Archive for May, 2017

When Should a Judge Recuse?

posted by Judge_Burke @ 15:39 PM
May 25, 2017

There was recently a story in The New York Times about recusal:

An Alabama judge who once complained on Facebook of being racially profiled by the police refused on Thursday to recuse himself in a case involving a white police officer’s fatal shooting of a black man.Defense lawyers had argued that two posts by the judge, Greg Griffin of the Montgomery County Circuit Court, created the appearance of a conflict, one of the lawyers, Roianne Conner, said in a phone interview. But Judge Griffin denied the defense’s motion during a hearing on Thursday morning, Ms. Conner said.

“He took it very personally,” she said. “He told me he could take off his black robe, but he couldn’t take off his black skin.”

Continue reading this story


Recusal motions can be quite emotional for a judge. We all like to think of us as being fair, and recusal conjures up images of judicial inferiority.

Years ago there was a judge from northern Minnesota who explained his view of recusal. The judge had grown up in a reasonably small town and, except for attending law school, spent his whole life there. “I know most everyone.” he said, and he therefore believed that recusal — because he knew litigants — was impractical. “The only time I recused myself was when there was a strike at the plant. Many of the strikers were arrested when they picketed the plant. I simply could not win.”

Seems reasonable? What about taking positions before you became a judge? Surely no one would expect Thurgood Marshal to recuse in cases involving racial discrimination.

The Washington Post recently reported that: “Two years after a Kentucky county clerk stirred national attention for refusing to issue marriage licenses to same-sex couples, a family court judge in the same state announced he will no longer hear adoption cases involving gay parents, calling his stance on the issue “a matter of conscience.”

Judge W. Mitchell Nance, who sits in Barren and Metcalfe counties in Kentucky, issued an order recently in which he wrote that he believes allowing a “practicing homosexual” to adopt would “under no circumstance” promote the best interest of the child. The judge disqualified himself from any adoption cases involving gay couples, citing judicial ethics codes requiring that judges recuse themselves whenever they have a “personal bias or prejudice” concerning a case. Nance’s “conscientious objection” to the concept of gay parents adopting children constitutes such a bias, he argued. Judge Nance’s request to amend the Kentucky Code of Judicial Conduct to allow his recusal was denied by the Chief Justice  within the last couple of days.



Constitutional Crisis in New Mexico?

posted by Judge_Burke @ 15:43 PM
May 23, 2017

What if a legislature was so fed up with the Governor that they decided not to appropriate any money for the Office of Governor? That did not happen in New Mexico, but something like that did happen – and so far the New Mexico Supreme Court has decided not to intervene:

The New Mexico Supreme Court rejected a request to override budget vetoes, leaving negotiations about how to solve the state’s budget crisis — and restore funding to the Legislature — in the hands of the governor and lawmakers. In a two-page order, the court said it was too soon to consider any possible constitutional violations related to Gov. Susana Martinez’s vetoes of all funding for the Legislature and state universities in the coming fiscal year. The order said the Legislature’s lawsuit was “not ripe for review,” siding with attorneys for the governor who cautioned justices against an abuse of their judicial power. The Republican governor has called a special session for May 24 in an attempt to resolve the state budget crisis linked to faltering tax revenues and a weak state economy. The Democratic-led Legislature had argued that Martinez overstepped her authority by defunding the legislative branch of government and all state institutions of higher education. Martinez had urged the state Supreme Court to stay out of budget negotiations and said her vetoes were made in pursuit of reductions to state spending and never sought to abolish the Legislature.



An Exciting Opportunity for Judges to Get Good, Solid Research

posted by Judge_Burke @ 16:29 PM
May 16, 2017

If you come upon a really bright third year law student, you most likely will find someone who has very good research skills. These are the type of people every judge should have as an assistant. But, the budget reality is:  many judges, certainly at the trial court level, do not have any law clerk or assistant.

Regrettably, there are lawyers who submit arguments that are facially plausible, but if you had the time and research skills you might find that the facially plausible brief is mostly contrived of BS (a legal term not frequently appearing in the final draft of appellate court decisions). It isn’t that anyone is unprofessional or devious, it is most often just due to mediocre research skills.

So…is there anything a judge can do about this? The answer is, yes:


CARA: A New Legal Research Tool, Free for the Judiciary


In a perfect world, litigants would cite to all relevant case law in their briefs.  In the real world, litigants often do not.  A new research tool, CARA, can help judges and their clerks quickly find important case law that the parties may have overlooked.

CARA, which was just awarded “2017 New Product of the Year” by the American Association of Law Libraries, is completely free for the courts.  Using CARA could not be simpler.  Simply take a brief (in PDF or Word format) and drag-and-drop it into the platform.  Within seconds, CARA returns a list of cases highly relevant to, but not already cited in, the uploaded document.

