Archive for July, 2019

Misdemeanor Appeals

posted by Judge_Burke @ 20:56 PM
July 31, 2019

Nancy J. King and Michael Heise (Vanderbilt University – Law School and Cornell Law School) have posted Misdemeanor Appeals on SSRN. Here is the abstract:

Misdemeanor cases affect far more people than felony cases, outnumbering felony cases by more than three to one. Yet very little empirical information exists on many aspects of misdemeanor prosecutions. This Article provides the first quantitative look at appellate review in misdemeanor cases, nationwide. It uses data drawn from a random sample of direct criminal appeals decided by every state appellate court in the nation, unpublished aggregate data on misdemeanor trial court cases provided by the Court Statistics Project, and published state court statistics.

We provide the first estimate of the rate of appellate review for misdemeanors, concluding that appellate courts review no more than eight in 10,000 misdemeanor convictions, and disturb only one conviction or sentence out of every 10,000 misdemeanor judgments. This level of oversight is much lower than that for felony cases, for reasons we explain. To develop law and regulate error in misdemeanor cases, particularly in prosecutions for the lowest-level offenses, courts may need to provide mechanisms for judicial scrutiny outside the direct appeal process.

Additional findings include new information about the rate of felony trial court review of lower court misdemeanor cases, ratios of appeals to convictions for various misdemeanor-crime categories, detailed descriptive information about misdemeanor cases that reach state appellate courts, the results of a complete statistical analysis examining which features are significantly associated with a greater or lesser likelihood of success, including crime type, claim raised, judicial-selection method, and type of representation, and the first quantitative look at how misdemeanor appeals differ from felony appeals.


How Profoundly Sad

posted by Judge_Burke @ 16:07 PM
July 30, 2019

My pimp doesn’t have a waitlist.


A human trafficking victim’s response to learning that she was placed on waitlists for social services, according to Darla Bardine, executive director of the National Network for Youth.


See Governing for full story


Collateral Consequences of Electronic Monitoring

posted by Judge_Burke @ 21:43 PM
July 24, 2019
The New York Times Magazine and ProPublica ran a feature story about the collateral consequences of electronic monitoring for low-income defendants. “Like the system of wealth-based detention they are meant to help reform, ankle monitors often place poor people in special jeopardy. Across the country, defendants who have not been convicted of a crime are put on “offender funded” payment plans for monitors that sometimes cost more than their bail.”

Confrontation and Forensic Science

posted by Judge_Burke @ 20:44 PM
July 23, 2019

Lauren McLane (University of Wyoming College of Law) has posted Confronting the Twenty-First-Century Marian Examination (82 Albany Law Review 949 (2019)) on SSRN. Here is the abstract:

Today, forensic evidence has increasingly become a key and powerful witness against the accused in criminal trials. In the Sixth Amendment Confrontation Clause, our Framers meant to create a safeguard that would forever test the reliability of evidence introduced against a defendant. As Justice Scalia reminded us, in Crawford v. Washington, “To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Nonetheless, courts across our nation routinely reject such reliability testing in denying confrontation challenges related to forensic evidence, particularly in multi-analyst forensic disciplines, such as alcohol breath testing, toxicology, and DNA testing. In large part, this is because our lower courts, after the United States Supreme Court’s fractured opinion in Williams v. Illinois, were left to their own devices in application of confrontation clause jurisprudence to forensic evidence.

Although our criminal justice system has evolved into a system that encompasses not only “conventional witnesses,” but also science and its process as an important witness, confrontation clause analysis has remained relatively stagnant. The application of the “conventional witness” confrontation rules — first borne out of Crawford v. Washington and Davis v. Washington, and then later refined in Michigan v. Bryant and Ohio v. Clark — by lower courts in the forensic evidence context has been unpredictable and, often, arbitrary. Courts have condoned the insulation of forensic evidence by denying the right to cross-examine the analyst who performed the scientific testing, hailing science as inherently reliable. In this way, our courts have returned confrontation clause analysis to the Sixteenth-Century-Marian Examination, such as the process relied upon to convict Sir Walter Raleigh in 1603; this historical disastrous result served as the primary impetus for our Framers’ adoption of the clause.

