Archive for February, 2018

Juror Impeachment

posted by Judge_Burke @ 15:30 PM
February 28, 2018

Jason Koffler has posted What Comes Next: Expansion of the Pena-Rodriguez Racial Bias Exception to the No-Impeachment Rule on SSRN.

Here is the abstract:

In the recent case of Pena-Rodriguez v. Colorado, the Supreme Court announced a constitutional exception to the juror no-impeachment rule–a traditional evidentiary rule barring jurors from testifying about what occurred during jury deliberations in an effort to impeach the verdict. Under this exception, where a juror makes a clear statement evincing that he or she convicted a criminal defendant on the basis of racial stereotypes or animus, the trial court may consider evidence of such juror statements. While the Court framed its decision as a necessary means of protecting the Sixth Amendment right to a fair and impartial trial, the Court discussed at length the need to rid the jury system of racial bias and prejudice, seemingly placing the case within a long line of cases intended to eliminate the impact of racism in the criminal justice system. As such, the Court limited its holding, and the newly created exception, strictly to instances of racial bias. 

While the Supreme Court limited the Pena-Rodriguez exception to instances of only racial bias, judges and commentators alike have questioned whether such a limitation is possible in practice.

Justice Alito noted as much in his dissent, arguing that there is no principled basis for limiting this exception to race. This Note explores this question: will, and should, the Pena-Rodriguez exception remain limited to race. First, this Note analyzes the jurisdictions in which a bias exception had already existed before Pena-Rodriguez to determine whether these exceptions have expanded beyond race to date. Next, this Note examines the related doctrinal area of voir dire peremptory strikes to determine whether the expansion of a race-only Batson exception to other types of prejudice can shed light on Pena-Rodriguez’s potential evolution. Finally, using the states’ experience with these exceptions and the Court’s own past experience under Batson, this Note demonstrates that the narrow exception created by Pena-Rodriguez is likely to, and should, expand beyond race, and suggests that, in addition to procedural barriers, incorporation of Fourteenth Amendment principles can ensure the no-impeachment rule continues to serve its purpose as a safeguard of the jury system.


Just Who is that Picture Of?

posted by Judge_Burke @ 15:30 PM
February 27, 2018

If you go in many courthouses in Canada and the United States, you will see portraits of judges. Many of them are old pictures, and some of them are paintings. Have you ever wondered, who are these people? Well, as this Associated Press story illustrates, we all too frequently have no clue who these people are. 

Massachusetts court: Do you know this justice?


BOSTON — A man’s portrait has hung for years outside the chambers of the chief justice on Massachusetts’ highest court. The problem? No one knows who he is.

It’s a mystery that has stumped officials at the Supreme Judicial Court for more than a decade. Now they’re turning to the public for help in cracking the case of the unknown justice.

“I basically said, listen, if we have not been able to identify it, why don’t we set loose the public to see if they can put on their Sherlock Holmes’ hats and help us to track down who this elusive and mysterious justice is?” Chief Justice Ralph Gants, who has served on the court since 2009, said in an interview.

Officials say they believe the man may have sat on the bench sometime between 1780 and 1820.

Gants said they have essentially ruled out that the man was a chief justice, but say he must have been an associate justice because they can’t imagine why else his portrait be in the court, which traces its roots to 1692.

Even the artist remains unknown.

Clifford Allen, director of education and public programs for the court, said officials years ago attempted to identify all the portraits of the retired justices and put them on a CD. The anonymous painting was the only one they couldn’t figure out, he said.

Since then, extensive research has turned up few clues.

Allen said he has tried matching the portrait with all of the justices who served during that era. He even ran the portrait through the Google program that matches a persons’ likeness to a painting, he said.

The high court says the person that comes forward with reliable authentication of the portrait will be invited to the court to stand with Gants as he unveils a plaque bearing the mystery justice’s name. They’ll also get a guided tour of the John Adams Courthouse.​


Forensic Science

posted by Judge_Burke @ 15:30 PM
February 26, 2018

Jonathan J. Koehler (Northwestern University – Pritzker School of Law) has posted How Trial Judges Should Think About Forensic Science Evidence (To Appear in Judicature Spring 2018, Vol. 102, Number 1) on SSRN.

Here is the abstract:

It is undeniable that there are serious problems with the presentation of forensic science evidence in U.S. courtrooms. Comprehensive studies by scientific bodies find that many forensic sciences have not been validated and none have provided sufficiently rigorous scientific evidence that supports a claim of low rates of error. However, trial courts and appellate courts have largely ignored these problems and have done nothing to motivate forensic scientists to improve the scientific quality of their courtroom testimony. This paper provides trial judges with guidance on how they should think about and evaluate the reliability of forensic science evidence.


