Archive for March, 2018

Should Judges Surf the Web?

posted by Judge_Burke @ 19:18 PM
March 22, 2018

Judge Richard Posner would do it, and as this story from the Associated Press illustrates, Supreme Court Judges do it too:

Justice Sonia Sotomayor was only following the lead of her chief during Tuesday’s arguments over crisis pregnancy centers when she said she visited the website of one of the centers involved in the Supreme Court case.

When Chief Justice John Roberts did something similar seven years ago, no one uttered a peep. But after Sotomayor’s comment, Justice Anthony Kennedy piped up.

“Well, in this case I didn’t go beyond the record to look on the internet because I don’t think we should do that,” Kennedy said.

Going beyond the record, in legal terms, refers to material that is not part of the court record and so untested by the adversarial process.

But sticking to the record in Supreme Court cases can sometimes be more of a notion than a hard-and-fast rule.

In a case on campaign contribution limits in 2011, Roberts said he consulted the website of one of the parties to the case that morning and asked a question about what he saw. During arguments in 2016 over a Texas law that restricted abortion clinics, Justice Samuel Alito made use of an article from the Huffington Post. Justice Stephen Breyer will sometimes begin a question by saying he had his clerks look something up.

And even Supreme Court opinions sometimes go outside the record. In a 2012 opinion in an immigration dispute between Arizona and the Obama administration, Justice Antonin Scalia wrote about comments President Barack Obama made at a news conference discussing the just-unveiled plan to protect young immigrants from deportation.

In 2007, Kennedy himself cited anecdotal evidence in a supporting brief from 181 women who said they were injured by abortion in his opinion for the court upholding a federal ban on a procedure called partial-birth abortion by its opponents. “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow,” Kennedy wrote, referencing the women’s brief.

In her dissent, Justice Ruth Bader Ginsburg criticized Kennedy for reaching a result that was not supported by the extensive record developed in the lower courts. She said the court was invoking “an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “(s)evere depression and loss of esteem.” 


So should you surf the web, too? Maybe…but there are reasons to be cautious. Judges can conduct legal research online for cases not cited by the parties, but using the internet to find facts concerning the parties or subject matter poses ethical problems, according to an ABA ethics opinion.

Finding “adjudicative facts” about a case online is generally banned by the ABA Model Code of Judicial Conduct, according to ABA Formal Opinion 478. An exception allows judges to go online for facts that are subject to judicial notice because they are generally known and not subject to reasonable dispute.

Adjudicative facts concern the immediate parties, including who did what, where, when, how, and with what motive or intent, the ethics opinion explains.

Judges’ decisions must be based on evidence presented on the record or in open court, and that is available to all the parties, the ethics opinion says. In an adversarial system, judges should not combine the role of advocate, witness and judge.

The opinion cites Model Rule 2.9(C) of the Model Code, which states: “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.” Comment 6 to the rule says the ban on investigating facts “extends to information available in all mediums, including electronic.”

The opinion presents guidelines for independent factual research by judges.

• Is additional information needed to decide a case? If so, that type of information must be provided by the parties or the lawyers, or must be subject to judicial notice.

• Is the purpose of a judge’s inquiry to corroborate facts, discredit facts, or fill a factual gap in the record? If the facts are adjudicative, it is improper for the judge to do the research.

• Is the judge looking for general or educational information needed for a better understanding of a subject unrelated to a pending or impending case? If so, the inquiry is appropriate.

• Is the judge seeking background information about a party or about the subject matter of a pending or impending case? If the information is of factual consequence in determining a case, it must be subject to the adversary process.


American Judges Association in the News

posted by Judge_Burke @ 14:30 PM
March 21, 2018

Rightfully convicted, wrongfully sentenced.

You may know about the “conviction integrity units” that have popped up in district attorneys’ offices around the country to ferret out wrongful convictions. Now a new Philadelphia prosecutor has proposed “sentencing review units” to tackle a different problem:  cases where the guilty have been given excessive sentences.

