Archive for December, 2018

Should A judge Allow Expert Testimony On Informants?

posted by Judge_Burke @ 15:04 PM
December 14, 2018

Robert M. Bloom (Boston College Law School) has posted What Jurors Should Know about Informants: The Need for Expert Testimony (Michigan State Law Review, Forthcoming) on SSRN. Here is the abstract:

With the advent of DNA exonerations, the data would indicate that many individuals have been wrongly convicted. In looking at the causes of the exonerations, nearly 20% have involved testimony by accomplices and jailhouse informants. The questionable credibility of these individuals has long been recognized by courts and legislatures. Reforms in this area include, enhanced jury instructions, pre-trial credibility hearings, and corroboration before the testimony can be introduced.

This article argues the efficacy of expert testimony to further assist jurors in measuring the credibility of these witnesses. Although the use of experts has largely been disfavored by courts, there has been a gradual movement to use experts for eyewitness identifications, the major cause of exonerations. The article proposes a similar movement for informant testimony.


ICE Arrests At The Courthouse

posted by Judge_Burke @ 17:52 PM
December 13, 2018

BOSTON (AP) — Dozens of retired state and federal judges called Wednesday on U.S. immigration officials to stop making arrests at courthouses of people suspected of being in the country illegally, saying immigrants should be free to visit halls of justice without fearing they will be detained.

Nearly 70 former judges from 23 states — including federal judges and state supreme court justices — said in a letter sent to Acting U.S. Immigration and Customs Enforcement Director Ronald Vitiello that courthouse arrests are disrupting the criminal justice system.

“I just can’t imagine that we are closing our courtrooms to people who have a right to be there. And you really are closing them if you instill fear in people so they cannot come near a courtroom,” said Fernande R.V. Duffly, who was born in Indonesia to Dutch and Chinese parents and served as an associate justice on Massachusetts’ highest court until 2016.

The judges are urging Vitiello to add courthouses to the list of so-called “sensitive locations” that are generally free from immigration enforcement, like schools and places of worship. They say that only “unequivocal guarantees and protections will restore the public’s confidence that it can safely pursue justice in our nation’s courts.”

The Brennan Center for Justice at New York University Law School helped organize the letter, whose signers include judges appointed by both Democratic and Republican governors.

Immigration officials have said communities are forcing their hand by refusing to transfer immigrants in local prisons and jails to ICE custody. They also argue that courthouse arrests are safer for agents because people have to go through metal detectors when they enter courthouses.

ICE says it’s going into courthouses only for certain targets, like gang members and public safety threats and immigrants who have been previously deported or ordered to leave.

“Arrests in courthouses are a routine practice for law enforcement agencies throughout the country. Because many jurisdictions no longer allow ICE to take custody of aliens inside of jails, courthouses are the next safest option,” ICE Spokeswoman Liz Johnson said in a statement.”


Teen Courts

posted by Judge_Burke @ 21:19 PM
December 12, 2018

Lorenn WalkerKeyria Rodgers and Mark Umbreit (Hawai’i Friends of Restorative Justice, Macon County Teen Justice Program and University of Minnesota – St. Paul, School of Social Work, Center for Restorative Justice and Peacemaking) have posted What Is Restorative About Teen Court? (Internet Journal of Restorative Justice, Special Issue Restorative Justice and Complex Crimes) on SSRN. Here is the abstract:

 Teen court, also called youth, peer, or student court, is a diversion program used primarily in the United States, but also in at least ten other countries, for juveniles who have committed minor crimes. The sentences imposed on juvenile offenders may include restitution and mandatory jury duty in other teen court cases. Many teen courts claim to apply restorative justice. The American Bar Association, the National Association of Youth Courts, and academics have claimed teen court is a restorative program. This study randomly reviewed 164 teen court websites for American programs and found 32 claimed to be restorative. The study applied the teen court process to criteria for restorative programs established by Eglash (1977), Christie (1977) and Zehr (2015), which determined teen court is not restorative. Teen court is an autocratic and adversarial process used primarily for determining punishment. Teen courts claim that they are restorative because youth take accountability by admitting guilt and choosing to participate in the program, which is true for all juveniles pleading guilty in traditional juvenile courts. The paper explores how teen court programs can be restructured into restorative justice programs looking at two former teen court directors who turned their programs into restorative ones.


