Archive for August, 2016

A Report from Arizona Worth Reading

posted by Judge_Burke @ 14:00 PM
August 31, 2016

The experience of many courts has been that their state Supreme Court appoints a task force to address a critical problem, and several years later a report is issued that few read. At least on the issue of a timely response to a critical problem, kudos to Arizona!

On March 3, 2016, Chief Justice Scott Bales issued Administrative Order No. 2016-16, which established The Task Force on Fair Justice for All:  Court-Ordered Fines, Penalties, Fees, and Pretrial Release Policies. The administrative order outlined the purpose of the task force as to study and make recommendations as follows:

a) Recommend statutory changes, if needed, court rules, written policies, and processes and procedures for setting, collecting, and reducing or waiving court- imposed payments.

b) Recommend options for people who cannot pay the full amount of a sanction at the time of sentencing to make reasonable time payments or perform community service in lieu of some or all of the fine or sanction.

c) Recommend best practices for making release decisions that protect the public but do not keep people in jail solely for the inability to pay bail.

d) Review the practice of suspending driver’s licenses and consider alternatives to license suspension.

e) Recommend educational programs for judicial officers, including pro tem judges and court staff who are part of the pretrial decision-making process.

f) Identify technological solutions and other best practices that provide defendant notifications of court dates and other court-ordered deadlines using mobile applications to reduce the number of defendants who fail to appear for court and to encourage people who receive citations to come to court.

The Chief Justice asked the task force to file a report and make recommendations to the Arizona Judicial Council (AJC) by October 31, 2016. The report consists of 53 recommendations, plus additional educational and training recommendations, and can be found here.



How Should Courts Approach the Issue of Juvenile Confessions?

posted by Judge_Burke @ 14:00 PM
August 30, 2016

The issue of how courts should approach juvenile confessions gained a spotlight in the news recently when a federal court in Wisconsin overturned the conviction of Brendan Dassey, who was accused of helping his uncle kill Teresa Halbach, in a case brought to the national spotlight in the Netflix documentary, “Making a Murderer.”

Dassey was arrested at the age of 16 and sentenced to 41 years in prison on charges of first-degree intentional homicide, second-degree sexual assault and mutilation of a corpse after he confessed that he helped his uncle, Steven Avery, kill Halbach in 2005 in Manitowoc County, Wisconsin.

Magistrate Judge William E. Duffin in Milwaukee has ordered that Dassey be released in 90 days, unless the case is appealed, according to court documents.

Duffin wrote that investigators made repeated claims to Dassey that they already knew what happened, and falsely promised that he had nothing to worry about. These repeated false promises, when considered in conjunction with all relevant factors – most especially Dassey’s age, intellectual deficits, and the absence of a supportive adult – rendered Dassey’s confession involuntary.

Dassey’s confession was, as a practical matter, the entirety of the case against him on each of the three counts. A recent law review article posted on SSRN gives an academic view of the serious issue facing courts regarding juvenile confessions:

Taking Back Juvenile Confessions 

by Kevin Lapp (Loyola Law School Los Angeles)  


The limited capacity of juveniles to make good decisions on their own — based on centuries of common sense and empirically supported in recent decades by abundant scientific research — informs almost every field of legal doctrine. Recent criminal justice reforms have grounded enhanced protections for youth at punishment and as criminal suspects on their limited cognitive abilities and heightened vulnerability. One area of criminal procedure doctrine lags behind this legal, scientific, and social consensus. Despite historical recognition of the need for special protections for interrogated youth, current law regarding the waiver of the rights to silence and to counsel at interrogation predominantly treats juvenile suspects like adults. This underenforces their privilege against self-incrimination, disrespects their dignity, and raises the risk of wrongful convictions. This Article considers whether interrogation law should correct course by incorporating a rule akin to contract law’s centuries-old infancy doctrine and permit individuals to retract uncounseled Miranda waivers elicited by law enforcement while they were juveniles. The justifications, advantages, and drawbacks to such a doctrinal shift are explored.


Candidates Can Mislead…But Just Not Tell Outright Lies

posted by Judge_Burke @ 14:30 PM
August 26, 2016

Running for political office is not easy. If you are a major party candidate for President like Donald Trump or Hillary Clinton, you are constantly under the glare of the media. Unfortunately sometimes even honest differences in opinion are twisted into claims that one or the other is telling an outright lie.

The Washington Post Fact Checker  uses a Four Pinocchio scoring system. Why can’t these candidates simply mislead the voters and abandon outright lies? Judicial candidates in Kentucky can make misleading statements, but they can’t tell outright lies. Presumably that means no Four Pinocchios for them.