The Confrontation Clause and its guarantee of cross-examination of witnesses against the accused serves as a primary shield against unreliable and flawed forensic evidence. And the history of forensics in the courtroom undeniably supports that science is far from infallible. Without an entity such as the National Commission on Forensic Science, decommissioned by former Attorney General Jeff Sessions in 2017, an accused’s right to confrontation remains an indispensable check on the reliability of forensic evidence during a criminal trial.

In the Twenty-First Century, as the use of scientific evidence rapidly grows in criminal trials, courts and practitioners are in need of a new confrontation clause approach for such evidence. At first blush, Justice Thomas’s “formality and solemnity” requirement for confrontation clause applicability appears too narrow; however, a modification of this approach as applied to forensic evidence should be adopted by the United States Supreme Court. Justice Thomas’s approach needlessly over-emphasizes the form of evidence, such as whether it is an affidavit or declaration, in deciding the reach of the Confrontation Clause. A closer look at history demonstrates that our Framers were far more concerned with a process that insulated evidence from reliability testing than the mere form of evidence. Indeed, it was not the mere form of Sir Walter Raleigh’s accuser’s examinations or letters used against Raleigh at trial that were egregious as much as it was the process accepted and condoned by the court and its officials during the trial.

Science and its process is nothing if not both formal and solemn. Science is directed and governed by numerous standards, protocols, and procedures. Under a modified version of Justice Thomas’s “formality and solemnity” approach, where process over mere form is emphasized, forensic evidence is formal and solemn, and within the reach of the Confrontation Clause. Therefore, the performing analyst or an observer to the scientific testing must be confronted. Our Supreme Court should adopt this modified approach in the forensic evidence context, providing decisive and predictable guidance to our lower courts, at its earliest opportunity.


So When Should A Judge Recuse?

posted by Judge_Burke @ 19:50 PM
July 19, 2019

Your spouse represents one of the parties in a case assigned to you. Should you recuse? Of course. But what if someone hires the firm where your spouse works after bad rulings from you in an attempt to disqualify you as the judge? That is a harder question to answer as illustrated by this story from Florida, By Dara Kam, The News Service of Florida

A federal judge who has routinely ruled against the state in election-related lawsuits has withdrawn from overseeing a challenge to a new state statute aimed at carrying out a constitutional amendment restoring voting rights to Floridians convicted of felonies.

U.S. District Judge Mark E. Walker on Wednesday filed an order disqualifying himself from the case, saying his wife works for the same law firm as an attorney who recently signed up to represent two of the defendants, including Secretary of State Laurel Lee.

George Meros of Holland & Knight LLP filed a notice with the court Tuesday, saying he would represent Lee and Broward County Supervisor of Elections Pete Antonacci. Walker’s wife, Karen, also works for the firm.

In his order Wednesday, Walker, who serves as the chief judge of Florida’s Northern District, hinted that the move to hire Meros may have been intended to force Walker off the case, writing that “the conduct at issue here is deeply troubling.”

Walker pointed to a 2015 lawsuit in which defendants hired Holland & Knight mid-way through the judicial proceedings. Plaintiffs in the lawsuit accused the defendants of “judge shopping” by intentionally hiring a lawyer from the firm where Walker’s wife worked so another judge would be assigned to the case. Walker did not recuse himself, but asked for an opinion from another judge in the matter.

Senior District Judge Maurice Paul instead disqualified Holland & Knight from the case, allowing Walker to remain in charge of a contentious legal battle over a fuel surcharge fee being charged by a waste removal company.

In his April 2016 decision keeping Walker as the judge in the case, Paul wrote that Holland & Knight “should be disqualified because of the potential for manipulation of the judicial system, the lack of need by defendants for this particular counsel, and the potential delay and loss of judicial activity,” a finding Walker referred to in Wednesday’s order.

The 11th Circuit Court of Appeals “has outlined a process to differentiate legitimate judicial recusal necessary under federal law from frivolous recusals brought on by unscrupulous shenanigans,” Walker wrote.

While Walker asked another judge to weigh in on his recusal in the fuel surcharge case, the federal judge said he “will not employ that process” now.

“Although the conduct at issue is deeply troubling, I am relieved of those concerns by confidence in my collegues on this court to preside over the remainder of this case and judge it fairly and wisely,” he wrote.”

For the full story see:




posted by Judge_Burke @ 21:33 PM
July 16, 2019

From Judge Wayne Gorman:


In R. v. Gill, 2019 BCCA 260, July 16, 2017, the police arrested the accused during the execution of an impression warrant. A struggle ensued, during which an envelope fell on to the ground. A police officer picked it up and discovered it contained cocaine. The envelope was seized. The accused was charged with and convicted of the offence of possession of cocaine for the purpose of trafficking.


