Archive for December, 2018

Implementing Carpenter

posted by Judge_Burke @ 19:53 PM
December 28, 2018

Orin S. Kerr (University of Southern California Gould School of Law) has posted Implementing Carpenter (THE DIGITAL FOURTH AMENDMENT (Oxford University Press)) on SSRN. Here is the abstract:

In its June 2018 decision in Carpenter v. United States, the Supreme Court held that cell phone users have Fourth Amendment rights in their historical cell-site location records. Carpenter takes the Fourth Amendment in a new direction, adding new protections for non-content third-party business records. Carpenter prompts fundamental questions of what the Fourth Amendment means in the digital age. The Court is embarking on a new path. But what the new Fourth Amendment will look like, and what its limits may be, remain unclear.

This article is a discussion draft of two chapters from a book project, The Digital Fourth Amendment, forthcoming from Oxford University Press. The book argues that computers and the Internet should trigger new Fourth Amendment rules for the digital age. The facts of the digital world are different from the physical world, and new rules are needed to restore the role of the Fourth Amendment. The Supreme Court has already begun creating a Digital Fourth Amendment in Carpenter and its 2014 decision in Riley v. California. This book develops the rationale for the new rules, based on the theory of equilibrium-adjustment, and it offers a comprehensive picture of how the Fourth Amendment should apply to a wide range of doctrines.

The two chapters presented here offer a way to implement Carpenter. They develop and apply a test for Carpenter searches that is faithful to the decision, true to the theory of equilibrium-adjustment on which it rests, and yet also provides as much of the clarity that Fourth Amendment law demands as possible. Chapter 6, The Carpenter Shift, starts by explaining why Carpenter represents a departure from traditional Fourth Amendment principles based on a premature but explicit application of equilibrium-adjustment principles. It then argues that Carpenter should apply to Internet records when three requirements are met: The records exist because of the digital age, they are created without meaningful voluntary choice, and they tend to reveal the privacies of life. Chapter 7, Implementing Carpenter, explains that any records that satisfies these criteria should be protected. Courts should reject a mosaic theory that would limit Carpenter to long-term monitoring or case-by-case approaches that look to whether privacy invasions actually occurred. The Chapter ends by identifying specific examples of Internet records that should trigger Carpenter — and examples that should not.


Should The Police Be Allowed To Be The Prosecutor & Witness?

posted by Judge_Burke @ 18:05 PM
December 27, 2018

There are many states that have non-lawyers who act as judges in limited jurisdiction courts. So, the idea that you have to be a lawyer to be the prosecutor in those courts is problematic. But what if the prosecutor is the arresting police officer? Alexandra Natapoff has this piece in The New York Times. In part:

In hundreds of misdemeanor courts in at least 14 states, police officers can file criminal charges and handle court cases, acting as prosecutor as well as witness and negotiator. People must defend themselves against, or work out plea deals with, the same police officers who arrested them for low-level offenses like shoplifting or trespassing.

Consider South Carolina, where most of the 400 magistrate and municipal courts had no prosecuting attorneys, according to a 2017 study by the National Association of Criminal Defense Lawyers. The police prosecuted their own misdemeanor arrests, while 90 percent of defendants had no lawyers and so faced the arresting officer-prosecutor on their own. South Carolina also does not require its lower-court judges to be lawyers, so thousands of convictions occur without input from a single attorney.



Anonymous Juries

posted by Judge_Burke @ 16:35 PM
December 26, 2018

Most judges will go through their entire career never having even considered having an anonymous jury. But if you are confronted with a request there are implications to granting the request. Leonardo Mangat (Cornell University, Law School, Cornell University, Law School, Students) has posted A Jury of Your [Redacted]: The Rise and Implications of Anonymous Juries (Cornell Law Review, Vol. 103, No. 6, 2018) on SSRN. Here is the abstract:

Since their relatively recent beginnings in 1977, anonymous juries have been used across a litany of cases: organized crime, terrorism, murder, sports scandals, police killings, and even political corruption. And their use is on the rise. An anonymous jury is a type of jury that a court may empanel in a criminal trial; if one is used, then information that might otherwise identify jurors is withheld from the parties, the public, or some combination thereof, for varying lengths of time.

