Archive for December, 2017

The Seven Principles of Public Life

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

Great Britain has been rocked by its own set of scandals and in response to the desire to achieve public trust in government, has created a commission to develop principles of public life. While they may seem self evident as you read them, they are a good reminder of what public life should be about. 

1. Selflessness

Holders of public office should act solely in terms of the public interest.

2. Integrity

Holders of public office must avoid placing themselves under any obligation to people or organisations that might try inappropriately to influence them in their work. They should not act or take decisions in order to gain financial or other material benefits for themselves, their family, or their friends. They must declare and resolve any interests and relationships.

3. Objectivity

Holders of public office must act and take decisions impartially, fairly and on merit, using the best evidence and without discrimination or bias.

4. Accountability

Holders of public office are accountable to the public for their decisions and actions and must submit themselves to the scrutiny necessary to ensure this.

5. Openness

Holders of public office should act and take decisions in an open and transparent manner. Information should not be withheld from the public unless there are clear and lawful reasons for so doing.

6. Honesty

Holders of public office should be truthful.

7. Leadership

Holders of public office should exhibit these principles in their own behaviour. They should actively promote and robustly support the principles and be willing to challenge poor behaviour wherever it occurs.

For further information on the 7 principles and the work of the Committee on Standards in Public Life, visit the Committee’s website and blogsite.


Assessing Risk Assessment in Action

posted by Judge_Burke @ 15:30 PM
December 27, 2017

In recent years there has been an increasing use of assessment tools in an effort to achieve “evidence base sentencing.” For some the tools have become not an aid to judgement, but a substitute for it. There are notable critics such as former Attorney General Holder. There are critics who warn that some of the actuarial tools just are not very good predictors or have their own set of biases. Professor Megan Stevenson has written this interesting new paper available via SSRN.

Here is the abstract:

Recent years have seen a rush towards evidence-based tools in criminal justice.  As part of this movement, many jurisdictions have adopted actuarial risk assessment to supplement or replace the ad-hoc decisions of judges.  Proponents of risk assessment tools claim that they can dramatically reduce incarceration without harming public safety. Critics claim that risk assessment will exacerbate racial disparities. Despite extensive and heated rhetoric, there is virtually no evidence on how use of this “evidence-based” tool affects key outcomes such as incarceration rates, crime, or racial disparities.  The research discussing what “should” happen as a result of risk assessment is hypothetical and largely ignores the complexities of implementation.

This Article is one of the first studies to document the impacts of risk assessment in practice.  It evaluates pretrial risk assessment in Kentucky, a state that was an early adopter of risk assessment and is often cited as an example of best-practices in the pretrial area.  Using rich data on more than one million criminal cases, the paper shows that a 2011 law making risk assessment a mandatory part of the bail decision led to a significant change in bail setting practice, but only a small increase in pretrial release. These changes eroded over time as judges returned to their previous habits.  Furthermore, the increase in releases was not cost-free: failures-to-appear and pretrial crime increased as well.  Risk assessment had no effect on racial disparities in pretrial detention once differing regional trends were accounted for.

Kentucky’s experience does not mean we should abandon risk assessment, but it should temper the hyperbolic hopes (and fears) about its effects.  Risk assessment in practice is different from risk assessment in the abstract, and its impacts depend on context and details of implementation.  If indeed risk assessment is capable of producing large benefits, it will take research and experimentation to learn how to achieve them.  Such a process would be evidence-based criminal justice at its best: not a flocking towards methods that bear the glossy veneer of science, but a careful and iterative evaluation of what works and what does not.


The answer is not in our lifetime. But musing about what should happen is reasonable. There is an interesting paper (and the title of this post) written by Professor Brittany Deitch now available via SSRN.

Here is the abstract:

The criminal defendant’s right to a jury trial is enshrined within the U.S. Constitution as a protection for the defendant against arbitrary and harsh convictions and punishments.  The jury trial has been praised throughout U.S. history for allowing the community to democratically participate in the criminal justice system and for insulating criminal defendants from government oppression.  This Article asks whether the jury selection process is consistent with the defendant-protection justification for the Sixth Amendment right to a trial by jury. Currently, the prosecution and defense share equal control over jury selection.  Looking to the literal text of the Sixth Amendment, the landmark case on the right to a jury trial, and the Federal Rules of Criminal Procedure for guidance, this Article explains that jury selection procedures undermine the defendant-protection rationale for the Sixth Amendment right to a jury trial.  Because the Sixth Amendment grants this right personally to the defendant and the Supreme Court has construed this right as intending to protect the defendant from governmental overreach, the prosecution should not be entitled to select the very jury that is supposed to serve as a check against its power.  After concluding that symmetrical power in jury selection undermines the constitutional purpose of the jury trial, this Article proposes two possible remedies.