The accused appealed from conviction.  He argued that the seizure of the envelope was unreasonable and that the trial judge erred in holding that the seizure was authorized by the plain view doctrine.


The appeal was dismissed.


The Plain View Doctrine:

The British Columbia Court of Appeal noted that “the plain view doctrine, a creature of the common law, has its origins in American jurisprudence and reflects ‘an application of the Fourth Amendment’s central requirement of reasonableness to the law governing seizures of property’: Texas v. Brown, 460 U.S. 730 at 739 (1983). The doctrine provides that where, during the course of executing a legal warrant, an officer locates anything he or she reasonably believes is evidence of the commission of a crime, the officer has the power to seize it…The key to the application of the plain view doctrine is the principle that s. 8 of the Charter protects reasonable expectations of privacy against state intrusions. The premise is that a person can have no reasonable expectation of privacy in an item in plain view to officers where the officers have a right to be present and are carrying out their lawful duties” (at paragraphs 24 and 32).

The Court of Appeal indicated that it “is clear that the officer must be lawfully in the place and acting lawfully in the exercise of police powers when the officer discovers the evidence, in order for the plain view doctrine to apply…It is also uncontentious that the evidence has to be in plain view” (at paragraphs 38 and 39).

The Court of Appeal also indicated that “for the plain view doctrine to apply, the discovery of the item by the officer must be ‘inadvertent’ in the sense that it is not discovered by unauthorized search, but rather, because it is in the open when the police are lawfully in the place where it is visible, and lawfully exercising police duties” at paragraph 52).

Finally, the Court of Appeal held that “in order to justify seizure of an item without a warrant under the plain view doctrine, it must be immediately apparent to the officer that there are reasonable and probable grounds to believe the item is evidence of criminal conduct. The immediacy requirement means that it is apparent without further investigations. The reasonable and probable grounds requirement means that more than mere suspicion is required, but certainty is not required” (at paragraph 59).


Application to this Case:


The British Columbia Court of Appeal concluded as follows (at paragraphs 109 to 110):

I see no error in the judge’s application of the plain view doctrine, which was based on her findings of fact which were supported by the evidence.

I therefore see no error in the judge’s admission at trial of the evidence of the seized cocaine brick.


Confirmation Bias & More

posted by Judge_Burke @ 21:50 PM
July 15, 2019

Kim Rossmo and Joycelyn Pollock (Texas State University and Texas State University) have posted Confirmation Bias and Other Systemic Causes of Wrongful Convictions: A Sentinel Events Perspective (Northeastern University Law Review, Vol. 11, No. 2, 2019) on SSRN. Here is the abstract:

Wrongful convictions are a form of criminal investigative failure. Such failures are sentinel events that signal underlying structural problems within a weak system environment. Similar to transportation or medical accidents, they are often the result of multiple and co-occurring causes. However, unlike the response to an airplane crash, the criminal justice system typically makes little effort to understand what went wrong. These failures tend to be ignored and systemic reviews are rare. As a consequence, important necessary procedural changes and policy improvements may not occur. In this article, we discuss a National Institute of Justice-funded research project that was designed to develop a more comprehensive understanding of how—as opposed to why— such failures occur. We deconstructed 50 wrongful convictions and other criminal investigative failures in order to identify the major causal factors, their characteristics and interrelationships, and the systemic nature of the overall failure. We focus on the central role played by confirmation bias and other thinking errors.


Punishing Homelessness

posted by Judge_Burke @ 20:21 PM
July 10, 2019

Sara Rankin (Seattle University School of Law) has posted Punishing Homelessness (22 New Criminal Law Review 1, 99–135 (2019)) on SSRN. Here is the abstract:

Homelessness is punishing to those who experience it, not just from the inherent and protracted trauma of living exposed on the street, but also due to widespread and pervasive laws that punish people for being homeless. People experiencing homelessness, particularly chronic homelessness, often lack reasonable alternatives to living in public. Yet cities throughout the country are increasingly enacting and enforcing laws that punish the conduct of necessary, life-sustaining activities in public, even when many people have no other option. These laws are frequently challenged in court and often struck down as unconstitutional. But legally sound, cost-effective, and non-punitive alternatives to ending chronic homelessness exist. This article exposes some of the problems with criminalization laws, not only for people experiencing homelessness, but also for the broader community.