Though not without its benefits, anonymous juries raise questions regarding a defendant’s presumption of innocence, the public’s right to an open trial, the broad discretion afforded to judges, and the impacts of anonymity on juror decisionmaking.

In fact, one mock jury experiment found that anonymous jurors returned approximately 15% more guilty verdicts than their non-anonymous counterparts. The anonymous jury is unquestionably a potent tool that affords a court great flexibility to meet the exigencies of a trial head on. But its extraordinary characteristics counsel care in its empanelment. By adopting the Seventh Circuit’s approach to anonymous juries and requiring reasoned verdicts when they are used, anonymous juries may yet become an “inspired, trusted, and effective” instrument of justice.


What Every Trial Judge Needs to Know

posted by Judge_Burke @ 14:58 PM
December 25, 2018

A great many of the confirmed innocent defendant cases occurred because of faulty forensic science. And so if you want to be a great trail court judge understanding forensic evidence is essential.  Jennifer Mnookin (University of California, Los Angeles (UCLA) – School of Law) has posted The Uncertain Future of Forensic Science (147 Daedalus 99 (Fall 2018)) on SSRN. Here is the abstract:

Forensic science is at a crossroads. In the last two decades, often-used forms of pattern evidence, such as fingerprint, tool mark, and bite mark identification, have faced significant criticism for lacking adequate scientific validation or proven reliability. Is this the beginning of a sea change, signaling the rise of a science-based, empirically grounded approach to these forms of evidence, both in the courtroom and in the crime laboratory? Or has the increased attention produced Band-Aids rather than meaningful and lasting cures? This essay argues that the current state of forensic science reform is both “half empty” and “half full.” Looking first at bite mark evidence, then at modifications in the language used by forensic scientists for their courtroom testimony, and, finally, at the creation and the elimination of the National Commission on Forensic Science, this essay argues that we have thus far seen modest and meaningful – but far from adequate or transformative – reform. Our best hope for sustained, substantial changes necessary for improving forensic science evidence within our system of justice requires the creation of another national commission or other institutional body, made up of both research scientists and other institutional stakeholders, and situated as to prevent “capture” by either forensic practitioners or advocates within our adversarial system.


Iowa Supreme Court Rules (or Doesn’t) on Risk Assessments at Sentencing

posted by Judge_Burke @ 14:50 PM
December 24, 2018

There are few law professors as interesting as Doug Berman. From his Sentencing Law & Policy Blog, “ Iowa Supreme Court dodges due process challenges to use of risk-assessment tools at sentencing:”

A helpful reader made sure I did not miss a trio of rulings handed down late last week by the Iowa Supreme Court which all raised issues concerning the permissibility of courts using risk-assessment tools at sentencing. The rulings came in Iowa v. Gordon, Iowa v. Guise and Iowa v. Buesing, and in each instance the court decided that a constitutional challenges to the use of Iowa Risk Revised risk assessment tool (IRR) at sentencing was not properly raised and preserved at sentencing.  The Gordon case addresses this point most fully, and here is how the other cases describe the Gordon ruling:

Today, we filed an opinion in State v. Gordon, ____ N.W.2d ____ (Iowa 2018).  In Gordon, we held a defendant could not raise this due process argument for the first time on appeal when the defendant did not bring the issue to the district court at the time of sentencing.  Id. at ___. Furthermore, we held we could not address this due process issue under the rubric of ineffective assistance of counsel because the record is insufficient to reach this claim. Id.

Though the Gordon case has the fullest discussion of the merits in this trio of decisions, the Guise case is the best read  because of the Justice Appel’s extended opinion “concurring specially.” This concurrence talks through various concerns about the use of risk-assessment instruments at sentencing (with lots of cites to lots of academic scholarship), and here are a few notable passages:

Guise’s argument that due process requires accurate information about risk assessments beyond a mere conclusion, as demonstrated by Malenchik and Loomis, is certainly not frivolous. Certainly the shiny legal penny of a new risk assessment tool should be carefully scrutinized by the courts….  The relentless and potentially corrosive drive for efficiency and certainty in a resource-scarce public sector should not drive courts to use risk assessments in an unjustified “off label” manner or in a fashion that otherwise lacks meaningful empirical support to drive sentencing.

