Archive for September, 2017

A Manmade Hurricane

posted by Judge_Burke @ 14:30 PM
September 28, 2017

Shortly before Hurricane Irma hit, I was in Charleston, South Carolina. Stores were boarding up and people who lived in the lower areas of SC were fleeing. I had a conversation with a very interesting woman about the challenges of raising children. Her sons were in their twenties; our daughter is 12. We had different challenges. She worried about her sons’ interaction with the police and, when they were young, how to explain things like the KKK.

I kept thinking about the confluence of these events and wrote a commentary which was published by MinnPost:  Natural hurricanes bring humane responses. But how do we deal with the manmade hurricane of racial bigotry?


Pew Finds Deep Racial & Partisan Divide of Police

posted by Judge_Burke @ 14:30 PM
September 27, 2017


While a large majority of Americans rate police officers positively on a 0-to-100 “feeling thermometer,” whites and blacks differ widely in their views, including among Democrats, according to a Pew Research Center survey conducted in August.

About two-thirds of the public (64%) give officers a warm rating on the scale (between 51 and 100), including 45% who rate them very warmly (76-100). Fewer give a neutral rating of 50 (16%), and just 18% give a cold rating on the scale (0-49).

Blacks, Hispanics less likely than whites to view police officers 'warmly'

But while a clear majority of whites give law enforcement warm ratings (74%), black and Hispanic views of police are more mixed.

Just three-in-ten black Americans (30%) express warm attitudes about police officers, while 28% offer a neutral rating. Another 38% give a cold rating, including 30% who give a very cold rating (24 or lower on the 0-100 scale).

Among Hispanics, 55% give police officers a warm rating, 25% give law enforcement a neutral rating and 17% have cold views.

These racial and ethnic differences in views of police officers are consistent with previous Pew Research Center findings that blacks are less likely than whites to express confidence in the police in their communities.


The full report can be found here.


Junk Science

posted by Judge_Burke @ 14:30 PM
September 26, 2017

Edward J. Imwinkelried (University of California, Davis – School of Law) has posted The Best Insurance Against Miscarriages of Justice Caused by Junk Science: An Admissibility Test that is Scientifically and Legally Sound on SSRN.

Here is the abstract:

This article is a contribution to a forthcoming symposium on wrongful convictions. In some cases, a wrongful conviction is virtually unavoidable. The empirical data demonstrating the invalidity of the expert’s technique or theory may become available only after the conviction. However, in other cases, the courts can minimize the risk of a wrongful conviction by applying a rigorous admissibility test.

Part I of this article considers — and then rejects — two possible admissibility tests. One is an extreme version of the relevancy test allowing the admission of testimony based on a technique or theory so long as one qualified expert vouches for the technique or theory. The second is the traditional FRYE general acceptance test. Both tests provide inadequate assurance against wrongful conviction because they demand nothing more than ipse dixit — either that of an individual expert or the collective ipse dixit of a substantial majority of the specialists in a field. Both approaches represent the antithesis of scientific methodology.

Part II of the article proposes a refined version of the DAUBERT reliability test. After stating the proposed test, the article dissects the test and explains each test component. Part II argues that the proposed test reflects sound scientific methodology and represents a synthesis of the governing statutes and cases.

Finally, Part III explores both the utility of the proposed test and its limitations. As Part III establishes, the satisfaction of the proposed test guarantees neither the admissibility of the expert’s testimony nor its legal sufficiency to support a conviction. Most importantly, Part III underscores that the use of a sound admissibility test does not preclude the possibility that later scientific research will discredit the technique or theory relied on at the time of the earlier trial. Vigilance against wrongful convictions must be a both/and proposition: We must not only apply an exacting test to assess the technique or theory at the time of the initial proffer of the evidence, but we also have to revise the postconviction relief statutes to correct miscarriages of justices that are exposed only by later scientific investigation. 


Field Sobriety Tests & Marijuana

posted by Judge_Burke @ 15:07 PM
September 25, 2017

There is an important new decision for the Massachusetts Supreme Judicial Court this week.

