Archive for October, 2018

Hopefully This Too Will Pass

posted by Judge_Burke @ 18:54 PM
October 31, 2018

There are several types of threats that can affect judicial independence. But in the final analysis, the driving force is fear. In 2010, three justices were defeated in a highly contentious retention election in Iowa. The defeated justices were recognized for their courage in doing what they thought was right: the State of Iowa’s constitution gave gay people a right to marry.

Hopefully this too will pass.  From Stephen Gruber-Miller and the Des Moines Register:

A conservative Iowa group that successfully pushed to oust three Iowa Supreme Court justices in 2010 over a decision legalizing same-sex marriage is hinting it could do it again — this time over abortion.

Drew Zahn, director of communications for The Family Leader, said although the group has no plans in place right now to target specific justices, “we’re not ruling that out” in the future. No state supreme court justices are on the ballot this year but three will be in 2020.

An email to supporters sent Friday by Bob Vander Plaats, The Family Leader’s president and CEO, criticized ”notorious opinions” issued by the state Supreme Court. That includes a 5-2 decision in June that found women in Iowa have a fundamental right to an abortion under the Iowa Constitution.

“We have no plans in place right now to target any specific judges, but we absolutely object to the philosophy of evolving standards for evaluating our constitution,” Zahn said, referring to the abortion decision, which struck down a portion of a law requiring a 72-hour waiting period to get an abortion.

Vander Plaats, in the email, advised supporters on how to decide whether or not to retain the Iowa judges on the ballot this November and argued that Iowa’s system for selecting judges should change.

“We’re hoping that there won’t be another battle over Supreme Court justices, but if there is, the bar association will be there to support the court, I can tell you that,” said Tom Levis, president of the Iowa State Bar Association.

Justices Susan Christensen, Edward Mansfield, Thomas Waterman and David Wiggins will face a retention election in 2020, while the remaining three justices will be on the ballot in 2024.

Mansfield and Waterman dissented from the decision that found the Iowa Constitution protects the right to an abortion, while Wiggins was in the majority. Christensen was appointed to the court this year by Republican Gov. Kim Reynolds, after the court ruled in the abortion case.



Did Chief Justice Marshall Suborn Perjury in Marbury v. Madison?

posted by Judge_Burke @ 19:05 PM
October 30, 2018

We live in an era where the confirmation process has become toxically partisan. There are some who allege that Justice Kavanaugh committed perjury.  So, not surprisingly, there are some who yearn for the ‘good old days.’ Were there really good old days?  Professor Anthony Gaugan posted this recently on the Faculty Lounge.

On CSPAN’s Q & A program Sunday evening, Brian Lamb interviewed Joel Richard Paul about his new book, Without Precedent: Chief Justice John Marshall and His Times. The whole interview is quite good but one part of it especially caught my attention. While researching his book, Professor Paul found a letter that suggests Chief Justice John Marshall may have suborned perjury in the landmark case of Marbury v. Madison.

The basic facts of Marbury are well-known. On March 3, 1801—the last day of the Adams Administration—the lame duck Federalist Senate confirmed 42 Federalist nominees for justices of the peace. The confirmations were part of the “Midnight Appointments” whereby the Federalists attempted to stack the federal judiciary before the Jeffersonian Republicans took power following the election of 1800.

During the final hours of the Adams presidency, John Marshall simultaneously served as chief justice and secretary of state. In the latter capacity, he signed with an official seal each of the commissions for the new justices of the peace. But amid the chaotic rush to get the commissions out, some inadvertently remained behind on a desk in the State Department. The new Secretary of State, James Madison, refused to deliver the commissions when he took office the next day. Nine months later, four of the would-be justices of the peace—including a wealthy Federalist named William Marbury—filed a writ of mandamus asking the Supreme Court to order Madison to deliver the commissions.

The case of Marbury v. Madison reached the Supreme Court in February 1803, which is where Professor Paul’s discovery comes in.

The key witness in the Marbury case was James Marshall, brother of the chief justice. In an affidavit submitted to the Court, James explained that he agreed to deliver the commissions on behalf of the State Department, but the package containing the commissions was too large to carry. James decided to leave behind some of the commissions, apparently assuming someone else would deliver them, but no one did.

