Archive for November, 2017

In Tone and Criminal Justice

posted by Judge_Burke @ 15:35 PM
November 30, 2017

Federal District Court Judge Mark Bennett has been one of the nation’s judicial leaders in confronting the issue of implicit bias. He is one of the contributing authors of the ABA publication Enhancing Justice: Reducing Bias (as are Judge Steve Leben & I).

Judge Bennett and Victoria Plaut have a new paper that is well worth reading now on SSRN.

Here is the abstract:

Social psychologists have established that faces of Black males trigger thoughts of violence, crime, and dangerousness and thoughts of crime trigger thoughts and images of Black males. This presumption of dangerousness increases with darker skin tones (colorism) and greater Afrocentric facial features and affects both men and women.

We examine the history of the stereotype of Blacks and crime, violence, and dangerousness arising in the United States from the time of slavery. We focus on the historical development of this stereotype through a lens of history, literature, pseudo-science, emerging neuroscience, media distortion of crime reporting, and the development of the Negro-ape metaphor. We then look beyond the Black-White race dichotomy to explore the evolving social science literature examining the influence of skin tone and Afrocentric facial features on the length of criminal sentences. We further explore the social science supporting the presumption of dangerousness and conclude with recommendations to help ameliorate this problem that permeates the American criminal justice system.




Procedural Fairness from the Center for Court Innovation

posted by Judge_Burke @ 15:00 PM
November 14, 2017

From the Center for Court Innovation:

In a new TED Talk, Judge Victoria Pratt draws on her experience with Newark Community Solutions to explain the real-life impact of procedural justice.

“It’s a concept that says if people perceive that they are treated fairly and with dignity and respect, they’ll obey the law,” says Pratt.

The experience of Newark Community Solutions suggests that by addressing people respectfully, using plain language to ensure understanding, allowing defendants to voice their concerns, and emphasizing neutrality, justice agencies can help restore public trust in justice.

To learn more about procedural justice, watch our video or read our new book, and to learn how we have promoted this and other evidence-based strategies, follow us on Twitter or Facebook or subscribe to our newsletter.


Should We Drink Strong Coffee on the Bench?

posted by Judge_Burke @ 16:40 PM
November 13, 2017

Many years ago I had a civil trial where by week two, five of the six jurors had fallen asleep. When the last juror nodded off the lawyers approached the bench and pointed to the sleeping juror. In frustration, I responded that although I would wake up the juror, this was the last time I would. “The two of you put these jurors to sleep, so if you do it again you figure out how to wake them up.”  

The issue of whether it is an abuse of discretion not to wake up jurors was never raised on appeal, but I do allow jurors to drink coffee and indeed serve it to them. So, what about us? What happens if we fall asleep? Not to worry if you are a judge in Illinois.

Judges sleeping during trial? No problem, says Illinois appeals court:

It’s not “reversible error” requiring a new trial for the defendant. The case involved a defendant in a quadruple murder case whose judge fell asleep during the presentation of security camera footage. He was then “allegedly poked awake” by his clerk. Defense attorneys say the judge fell asleep repeatedly during the trial. The judge said he was listening with his eyes closed. Chicago Tribune


The Law of Stop

posted by Judge_Burke @ 15:30 PM
November 7, 2017

Each day many judges are confronted with how to apply the law of stop. We do it so often that there is a danger we could become a bit callous. Alexandra Natapoff (University of California, Irvine School of Law) has posted A Stop is Just a Stop: Terry’s Formalism (Ohio State Journal of Criminal Law, Vol. 15, 2017, Forthcoming) on SSRN.

Here is the abstract:

Terry v. Ohio expanded police authority by creating a new legal category—the stop based on reasonable suspicion, an easier standard to meet than an arrest based on probable cause. The formal line between those two categories, however, has turned out to be blurry. In practice, stops morph easily into arrests even without new evidence, an elision that Terry doctrine does not contemplate. The implications are significant for the enormous misdemeanor arena where legal rules generally lack traction, and Terry stops are common. Once those stops become arrests, they typically convert smoothly into criminal charges, which easily become convictions. Terry stops thus influence eventual outcomes far more than they should given their lightweight evidentiary basis. This slippery slope undermines the integrity of basic distinctions between policing and prosecution throughout the petty offense process, an unprincipled state of affairs exacerbated by the original Terry compromise.


