Archive for November, 2018

Digital Discovery In Criminal Cases

posted by Judge_Burke @ 15:38 PM
November 19, 2018

There has been a lot of very good judicial education focusing on digital discovery in civil cases. There are great template orders available. But what about digital discovery in criminal cases?

Jenia Iontcheva Turner (Southern Methodist University – Dedman School of Law) has posted Managing Digital Discovery in Criminal Cases (Journal of Criminal Law and Criminology, Vol. 109, No. 2, 2019, Forthcoming) on SSRN. Here is the abstract:

The burdens and challenges of discovery—especially electronic discovery—are usually associated with civil, not criminal cases. This is beginning to change. Already common in white-collar crime cases, voluminous digital discovery is increasingly a feature of ordinary criminal prosecutions.

This Article examines the explosive growth of digital evidence in criminal cases and the efforts to manage its challenges. It then advances three claims about criminal case discovery in the digital age. First, the volume, complexity, and cost of digital discovery will incentivize the prosecution and the defense to cooperate more closely in cases with significant amounts of electronically stored information (ESI). Second, cooperation between the parties will not be sufficient to address the serious challenges that digital discovery presents to the fair and accurate resolution of criminal cases. And third, for that reason, digital discovery in criminal cases needs to be regulated more closely.

In crafting such regulation, courts and legislators can build on the civil procedure model, which has grappled with the challenges of e-discovery for over two decades. The civil procedure experience suggests that cooperation between the parties, active judicial involvement, and more detailed rules are essential to the effective management of digital discovery.

The civil litigation model has its limitations, however, and policymakers must chart new ground to address some of the unique demands of criminal cases. Recognizing the significant resource and bargaining disparities in criminal cases, judges need to limit certain negotiated waivers of discovery so as to prevent abuse. Where the interests of justice demand it, courts may also need to help defendants obtain access to digital discovery in detention, gather digital evidence from third parties, and receive digital files in a format that allows adequate review for exculpatory material. These and other measures can help ensure that the cost and complexity of digital discovery do not undermine the fairness and accuracy of criminal proceedings.


What Do Americans Think Of Crime?

posted by Judge_Burke @ 16:10 PM
November 16, 2018

The Hill, John Bowden, reports:

The percentage of Americans who say that crime is an extremely or very serious problem in the U.S. dropped to under 50 percent in 2018, the first time respondents have been below that threshold since 2005, according to a Gallup poll.

Forty-nine percent of those surveyed said that the problem of crime was extremely or very serious, a drop of 10 percent from last year and one of the sharpest decreases on record.The percentage of Americans who say crime is increasing nationwide remains high at 60 percent, but that number is an 8-point drop from 2017 and the lowest percentage since 2004, according to Gallup’s survey.

When it comes to local crime, Americans are more optimistic. 42 percent of poll respondents said that crime was dropping in their area, compared to 39 percent who said that it was rising. This was the first year since 2001 that more Americans have said that crime was decreasing in their local area than increasing.

Nine percent of respondents said that crime was a very serious or extremely serious problem in their areas, the first time that rating has dropped into single digits since 2004, according to Gallup.

Crime rates have been decreasing nationally since the 1990s, but Americans’ perception of nationwide crime has not always followed. Pessimism about nationwide crime peaked in 2009, when 79 percent said that crime was increasing despite a fourth year in a row of the FBI’s violent crime rate dropping.a

Gallup’s poll contacted 1,019 adults nationwide between Oct. 1-10. The survey’s margin of error is plus or minus 4 percentage points.


The Challenge of “Evidenced Based Sentencing”

posted by Judge_Burke @ 15:48 PM
November 15, 2018

It has been part of a revolution in the criminal justice system. Decisions are not made based upon judgement but statistically based.

While the catch phrase “evidenced based” is hard to argue with, the challenge is, perhaps, that there is junk science driving the evidence.

Judgments can suffer from implicit bias.