Even if the emerging risk assessment tools are found to have a place in sentencing as a “relevant” factor, our law does not allow mere conclusions to be mounted on spikes and paraded around our courtrooms without statistical context….

We do not know whether the IRR was normed with an appropriate Iowa population.  We do not know whether the tool has been renormed and monitored.  We do not know anything, really, about the database, assuming there is a database, behind the IRR.

I am also concerned about process issues lurking behind this case.  Ordinarily, the PSI report is made available to the defendant only a few days before sentencing…. But a few days’ notice is not enough time for a defendant to mount a serious challenge to the underlying reliability of the risk assessment evidence as being so unreliable as to be hocus pocus. A full-court press on the question of reliability of the risk assessment would likely require the hiring of a highly qualified expert.  Even if the defendant does not wish to mount a full-blown attack on the statistical model and instead wishes to make a more limited point — say, for instance, the disproportionate impact of use of housing, employment, and level of educational attainment of people of color — the defense will not be able to develop the attack in a few days, particularly when the defendant is indigent and will require court approval prior to the hiring of an expert to challenge the statistical information….

In conclusion, I want to make clear that I do not categorically reject any use of risk assessment tools in the sentencing process.  I recognize that the PEW Center on the States, the National Institute of Corrections, the National Center for State Courts, and the American Law Institute have all expressed interest in evidence-based sentencing.  See J.C. Oleson, Risk in Sentencing: Constitutionally Suspect Variables and Evidence-Based Sentencing, 64 SMU L. Rev. 1329, 1343, 1394 (2011).  I also recognize that sentencing based solely on “intuition” or “gut” runs the risk of allowing implied bias a free reign and can be lawless in nature.  See Chris Guthrie et al., Blinking on the Bench: How Judges Decide Cases, 93 Cornell L. Rev. 1, 5 (2007) (urging the justice system to take steps to limit the impact of overreliance on intuition).  Further, the “intuition” or “gut” of a judge who was a former prosecutor may well differ from the “intuition” or “gut” of a public defender.  Undisciplined intuitive sentencing runs the risk of telling us more about the judge than the person being sentenced.

A fully-developed record may well show that risk and needs assessment tools that assemble variables in a statistically valid way may be of some assistance as a check on unregulated sentencing discretion and may promote deeper thinking by discretionary decision-makers into the sentencing process.  In short, it is possible that when a full record is developed, properly designed and utilized risk assessment tools may enhance and inform the exercise of judicial discretion.  In addition to the binary question of whether a risk assessment may or may not be used in sentencing, however, more nuanced additional questions must be asked regarding how any such tool may be used. In light of the procedural posture of this case and the companion cases, these questions must await further legal developments.


News About Fine & Fee Reform

posted by Judge_Burke @ 14:50 PM
December 21, 2018

In California, the newly-formed Debt Free Justice California coalition achieved its first big win: Alameda County’s Board of Supervisors voted to abolish all of the county’s criminal justice fees, including fees for probation, public defenders, and the sheriff’s work alternative program. This does not eliminate fees imposed by the state of California, but discretionary (local) fees are still significant; as a recent report from the East Bay Community Law Center notes, the average adult on probation in Alameda County could be assessed over $6,000 in probation fees alone.


In early December, Chicago City Clerk Anna Valencia announced the creation of the Chicago Fines, Fees, & Access Collaborative, composed of Chicago City departments, elected officials, community organizations, and academic and advocacy organizations – including FFJC. The Collaborative will review fines, fees, & collections practices and will advance recommendations for reform, following the model of San Francisco’s Financial Justice Project. You can read more via ProPublica.