Have We Learned Nothing from Ferguson?

posted by Judge_Burke @ 16:20 PM
December 22, 2017

Apparently the US Department Administration did not. There is a story in The New York Times today:  Justice Dept. Revokes 25 Legal Guidance Documents Dating to 1975. Among these legal guidance documents was the Department of Justice’s advice in response to Ferguson and the imposition of fines and fees.

Throughout our country there are far too many fines and fees that are not just unfair to the poor, they ultimately undermine the perception that judges are fair. With the decline in trust in government institutions, courts need to be vigilant that of the three branches of government, the judiciary’s power (and independence) comes from the public’s trust in the fairness of judges. Leadership on this must now come from state courts and individual judges willing to say, “I will not do this anymore.” In effect, fines and fees have transformed the halls of justice into for-profit courts.


What Does the Public Think of Judges & Courts?

posted by Judge_Burke @ 15:30 PM
December 22, 2017

For the fourth consecutive year the National Center for State Courts contracted with GBA Strategies to conduct a comprehensive public opinion survey of 1,000 registered voters in order to gauge current levels of public trust and confidence in the state courts.  

The survey was conducted by telephone between October 30-November 1, 2017.  Survey findings are considered accurate within  +/- 3.1 percent, 19 times out of 20.

Key findings of the 2017 survey include:

  • After several years of survey work, we see consistency emerging on core questions of public trust and confidence.
  • Judges are perceived as out of touch with community concerns, and the public seeks greater engagement from the courts.
  • Access to justice in rural areas is a concern for many—especially those in the South and Southwest.
  • The justice system is still seen as too complicated to allow for self-representation—but the public can identify specific customer service challenges and simple solutions to remedy this.


For more detail on the survey findings, read this six-page summary from GBA Strategies, or download the presentation slides. Interested in a presentation on these survey findings? Contact Jesse Rutledge.


Forensic Science

posted by Judge_Burke @ 15:30 PM
December 21, 2017

The television show “CSI,” each week has forensic evidence portrayed as glitzy, high-tech — and virtually infallible. Unfortunately, this depiction is often a far cry from reality. A significant report issued by the President’s Council of Advisors on Science and Technology (PCAST) persuasively explains that expert evidence based on a number of forensic methods — such as bite mark analysis, firearms identification, footwear analysis and microscopic hair comparisons — lacks adequate scientific validation. Quite simply, these techniques have not yet been proved to be reliable forms of legal proof.  There are several kinds of problems with forensic science in criminal cases, including:

  • Unreliable or invalid forensic discipline. Studies have demonstrated that some forensic methods used in criminal investigations cannot consistently produce accurate results. Bite mark comparison in which an identification of a biter is made from a bite mark made on skin is an example of an analysis that is unreliable and inaccurate.
  • Insufficient validation of a method. Some of the forensic disciplines in use may be capable of consistently producing accurate results, but there has not been sufficient research to establish validity. Accuracy of a method should be established using large, well-designed studies. Without these studies, the results of an analysis cannot be interpreted.  Analysis of shoeprints as a basis of identifying the unique source of a print is an example of a method that has not been sufficiently validated.
  • Misleading testimony.
    • Sometimes forensic testimony overstates or exaggerates the significance of similarities between evidence from a crime scene and evidence from an individual (a “suspect” or “person of interest”), or oversimplifies the data. Examples include testimony that suggests a collection of features is unique or overstates how rare or unusual it would be to see these features, implying that it is quite likely that the suspect is the source of the evidence, and testimony that doesn’t convey all possible conclusions, as can arise with masking in serology testing.
    • Sometimes forensic testimony understates, downplays, or omits the significance of an analysis that establishes that an individual should be excluded as a possible suspect. An example is testimony that an analysis is “inconclusive” when in fact, the analysis excluded the suspect.
    • Sometimes forensic testimony fails to include information on the limitations of the methods used in the analysis, such as the method’s error rates and situations in which the method has, and has not, been shown to be valid.
  • Mistakes. Like everyone, forensic practitioners can make mistakes, including mixing up samples or contaminating specimens. These can occur in any type of science or laboratory testing, even in well-developed and well-validated fields.
  • Misconduct. In some cases, forensic analysts have fabricated results, hidden exculpatory evidence, or reported results when testing had not been conducted. So where does a judge start? We surely do not need to become judicial forensic science troglodytes.  Professor  David H. Kaye (Pennsylvania State University, Penn State Law) has posted How Daubert and Its Progeny Have Failed Criminalistics Evidence and a Few Things the Judiciary Could Do About It (Fordham Law Review, Vol. 86, No. 4, 2018, Forthcoming) on SSRN. Here is the abstract:

