Archive for January, 2017

Over 50 years ago the United States Supreme Court pronounced that every defendant in a criminal case has the right to counsel. At the time, there was little discussion about who was going to pay for this and insure it got implemented. Years later, when Strickland v. Washington was decided, there were critics who said that the standard of what constitutes ineffective assistance eviscerated the right to counsel; the critics claimed that surely Gideon stood for more than counsel in name only.

Fast forward to crushing public defender caseloads and there is where the criminal justice system sits. But, perhaps that may change this term. The United States Supreme Court has agreed to hear three cases:

WEAVER, KENTEL M. V. MASSACHUSETTSWhether a defendant asserting ineffective assistance that results in a structural error must, in addition to demonstrating deficient performance, show that he was prejudiced by counsel’s ineffectiveness, as held by four circuits and five state courts of last resort; or whether prejudice is presumed in such cases, as held by four other circuits and two state high courts.

McWILLIAMS, JAMES E. V. DUNN, COMM’R, AL DOC, ET AL.:  Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution. Finally, 

DAVILA, ERICK D. V. DAVIS, DIR., TX DCJ : Whether the rule established in Martinez v. Ryan and Trevino v. Thaler, that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims.


Is Sorry Enough?

posted by Judge_Burke @ 22:17 PM
January 25, 2017

I recently finished a medical malpractice case. It was well tried. But rarely do judges really know about the events that led up to the decision to sue. Sometimes patients with bad outcomes do not sue, and sometimes they do. Vanderbilt University Working Paper series includes a study: “Sorry Is Never Enough: The Effect of State Apology Laws on Medical Malpractice Liability Risk.“ The authors are Benjamin J. McMichaela, R. Lawrence Van Hornb, & W. Kip Viscusic.

Here’s how it opens:

The traditional response to limit medical malpractice costs includes liability reforms such as caps on noneconomic damages. Another reform option, which has become popular among states over the last 15 years, is enacting laws that facilitate greater communication between patients and their providers (see Ho and Liu 2011a; 2011b). Because patients report that, in addition to seeking compensation, they sue their physicians out of anger (Vincent et al. 1994), apologies from their physicians could potentially assuage this anger and prevent some marginal suits from being filed. However, physicians are often advised to avoid apologizing to patients in order to avoid providing those patients with evidence that could be used in a lawsuit (Lamb et al. 2003).

State apology laws, which states enact to address this paradox faced by physicians, are reforms to state rules of evidence and exclude from trials statements of apology, condolence, or sympathy made by healthcare providers (sometimes only physicians) to patients. In the absence of an apology law, expressions of sympathy may generate a successful medical malpractice claim. In the presence of an apology law, physicians can more freely express sympathy without those statements being admissible in future lawsuits. Reflecting the growing popularity of apologies and communication as a malpractice mitigation strategy, the Agency for Healthcare Research and Quality (AHRQ) has developed the Communication and Optimal Resolution (CANDOR) process, which is based in part on facilitating apologies by physicians to patients. And many healthcare facilities across the country have developed specific apology and disclosure programs (see, e.g., Adams et al. 2014).


Another excerpt:

For physicians who do not regularly perform surgery, apology laws increase the probability of facing a lawsuit and increase the average payment made to resolve a claim. For surgeons, apology laws do not have a substantial effect on the probability of facing a claim or the average payment made to resolve a claim. Overall, the evidence suggests that apology laws do not effectively limit medical malpractice liability risk.


The article closes:

In general, apology laws increase the probability of malpractice lawsuits for non-surgeons. While these laws reduce non-suit claims brought against non-surgeons, the evidence suggests that injured patients simply substitute lawsuits for non-suit claims. Additionally, apology laws increase indemnity payments for non-surgeons and, in doing so, narrow the gap between the average payment made by surgeons and non-surgeons. Overall, the results suggest that, unless a physician routinely performs surgery, her risk of facing a lawsuit increases and the average payment she makes as part of a claim increases. Surgeons do not see similar increases, but neither do they see decreases in the probability or severity of malpractice claims. In other words, the evidence reported here suggests that apology laws do not, in general, attenuate medical malpractice liability risk.


The study is available online here.



Victims’ Rights

posted by Judge_Burke @ 15:33 PM
January 20, 2017

There has been a dramatic change during the last couple of decades in the attitude of courts toward victim rights in the United States. Understanding where the United States has come from and where it might go is important for judges in the United States. But it is equally important for Canadian judges. Marie Manikis (McGill Faculty of Law) has posted Imagining the Future of Victims’ Rights in Canada: A Comparative Perspective ((2015) 13(1) Ohio State Journal of Criminal Law 163-186) on SSRN.