The opinion begins:

In this case we are asked to consider the admissibility of field sobriety tests (FSTs) where a police officer suspects that a driver has been operating under the influence of marijuana. Police typically administer three FSTs — the “horizontal gaze nystagmus test,” the “walk and turn test” and the “one leg stand test” — during a motor vehicle stop in order to assess motorists suspected of operating under the influence of alcohol or other drugs. These tests were developed specifically to measure alcohol consumption, and there is wide-spread scientific agreement on the existence of a strong correlation between unsatisfactory performance and a blood alcohol level of at least .08%.

By contrast, in considering whether a driver is operating under the influence of marijuana, there is as yet no scientific agreement on whether, and, if so, to what extent, these types of tests are indicative of marijuana intoxication. The research on the efficacy of FSTs to measure marijuana impairment has produced highly disparate results. Some studies have shown no correlation between inadequate performance on FSTs and the consumption of marijuana; other studies have shown some correlation with certain FSTs, but not with others; and yet other studies have shown a correlation with all of the most frequently used FSTs. In addition, other research indicates that less frequently used FSTs in the context of alcohol consumption may be better measures of marijuana intoxication.

The lack of scientific consensus regarding the use of standard FSTs in attempting to evaluate marijuana intoxication does not mean, however, that FSTs have no probative value beyond alcohol intoxication. We conclude that, to the extent that they are relevant to establish a driver’s balance, coordination, mental acuity, and other skills required to safely operate a motor vehicle, FSTs are admissible at trial as observations of the police officer conducting the assessment. The introduction in evidence of the officer’s observations of what will be described as “roadside assessments” shall be without any statement as to whether the driver’s performance would have been deemed a “pass” or a “fail,” or whether the performance indicated impairment. Because the effects of marijuana may vary greatly from one individual to another, and those effects are as yet not commonly known, neither a police officer nor a lay witness who has not been qualified as an expert may offer an opinion as to whether a driver was under the influence of marijuana.


The full 22-page decision is here.


Racial Disparity in Plea Bargaining

posted by Judge_Burke @ 14:30 PM
September 20, 2017

Racial Disparity in Plea Bargaining is the title of this new paper authored by Carlos Berdejó available via SSRN.

Here is its abstract:

Most of the empirical research examining racial disparities in the criminal justice system has focused on its two endpoints — the arrest and initial charging of defendants and judges’ sentencing decisions. Few studies have assessed disparities in the steps leading up to a defendant’s conviction, where various actors make choices that often constraint judges’ ultimate sentencing discretion.  This article addresses this gap by examining racial disparities in the plea-bargaining process, focusing on the period between the initial filing of charges and the defendant’s conviction.

The results presented in this article reveal significant racial disparities in this stage of the criminal justice system. White defendants are twenty-five percent more likely than black defendants to have their principal initial charge dropped or reduced to a lesser crime.  As a result, white defendants who face initial felony charges are less likely than black defendants to be convicted of a felony.  Similarly, white defendants initially charged with misdemeanors are more likely than black defendants to be convicted for crimes carrying no possible incarceration or not being convicted at all.

Racial disparities in plea-bargaining outcomes are greater in cases involving misdemeanors and low-level felonies. In cases involving severe felonies, black and white defendants achieve similar outcomes.  Defendants’ criminal histories also play a key role in mediating racial disparities.  While white defendants with no prior convictions receive charge reductions more often than black defendants with no prior convictions, white and black defendants with prior convictions are afforded similar treatment by prosecutors.  These patterns in racial disparities suggest that prosecutors may be using race as a proxy for a defendant’s latent criminality and likelihood to recidivate.


Former AJA President in the News

posted by Judge_Burke @ 14:30 PM
September 19, 2017

Supervisor Todd Spitzer appointed Judge Tam Nomoto-Schumann, a well-respected judge who presided over the Orange County Superior Court, to the Campaign Finance and Ethics Commission.

“I have admired Judge Nomoto-Schumann in my capacities as both a prosecutor and as an elected official,” Supervisor Spitzer said, “I am certain she will bring the highest quality ethical judgement to the Commission as she did to the bench. I am proud to name her as my Third District appointee to the Campaign Finance and Ethics Commission.” The push to create the Campaign Finance and Ethics Commission was reignited nearly two years ago in a bold move by Supervisor Spitzer, who insisted the Commission was necessary to increase transparency in local government. Supervisor Spitzer recognized the need for such an independent commission and, along with citizen watchdog Shirley Grindle, Professor Mario Mainero, and Attorney Bill Mitchell, revitalized the decades-long fight to bring it to reality.