In collaboration with The Nation, TMP’s Eli Hager has a story:  THE MARSHALL PROJECT


Thinking about Leadership and what Values that Entails

posted by Judge_Burke @ 14:47 PM
March 20, 2018

Great Britain has had its own set of scandals. In response, England has an advisory commission to develop principles relating to public life. The principles are a reminder of what public life should be about: selflessness, integrity, objectivity, accountability, openness, honestly & leadership. The Committee’s website and blogsite are worth a visit.


How Should We Instruct Juries About Reasonable Doubt?

posted by Judge_Burke @ 14:51 PM
March 16, 2018

Every day somewhere several juries are given instructions on reasonable doubt. Most of these instructions are given in language that few of us think about: “That is a form jig.” But, perhaps thinking about the language we use is worthwhile. 

Michael D. Cicchini (Independent) has posted Instructing Jurors on Reasonable Doubt: It’s All Relative (8 Calif. L. Rev. Online 72 (October 2017)) on SSRN.

Here is the abstract:

The Constitution protects us from criminal conviction unless the government can prove guilt beyond a reasonable doubt. However, this high burden is only as formidable as the words used to describe it to the jury. And many courts describe it in ways that lower, and sometimes even shift, the burden of proof.

This Article identifies four common jury-instruction flaws — the important-affairs-of-life analogy, the alternative-hypothesis test, the unreasonable-doubts warning, and the search-for-the-truth mandate — and then explains, both logically and empirically, how each one violates our due process rights.

After discussing the reasonable-doubt standard and common jury instruction flaws in Parts I and II, Part III discusses my attempt to win a very modest reform of Wisconsin’s jury instruction — a disastrous piece of work that incorporates all four of these burden-lowering defects. However, because my reform effort achieved only limited success, this Article advocates for a more aggressive approach: rewriting the burden of proof jury instruction from scratch.

This new jury instruction, presented in Part IV, is rooted both in logic and empirical evidence. Specifically, it avoids the four defects discussed in this Article. More generally, it focuses the jury’s attention on the level of proof the government must present, rather than on the kind of doubt the defense must create. This ensures that the burden remains with the government and is not shifted to the defendant.

Finally, and most importantly, to avoid the problems associated with nearly every attempt to define “proof beyond a reasonable doubt,” the proposed instruction describes the burden on a relative basis by comparing it to lower burdens of proof. Because these lower burdens — especially the “more likely than not” standard — are far more intuitive, they offer the best framework for explaining the high level of proof the government must satisfy to win a criminal conviction.


Who is Going Through Your Trash?

posted by Judge_Burke @ 20:23 PM
March 13, 2018

In California v. Greenwood, 486 U.S. 35 (1988), the United States Supreme Court held that the warrantless search and seizure of garbage bags left at the curb would violate the Fourth Amendment only if the defendant manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable (how convoluted is that?).

Although Justices Brennan and Marshall dissented, that has remained the law (mostly). Justice White, writing for the majority, did say that individual states might decide the issue differently.

In 2015, the Minnesota Supreme Court rejected an opportunity to decide that the Minnesota Constitution should afford greater privacy rights. Justice David Lillehaug wrote in his dissent, “Minnesotans have a reasonable expectation of privacy when they put their household waste in opaque bags and do what the government requires: place the bags in closed containers for collection, compaction, and conveyance to a lawful disposal site. I respectfully disagree with the majority that the Minnesota Constitution does not require a search warrant before law enforcement may seize and search such household waste… Since the 1980s, when Oquist and Greenwood were decided, the nature of household waste has changed. This is not your grandfather’s garbage. Vastly more household waste is being recycled and the digital revolution is in full flourish. For good public policy reasons, government encourages and often requires citizens to segregate and set out or deliver for recycling.”

So, how would you feel if the local newspaper sent a reporter out to look at your garbage? Sound outlandish? Well, it happened in Portland, Oregon. To see the reaction go here.