But then there is this. Melissa Hamilton (University of Surrey School of Law) has posted The Biased Algorithm: Evidence of Disparate Impact on Hispanics (56 AM. CRIM L. REV. Forthcoming) on SSRN. Here is the abstract:

Algorithmic risk assessment holds the promise of reducing mass incarceration while remaining conscious of public safety. Yet presumptions of transparent and fair algorithms may be unwarranted. Critics warn that algorithmic risk assessment may exacerbate inequalities in the criminal justice system’s treatment of minorities. Further, calls for third party auditing contend that studies may reveal disparities in how risk assessment tools classify minorities. A recent audit found a popular risk tool overpredicted for Blacks.

An equally important minority group deserving of study is Hispanics. The study reported herein examines the risk outcomes of a widely used algorithmic risk tool using a large dataset with a two-year followup period. Results reveal cumulative evidence of (a) differential validity and prediction between Hispanics and non-Hispanics and (b) algorithmic unfairness and disparate impact in overestimating the general and violent recidivism of Hispanics.


Attempted Suicide as Evidence of Guilt

posted by Judge_Burke @ 21:03 PM
November 14, 2018

There are many reasons why people attempt to commit suicide. According to the American Foundation for Suicide Prevention (AFSP), over 44,000 people try to commit suicide each year in the United States. There’s no single reason why someone may try to take their own life, but certain factors can increase the risk. Someone may be more likely to attempt suicide if they have a mental health disorder. About 90 percent of people who commit suicide have a mental illness at the time of their death. Depression is the top risk factor, but there are various other mental health disorders that can contribute to suicide, including bipolar disorder and schizophrenia.

So is attempted suicide evidence of guilt and admissible in a criminal trial?  By Evidence ProfBlogger:

Assume that a defendant who has been charged with a crime attempts suicide while detained prior to trial. Should evidence of this suicide attempt be admissible at the defendant’s ensuing trial? This was the question of first impression addressed by the Supreme Court of South Carolina in its recent opinion in State v. Cartwright, 2018 WL 4609386 (S.C. 2018).

In Cartwright, “Harold Cartwright, III (Cartwright) was convicted of one count of first-degree criminal sexual conduct (CSC), eight counts of first-degree CSC with a minor, two counts of second-degree CSC with a minor, one count of third-degree CSC, and sixteen counts of committing a lewd act on a minor.” At Cartwright’s trial, the prosecution was allowed to present evidence that Cartwright attempted to commit suicide while detained prior to trial. At trial, Cartwright gave the following explanation for his suicide attempt:

I turned myself in. I’d been there for 30 days. I couldn’t get a bond. I was charged with some of the most heinous crimes that somebody could ever think about being charged with…. I’m in my cell with all these things on my mind, and then the daughter that I loved, [Daughter], hates me so much because I had her husband … locked up … and she held a grudge against me, and they come [sic] and served me ten warrants…. [A]t that time I didn’t feel I wanted to live any more [sic].

After he was convicted, Cartwright appealed, claiming that evidence of his suicide attempt should have been deemed inadmissible. The Supreme Court of South Carolina noted that it hadn’t addressed this issue before, but that in State v. Mann, 132 N.J. 410, 625 A.2d 1102, 1107 (1993), the New Jersey Supreme Court determined evidence of attempted suicide is admissible to show consciousness of guilt, but requires the trial court to hold a hearing outside the presence of the jury to evaluate whether evidence of the suicide attempt supports an inference that the defendant was seeking to avoid prosecution….The Mann court recognized that humans commit, and attempt to commit, suicide for a myriad of reasons including, but not limited to, prison conditions, family issues, financial problems, mental illness, emotional instability, disbelief in the justice system, stress, failure, and embarrassment….Acknowledging the complex nature of the evidence, the Mann court instructed trial courts to consider defendants’ alternative explanations, as well as the possible prejudice to a defendant from the introduction of the attempted suicide evidence. Additionally, the court noted trial courts “should ensure that a defendant has been given adequate notice of the State’s intention to offer proof of the attempted suicide.”