The Blurring Line Between Civil & Criminal Mental Disability Law

posted by Judge_Burke @ 15:30 PM
February 23, 2018

Michael L. Perlin, Deborah Dorfman and Naomi Weinstein (New York Law School, Center for Public Representation and New York State Unified Court System – Mental Hygiene Legal Service) have posted ‘On Desolation Row’: The Blurring of the Borders Between Civil and Criminal Mental Disability Law, and What It Means For All of Us on SSRN.

Here is the abstract:

One of the great tensions of mental disability law is the unresolved, trompe d’oeil question of whether it is a subset of the civil law, of the criminal law, or something entirely different. The resolution of this question is not an exercise in formalism or pigeonholing, but is critical to an understanding of the future direction of mental disability law, the deeper meaning of US Supreme Court cases and important state legislative initiatives, and the whole array of hidden issues and agendas that lurk under the surface of mental disability law-decision making. 

As mental disability law has matured, a dual system appeared to have fallen into place: in civil cases, a patient was generally entitled to a relatively broad panoply of procedural and substantive due process rights in involuntary civil commitment and institutional rights decision making; on the other hand, the Supreme Court has made it explicit that defendants convicted of crimes would have fewer substantive treatment rights, specifying that at least in the area of the right to refuse treatment, “penological interests” would “trump” fundamental civil libertarian interests, and that insanity acquittees could have fewer substantive and procedural due process rights at retention and review hearings than would civil patients. 

Yet, subsequent important developments cast new light on this separation and call into question the future of a two-tiered mental disability law system: 

• the proliferation of so-called assisted outpatient treatment (AOT) statutes, of which New York’s Kendra’s Law is the most well-known example; 
• the expansion of sexually violent predator acts (SVPA), of which New Jersey’s Megan’s Law is often seen as the exemplar but which have been subject to Supreme Court scrutiny in cases from other jurisdictions such as Kansas v. Hendricks, Seling v. Young, Crane v. Kansas, and United States v. Comstock,
• the policy implications of a system that provides no meaningful continuity of care, resulting in large numbers of persons continually “shuttling” between jails (or prisons) and mental hospitals,
• and the sanctioning of the imprisonment of insanity acquittees in prison facilities. 

These overlaps blur the borderline between civil and criminal mental disability law in very troubling and problematic ways, and threaten to make this area of the law even more pretextual than it currently is. Laws such as these enforce social control in punitive ways under the guise of the beneficence of civil commitment. Although the universes of individuals subject to statutes such as Kendra’s Law or Megan’s Law, those who are shuttled from jail to hospitals to the street for minor crimes, or those who have been found not guilty by reason of insanity appear quite different – in the first instance, persons not subject to the inpatient involuntary civil commitment power but who may be in danger of deterioration in the absence of forced treatment; in the second, persons who have been charged and/or convicted of violent sexual offenses who are targeted as potentially recidivistic pedophiles; in the third, persons charged with crimes that basically involve “nuisance activities,” and, in the fourth, individuals who have been found not responsible for the antecedent criminal action – there are important, and troubling, points in common in the structures of these kinds of laws. Moreover, they all demonstrate comfort with a system in which many functions of civil and criminal mental disability law merge. Remarkably, until now, virtually no attention has been paid to this phenomenon.

In this paper, we will first trace the development of the two-tiered mental disability law system (with a special focus on the right to refuse treatment). We will then review developments in AOT law (focusing on Kendra’s Law), SVPA law, continuity of care issues, and the imprisonment of insanity acquittees, and the blurring effects of each area and implications for the rest of mental disability law. We will next discuss those “blur” areas that may serve to, optimally, limit pretextuality (the creation and expansion of mental health courts, and the application of the Americans with Disabilities Act to cases arising out of the criminal justice system). We will then look at these issues from the perspectives of therapeutic jurisprudence, and then conclude with some modest recommendations.


Professor Doug Berman at Sentencing Law & Policy blog links to and posts report excerpts on Criminal Justice Reform Trends.

From the excerpt:

The United States is a world leader in incarceration rates and keeps nearly 7 million persons under criminal justice supervision. More than 2.2 million are in prison or jail, while 4.6 million are monitored in the community on probation or parole. Changes in sentencing law and policy, not changes in crime rates, have produced the nation’s high rate of incarceration. Scaling back incarceration will require changing policy and practice to reduce prison populations, address racial disparity, and eliminate barriers to reentry. In recent years a number of states have enacted reforms designed to reduce the scale of incarceration and impact of the collateral consequences of a felony conviction. This briefing paper describes key reforms undertaken in 2017.


