @ 14:30 PM
April 12, 2016

What rights does the prosecution have to question a defendant at sentencing?

The Third Circuit addressed this question in United States v. Moreno, ___ F.3d ___, 2016 WL 53796 (3d Cir. Jan. 5, 2016).  A prosecutor in the Western District of Pennsylvania had an idea:  use the defendant’s sentencing allocution as an opportunity to cross-examine him about the offense conduct – an opportunity that the prosecutor hadn’t gotten at trial, when the defendant chose not to testify.

The prosecutor succeeded in eliciting incriminating admissions, upon which the sentencing judge expressly relied when imposing sentence.  Although the defendant had appropriately cabined his allocution to mitigation and remorse, defense counsel did not object to the cross-examination or the judge’s reliance upon it.  (Ineffective assistance at sentencing or harmless error?)

On appeal, the government sought refuge in the fact that neither a rule nor binding precedent explicitly says “no, prosecutors, you cannot cross-examine a defendant at allocution.”  The government relied on this “but no one said I couldn’t” analysis to argue both that no error had occurred, and that any error was not “plain” (as required for reversal, with no objection below).

The Third Circuit disagreed.  The opinion pointed out that the purpose of the “ancient” right of allocution, enshrined in Fed. R. Crim. P. 32, is to “permit the defendant to speak or present any information to mitigate the sentence” – a purpose that is fatally undermined if allocution opens a defendant to cross-examination.  Permitting cross-examination was not only error, but plain error.  (The circuit noted that a defendant who chooses to testify about offense conduct at sentencing may do so, but only by taking the stand and thus accepting the risks of cross-examination.)

And the Circuit went one step further toward reminding the government that “no one said I couldn’t” is not the limit of its obligations.  Even if the district court’s error were not plain, the Circuit said, it would exercise its supervisory authority to prohibit cross-examination at allocution.

The prosecutor in Moreno had tried another tactic that the Circuit also disapproved:  rehabilitating a witness not with his own statements, but with the statements of a non-testifying witness.  The defense had attacked the testimony of a key cooperating witness in the usual way:  by eliciting an admission that the witness’s hoped-for leniency at sentencing as a reward for his cooperation.  On re-direct examination, the government attempted to offer “prior consistent statements” of the witness, citing Fed. R. Evid. 801(d)(1)(B) – but the statements were memoranda prepared by the non-testifying special agent from the pretrial interviews of the testifying witness, and not the witness’s own statements.  The district court admitted the memoranda over a non-specific objection by defense counsel.

On appeal the Circuit agreed with the defense that the admission of the non-testifying agent’s statements violated the Confrontation Clause.  


Be Careful What You Say

posted by Judge_Burke @ 14:30 PM
April 12, 2016

A unanimous New Jersey Supreme Court  issued an interesting sentencing opinion today in NJ v. McFarlane, No. 075938 (April 7, 2016) (available here).  Reading the whole opinion is worthwhile, but you will get the drift about why judges should watch what they say:

Defendant chased an unarmed man, whom he was attempting to rob, and shot him in the back with a revolver.  The victim was alive and gasping for air after he fell to the ground, but defendant robbed him and left him to die.  Defendant was convicted of first-degree murder, among other things, and sentenced to sixty years in prison.

We are called upon to determine whether defendant’s sentence should be vacated and the matter remanded for resentencing before a different judge, because the trial judge remarked during a subsequent, unrelated status conference that he always gives sixty-year sentences to a defendant convicted by a jury of first-degree murder.  While we acknowledge the judge’s subsequent explanation for his remarks, preservation of the public’s confidence and trust in our system of criminal sentencing requires that the matter be remanded for resentencing by another judge of the same vicinage.


How Concerned Were the Founding Fathers about Cell Phone Privacy?

posted by Judge_Burke @ 14:30 PM
April 11, 2016

It is unlikely that Thomas Jefferson – who was quite a visionary – thought very long about the 4th Amendment and cell phone privacy. After all, it was during the latter part of 1800 that the invention of the electric telephone occurred. 

From time-to-time, Charles Bourseul, Antonio Meucci, Johann Philipp Reis, Alexander Graham Bell, and Elisha Gray, amongst others, have all been credited with the telephone’s invention. The early history of the telephone became and still remains a confusing morass of claims and counterclaims, which were not clarified by the huge mass of lawsuits to resolve the patent claims of many individuals and commercial competitors.

But today, the widespread use of cellphones gives the government a way to locate criminal suspects using a device known as a cell-site simulator. The Maryland Court of Special Appeals recently handed down the first appellate decision on whether and when use of a cell-site simulator to identify the location of a target’s phone is a Fourth Amendment “search.”

The opinion, in State v. Andrews, rules that government use of a cell-site simulator is always a Fourth Amendment search and that it ordinarily requires a warrant.


Is There a Rational Basis for Residency Restrictions of Sex Offenders?

posted by Judge_Burke @ 14:30 PM
April 8, 2016

Although it does not happen frequently, there are occasional legal challenges to residency restrictions of sex offenders. Minnesota Lawyer reports that there are “no” experts who find there is a rational basis for them.

As Minnesota lawmakers mull a bill that would authorize local units of government to enact tough new restrictions on where sex offenders can live, its advocates face one major obstacle:  finding a single authority in the field who believes it’s a good idea.

At least, that’s the opinion of Mitchell Hamline law professor Eric Janus, who has written extensively on sex offender laws and policies.

“I don’t think you can find any experts — or a person who actually deals with sex offenders — who thinks residency restrictions are effective,” said Janus. “It’s amazing and quite uniform. That goes from Departments of Corrections to county attorneys and prosecutors to state task forces. Everybody says it’s a bad idea. It inhibits re-entry. It inhibits stability. It inhibits supervision. And most likely it increases recidivism.”

