Archive for January, 2018

What is Appropriate Attire in a Courtroom?

posted by Judge_Burke @ 16:59 PM
January 19, 2018

No shoes, no shirt, no justice. By providing courthouse staff with broad discretion and few guidelines, courtroom dress codes can violate constitutional rights. One solution:  getting more judges involved in deciding what’s appropriate and what is not. Here is original TMP commentary from Jeff Campbell, a third-year Harvard law student:  The Marshall Project.

There is more case law about courtroom attire than you may think. For example, a priest serving as an attorney may be required to wear non-clerical garb, at least where the dictates of his or her religion will not be violated. In La Rocca v. Lane, 37 N.Y.2d 575 (N.Y. 1975), the trial court held that the attorney, who was also a priest, could not wear his clerical collar while he was representing his client during a criminal trial. On appeal, the Court of Appeals agreed and held that the court of necessity limited defense counsel’s right to free exercise of religion in that he was compelled to remove the symbol of his religious calling, a requirement of his calling which is not unconditional or beyond dispensation. The risk that a fair trial could not be had outweighed this incidental limitation.

Chief Justice Robert N. Wilentz once wrote a memorandum entitled, “Courtroom Decorum and Respect for Courtrooms.” The memo contained a directive to trial judges not to restrict litigants from dressing as they choose. The memo stated, in pertinent part:

I do not believe we should try to influence how litigants or witnesses dress, absent something that approaches the obscene. I believe the fact finder, be it the jury or the judge, should see the litigant or witness as that person wishes to appear and reach whatever conclusions flow from that ‘fact.’ If a worker believes that he or she should dress the way he or she always does, I would not stop that; nor would I try to prevent that worker from dressing in a way he or she never does. I realize though this may not be in accord with present practice and welcome your views on it.

So, what is your take on the issue?

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Racial Profiling

posted by Judge_Burke @ 16:09 PM
January 17, 2018

If you are the victim of racial profiling, someone once said, you better hope you have a pound of marijuana in the trunk of your car–because of the marijuana, you will get a lawyer and a decent chance to be vindicated. 

But, what if you just get a ticket and no lawyer…what then? The fallout continues from Florida “walking while black” series. The Jacksonville state attorney last week issued a directive educating local police officials about the state’s pedestrian statutes, which have been enforced, a media investigation concluded, in a racially disparate fashion for years. Local officials immediately called for a suspension of the enforcement of those laws.

The article is here: ProPublica

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Just How Creative Should You Be in Your Written Orders?

posted by Judge_Burke @ 18:30 PM
January 16, 2018

Every once in a while judges issue orders that are quite creative. Those orders are usually radically different. For many judges, they acknowledge or are even envious about the creativity of those orders, but their tone makes them uncomfortable. Snarky orders don’t engender trust even if they do get widely circulated. At the same time boring orders don’t get circulated and may not get read very carefully.

So with those thoughts, if you have not seen this order it clearly is in the creative category:  US v. Bishop

 

 

 

 

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Racism in Jury Verdicts

posted by Judge_Burke @ 16:18 PM
January 10, 2018

Our nation has a history that betrays the values of equality. Racism has an ugly part in our history. And so the decision of the United States Supreme Court in a Georgia death penalty case is interesting.

The U.S. Supreme Court Monday granted relief to a condemned Georgia man whose capital case was marked by juror bias.

The juror in question reportedly told investigators after the trial that there were two kinds of black people in the world: “ni–ers and “regular black folks.” This, the justices concluded, raised questions about that juror’s service on the jury. The case now has been returned to the lower courts for review. Justice Thomas wrote a dissent on behalf of himself and two colleagues.

The New York Times has the story.

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Applying the 4th Amendment in the Age of Technology

posted by Judge_Burke @ 15:30 PM
January 8, 2018

Shawn Marie Boyne (Indiana University Robert H. McKinney School of Law) has posted StingRay Technology, the Exclusionary Rule, and the Future of Privacy: A Cautionary Tale on SSRN.

