Archive for September, 2017

Important Decision on Bail in Texas

posted by Judge_Burke @ 14:57 PM
September 11, 2017

For the most part, much of the current efforts to reform bail practices are through rules, and statutory or even state constitutional amendments. But, worth noting is recent litigation and a decision from the Federal Court in Texas in which a federal judge issued a 193 page ruling, holding that the Harris County money bail system is unconstitutional, saying it is fundamentally unfair to detain indigent people arrested for low-level offenses simply because they can’t afford to pay bail:

In a 193-page ruling released Friday, 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.” 


Junk Science, and Flawed DNA Testing, Come to New York

posted by Judge_Burke @ 14:30 PM
September 7, 2017

There is a wonderful saying that every once in a while we should hang a ? after things we take for granted.

For at least a decade, forensic scientists were at the vanguard of testing heralded as reliable by police and prosecutors. Two techniques in particular became commonplace in criminal cases–not just in New York, but all over the country. Now those techniques are being “seriously questioned” by experts in and out of courtrooms:  The New York Times



Civil Forfeiture

posted by Judge_Burke @ 21:31 PM
September 6, 2017

Jill Wieber Lens (Baylor University – Law School) has posted Justice Thomas, Civil Asset Forfeitures, and Punitive Damages on SSRN.

Here is the abstract:

For centuries, governments have used civil asset forfeiture laws to seize property used in criminal activity and then use civil proceedings to take ownership of that same property. Forfeitures have caught the attention of media, John Oliver, and the Supreme Court. In March, because of waiver, the Supreme Court denied certiorari in Leonard v. Texas, a case that claimed Texas’s civil forfeiture laws violated due process. Justice Thomas agreed with the denial, but wrote separately to question the constitutionality of civil forfeiture laws. The Court has always held civil asset forfeitures to be constitutional because of their long existence, and now Justice Thomas, the originalist, seems ready to disregard that history.

This Essay is the first to note the seeming inconsistency in Justice Thomas’s applications of originalism to two civil punishments—civil forfeitures and punitive damages.


What are the Limits of Social Media Searches?

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

From Professor Orin Kerr at The George Washington University Law School:

On Monday, the U.S. Court of Appeals for the 11th Circuit suggested that the Fourth Amendment may impose significant limits on the two-step process in the specific context of search warrants for social media accounts. The case is United States v. Blake.

In Blake, two defendants, Dontavious Blake and Tara Jo Moore, were allegedly running a prostitution ring. The government obtained search warrants for Microsoft email accounts Blake and Moore used, as well as for the contents of Moore’s Facebook account. The email warrants required Microsoft to go through the accounts and find emails responsive to the warrant and turn only those over. The Facebook warrants required Facebook to hand over the full contents of the account and to then let the agents search it for the evidence of crime.

In an opinion by Judge Ed Carnes, the 11th Circuit concluded that the Microsoft warrants satisfied the Fourth Amendment but suggested that the Facebook warrants may not. Here’s the court rejecting Moore’s email warrant challenge:

The Microsoft warrant [for Moore’s e-mail account] complied with the particularity requirement. It limited the emails to be turned over to the government, ensuring that only those that had the potential to contain incriminating evidence would be disclosed. Those limitations prevented “a general, exploratory rummaging” through Moore’s email correspondence. The Microsoft warrant was okay.

In a footnote, the court added:

It is somewhat troubling that the Microsoft warrant did not limit the emails sought to emails sent or received within the time period of Moore’s suspected participation in the conspiracy. Nevertheless, the warrant was appropriately limited in scope because it sought only discrete categories of emails that were connected to the alleged crimes. As a result, the lack of a time limitation did not render the warrant unconstitutional.


For the compete commentary by Professor Kerr, go here.



Is Video Taping Interrogations Enough of a Safeguard?

posted by Judge_Burke @ 14:30 PM
September 4, 2017

Wyatt Kozinski (University of Virginia – School of Law, Alumnus or Degree Candidate Author) has posted The Reid Interrogation Technique and False Confessions: A Time for Change (Seattle Journal for Social Justice, Forthcoming) on SSRN.

Here is the abstract:

The Reid Interrogation technique has been the dominant method used by police in the United States and Canada to interview suspects of crime. This method is commercially marketed to police departments and other law enforcement agencies with the promise that 80 percent of those interrogated will confess. However, there is growing evidence that the Reid technique results in a significant number of false confessions, especially among the young, the mentally impaired and those of low intelligence. Other countries, especially England have rejected the Reid technique in favor of other methods that work equally well in obtaining confessions but without the risk of false confessions. In the United States, too, there is growing suspicion of the Reid technique and other hard interrogation tactics such as those employed in interrogating suspected terrorists at Guantanamo and Abu Ghraib.

This paper suggests that widespread use of the Reid technique is a significant contributing factor in public distrust of the police, and fosters police attitudes that feed that dissatisfaction. Rejection of the Reid technique in favor of other methods is likely to improve police efficiency as well as help heal the growing rift between police personnel and the communities they serve. 


ABA Launches a Legal Fact Check Website

posted by Judge_Burke @ 14:30 PM
September 1, 2017

Minnesota Lawyer reports that the ABA:

In what amounts to a kind of for law, the American Bar Association has launched a website that pushes back against legal misinformation.

The ABA’s Legal Fact Check website launched Aug. 17. On Tuesday, new ABA President Hillarie Bass told Minnesota Lawyer that the site primarily aims to reach the news media and the U.S. citizenry.

“There is so much public discourse out there with statements that do not accurately reflect the law,” Bass said. “This will be a source where members of the media, or members of the public, can go and say, ‘Is that really true?’”

What they will find, she said, are nonpartisan posts clarifying whether news reports or politicians’ statements accurately reflect the law. The initial plan, Bass said, is to post new material once a week. It may sometimes post more frequently in response to high-profile legal misstatements.

“We’re going to be responding to statements we hear that we believe to be inaccurate,” said Bass.

In its first round of posting, the site featured articles on hate speech, presidential pardons, flag burning, affirmative action and perennial calls to break up the U.S. 9th Circuit Court of Appeals.