Archive for November, 2018

The Right To Confrontation Needs To Be Clarified

posted by Judge_Burke @ 16:52 PM
November 30, 2018

From Courthouse News Service, Barbara Leonard:

WASHINGTON (CN) – Justices Neil Gorsuch and Sonia Sotomayor teamed up for a dissent Monday after the Supreme Court rejected an appeal over forensic witnesses in criminal trials.

Early on in the 4-page opinion, Gorsuch quotes precedent to laud cross-examination as possibly “the greatest legal engine ever invented for the discovery of truth.”

“The Constitution promises every person accused of a crime the right to confront his accusers,” Gorsuch wrote.

“That promise was broken here,” the dissent continues. “To prove Vanessa Stuart was driving under the influence, the state of Alabama introduced in evidence the results of a blood-alcohol test conducted hours after her arrest. But the state refused to bring to the stand the analyst who performed the test. Instead, the state called a different analyst. Using the results of the test after her arrest and the rate at which alcohol is metabolized, this analyst sought to estimate for the jury Ms. Stuart’s blood-alcohol level hours earlier when she was driving. Through these steps, the state effectively denied Ms. Stuart the chance to confront the witness who supplied a foundational piece of evidence in her conviction. The engine of cross-examination was left unengaged, and the Sixth Amendment was violated.” (Emphasis in original.)

Joined by Sotomayor, Gorsuch said that in rejecting Stuart’s appeal the court missed an opportunity to undo confusion that was sown in 2012 with the case Williams v. Illinois.

He noted that there was no majority opinion in Williams but that a plurality of five justices in that case had nevertheless rejected the logic offered by Alabama here: that the state called the witness against Stuart not to testify to the truth of what the report said about her “blood-alcohol level at the time of the test, only to provide the state’s testifying expert a basis for estimating Ms. Stuart’s blood-alcohol level when she was driving.”

“After all,” Gorsuch continued, “why would any prosecutor bother to offer in evidence the nontestifying analyst’s report in this case except to prove the truth of its assertions about the level of alcohol in Ms. Stuart’s blood at the time of the test? The whole point of the exercise was to establish — because of the report’s truth — a basis for the jury to credit the testifying expert’s estimation of Ms. Stuart’s blood-alcohol level hours earlier.” (Emphasis in original.)

Alabama also argued that the Sixth Amendment right to confrontation failed to attach because the report wasn’t “testimonial,” but Gorsuch and Sotomayor disputed this as well and again pointed to Williams.

“However you slice it, a routine postarrest forensic report like the one here must qualify as testimonial,” Gorsuch wrote. “For even under the plurality’s more demanding test, there’s no question that Ms. Stuart was in custody when the government conducted its forensic test or that the report was prepared for the primary purpose of securing her conviction.

“Respectfully, I believe we owe lower courts struggling to abide our holdings more clarity than we have afforded them in this area. Williams imposes on courts with crowded dockets the job of trying to distill holdings on two separate and important issues from four competing opinions. The errors here may be manifest, but they are understandable and they affect courts across the country in cases that regularly recur. I would grant review.”


Should Abuse As A Child Be Considered In Sentencing Drug Defendants?

posted by Judge_Burke @ 21:31 PM
November 29, 2018

For some people, the introduction to drug abuse comes from self medication based upon child or sexual abuse. How should a judge consider that aspect of a defendant’s history in sentencing? There are some very interesting sentencing remarks from the District Court of New South Wales in Australia. The defendant in the case pleaded guilty to drug supply. The judge cited academic and social science research on the impact of domestic violence as a child. The judge then concluded that the defendant was less culpable and a prison sentence was not justified.


Things In Oral Argument Did Not Go Well For Indiana

posted by Judge_Burke @ 19:34 PM
November 28, 2018

Observers of the United States Supreme Court know to be cautious about predicting the decision of the Supreme Court based upon the oral arguments. Earlier today there was a post in the blog about the excessive fines clause.  According to the Associated Press, Mark Sherman, things did not go well in oral argument for Indiana:

WASHINGTON (AP) — The Supreme Court left little doubt Wednesday that it would rule that the Constitution’s ban on excessive fines applies to the states, an outcome that could help an Indiana man recover the $40,000 Land Rover police seized when they arrested him for selling about $400 worth of heroin.

A decision in favor of 37-year-old Tyson Timbs, of Marion, Indiana, also could buttress efforts to limit the confiscation by local law enforcement of property belonging to someone suspected of a crime. Police and prosecutors often keep the proceeds.

Timbs was on hand at the high court for arguments that were largely a one-sided affair in which the main question appeared to be how broadly the state would lose.

The court has formally held that most of the Bill of Rights applies to states as well as the federal government, but it has not done so on the Eighth Amendment’s excessive-fines ban.