CARA is the first legal research tool which ranks results according to what best matches the context of the matter at hand, including underlying legal and factual issues. To do this, CARA applies cutting-edge data science to analyze the inputted brief, extracting key information like citation and text patterns.  This information is then leveraged to query a database of over eight million judicial opinions (updated daily and including appellate law from all 50 states and federal district court opinions).

Attorneys are already raving about the technology’s ability to make legal research more efficient and more thorough. David Eiseman, a partner at Quinn Emanuel, says, “CARA is an invaluable, innovative research tool. With CARA, we can upload a brief and within seconds receive additional case law suggestions and relevant information on how cases have been used in the past, all in a user-friendly interface. This feature is … a major step forward in how legal research is done.”

Judges who would like to be set up with a free CARA account should email


Targeting the Poor

posted by Judge_Burke @ 16:20 PM
May 12, 2017

The Brennan Center reports:

The Lawyers Committee for Civil Rights [LCCR] published a report documenting the ways that California’s traffic fines disproportionately affect Blacks and Latinos, writes Tanasia Kenney for the Atlanta Black Star. According to Kenney, Californians who cannot afford to pay traffic fines are subject to “license suspension, arrest, jail time, wage garnishment, towing of their vehicles and even job loss.” The report finds that as a result, “African-American residents are four-to-16 times more likely to be booked into jail on a failure-to-pay-related charge.” The report argues that “[p]unishing people for failure to pay is doubling down on the racial bias in the system,” because, as LCCR legal director Elisa Della-Piana describes, “people of color, especially Black people, are more likely to get pulled over.” California Gov. Jerry Brown (D) previously sought to address the problem with a temporary program that “slashed fines on pre-2013 traffic tickets by 80 percent for poorer applicants and allowed affected drivers to set up payment plans to get their licenses back.” For reasons that really make no sense the program, however, expired last month. Earlier this year, State Sen. Robert Hertzberg (D-Van Nuys) introduced a bill that would “ban the courts from automatically stripping drivers of their license for failure to pay” and “force judges to consider a resident’s ability to pay before slapping them with hefty fines and fees.”


What Do We Do About Those Cell Phones?

posted by Judge_Burke @ 14:30 PM
May 11, 2017

Kristen M. Jacobsen (The George Washington University Law School, Students) has posted Let’s Get Physical, Physical: Answering What Constitutes a Search of a Cellphone after Riley Through a ‘Use-Based’ Approach (Criminal Law Bulletin Volume 53, Issue 4, 2017) on SSRN.

Here is the abstract:

Investigating and prosecuting in the twenty-first century requires that the government have clear and workable rules to determine what action constitutes a Fourth Amendment search of a cellphone. The use-based approach provides this guidance. The use-based approach, which will substitute for the physical trespass doctrine, holds that any physical manipulation of the cellphone or any act that requires, or prompts, internal action on the part of the cellphone internally constitutes a Fourth Amendment search. This approach prevents advancements in technology from eradicating Fourth Amendment protections, while the already-established exceptions allow law enforcement the latitude necessary to conduct investigations.


Thinking About Judicial Ethics

posted by Judge_Burke @ 14:30 PM
May 10, 2017

Dealing with ex parte requests should make every judge quite nervous. Dealing with domestic violence or the welfare of a child should make every judge vigilant. So, what happens when the two intersect? A New Jersey judge facing disciplinary action for allegedly intervening in a child custody matter defended herself at a judicial conduct hearing, saying she acted properly given the facts she had at the time.

Passaic County Superior Court Judge Liliana DeAvila-Silebi is charged with violating the judicial code of conduct by calling the police on a weekend and having a child transferred from one parent to another.

At the time, DeAvila-Silebi was in the middle of transferring from Bergen County to Passaic County, and was an emergent judge on call that weekend. DeAvila-Silebi told the state Supreme Court’s Advisory Committee on Judicial Conduct that she received a call on her cellphone from someone purporting to be an attorney, who read a Family Court order describing a child custody agreement and alleging that the father had violated the order by keeping the child out of school for a week and not returning him to his mother.

“You can’t help but be human,” the judge told the ACJC. “As a judge you still have compassion. DeAvila-Silebi’s attorney, Raymond Reddin, said in the answer that she acted as best she could under the circumstances.” Given the volume, the unexpectedness, and the ex parte nature of these emergent phone calls, it would be very unreasonable and unrealistic to expect an emergent judge, without the benefit of a court staff or even a file, to field an emergent call on a weekend and completely vet the entire situation prior to making a decision,” he said.

It turned out that the phone call, purportedly from an attorney, came from an unidentified male using a phone later found to belong to the mother of the child involved in the custody dispute, the complaint said.


Important Decision on Bail in Texas

posted by Judge_Burke @ 14:30 PM
May 9, 2017

For the most part, much of the current efforts to reform bail practices are through rules, statutory or even state constitutional amendments. But, there is litigation, and a decision from the Federal Court in Texas is worth noting.

