Archive for October, 2016

Tinkering for Tightening

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

In the last few terms of the United States Supreme Court, there were records set both for fewest opinions in modern times and most number of words ever. While lawyers are verbose, judges can have the same affliction. A recent posting by the lawprose blog had great tips for lawyers that are just as useful for judges:

Most professional writing (the type you see in major newsmagazines) is tight; most legal writing isn’t. You want a tip on tightening? After you have a fairly polished draft, look at the last line, half-line, or quarter-line of every paragraph. Play with the paragraph to try to shorten it by one line. It’s a little editorial game you can play, and it works. An example:

A few cases tend to suggest that if a plaintiff’s own inexcusable neglect was responsible for the failure to name the correct party, an amendment substituting the proper party will not be allowed, notwithstanding that adequate notice has been given to the new party. Although this factor is germane to the question of permitting an amendment, it is more closely related to the exercise by the trial court of discretion under Rule 15(a) about whether to allow the change than it is to the satisfaction of the requirements of notice pursuant to Rule 15(c).

So we try to save half a line with a little tinkering:

A few cases tend to [Some cases] suggest that if a plaintiff’s own inexcusable neglect was responsible for [caused] the failure to name the correct party, an amendment substituting the proper party will not be allowed, notwithstanding that adequate notice has been given [despite adequate notice] to the new party. Although this factor is germane to the question of permitting an amendment, it is more closely related to the exercise by the trial court of discretion [trial court’s discretion] under Rule 15(a) about whether to allow the change than it is to the satisfaction of the requirements of notice pursuant to Rule 15(c) [Rule 15(c)’s notice requirements].

The changes here: 5 words to 2; 3 words to 1; 7 words to 3; 5 words to 3; and 5 words to 3. Let’s see the result…


Keep reading here



posted by Judge_Burke @ 14:30 PM
October 14, 2016

Our nation is divided on the issue of marijuana. Governing Magazine reports that the wife of a candidate for Governor will be charged with possession of marijuana because she uses it to alleviate pain from chronic arthritis. Arizona voters will vote in November whether to fully legalize marijuana as have a few other states. But make no mistake, there are those who see decriminalization as a very bad policy choice.

A study released Wednesday by the American Civil Liberties Union (ACLU) and Human Rights Watch (HRW) (advocacy websites) found that arrests for possessing marijuana exceeded arrests for violent crimes. Law enforcement agencies made roughly 13.6 percent more arrests for possession of marijuana, reportedly for personal use, than arrests for violent crimes. Here is part of the report’s summary introduction:

Every 25 seconds in the United States, someone is arrested for the simple act of possessing drugs for their personal use, just as Neal and Nicole were. Around the country, police make more arrests for drug possession than for any other crime. More than one of every nine arrests by state law enforcement is for drug possession, amounting to more than 1.25 million arrests each year. And despite officials’ claims that drug laws are meant to curb drug sales, four times as many people are arrested for possessing drugs as are arrested for selling them.

As a result of these arrests, on any given day at least 137,000 men and women are behind bars in the United States for drug possession, some 48,000 of them in state prisons and 89,000 in jails, most of the latter in pretrial detention. Each day, tens of thousands more are convicted, cycle through jails and prisons, and spend extended periods on probation and parole, often burdened with crippling debt from court-imposed fines and fees. Their criminal records lock them out of jobs, housing, education, welfare assistance, voting, and much more, and subject them to discrimination and stigma. The cost to them and to their families and communities, as well as to the taxpayer, is devastating. Those impacted are disproportionately communities of color and the poor.

This report lays bare the human costs of criminalizing personal drug use and possession in the US, focusing on four states: Texas, Louisiana, Florida, and New York. Drawing from over 365 interviews with people arrested and prosecuted for their drug use, attorneys, officials, activists, and family members, and extensive new analysis of national and state data, the report shows how criminalizing drug possession has caused dramatic and unnecessary harms in these states and around the country, both for individuals and for communities that are subject to discriminatory enforcement.


Could Atticus Finch Get Elected?

posted by Judge_Burke @ 15:33 PM
October 13, 2016

Representing the unpopular client is not easy, but a fair system of justice requires lawyers willing to take on difficult and emotionally charged cases.

Atticus Finch, the fictional lawyer in “To Kill a Mockingbird,” passionately believed in justice. He didn’t like criminal law, yet he accepted the appointment to represent Tom Robinson, an African-American man charged with raping a young white girl. The story, set in Maycomb County, Alabama, in the early 1930s, portrays a lawyer who felt that the justice system should be colorblind. Had Atticus Finch run for office after the trial, could he have been elected?

A web video from the Republican National Committee darkly portrays Democratic vice presidential nominee Sen. Tim Kaine as having “protected the worst kinds of people” on death row as a defense attorney. The video features Lem Tuggle, whom Kaine defended on rape and murder charges. Tuggle was eventually executed. The video also focuses on Richard Lee Whitley, who was executed despite what the Richmond Times-Dispatch described as “about 1,000 hours of largely free legal work” on Kaine’s part. We admire Atticus Finch, so why is it that Kaine’s defense of death penalty defendants is treated differently?

