Archive for February, 2018

Should a Judge Remove the Defendant’s Choice of Attorney?

posted by Judge_Burke @ 15:43 PM
February 15, 2018

David McGowan (University of San Diego School of Law) has posted The Criminal Conflicts Paradox on SSRN.

Here is the abstract:

Prosecutors may seek to disqualify defense counsel based on conflicts among defendants. In doing so prosecutors do not assert rights of current, former, or prospective clients, as in the usual conflicts assertion. They instead assert other interests, the most concrete of which is the interest in not wasting resources in a retrial if a conviction is tainted by a conflict.

Wheat v. United States sets a lenient standard for assessing such assertions. Judges may disqualify defense counsel even if the relevant parties are willing to waive conflicts that should be waivable as both a positive and normative matter. Wheat rested this standard on a set of concerns that are insufficient to justify its holding. As colloquy at argument showed, the Court was particularly concerned that defendants would not be held to waivers but instead would challenge on appeal even knowing and intelligent waivers of waivable conflicts.

Wheat was wrong on the facts, wrong on the law, and sets bad policy. It was wrong on the facts because the conflict at issue was waivable and the trial court abused its discretion in holding that it was not. It was wrong on the law because it collapsed materially different conflicts into one category and because it refused to decide whether a knowing waiver would bind a court. It set bad policy because it sought to offset the free option of appeal with a free option to prosecutors to challenge defense counsel.

The Court’s concern illustrates the risk to defendants of permissive standards of appeal. A defendant unable to commit credibly to a waiver may lose the benefits a waiver would provide, with little or no gain to offset the loss. This paper frames the problem of permissive standards of appeal by drawing a partial analogy to the familiar “lemons” framework. The problem is discussed more fully in future work.


I Will Just Look it Up on the Internet

posted by Judge_Burke @ 15:30 PM
February 14, 2018

In Formal Opinion 478, the ABA Standing Committee on Ethics and Professional Responsibility addresses the restrictions imposed by the 2007 ABA Model Code of Judicial Conduct on a judge searching the internet for information helpful in deciding a case. The ABA opinion concludes that Rule 2.9(C) of the Model Code prohibits a judge from researching adjudicative facts on the internet unless a fact is subject to judicial notice.

Rule 2.9(C) clearly and definitively declares that “a judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.” Acknowledging the integral part that search engines play in everyday life, Comment 6 to Rule 2.9 bluntly tells judges that the prohibition “extends to information available in all mediums, including electronic.”

While recognizing that the internet, including social networking sites, provides immediate access to a limitless amount of information potentially useful to a judge laboring over difficult case-specific factual issues, the recent ABA opinion highlights two important justifications for the prohibition against electronic factual research.

First, information found on the web may be fleeting, biased, misleading and sometimes downright false. Second, unless the narrow judicial-notice exception applies, gathering even trustworthy information from the internet compromises the division of responsibility between the judge and the parties so essential to the proper functioning of the adversarial system. The committee emphasizes this point by describing the “defining feature” of the judicial role as a judge’s duty to base decisions only on evidence presented in court and available to the parties.

The limitations on independent factual research by judges are not solely a matter of judicial ethics. Rule 2.9(C) is one of the few provisions of the Model Code that integrates an evidentiary rule into an ethical standard. Rule 2.9(C) permits a judge to consider a fact from sources other than the evidence submitted by the parties as long as the judge abides by his or her jurisdiction’s requirements for taking judicial notice of the fact. Incorporating a rule of evidence into an ethical rule complicates the analysis because, as noted by the committee, judicial notice standards and procedures vary significantly from jurisdiction to jurisdiction. 

For more of this article which appeared in the ABA Journal, go here.


Bush v. Gore, the Sequel

posted by Judge_Burke @ 15:30 PM
February 13, 2018

There are many people who believe that Bush v. Gore was a very political decision, which may explain why the majority in that decision arguably limited the case’s precedential authority. While the Court in Bush v. Gore stated that its “‘consideration is limited to the present circumstances,’ I believe that statement was not meant to deprive the decision of all precedential weight but, rather to make clear that the precise facts of the case were unique.”  Chief Justice Roberts said  at his confirmation hearing.

So, what now of the case from the Commonwealth of Pennsylvania? The Supreme Court of  Pennsylvania held that there was unconstitutional gerrymandering…and they ruled that gerrymandering violated Pennsylvania’s Constitution. So, will the present United States Supreme Court become the modern day “activist” or “partisan” court?

As reported in How Appealing:

Supreme Court signals it might block Pennsylvania ruling against partisan gerrymandering

David G. Savage of The Los Angeles Times has this report. The petition seeking the United States Supreme Court’s intervention in a case decided squarely on independent state grounds cites Bush v. Gore as the reason the United States Supreme Court should intervene.


Something About Hawaii You May Have Missed

posted by Judge_Burke @ 19:17 PM
February 12, 2018

The issue will perhaps never arise in your court, but in light of the American Judges Annual Conference being held in Hawaii this September, it might be of interest.

The Washington Times recently reported:

A criminal defendant’s controversial use of the Hawaiian language during a Wailuku District Court hearing this week has prompted the Aloha State to revise its policy for providing interpreters.

The Hawaii State Judiciary on Friday announced it will start offering Hawaiian language interpreters, albeit two days after Wailuku District Judge Blaine Kobayashi issued a bench warrant for the arrest of Samuel Kaeo, a Maui man who refused to answer the judge’s questions in English. 

Mr. Kaeo, though an English speaker, addressed the court in Hawaiian, which has also been recognized in the state constitution alongside English as an official language since 1978.

“The Judiciary will provide or permit qualified Hawaiian language interpreters to the extent reasonably possible when parties in courtroom proceedings choose to express themselves through the Hawaiian language,” the state’s court system said in a press release.

“The Judiciary will develop implementation procedures for this policy, and welcomes input from the community,” the announcement said.”