Finding this general logic persuasive, the Supreme Court of South Carolina ruled as follows:

Accordingly, in future cases, we instruct trial courts to conduct a hearing outside of the presence of the jury. During this hearing, at which the State and the defendant shall be permitted to introduce evidence, the trial court shall determine whether the State has proven that: (1) a jury could reasonably find that a suicide attempt occurred; (2) the defendant was aware of the occurrence of the alleged crimes at the time of the suicide attempt; and (3) an unmistakable nexus exists by clear and convincing evidence linking the suicide attempt to a guilty conscience derivative of the offense for which the defendant is on trial. If the trial court concludes that the three factors have been established, the evidence is relevant and may be admitted, subject to a Rule 403, SCRE analysis. The suicide-attempt evidence may be admitted only when all three factors have been met, and the evidence survives a Rule 403 analysis. We recognize that in view of our rigorous framework, suicide-attempt evidence will rarely be admitted.

But, despite this last line, the court found the evidence of Cartwright’s suicide attempt admissible because Prison authorities found Cartwright hanging in his cell, the same day Cartwright was served with additional warrants. Cartwright admitted that he attempted suicide after he became aware of the new charges. The record further reflects Cartwright threatened to commit suicide if the victims (Daughter, Stepdaughter One, and Stepdaughter Two) told anyone about the sexual abuse.


Sentencing Reform

posted by Judge_Burke @ 21:25 PM
November 13, 2018

Peter A. Joy and Rodney J. Uphoff (Washington University in St. Louis – School of Law and University of Missouri School of Law) have posted Sentencing Reform: Fixing Root Problems (University of Missouri-Kansas City Law Review, Vol. 87, No. 1, 2018) on SSRN. Here is the abstract:

In theory, at least, many subscribe to the belief that it is better to let 10 or 100 guilty persons go free rather than convict an innocent person. Indeed, the American criminal justice system provides criminal defendants a panoply of important rights, including the right to effective assistance of counsel, in large part to ensure that the innocent are not convicted of crimes that they did not commit. But defense counsel is there not only to protect the innocent, but also to ensure that, if the defendant is found guilty after trial or if the defendant pleads guilty before trial, he or she will receive a fair sentence.

In practice, however, too many criminal defendants receive lackluster representation, and few ever actually exercise their right to trial. Instead, our current criminal justice system is plea-bargain-driven, and the vast majority of state and federal criminal offenders plead guilty—approximately 97% of federal cases and 94% of state cases are resolved by guilty pleas rather than trials. Commenting on the prevalence of negotiated guilty pleas, the U.S. Supreme Court has stated that “plea bargaining is . . . not some adjunct to the criminal justice system; it is the criminal justice system.” Why, then, are criminal defense lawyers able to persuade the vast majority of their clients to plead guilty, even those who are actually innocent? Put simply, it is because our system punishes so severely those who go to trial and lose. If we are serious about both minimizing the conviction of the innocent and sentencing reform, we must address this reality. This essay, therefore, focuses on two pernicious features of our current criminal justice system—misuse of plea bargaining and misuse of informants—that explain why so few criminal defendants exercise their right to trial. We conclude with proposals that might ameliorate those features of our system.


Fictional Pleas

posted by Judge_Burke @ 14:13 PM
November 12, 2018

In one state, the legislature has decided that really significant fines are required upon conviction of driving without a valid drivers license. So, what if the defense lawyer, prosecutor, judge think that the defendant is never going to be able to pay? Or, what if the defendant is a single parent struggle to pay the rent?

Amend the charge to disorderly conduct and the problem is taken care of.

If the defendant finally got their drivers license, but picked up a driving after suspension just before the license got reinstated? Amend the charge to public nuisance and the problem is solved.

