Archive for October, 2018

Thinking About the Standard of Proof

posted by Judge_Burke @ 14:00 PM
October 22, 2018

Aldous Huxley once said: most human beings have an almost infinite capacity for taking things for granted. And that may well be true of judges when it comes to thinking about burdens of proof. We apply them everyday. We know the terms but for many of us we rarely discuss what these concepts, which are so core to what we do, mean.

Kevin M. Clermont (Cornell Law School) has posted Staying Faithful to the Standards of Proof (Cornell Law Review, Forthcoming) on SSRN. Here is the abstract:

Academics have never quite understood the standards of proof or, indeed, much about the theory of proof. Their formulations beget probabilistic musings, which beget all sorts of paradoxes, which in turn beget radical reconceptions and proposals for reform. The theoretical radicals argue that the law needs some basic reconception such as recognizing the aim of legal proof as not at all a search for truth but rather the production of an acceptable result, or that the law needs some shattering reform such as greatly heightening the standard of proof on each part of the case to ensure a more-likely-than-not overall result.

This Article refutes all those baroque re-readings. It shows that the standards of proof, properly understood on the law’s own terms without a probabilistic overlay, work just fine. The law tells fact finders to compare their degree of belief in the alleged fact to their degree of contradictory disbelief. Following that instruction resolves mathematically the paradoxes that traditional probability theory creates for itself. Most surprising, the burden of proof, by which the proponent must prove all the elements and the opponent need disprove only one, does not produce an asymmetry between the parties. The law’s standards of proof need no drastic reconception or reform — because the law knew what it was doing all along.


Mental Illness and the Criminal Justice System

posted by Judge_Burke @ 17:13 PM
October 19, 2018

E. Lea Johnston (University of Florida – Levin College of Law) has posted Reconceptualizing Criminal Justice Reform For Offenders With Serious Mental Illness (Florida Law Review, Vol. 71, 2019) on SSRN. Here is the abstract:

Roughly 14% of male inmates and 31% of female inmates suffer from one or more serious mental illnesses, such as schizophrenia, bipolar disorder, and major depressive disorder. Policymakers and the public widely ascribe the overrepresentation of offenders with serious mental illness in the justice system to the “criminalization” of the symptoms of this afflicted population. The criminalization theory posits that the criminal justice system has served as the primary agent of social control over symptomatic individuals since the closure of state psychiatric hospitals in the 1950s and the tightening of civil commitment laws. The theory identifies untreated mental illness as the origin of individuals’ criminal justice involvement and mental health treatment as the clear solution to breaking their cycle of recidivism. This article evaluates the three main bodies of evidence offered in support of the criminalization theory: individuals’ movement from psychiatric hospitals to jails and prisons (“transinstitutionalization”), the heightened policing of individuals with serious mental illness, and the science linking mental illness and crime. This evaluation reveals that the criminalization theory—the understanding that animates most current policies aimed at offenders with serious mental illness—largely rests on intuitive assumptions that are often unverified and sometimes false.

A growing body of behavioral sciences literature constructs an alternative account of the relationship between mental illness and crime. Coined the “normalization theory,” it relies upon decades of research that demonstrate that clinical factors, such as diagnosis and treatment history, are not predictive of criminal activity. Instead, the same risks and needs that motivate individuals without mental illness also drive those with mental disorders to commit crimes. These “criminogenic risks” include, among others, substance abuse, employment instability, family problems, and poorly structured leisure time. Behavioral science researchers reject the premise that individuals with serious mental illness are overrepresented in the justice system because these individuals’ illnesses directly lead to criminal behavior. Instead, they theorize that serious mental illnesses fuel the greater accumulation and concentration of typical criminogenic risk factors. This recognition holds dramatic potential for the redesign of criminal justice programs. Programs that target the criminal behavior of offenders with mental illness should principally focus on addressing criminogenic risk factors that can be mitigated. Officials should also address mental health needs, but only to the extent necessary to facilitate a better criminogenic risk profile and fulfill constitutional obligations. Moreover, correctional experience suggests that institutions should allocate scarce programmatic resources according to offenders’ risk of reoffending and potential to achieve programmatic goals. These insights, which federal agencies are beginning to recognize, hold radical implications for the redesign—and possibly the existence—of jail diversion, mental health courts, specialized probation and parole, and reentry programs for offenders with serious mental illness.