The Campaign Finance and Ethics Commission will ensure ethics training is provided to newly elected and appointed County officials, prepare and present to the Board of Supervisors a summary of the Commission’s annual activities, and provide oversight of the County’s Campaign Reform Ordinance, Lobbyist Registration and Reporting Ordinance, the Gift Ban Ordinance, and portions of the County Code of Ethics.

The Third District appointee, Judge Tam Nomoto-Schumann, is widely regarded as an excellent choice for the forming commission. Her outstanding and broad experience serves to show her ability to act as an impartial and fair critic. In addition to serving as a judge on the Orange County Superior Court, Judge Nomoto-Schumann has served as Deputy County Counsel for the County of Orange, Chair of the California Judges Association Judicial Ethics Committee, and Chair of the Ethics Committee for the National Association of Women Judges. She was also the first Asian-American woman on the Orange County bench and its second-longest sitting judge at the time of her retirement.

Supervisor Spitzer conducted an extensive search to find the most suitable candidate to serve as the Third District representative on the Commission. He immediately recognized Judge Nomoto-Schumann as a strong candidate. Supervisor Spitzer thanks Judge Nomoto-Schumann for her service to the people of Orange County in serving as a Commissioner.

This article was released by the County of Orange.


Forensic Science Sounds Impressive, but is it Simply Junk?

posted by Judge_Burke @ 14:30 PM
September 18, 2017

Paul C. Giannelli (Case Western Reserve University School of Law) has posted Forensic Science: Daubert’s Failure (Case Western Reserve Law Review, Forthcoming) on SSRN.

Here is the abstract: 

In 2015, a federal judge noted that “[m]any defendants have been convicted and spent countless years in prison based on evidence by arson experts who were later shown to be little better than witch doctors.” In the same year, a White House science advisor observed: “Suggesting that bite marks [should] still be a seriously used technology is not based on science, on measurement, on something that has standards, but more of a gut-level reaction.” According to another judge “[a]s matters currently stand, a certainty statement regarding toolmark pattern matching has the same probative value as the vision of a psychic.” A recent New York Times editorial echoed these sentiments: “And the courts have only made the problem worse by purporting to be scientifically literate, and allowing in all kinds of evidence that would not make it within shouting distance of a peer-reviewed journal. Of the 329 exonerations based on DNA testing since 1989, more than one-quarter involved convictions based on ‘pattern’ evidence — like hair samples, ballistics, tire tracks, and bite marks — testified to by so-called experts.”

These criticisms are valid — which raises a puzzling and consequential question: Why didn’t the Supreme Court’s “junk science” decision, Daubert v. Merrell Dow Pharmaceuticals, Inc., prevent or restrict the admissibility of testimony based on flawed forensic techniques?

Daubert was decided in 1993, nearly twenty-five years ago.

This article examines the justice system’s failure by reviewing the status of several forensic techniques: (1) bite mark analysis, (2) microscopic hair comparisons, (3) firearms and toolmark identifications, (4) fingerprint examinations, (5) bullet lead analysis, and (6) arson investigations. It argues that the system’s failure can be traced back to its inability to demand and properly evaluate foundational research, i.e., Daubert’s first factor (empirical testing), and concludes that the courts may be institutionally incapable of applying Daubert in criminal cases.

A different paradigm is needed, one that assigns an independent agency the responsibility of evaluating foundational research. This approach was recently recommended by the National Commission on Forensic Science and the President’s Council of Advisors on Science and Technology. Both recommended that the National Institute of Standards and Technology evaluate all forensic disciplines on a continuing basis, thereby injecting much needed scientific expertise into the process.


Fines & Fees Reform

posted by Judge_Burke @ 14:30 PM
September 14, 2017


Trends in State Courts: Fines, Fees, and Bail Practices—Challenges and Opportunities


This report from the National Center for State Courts, as part of its Report on Trends in the State Courts series, addresses the impact of court-ordered financial obligations on low-income communities and focuses on what can be done to confront the effect of such fines, fees, and bail practices on these groups.