Kentucky judges can say they are endorsed by a political party or tout themselves as the conservative Republican or the liberal Democrat in the race. But, they cannot act as a party leader, or endorse or make political contributions to a candidate.

In a major ruling on political speech in judicial races, the 6th Circuit Court of Appeals on Wednesday affirmed most of a federal judge’s opinion in May that erased many of the restrictions in non-partisan judicial races.

But the three-judge panel sent back a portion of the case for more deliberation in which U.S. District Judge Amul Thapar struck down a canon that barred candidates from making a commitment on an issue or case that is “inconsistent with the impartial performance of the adjudicative duties of judicial office.”

The appeals court ruled in a lawsuit brought by three candidates in Northern Kentucky who said the Judicial Conduct Commission had violated their free-speech rights by threatening to discipline them. All three said they were interested in running again and wanted to clear up the rules.


Can You Constitutionally Open Court with a Prayer?

posted by Judge_Burke @ 18:52 PM
August 25, 2016

There is no doubt that many judges pray before they go on the bench. They pray that the lawyers will be short and concise and they fervently may pray that the case will settle. However, not many judges actually pray out loud to open court sessions. Professor Ruthann Robson who teaches at the City University of New York had a short interesting commentary on the issue of opening court sessions with a prayer.

Texas Attorney General Ken Paxton has issued an opinion today that the First Amendment’s Establishment Clause is not violated if court were opened with a prayer.  He stated:

A court would likely conclude that a Justice of the Peace’s practice of opening daily court proceedings with a prayer by a volunteer chaplain as you describe is sufficiently similar to the facts in Galloway such that the practice does not violate the Establishment Clause.

Galloway is the United States Supreme Court’s sharply divided 2014 opinion in Town of Greece v. Galloway which involved a town board meeting. Justice Kennedy’s opinion for the Court in Galloway repeatedly referred to the issue as whether the “legislative prayer” approved by the Court in Marsh v. Chambers (1983) as part of a historical practice extended to a local legislature, despite the fact that some non-legislative functions occurred at the town board. In the dissent on behalf of four Justices, Justice Kagan essentially argued that a prayer at the beginning of a trial was clearly unconstitutional.  Indeed, in his separate concurring opinion, Justice Alito seemingly agreed:

I am troubled by the message that some readers may take from the principal dissent’s rhetoric and its highly imaginative hypotheticals. For example, the principal dissent conjures up the image of a litigant awaiting trial who is asked by the presiding judge to rise for a Christian prayer, of an official at a polling place who conveys the expectation that citizens wishing to vote make the sign of the cross before casting their ballots, and of an immigrant seeking naturalization who is asked to bow her head and recite a Christian prayer. Although I do not suggest that the implication is intentional, I am concerned that at least some readers will take these hypotheticals as a warning that this is where today’s decision leads—to a country in which religious minorities are denied the equal benefits of citizenship.

Nothing could be further from the truth. All that the Court does today is to allow a town to follow a practice that we have previously held is permissible for Congress and state legislatures. In seeming to suggest otherwise, the principal dissent goes far astray.

At least for Attorney General Ken Paxton, Justice Kagan’s hypothetical was not as “highly imaginative” as Justice Alito averred. Paxton’s opinion recognizes that the only United States Circuit court opinion to directly consider the issue, North Carolina Civil Liberties Union Legal Found. v. Constangy (4th Cir. 1991), found opening court with prayers unconstitutional, but Paxton opines “other courts deciding the issue may disagree with Constangy that prayer in judicial settings lacks historical foundation.”  Thus, Paxton states that “a Justice of the Peace’s practice of opening daily court proceedings with a prayer by a volunteer chaplain,” would not violate the Establishment Clause.


The Drug Court Paradigm

posted by Judge_Burke @ 14:42 PM
August 24, 2016

Jessica Eaglin

Indiana University Maurer School of Law

August 10, 2016

American Criminal Law Review, Vol. 53, No. 595, 2016


Drug courts are specialized, problem-oriented diversion programs. Qualifying offenders receive treatment and intense court-supervision from these specialized criminal courts, rather than standard incarceration. Although a body of scholarship critiques drug courts and recent sentencing reforms, few scholars explore the drug court movement’s influence on recent sentencing policies outside the context of specialized courts.