An Essay On Excessive Fines

posted by Judge_Burke @ 21:04 PM
December 11, 2018

From the How Appealing blog, “No One Likes Excessive Fines, But No One Can Define Them, Either; The Supreme Court seems likely to strike them down, leaving open the question of how much is too much”: Law professor Stephen L. Carter has this essay online at Bloomberg Opinion.


Be Careful About What You Say

posted by Judge_Burke @ 15:46 PM
December 10, 2018

From the ABA Journal:

A Pennsylvania appeals court has removed a judge from the resentencing of a convicted child rapist, citing the judge’s “demonstrated bias and personal animus” toward the defendant’s lawyer and the public defender’s office.

A three-judge panel of the Superior Court of Pennsylvania ordered the recusal of Judge Donna Jo McDaniel of Allegheny County in an opinion on Wednesday, [November 28] the Pittsburgh Post-Gazette reports. She was kicked off the case of Anthony McCauley, who was convicted of rape of a child and other offenses for sexual abuse of a minor when she was 6 and 12 years old.

McDaniel made “gratuitous statements” and sarcastic statements about the counsel in an opinion and made a veiled threat implying that their challenges to her decisions could be harmful to other criminal defendants, the superior court said. In addition, McDaniel “continually refuses” to follow sentencing mandates from the superior court in other sex offender cases, the court said.


A Depressing Statistic

posted by Judge_Burke @ 17:47 PM
December 7, 2018

Drug overdose deaths set a record last year.

More than 70,000 Americans died from drug overdoses in 2017, a “staggering” figure that public health officials say is fueled by a rise in the use of the synthetic opioid fentanyl. Deaths caused by those drugs increased by 45 percent last year over 2016 and experts now say that limiting opioid prescriptions isn’t going to ease the crisis. See The New York Times for more information. Related: Drug overdoses and the rising number of suicides are lowering our life expectancy. 



Criminalizing Poverty

posted by Judge_Burke @ 17:59 PM
December 6, 2018

Anatole France said, “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”

Governing Magazine recently had this post:

A federal ruling from the Ninth Circuit Court of Appeals in September is already having an effect on how communities treat homeless people.

Martin v. Boise has been making its way through the courts since 2009. At issue is whether Boise, Idaho’s ban against sleeping on the streets — a so-called anti-camping ordinance that exists in many places across the country — violates homeless people’s Eighth Amendment rights, which protect against cruel and unusual punishment.

The court’s decision, which directly impacts nine Western states, gives homeless people and advocates reasons to claim both victory and defeat.

The victory: “As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors on public property on the false premise they had a choice in the matter,” wrote Ninth Circuit Judge Marsha Berzon.

The defeat: The court ruled that shelters can turn people away if they don’t comply with religious rules or if they have reached capacity.

Boise is appealing the ruling and plans to continue as usual in the meantime. “As far as we’re concerned, the ordinance stands until we hear differently from a final court,” Mike Journee, a spokesman for the city, told the Idaho Statesman.

Still, homeless rights advocates are cautiously optimistic the case could catalyze cities to finally figure out long-term solutions for chronic homelessness.

“We want communities to see this as an opportunity, not a limitation. Criminalization of homeless, anyway you look at it, is never a positive step,” says Eric Tars, senior attorney for the National Law Center on Homelessness and Poverty. “From a fiscal standpoint, it costs communities more to cycle these people through law enforcement than actually providing shelter or giving them resources.”

Research shows that the criminalization of homelessness is expensive and often ineffective. According to a 2018 study by the University of Denver, six Colorado cities spent $5 million enforcing anti-homeless ordinances over a five-year period. “Reducing or eliminating anti-homeless ordinances would achieve governmental goals of reducing ineffective spending,” the study found. Similarly, San Francisco spends around $20 million a year enforcing it’s anti-homeless ordinances. 