Caroline Cooper on Drug Courts

posted by Judge_Burke @ 14:30 PM
September 13, 2017

She is among the most ardent and thoughtful advocates for effective drug courts. Caroline Cooper has posted Drug Treatment Courts and Their Progeny in the U.S.: Overcoming Their Winding Trajectory to Make the Concept Work for the Long Term (International Journal for Court Administration, Vol. 8, No. 3, 2017) on SSRN.

Here is the abstract:

Looking back over the past quarter century of justice system initiatives in the U.S., many will likely agree that the introduction of the drug court model has been one of the major innovations that occurred. For the field of court administration, it represented a practical application of Differentiated Case Management (DCM) principles – e.g. the recognition that all cases filed in a court system are not alike and that multiple paths for their disposition should be created for the purpose of both efficiency and justice. For the larger field of justice system operations, it represented a re-examination of the traditional approach for criminal case processing and a jumpstart to creating partnerships with agencies outside of the justice system per se – in this case, public health – in order to more efficiently and effectively manage the case disposition process for certain criminal cases not productively handled through the traditional criminal case process. 

For the legal profession, specifically – judges, prosecutors, defense counsel – it opened up the opportunity to use the leverage of the criminal justice system to utilize therapeutic approaches to the disposition of cases that did not lend themselves to the traditional punitive criminal case disposition approach – e.g., cases involving what later became recognized as the chronic disease of addiction and associated mental health disorders. Of particular import was that these nontraditional approaches were being instituted in an era of mandatory sentencing. All of these developments occurred within the framework of the constitutional and legal procedures, including “due process protections” that govern the criminal process and none of the founding drug court leaders ever intended for the drug court model to operate outside of that framework.

The focus of this article is upon the evolution of the drug court model in the U.S. since it was first introduced – not always a straightforward path as anticipated by the early developers of the model – and discussion of a few of the numerous issues that implementation of the drug court model has raised as new generations of leaders become involved, often without the institutional perspective of those who initially instituted the program, and suggestions for moving forward to promote the long term institutionalization of the drug court model within the constitutional and legal framework that applies to the U.S. criminal justice process. 

The observations and recommendations which follow draw on the author’s experience in providing technical assistance and training to over 800 drug courts in the U.S. since 1989, much of which is documented in technical assistance reports, training curricula, and presentations at state, regional and national conferences.


Sam Dalton

posted by Judge_Burke @ 14:30 PM
September 12, 2017

For six decades, Sam Dalton fought against injustice in Louisiana, in capital cases and beyond. He died Tuesday, September 5, at age 90. The Washington Post recently published a story about, and interview with, Mr. Dalton—a part of which was an important message for judges:  Where do you come down in the debate between electing judges and appointing them?


I’m against electing judges. I’m also against appointing them.Laughs.

He then elaborated:

I think every judge should handle both civil and criminal cases. When you split up cases like that, you immediately start to see fighting over budgets. But more importantly, there’s something important and necessary about having judges handle a wide variety of cases. It gives them some worldliness, some context and perspective. Criminal courts judges can often become hardened to the misfortunes of people. They can lose their sense of empathy.

You have to remember that nearly all judges are former prosecutors. There’s an undercurrent of alliance between judges and prosecutors, so there’s a certain collegiality there. They run in the same social circles. They attend the same Christmas parties.

I then asked Dalton to name the most urgent problem in the criminal-justice system today. He answered, “A true appreciation of what’s at stake. To take someone’s freedom — that’s the ultimate deprivation a government can inflict on a citizen, short of taking his life. Everyone in the criminal-justice system — judges, prosecutors, police, criminal defense lawyers — can get lost in the day-to-day and lose sight of what’s really going on in these courtrooms.” He added, “But that’s only one side of the problem. The criminal-justice system today also fails to do what it’s designed to do, which is to protect us from dangerous people.”

I asked if he was referring to the fact that every time an innocent person is convicted, a guilty person goes free. He wasn’t. He was referring to something much more profound.   


The full article, written by Radley Balko, is at THE WASHINGTON POST.