It discusses how current approaches often make chronic homelessness worse and explains why non-punitive alternatives, especially Housing First and permanent supportive housing, are the most cost-effective means of addressing chronic homelessness. Ultimately, this article urges cities and their constituents to stop punishing homelessness and instead to start solving it.


What Is The Effect Of Legalizing Marijuana

posted by Judge_Burke @ 17:11 PM
July 9, 2019

This may be an area where evidence does not necessarily drive our views. From Governing Magazine: “New research suggests legalizing recreational marijuana for U.S. adults in some states may have slightly reduced teens’ odds of using pot.”

One reason may be that it’s harder and costlier for teens to buy marijuana from licensed dispensaries than from dealers, said lead author Mark Anderson, a health economist at Montana State University.

The researchers analyzed national youth health and behavior surveys from 1993 through 2017 that included questions about marijuana use. Responses from 1.4 million high school students were included.

Thirty-three states have passed medical marijuana laws and 11 have legalized recreational use — generally for ages 21 and up, many during the study years. The researchers looked at overall changes nationwide, but not at individual states.

There was no change linked with medical marijuana legislation but odds of teen use declined almost 10% after recreational marijuana laws were enacted.

View Full Story From the Associated Press.


An Unfortunate Development In Alaska

posted by Judge_Burke @ 18:37 PM
July 8, 2019

This report is pretty straightforward. It isn’t the only time when the budget has been used as a weapon to “punish” the judiciary. But each time it happens there is an erosion of the independence that courts need to have in order to be effective. The founding fathers knew this risk and so many state constitutions provide that judges salaries can’t be cut as retribution for rulings the political branches dislike.

ANCHORAGE (KTUU) - Officials from the Alaska Court System say judges will not be pressured by “the politics of the day” after the governor cut funding to the Alaska Supreme Court due to rulings made on abortion funding.

On Friday, the governor announced that $334,700 would be vetoed from the Alaska Supreme Court’s budget. Documents provided by the Office of Management and Budget made clear that the decision was due to multiple rulings by the Alaska Supreme Court that funding for so-called “elective” abortions is constitutionally required by the State.

“The Legislative and Executive Branch are opposed to State-funded elective abortions; the only branch of government that insists on State-funded elective abortions is the Supreme Court,” read the document from the OMB. “The annual cost of elective abortions is reflected by this reduction.”

Margaret Newman, a spokesperson for the Alaska Court System, released a statement Wednesday in response to the governor’s veto. “Legislators, governors, and all other Alaskans certainly have the right to their own opinions about the constitutionality of government action, but ultimately it is the courts that are required to decide what the constitution mandates,” her statement read.

“We assure all Alaskans that the Alaska Court System will continue to render independent court decisions based on the rule of law, without regard to the politics of the day,” she added.

In 1998, the Department of Health and Social Services implemented regulations restricting state funding for abortions through Medicaid. In 2001, the Alaska Supreme Court ruled that all women, regardless of income, are owed the same access to healthcare under the equal protection clause of the Alaska Constitution.

In February, the Alaska Supreme Court essentially reaffirmed its 2001 decision after a 2014 statute and a 2013 regulation attempted to re-define which abortions are deemed “medically necessary.”

Conservatives have long argued that Alaska’s courts have a liberal bias on the issue of abortion.

“The Alaska Supreme Court has a long history of extremist rulings on abortion. But until today, they never suffered any real consequences for it,” read a statement released Friday by Jim Minnery, the executive director of the Alaska Family Council.

House Minority Leader Lance Pruitt, R-Anchorage, said he was surprised by the veto, but that the governor may believe the courts aren’t as “impartial as they could be.” Pruitt said that was because the Alaska Bar Association has a prominent voice on the Alaska Judicial Council, the independent body that appoints judges to the bench.

The Alaska Judicial Council is made up of seven members: Three members of the Alaska Bar Association, three people confirmed by the Legislature who are not attorneys and the Chief Justice of the Supreme Court.

Senate Minority Leader Tom Begich, D-Anchorage, spoke out strongly against the perceived pressuring of the judiciary by the executive. “That is inappropriate by any measure, whether you’re pro-choice, pro-life. That is an inappropriate use of the governorship.”