Archive for July, 2017

Just How Bad Can it Get?

posted by Judge_Burke @ 16:19 PM
July 11, 2017

For what seems like a long time, the California courts have struggled with budget problems. Courthouses were closed. The State Administrative office was reduced. And one would think that, with a reasonably healthy California state economy, the worst of those times has passed…but this is not so for the court in San Francisco:

The San Francisco Superior Court will furlough staff, cut clerk’s office hours and ask judges to donate one day of pay each month to help close a $5.3 million budget deficit.

Court workers will be furloughed one Friday each month, on a rotating schedule by department, starting Aug. 4 through June 2018. All clerks’ offices will close to the public at 1 p.m. on Fridays as of Sept. 1. Courtrooms will still remain operating on those days, although officials will adjust calendars to accommodate staff shortages.

“We are committed to keeping our courtrooms open and continuing to prioritize access to justice despite the 9 percent cut in our state funding allocation for the fiscal year that began” July 1, Presiding Judge Teri Jackson said in a prepared statement. “This contribution is a solution that will help us to avoid staff layoffs.”

Jackson has asked the court’s 52 judges to “consider a voluntary donation” of one day’s pay each month—about $509—to help close the funding gap.

The San Francisco Superior Court took the biggest hit of any county—from $56.9 million to $51.7 million, or about 9 percent—under the judiciary’s annual budget allocation system, known as the workload allocation funding methodology. Adopted in 2013, the formula attempts to equalize funding among courts throughout the state. It moves away from a system that doled out money based on what a court used to get under the old county-budgeting model and gives more funding to courts with higher caseloads. But it has also penalized courts that were historically well funded under county control. 

 

For the full story, go here.  

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Justice at Stake Closes

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

Justice at Stake is closing its doors after 16 years of advocating for fair and impartial courts. There were a lot of dedicated people and organizations that were part of Justice at Stake, and none were more important to the success Justice at Stake had than the former director Bert Brandenburg. As the ABA recently reported:

Justice at Stake announced its shutdown in a press release. The group had depended on money from progressive foundations and individual donors, and donations were lagging, according to former executive director Susan Liss.

“It was just a confluence of circumstances that resulted in not having enough funds to continue,” Liss told the ABA Journal in an interview. “I think that all organizations are, for whatever reason, constantly scrambling.”

Some funders were pulling out of the court-independence field to focus on other priorities, Liss said. Yet Justice at Stake was embarking on a strategic growth plan to push for two priorities: encouraging states to adopt merit selection and to increase diversity on the courts. And some funders didn’t agree with merit selection as a policy, she said.

To implement its growth plan, Justice at Stake moved to larger quarters and began planning several large conferences, targeting five states where it hoped to have an impact as it also advocated at the national level. Fundraising did not keep up with the group’s ambitious vision, Liss said.

“It’s sort of not a story because it happens all the time,” Liss said of the group’s fundraising woes. “And it’s a terrible story when it happens to people I care about and issues I care about. … Sadly, there are a number of organizations that find themselves in this position. They have wonderful plans but they haven’t done sufficient fundraising to make those plans turn into a reality.”

Retired U.S. Supreme Court Justice Sandra Day O’Connor was the honorary chair of Justice at Stake from 2013 through 2016. In the press release, O’Connor said it was a pleasure to serve.

“Justice at Stake has done outstanding work on behalf of fair and impartial courts for many years, and has been a strong voice opposing the politicization of courts,” O’Connor said. “It is as true today as ever that organizations like Justice at Stake deserve public and philanthropic support so that we can continue to fight back against efforts to turn judges into politicians and state courts into magnets for campaign cash.

“Justice at Stake has brought these issues to the fore and has inspired people across the United States to fight for fair courts, and I will always be proud of the work we’ve done together.”

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What Limits Can a Judge Put on Sex Offenders?

posted by Judge_Burke @ 14:54 PM
July 6, 2017

Setting reasonable conditions of probation is something judges do every day. Alcohol is a legal substance, yet telling a multiple drunk driving offender not to use alcohol is commonplace–but there are limits.

In State v. Franklin, 604 N.W.2d 79 (Minn. 2000), the Minnesota Supreme Court held that banning a defendant from an entire city was unreasonable. See also U.S. v. Mickelson, 433 F.3d 1050 (8th Cir. 2006).  So, what are the limits on conditions a judge may set for sex offenders?

Justice Kennedy delivered the opinion of the U.S. Supreme Court in Packingham v. North Carolina. 137 S.Ct. 1730 (2017). The Court held that the North Carolina statute, which makes it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages,” impermissibly restricts lawful speech in violation of the First Amendment. Justice Alito, joined by the Chief Justice and Justice Thomas, concurred in the judgment. Justice Gorsuch did not participate. 

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Just How Did All of This Start?

posted by Judge_Burke @ 16:09 PM
July 5, 2017

From the Marshall project, on an article in the Los Angeles Times:

Five sentences 101 words, and a tragically erroneous medical conclusion. A new report traces the origins of our opioid epidemic — at least 200,000 Americans have died from prescription drug overdoses — to a 1980 letter to the editor in the New England Journal of Medicine in which the authors concluded “that despite widespread use of narcotic drugs in hospitals, the development of addiction is rare in medical patients with no history of addiction.” The conclusion led to widespread prescriptions of painkillers we now know are highly addictive. 

 

A related article is here:  The other victims of the opioid epidemic

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Can We Do Better With the Right to Counsel?

posted by Judge_Burke @ 15:04 PM
July 3, 2017

David Rossman (Boston University – School of Law) has posted Resurrecting Miranda’s Right to Counsel (97 B.U. Law Review 1127 (2017)) on SSRN.

Here is the abstract:

The regime created by Miranda v. Arizona is at this point in its history bankrupt both intellectually and in terms of practical effect. Justices who have joined the Court after Miranda have cut back its scope by stingy interpretations of the doctrine’s reach and effect. In practice, few suspects actually benefit from the way Miranda is now implemented in police stations and courtrooms. Given the failure of Miranda’s promise, can we envision an alternative? Here is one that may be politically palatable and doctrinally feasible, largely adopted from English practice:

1. Police would give the same Miranda warnings that they have always provided.

2. The police would still operate under the same rules governing the legitimacy of a suspect’s decision to talk in the absence of an attorney. The waiver rules for Miranda rights won’t change, in other words.

3. If the police go ahead and obtain a statement from a suspect without the presence of an attorney, the jury would be instructed that there is a policy in the jurisdiction that the police should not interrogate suspects in the absence of a defense attorney and that the jury may take into account in evaluating the credibility of the statement the fact that the police did not follow this policy.

4. If the police do provide an attorney for the suspect during interrogation, the suspect would be permitted to consult with the attorney and the attorney would be given a reasonable opportunity to advise the suspect during the interrogation.

5. If the suspect does not answer questions that are reasonable for someone in the suspect’s position at the time to respond to, that information would be admissible as substantive evidence of the suspect’s guilt, subject to a ruling on the probative value of the suspect’s silence at the time of trial.

6. If the suspect at trial maintains that his or her silence during the interrogation was based on the advice of the attorney, that claim shall constitute a waiver of the attorney client privilege insofar as it would otherwise protect the contents of the conversation between the suspect and the lawyer. This paper explores the feasibility of the most contestable of these proposals, the one dealing with an adverse inference from silence. It makes the case for viewing the privilege against self incrimination as a doctrine directed at prohibiting compulsion to speak rather than a broad guarantee of a right to silence.

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