Will History Repeat Itself?

posted by Judge_Burke @ 20:42 PM
October 18, 2018

Among the most interesting commentators on the United States Supreme Court is Linda Greenhouse. Her commentary on Justice Hugo Black begins,

It’s obvious why the parallel between the battle over Brett Kavanaugh’s Supreme Court nomination and that of Clarence Thomas 27 years earlier grabbed the public’s attention. In both cases, late-breaking allegations threatened but failed to derail the confirmation process, and both nominees defended themselves with impassioned denials of wrongdoing.

But history offers another, older parallel that in its way is even more compelling. The issue was not sex but racism. The bombshell burst not just before a confirmation vote, but just afterward, forcing a newly confirmed Supreme Court justice to take to the airwaves to defend himself against mounting calls for his resignation. I’m referring to the experience of Hugo L. Black, the first Supreme Court nominee of President Franklin D. Roosevelt. In the wake of the Kavanaugh confirmation, this nearly forgotten episode is worth resurrecting after 81 years.

For the full commentary visit


Would You Like To Hear Chief Justice Roberts Speak?

posted by Judge_Burke @ 16:02 PM
October 17, 2018

“Chief Justice Roberts Remarks at University of Minnesota Law School”: C-SPAN has posted this video online. The Huffington Post today has a link/story/video about his remarks. Read it here.


Should We Be Concerned About Performance Standards For Judges?

posted by Judge_Burke @ 15:09 PM
October 17, 2018

There are those who argue that judicial independence and performance standards for judges are antithetical.

They aren’t.

Court systems that are slow and unresponsive eventually erode public trust and confidence. Accountability preserves judicial independence. But there may well be a point where the desire for “efficiency” undermines the quest for fairness. Procedural fairness requires time to give people a voice. On October 1, the Trump Administration’s new numerical and time-based quota system for immigration judges’ performance evaluations went into effect:

Earlier this year, the DOJ announced it would begin evaluating immigration judges’ performance based on how many cases they complete and how quickly they complete certain stages. To receive a “satisfactory” rating, immigration judges must now complete at least 700 cases per year, and meet three of six time “benchmarks,” among other requirements. There is no attempt to see for example did the litigants leave the immigration court feeling like they were heard, understanding what the judge did or why the order was issued.

Critics argue quotas undermine independent judicial decision-making and pressure immigration judges to prioritize speed over due process. Ashley Tabaddor, president of the National Association of Immigration Judges, said this policy reflects a “new and dark era.”  A group of retired immigration judges and members of the Board of Immigration Appeals argued, “Never before, in our experience, has EOIR so directly and strongly undermined the decisional independence of Immigration Judges.”


The Cure for America’s Opioid Crisis? End the War on Drugs

posted by Judge_Burke @ 21:24 PM
October 16, 2018

Throughout the country there is what some have described as an opioid epidemic. Drug courts have responded, there have been calls for more treatment dollars, and there has been litigation. So what is the “cure”?  This new paper, now available via SSRN and authored by Christine Minhee and Steve Calandrillo, argues that ending the war on drugs is essential.  Here is its abstract:

The War on Drugs.  What began as a battle waged on morals has in fact created multiple public health crises, and no recent phenomenon illustrates this in more macabre detail than America’s opioid disaster. Last year alone amassed a higher death toll than the totality of American military casualties in the Vietnam, Iraq, and Afghanistan wars combined.  With this wave of mortalities came an accompanying tidal crash of parens patriae lawsuits filed by states, counties, and cities on the theory that jurisdictions are entitled to recompense for the costs of addiction ostensibly created by Big Pharma.  To those attuned to the failures of the Iron Law of Prohibition, this litigation-fueled blame game functions merely as a Band-Aid over a deeply infected wound.