Justice Neil Gorsuch was incredulous that Indiana Solicitor General Thomas Fisher was urging the justices to rule that states should not be held to the same standard.

“Here we are in 2018 still litigating incorporation of the Bill of Rights. Really? Come on, general,” Gorsuch said to Fisher, using the term for holding that constitutional provisions apply to the states.

Justice Stephen Breyer said under Fisher’s reading police could take the case of a driver caught going 5 mph (8 kph) above the speed limit.

“Anyone who speeds has to forfeit the Bugatti, Mercedes or special Ferrari, or even jalopy,” Breyer said.

Fisher agreed.

It was unclear whether the justices also would rule to give Timbs his Land Rover back or allow Indiana courts to decide that issue. Some justices seemed willing to take that additional step.

“If we look at these forfeitures that are occurring today … many of them are grossly disproportionate to the crimes being charged,” Justice Sonia Sotomayor said.

But Chief Justice John Roberts said the question of whether what happened to Timbs was excessive might be a closer call. Timbs drove his car to the place where he twice sold small amounts of heroin to undercover officers, and he carried the drugs in the car, Roberts said. Police have long been allowed to seize property in such situations.

“You will lose assets you used in the crime,” Roberts said. “You can see how that makes a lot of sense.”

Lawyer Wesley Hottot, representing Timbs, told the justices that in rural areas people drive places. He said the use of the Land Rover was incidental to the sale of the drugs.

The case has drawn interest from liberal groups concerned about police abuses and conservative organizations opposed to excessive regulation.

Timbs said his own view of the case has changed over time.

“At first it was about getting my truck back because I was mad, and I wanted my stuff back. Now it’s a lot different,” he said. “I was curious to see how often they did this to people. They do it a lot around here, and apparently it’s done all over the country.”

Timbs’ criminal sentence included no prison time, a year of house arrest and five years on probation.

In earlier cases applying parts of the Bill of Rights to the states, the court used the due process clause of the 14th Amendment, passed after the Civil War to ensure the rights of newly freed slaves.

The court also has relied on that clause — “no state shall deprive any person of life, liberty or property without due process of law” — in cases that established a woman’s right to an abortion and knocked down state laws against interracial marriage and gay sex.

The story of how Timbs ended up in the Supreme Court began with steel-toed boots he bought for work in a truck factory. The boots hurt his feet, but he couldn’t immediately afford the insoles he was told to buy. A doctor wrote a prescription for hydrocodone. Before long, Timbs was hooked on heroin.

He tried several times to get clean but said he wasn’t ready. A more than $70,000 life insurance payout he received after his father’s death seemed a blessing, but it wasn’t, he said.

“A drug addict shouldn’t have a whole lot of money,” said Timbs, who used some of the money to buy the Land Rover.

Timbs hasn’t driven the car since his arrest in 2013. He lives with his aunt, and she allows him to use her 2012 Dodge Avenger, for which he said he is especially appreciative.

“But it’s definitely not a Land Rover,” Timbs said.

A decision in Tyson Timbs and a 2012 Land Rover LR2 v. Indiana, 17-1091, is expected by June.



Excessive Fines

posted by Judge_Burke @ 16:45 PM
November 28, 2018

SCOTUS will decide whether the excessive fines clause applies to states. Mark Walsh has this article in the December 2018 issue of ABA Journal magazine. Here is an excerpt:


Timbs’ appeal to the U.S. Supreme Court reached the justices at a time when there has been renewed attention to the potentially onerous burdens of civil fines and forfeitures.

In 2017, in a statement respecting the denial of certiorari in the case Leonard v. Texas, Justice Clarence Thomas expressed concerns about modern civil forfeiture practices.

“This system—where police can seize property with limited judicial oversight and retain it for their own use—has led to egregious and well-chronicled abuses,” Thomas wrote, adding that he was skeptical that historical forfeiture practices, which tended to arise in the realms of customs and piracy, could support “the contours of modern practice.”

Timbs has attracted support from a wide range of organizations, including the American Bar Association, the American Civil Liberties Union, the U.S. Chamber of Commerce and the Pacific Legal Foundation.

The ABA in its amicus brief told the justices about its Working Group on Building Public Trust in the American Justice System, which is addressing the concern that excessive judicial fines and fees “disproportionately harm the millions of Americans who cannot afford to pay them, entrenching poverty, exacerbating racial and ethnic disparities, diminishing trust in our justice system and trapping people in cycles of punishment simply because they are poor.”

A group of legal scholars filed an amicus brief in support of Timbs that says, “State and local governments have been levying greater and greater fines and relying heavily on forfeitures in recent years, often at the expense of people who can least afford to pay. Fines and forfeitures are punishments, but they can also make money for cities and states, which gives governments an incentive to increase these punishments to excessive levels.”