Here is the abstract:

The role of victims of crime in common law jurisdictions has significantly changed over the last few decades from that of simple bystanders and witnesses for the Crown – if needed – to more present and active participants in the criminal justice process. Despite this general trend towards increased participation, victim-related policies have evolved very differently in the different common law jurisdictions. The following piece examines the evolution of victims’ rights in Canada and compares their development to those within other jurisdictions,particularly in England, Wales, and the United States. It argues that the evolution of several victims’ rights has been incremental, generally slower and more limited in Canada as compared to other common law jurisdictions, namely England and Wales and the United States. Hence, it highlights the limitations of Canadian initiatives with regards to victims’ rights and brings forward some of the different initiatives and their implementation in these other jurisdictions as possible measures to consider in shaping the future of victims’ rights in Canada.


Justice Antonin Scalia & Canadian Spies

posted by Judge_Burke @ 19:49 PM
January 17, 2017

The untold story of how Antonin Scalia’s ‘gift to Canada’ shaped our spy services

As Donald Trump mulls a Supreme Court successor to the conservative firebrand judge, Sean Fine examines how a young, decidedly evenhanded Scalia helped the Canadian government in the 1970s to get a grip on domestic spy agencies that had begun to spin out of control


Sean Fine has this article in The Toronto Globe and Mail:

It was the 1970s – a time when this country was reeling from revelations about out-of-control spy services. The RCMP had burned down a barn in Quebec to prevent a meeting between Quebec separatists and U.S. radicals, broken into journalists’ offices, infiltrated legitimate protest groups, stolen political-party membership lists. In 1977, the Pierre Trudeau government had set up the Royal Commission into Certain Activities of the RCMP, to be led by Justice David McDonald of Alberta. The commission offered Mr. Scalia a contract to write a report describing how the United States had confronted the notorious excesses of its own intelligence agencies, including the attempt a decade earlier to push civil-rights leader Martin Luther King Jr. to take his own life by sending him a threatening letter and an audiotape of extramarital sexual activities. 

And Mr. Scalia, then in his early 40s, accepted – for the respectable, but not princely, sum of $7,500 U.S. (then worth $8,750 Canadian), based on 30 days’ work at $250 a day. The job wound up being much more onerous than he had expected: He was more than a year late delivering his report, though still in plenty of time to be useful. 

The report’s scrupulously impartial (for the most part) author was not the larger-than-life figure he would one day become: a man obsessed with his own fame, and prone to scandalizing the court with his ridicule of its liberal members. (“What really astounds,” he wrote, dissenting from the 5-to-4 ruling legalizing gay marriage two years ago, “is the hubris reflected in today’s judicial Putsch.”) Here was the dispassionate, sober jurist of unmistakable power – the one who might have been. That’s the view of one of his biographers, Bruce Allen Murphy, a law professor at Lafayette College in Pennsylvania, who read the report at The Globe and Mail’s request.


Read more here.


Batson is Alive and Well in New York State

posted by Judge_Burke @ 15:49 PM
January 13, 2017

The New York Law Journal reports:

Excluding a juror based on skin tone, like race, is prohibited under the New York Constitution, the state’s highest court has ruled [log-in required] in a case hailed by civil rights groups and affinity bar associations as an important decision.

The Court of Appeals decided unanimously that the way the jury was selected for a robbery trial in Queens Supreme Court violated the protections preventing the exclusion of jurors solely based on their race, color, creed or religion, as declared by the U.S. Supreme Court in Batson v. Kentucky , 476 US 79 (1986).

The court said in its Dec. 22 ruling that it was the first time it has explicitly stated that “race” and “color” are not the same in regards to juror bias purposes, and that a person’s dark skin tone could be a basis of cognizable discrimination under New York’s constitution and civil rights statutes.

“Defendant argues that ‘contrary to the people’s position, dark skin color is a cognizable class and, indeed, must be one unless the established protections of Batson are to be eviscerated by allowing challenges based on skin color to serve as a proxy for those based on race,’” Judge Sheila Abdus-Salaam wrote in People v. Bridgeforth, 207. “We agree with defendant.”

The case involved what the court found was the illegal exclusion of a dark-skinned woman who said she was born in India from the jury in the Bridgeforth case in 2012.

The court said Queens prosecutors gave the necessary race-neutral reasons for excluding four African-American jurors from the jury, but that the prosecutor could not remember why he also struck the Indian-born woman. The trial court did not pursue the matter further and improperly allowed the prosecutor to use a peremptory challenge to exclude the Indian juror.

Appealing his conviction, defendant Joseph Bridgeforth argued that the woman, because of her dark skin, was part of a constitutionally cognizable class that is protected under the equal protection clause, and that the prosecution’s striking of her was illegal under Batson.

The Court of Appeals reversed Bridgeforth’s conviction and ordered a new trial.

The Korematsu Center for Law and Equality at the Seattle University School of Law, which filed an amicus brief on behalf of 20 civil rights organizations and a group of 32 law school professors in the case, praised the decision.


