Archive for December, 2016

The Emerging Law of Body Cameras

posted by Judge_Burke @ 15:31 PM
December 30, 2016

Courts throughout the nation are now dealing with the emerging law of body cameras. What about the inevitable issue of discovery? How do we deal with incompatible devices? What if the body camera does not work, malfunctions, or intentionally is turned off (or not turned on)?

In a recent case, the officer testified that his body armor accidentally muted the microphone on the body recorder on his belt when he bent over. Should the court respond by suppressing the evidence, dismissing the charge, or doing something in between? At least one court has held that this was not a due process violation, as there was an exigency for a community caretaking function entry based on a loud argument inside and the officer being invited in. United States v. Givens, 2016 U.S. Dist. LEXIS 167433 (W.D. Mo. Nov. 18, 2016), adopted, 2016 U.S. Dist. LEXIS 167140 (W.D. Mo. Dec. 5, 2016):

Defendant argues that it was a violation of Department of Justice and Kansas City Police Department protocol not to use the body recorder during the entire incident (referring to the 10 to 12 minutes that are missing on the recording) and this violates his Fifth Amendment rights.

Violation of Department of Justice or Kansas City Police Department protocol does not create any rights on behalf of a criminal defendant. See United States v. Kubini, 19 F. Supp. 3d 579, 619 (W.D. Pa. 2014) (provisions in U.S. Attorney’s Manual do not create enforceable rights); United States v. Gomez, 237 F.3d 238, n.1 (3rd Cir. 2000) (provisions of U.S. Attorney’s Manual do not create any judicially enforceable rights); United States v. Jarrett, 447 F.3d 520, 529 (7th Cir. 2006) (case law, not internal handbooks, provides the guidance for whether rights have been violated); United States v. Gross, 41 F.Supp.2d 1096, 1098 (C.D. Cal. 1999) aff’d 40 Fed. Appx. 397 (9th Cir. 2002) (US Attorney’s Manual did not create enforceable rights).

Officer Lightner testified that his body microphone was accidentally muted when his vest pushed the mute button as he was getting out of his patrol car. This did not violate any of defendant’s rights.

. . .

Here, the uncontroverted evidence is that the officers were called to the residence on a disturbance; when they arrived they heard loud arguing coming from within the residence; when Sonya Wiggins saw them approaching the residence, she began waving for them to come in; Ms. Wiggins yelled that someone had a gun; when the officers entered the residence, they heard a metal clinking sound which they believed to be the sound of a gun being dropped into a metal sink; Ms. Wiggins was yelling that he had a gun and was trying to hide it in the sink; there were other people present besides defendant and Ms. Wiggins; and the officers did not yet know the circumstances of the disturbance which prompted the call for help to the police other than hearing loud arguing and a female screaming that a male had a gun. I find that a reasonable officer would have believed that an emergency was at hand. Therefore, the entry into the residence was lawful, and the search of the sink for the gun was lawful pursuant to the community caretaking function of the police.


What Should Be the Authority of Non-Lawyer Judges

posted by Judge_Burke @ 15:35 PM
December 29, 2016

There was a time when many states had non-lawyer judges. Our nation had a need for someone to hear minor cases and there simply were not enough lawyers or lawyers willing to do that kind of work. Non-lawyer judges often hear small claims matters. They perform marriages. They hear traffic cases and often hear minor criminal cases.

There are over 6,000 Justices of the Peace and Magistrate Judges in the country. States with Justices of the Peace include Arizona, Delaware, Louisiana, Mississippi, Montana, Nevada, New York, Oregon, Texas, and Utah. States with Magistrate judges are Alaska, Delaware, Georgia, Idaho, Iowa, Kansas, North Carolina, Oregon, Rhode Island, South Carolina, Vermont, West Virginia, and Wyoming. In 1974,  a unanimous California Supreme Court held that it was a violation of the federal right to due process under the Fourteenth Amendment to allow a non-lawyer justice to preside over a case that could result in jail time. Gordon v. Justice Court, 525 P2nd 72 (1974). 

How about the rest of the nation? Should non-lawyer judges be able to jail? The law now permits lay judges to convict defendants of jailable offenses in misdemeanor courts so long as the defendants have an automatic right to a new trial in front of a judge who is a lawyer. But, the Supreme Court is considering a Montana case that raises the question of what happens when that automatic “do-over” trial isn’t guaranteed.