Colgan, who has signed onto the scholars’ brief in support of Timbs, says, “We only have four cases in which the Supreme Court has interpreted the excessive fines clause, so we have a lot of open questions.”


Indiana argues that there is a problem with the idea that the forfeiture of Timbs’ Land Rover was disproportionate to his fines. “In our view, the excessive fines clause is about punishment for the criminal,” says Indiana Solicitor General Thomas M. Fisher. “When you’re talking about in rem forfeiture, you’re talking about an action against the property. It’s a separate proceeding.”

The state points out that after his arrest, Timbs admitted to the police that he would use his Land Rover to pick up heroin several times per week. At the forfeiture hearing, he said that doing so put “a lot” of miles on the vehicle.

“If you are trying to conceptualize the seizure of the property as proportional to something, you have to compare it to the role the property played in the crime,” he says.

Both sides’ briefs delve heavily
into the history of the incorporation of the Bill of Rights against the states and into historical practices of fines and forfeitures. One of the state’s examples is meant to show that in rem forfeitures—legal actions directed against property instead of a person—have sometimes been quite draconian and disproportionate.

In an 1833 case, a federal court upheld the seizure of The Louisa Barbara, a 400-ton passenger vessel, because its 178 passengers exceeded a federal weight limit by one passenger.

“When we look at in rem forfeitures, we can see some harsh consequences in history,” Fisher says. “Yet no court has ever suggested there were any constitutional barriers to that.”

Lawyers for Timbs contend that Indiana is ignoring some more recent history. In Austin v. United States, in 1993, the Supreme Court held that forfeitures of property used in certain drug crimes authorized by two federal statutory provisions were “monetary fines” subject to the excessive fines clause.

By arguing that forfeitures aren’t fines, “the state attempts to relitigate Austin,” says Wesley P. Hottot, one of Timbs’ lawyers with the Institute for Justice, an Arlington, Virginia-based public interest legal organization.

The court has incorporated the Eighth Amendment’s other two provisions against the states—those barring excessive bail and cruel and unusual punishment. “The Supreme Court should finish the job and require the states to incorporate the excessive fines clause as a check against the government’s power to punish,” Hottot says.

Timbs has served his house arrest and probation, and he says he is now clean of using drugs. He drives some 35 miles each day to his factory job in Huntington, Indiana, where he is a machinist in a John Deere plant.

He borrows his aunt’s car. It’s a 2012 Dodge Avenger, a modest sedan, since his Land Rover is still in possession.

“I’ve been made aware that if I get it back, it might not be in the best condition,” Timbs says. “I wrote that truck off a long time ago.”

But he hasn’t written off the legal battle he is waging. “I feel like I stand for something,” Timbs says. “I’m coming out of a life of addiction where I didn’t mean a lot to anyone. Now I feel like I’m doing something good with this.”


What Happens if a Juror Lies in Voir Dire?

posted by Judge_Burke @ 21:08 PM
November 27, 2018

From the Federal Criminal Appeals 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.



Are There Lessons to Be Learned in Kentucky and Virginia?

posted by Judge_Burke @ 22:52 PM
November 26, 2018

Judges and policy makers at the state and local level should take great care in employing algorithmic risk assessment tools.

Read Megan T. Stevenson and Jennifer L. Doleac’s work, The Roadblock to Reform, for the American Constitution Society. Here is the summary:

Algorithmic risk assessment tools have become a popular element of criminal justice reforms, often with the explicit goal of reducing incarceration rates. The hope is that these data-driven tools will standardize decisions about pretrial detention and sentencing, and ensure that only the most high-risk offenders are incarcerated. However, the effects of these tools depend crucially on how judges use them.

This brief considers judicial reforms in Kentucky and Virginia as case studies of the effects of algorithmic risk assessment tools in practice. We show that, in both states, reforms aimed at reducing incarceration for low- risk offenders had little to no impact on incarceration rates. While these tools clearly recommended less incarceration for a large share of defendants, they had little effect on judges’ incarceration decisions. However, there is tremendous variation across judges in how closely they follow the risk assessment recommendations. We discuss what these results mean in terms of how to affect meaningful criminal justice reform, including ways citizens and policymakers can align judicial incentives so that reforms have their intended effects.


Libby Hines is Not Just a Michigan Judge, She is an American Judge

posted by Judge_Burke @ 14:00 PM
November 23, 2018

Michigan judge known for groundbreaking work in domestic violence receives William H. Rehnquist Award.

Chief Justice of the United States John G. Roberts Jr. presented the William H. Rehnquist Award for Judicial Excellence to Michigan Judge Elizabeth “Libby” Hines on Nov. 15 in Washington, D.C. Judge Hines, a district court judge in Ann Arbor, is the 23rd recipient of the Rehnquist Award, the most prestigious award presented to a state court judge.