Meanwhile, a 2015 report found that Massachusetts saved taxpayers $9,339 for every homeless person that it helped house instead of penalized.

The September ruling has already spurred several cities to act.

Modesto, Calif., dedicated a park for homeless people to camp. But the city stresses that this is a temporary solution while it works toward increasing the number of available beds in shelters and that it will continue to enforce its anti-camping ordinance in other areas. Olympia, Wash., called off a sweep of a homeless encampment. San Francisco and Portland, Ore., officials said they will stop prosecuting homeless people violating city sleeping ordinances. And Los Angeles officials said they are working on new guidance regarding encampments.

As cities look for long-term solutions to homelessness, Tars says they should avoid taking the easy route of passing more laws against homelessness and instead invest in ”upstream” programs, which cost more in the beginning but can end up saving communities more money down the line and in other areas like health care. Upstream solutions include opening up vacant lots to people living out of their cars, and using bond money to create more affordable housing.

But, Tars says, these investments can be a tough sell.

“You get this push from the business community that we need to do something, and we couldn’t agree more,” he says. “Where we differ, however, is that businesses and others will say to do the quick and easy thing. Whereas when you have more thoughtful approaches, you have to acknowledge those costs up front.” 

How Philadelphia Is Helping the Homeless

Philadelphia isn’t impacted by Martin v. Boise, but Tars says cities that are should look to its efforts to combat homelessness as a model, particularly the “Hub of Hope.”

One of the city’s train stations was a de facto place for homeless people to sleep. With the population it wants to help already there, the city converted it into a permanent walk-in resource center where homeless people can shower, do laundry, and receive health, housing and legal aid. The space offers dinner on the weekends and in December will expand evening meals to four times a week. They cannot, however, sleep there anymore.

The Hub of Hope sees about 250 people per day, and they saw 80,000 people in 2017, according to David Hollomon, chief of staff for Philadelphia’s Department of Homeless Services. Law enforcement likes it, says Hollomon, because it gives them a place to redirect homeless people.

Meanwhile, Philadelphia has created enough low-barrier housing — where the only requirement to get a bed is to not be under the influence and to not incite violence – to clear three out of four of its homeless encampments, redirecting 50 people to some form of shelter and helping 67 get a photo ID (which is required to receive some government aid). While this doesn’t account for everyone in those encampments, Holloman says not everyone chooses to go to a shelter.

“Everyone in the city has been clear that we’re not criminalizing homelessness. We didn’t ever want to be perceived as doing that,” Holloman says.

Tars worries, however, that no matter what cities do, they won’t make a significant dent in homelessless until they address the lack of affordable housing throughout the country.

“[The ruling] gives us a really important tool, but the danger is we’re not solving the overall affordable housing crisis,” he says. “More families are paying a higher share of their income on housing, so my fear is that unsheltered homelessness is just going to continue to grow.”


Should You Recuse If The Lawyer Is A Facebook Friend?

posted by Judge_Burke @ 15:20 PM
December 5, 2018

From the Legal Reader Blog,

Florida Judge Beatrice Butchko will not have to autmoatically give up a case because of a Facebook friendship she has with an attorney, the Florida Supreme Court recently ruled in a close 4-3 decision.  The Herssein Law Group said Butchko should not hear the case because she is Facebook friends with lawyer Israel Reyes, a former judicial colleague, and the friendship could influence Butchko’s decision-making.

In June of this year, Maury Udell, an attorney for the Herssein Law Group, said he wasn’t saying “judges can’t be on Facebook.”  But, he said, “Just don’t be Facebook friends with lawyers who appear in front you…It goes back to the word I came up (with) in the beginning (of the arguments) – which is optics.  It just doesn’t look right.”

In the court’s decision, it ruled a digital connection between people is not the same as being friends in the real life, however.  Facebook friendships are more casual and not as long-lasting, and the connection “may be as fleeting as the flick of a delete button,” the court said.  Thus, the existence of a social media friendship between the judge and an attorney does not reasonably convey a close friendship.

“No reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are Facebook ‘friends’ with a relationship of an indeterminate nature,” the opinion stated, adding the committee’s concern about Facebook friendships “is unwarranted.”