Thinking About Tort Reform: Caps on Damages

posted by Judge_Burke @ 15:35 PM
December 28, 2016

In recent years, many state legislatures have passed caps on damages. The language used  is “tort reform,” but with the reform comes controversy. Some states have held damages on caps are constitutional. See, for example, the decision of the Alaska Supreme Court in Evans ex rel Kutch v. State, 56 P3rd 1046 (2002). Others states, such as Wisconsin, have held caps violate equal protection. See Ferdon ex rel Petrecelli v. Wisconsin Patients Com. Fund. 701 NW2nd 440 (2005).  The Supreme Court of Ohio has joined those states finding caps are constitutional in a brutal case involving a girl who was raped by her minister. The Columbus Dispatch


Related: Here’s the decision:  OHIO SUPREME COURT



Brady v. Maryland is nearly 50 years old. There are very few lawyers who are practicing today who have not spent their entire career practicing under the simple rule that prosecutors need to disclose to the defense exculpatory evidence. Yet violations of the rule are far too common. Perhaps that will stop. The United States Supreme Court accepted two cases that raise Brady violation issues.

Turner v. United States and Overton v. United States, arise out of the brutal 1984 murder of Catherine Fuller, a District of Columbia mother. The petitioners in these cases are a group of D.C. men who were convicted of the crime, based in large part on testimony from alleged eyewitnesses. Decades later, a reporter learned that defense attorneys had not received a statement suggesting that someone else had committed the crime; additional discovery then revealed that prosecutors had failed to turn over other evidence that could have aided the defendants. The men sought to vacate their convictions, but were unsuccessful in the lower courts.

Overton had asked the court to weigh in on the standard that the lower court used to evaluate his claim that prosecutors had not complied with their obligations under Brady v. Maryland, which requires the government to turn over information that could exonerate the defendant. Turner and his co-defendants had asked the court to consider whether, when determining the significance of suppressed evidence, courts can consider information that comes to light after trial. The Supreme  Court announced that it would review a more straightforward question in both cases:  whether the men’s convictions must be set aside under Brady.


The Fractured Right to Counsel

posted by Judge_Burke @ 15:30 PM
December 23, 2016

If you cannot afford an attorney, one will be provided for you.

Fifty years after a landmark Supreme Court decision established that children have a right to a lawyer in juvenile court, this is a “right” in name only, argue two Justice Department attorneys. Too often children waive their right to a lawyer because none is readily available, because to wait means additional court dates, and “sometimes just because they wanted to go home.”

The Washington Post


Should a Judge Issue a Parenting Time Order for a Dog

posted by Judge_Burke @ 15:30 PM
December 22, 2016

Dogs are not children and most jurisdictions hold dogs are property to be divided up in the case of divorce. “Dogs are wonderful creatures,” read the first line of a ruling from a Canadian judge.

Over the next paragraph, the judge continued singing the praises of man’s best friend:  Dogs are often highly intelligent, he wrote. Sensitive. Active. Constant and faithful companions.“Many dogs are treated as members of the family with whom they live,” the judge noted. But, none of that matters when it comes to the court of law, concluded Justice Richard Danyliuk of the Court of Queen’s Bench for Saskatchewan. At least not in his court of law.

How much is a pet dog worth? A court will soon decide. “After all is said and done, a dog is a dog,” Judge Danyliuk wrote in an August ruling that was recently reported by CBC News. “At law it is property, a domesticated animal that is owned. At law it enjoys no familial rights.” Judge Danyliuk would spend 15 more pages outlining why — in this case of a divorcing couple arguing over what would become of their pets — the court could not treat the dogs in question as “children.

”The case landed in court after the wife argued that she should keep their three dogs — 13-year-old Quill, 9-year-old Kenya and 2-year-old Willow — while allowing for visitation rights of an hour-and-a-half at a time to her soon-to-be ex-husband. Judge Danyliuk noted that the woman’s request was “more akin to an interim custody disposition than it is to a property order” and that he could not comply, because for legal purposes, dogs must be treated as property.

But, is there harm in judges at least attempting to settle dog conflict in a divorce? In a case a few years ago there was bitter conflict about who would get custody of the dog. The Minnesota factors about child custody are totally meaningless when it comes to placing the dog. There is the King Solemn approach, “The dog is property! If  you cannot agree I will order the dog sold and divide the cash.” It might work, but it is a bit brutal. The market for “used” dogs is often pretty thin. There is the, “We Will Have a Dog  Custody Trial” approach. Each party prior to trial is ordered to the local animal humane society to view the homeless animals (who knows…one party may fall in love with a kitten). The dog is ordered to attend the trial and the parties are told, “Your lawyer does not have to attend” (lawyers cost money), but each party will be able to demonstrate in court the dog’s wishes by showing just how well the dog responds to their commands. It sounds ridiculous…and it works. The parties inevitably settle rather than risk never seeing their pet.  


The Presumption of Innocence

posted by Judge_Burke @ 15:30 PM
December 20, 2016

Nicholas Scurich and Richard S. John (University of California, Irvine and University of Southern California) have posted Jurors’ Presumption of Innocence (Journal of Legal Studies, Forthcoming) on SSRN.