A long tradition in U.S. system

Representing unpopular clients has a long tradition in the American legal system. John Adams represented British soldiers accused of murder in the 1770 Boston Massacre. Before agreeing to represent the British soldiers (who were that era’s terrorists), Adams worried about his reputation. Yet, he said of his experience, “The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.” John Adams was elected president of the United States. In an age of 24-hour cable, Willie Horton ads, and internet-driven misinformation, could Adams be elected president today?


For the complete commentary, see MinnPost.


When is Deference to Police Expertise Abdication of Judicial Responsibility?

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

Deference to police expertise happens, but as one trial court judge from New York wrote, 

Too much deference to police “expertise” is an abdication of judicial responsibility, particularly where, as here, the police officer’s own testimony shows that his expertise focuses to a disproportionate extent on Blacks and Hispanics. By the Sergeant’s own testimony, 65% to 75% of the people stopped are Black and Hispanic. They may comprise an even higher percentage of those actually arrested (and indicted). Surely this “pattern of strikes” might give rise to an inference of discrimination which requires rebuttal. Cf., People v. Jenkins, 75 N.Y.2d 550, 555 N.Y.S.2d 10, 554 N.E.2d 47 (discriminatory pattern of peremptory challenges). But the PAPD does not keep records which might rebut this inference. Thus, to the extent that the courts do not analyze the components of the so-called expertise, we may be approving of actions based on racial or ethnic bias. Cf., People v. George T., 39 N.Y.2d 1028, 387 N.Y.S.2d 247, 355 N.E.2d 302 (ethnic identity of youths on Madison Avenue created the basis of the officer’s suspicion). Minorities did not fight their way up from the back of the bus just to be routinely stopped and interrogated on their way through the terminal.                            


Anna Lvovsky has posted The Judicial Presumption of Police Expertise (Harvard Law Review, Vol. 130, Forthcoming) on SSRN.

Here is the abstract:

This Article examines the unrecognized origins and scope of the judicial presumption of police expertise: the notion that trained officers develop insight into crime sufficiently rarefied and reliable to justify deference from courts. Police expertise has been widely criticized in Fourth Amendment analysis. Yet the Fourth Amendment is in fact part of a much broader constellation of deference, one that begins outside criminal procedure and continues past it. Drawing on judicial opinions, appellate records, trial transcripts, police periodicals, and other archival materials, this Article argues that courts in the mid-twentieth century invoked police expertise to expand police authority in multiple areas of the law. They welcomed policemen as expert witnesses on criminal habits; they deferred to police insights in evaluating arrests and authorizing investigatory stops; and they even credited police knowledge in upholding criminal laws challenged for vagueness, offering the officer’s trained judgment as a check against the risk of arbitrary enforcement.

Complicating traditional accounts of judicial deference as a largely instrumental phenomenon, this Article argues that courts in the mid-century in fact came to reappraise police work as producing rare and reliable “expert” knowledge. And it identifies at least one explanation for that shift in the folds and interconnections between courts’ diverse encounters with the police in these years. From trials to suppression hearings to professional activities outside the courtroom, judges experienced multiple sites of unique exposure to the rhetoric and evidence of the police’s expert claims. These encounters primed judges to embrace police expertise not only through their deliberative doctrinal content, but also their many structural biases toward police knowledge. This development poses important and troubling consequences for the criminal justice system, exacerbating critiques of police judgment in the Fourth Amendment context and raising novel concerns about the limits of judicial reasoning about police practices.


Enforcing the Right to Counsel

posted by Judge_Burke @ 14:30 PM
October 10, 2016

Public defenders in Pennsylvania, on behalf of their clients, can sue counties that are under-funding indigent defense budgets, the state’s supreme court has declared.

From the Associated Press:

Pennsylvania’s highest court will allow criminal defendants to sue a county in an effort to prove a public defender’s office isn’t adequately funded to provide the constitutional right to an attorney, a victory for civil rights lawyers.

The state Supreme Court’s unanimous ruling late Wednesday overturned a lower appellate court decision.

Mary Catherine Roper, the deputy legal director of the American Civil Liberties Union of Pennsylvania, said Thursday that, while the ruling is a victory, it is not a final victory for the plaintiffs — two criminal defendants — in the lawsuit against Luzerne County in northeastern Pennsylvania.


Read the full opinion here


An Interesting Case Before the United States Supreme Court

posted by Judge_Burke @ 14:45 PM
October 7, 2016
  • Nelson v. ColoradoWhether Colorado’s requirement that defendants must prove their innocence by clear and convincing evidence to get their money back, after reversal of conviction of a crime entailing various monetary penalties, is consistent with due process.

Our Trust of the Police

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

Rachel Moran (University of Denver Sturm College of Law) has posted In Police We Trust (Villanova Law Review, Forthcoming) on SSRN.