There is a slightly cynical view of the United States Supreme Court (and perhaps some state supreme courts), that in order to apply the 4th Amendment, the justices just ask, “Could this happen to me?” Well, it could—someone might just decide to go through the justices’ garbage, so maybe California v. Greenwood is no longer the law.


Our American Judges Association Star

posted by Judge_Burke @ 15:30 PM
March 12, 2018

An Interview with Judge Jerrauld Jones

The Honorable Judge Jerrauld C. Jones has held office in each branch of government. He serves as Norfolk Circuit Court’s Chief Judge and his son, Jay Jones, is a Delegate for Virginia’s 89th District. Pull up a chair and listen to host Cathy Lewis from 89.5 WHRV-FM as she learns about the life of Judge Jones.


Looking for Help With Your Drug Court?

posted by Judge_Burke @ 15:30 PM
March 9, 2018

Caroline Cooper, Roger J Peters and Jeffrey Kushner (Justice Consultant, Researcher, University of South Florida and Government of the State of Montana – Montana Supreme Court) have posted A Technical Assistance Guide for Drug Court Judges on Drug Court Treatment Services on SSRN.

Here is the abstract:

This Guide has been prepared for judges newly assigned to preside over a drug court program to serve as a quick primer to assist them in (a) becoming familiar with the key elements and evidence-based practices that should be reflected in the treatment services provided to drug court participants, and (b) working with local treatment provider(s) to ensure that these services are provided. The Guide is intended to serve as an introductory reference, addressing treatment related issues and practices that are critical to effective drug court program operations but too frequently not reflected in their design or services, as evidenced by numerous site visits to local drug courts conducted by the BJA Drug Court Technical Assistance Project at American University. Many of these visits have been to rural areas where treatment resources are often limited and we have therefore devoted a special chapter (See Chapter VII) to challenges rural drug courts are encountering and solutions that have been effective. Some of the challenges rural drug courts encounter may also have relevance to large, sprawling urban areas where efficient public transportation is limited and judges must cover multiple court locations. 

The Guide is designed to be used in conjunction with nationally recognized drug court treatment resources, including: NDCI’s Evidence-based Practices ; NIDA’s Principles of Substance Abuse Treatment for Criminal Justice Populations3, the extensive additional resources available through NIDA and SAMHSA , and the BJA/NIJ Research to Practice resources.


50 Years After the Kerner Commission

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


When dozens of urban areas across the country erupted in flames in the late 1960s, a commission appointed by President Lyndon B. Johnson concluded that pervasive poverty and racism were major causes of the unrest.

Fifty years later, those twin conditions are again causing friction in American society, say the authors of a new report, who include the last living member of the National Advisory Commission on Civil Disorders. The report calls for a commitment by political leaders to large-scale social spending at a time when the administration of President Trump and a Republican-controlled Congress are preparing for drastic cuts to programs for low-income families and individuals.

“Healing our Divided Society,” a report to be released Tuesday by the Eisenhower Foundation, acknowledges strides in closing the economic, social and political gaps between racial groups in America. The African American and Hispanic middle classes have grown significantly, and the United States elected and reelected a black man as president.

But since the late 1960s, the percentage of American children living in poverty has increased, income inequality and the wealth gap have widened, and segregation has crept back into schools and neighborhoods.

“Racial and ethnic inequality is still with us. It’s a real problem and it is worsening,” said Fred Harris, a former senator and member of the panel that came to be known as the Kerner Commission, named for its chairman, Otto Kerner Jr., a Democrat who was then governor of Illinois.” 


The Kerner Omission.

Fifty years after the so-called “Kerner Commission,” a landmark federal report on race, poverty, and violence, the missed opportunities are plain to see. Despite the commission’s focus on economic and racial inequality the Johnson and Nixon administrations turned the so-called “War on Poverty” into a “War on Crime,” the destructive vestiges of which are with us today.