Florida’s Judicial Ethics Advisory Committee has advised judges not to friend attorneys who appear before them, in general.  Florida remains the most restrictive state with regards to social media standards and allowing or not allowing connections between parties.  Eleven states in total have issued guidance on such friendships.

The majority decision affirmed a decision last year by Florida’s Third District Court of Appeals.  Butchko had refused to give up her position, forcing the Herssein Law Group to take the issue to the appeals court.  The August 23, 2017 decision allowed Judge Butchko to remain on the case, which involved a suit for nonpayment of legal fees filed by the Herssein Law Group against a former client, the United Services Automobile Association.  After losing that round, the group went to the state’s Supreme Court.

In her dissent, Democratic Justice Barbara Pariente argued that the judge should have to give up the case.  She said, “The bottom line is that because of their indeterminate nature and the real possibility of impropriety, social media friendships between judges and lawyers who appear in the judge’s courtroom should not be permitted.  Under this rule, the opposing litigant would not be required to delve into how close the Facebook friendship may be, the judge avoids any appearance of impropriety, and Florida’s courts are spared from any unnecessary questions regarding the integrity of our judiciary.”  She added she, personally, would adopt a strict rule requiring judges to recuse themselves in such situations, quoting from an opinion in another Facebook recusal case involving a similar conflict of interest and stating, “Judges do not have the unfettered social freedom of teenagers.”



A Potentially Important Case About the Law of Arrest

posted by Judge_Burke @ 20:44 PM
December 4, 2018

If you do not read the SCOTUS blog you should. This recent post is a prime example of the important work that blog produces:

Howard M. Wasserman Contributor

Posted Tue, November 27th, 2018 11:05 a

Argument analysis: “Contempt of cop” — Justices search for compromise standard for First Amendment retaliatory arrests

In Monday’s argument in Nieves v. Bartlett, the justices pushed all sides for a compromise approach to handle the broad range of cases that might qualify as First Amendment retaliatory arrests, an approach that would neither allow all claims nor defeat all claims.

The case arises from the arrest of respondent Russell Bartlett at Alaska’s Arctic Man Festival, which Chief Justice John Roberts described as “10,000 mostly drunk people in the middle of nowhere” patrolled by eight police officers. In a civil damages action, Bartlett alleged that petitioners Luis Nieves and Bryce Weight, two Alaska state troopers, arrested him because he refused to talk with Nieves (who wanted him to move a keg indoors) and because he told Weight not to talk with a teenager outside the presence of the youth’s parents. The troopers responded that Bartlett’s retaliatory-arrest claim should fail because they had probable cause for the arrest. The district court granted summary judgment to the troopers on the First Amendment retaliation claim, and the U.S. Court of Appeals for the 9th Circuit reversed.

Arguments of petitioner

Assistant Alaska Attorney General Dario Borghesan argued for the “well-grounded common-law rule that the existence of probable cause protects against liability for officers enforcing criminal law.” This standard is necessary because causation is especially difficult in these cases; because other tools for filtering weak claims and giving officers “margin for error” do not work well; and because the court should avoid a rule that might cause an officer to hesitate in fast-paced situations in which he must act decisively or that would allow that officer to “be haled into court … and forced to defend the purity of his motives.”

Justice Samuel Alito introduced the problem of the broad range of “retaliatory arrest” cases. On one end of a spectrum is the “disorderly person situation,” in which police officers encounter a group of people and someone insults the officers (what Justice Ruth Bader Ginsburg describes as “contempt of cop”); on the other end is a case in which a journalist who wrote something critical of the police department is arrested or cited for a minor speeding violation. A rule that probable cause precludes a retaliatory-arrest claim would be well-suited for the first situation, Alito suggested, but would create problems in the second. Justice Elena Kagan followed up, noting that “the point is that there are so many laws that people can break that police officers generally look the other way, but, you know, you’re saying something that the officer doesn’t much like, so he doesn’t look the other way.” Borghesan responded that cases in the second category are “vanishingly rare” and the court should design a rule for the typical first-category case.

