Archive for August, 2018

Establishing trust in disaffected communities is a challenge for judges.  Whether other states should heed the advice of Arizona or individual judges (outside Arizona) is a decision others need to make.

Read Eugene Volokh’s article, “Adornments on Judicial Robes and ‘Safe Place’ Signs at Courthouses:”

“Adornments on Judicial Robes and ‘Safe Place’ Signs at Courthouses”

An interesting Arizona Supreme Court Judicial Ethics Advisory Committee opinion.

Eugene Volokh 

From Opinion 18-03, released in June, but just posted on Westlaw in the last day or so:


An Arizona court has established a working group to explore the extent to which the needs and concerns of lesbian, gay, bisexual, transgender, and questioning (LGBTQ) youth are being addressed in the child welfare and juvenile justice systems. The working group believes that one barrier to LGBTQ youth seeking services is their reticence to trust those involved in the systems, including attorneys, judges, guardians ad litem, court-appointed special advocates, and probation officers. The working group suggests that trust may be gained by reassuring LGBTQ youth that they are in a safe place and dealing with safe people, which may be facilitated by displaying certain symbols or messages.

A judge inquires whether judicial officers in the juvenile court may wear small rainbow-flag pins (or similar symbols) on their robes and post “safe place” placards on courtroom doors that convey acceptance to LGBTQ youth. In addressing these specific inquiries, the Judicial Ethics Advisory Committee deems it appropriate to discuss more broadly the recurring issue of adornments on judicial robes.


Judicial robes should be free of adornments.

Courts may display signs stating that harassment, bias, or prejudice on the basis of race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or affiliation is strictly prohibited. Courts and judicial officers should not, however, single out any particular category of citizens in offering such assurances.


I. Applicable Code Provisions

Several provisions of the Arizona Code of Judicial Conduct (“Code”) are relevant to the committee’s analysis, including:

Rule 1.2. Promoting Confidence in the Judiciary

“A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

Rule 1.3. Avoiding Abuse of the Prestige of Judicial Office

“A judge shall not abuse the prestige of judicial office to advance the personal or economic interest of the judge or others, or allow others to do so.

Rule 2.3. Bias, Prejudice, and Harassment

“(A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.

“(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.

“(C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.

“(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.

Rule 2.4. External Influences on Judicial Conduct

“(A) A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.

“(B) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment.

“(C) A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge.”

II. Analysis

“An independent, fair and impartial judiciary is indispensable to our system of justice.” Code, Preamble. Judicial officers must “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary,” and they must avoid both impropriety and the appearance of impropriety. Rule 1.2.

A. Judicial Robes

The judicial robe powerfully and unmistakably invokes the prestige of judicial office. Using that prestige to express support for any particular message, organization, cause, or category of citizens necessarily excludes a large universe of equally worthy messages, organizations, causes, and citizens who might feel reassured upon encountering a judge displaying symbols meaningful to them. See Rule 2.4, cmt (“An independent judiciary requires that judges decide cases according to the law and facts, without regard to whether particular laws or litigants are popular or unpopular with the public, the media, government officials, or the judge’s friends or family.”).

In its criminal justice standards, the American Bar Association discusses the symbolism behind the judicial robe, stating:

“The black garb reminds all who look at the judge — and it reminds the judge, too — that justice is the prime concern of the court. It also adds dignity to the courtroom. Indeed, the robe emphasizes the democratic ideal of impartial and equal treatment of all persons who come before the court by reminding the judge and those who view the judge in the courtroom that the judge serves as an agent of justice.”

ABA Standards for Criminal Justice 6-1.4 (3rd ed. 2000).

Another commentator has observed that, by donning unadorned black robes, judges “make a visual promise that they’re leaving personal idiosyncrasies, prejudices and desires outside the courtroom.” Robin Givhan, Trial by Attire: Supreme Court Look Should Go with Everything We Believe In, Washington Post, October 9, 2010.

“The bland robes serve as a visual reminder of the high-minded philosophy underpinning our judicial system: Under the law, everyone is equal. Gender, religion, race and economic class don’t matter ….

“It sends a singularly powerful message: I am here to uphold the law, without prejudice. That message should stand alone. It does not need to be accessorized.”

Research discloses only one published judicial ethics opinion of relevance. See Michigan Judicial Ethics Opinion JI-68. That opinion addressed the propriety of a judge wearing an “AIDS awareness ribbon.” It concluded that judicial officers should not wear symbols on judicial robes that suggest support for or opposition to any political, social, charitable, or civic cause.

Additionally, one state has a rule that specifically requires judges to wear black robes “with no embellishment.” See Florida Rule of Judicial Administration 2.340. In promulgating that rule, the Florida Supreme Court explained that uniformity in judicial attire enhances public trust and confidence and observed that citizens “should not have to question whether equal justice is being dispensed” based on the appearance of a judge’s robe.