Who Pays? Fines, Fees, Bail, and the Cost of Courts

posted by Judge_Burke @ 15:57 PM
December 20, 2018

See this abstract from a Yale Law School Public Law Research Paper:

In the last decades, growing numbers of people have sought to use courts, government budgets have declined, new technologies have emerged, arrest and detention rates have risen, and arguments have been leveled that private resolutions are preferable to public adjudication. Lawsuits challenge the legality of fee structures, money bail, and the imposition of fines. States have chartered task forces to propose changes, and new research has identified the effects of the current system on low-income communities and on people of color. The costs imposed through fees, surcharges, fines, and bail affect the ability of plaintiffs and defendants to seek justice and to be treated justly.

This volume, prepared for the 21st Annual Arthur Liman Center Colloquium, explores the mechanisms for financing court systems and the economic challenges faced by judiciaries and by litigants. We address how constitutional democracies can meet their obligations to make justice accessible to disputants and to make fair treatment visible to the public. Our goals are to understand the dimensions of the problems, the inter-relationships among civil, criminal, and administrative processes, and the opportunities for generating the political will to bring about reform.


The Latest In Junk Science?

posted by Judge_Burke @ 17:03 PM
December 19, 2018

In the late 1800s and early 1900s there was a “science” which supporters claimed would revolutionize how the criminal justice system would approach deciding what to do: phrenology. The claim was that, by having your head examined by a phrenologist who would look at the shape and size of the cranium, there would be a reliable  indication of character and mental abilities. It is hard to find a phrenologist these days. One of the last ones was in Minneapolis. But his instrument was in a Museum of Quackery. Now there’s a thing called “vocal risk assessment” which purports to be able to determine a person’s culpability—level of risk, they call it—by the sound of their voice.

From The Intercept:

Is it possible to tell whether someone is a criminal just from looking at their face or listening to the sound of their voice? The idea may seem ludicrous, like something out of science fiction — Big Brother in “1984” detects any unconscious look “that carried with it the suggestion of abnormality” — and yet, some companies have recently begun to answer this question in the affirmative. AC Global Risk, a startup founded in 2016, claims to be able to determine your level of “risk” as an employee or an asylum-seeker based not on what you say, but how you say it.

The California-based company offers an automated screening system known as a Remote Risk Assessment, or RRA. Here’s how it works: Clients of AC Global Risk help develop automated, yes-or-no interview questions. The group of people selected for a given screening then answer these simple questions in their native language during a 10-minute interview that can be conducted over the phone. The RRA then measures the characteristics of their voice to produce an evaluation report that scores each individual on a spectrum from low to high risk. CEO Alex Martin has said that the company’s proprietary risk analysis can “forever change for the better how human risk is measured.”


There Is Growing Support For My Position That The Surcharge Is Unconstitutional

posted by Judge_Burke @ 13:48 PM
December 18, 2018

Recently, in R. v. Boudreault, 2018 SCC 58, the Supreme Court of Canada ruled that “the mandatory surcharge amounts to, and operates as, a constitutionally impermissible form of cruel and unusual punishment. Consequently, s. 737 of the Code violates s. 12 of the Charter and cannot be saved under s. 1”.  The Supreme Court declared section 737 of the Criminal Code “to be of no force and effect immediately, pursuant to s. 52(1) of the Constitution Act, 1982” (at paragraph 98).


Human Rights v. Religious Liberty

posted by Judge_Burke @ 21:54 PM
December 17, 2018

Canada’s top court has ruled in favor of denying accreditation to a Christian law school that banned students from having gay sex.

Friday’s ruling against Trinity Western University in British Columbia (BC) was closely watched by both religious freedom and gay rights advocates.

The university made students promise not to have extra-marital or gay sex.

The Supreme Court found that protecting LGBT students from discrimination trumped religious freedom.

The evangelical university finalized its proposal for a law school in 2012 and applied for accreditation in every province so that its students could be called to the bar anywhere in Canada.

Ontario, British Columbia and Nova Scotia law societies denied the school accreditation, on the grounds that it required all students to sign a covenant binding them to a code of conduct which banned sex outside the confines of heterosexual marriage