Here is the abstract:

Despite a recent slew of highly-publicized incidents of police brutality, white Americans are still, for the most part, highly supportive and trusting of law enforcement officers. And United States laws — mostly drafted, enacted, and interpreted by white people — reflect that trust. The American legal system, from United States Supreme Court case law to municipal ordinances, is extraordinarily deferential to police officers’ actions and decisions, reflecting an oft-expressed belief that police officers are simply doing the best they can in a difficult job. The experience in many communities, particularly those primarily comprised of people of color, is very different — many people of color report that police officers routinely mistreat them, and there is much evidence to support these complaints. But our ingrained system of deference makes it far too difficult to hold police officers and departments accountable for those abuses. 

This Article explores the history of deference afforded to police officers in the United States, and tracks the change from a country founded by people highly suspicious of law enforcement authority, to one with a legal system employing knee-jerk deference to police officers’ decisions and actions. In so doing, it explores why so many white people — who have rarely been the target of police misconduct — still place such trust in law enforcement, while people of color, who have endured decades of law enforcement suspicion, often do not.

Although the law affords deference to police officers in many contexts, this piece analyzes the problems with deference primarily through the lens of police misconduct claims. Specifically, when a citizen complains that a police officer has mistreated her, that complaint is supposed to be thoroughly investigated and, if found to be true, should result in meaningful consequences for the offending officer. In reality, most complaint review systems are so deferential that officers are very rarely held accountable in any significant way for their misconduct. The result is a system that has demoralized communities of color and dangerously eroded the legitimacy of law enforcement in the eyes of many people of color. After providing extensive evidence regarding the flaws in our current systems of review, the Article closes with a series of suggested reforms for review of misconduct complaints.


A Strategy to Reduce Wrongful Convictions

posted by Judge_Burke @ 14:30 PM
October 6, 2016

The Downstream Consequences of Misdemeanor Pretrial Detention

Paul S. Heaton 

University of Pennsylvania Law School

Sandra G. Mayson 

University of Pennsylvania Law School

Megan Stevenson 

University of Pennsylvania Law School

July 14, 2016

Stanford Law Review, Vol. 69, 2017, Forthcoming 
U of Penn, Inst for Law & Econ Research Paper No. 16-18 


In misdemeanor cases, pretrial detention poses a particular problem because it may induce otherwise innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication. While practitioners have long recognized this possibility, empirical evidence on the downstream impacts of pretrial detention on misdemeanor defendants and their cases remains limited. This Article uses detailed data on hundreds of thousands of misdemeanor cases resolved in Harris County, Texas — the third largest county in the U.S. — to measure the effects of pretrial detention on case outcomes and future crime. We find that detained defendants are 25% more likely than similarly situated releases to plead guilty, 43% more likely to be sentenced to jail, and receive jail sentences that are more than twice as long on average. Furthermore, those detained pretrial are more likely to commit future crime, suggesting that detention may have a criminogenic effect. These differences persist even after fully controlling for the initial bail amount as well as detailed offense, demographic, and criminal history characteristics. Use of more limited sets of controls, as in prior research, overstates the adverse impacts of detention. A quasi-experimental analysis based upon case timing confirms that these differences likely reflect the causal effect of detention. These results raise important constitutional questions, and suggest that Harris County could save millions of dollars a year, increase public safety, and reduce wrongful convictions with better pretrial release policy.


Protest is Different

posted by Judge_Burke @ 14:30 PM
October 5, 2016

If you are a trial court judge, there is some possibility that at one or more points in your career you will be confronted with issues relating to protests and/or civil disobedience. It could come in the form of a pipeline protest, a civil rights protest, an abortion clinic protest — or it could be a simple act of vandalism.

Jessica L. West (Vermont Law School) has posted Protest Is Different (University of Richmond Law Review, Vol. 50, No. 2, Pp. 737-81, 2016) on SSRN.

Here is the abstract:

Acts of civil disobedience, long used to provoke social change, ignite a tense clash between foundational rule of law principles and deep-seated beliefs in the right to air grievances. This article explores these tensions and, relying upon evolving concepts of capital jurisprudence, argues in favor of a new framework for evaluating the criminal culpability of civilly disobedient protesters. United States Supreme Court jurisprudence has repeatedly recognized that capital cases are distinct from non-capital proceedings. One rationale underlying the acknowledgement that “death is different” is that the complexity of the moral determination inherent in a sentence of death requires a judgment of community condemnation. This assessment of condemnation must be made individually and by a jury; it cannot be prescribed by rule of law or imposed by a judge. Though once a jurisprudential silo, the analytical influence of death penalty law is expanding and, while the difference between a sentence of death and one of imprisonment is unmistakable, distinctions between and among criminal offenses do not begin and end with the punishment. Acts of civil disobedience, though criminal, are unlike ordinary criminal acts. The competing values underlying acts of civil disobedience are similar in depth and complexity to the values underlying the individualization and community conscience requirements in capital proceedings. This article proposes that in criminal prosecutions of protesters, society, represented by the jury, should individually evaluate whether an act of civil disobedience offends collective values sufficiently to warrant the community condemnation implicit in a criminal conviction.