In response to questions from Ginsburg, Borghesan urged the court to recognize that police officers arrest based on conduct and are not legal technicians. Officers thus should escape liability if there is probable cause “for the stated crime of arrest or the crimes charged or crimes closely related to those crimes.”

Arguments of United States as amicus curiae

Arguing for the United States as amicus curiae in support of the troopers, Principal Deputy Solicitor General Jeffrey Wall argued that most constitutional tort claims contain an objective requirement that prevents a purely subjective inquiry into officers’ motivations. This is especially necessary in retaliatory-arrest cases, which are easy for plaintiffs to allege and difficult and expensive for officers to defend.

Kagan questioned the propriety of importing a probable-cause requirement from the Fourth Amendment, where it appears in the substantive law, into the First Amendment; the presence of probable cause for an arrest does not change the fact that the arrest occurred in retaliation for protected speech. And the imposition of a probable-cause requirement for retaliatory prosecution in Hartman v. Moore was justified by the involvement of a prosecutor who was entitled to absolute immunity, a number of upstream and downstream actors, and the presumption of regularity that attaches to prosecutorial action — none of which is present for retaliatory arrest. Wall responded that Hartman was about the difficulty of establishing causation in all retaliation cases and the way that establishing the absence of probable cause helps the causation inquiry; that concern remains in all cases.

The justices and Wall then discussed middle-ground approaches. Alito proposed requiring the plaintiff to plead and prove “a comparator who engaged in similar conduct” as the plaintiff but who was not arrested. Wall suggested that such a rule may be “too defendant friendly,” because virtually all cases will lack such a comparator; although Alito’s suggestion might work in protest cases (in which a group of people are protesting but only one person is arrested), comparators will be absent in cases of one-on-one interactions with an officer. Wall argued that the better rule is that the officer escapes liability when there was probable cause for the charge on which the officer made the arrest or charges identified within a “reasonable time frame after the arrest,” such as through the initiation of the criminal complaint.

Justice Sonia Sotomayor pushed Wall about the “not so uncommon” cases in small municipalities when an individual engages in some form of expression, and then is cited for numerous building-code violations or jaywalking or other misdemeanors; the United States’ argument insulates such behavior. Given how infrequently such cases go to trial, Sotomayor wondered whether “it is worth giving up the protections” for such a fundamental right.

Arguments of respondent

Arguing for Bartlett, Zane Wilson urged the court to reject a rigid probable-cause requirement because it would bar meritorious First Amendment retaliation cases, it is not required to screen out meritless cases, and it lacks any grounding in the common law of 1871 (when Congress enacted 42 U.S.C. § 1983, the provision under which Bartlett brought his retaliatory-arrest suit).

Alito and Ginsburg questioned Wilson about the precise speech against which the officers retaliated. Alito suggested that the plaintiff was “not protesting some social issue or making some important point,” but merely having “a personal dispute with a police officer.” Wilson responded that Bartlett “was expressing his disagreement with how the officer was conducting his … investigation” and that the right to criticize a police officer is “one of the distinguishing features between a police state and a … free country.”

The need to weed out non-meritorious cases prior to trial was of great interest to the court. Kagan argued that the problematic paradigm case for Bartlett is the “encounter between a police officer and a citizen that goes south,” when the citizen’s back-talk combines with his conduct to give the officer reason to believe the citizen should be arrested to prevent real harm. Roberts added that determining the role the citizen’s speech played in the arrest involves factual questions about subjective intent. Roberts, Ginsburg, Kagan, Justice Stephen Breyer and Justice Brett Kavanaugh took turns expressing varying versions of the concern that only a jury could resolve these disputed facts about the officer’s subjective intent and motivation, meaning these cases cannot be weeded out prior to trial, even if they lack merit. And the risk of trial, Breyer suggested, will have a chilling effect on officers, causing them to be overly careful and not arrest people whom they should arrest.