If you think this is creative, if you are appalled, or if you are just curious, you might want to read this new paper now available via SSRN authored by Thea Johnson.  Here is its abstract:

A fictional plea is one in which the defendant pleads guilty to a crime he has not committed with the knowledge of the defense attorney, prosecutor and judge.  With fictional pleas, the plea of conviction is totally detached from the original factual allegations against the defendant.  As criminal justice actors become increasingly troubled by the impact of collateral consequences on defendants, the fictional plea serves as an appealing response to this concern.  It allows the parties to achieve parallel aims: the prosecutor holds the defendant accountable in the criminal system, while the defendant avoids devastating non-criminal consequences.  In this context, the fictional plea is an offshoot of the “creative plea bargaining” encouraged by Justice Stevens in Padilla v. Kentucky.  Indeed, where there is no creative option based on the underlying facts of the allegation, the attorneys must turn to fiction.

The first part of this Article is descriptive, exploring how and why actors in the criminal justice system — including defendants, prosecutors and judges — use fictional plea for the purposes of avoiding collateral consequences.  This Article proposes that in any individual case, a fictional plea may embody a fair and just result — the ability of the defendant to escape severe collateral consequences and a prosecutor to negotiate a plea with empathy.

But this Article is also an examination of how this seemingly empathetic practice is made possible by the nature of the modern adversarial process — namely, that the criminal system has continually traded away accuracy in exchange for efficiency via the plea bargain process.  In this sense, fictional pleas serve as a case study in criminal justice problem solving.  Faced with the moral quandary of mandatory collateral consequences, the system adjusts by discarding truth and focusing solely on resolution.  The fictional plea lays bare the soul of an institution where everything has become a bargaining chip: not merely collateral consequences, but truth itself.  Rather than a grounding principle, truth is nothing more than another factor to negotiate around.


Marijuana In Mexico

posted by Judge_Burke @ 21:23 PM
November 9, 2018

Canada has legalized marijuana. That decision got a lot of press coverage in the United States. And of course there are several states that have also legalized marijuana. Now Mexico’s Supreme Court has ruled that an absolute ban on recreational use of marijuana was unconstitutional, effectively leaving it to lawmakers to regulate consumption of the drug. Announcing it had found in favor of two legal challenges filed against prohibition of recreational marijuana use, Mexico’s top court crossed the threshold needed to create jurisprudence: five similar rulings on the matter. That creates a precedent other Mexican courts will have to follow.

“This is a historic day,” Fernando Belaunzaran, an advocate of drug reform and member of the opposition leftist Party of the Democratic Revolution (PRD), said. The Supreme Court made its first ruling to allow a group of people to grow marijuana for personal use in November 2015. In a statement, the court said the ruling did not create an absolute right to use marijuana and that consumption of certain substances could still be subject to regulation. “But the effects caused by marijuana do not justify an absolute prohibition on its consumption,” it said.

The court ordered federal health regulator COFEPRIS to authorize people seeking the right to use marijuana to do so personally, “albeit without allowing them to market it, or use other narcotics or psychotropic drugs.” Congress would now have to act to regulate the use of marijuana in Mexico, Belaunzaran said.


Meanwhile, in West Virginia

posted by Judge_Burke @ 21:20 PM
November 8, 2018

Governing Magazine, Alan Greenblatt, reports that,

West Virginia politics has been roiled this fall by the impeachment trials of all the sitting justices on the state Supreme Court. The events overshadowed a ballot measure meant to address the underlying issue that led to the trials — how the judiciary spends its funds. Still, the constitutional amendment easily passed.

The measure gives the legislature more control over the judicial budget. Now, any part of the court system’s budget could be cut or eliminated by lawmakers, so long as the overall judicial budget is at least 85 percent as large as it had been the prior fiscal year. West Virginia had been the only state where the legislature had no say over it.

The changes to judicial funding drew much less media coverage or voter interest than the ongoing impeachment drama, or another amendment on the state ballot regarding abortion. “Most of the attention seems to be on the impeachment trials themselves, not on structural fixes to the perceived problems,” Scott Crichlow, a political scientist at West Virginia University, said in early October.

Last month, the state Senate reprimanded Justice Beth Walker but voted to let her keep her seat on the bench, following a two-day impeachment trial. That same day, a jury was selected in the criminal trial of suspended Justice Allen Loughly, who faces 22 federal charges, including mail fraud, obstruction of justice and making a false statement.