A recent report of the President’s Council of Advisors on Science and Technology questioned the validity of several types of criminalistics identification evidence and recommended “a best practices manual and an Advisory Committee note, providing guidance to Federal judges concerning the admissibility under Rule 702 of expert testimony based on forensic feature-comparison methods.”

This article supplies information on why and how judicial bodies concerned with possible rules changes—and courts applying the current rules—can improve their regulation of criminalistics identification evidence. First, it describes how courts have failed to faithfully apply Daubert v. Merrell Dow Pharmaceutical’s criteria for scientific validity to this type of evidence. It shows how ambiguities and flaws in the terminology adopted in Daubert have been exploited to shield some test methods from critical judicial analysis.

Second, it notes how part of the Supreme Court’s opinion in Kumho Tire Co. v. Carmichael has enabled courts to lower the bar for what is presented as scientific evidence by maintaining that there is no difference between that evidence and other expert testimony (that need not be scientifically validated). It suggests that if the theory of admissibility is that the evidence is nonscientific expert knowledge, then only a “de-scientized” version of evidence should be admitted.

Third, it sketches various meanings of the terms “reliability” and “validity” in science and statistics on the one hand, and in the rules and opinions on the admissibility of expert evidence, on the other.

Finally, it articulates two distinct approaches to informing judges or jurors of the import of similarities in features—the traditional one in which examiners opine on the truth and falsity of source hypotheses—and a more finely grained one in which criminalists report only on the strength of the evidence. It contends that courts should encourage the latter, likelihood based testimony when it has a satisfactory, empirically established basis.


Fines & Fees that Undermine Fairness in the Justice System

posted by Judge_Burke @ 15:30 PM
December 20, 2017

After the debacle of Ferguson, Missouri, there was a lot of attention given to the reform of fines and fees. A Commission was established, lead by the Chief Justice of Ohio. The National Association of Court Managers, the Conference of Chief Justices, and the American Judges Association–among a lot of other national organizations–expressed a desire to reform what is happening to our courts.

Out of control fines and fees arguably are partially or wholly our fault. Court leaders complained when enough “credit” was given in return for the amount of revenue courts generated. This was particularly true of limited jurisdiction courts. Surcharges started to be added. In one state, a surcharge was added to fund building a new state law school, but the appetite for funding the courts was a bit limitless. When judges rebelled, legislators responded. In Minnesota there was even a bill which provided that if the judge did not impose the fee, the clerk had the authority to do so over the judge’s objection. (A proposition of dubious constitutionality.)

And so we move to North Carolina:

A new North Carolina law [recently took] effect that is designed to hamstring the ability of judges to waive fines and fees for poor people.

Critics say the law will mean jail time for more poor people who can’t pay court costs that start at $179 for a seat belt violation and can easily surpass $1,000.

The law is believed to be the first of its kind in the country. It runs counter to reform efforts in other states that are attempting to reduce the number of people jailed because they are unable to pay fines or fees or make bail.

The new law is unusual in other ways: no lawmaker will take credit as sponsor, and no formal input was solicited from the entity most affected, the state court system.

The measure seems crafted by the Republican-controlled General Assembly to maneuver around a 1983 U.S. Supreme Court decision, Bearden v. Georgia, in which the court held that people cannot be jailed simply because they are too poor to pay fines and fees. Judges can waive costs if the failure to pay is not willful.

North Carolina’s new law would not explicitly prohibit waivers for the poor, but would throw up a serious impediment, requiring judges to give 15 days notice to all affected agencies before issuing a waiver.