Wilson offered a number of responses. He emphasized the increasing prevalence of recording technology, so that most interactions between police and the public will be recorded. He repeatedly argued that the demand for evidence of subjective intent would come at the summary-judgment stage and that a plaintiff unable to produce evidence of intent at that point would be unable to get to trial. Wilson explained that the 9th Circuit’s purportedly modified approach to summary judgment in such cases actually is a vigorous application of the Supreme Court’s test for retaliation, in which the plaintiff must show that his speech was a cause for the arrest and the officer can rebut by showing that he would have arrested the plaintiff anyway. Wilson argued that officers will not experience a chilling effect on their conduct so long as they “remain[] loyal to enforcing the law,” a remark that Roberts derided as “cavalier” and that Kavanaugh argued ignores that people often say critical or obnoxious things to police in the heat of an encounter.

Kagan asked about the solicitor general’s proposal of a probable-cause requirement limited to crimes identified by police around the time of the arrest. Wilson responded that evidence of probable cause is a significant and perhaps dispositive factor, but it should not be controlling or necessary in all cases. Wilson instead proposed that a probable-cause element should apply to arrests for “serious offenses” but not to petty offenses. The problem of retaliation for speech arises not in murder investigations and arrests, but around petty offenses such as disorderly conduct, in which the officer’s discretion to arrest or not is at its zenith and it is easy to arrest for no reason other than because the officer wishes to retaliate against an individual who exercised his free-speech rights.

Editor’s Note: Analysis based on transcript of oral argument.


The Right To a Jury Trial…….If You Could Be Deported

posted by Judge_Burke @ 20:06 PM
December 3, 2018

From Jonathan Stempel‘s Nov. 27 article:

NEW YORK (Reuters) – New York State’s highest court said on Tuesday that the U.S. Constitution guarantees jury trials to noncitizens charged with crimes that could subject them to deportation, in a divided ruling that prompted a call for the Supreme Court to weigh in.

The Court of Appeals rejected an argument by Bronx county prosecutors that deportation is merely a civil consequence of criminal convictions, and the Sixth Amendment did not require jury trials for defendants charged with minor yet deportable crimes.

“It is now beyond cavil that the penalty of deportation is among the most extreme and that it may, in some circumstances, rival incarceration in its loss of liberty,” Judge Leslie Stein wrote for a 5-2 majority.

The decision coincided with moves by U.S. President Donald Trump to speed up deportations and tighten U.S. borders. His administration was not involved in the case.

Within New York, the decision means noncitizens will be entitled to jury trials even if their alleged deportable crimes carry maximum prison terms of six months or less. You can access today’s 5-to-2 ruling of the New York State Court of Appeals at this link.

Writing for the majority, Judge Leslie Stein called it technically correct that deportation is a civil collateral consequence of a state conviction.  She also noted, however, that deportation is practically inevitable when noncitizens face even class-B misdemeanors.  “Detention — which closely resembles criminal incarceration — may last several days, or it may last months or years,” Stein wrote.  “A noncitizen who is adjudicated deportable may first face additional detention, followed by the often-greater toll of separation from friends, family, home, and livelihood by actual forced removal from the country and return to a land to which that person may have no significant ties,” the 22-page opinion continues….

Judges Michael Garcia and Rowan Wilson dissented separately from the majority.  In his dissent, Garcia wrote that the threat of deportation does not automatically transport petty crimes into serious ones covered by the Sixth Amendment, and that the U.S. Supreme Court must weigh in on the issue.  Garcia also noted the majority’s ruling carves out special treatment for deportation and could also lead to a right to jury trials in other class-B misdemeanor cases, such as those that result in the loss of public housing….

Attorney Mark Zeno of the Center for Appellate Litigation, who represented Suazo, praised the ruling and noted that the D.C. Circuit also has upheld the right to jury trials for noncitizens facing deportation.

A spokeswoman for the Bronx District Attorney Office meanwhile said that the ruling conflicts with U.S. Supreme Court precedent.  “We understand that while the Court of Appeals addresses the harsh realities presented by the possible consequence of deportation for noncitizens, its decision presents conflicts with existing Supreme Court precedent that must be resolved,” the spokeswoman said in a statement.  “This decision creates ramifications, including serious backlogs and disparities in the administration of justice, for the courts of this state.  We are considering taking the case to the Supreme Court to address the crucial questions this decision presents.”