Archive for May, 2018

Be Careful With These Tools

posted by Judge_Burke @ 14:30 PM
May 31, 2018

Erin Collins (University of Richmond School of Law) has posted Punishing Risk (Georgetown Law Journal, Forthcoming) on SSRN.

Here is the abstract:

Actuarial recidivism risk assessments – or statistical predictions of the likelihood of future criminal behavior – drive a number of core criminal justice decisions, including where to police, who to release on bail, and how to manage correctional institutions. Recently, this predictive approach to criminal justice has entered a new arena: sentencing. Actuarial sentencing has quickly gained a number of prominent supporters and is being implemented across the country. This enthusiasm is understandable. Its proponents promise that actuarial data will refine sentencing decisions, increase rehabilitation, and reduce reliance on incarceration. 

And yet, in the rush to embrace actuarial sentencing, scholars and policy makers have overlooked a crucial point: actuarial risk assessment tools are not intended for use at sentencing.

In fact, their creators explicitly warn that these tools were not designed to aid decisions about the length of a sentence or whether to incarcerate someone. And yet, that is precisely how those who endorse actuarial sentencing – including the American Law Institute in the recently revised Model Penal Code for Sentencing – suggest they should be used. 

Actuarial sentencing is, in short, an unintended, “off-label” application of actuarial risk information. This Article re-examines the promises of actuarial sentencing in light of this observation and argues that it may cause a number of equally unintended and detrimental consequences. Specifically, it contends that this practice distorts, rather than refines, sentencing decisions. Moreover, it may increase reliance on incarceration – and for reasons that undermine the fairness and integrity of the criminal justice system.


Is There More to this Decision?

posted by Judge_Burke @ 15:30 PM
May 30, 2018

The United States Constitution does not permit a warrantless police search of a vehicle parked in a driveway next to the owner’s house, the Supreme Court ruled Monday. The court rejected an argument by Virginia police who claimed their search of a motorcycle believed to be stolen fell under the “automobile exception” to the Fourth Amendment, which allows broader searches of vehicles stopped along the side of the road.

Read the decision: U.S. SUPREME COURT

Read an analysis of the decision: SCOTUSBLOG 

Justice Clarence Thomas wrote a separate opinion in which he agreed with the majority’s resolution of the Fourth Amendment question. But, Thomas stressed that the case was before the justices because, if Collins is correct and his Fourth Amendment rights were violated, the state courts would have to apply the exclusionary rule, which prohibits the government from using evidence obtained in violation of the Constitution, and “potentially suppress the incriminating evidence against him.”

Thomas expressed “serious doubts” about the Supreme Court’s authority to require states to follow the exclusionary rule, which is “not rooted in the Constitution or a federal statute,” and he urged the court to take up that question. The exclusionary rule prevents the government from using most evidence gathered in violation of the United States Constitution. The decision in Mapp v. Ohio established that the exclusionary rule applies to evidence gained from an unreasonable search or seizure in violation of the Fourth Amendment. While the exclusionary rule was once the focus of calls to eliminate it, most of that effort had come to a halt up until Justice Thomas’s most recent opinion.


It is Just a Misdemeanor

posted by Judge_Burke @ 18:33 PM
May 25, 2018

Anyone who has been around the criminal justice system even briefly has heard, “It is just a misdemeanor!” Thinking seriously about misdemeanor offenses happens. We are concerned about domestic violence. We are concerned about drunk driving. But, an argument can be made that too often we trivialize misdemeanors.

Eisha Jain (University of North Carolina School of Law) has posted Proportionality and Other Misdemeanor Myths (98 Boston University Law Review 953 (2018)) on SSRN.

Here is the abstract:

Criminal law theory is laden with faulty assumptions about misdemeanors. This Symposium Article summarizes five key mistaken assumptions — “misdemeanor myths” — that distort misdemeanor processing: (1) the stakes are small, (2) criminal procedure matters, (3) prosecutors maximize sentences, (4) pleas are informed, and (5) the sentence matters most. In addition, it examines emerging relief efforts, such as expungements, that offer the promise of reducing disproportionate penalties. It argues that while certain initiatives hold the promise of reform, they are too often laden with onerous procedural and substantive hurdles. As a result, they offer little more than palliative relief to the rare few. They perpetrate the procedural hassle that characterizes misdemeanor courts, rather than offering relief from it. Conceptually, this approach gets it backwards. It gives the misdemeanor system far more credit than is warranted in leading to outcomes that do not offend basic principles of proportionality and procedural fairness. This Article argues that relief efforts should focus on alleviating the well-documented systemic failures of the misdemeanor system, rather than assuming that the state has a legitimate penal rationale for imposing collateral penalties in the first place.