Although Arizona has no comparable court rule, the committee reaches the same conclusion under the Code. Promoting confidence in the independence, integrity, and impartiality of the judiciary requires that judicial robes be free of symbols, pins, or messages, instead conveying the singular and uniform message that a judge’s fidelity is to the law and to equal justice for all who come before the court. No matter how worthy the cause suggested by items such as a rainbow pin, domestic violence awareness ribbon, cross, or military veteran’s insignia, the judicial robe should not serve as a platform for conveying messages or for communicating a judge’s personal beliefs or extrajudicial activities.

B. Signs or Symbols in Courthouses

Concerns regarding impartiality and avoiding the appearance of bias likewise control the question about displaying “safe place” signs or symbols in court facilities. Courthouses should be safe venues for everyone, and they should also be perceived in that fashion.

Rule 2.3 prohibits bias, prejudice, and harassment on the basis of race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation. Rule 2.3′s mandate extends to judges, court staff, lawyers, and “others subject to the judge’s direction and control.”

Judges may communicate the judiciary’s commitment to prohibiting bias, prejudice, and harassment by posting signs or placards in courthouses that communicate Rule 2.3′s message. But for the reasons outlined above, signs or placards should not single out a subset of the groups enumerated in Rule 2.3 when offering such assurances.



California Abolishes Money Bail

posted by Judge_Burke @ 21:44 PM
August 30, 2018

California has made major changes in that state’s bail practice, under a law signed by Gov. Jerry Brown on Tuesday, that largely leaves pretrial release decisions up to local judges — a change praised by legislative and judicial leaders, but condemned by some criminal defense advocates.

SB10 abolishes the long-standing system of requiring newly arrested defendants to put up bail, in an amount based on the seriousness of the charges, to be freed while awaiting trial. Bail-bond companies and other advocates say the current bail system promotes public safety and encourages defendants to show up in court, but opponents note that poor people are kept in jail because they can’t afford to pay their way out. But this change is controversial. The new law, signed this week by Gov. Jerry Brown, replaces a statewide money bail system with a county-based system that uses risk-assessment tools to help determine who goes free while awaiting trial. Advocates say the measure was “hijacked” via late amendments that give too much “unbridled” power to judges to make pretrial decisions.  The Marshall Project’s  Abbie VanSickle provides an  analysis from that perspective. See The Marshall Project article for more.


US District Court Judge Fred Biery Speaks Out

posted by Judge_Burke @ 20:30 PM
August 29, 2018

Occasionally over the years I have exchanged emails with Judge Fred Biery. He seems like the kind of person who would be interesting to meet.

Recently, Debra Cassens Weiss wrote an interesting piece about Judge Biery for the American Bar Association:

The Alamo/Dean Fikar (

U.S. District Judge Fred Biery of San Antonio is once again ramping up his warnings to feuding lawyers, this time in an opinion that quotes Elvis Presley, Joe Friday of the Dragnet television series and Abraham Lincoln.

In an Aug. 14 order, Biery tells the lawyers that “there will be no Rambo tactics or other forms of elementary school behavior,” and they should provide full and open discovery. Texas Lawyer, the San Antonio Express-News and Above the Law have coverage.

Although he “does not expect counsel to hold hands and sing Kumbaya,” Biery wrote, “unprofessional conduct or acerbic shrillness in the pleadings” can produce consequences.

The possibilities include “revocation of pro hac vice privileges, sitting in timeout in the rotunda of the courthouse and opposing counsel kissing each other on the lips in front of the Alamo with cameras present.”

Biery says in footnotes that he has actually imposed the first two sanctions in prior cases, and a past threat of an Alamo kiss put a stop to misconduct. “As did Sergeant Joe Friday, the court expects ‘Just the facts, ma’am,’” Biery wrote.

In an appendix, Biery sets out the “The Rule For the Practice of Law,” which requires lawyers to treat others as they would themselves be treated. Penalties for failing to abide include “the writing of The Rule in multiples of fifty on a Big Chief tablet with a Number Two pencil.”

Biery also employed visual aids, including a “History of Earth in 24-Hour Clock,” adapted from Carl Sagan, to illustrate that the litigation “is a nanosecond blink of an eye.”

There is also a map to illustrate the immigration of lawyers to Texas. The migration put an end to the era when the San Antonio legal community consisted of about 300 lawyers “whose handshake agreements were kept, making court orders often unnecessary,” Biery said.