This Article synthesizes empirical economic impact data to paint a clearer picture of the role that drug prohibition has played in the devastation of American communities, exposes parens patriae litigation as a misguided attempt at retribution rather than deterrence, and calls for the legal and political decriminalization of opiates.  We reveal that America’s fear of decriminalization has at its root the “chemical hook” fallacy — a holdover from Nancy Reagan-era drug policy that has been debunked by far less wealthy countries like Switzerland and Portugal, whose economies have already benefited from discarding the War on Drugs as an irrational and expensive approach to public health.  We argue that the legal and political acceptance of addiction as a public health issue — not the view that addiction is a moral failure to scourge — is the only rational, fiscally responsible option left to a country that badly needs both a prophylactic against future waves of heavy opioid casualties, and restored faith in its own criminal justice system.


More Recognition Of Arizona Chief Justice Scott Bales

posted by Judge_Burke @ 20:02 PM
October 15, 2018

At the American Judges Association’s recent annual conference, Arizona Chief Justice Scott Bales was recognized.  He is again recognized by JMI:

Arizona Supreme Court Chief Justice Scott Bales has been selected by the Justice Management Institute (JMI) Board of Directors as the recipient of its 2018 Ernest C. Friesen Award of Excellence to recognize his leadership and achievements in enhancing and improving the administration of justice.

Chief Justice Bales has demonstrated exemplary leadership throughout his career.  While serving as Chief Justice, Scott Bales has taught at Arizona State University College of Law and the University of Arizona College of Law. Before his appointment to the Arizona Supreme Court in 2005, Justice Bales practiced law in Phoenix, served as Arizona’s Solicitor General, a Deputy Assistant Attorney General for the U.S. Department of Justice’s Office of Policy Development, a federal prosecutor in the United States Attorney’s Office in Phoenix, and a Special Investigative Counsel for the Justice Department’s Inspector General. Justice Bales also clerked for Justice Sandra Day O’Connor on the U.S. Supreme Court and Judge Joseph T. Sneed III on the Ninth Circuit Court of Appeals.

Chief Justice Bales graduated summa cum laude in 1978 from Michigan State University, earned a M.A. in economics from Harvard University in 1980, and received his J.D. from Harvard Law School in 1983. He is the vice chair of the Council of the American Bar Association’s Section of Legal Education and Admissions to the Bar and a member of the Council of the American Law Institute. He also served on the Board of Directors for the Conference of Chief Justices and chaired the American Bar Association’s Appellate Judicial Conference.  He wrote in 2006 for the Stanford Law Review, “Justice Sandra Day O’Connor: No Insurmountable Hurdles,” to commemorate her service to the Supreme Court and the Arizona judiciary.

As the leader of the Arizona Courts, Chief Justice Bales has worked to advance the administration of justice statewide. His initiatives include using technology to promote access to justice, supporting a comprehensive revision of Arizona’s civil rules and civil justice reform measures, and promoting an array of “Fair Justice” reforms with respect to criminal fines and fees and pretrial detention. Superior Court Presiding Judge Kyle Bryson, for Pima County, Arizona, said, “Chief Justice Bales has focused on making the courts more accessible through his strategic agenda, Advancing Justice Together, and his Fair Justice for All initiative has placed Arizona among the leaders in the country in ensuring all have equal and ready access to the courts.

JMI is a non-profit organization that provides training, technical assistance, and applied research to courts and other justice agencies.  In support of this mission, the JMI Board annually presents the Ernest C. Friesen Award of Excellence to an individual who has demonstrated vision, leadership, and sustained commitment to the achievement of excellence in the administration of justice.

The award is named for Ernie Friesen because he has epitomized a passion for justice combined with keen observation and analytic ability, extraordinary skills as a teacher, and a sustained commitment to improving the leadership and management of courts.  Ernie was, among other things, the first executive director of the Institute for Court Management, the first dean of The National Judicial College, and a director of the United States Administrative Office of the Courts. He also co-authored the first major text on court administration. Beginning with Ernie Friesen, there have been fourteen recipients of the Friesen Award.  Past recipients include trial court administrators, judges, state court administrators, judicial educators, academics, and court consultants.