Here is the abstract:

The presumption of innocence explicitly forbids jurors from using official suspicion or indictment as evidence of guilt in a criminal trial. A behavioral experiment tested whether jurors follow this prescription. It revealed that, compared to when an individual had been merely named, jurors thought the individual was significantly more likely to be guilty after a detective referred the case to the district attorney, and when the individual was formally charged and thus a criminal defendant. A judicial instruction to presume innocence reduced jurors’ beliefs about the defendant’s guilt. Regression analyses indicated that jurors’ priors predicted their posteriors, and further that their priors were predictive of verdicts even after accounting for their posteriors. The findings suggest that jurors make different assumptions about the guilt of a criminal defendant prior to the introduction of evidence, and that these assumptions influence their overall evaluation of the case as well as their verdict.


What Does the Public Think of Courts

posted by Judge_Burke @ 21:44 PM
December 19, 2016

For several years, the National Center for State Courts has contracted with GBA Strategies to conduct a comprehensive public opinion survey of 1,000 registered voters.

This year, the survey was conducted by telephone between November 14-17, 2016. For those who care about courts, the National Center’s survey is a must read. Survey findings are considered accurate within  +/- 3.1 percent, 19 times out of 20.

Key findings of the survey include:

  • There are signs of positive momentum in public trust. This comes at a time when trust in government in general is fractured.
  • There is a glaring lack of understanding about court funding which is reflective of misconceptions about government spending generally.
  • The public seems willing to support reform of the practice of imposing fines and fees on poor defendants.
  • The public believes that the ethnicity of a judge may impact fairness. Prior polling by other organizations has found that to a moderate or significant extent the public believes judges make decisions based upon their own personal or political views.

For more detail on the survey findings, download the presentation slides.

The NCSC also surveyed public opinion in previous years, and has archived the 2015 and 2014 survey results.



News from The State Justice Institute

posted by Judge_Burke @ 15:30 PM
December 16, 2016

The State Justice Institute recently issued its November e-newsletter. You can check it out here

This month’s newsletter includes information about SJI’s first quarter grant awards, and it highlights recent reports on the landscape of civil litigation, the use of risk and needs assessment at sentencing, and a weighted caseload study for judges and staff in the Vermont trial courts.    


An Acrimonious Divorce Heads to Federal Court

posted by Judge_Burke @ 16:22 PM
December 15, 2016

Years ago, there was a conference attended by state and federal court leaders, convened by Chief Justice William Rehnquist. Among the topics presented was a plea from federal judges to figure out how to send diversity cases to state courts. “These are, after all, essential state claims,” the proponents argued. And so I made a joke:  ”I think it is a great idea! We in the state courts can take your diversity cases and you take the divorces.” The Chief Justice of a Midwestern state very much appreciated my humor, but few if any of the federal judges appreciated it.

And so we now move to the decision this week by the Seventh Circuit Court of Appeals. Barry Epstein sued his estranged wife, Paula, alleging that she violated the federal Wiretapping and Electronic Surveillance Act by intercepting his emails. Mr. Epstein’s lawsuit arose from the couple’s acrimonious divorce. Paula accused Barry of serial infidelity, so in discovery Barry asked her for all documents related to that accusation. Paula and her lawyer, Jay Frank, complied and produced copies of incriminating email correspondence between Barry and several women. According to the Seventh Circuit opinion:

On the face of it, the messages seem to have been forwarded from Barry’s email accounts to Paula’s. This came as a shock to Barry; he inferred from this discovery response that Paula must have secretly placed a “rule” on his email accounts automatically forwarding his messages to her. With the divorce action still ongoing, Barry filed this federal suit against Paula and Frank pursuant to 18 U.S.C.§ 2520,which authorizes civil actions against persons who violate the Wiretap Act. The complaint alleges that Paula unlawfully intercepted, disclosed, and used Barry’s emails in violation of the Act, and that Frank violated the Act by unlawfully disclosing and using the emails in the divorce proceeding. Copies of some of the intercepted emails were attached to the complaint as exhibits.


Apparently fearing that this was the beginning of Judge Kevin Burke’s attempt to move all divorce cases from state court to federal court in exchange for the diversity cases, the Federal District Court dismissed the case. This week, a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit – in an opinion written by Circuit Judge Diane S. Sykes – reinstated Barry’s Wiretap Act claim against his estranged wife.

While the opinion may strike fear in the hearts of family court lawyers, there is some solace:  the Court of Appeals affirmed the dismissal of the claim against Paul’s family court lawyer, Jay Frank. Oh yes, it appears that Paula and Barry are still litigating their divorce in Cook County’s court.