In August, the West Virginia House voted to impeach Loughry, Walker and two other justices, charging them with failure to carry out their duties. Several justices were charged with misuse of funds on office renovations, salaries or vehicles and computers. A fifth justice, Menis Ketchum, had stepped down in the face of a federal indictment. He pleaded guilty in August to misusing public funds…




posted by Judge_Burke @ 15:11 PM
November 7, 2018

You do not need to be a treatment court judge to know that addiction drives much of the criminal justice system. So we all need to know just a little bit more about it. Years ago a Congressman from Minnesota, who was a champion of improving our nation’s response to addiction, said that far too many members of Congress saw addiction as a moral failure. It isn’t.

Stephen Morse (University of Pennsylvania Law School) has posted an abstract of Criminal Law and Addiction (The Routledge Handbook of Philosophy and Science of Addiction 540-53 (Hanna Pickard and Serge H. Ahmed, eds., 2019)) on SSRN. Here is the abstract:

There is a debate among addiction specialists about the degree to which addicts can exert control over seeking and using substances and about other behaviors related to addiction. Some think that seeking and using are solely or almost solely signs of a disease and that addicts have little choice about whether to seek and use. In contrast are those who believe that seeking and using are constrained choices but considerably less constrained on average than the first group suggests. This group is also more cautious about, but does not reject, characterizing addiction as a disorder. There is evidence to support both positions. There is a third group who believe that addiction is simply a consequence of moral weakness of will and that addicts simply need to and can pull themselves up by their bootstraps. The empirical evidence for the moralizing third view seems weak, although such attitudes play a role in explaining the limited role the criminal law accords to addiction. This chapter demonstrates that existing Anglo-American criminal law is most consistent with the choice position. It also argues that this is a defensible approach that is consistent with current science and with traditional justifications of criminal blame and punishment.

The chapter first discusses preliminary issues to avoid potential objections that the discussion adopts an unrealistic view of addiction. It then provides a general explanation of the responsibility criteria of the criminal law and briefly addresses false or distracting claims about lack of responsibility. Then it turns to analysis of the criminal law’s doctrines about addiction to confirm that the criminal law primarily adopts a choice model and that addiction per se plays almost no role in responsibility ascriptions. It concludes with a general defense of present doctrine and practice, but briefly suggests beneficial liberalizing reforms.


Do You Need A Ride To Court?

posted by Judge_Burke @ 21:56 PM
November 5, 2018

MacArthur Foundation grant aims to get offenders to court, avoid night in jail

By Rochelle Olson Star Tribune:

The MacArthur Foundation, which focuses on social issues and is known for its “genius grants,” awarded the money to the county and city as part of a warrant reform project called Hitch Health designed to remove a barrier to defendants showing up for court dates.

The free rides will be offered beginning in January.

Jeanette Boerner, first assistant Hennepin County public defender, said economic barriers often keep defendants from going to court. It’s expensive to park downtown, they may not have a license or be able to afford insurance, or child care may fall through at the last minute.

“A lot of times they have so many crises they’re trying to deal with” that something has to give, Boerner said.

When a defendant doesn’t show up in court, the judge issues a warrant for their arrest. Typically they get picked up and spend the night in jail, spiraling them further into a web of problems, she said.

Getting defendants to court on time also should make judges’ schedules less congested with rescheduled appearances, Boerner said. Some defendants will receive rides to go downtown and meet with lawyers before their court appearance.

The money is expected to cover some 3,000 rides. Boerner said the pilot project will continue until the money runs out.

The grant proposal was written by Mary Ellen Heng, deputy Minneapolis city attorney, and is part of the MacArthur Foundation’s Safety and Justice Challenge in 52 cities and counties across 32 states. The challenge is trying to stem the misuse and overuse of jails, which the foundation calls a “fundamental driver of over-incarceration in America.

View the original article at the star tribune website.