The Friesen Award will be presented to Chief Justice Bales at the annual conference of the National Association for Presiding Judges and Court Executive Officers (NAPCO) in St. Louis, Missouri on October 16, 2018. JMI’s Vice President, Tim Dibble, will present the award to Chief Justice Bales.


The Juror Who Is Less Than Candid In Voir Dire

posted by Judge_Burke @ 21:36 PM
October 12, 2018

From the Federal Appeals Criminal Blog:

In many jurisdictions, jurors receive pretrial questionnaires that let parties and attorneys get to know them.  But what happens when a juror forgets or lies in response to some of the questions and the inaccurate responses are discovered after trial?  That was the question for the First Circuit in United States v. French.

Malcolm French owned approximately 80,000 acres of land in Washington County, Maine.  Rodney Russell was an office manager of sorts.  It turns out people were using pieces of Mr. French’s land to grow considerable amounts of marijuana.  Mr. French and Mr. Russell both claimed they didn’t know about the farming operation and were thus innocent.  A jury disagreed and found them both guilty.

Shortly after sentencing, defense counsel reported that they had just learned that a prisoner housed in the Somerset County Jail with another co-defendant told the co-defendant that Juror 86, who sat on the jury before which the case was tried, was the mother of a small-time marijuana trafficker.

The problem was that prior to trial, Juror 86, along with the other prospective jurors, filled out a questionnaire, which included the following prompt:

  1. a.) Please describe briefly any court
    matter in which you or a close family member
    were involved as a plaintiff, defendant,
    witness, complaining witness or a victim.
    [Prospective jurors were given space to write]

b.) Was the outcome satisfactory to you?
[Prospective jurors were given “yes” and “no”
check boxes here]

  1. c) If no, please explain. [Prospective jurors
    were given space to write]

Juror 86 wrote “n/a” after part (a), and left parts (b) and (c) blank. She also did not complete the second page of the questionnaire, which contained six additional prompts and a space to sign and declare under penalty of perjury that the prospective juror had answered all the questions truthfully and completely. And when jury selection began, the magistrate judge asked the prospective jurors a series of other questions Juror 86 should have answered, but Juror 86 remained silent.

In a motion for a new trial filed a week after sentencing, defendants argued that Juror 86’s answers to the questionnaire and her lack of a response to oral voir dire questions amounted to dishonest answers to material questions, and that had the answers been honest, there would have been a valid basis for a challenge for cause. They also asked for an evidentiary hearing to question Juror 86 about her answers. The district court denied the motion in all respects.  Mr. French and Mr. Russell appealed to the First Circuit.

The First Circuit reversed, explaining that the defendants came forward with factual information fairly establishing that Juror 86 likely gave an inaccurate answer to question 3 on the written questionnaire.  Further, the First Circuit held that the uncontested facts submitted by defendants also made it “quite likely — although not certain — that the juror’s inaccuracy was knowing.”  Defendants also showed that the correct answer to question 3 may well have been quite relevant to assessing the juror’s ability to fairly sit in judgment in this case. To wit, the mother of a drug user arrested for dealing to support his drug habit might have some strong thoughts about those who produce the drugs.

According to the First Circuit, the “defendants’ initial burden is only to establish that their claim of juror misconduct is ‘colorable or plausible.’”  Defendants “need not show at the outset that their claim is so strong as to render contrary conclusions implausible. Nor need the defendants support their claim initially with testimony from the juror.”  In the First Circuit, “counsel cannot even question the juror until the court gives permission.” See United States v. Kepreos, 759 F.2d 961, 967 (1st Cir. 1985). As a result, a court-supervised investigation aimed at confirming and then exploring further Juror 86’s apparent dishonesty was required.  The First Circuit vacated the denial of defendants’ motion for new trial and remanded for further proceedings on the motion for new trial.  Presumably, that would be an evidentiary hearing.  Mr. French and Mr. Russell are by no means off the hook, but for now, they have hope for a new trial.”