Incompetent Defendants and Medication

posted by Judge_Burke @ 18:22 PM
January 12, 2017

This is not an issue that many judges confront, but when you do, it can be perplexing.  The law in your state (or province)  may differ, but understanding the issue is important.

Dorie Klein (St. Mary’s University School of Law) has posted The Costs of Delay: Incompetent Criminal Defendants, Involuntary Antipsychotic Medications, and the Question of Who Decides (University of Pennsylvania Journal of Law and Social Change, Vol. 16, 2013) on SSRN.

Here is the abstract:

Whether an incompetent pretrial detainee is entitled to a judicial hearing before he may be administered involuntary antipsychotic medication is a matter of contention. The question of the constitutionality, with regard to the Due Process clause, of involuntary medication to diminish a detainee’s dangerousness is one that arises at the intersection of two United States Supreme Court cases, Washington v. Harper and Sell v. United States.

In Harper, the Court ruled that a convicted prisoner is not entitled to a judicial hearing before he may be administered involuntary antipsychotic medications when the medications are necessary to diminish the prisoner’s dangerousness to himself or others. In Sell, the Court implied that an incompetent pretrial detainee is entitled to a judicial hearing, when the medications are necessary to render the detainee competent to stand trial. 

In either case, the decision whether to allow the government to administer involuntary antipsychotic medications should be made as quickly as possible, and for that reason, medical personnel should decide. Moreover, the Sell Court’s decision requiring a judicial hearing is ineffective in protecting those interests of detainees that the Court thought would be protected by a judicial hearing. Given the nature of antipsychotic medication, requiring a judicial hearing on the question of involuntary antipsychotic medications is unlikely to protect the detainee’s interest in a fair trial. Furthermore, the delay involved in the judicial process harms the detainee’s health and compromises the government’s interest in rendering the detainee competent to stand trial. Thus, mandating that only a judge may authorize involuntary antipsychotic medications costs both the detainee and the government, and benefits no one.


So, What Happens When There is a Failure to Knock & Announce?

posted by Judge_Burke @ 16:48 PM
January 10, 2017

A California Appeals Court has ruled that an officer’s failure to knock-and-announce (really, to wait long enough) before entry does not invoke the exclusionary rule under Michigan v. HudsonPeople v. Byers, 2016 Cal. App. LEXIS 1087 (4th Dist. Dec. 14, 2016):

The knock-notice requirement “is not easily applied.” (Hudson v. Michigan (2006) 547 U.S. 586, 589 (Hudson).) “[I]t is not easy to determine precisely what officers must do. How many seconds’ wait are too few? Our ‘reasonable wait time’ standard [citation], is necessarily vague.” (Id. at p. 590.) “[W]hat constituted a ‘reasonable wait time’ in a particular case, [citation] (or, for that matter, how many seconds the police in fact waited), or whether there was ‘reasonable suspicion’ of the sort that would invoke the Richards exceptions, is difficult for the trial court to determine and even more difficult for an appellate court to review.” (Hudson, at p. 595.)

In Hudson, the Supreme Court held that the exclusionary rule is not the appropriate remedy for a violation of the knock-notice requirement. (Hudson, supra, 547 U.S. at pp. 590, 599.) In part, this is because the exclusionary rule and the knock-notice requirement serve different purposes. The exclusionary rule protects against unlawful warrantless searches. (Id. at p. 593.) The knock-notice requirement, in contrast, seeks to prevent violence (due to an inhabitant being taken by surprise), property destruction (e.g., of a door), and loss of an occupant’s privacy and dignity (caused by an outsider’s sudden entry). (Id. at p. 594.) When officers have a search warrant, the knock-notice requirement is not intended to prevent “the government from seeing or taking evidence described in [the] warrant.” (Ibid.) Similarly, when a search is conducted pursuant to an absent co-tenant’s consent, the purposes of the knock-notice requirement (Duke, supra, 1 Cal.3d at p. 321) do not include preventing law enforcement from seeing or seizing evidence pursuant to the consent exception. Furthermore, the exclusionary rule is applicable only “‘where its deterrence benefits outweigh its “substantial societal costs . . . .”‘” (Hudson, at p. 591.) The costs of recognizing the exclusionary rule as a remedy for knock-notice violations would include the release of dangerous criminals into society, inordinate wait times before entry and consequent destruction of evidence, and a “constant flood of” litigation about hard-to-apply standards such as what is “a ‘reasonable wait time’” or whether officers had a “‘reasonable suspicion.’” (Id. at p. 595.) These substantial societal costs outweigh the knock-notice requirement’s minimal deterrence value (id. at p. 596), especially because an officer’s violation of the rule is deterred by the risk of civil suit and/or internal police discipline (id. at pp. 597-599).