In North Carolina, that would be a lot of notices. An offender in the state is subject to a vast array of fees, from $5 for being arrested to $200 for failing to appear. The state charges a fee of $7.50 to underwrite the police and sheriff retirement funds and a fee of up to $40 a day for taking up space in jail. Perhaps inevitably, there is a $50 fee for failing to pay a fee.

In all, 52 fees are routed to four state agencies and 611 counties and municipalities.


For the full Marshall Project article on the North Carolina law, go here.


Is it Okay to Occasionally Get Intemperate?

posted by Judge_Burke @ 15:30 PM
December 19, 2017

If you are a trial judge, among your required readings should be Angry Judges by Professor Terry Maroney. None of us were anointed as a saint before we took our position on the bench. So, understanding our own emotions and having the skill do deal with other people’s emotion is critical for trial judges. If you are not careful, you can escalate a manageable situation into something that becomes embarrassing.

A former judge who jumped from the bench, ripped off his robe, and bit a defendant on the nose was acquitted in Clarksburg of violating the man’s civil rights. Joseph Troisi, who was a circuit court judge for four years, was accused of confronting Bill Witten after Witten repeatedly cursed at him while being led from the courtroom. Troisi could have been sentenced to up to 10 years in prison on the federal charge. He has already pleaded no contest to state charges and served five days in jail for assaulting Witten. Troisi said he was caught up in “waves of feeling” and not thinking when he exchanged words with Witten.

With that background, here is a case from Judge Wayne Gorman:

In R. v. Church, 2017 ABCA 421, December 15, 2017, the following exchange took place between the trial judge and counsel (Mr. Brunnen):

THE COURT: Why– I mean I have to tell you both. It’s becoming increasingly clear to me that neither one of you are particularly well prepared for this trial. Just -

MR. BRUNNEN: With respect –

THE COURT: Mister–

MR. BRUNNEN: –that is incorrect.

THE COURT: –Mr. Brunnen? I am speaking.

MR. BRUNNEN: With respect –

THE COURT: Mr. Brunnen?

MR. BRUNNEN: — you are wrong.

THE COURT: Mr. Brunnen? Do I need to call the sheriff?

MR. BRUNNEN: You may if you wish.

THE COURT: Mr. Brunnen?

MR. BRUNNEN: I am very well prepared.

THE COURT: Mr. Brunnen? We’re going to have an adjournment, so you can calm down. You will not speak to me like that again.

MR. BRUNNEN: With respect –

THE COURT: Mr. Brunnen?

MR. BRUNNEN: –I am very well prepared.

THE COURT: Mr. Brunnen? That’s enough.

The accused was convicted.  He appealed arguing that the judge’s threat to call the  Sheriff undermine the fairness of the trial.  The appeal was dismissed.

The Alberta Court of Appeal noted that “tensions can run high during trials” and that “trial judges can be under considerable pressure during a trial.” However, though “judges must strive always to remain patient” a “temporary lapse does not necessarily undermine the overall appearance of trial fairness in the eye of the reasonable objective observer” (at paragraph 29).

The Court of Appeal concluded that the exchange did not “undermine the appearance of fairness” (at paragraph 31):

Whether the conduct of the trial results in a miscarriage of justice depends on many factors, and not every criticism of counsel by a trial judge raises a reasonable apprehension of bias: Nazarewycz v Dool, 2009 ABCA 70 (CanLII) at paras. 67-75, 2 Alta LR (5th) 36, 448 AR 1; R. v Schmaltz, 2015 ABCA 4 (CanLII) at paras. 52-3, 12 Alta LR (6th) 328, 599 AR 76. This trial was not before a jury, and did not involve a self-represented litigant. Fortunately, senior counsel was involved, and he was not intimidated by the trial judge’s words: Lakhoo at para. 6. When court resumed after the adjournment, all involved were (commendably) able to get the trial back on track and focused on the issues at hand. This unfortunate incident (probably consuming less than five minutes) in the middle of a three day trial does not undermine the appearance of fairness.


The Miranda Warning (Kid’s Version)

posted by Judge_Burke @ 16:19 PM
December 18, 2017

From Governing Magazine:

Anyone who’s watched a cop show on television in recent decades has a decent understanding — or at least a memory — of the rights accorded to those arrested: the right to an attorney, the right to remain silent and all the other protections given to the accused over the past half-century, following the U.S. Supreme Court’s 1966 decision in Miranda v. Arizona.