A federal judge recently issued a 193 page ruling, holding that the Harris County money bail system is unconstitutional and saying it is fundamentally unfair to detain indigent people arrested for low-level offenses simply because they can’t afford to pay bail. In his ruling, Chief U.S. District Judge Lee H. Rosenthal ordered the county to begin releasing indigent inmates as early as May 15 without posting cash bail while they are awaiting trial on misdemeanor offenses. 

Rosenthal concluded the county’s bail policy violates the due process and equal protection clauses of the Constitution, and granted “class-action” status to the case, meaning that her findings will apply to all misdemeanor defendants.”Liberty is precious to Americans and any deprivation must be scrutinized,” the order states, citing a comment from Texas Supreme Court Chief Justice Nathan.The ruling — a temporary action that will stay in place until the lawsuit is resolved — will not apply to those charged with felonies, or those who are being detained on other charges or holds. First Assistant County Attorney Robert Soard said late Friday that officials are reviewing the orders.”No decision has been made at this time concerning an appeal of the preliminary injunction.”


Really? You Mean We Cannot Keep the Money?

posted by Judge_Burke @ 14:30 PM
May 8, 2017

The U.S. Supreme Court ruled 7-1 in Nelson v. Colorado that “[p]eople who are freed from prison when their convictions are reversed deserve a refund of what they paid in fees, court costs and restitution,” wrote David Savage for the Los Angeles Times.

The case was brought by two people “who were convicted of sex crimes but had their convictions reversed.” After the reversals, “the state insisted on keeping the restitution they had paid.” Justice Ruth Bader Ginsburg, who authored the majority opinion, wrote that they “are entitled to be presumed innocent” and that the state “has zero claim” to their money. She added that “Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary extractions.” Justice Clarence Thomas dissented from the ruling, writing that “petitioners have not demonstrated that the defendants whose convictions have been reversed possess a substantive entitlement, under either state law or the Constitution, to recover money they paid to the state pursuant to their convictions.” Justice Samuel Alito, who filed a separate concurrence, wrote that while he agreed with the outcome, it was “unnecessary for the court to issue a sweeping pronouncement on restitution.”


The Atlantic on Plea Bargaining

posted by Judge_Burke @ 14:30 PM
May 5, 2017


Shondel Church was arrested in Kansas City, Missouri, last July, accused of stealing a generator and a tool box from his stepmother. He sat in Lafayette County Jail for six weeks before his first conversation with a public defender, Matthew Gass. Gass was reportedly hopeful that he could win the case at trial, but explained that the intensity of his workload meant he would need six months to prepare—six months during which Church would remain jailed. As a father of four and his family’s primary breadwinner, Church felt he couldn’t wait that long and instead pled guilty to a misdemeanor. He received two years of probation and a $2,600 bill for his stay in pretrial detention.

Ninety-seven percent of federal cases are settled the way Church’s was, by plea bargain. State-level data suggest similar numbers nationwide. Though access to a public trial is enshrined in the Sixth Amendment, taking a plea forecloses that possibility. “This constitutional right, for most, is a myth,” U.S. District Judge John Kane wrote in 2014—one voice among a chorus of jurists, advocates, and academics all calling for reform. Some want tweaks to the regulation and oversight of pleas; others urge more ambitious overhaul of the way trials are conducted, streamlining the process to make it accessible to greater numbers of people.

Plea bargains were almost unheard of prior to the Civil War. Only in its aftermath, as waves of displaced Americans and immigrants rolled into cities and crime rates climbed, did appellate courts start documenting exchanges that resemble the modern practice. The plea became a release valve for mounting caseloads. Appellate courts “all condemned it as shocking and terrible” at the time, said Albert Alschuler, a retired law professor who has studied plea bargains for five decades. The courts raised a range of objections to these early encounters, from the secretiveness of the process to the likeliness of coercing innocent defendants. Pleas, wrote the Wisconsin Supreme Court in 1877, are “hardly, if at all, distinguishable in principle from a direct sale of justice.”


Keep reading here.







Come To Cleveland!!!!

posted by Judge_Burke @ 14:34 PM
May 4, 2017

AJA is excited to announce that the information for the 2017 Annual Educational Conference in Cleveland is now available on the AJA website at  The printed registration brochure is in the mail to all members, but right now you can find that brochure, an online and printable registration form, link to the Renaissance Cleveland’s website and to their special reservations page for AJA under the above link (please note the August 15 cut-off date).  The conference will be September 10-15, and all members are welcome and encouraged to attend for some outstanding education sessions, wonderful opportunities to talk with colleagues from across the United States and Canada, and to enjoy the many, many attractions of the vibrant city of Cleveland.  The Planning Committee is working on some wonderful optional activities, perhaps including group tickets to a Cleveland Indians game and/or the Rock and Roll Hall of Fame, so watch your email for more information.  Don’t miss this terrific conference!

PLUS, the first 100 PAID registrants for the conference will receive a free 7″, 8-gig Amazon Fire Tablet with Alexa to use during the conference and to take home with you.  Payment MUST accompany your registration, either by credit card or check.