James Marshall’s affidavit was absolutely crucial to William Marbury’s case because without it Marbury would have lacked evidence of his undelivered commission. In a display of partisan defiance, the Jefferson Administration and the Republican Congress refused to provide any evidence regarding the Adams commissions. John Marshall, of course, had personal knowledge of the commissions, but he obviously could not serve as a witness in a case he presided over as judge. The upshot was Marbury’s whole case rested on James Marshall’s memory of events.

But according to Professor Paul, James Marshall’s testimony “was most likely a complete fabrication. Historians have long accepted James’s story, but it made no sense.” Paul’s revisionist account rests on a letter he discovered in the Marshall papers. In mid-March 1801, two weeks after Jefferson’s inauguration, John Marshall wrote a letter to his brother in which the chief justice expressed his “infinite chagrin” that the Jefferson Administration had refused to deliver the remaining commissions. The chief justice explained that he expected James Madison to deliver them since they had already been signed and sealed. In the letter, John Marshall then went on to take personal responsibility for the undelivered commissions:

“I should however have sent out the commissions which had been signed & sealed but for the extreme hurry of the time & the absence of Mr. Wagner who had been called on by the President to act as his private Secretary.”

The crucial point is that John Marshall blamed himself, not his brother, for the non-delivery of the commissions. The letter could thus be read as an indication that James did not have any role in delivering the commissions. As Professor Paul explains, “If James was responsible for delivering the commissions, then Marshall’s explanation to James would have been superfluous. 

But when Marbury later brought suit against Madison, James Marshall signed an affidavit asserting that it was his responsibility to deliver the commissions, and that he personally saw the undelivered commissions (thus establishing their existence). In the words of Professor Paul, It is apparent that James Marshall perjured himself in the Supreme Court and that the chief justice not only knew this but probably asked him to lie.” Paul argues that John Marshall persuaded James to take responsibility for the undelivered commissions in order to maintain the viability of Marbury’s case.

Ironically, Marshall ultimately ruled against Marbury. In one of the shrewdest opinions of his career, the chief justice (writing for a unanimous Court) held that Article III of the Constitution did not grant the Supreme Court original jurisdiction to issue writs of mandamus, and thus Section 13 of the Judiciary Act of 1789—which purported to grant the Court such jurisdiction—violated the Constitution.

As Paul explains, “Marshall invented a conflict between the Constitution and the Judiciary Act in order to create the opportunity to assert the power of judicial review,” all while avoiding a direct political confrontation with the Jefferson Administration. “Most likely,” Paul conjectures, “John and James Marshall sat down with their friend Charles Lee [Marbury’s attorney]—perhaps over a glass of Marshall’s favorite Madeira—and constructed this case from start to finish.”

It is a very interesting argument. The relevant portions of the book are on pages 243-60 (especially 252-4) and the CSPAN interview with Joel Richard Paul is available here.


Drunk Driving Defense in Canada

posted by Judge_Burke @ 21:53 PM
October 29, 2018

The issue of access to source codes with the devices that were used to test persons suspected of drunk driving plagued Minnesota courts for several years.  The Supreme Court of Canada recently held that the maintenance logs for breathalyzers used in drunk-driving stops and charges are only disclosable in court if a defendant can show such records are relevant to the defendant’s case.

The defendant, Ms. Awashish, was charged with impaired driving and driving “over 80” and requested documents related to her charges, called disclosure, specifically those related to a breathalyzer used to test her. A lower court judge ordered Canada to give her the documents.

The Supreme Court of Canada held that Ms. Awashish’s records were not material to how a breathalyzer works on any given day nor did Ms. Awashish “establish a basis for the records’ existence or relevance. [Canada] was therefore under no obligation to inquire into the matter.”

In addition, in a procedural matter, the issue was whether Ms. Awashish or the government was able to appeal on an evidence disclosure question in the first place when it was not the question of the trial, but a side matter. In response, the Supreme Court essentially confirmed a general rule that trials should not be interrupted to deal with side issues, according to a “Case in Brief” Report published on the Supreme Court’s website.


Reform of Family Court

posted by Judge_Burke @ 21:32 PM
October 25, 2018

A first of its kind study, Family Justice Initiative: The Landscape of Domestic Relations Cases in State Courts, brings together national data from family cases that confirms what we have long known at IAALS: family courts must do more to focus on problem solving rather than rely on the traditional structure framed around an adversarial approach.

The report was recently released by the National Center for State Courts Family Justice Initiative, of which IAALS is a partner organization. IAALS assisted in the qualitative data collection component of this study, which included interviews of participating jurisdictions to understand their domestic relations case management and docket management practices.