Biery wrote his order in a lawsuit by real-estate data analytics startup, HouseCanary, against Quicken Loans and two other defendants, Texas Lawyer explains. HouseCanary alleges theft of trade secrets. Susman Godfrey is among the firms representing HouseCanary, while Gibson Dunn is among the firms representing Quicken, according to Above the Law.

Biery begins his opinion with this Elvis Presley quote: “Truth is like the sun; You can shut it out for a time, but it ain’t going away.” Biery then states that he is beginning his search for truth in the long-running dispute with the assistance of counsel.

A footnote says many of the lawyers in the case “no doubt have academic credentials of cum laude. When the chief financial officers of the parties receive the bills, they may say, ‘Lordy, how come?’”

He also includes a photo of Lincoln with this quote: “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses and waste of time.”

Susman Godfrey and Gibson Dunn did not immediately respond to the ABA Journal’s request for comment. Houston-based Susman Godfrey partner Matthew Behncke declined to comment when contacted by Texas Lawyer.

A San Antonio lawyer from a different firm representing HouseCanary, Ricardo Cedillo, commented to the Express-News. “I don’t always enjoy Judge Biery’s orders, but I enjoyed this one,” he said.


Do You Want To Create A Fuss Among Judges?

posted by Judge_Burke @ 20:51 PM
August 28, 2018

If you are a trouble maker, just start the conversation about the merits of legalizing marijuana. Some judges think it is a gateway drug and others see criminalization as being far more destructive than marijuana itself.  As legalization expands across the country, so too do reports of what some call “cannabis use disorder.” The number of people who say they partake with near-constant frequency has spiked and some experts worry about what that means with marijuana’s increased potency. Just because the health effects of pot are relatively benign compared to alcohol doesn’t mean the product is safe, they say. Oh and by the way: The DEA — yes, that DEA — wants more marijuana grown for research purposes next year. See Forbes and The Atlantic for more.



Thinking About Harmless Error

posted by Judge_Burke @ 18:31 PM
August 27, 2018

For a very long time harmless error did not exist. If an appellate court found error, the defendant got a new trial. Since the concept was introduced, it has, like an invasive species, grown exponentially. Among the problems is how we read appellate decisions. Fool me once shame on you, fool me twice shame on me does not apply to harmless error cases. The same error can often continue to be made by judges and prosecutors. So we need to think.

John Greabe (University of New Hampshire School of Law) has posted Criminal Procedure Rights and Harmless Error: A Response to Professor Epps (Columbia Law Review Online, Forthcoming) on SSRN. Here is the abstract:

In Harmless Errors and Substantial Rights, just out in the Harvard Law Review, Professor Daniel Epps proposes a re-conceptualization of constitutional criminal procedure rights that would pave the way for a reform of harmless-error review. Epps contends that those constitutional criminal procedure rights that are capable of being violated by prosecutors and judges in non-harmful ways be redefined so as to include a requirement that their violation causes the right-holder harm. Thus, for example, an accused’s Sixth Amendment right “to be confronted with the witnesses against him” really should be understood as a right to be confronted by those witnesses whose testimony cannot be dismissed as immaterial to the jury’s later decision to convict.

Under Epps’ proposal, harmless error would no longer be an amalgam of remedial doctrines informing whether reviewing courts should reverse or vacate judgments of conviction as a consequence of constitutional rights-violations at or in connection with a criminal trial. Rather, the harm (if any) caused by the putative invasion of a right would constitute a metric informing whether there has been a violation of the right. Harmless-error doctrine is indeed in dire need of reform. And yet, acceptance of the argument that harmless-error review be viewed as part and parcel of some criminal procedure rights would cause more problems than it would solve.

Specifically, the narrower constitutional precedent that would result from operationalizing the proposal would cause mischief when translated into other adjudicatory and lawmaking contexts where the Constitution is implemented. This Response thus defends the conventional understanding of harmless-error review as a remedial inquiry. Part I summarizes Epps’ argument. Part II lays out concerns about certain transcontextual effects if it were to be accepted. Part III sketches some alternative pathways to reform of harmless-error review without narrowing the scope of constitutional criminal procedure rights.


At the height of a political corruption trial, the prosecuting attorney attacked a witness.


“Isn’t it true,” he bellowed, “that you accepted five thousand dollars to compromise this case?”


The witness stared out the window, as though he hadn’t hear the question.


The prosecutor again blared, “Isn’t it true that you accepted five thousand dollars to compromise this case?” The witness still did not respond.


Finally, the judge leaned over and said, “Sir, please answer the question.”


“Oh,” the startled witness said, “I thought he was talking to you.”


Should A Judge Cry In The Courtroom?

posted by Judge_Burke @ 14:37 PM
August 24, 2018

Many years ago I co-authored a handbook for public defenders and dealt with the issue of whether it is appropriate to cry in closing argument. There was no law on the issue in Minnesota at the time but there was a Supreme Court decision from another state holding it is not per se objectionable to cry in a closing argument…it “depends upon the facts and circumstances of the case.”