Have You Ever Had Regrets?

posted by Judge_Burke @ 15:30 PM
February 21, 2018

Early in my career I got a call from a new colleague. He had no experience in criminal law and he was troubled by a sentence he imposed. He had sent a man to the workhouse for 60 days for stealing one pack of cigarettes. Although the man had many prior thefts, my colleague felt he had gone too far. My response was:  you can fix it.

But, there are times when you cannot fix it. In the cigarette case, Minnesota law at the time allowed a judge to fix it…but, had it been a prison sentence, it could not have been fixed.

Reflecting on what we do and the consequences we impose on others is a path toward improvement as a judge. Evelyn Baker, a retired Missouri circuit court judge, has this opinion piece in The Washington Post under the headline “I sentenced a teen to die in prison. I regret it.”

Here are excerpts:

“You will die in the Department of Corrections.” Those are the words I spoke as a trial judge in 1997 when I sentenced Bobby Bostic to a total of 241 years in prison for his role in two armed robberies he committed when he was just 16 years old.

Bostic and an 18-year-old friend robbed a group of six people who were delivering Christmas presents to a needy family in St. Louis.  Two shots were fired.  A bullet grazed one person, but no one was seriously injured.  The two then abducted and robbed another woman — who said she was groped by Bostic’s accomplice before the two released her. They used the money they stole from her to buy marijuana.  Despite overwhelming evidence against him, Bostic chose to go to trial.  He was found guilty.

Bostic had written me a letter trying to explain his actions, but despite this, he had not, in my view, demonstrated sufficient remorse.

I told him: “You are the biggest fool who has ever stood in front of this court. . . . You made your choice. You’re gonna have to live with your choice, and you’re gonna die with your choice. . . . Your mandatory date to go in front of the parole board will be the year 2201.  Nobody in this room is going to be alive in the year 2201.”

I thought I was faulting Bostic for his crimes.  Looking back, I see that I was punishing him both for what he did and for his immaturity.  I am now retired, and I deeply regret what I did.  Scientists have discovered so much about brain development in the more than 20 years since I sentenced Bostic.  What I learned too late is that young people’s brains are not static; they are in the process of maturing.  Kids his age are unable to assess risks and consequences like an adult would.  Overwhelming scientific research shows that children lack maturity and a sense of responsibility compared with adults because they are still growing.  But for the same reason, they also have greater capacity for reform.

That’s perhaps not surprising.  As a society, we recognize that children and teens cannot and do not function as adults.  That’s why below a certain age you cannot vote, join the military, serve on a jury or buy cigarettes or alcohol….

Most courts have understood the Supreme Court’s 2010 decision to mean that the Constitution prohibits sentences like the one I gave to Bostic.  While I did not technically give him “life without parole,” I placed on his shoulders a prison term of so many years combined that there is no way he will ever be considered for release.  He won’t become eligible for parole until he is 112 years old — which means he will die in prison, regardless of whether he rehabilitates himself or changes as he grows older.

I see now that this kind of sentence is as benighted as it is unjust.  But Missouri and a handful of other states still allow such sentences, and the Missouri courts have affirmed the sentence I handed down.

This week, the Supreme Court will consider whether to take Bostic’s case and, if the justices do, they will decide whether his sentence is an outcome the Constitution can countenance.  The court should take the case and give Bostic the chance I did not: to show that he has changed and does not deserve to die in prison for something he did when he was just 16.

Imposing a life sentence without parole on a child who has not committed murder — whether imposed in a single sentence or multiple sentences, for one crime or many — is wrong.  Bostic was immature, and I punished him for that.  But to put him, and children like him, in prison for life without any chance of release, no matter how they develop over time, is unfair, unjust and, under the Supreme Court’s 2010 decision, unconstitutional.


What We Do is Important & We Need to Get it Right

posted by Judge_Burke @ 16:08 PM
February 20, 2018

​Every day there is something to read about how the criminal courts work. There is frankly far too much to read. The vast majority of the time, the system gets it right because prosecutors, defense counsel, and judges care and are committed to insuring justice and fairness. But, occasionally the system fails.

We can learn from mistakes–indeed we need to learn from mistakes. So, here are a few examples of the justice system for you to think about:

THE ADVOCATE A Louisiana judge orders the release of a man wrongfully convicted of rape and held in prison for 38 years. He barely received a defense at trial, the record reveals.

FLORIDA TIMES-UNION A state attorney in Florida, Jacksonville’s Melissa Nelson, hires a defense attorney to lead the state’s first-ever conviction integrity unit.

THE COURIER-JOURNAL In a rare rebuke, a Kentucky judge criticized prosecutors for vindictively pursuing a case against two defendants who won a wrongful conviction lawsuit.


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.