How Would You Rule?

posted by Judge_Burke @ 15:31 PM
November 6, 2017

When a suspect has invoked the right to consult with a lawyer is occasionally not clear. It surely helps when there is a record such as an audio or video tape, but even then it may not be clear. Professor Eugene Volokh had this recent piece in The Washington Post. How would you rule? 

From last Friday’s opinion by Justice Scott J. Crichton, concurring in the Louisiana Supreme Court’s denial of review in State v. Demesme (paragraph breaks added):

I agree with the Court’s decision to deny the defendant’s writ application and write separately to spotlight the very important constitutional issue regarding the invocation of counsel during a law enforcement interview.

The defendant voluntarily agreed to be interviewed twice regarding his alleged sexual misconduct with minors. At both interviews detectives advised the defendant of his Miranda rights and the defendant stated he understood and waived those rights. Nonetheless, the defendant argues he invoked his right to counsel. And the basis for this comes from the second interview, where I believe the defendant ambiguously referenced a lawyer — prefacing that statement with “if y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.”

As this Court has written, “[i]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable police officer in light of the circumstances would have understood only that the suspect might be invoking his right to counsel, the cessation of questioning is not required.” State v. Payne(La. 2002); see also Davis v. United States (1994) (agreeing with the lower courts’ conclusion that the statement “[m]aybe I should talk to a lawyer” is not an unambiguous request for a lawyer). In my view, the defendant’s ambiguous and equivocal reference to a “lawyer dog” does not constitute an invocation of counsel that warrants termination of the interview and does not violate Edwards v. Arizona (1981).

Of course, amusing as this is, it’s possible that the transcript didn’t do the request justice: If there was a pause before and after “dog” (“why don’t you just give me a lawyer, dog”), then maybe the request was fairly clear. On the other hand, if the defendant did want a lawyer, he could have presumably asked again, and more clearly.



Plan For Your Disaster

posted by Judge_Burke @ 14:30 PM
November 3, 2017

Given the current hurricane season in the South, wildfires in the West, and who knows what other calamities elsewhere, we should all be thinking about how to handle disaster. Trends in State Courts has a review of recent efforts, mostly by legislatures, to give courts more power to handle disasters:

Maintaining Court Operations When Disaster Strikes: Emergency Powers

What happens when a courthouse is rendered unusable following a man-made or natural disaster? Many states have started to grant special powers to chief justices and court leadership to help courts meet these challenges.



Should We Create More Drug Courts?

posted by Judge_Burke @ 14:30 PM
November 2, 2017

As a long time proponent of drug courts, the easy answer to this question is:  of course. But perhaps……just perhaps……the answer is we ought to mainstream how the criminal justice system deals with addiction. 


More drug courts, easier access to opioid alternatives, urged by White House drug commission. 

The panel, led by New Jersey Governor  Chris Christie, also recommends changing an old federal policy that blocked Medicaid payments to inpatient treatment facilities with more than 16 beds for victims of substance abuse, clearing the way for more people to get more care more quickly. The administration still hasn’t authorized more funding to combat the opioid epidemic. THE WASHINGTON POST. Drug courts throughout the country have struggled with getting to scale. For many communities the problem is not the creation of a drug court it is getting more defendants in the existing drug court. Surely that is a money issue but it also is a criteria for admission to drug court  issue as well. Our drug court does not take dealers! Fair enough but an awful lot of users are simultaneously dealers. They buy some sell some and self finance their addiction. It might just be easier to self finance addiction by selling part of your drugs  as opposed to stealing and using the proceeds of theft to buy drugs. Our drug court does  not accept snitches or we do accept snitches but the police  don’t charge them right away. Law enforcement lets them “work” their way into eligibility for drug court. Today you maybe a dealer ineligible for drug court but a few months from now and a few arrests from now you will be eligible. Is there a solution? First, there needs to be real money to finance effective treatment. Second, An open minded assessment of criteria for eligibility needs to occur. Third getting people into treatment has to happen fast, real fast. If an arrest is the functional equivalent  of intervention then within hours connecting the defendant to treatment needs to occur. Finally, drug court need to have a supportive environment.