While that’s been the consensus among researchers for years, Janus noted, more courts across the country are finding reasons to strike down residency restrictions.

“It hasn’t been unanimous, but there’s been a bit of a tipping point. Ten years ago, the courts more or less always upheld these laws. Now they look at them much more carefully,” said Janus, who cited a spate of decisions in the last year from courts in California, New York and Massachusetts.”


Read more here.


Can We Learn from Germany?

posted by Judge_Burke @ 14:30 PM
April 7, 2016

“We cannot see the sense in just locking people up for their whole life.”

Few nations punish criminals more harshly than America does, but it doesn’t have to be that way. Germany, for example, focuses far more on the rehabilitation of its offenders than on their punishment, and the result there is a stunning contrast to our system of crime and punishment. The Marshall project urges people to watch a group of American politicians, corrections officials and criminal justice advocates get a first-hand view of Germany’s approach to incarceration.

For more:  CBS News/60 Minutes



The Cost of Wrongful Convictions

posted by Judge_Burke @ 16:28 PM
April 6, 2016

Rebecca SilbertJohn Hollway and Darya Larizadeh (University of California, Berkeley , University of Pennsylvania Law School – Quattrone Center for the Fair Administration of Justice and University of California, Berkeley) have posted Criminal Injustice: A Cost Analysis of Wrongful Convictions, Errors, and Failed Prosecutions in California’s Criminal Justice System (Berkeley, CA: Chief Justice Earl Warren Institute on Law and Social Policy, 2015) on SSRN.

Here is the abstract:

Mistakes, incompetence and malfeasance in our criminal justice system can have serious and lifelong consequences on the person prosecuted, and can compromise the public’s belief in the system. Although much has been examined regarding small sample sets of individuals for whom there is uniform agreement on innocence, thousands of other defendants are subjected to these flawed prosecutions. This report analyzes a dataset of 692 adult felony criminal cases in California, the majority from 2000 – 2012, wherein the defendant was convicted of felony or felonies, the convictions were reversed, and the charges were either dismissed or the defendant subsequently found not guilty on retrial. The individuals in the study endured hundreds of trials, mistrials, appeals, and habeas petitions and served more than two thousand years in prison and jail, at a total cost to California taxpayers of more than $282 million, adjusted for inflation. The document examines the types of cases susceptible to error, the types of error that exist, and the direct costs of incarceration, representation, and compensation attributable to these cases and their ultimate resolution. In the absence of data relating to the taxpayer costs for trial, the report suggest a methodology to estimate taxpayer costs for cases that proceed to trial and cases that settle prior to trial, grouped by type of crime.


Judge Jeremy D. Fogel on Mindfulness

posted by Judge_Burke @ 14:30 PM
April 4, 2016

Jacob Gershman had an interesting story in The Wall Street Journal‘s Lawblog:

The “mindfulness” movement has made inroads in the legal industry, particularly drawing in lawyers who say the Zen-inspired blend of meditation, breathing exercises and focus techniques helps combat job stress.

But judges, too, could benefit from mindfulness, says U.S. District Judge Jeremy D. Fogel, director of the Federal Judicial Center in Washington, D.C.

The center, the research and education arm of the federal judiciary, has posted online a paper he wrote encouraging fellow jurists to give the practice a shot.

“While much of the discussion of mindfulness in relation to judges so far has focused on health and wellness, mindfulness also has obvious implications for the actual work that judges do,” writes Judge Fogel, a Clinton appointee who heard case in San Jose before joining the center.

For example, he says, it can help trial-level judges summon more attention to the duller, more routine parts of their job, like hearing guilty pleas. He writes:

Mindfully taking a plea involves approaching each plea as a new and unique situation. The judge notices consciously things that otherwise might tend to be noticed only in passing, if at all: the defendant’s tone of voice and body language, the way the defendant and counsel appear to be communicating (or not communicating) with each other, the defendant’s physical appearance, whether friends or family members of the defendant (or victims) appear to be in the courtroom, and so on. None of these things necessarily changes the outcome of the process, yet taken as a whole they can help the judge learn more about the defendant and assess more fully whether the defendant is entering a knowing and voluntary plea. And perhaps just as importantly, the attentiveness shown by the judge is communicated to the defendant and everyone else who is present.     


Sad Time for Courts in Kansas…The Campaign to Hang in There

posted by Judge_Burke @ 20:00 PM
April 1, 2016

The American Judges Association has historically had a strong Kansas membership. Two of our past AJA Presidents are sitting judges in Kansas. So, this story in The New York Times about Kansas courts ought to trouble not just American Judges Association members, but everyone.

The story begins:

TOPEKA, Kan. — Washington is locked in partisan warfare over control of the Supreme Court. But it is hardly the only place. Look at the states, where political attacks on judicial decisions are common and well-financed attack ads are starting to jar the once-sleepy elections for State Supreme Court seats.

Nowhere is the battle more fiery than here in Kansas. Gov. Sam Brownback and other conservative Republicans have expressed outrage over State Supreme Court decisions that overturned death penalty verdictsblocked anti-abortion laws and hampered Mr. Brownback’s efforts to slash taxes and spending, and they are seeking to reshape a body they call unaccountable to the right-tilting public.


The full story can be found here.  

It is not easy to be in public life in any of the branches of government. We serve at a time when appreciation for public service is not particularly widespread. For judges, this is a particular challenge. For the most part, judges are not political people. They listen, think, reflect, rule, and don’t seek limelight. Things like what is happening in Kansas are not peculiar to that state, as the New York Times article points out, but frankly “misery loves company” is hardly effective. So, is there something an AJA member can do? Send an e mail to judges you know in Kansas…and judges you don’t know…and simply say this, “Hang In There, from a fellow judge.”