Many years later I presided over a case where plaintiff’s counsel started to cry during closing argument and before I could do anything she turned to her co-counsel and said she couldn’t continue. But before he could take over I ordered him to sit down and for the crying counsel to continue. In my judgement, the crying was staged. How else would he know what to say next? There was a plaintiff’s verdict and of course a motion for a new trial based upon the crying inflaming the passions of the jury. But armed with the knowledge of my public defender handbook I ruled that crying in Minnesota was not per se objectionable in closing argument…it “depends upon the facts and circumstances of the case.” Moreover, since I believed the crying was staged, it likely backfired.

So now what about judges crying? Generally, you should not do it but “it depends upon the facts and circumstances of the case” (at least in Canada).

In R. v. Carlson, 2018 BCPC 209 (CanLII), August 17, 2018, the accused pleaded guilty to the offence of sexual interference. Before sentence was imposed, a victim impact statement was filed with the court. After the statement was filed, counsel for the accused asked the sentencing judge to recuse herself on the grounds the sentencing judge was “crying” during the victim impact statement”.

The application was denied. The sentencing judge held (at paragraph 24):

On the issue of the Court’s empathetic response to the victim impact statement, this was perhaps overstated and sensationalized. The Supreme Court of Canada and the Canadian Judicial Council, Commentaries on Judicial Conduct both agree that judges are human, they are not expected to be robots. There is therefore nothing wrong with the Court showing emotion. Just because a judge demonstrates human compassion, it does not amount to judicial bias.


So Much For Merit Selection

posted by Judge_Burke @ 21:23 PM
August 23, 2018

In an ideal world there would be merit selection of judges. But of course it depends upon how you define “merit” and that is where the whole process breaks down. Election of judges is viewed in other countries (and by many in the United States) as a very odd process. But before you exclaim all of the virtues of the federal court appointment process consider this reportLiberals crushed in SCOTUS spending war; Conservatives are vastly outspending liberals and targeting vulnerable senators in the fight to confirm Brett Kavanaugh, by Burgess Everett and Maggie Severns of Politico.


What Rights Of Privacy Should Those Who Live In Apartments Have?

posted by Judge_Burke @ 21:17 PM
August 22, 2018

If you are a strict constructionist like Justice Scalia, the answer might be that we had no apartments at the time of the adoption of the United States Constitution so there was no need to think about dogs running around sniffing at people’s doors. Or perhaps the answer for a strict constructionist might be that no one at the time of the adoption of the Constitution thought of training dogs to finds anything. But we are no longer living in that era. Lots of people live in apartments and condominiums. Do they have a reasonable right to privacy? Far less so in Minnesota.

From Minnesota Public Radio, via the NACDL news scan:

While a person’s home can be considered constitutionally protected, the Supreme Court said today, an apartment hallway is not, even if the dog had to sniff at the seam of Edstrom’s door to smell the drugs.

Writing for the majority (see opinion), Chief Justice Lorie Gildea said the essential question of the expectation of privacy in the hallway is whether the device police used — in this case: a dog — is “’capable of detecting lawful activity’” as well as illegal activity,” Gildea said in citing a U.S. Supreme Court decision.​  There is another way of looking at this issue as illustrated by Justice David Lillehaug’s dissent.

Here is an excerpt from the dissent:

In Florida v. Jardines, the United States Supreme Court held that a narcotics-dog sniff at the door of a single-family residence was a “search” in violation of the Fourth Amendment’s warrant requirement. 569 U.S. 1, 11–12 (2013). This is so because the area “immediately surrounding and associated with the home—what our cases call the curtilage—[is] part of the home itself for Fourth Amendment purposes.” Id. at 6 (citation omitted) (internal quotation marks omitted).

Today, the court reads out of Jardines the area “immediately surrounding” the home. The unfortunate result of this omission is discrimination among Minnesotans based on where they live. The search of the door of a single-family home requires a warrant, but the search of the door of an apartment home does not.

But homes are homes. Because Minnesotans’ constitutional rights should not depend on the form of their dwelling, I respectfully dissent.”


The Right To Openly Bear Arms

posted by Judge_Burke @ 20:26 PM
August 21, 2018

The Second Amendment grants gun owners the constitutional right to openly bear arms in public for “self-defense,” a divided panel of the  9th U.S. Circuit Court of Appeals ruled in a case out of Hawaii. The ruling applies to roughly 20 percent of the nation’s population and the nation’s federal appeals courts are split almost evenly on the issue.  Read the ruling: 9TH U.S. CIRCUIT COURT OF APPEALS.