This Article explores the broader effects of the drug court movement, arguing that it created a particular paradigm that states have adopted to manage overflowing prison populations. This drug court paradigm has proved attractive to politicians and reformers alike because it facilitates sentencing reforms for low-level, nonviolent drug offenders that provide treatment-oriented diversions from incarceration. Though reforms adopted within the drug court paradigm have contributed to stabilizing prison populations and have created a national platform to discuss mass incarceration, this paradigm has limits that may prevent long-term reductions in prison populations. This Article identifies three limitations of the drug court paradigm: First, by focusing exclusively on low-level drug offenders, the approach detrimentally narrows analysis of the problem of mass incarceration; second, by presenting a “solution,” it obscures the ways that recent reforms may exacerbate mass incarceration; third, by emphasizing a focus on treatment-oriented reforms, this paradigm aggressively inserts the criminal justice system into the private lives of an expanding mass of citizens.

This Article locates the current frame’s origin in the drug court movement. Identifying this connection is important for two reasons: First, it provides new insight to how we define “success” in criminal justice, and why. Second, it illuminates a growing tension between government actors and the general public’s appetite for criminal justice reforms that meaningfully reduce mass incarceration.



Implicit Bias is Hard to Deal with for Judges

posted by Judge_Burke @ 15:57 PM
August 23, 2016

As judges, we sometimes think of ourselves in unhealthy ways. We may have been appointed through a careful process or been elected through a vetting with the people, but none of us were anointed.  Simply put:  We are not saints. The ABA Journal reports:

Judges are tasked with being the most impartial members of the legal profession. On Friday afternoon, more than 50 of them discussed how this isn’t so easy to do—and perhaps even impossible when it comes to implicit bias.

But working to overcome biases we don’t recognize is a job that is as necessary as it is worth doing.

“We view our job functions through the lens of our experiences, and all of us are impacted by biases and stereotypes and other cognitive functions that enable us to take shortcuts in what we do,” 6th U.S. Circuit Court of Appeals Judge Bernice B. Donald told a gathering of judges, state and federal, from around the country. Donald was on a panel for a program by the ABA’s Judicial Division, titled “Implicit Bias and De-Biasing Strategies: A Workshop for Judges and Lawyers,” at the association’s annual meeting in San Francisco.

The audience of mostly judges heard several examples from various studies over the years: Darker skin leads to longer prison sentences, differentiating even between lighter- and darker-skinned African-Americans. Prospective jurors given facts about a fictional incident remember more aggressive details about a defendant named “Tyrone” than they do when the same scenario concerns a “William.” And when 60 lawyers were shown the same research memo from what they believed to be a third-year law student, and half were told it was by a black student while the other half were told the writer was white, they gave the black writer a 3.2 out of 5 and scored the white writer 4.1.


The complete article can be found here


The State of the Exclusionary Rule

posted by Judge_Burke @ 15:21 PM
August 22, 2016

Even though a police officer unlawfully detained a Utah man without probable cause, the drug evidence that later was discovered in the man’s pocket could be used against him in court, the United States Supreme Court  in a 5-3 ruling held that the evidence should not be suppressed.  Justice Sotomayor, who wrote a strong dissent  that the law should prohibit, not encourage, police tactics that especially burden communities of color. The exclusionary rule is weakened but survives, barely

The National Law Journal reported:

In an impassioned dissent, Sotomayor cited a report on last year’s unrest in Ferguson, Missouri, and wrote about “the talk” that parents of color give to children about how to behave in the presence of police — a recurring theme in the current debate over policing and race. It was a rare example of a justice drawing current events into an opinion. Justice  Thomas who wrote the majority opinion  did not directly engage with Justice  Sotomayor’s arguments.

“For generations, black and brown parents have given their children ‘the talk,’ ” Sotomayor wrote in Utah v. Strieff, “instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them.”

Justice Sotomayor added, “This case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.” A “carceral state” is prison-like.

She said a Justice Department report found that “in the town of Ferguson, Missouri, with a population of 21,000, 16,000 people had outstanding warrants against them.” Sotomayor also cited works ranging from “The Souls of Black Folks” written by W.E.B. Du Bois in 1903 to “Between the World and Me,” the 2015 book by Ta-Nehisi Coates.


The officer’s lack of any specific suspicion of Mr. Strieff, Justice Thomas wrote, was a result of “good-faith mistakes.” The illegal stop was, at worst, “an isolated instance of negligence.”


Read more here.


Can You Discriminate in Your Will?

posted by Judge_Burke @ 17:25 PM
August 18, 2016

In New Jersey, the answer is yes. The Law Blog- WSJ  reports:

A New Jersey appeals court refused to set aside the will of a deceased father who disinherited his daughter allegedly because she dated and married a Jewish man.