Is This What The Republican Party Stands For?

posted by Judge_Burke @ 18:40 PM
October 11, 2018

Before you jump to any conclusions that this post is about the United States Supreme Court — it is not. But it is about the Michigan Supreme Court. The Brennan Center reports that,”Michigan Supreme Court Justice Elizabeth Clement said she faced “bullying and intimidation” while considering a case about whether a voter-initiated redistricting proposal could go on the November ballot.

Clement, appointed by Republican Gov. Rick Snyder, will face challengers to remain on the bench in November. She told The Detroit News that “outside interests” seeking to block the redistricting reform proposal from the ballot pressured her as she was considering the case. Clement ultimately voted with the majority to approve the ballot measure, which was opposed by state Republicans.

According to The Detroit News, following Clement’s decision, “the Michigan Republican Party…left her name and photo off door hangers distributed by volunteers,” although the hangers listed every other statewide Republican candidate. Clement called this decision “unprecedented.” The Michigan Republican Party “would not say whether Clement would be excluded from future literature.”

Michigan Supreme Court Justice David Viviano criticized the pressures Clement faced, arguing, “People are entitled to their own viewpoints on how a case should be decided. But it is inappropriate to direct those views at a member of the court while the case is being decided.”


How Do We Deal With ICE Arrests In Courthouses?

posted by Judge_Burke @ 18:37 PM
October 11, 2018

This is not an easy issue for state court judges to deal with. Victims of domestic abuse may not show up in court to testify or to seek civil orders for protection if they fear an ICE arrest and possible deportation. The Chief Justice of California spoke out forcefully about they challenges that ICE arrests in courthouses present. It may be an issue that a simple court order can’t solve but it is an issue that is beginning to be litigated.


BOSTON (AP) — A judge on Massachusetts’ highest court denied a bid to block federal immigration agents from making arrests at state courthouses, though she expressed concern that the practice may be scaring off some witnesses and others needed in court.

Justice Elspeth Cypher of the Supreme Judicial Court said in her ruling this week that she agrees that the “administration of justice” suffers when people who have business in court don’t show up because they’re afraid of being arrested by U.S. Immigration and Customs Enforcement.

But Cypher said she could not order the “unprecedented” relief sought by civil rights and indigent defense groups because, among other things, she heard only one side of the argument and the groups’ lawyers have refused to identify immigrants cited in the petition who say they’re too scared to appear in court.

The petition filed in March sought to prevent agents from arresting people in state courthouses for civil immigration violations. It was thought to be the country’s first challenge of its kind to the practice, which has roiled immigration lawyers, advocates and some judges.

Middlesex District Attorney Marian Ryan was among those who urged the judge to refer the matter to the full court, saying in a letter earlier this year that “justice is harmed when victims and witnesses … are afraid to even set foot in a courthouse because of the possibility of facing arrest for civil immigration infractions.”

Ivan Espinoza-Madrigal, executive director of one of the groups that filed the petition, said Friday that they’re disappointed with the decision and assessing their options.

“Our clients – and countless immigrants in Massachusetts and across the country – remain open to unfettered intimidation, harassment, and detention by federal immigration officials. The courthouse doors remain effectively closed to immigrants,” said Espinoza-Madrigal, of the Lawyers’ Committee for Civil Rights and Economic Justice.

Federal officials in January formalized a policy to send agents to federal, state and local courthouses to make arrests, despite pressure from advocates to declare the halls of justice as “sensitive locations” that are generally free from immigration enforcement.

Trump administration officials have said courthouses are a safer place for agents to make arrests, since visitors typically have to go through metal detectors.

ICE says it is targeting convicted criminals, gang members and public safety threats at courthouses as well as immigrants who have been previously deported or ordered to leave. Officials say family, friends and witnesses in court won’t be arrested unless there are “special circumstances.” ICE says it will “generally avoid” immigration enforcement in non-criminal courthouses such as family court.

ICE officials didn’t immediately respond to emails on Friday.