But juvenile offenders often don’t have a clear understanding of what those rights entail. Back in 2013, the American Academy of Child and Adolescent Psychiatry concluded that Miranda warnings are “too complex and advanced” for most juveniles. The group recommended that “police and other law enforcement authorities should utilize simplified Miranda warnings developed specifically for use with juvenile suspects.”

Now, the sheriff’s office in King County, Wash., has done just that. Working collaboratively with the public defender’s office and a community nonprofit, the sheriff consulted with brain researchers to come up with simplified warnings, which were then focus-grouped among teens. “For the most part, we have always done the same warning for kids that we do for adults,” says Sheriff John Urquhart. “We came to the conclusion, as we know now, that kids’ brains develop slower. To be fair, we thought we should revise the warning so that they understand what their constitutional rights are.”

Juvenile offenders in King County are now told repeatedly, and in different phrases, that they have a right to an attorney, underscoring that the attorney’s services are available free of charge. They not only are told that they can remain silent, but are offered an explanation that this means “you don’t have to say anything. It’s OK if you don’t want to talk to me.”

Urquhart says he’s getting the same kind of pushback that law enforcement has gotten ever since the advent of Miranda warnings — namely, that no kid will ever confess with those kinds of protections. The new warnings are just being rolled out, but so far there’s no evidence that they’re hindering cases. The Seattle Police Department — the only force in the state larger than the King County Sheriff’s Office — is now considering adopting them as well.

Laurence Steinberg, an expert on adolescent psychiatry at Temple University, describes the warnings as a “valuable change in policy.” Nevertheless, he argues that even if kids have a better grasp of their rights, they generally lack the judgment or foresight to think through the implications of the decisions they make, including whether to stay silent. Like the American Academy of Child and Adolescent Psychiatry, he recommends that an adult who cares about the child’s welfare, such as an attorney or a relative, should be present during interrogations. That’s already standard practice in many departments.


The Amazing Chief Justice Beverley McLachlin

posted by Judge_Burke @ 16:58 PM
December 13, 2017

Canada is about to lose one of the finest jurists in North America:  Chief Justice Beverley McLachlin is retiring. She made a difference in her country, but for those who have had the privilege to meet her, her influence transcended.

I first met her when invited to speak in Canada about the relationship between courts and the media. Canadian judges are traditionally quite reserved about talking to the media. There are of course good reasons to limit what a judge is willing to comment to the media about, but appropriate comment to the media promotes public understanding of our branch of government. Chief Justice McLachlin understands that.

Great court leaders have to have the courage to occasionally take on the rest of government when the independence of the judiciary is under attack. There are court leaders who are far too hesitant to speak up. Chief Justice MaLachlin with dignity had the courage to speak up when a champion for the judiciary was needed:

Supreme Court of Canada Chief Justice Beverley McLachlin fought back tears Thursday as she said goodbye after serving nearly three decades on the country’s highest court.

“Whatever lies ahead, I know that my time here will always be the centrepiece of my life,” she said.

​McLachlin, 73, announced her retirement in June, but Thursday’s hearing about the cross-border beer case of a New Brunswick man was her final day on the bench.

She received a standing ovation.

“It’s been intellectually stimulating, it’s been hugely challenging, and there’s not been a day when I haven’t thought, ‘I am the luckiest of people,’” she said.

“It has been, as they say vernacularly, a terrific ride.

McLachlin was sworn in as a justice of the Supreme Court of Canada in 1989 and became the first woman to hold the top post when she was appointed in 2000.

She said she was grateful for her “good fortune” of serving during a period when Canadian law has “grown so greatly.”

“Don’t get your hopes up respondents, that’s a general statement,” she quipped to Gerard Comeau’s lawyers, prompting laughter in the packed Ottawa courtroom.

Comeau’s lawyers are urging the court to strike down interprovincial trade barriers that led to his being nabbed by police for bringing 14 cases of cheap beer and other alcohol home from Quebec, which could have far-reaching implications.

The court has reserved decision to an undetermined date. McLachlin officially retires on Dec. 15, but will continue to weigh in on cases she has heard until next summer. A successor has not yet been named.


For the full story, go here.