Of Course Fingerprints are Reliable (Or are They?)

posted by Judge_Burke @ 14:30 PM
May 23, 2018

Simon A. Cole and Barry Scheck (University of California, Irvine – Department of Criminology, Law and Society and Professor of Law, Cardozo Law School, Co-Director, Innocence Project) have posted Appendix to ‘Fingerprints and Miscarriages of Justice: ‘Other’ Types of Error and a Post-Conviction Right to Database Searching,’ 81 Albany Law Review 101 (2017/2018) on SSRN.

Here is the abstract:

This Appendix gives one case example of each fingerprint error type discussed in Table 3 of the Article “Fingerprints and Miscarriages of Justice: ‘Other’ Types of Error and A Post-Conviction Right to Database Searching,” for which we know of an actual case. Cases were selected for recentness, novelty (not widely discussed elsewhere in the literature), and the degree to which they illustrate the problem we are discussing. In footnotes, we also list the other known cases of this error type.


An Interesting Article on Forensic Science

posted by Judge_Burke @ 14:30 PM
May 22, 2018

Jane Campbell Moriarty (Duquesne University – School of Law) has posted Deceptively Simple: Framing, Intuition and Judicial Gatekeeping of Forensic Feature-Comparison Methods Evidence (Fordham Law Review, Vol. 86, No. 4, 2018) on SSRN.

Here is the abstract:

For many decades, prosecutors have relied on feature-comparison methods (FCM) of forensic science evidence, including hair, fingerprints, toolmarks, handwriting, and bitemarks. Since the late 1980s, scholars and practitioners have raised serious questions about the reliability and error rates of such evidence. Two national bodies have published serious criticism of FCM evidence: the 2009 Committee of the National Research Council of the National Academy of Sciences; and the 2016 President’s Council of Advisors on Science and Technology. Despite these concerns and proof from the Innocence Project data that poor quality forensic science evidence has been a substantial component in wrongful convictions, courts continue to admit FCM evidence routinely and with little analysis, generally avoiding application of the Daubert factors related to reliability.

This article questions why courts are unreceptive to challenges about the reliability of such evidence and suggests that judges perceive feature-comparison evidence as fairly straightforward and intuitively accurate.

As such, courts often unknowingly rely upon heuristic approaches to the evidence — that is, cognitive shortcuts to manage complexity. By using these shortcuts, rather than rigorously evaluating reliability, decisions may inadvertently incorporate cognitive biases, including belief perseverance, confirmation bias, and assumptions of simplicity. If judges can appreciate that feature-comparison “matching” is a complex, multifaceted procedure, they might become more willing to engage in a deeper, science-based review of the evidence and better understand its shortcomings and limitations.


A Warning for All of Us from Retired Judge Posner

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

Many years ago the Minnesota Court of Appeals reversed a judge in a family law case. The issue was a claim that the trial judge just rubber-stamped the proposed findings of the prevailing party. When you have too many cases and may not have adequate support staff, taking that kind of short cut may seem reasonable—albeit inappropriate.

Rubber-stamping one party’s findings hardly instills confidence in the losing party that their case was heard by a neutral judge. So this story in the ABA Journal is a warning to all of us: 

Former appeals judge Richard Posner is criticizing a judge who copied and pasted from a government motion in an order that dismissed a pro se litigant’s First Amendment complaint.

Posner presented his argument in a reply brief filed on behalf of his client, William Bond, who was representing himself before Posner entered the case. Posner was formerly a judge on the Chicago-based 7th U.S. Circuit Court of Appeals.

Bond contends three federal judges conspired to throw a federal case and misused federal agents in an attempt to subvert his planned demonstrations in August 2013 at the federal courthouse in Baltimore. The case is before the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals.

Posner says the federal judge exhibited “laziness” by copying and pasting, and then failed to explain why Bond’s amended complaints fell short. Posner illustrated with a side-by-side comparison of the government motion and the judge’s opinion. There were minor differences.

“The district court’s laziness leaves a pro se litigant with the perception that the judge did not independently analyze Bond’s complaint,” Posner wrote. “The district court’s actions create the impression of plagiarism and an abdication of its independent judicial duties.

“Article III district courts have the resources to produce more than a copy-and-paste job, followed by two unexplained orders and unsupported accusations of wasting judicial resources. This response to a pro se litigant only feeds into an unhealthy distrust of the judicial system—especially as access to justice becomes more limited, as fewer cases reach a jury, and as more cases are shunted to arbitration.