Plaintiffs Stacy Wolin and her daughters argued that the will left by her father Kenneth Jameson of Haddonfield, N.J., was invalid because it was the “product of religious discrimination.”

According to the state appeals court opinion handed down Friday:

Stacy enrolled in college in 1982 and began dating Marc Wolin (Marc), a person of the Jewish faith. After telling her parents that she was dating Marc, Stacy’s parents allegedly forbade her from talking, socializing, and having any contact with him because he was Jewish…

Kenneth allegedly told Marc that “they would not attend the wedding because they would never endorse their daughter marrying a Jew.”

Mr. Jameson died in April 2014 at the age of 81, leaving his estate to a nonprofit serving people with developmental disabilities, according to the Associated Press.

The father’s “alleged discriminatory motive does not provide a basis to set aside the will,” stated the ruling, upholding a lower-court decision. Friday’s opinion cited a 19th-century judicial precedent that held that courts are bound to uphold the validity of a will even if it’s “contrary to the principles of justice and humanity” and its provisions are “shockingly unnatural and extremely unfair.”


Read more here.






Plea-Bargain Ban for Police Threats Raises Eyebrows – Law Blog – WSJ

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

Judges have the right to reject plea bargains. Being transparent about the approach a judge has typically would not generate criticism. For example, in parts of Minnesota there are judges who will treat a sentencing recommendation as just that:  a recommendation by which they are not bound.  Other judges have no objection to plea negotiations which fix the terms of a sentence. But a recent action by a Texas judge caught the attention of the media:

A Texas judge has come under criticism for announcing on Facebook that his court would no longer allow defendants charged with threatening or endangering police officers to negotiate plea deals with prosecutors.

District Judge Kerry Neves of Galveston County unveiled his policy in a Facebook post on July 18, in the wake of a pair of deadly multiple shootings targeting police in Dallas and Baton Rouge that left eight officers dead and 10 wounded.

“No plea bargain agreements for deferred adjudication or probation involving Assault on a Public Servant, Evading Arrest, Resisting Arrest or any other offense in which a member of Law Enforcement is threatened or placed in danger will be approved,” wrote the judge.

Without referring to any specific incident, he added: “I may only be one person, one Judge, but I will do what I can to stop the disrespect and aggressive behavior against our police officers.”


Read more here.



From the Procedural Fairness Blog

posted by Judge_Burke @ 14:45 PM
August 15, 2016

If you have not recently visited the procedural fairness web site & blog (available here) you should.

This is a recent post:

We don’t know who first said this: “Learn from the mistakes of others; you can never live long enough to make them all yourself.” But we surely know that judges can learn from the mistakes of other judges.  Explaining to a defendant why a judge imposed a sentence and insuring everyone understands that the decision was based upon neutral principles of law, not some personal vendetta, is an essential component of procedural fairness. Reflecting on what should be said in explaining a sentence is among the most effective checks on our implicit biases.

United States District Judge Rudolph Randa said some things at a sentencing that all judges can learn from. According to a transcript, his remarks included these: “We had huge riots in this city.  Not unlike what happened in Baltimore this week.  And if we had something like this in this city today? With this pathology that we’ve got set in these neighborhoods? The same thing is going to happen here.”

So what did Judge Randa do that judges might learn from? Judge Randa sentenced Billy Robinson Jr. within the recommended range of the federal sentencing guidelines, yet he was not only reversed by the United States Court of Appeals for the Seventh Circuit, he was removed from the case.  As the appellate court put it: “Billy Robinson’s guilty plea was routine; his sentencing hearing was not. . . . During his sentencing hearing, the district court went far afield in its comments.  We are left without the ability to say confidently that the sentence was imposed in accordance with the proper procedures.” United States v. Robinson, No. 15-2019, 2016 WL 3947808 (7th Cir. July 22, 2016).

The protests in Baltimore and events the judge remembered from 1976 had nothing to do with a relatively minor player in a Milwaukee drug case in 2015, the court said.  Judge Randa was also chastised for remarks about crime in urban neighborhoods and about the defendant having had multiple children with different women.  The judge’s remarks “were irrelevant and had no basis in the record,” Chief Judge Diane Wood wrote. “They therefore undermine our confidence in the fairness of the proceeding.”