Nicole Lewis has a feature story in THE MARSHALL PROJECT


Are Our Criminal Courts Too Much Like “McJustice”?

posted by Judge_Burke @ 15:30 PM
March 7, 2018

A friend once drew an analogy between many crowded criminal courts and McDonalds. We are just McJustice. Steven Zeidman (CUNY School of Law) has posted Eradicating Assembly-Line Justice: An Opportunity Lost by the Revised American Bar Association Criminal Justice Standards (Hofstra Law Review, Vol. 46, No. 293, 2017) on SSRN.

Here is the abstract:

Every day in criminal courts across the country, thousands of people enter guilty pleas within hours of their arrest at their initial appearance or arraignment before a judge. The practice is so rampant that it has spawned its own phrase — “meet ‘em, greet ‘em, and plead ‘em” — that derisively, but accurately, captures the routine. At this critical moment in time, none of the institutional players — judge, prosecutor or defense counsel — has engaged in any kind of factual or legal investigation of the charges, or knows much of anything about the defendant, the arresting officer, or any potential victim or witnesses. And yet, the majority of misdemeanor cases will end then and there. While all institutional players bear responsibility for the blight of meet, greet, and plead, this Article focuses on whether defense counsel is providing constitutionally required effective assistance pursuant to the Sixth Amendment and adhering to the standards of professional behavior outlined in the American Bar Association’s (“ABA”) Standards for Criminal Justice.

The ABA Standards for Criminal Justice are becoming more directly relevant when courts consider whether counsel provided constitutionally required effective assistance. After many years of minimizing the impact of the standards when analyzing whether an attorney’s performance met constitutional muster, the Supreme Court now seems more inclined to take the Standards into active consideration and almost imbue them with constitutional heft. As courts look to the ABA Standards to define the parameters of effective assistance in the plea bargaining context, it is essential that the Standards take every occasion to finally, clearly, directly and unequivocally condemn meet, greet, and plead.

This Article examines the latest incarnation of the ABA Standards for the Defense Function adopted in 2015 and its impact on meet, greet, and plead. The revisions presented an opportunity, if not a necessity, to make clear that defense counsel should not recommend to a client that he accept a guilty plea at arraignment, and that counsel should advise a client more affirmatively to reject any guilty plea offered at arraignment. In the final analysis, the new standards send mixed messages and are a lost opportunity to finally rid the criminal justice system of the very symbol of assembly-line justice.


Decriminalizing Childhood

posted by Judge_Burke @ 15:30 PM
March 6, 2018

Andrea Dennis (University of Georgia School of Law) has posted Decriminalizing Childhood (Fordham Urban Law Journal, Vol. 45, 2018) on SSRN.

Here is the abstract:

Even though the number of juveniles arrested, tried and detained has recently declined, there are still a large number of delinquency cases, children under supervision by state officials, and children living in state facilities for youth and adults. Additionally, any positive developments in juvenile justice have not been evenly experienced by all youth. Juveniles living in urban areas are more likely to have their cases formally processed in the juvenile justice system rather than informally resolved. Further, the reach of the justice system has a particularly disparate effect on minority youth who tend to live in heavily-policed urban areas.

The original concept of the juvenile justice system consisted of a singular, informal juvenile court focused on rehabilitating youthful offenders engaged in criminal and noncriminal conduct to help them become productive citizens.

The original system has been replaced by a network of juvenile, criminal, and specialty courts, any one of which may adjudicate a child’s court case. Once juveniles enter this complex system, many negative legal impacts can occur, including lengthy periods of community supervision or incarceration and substantial fines and fees. Socially, court-involved youth are more likely to reoffend, experience physical or mental health problems, have poor educational outcomes, and have difficulty in the job market in the future.

This Article considers legislative decriminalization of juvenile misconduct, an underutilized method for juvenile justice reform. Decriminalization can prevent youth from entering the juvenile justice system and the problems that stem from system contact. This Article endeavors to begin a conversation among youth scholars, advocates, and policymakers about decriminalization as a mechanism for reforming the juvenile justice systems in the United States.