“The Rehnquist Award was created for judges like Judge Hines,” NCSC President Mary McQueen told the crowd of some 250 guests from around the country gathered in the Great Hall of the U.S. Supreme Court. “Judges who not only make their mark in the courtroom, but who also make significant differences in the lives of those who come before them.”

Judge Hines has shaped the way many courts handle domestic violence cases. In 1999, she was appointed to represent her court on an executive committee that managed an initiative sponsored by the U.S. Department of Justice Office on Violence Against Women, one of only three sites in the country selected to find what court practices work best in domestic violence cases. Today, her court serves as a national resource for the handling of such cases.

“Judge Hines makes a difference by creating opportunities, opening doors and reimagining courts,” McQueen said. “She helps defendants turn despair into hope.”

Addressing the crowd, Judge Hines said one reason the Rehnquist Award is so meaningful is because it shines light on the challenging work trial court judges face daily. “With this award, the National Center recognizes and values the work that we do in the lower courts, “she said. “It is difficult to put into words how much this award means to me. I genuinely love the law. I’ve been handling criminal cases for more than 40 years, first as a prosecutor, now as a judge … To be recognized by NCSC for the work I have been privileged to do – and to meet the Chief Justice of the United States – is absolutely thrilling.”

Judge Hines was elected to Michigan’s 15th Judicial District Court bench in 1992. She currently serves as co-chair of the American Judges Association’s Domestic Violence Committee. She has served on the NCSC Board of Directors and was awarded the first Judicial Excellence Award by the Michigan District Judges Association. She received her bachelor’s degree from the University of Michigan and her juris doctorate from the University of Michigan Law School.



Consent Searches

posted by Judge_Burke @ 15:00 PM
November 22, 2018

Susan A. Bandes (DePaul University – College of Law) has posted Police Accountability and the Problem of Regulating Consent Searches (University of Illinois Law Review, Vol. 2018, 2018) on SSRN. Here is the abstract:

Consent doctrine rests on a legal fiction. It protects a broad realm of police conduct not because people in fact feel free to withhold consent, but because it is deemed essential to law enforcement. The assumption that consent is voluntary has been widely criticized, but the other assumption undergirding consent doctrine — that consent searches are essential to good police work — has received less attention. I argue that good police work is too often narrowly equated with finding contraband and making arrests, and that we need a better metric for determining whether “too much” evidence would be lost and “too many” searches would be forgone if consent rules were reformed. Criteria should include not only efficiency at combating crime but also safeguarding public and police safety, promoting fairness and equal treatment of civilians, contributing to improved police-community relations, and providing transparency and accountability. Evaluating and improving consent doctrine also requires addressing the question of which institutions are best suited to gather relevant data and to implement reform.

Consent doctrine provides fertile ground for an evaluation of various institutional approaches to supervising police conduct. It provides an opportunity to examine the scaffolding: the built-in advantages and disadvantages of various institutional approaches to police reform. At the same time, it highlights the impossibility of considering these institutional questions without reference to concrete context. In the realm of policing, noticeable shifts in governmental approaches and priorities are often visibly tied to the change in political regimes. These fluctuations illustrate the perils of treating each institution’s role as fixed, but they also highlight the essential role of each institution, as well as the ways in which some institutions can step up as others step back. I will approach the regulation issue by considering three intertwined questions: First, what kinds of regulation will effectively limit police misuse of consent searches? Second, what data will help illuminate the nature and scope of the problem? And third, what entities can best achieve these regulatory and data-gathering goals?


Did Broken Widows Make A Problem Worse?

posted by Judge_Burke @ 22:51 PM
November 21, 2018

The theory of broken windows as a crime strategy seemed on the surface to make sense… concentrating on little crimes, the result would be a decrease in major crimes. But did it make the problem worse?

In her recent book, Misdemeanorland, Yale Law School Professor Issa Kohler-Hausmann argues that, under “broken windows”, lower courts have slid into a mode of processing cases that prioritizes speed and efficiency over justice. She shows how the policing experiment has subjected hundreds of thousands of people to surveillance and asserts that the lower reaches of the criminal justice system operate as a form of social control.


New Jersey Drunk Driving Cases Might Be Dismissed

posted by Judge_Burke @ 15:26 PM
November 20, 2018

By Associated Press:

A ruling issued Tuesday by the New Jersey Supreme Court could cause more than 20,000 drunken driving convictions to be vacated.

The justices unanimously found that criminal charges pending against a state police sergeant made breath-testing device test results from five counties inadmissible as evidence.

Sgt. Marc Dennis was in charge of calibrating the devices, and authorities have alleged that he skipped a required step in the calibration process. Dennis has denied any wrongdoing and has pleaded not guilty to records tampering and other charges.

The court’s decision means that as many as 20,667 DWI convictions could now be challenged, according to state authorities and the lawyer for the now-dead plaintiff who brought the case that the court ruled on.

View Full Story From NBC News/AP