In April 2016, the Connecticut Supreme Court was asked whether police should be permitted to use a drug-sniffing dog to roam the hallways of an apartment or condominium complex to search for contraband without getting a warrant from a judge.  Recently, they emphatically answered no.

With the opinion in State v. Dennis Kono, Connecticut now joins a small but growing group of jurisdictions that have extended the robust protections of privacy in the home to apartments. In so holding, the Court answered two important questions: should the police’s power to search a person’s residence be any different depending on whether the residence is an apartment, condominium or free-standing house; and should the search for contraband outweigh any Fourth Amendment rights we have as citizens? [Read more here.] 


To be sure, not all courts agree with the Connecticut Supreme Court, but the 7th Circuit Court of Appeals issued an opinion in an almost identical case, United States v. Whitaker. In that case, the issue was the same:  should warrantless use of a drug-sniffing dog in an apartment hallway be permitted under the Fourth Amendment. The court said no:

The use of a drug-sniffing dog here clearly invaded reasonable privacy expectations, as explained in Justice Kagan’s concurring opinion in Jardines. The police in Jardines could reasonably and lawfully walk up to the front door of the house in that case to knock on the door and ask to speak to the residents. The police were not entitled, however, to bring a “super-sensitive instrument” to detect objects and activities that they could not perceive without its help . . . The police could not stand on the front porch and look inside with binoculars or put a stethoscope to the door to listen. Similarly, they could not bring the super-sensitive dog to detect objects or activities inside the home.




Do You Need Magic Language?

posted by Judge_Burke @ 16:00 PM
January 6, 2017

There still exists a belief among certain lawyers that an expert’s opinion must be struck unless the expert recites magic language stating the opinion is to a reasonable degree of (insert field) probability. 

The topic arose again in Singletary v. Lee, a dental malpractice case. In that case, the jury found for the patient, but the district court granted judgment as a matter of law. On appeal, a panel of the Supreme Court reversed. “The district court determined that the dental expert’s testimony should have been stricken as inadmissible because the expert did not use the phrase ‘to a reasonable degree of medical probability’ in rendering his opinion on the standard of care following a tooth extraction.” In other words, the expert’s opinions were unreliable because the expert did not recite ritualistic language. This was incorrect. “While medical expert testimony regarding standard of care must be made to a reasonable degree of medical probability, there is no requirement that the specific phrase ‘reasonable degree of medical probability’ must be used by the expert in their testimony.” Proper evaluation of the expert’s testimony should have focused on “the nature, purpose, and certainty of the dental expert’s testimony rather than whether he uttered a specific phrase.”

The Nevada Supreme Court then reviewed the expert’s testimony. He “did not use speculative, hypothetical, or equivocal language.  Appellant’s expert provided a definitive opinion as to the standard of care….”  This was sufficiently certain to make the testimony reliable.

For the full opinion, go here (log-in required.)


The State of Indigent Defense…in New York

posted by Judge_Burke @ 16:06 PM
January 5, 2017

A case can be made that indigent defense is not in acceptable shape in many states. Surely New York would be one of those states where the delivery system has weaknesses. There has been litigation and, more recently, there was, in response to the litigation, a legislative attempt to respond to the litigation. But, The New York Law Journal reports:

Gov. Andrew Cuomo vetoed a bill  that would have provided for an eventual state takeover of indigent criminal legal defense costs now paid by New York City and counties outside the city.

The localities have come to shoulder most of the burden for the indigent representation in New York state since the Supreme Court’s decree in Gideon v. Wainwright, 372 U.S. 335, that having access to an adequate defense against criminal charges is a constitutional guarantee.

The state currently pays about $80 million toward indigent legal defense and New York City and the 57 counties outside the city about $360 million.

The bill before Cuomo (A10706/S8114) provided for a phased-in, seven-year state takeover of the localities’ costs by 2023.

Cuomo said in his veto message that the measure was too expensive. He contended it could obligate the state to pick more than $800 million each year when fully implemented. He contended that the bulk of those costs would come in Family and Surrogate court representation and in other areas unrelated to the defense of indigent criminal defendants.

Cuomo said the potential enormity of the state’s obligation would undermine the financial stability he has tried to bring to the state since becoming governor in 2011.

“We cannot use Gideon as a ploy for financial redistribution of existing local expenses that have nothing to do with Gideon,” he said in his veto message. “Rather, the bill functions as a simple cost shift to [state] taxpayers, proven by the fact that there is absolutely no funding system to pay for it.”

He noted that his administration’s settlement of a case in the fall of 2014, Hurrell-Harring v. State of New York, 8866-07, established a more limited template of state oversight of the criminal defense systems in the five defendant counties of Suffolk, Washington, Onondaga, Ontario and Schuyler (NYLJ, Oct. 22, 2014).