The appellate court carefully explained its problems with Judge Randa’s remarks at sentencing:

The sentencing hearing took a wrong turn by focusing on urban decay, social unrest, and the judge’s personal experiences in the relevant neighborhood. As we have said before, “it is inappropriate to blame [a defendant] for issues of broad local, national, and international scope that only tangentially relate to his underlying conduct.” Smith, 400 Fed. Appx. at 99 (citing Figueroa, 622 F.3d at 743–44). We need not review all of the comments made during sentencing; a few examples will suffice.

The district judge invoked his own recollections from his college days of Robinson’s neighborhood, noting that many years ago it was a safe place and now it was not, because of the omnipresent drug trade. These references are troubling because they could be “understood as a personal grudge that the judge bore against [Robinson] for dealing drugs in his old neighborhood.” United States v. Wilson, 383 Fed. Appx. 554, 557 (7th Cir. 2010) (nonprecedential). They appear to attribute “issues of broad local [and] national . . . scope”—changing crime rates in cities—to Robinson’s crime, when these issues at best “only tangentially relate to his underlying conduct.” Smith, 400 Fed.Appx. at 99. Robinson was not charged with a violent crime or a crime involving a firearm, nor did his criminal history include any such crimes.

The district judge also went too far when he suggested that Robinson’s crime was related somehow to events elsewhere in the country. The court discussed its belief that Milwaukee today is similar to Milwaukee in 1967, and drew questionable—and irrelevant—parallels between Milwaukee’s 1967 riots and recent protests in Baltimore over police brutality. He noted in particular some protests in Milwaukee over the Vietnam War in 1967 (12 years before Robinson was born)—protests that got in the way of his deployment to a combat zone. He wondered what would happen if something similar were to take place today, and he bemoaned the general lack of discipline, responsibility, and self-direction.

. . . .

The district court also used “colorful” language to “dispense with arguments that [it] did not appreciate.” See Figueroa, 622 F.3d at 743. In response to Robinson’s statement that his family supports him, the court said, “I don’t care how nice you are. How much your family loves you. I mean, my family loves me, too.” And in response to Robinson’s statement that he and his fiancée intended to move to Alabama in order to leave behind negative influences in Wisconsin and Illinois, the court pointed out that Robinson had five children by four different mothers, and questioned whether he was really prepared to support all five. Robinson’s childcare arrangements might be relevant to his sentence for some purposes. The fact that he has children with multiple mothers is not, however, “the real problem” (in the judge’s words) that his sentence is meant to address.

Judges should tailor a sentence to fit the facts and circumstances of the crime committed and the background of the defendant.  Prior offenses are usually easy to determine.  But when one moves to mental or moral propensities or social background, or pontificates about the effect crime as a way of explaining general deterrence, implicit bias can infect the decision—unless the judge is very careful.

The right to allocution dates back to 1776.  Allocution provides an opportunity for a defendant to explain—in his or her own words.  Although not every state has held the right to allocution to be a fundamental right, it is in essence the first component of procedural fairness: voice.


Steps to Getting Good at Sentencing:

  • Prepare Mentally

The transcript in United States v. Robinson makes clear that everyone was prepared. Judge Randa had read the presentence report and knew about the defendant. But was he mentally prepared? Interaction with a defendant at sentencing is not an easy task. Being mentally prepared is the essential first step.

  • Voice and the Right to Allocution

One of the most prevalent reasons people do not speak in court is intimidation.  Added to the intimidating atmosphere of a court environment at sentencing is fear: “Be careful what you say for fear of offending the judge.”  If intimidation and fear of a defendant to speak are allowed to permeate a sentencing, voice and the right to allocution can become hallow.

  • Saying Less Is Not Necessarily Better

There is a temptation to react to Judge Randa’s situation and conclude less is better. It is not. Sympathy can be appropriate at sentencing. Explaining why something that is important to the defendant cannot be recognized as legally relevant also is an essential part of good sentencing. 

  • Emotion Is Part of the Sentencing Process

Regulating your own emotions and those of others is a part of all court proceedings—and particularly of a sentencing. Some sentencings can evoke anger in a judge. While anger may or may not be appropriate to the situation, contempt of an individual is never acceptable. Victims can express anger and a prepared judge needs to regulate their emotions. Remorse is an emotion some defendants have and some defendants rather poorly fake. A defendant’s failure to show remorse is a powerful factor in many a judge’s decision on sentencing.  Yet, there is little evidence that remorse can be accurately determined. There is significant evidence that race can create obstacles to accurately evaluating remorse.  See Susan A. Bandes, Remorse and Criminal Justice, 8 Emotion Review 14-19 (Jan. 2016) (first published on October 23, 2015).