“What is also clear from the study is that family court procedures still largely reflect the traditional adversarial system rather than the contemporary reality of parties that mostly agree on how they want to arrange their family relationships and other commitments following the termination of a legal marriage. This presents a profound change in the role of the court from an adjudicative to a facilitative process,” the survey found. Study authors also acknowledged that its findings “raise questions both of how domestic relations cases should be managed and whether the judicial branch is still the most appropriate forum for such cases.”

Other key findings from the NCSC report include:

Other key findings from the NCSC report include:

  • Today’s families are less likely to include a married couple, and most litigants don’t hire an attorney.
  • Contested and uncontested cases in the study took about the same amount of time.
  • One in four family court cases reopen, and reopened cases are more likely to involve minor children.
  • Family court data is inadequate and makes it difficult to manage cases.

The Family Justice Initiative is modeled on another IAALS and NCSC collaboration, the Civil Justice Initiative, which excluded family cases because of the unique challenges they present. Moving forward, the second phase of the Family Justice Initiative work will extend and modify the Civil Justice Initiative recommendations to address domestic relations cases. Phase 3 of the Initiative will identify jurisdictions to participate in implementing recommendations as well as evaluating pilot projects in four jurisdictions.
IAALS applauds the first step data collection effort this study represents. Its initial findings support our long-held conclusions that family cases require a markedly different approach in process and management. The data collected continues to bolster IAALS’ belief that alternative approaches that rely on more user-friendly, streamlined, and accessible frameworks will produce the best results for families who need them.


What Effect Might Jail Clothing Have On A Judge’s Sentence?

posted by Judge_Burke @ 19:13 PM
October 24, 2018

In Estelle v Williams, 96 S.Ct. 1691 (1976) Chief Justice Berger wrote :

The potential effects of presenting an accused before the jury in prison attire need not, however, be measured in the abstract. Courts have, with few exceptions,determined that an accused should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption so basic to the adversary system. [citations omitted.]

The American Bar Association’s Standards for Criminal Justice also disapprove the practice. ABA Project on Standards for Criminal Justice, Trial by Jury, s 4.1(b), p. 91 (App.Draft 1968). This is a recognition that the constant reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment. The defendant’s clothing is so likely to be a continuing influence throughout the trial that, not unlike placing a jury in the custody of deputy sheriffs who were also witnesses for the prosecution, an unacceptable risk is presented of impermissible factors coming into play. Turner v. Louisiana, 379 U.S. 466, 473, 85 S.Ct. 546, 550, 13 L.Ed.2d 424, 429 (1965).

Given what we know about implicit bias can we safely say that how a defendant appears will have no effect on how a judge sentences? Defendants have a right to appear in civilian clothes during trial so why adopt a different rule at sentencing? The issue comes up in the news because a federal judge rejected Paul Manafort’s request to wear a professional suit during a hearing later about his sentence, noting the former Trump campaign chairman is now a convicted felon who has lost the right to wear street clothing in all his court proceedings.

“This defendant should be treated no differently from other defendants who are in custody post-conviction,” U.S. District Court Judge T.S. Ellis III wrote in a sharply-worded order.” There is no reason to treat Paul Manafort different than other in custody defendants, but is the answer to require him to wear jail clothes or let every defendant have the opportunity to reduce the implicit bias that jail clothing may cause?


Washington State Supreme Court Declares Death Penalty Unconstitutional

posted by Judge_Burke @ 15:05 PM
October 23, 2018

The Washington Supreme Court has ruled the state’s death penalty violates the state constitution because it is imposed in an arbitrary and racially biased manner.

The court ruled unanimously that  the death penalty is unconstitutionally cruel punishment under the state constitution because its unequal application fails to serve any legitimate penological goal. The court converted all death sentences to life imprisonment.

“The use of the death penalty is unequally applied—sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant,” the court said.

The court cited a study commissioned for Gregory that found black defendants were between 3.5 and 4.6 times more likely to be sentenced to death in the state than similarly situated white defendants. The percentage varied based on the statistical model used.

The study also found significant county-by-county variation in decisions to seek or impose the death penalty, and said a portion of that variation is a function of the size of the black population.

The Washington Supreme Court is the third state supreme court to strike down the death penalty partly because of concerns about racial disparities, according to a press release by the American Civil Liberties Union. The other courts were Massachusetts in 1980 and Connecticut in 2015. The SEATTLE TIMES has also posted about the decision.


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.