“Litigants, particularly pro se litigants such as Bond, must not have the courthouse doors closed to them without a reasoned explanation.”

Bond is seeking to reopen the case and file a second amended complaint. A statement of the case filed by the government begins with a description of Bond. According to the government, he is “well-known in the Baltimore area for his protests against certain members of the federal judiciary, whom he has dubbed the ‘White Guerrilla Family.’ ”

According to the government, federal agents had questioned Bond due to concern about the safety of judges and federal officials, leading Bond to file a complaint alleging the questioning was aimed at chilling his First Amendment rights. He protested anyway, leading the court to dismiss the complaint, according to the government.

Posner counters that Bond’s second amended complaint described “extraordinary circumstances” in which federal judges displayed “judicial antagonism” toward Bond in discussions with third parties and Bond himself. The worry and distraction caused by the questioning and learning he was under surveillance caused Bond to curb the robustness of his protests, Bond had asserted.

Among the defendants sued by Bond was then-U.S. Attorney Rod Rosenstein, who is currently the deputy attorney general overseeing the special counsel investigation of Russian influence in the 2016 election. Bond had claimed Rosenstein was told to ignore or cover up the conspiracy against Bond.

The case is Bond v. Hughes.


Driving While Stoned

posted by Judge_Burke @ 14:30 PM
May 18, 2018

Mark A.R. KleimanTyler JonesCeleste Miller and Ross Halperin (BOTEC Analysis, LLC, BOTEC Analysis, LLC, BOTEC Analysis, LLC and New York University Marron Institute of Urban Management) have posted Driving While Stoned: Issues and Policy Options on SSRN.

Here is the abstract:

THC is the intoxicant most commonly detected in US drivers, with approximately 13% of drivers testing positive for marijuana use, compared to the 8% that show a measurable amount of alcohol (NHTSA, 2015). (The two figures are not strictly comparable because cannabis remains detectable for much longer than alcohol, and also for long after the driver is no longer impaired; therefore, the difference in rates does not show that stoned driving is more common than drunk driving.) Cannabis intoxication has been shown to impair reaction time and visual-spatial judgment.

Many states, including those where cannabis sales are now permitted by state law, have laws against cannabis-impaired driving based on the drunk-driving model, defining criminally intoxicated driving as driving with more than a threshold amount of intoxicant in one’s bloodstream—a per se standard—as opposed to actual impairment. That approach neglects crucial differences between alcohol and cannabis in their detectability, their pharmacokinetics, and their impact on highway safety.

Cannabis intoxication is more difficult to reliably detect chemically than alcohol intoxication. A breath alcohol test is (1) cheap and reliable; (2) sufficiently simple and non-invasive to administer at the roadside; and (3) a good proxy for alcohol in the brain, which in turn is (4) a good proxy for subjective intoxication and for measurable driving impairment. In addition, (5) the dose-effect curve linking blood alcohol to fatality risk is well-established and steep.

None of those things is true for cannabis. A breath test remains to be developed. Oral-fluid testing can demonstrate recent use but not the level of impairment. A blood test requires a trained phlebotomist and therefore a trip to a medical facility, and blood THC levels drop very sharply over time-periods measured in minutes. Blood THC is not a good proxy either for recency of use or for impairment, and the dose-effect curve for fatality risk remains a matter of sharp controversy. The maximum risk for cannabis intoxication alone, unmixed with alcohol or other drugs, appears to be more comparable to risks such as talking on a hands-free cellphone (legal in all states) than to driving with a BAC above 0.08, let alone the rapidly-rising risks at higher BACs. Moreover, the lipid-solubility of THC means that a frequent cannabis user will always have measurable THC in his or her blood, even when that person has not used recently and is neither subjectively intoxicated nor objectively impaired. That suggests criminalizing only combination use, while treating driving under the influence of cannabis (however this is to be proven) as a traffic offense, like speeding.


So…Is it Okay to Lie?

posted by Judge_Burke @ 14:50 PM
May 17, 2018

Years ago I had a murder case. The defendant claimed that after his Miranda warning he asked for a lawyer. He claimed he not only asked for a lawyer, but he named the lawyer. The lawyer was representing him on a Workers Comp case. Pretty believable, I thought. The police officer testified that there was no request for a lawyer but he also admitted he had lied to the defendant about critical facts in the case. So, who do you believe?

Situational ethics happen, but if the officer was prepared to lie to the defendant why shouldn’t I suspect he would lie to me? Rinat Kitai-Sangero (College of Law and Business) has posted Extending Miranda: Prohibition on Police Lies Regarding the Incriminating Evidence (54 San Diego Law Review 611 (2017)) on SSRN.