Here is the abstract:

Sometime in 2017, smartphone ownership in the United States will exceed 222 million users which will be equivalent to a market penetration rate of over 85 percent. Although millions of individuals in the United States enjoy the convenience of using smartphones, it is likely that few of those citizens understand that government agencies have used those same phones to track the location of individuals in real time as well as to access the significant and previously private information stored on those devices without a warrant. The public’s general lack of awareness of the intrusiveness of current law enforcement surveillance is but one factor responsible for creating this knowledge gap. Another root of the gap however is that the judicial institutions that we entrust with protecting our rights cannot preemptively adjust constitutional doctrines to parallel technological change. Indeed, judicial institutions have typically adopted a cautious approach to adjusting constitutional doctrines to technological developments. For example, although Apple introduced the IPhone in January 2007, it took seven years for the Supreme Court to hold that government agents must obtain a warrant to search smartphones seized incident to arrest. This article argues that the widespread deployment of cell-site-simulator technology and its warrantless use by law enforcement agencies illustrates the weakness of our current structure of Fourth Amendment protections and that we cannot rely on the judicial branch to adequately protect individual privacy rights in an age of rapidly developing technology.

In Part I of this article, I highlight the evolution of the use of StingRay technology in criminal investigations in the United States and the efforts by privacy rights organizations to elevate the standard of judicial scrutiny of those devices. In Part II, I examine two ground-breaking 2016 court decisions in which courts for the first time suppressed evidence obtained through the use of cell-site simulator technology. While United States v. Lambis is the first instance where a federal court suppressed stingray-related evidence, the decision of the Maryland Court of Special Appeals in State of Maryland v. Andrews, is the first state appellate decision to uphold a trial court’s CSS-related suppression order. Finally in Part III, I argue that the history of the government’s use of CSS technology demonstrates that in a common law system restricted to litigating current cases and controversies, the judicial branch standing alone cannot adequately protect individual privacy rights.

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The Second Amendment and Domestic Violence

posted by Judge_Burke @ 15:17 PM
January 5, 2018

There are terrorists in our country…but they are not shadowy figures from the Middle East. They are perpetrators of domestic violence. Each year more women and children die from domestic violence in numbers far greater then those who die from terrorists. And so there are bans on possession of guns by those who commit acts of domestic violence. But, do those bans violate the Second Amendment?

The Associated Press reports:

A divided federal appeals court panel on Thursday upheld the U.S. ban on guns for people convicted of misdemeanor domestic violence, even decades after the offense.

The 6th U.S. Circuit Court of Appeals judges voted 2-1 to affirm a lower court’s dismissal of the challenge to by an Ohio man who pleaded no contest in 1997 to a domestic violence charge for “knowingly causing or attempting to cause harm” to his then-wife.

The man, Terry Stimmel, was blocked in 2002 from buying a gun at a Walmart store after a background check showed his domestic violence record. He said he wanted the gun to “defend his home and family.”

Stimmel appealed unsuccessfully to the FBI and then filed a challenge to the U.S. statute on domestic violence and guns, saying it unconstitutionally undercuts his Second Amendment right to keep and bear arms and his right to equal protection under the law. He has had no other conviction but contends he has little chance of getting a pardon or otherwise having his misdemeanor conviction set aside.

However, Judge Richard Allen Griffin, joined by Judge Helene White, said federal courts have consistently upheld the gun ban for misdemeanor domestic violence convicts, who were included in a 1996 law intended to disarm domestic abusers who weren’t prosecuted for felonies but posed continued risks of violence to their families.

“The record contains sufficient evidence to reasonably conclude that disarming domestic violence (misdemeanor convicts) is substantially related to the government’s compelling interest of preventing gun violence, and particularly, domestic gun violence,” Griffin wrote.

Judge Danny Boggs dissented, saying the government offered, “at best, minimal evidence” that someone with no other domestic violence history presents a heightened risk decades later.” You can access the  ruling of the U.S. Court of Appeals for the Sixth Circuit at this link. Senior Circuit Judge Danny J. Boggs issued this dissenting opinion.

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Homeless Court in Hawaii

posted by Judge_Burke @ 15:59 PM
January 3, 2018

From Honolulu Civil Beat, via the NACDL news scan:

He was four years into homelessness and had been to court so many times the bailiff recognized him. Prichett told the judge he wanted an attorney. At the Office of the Public Defender, he learned about Community Outreach Court, a program that would resolve his legal issues and lead him to services that put a roof over his head. 

. . .

Nearing its first anniversary, the fledgling court program has helped Prichett and 34 other people dig themselves out of what he calls “that deep hole with all the tickets” in exchange for community service hours rather than jail time or fines.

The program is available to defendants with low-level, nonviolent offenses, including being in a park after hours, camping without a permit and driving without a license.

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