Here is the abstract:

This article addresses whether lying to suspects during interrogations regarding incriminating evidence is a legitimate deceit. Despite the condemnation of lying, lying to suspects during interrogations is a common phenomenon, and has even been dubbed an “art”. This article argues that lies of this type are illegitimate because they create an increased risk of false confessions and because they force suspects in general, and innocent suspects in particular, to shape their defense in view of false evidence. Consequently, lies infringe upon fundamental principles of constitutional criminal law, such as the right to remain silent, the presumption of innocence, and the imposition of the obligation to prove the accusations on the prosecution. All the arguments against using lies ultimately revolve around the linkage between lies and the obligation imposed on the state to prove guilt.


This post comes from Judge Wayne Gorman who may well be one of the most prolific judicial writers in Canada and the United States. How trial judges handle self-representation is a difficult task for judges–and is particularly difficult in criminal cases. In the back of the trial judge’s mind is the old adage that a lawyer who represents himself has a fool for a client.

It is quite easy to become impatient with self-represented litigants, so Judge Gorman’s synopsis of a recent Canadian case is useful. Judge Gorman wrote:

“In R. v. Wyatt, 2018 BCCA 162, April 24, 2018, the accused was convicted of the offence of aggravated assault.  The accused appealed from conviction, arguing that the trial judge failed to provide him with adequate assistance.  The Crown agreed.

The British Columbia Court of Appeal suggested that the accused’s “lack of knowledge of the trial process was apparent.” It pointed to what it described as “two important misconceptions that governed his conduct of his defence”:  

a) He seemed to mistakenly believe that if there was no witness to corroborate the victim’s version of events, that it would not be proven and the case would be dismissed. 

b) The first important misconception played into another important misconception. Several statements he made during the trial indicated that he thought that he could simply put into evidence a statement he gave the police which would “kill the case” against him, or that his denial of the offences would be in evidence, without the necessity of him testifying.

In allowing the appeal, the Court of Appeal indicated that trial judges “have an obligation to provide some minimal assistance to self-represented accused persons… Providing the necessary minimal judicial assistance to a self-represented accused can be difficult, as on occasion – and of course most definitely not always – persons accused of a crime may be unwilling to listen, or have slight intellectual or psychological challenges that are heightened in the stressful atmosphere of the courtroom. A judge presiding over a criminal trial with a self-represented accused must remain neutral and cannot become the lawyer for the accused.”

The Court of Appeal concluded that the trial was “unfair” (at paragraphs 15 to 17):

The judge did not address Mr. Wyatt’s apparent misconception and legal error that the victim’s evidence needed to be corroborated in order for there to be a conviction. 

As for Mr. Wyatt’s own evidence, the judge did carefully and correctly explain to Mr. Wyatt that if he testified he would become subject to cross-examination. However, the record shows that several times in the trial Mr. Wyatt referred to his statement to the police, and other witness statements to the police. His comments indicated he thought that these statements were “in the file” and were something he could rely upon. He appeared not to realize until the end of the trial that the judge did not have the police file with these statements in front of her, as something she could consider. 

In my respectful view some step was required by the trial judge to correct the two important misconceptions held by Mr. Wyatt as to the law and process, as these were fundamental to his ability to bring out his defence. I am of the view that the failure to provide assistance to Mr. Wyatt in this regard made the trial unfair.”


Learning from Other Judges’ Mistakes

posted by Judge_Burke @ 14:30 PM
May 1, 2018

The video is brutal. Many readers have by now likely seen or heard about a Florida judge who, eight days ago, ranted and raged at an ailing defendant pushed into court in a wheelchair. Now the defendant is dead and the judge has resigned. MIAMI HERALD.

The judge had planned to retire anyway, but surely this is not the note one wants upon retirement. Regrettably, abusive behavior by judges happens. It gets reported like this one did and the rest of the judiciary says something to the effect of, “what was he or she thinking?” The fact is, these judges most often were not thinking. Very few judges are trained in how to deescalate a situation. We know that the police at least attempted in recent years to address deescalation strategies. Emergency room medical personnel are light years ahead of both the police and judges.

Judges need to understand how to manage other people’s emotions as well as their own. There are academics who study this aspect of judges, but we could use more study and–just as important–we need to ensure the academic study is read by judges. Anger, for example, is an emotion judges need to understand and saying you are never going to get angry may well be naive. But, contempt of people who appear in court is an emotion that is dangerous and can lead to the behavior seen in this video.