Archive for August, 2019

Be Careful About Your Language

posted by Judge_Burke @ 17:48 PM
August 30, 2019

From Judge Wayne Gorman:

In Review of Sentencing for Murder and Manslaughter, 2019, the New South Wales Sentencing Council (, undertook “to review sentencing for murder and manslaughter, including the penalties imposed for domestic and family violence homicides”.  In doing so, the Council called for submissions.

The Rape & Domestic Violence Services, Australia, filed a preliminary submission.

Interestingly, in its submission the Service indicated that it is “concerned that many judicial officers prescribe to outdated views about domestic and family violence that may impact their assessments of sentencing factors such as culpability, harm, risk and social costs”.  As examples, the Service referred to the sentencing remarks that it indicates are “commonly made”:

Minimised perpetrator accountability. For example, judges often characterised domestic violence as a “loss of control” or described perpetrators as motived by innocent intentions such as “jealousy.” This type of language masks the true dynamics of domestic violence as an attempt to maintain power and control, motivated by a perpetrators’ belief that he is entitled to possess or control his partner.

Used mutualising language. For example, judges regularly attributed violence “to a relationship” rather than to the perpetrator, by using terms such as “violent relationship”, “turbulent relationship”, or “rocky relationship”. Given that the vast majority of cases of intimate partner homicide involve a clear primary domestic violence victim and a primary domestic violence abuser, this mutualising language is inaccurate and places inappropriate blame on the victim.

Invoked stereotypes. For example, judges often reflected problematic stereotypes about how “proper victims” should behave. In one case, a judge indicated that the victim was too “young” or “inexperienced” to appreciate the danger posed by her abusive partner and suggested that if she “knew better” she would have ended the relationship prior to her death. This ignores the dynamics of power and control central to domestic violence as well as the risks associated with leaving a relationship.

Minimised non-physical domestic violence. For example, judges described perpetrators who primarily used non-physical forms of domestic violence as controlling and manipulative but not “violent”. This overlooks the relevance of non-physical forms of domestic violence as risk factors in the period prior to homicide.

The Rape & Domestic Violence Services suggested that as “Buxton-Namisnyk and Butler write, ‘judicial officers wield significant social power with respect to discussing, naming and representing domestic violence.’ In order to shift social understandings of domestic violence in the right direction, it is imperative that judges use their sentencing remarks to”:

• Reinforce that domestic violence is unacceptable;

• Hold perpetrators accountable and recognise the centrality of power and control in domestic violence related homicides;

• Reject justifications for domestic and family violence that minimise perpetrator accountability such as that violence is caused by a “loss of control” or drugs or alcohol;

• Reflect the value of the victim’s life and avoid victim-blaming judgments;

• Recognise that non-physical forms of violence can be equally, if not more, damaging than physical violence; and

• Recognise the significant impact that domestic and family violence has on society.


Court Budgets & The Political Process

posted by Judge_Burke @ 20:49 PM
August 29, 2019

There have been tensions between the branches over court budgets in many states. And there have been instances where the legislature, Governor or both attempt to punish the courts through the budget process in retaliation for court decisions. There is a barn-burner of such a fight in Alaska. See below:


Alaska Governor Faces Recall Effort and Litigation Over Cuts to Court Budget
Recall Dunleavy, a group seeking to recall Alaska Governor Michael Dunleavy, reports that it has obtained the required signatures for recall petitions following the Governor’s decision to cut $444 million from the state operating budget for the 2020 fiscal year. According to CNN, the group accuses Dunleavy of, “refusing to appoint a judge, misusing state funds, violating separation of powers and incompetently vetoing state funds.” One of Dunleavy’s budget vetoes central to the group’s campaign was his veto of $334,700 from the Alaska Court System’s 2020 budget in response to the Alaska Supreme Court’s decisions protecting abortion access.
In July, the American Civil Liberties Union (ACLU) of Alaska also filed a lawsuit to require Dunleavy’s administration to return the court’s funding. “Governor Dunleavy’s court system veto was an explicit measure of retaliation in response to a February 2019 Alaska Supreme Court decision holding unconstitutional the state’s attempts to limit indigent women’s rights to abortion,” according to the complaint. In a press release, the ACLU of Alaska further maintained that the Governor’s veto was “an impermissible exercise of executive authority that attacks Alaskans’ deep commitment to an independent judiciary, violates Alaska’s constitutional separation of powers, and illegally attempts to reallocate budget appropriations.”

The Rehnquist Award

posted by Judge_Burke @ 20:58 PM
August 28, 2019

Tennessee judge receives highest judicial honor for his work on opioid epidemic

  Tennessee Judge Duane Slone, of the Circuit Court in the Fourth Judicial District, is the 2019 recipient of the NCSC’s William H. Rehnquist Award for Judicial Excellence. Judge Slone is being recognized for his ground-breaking work helping people with opioid use disorder.

Combatting the opioid epidemic is not just a professional commitment for Judge Slone. It’s personal. In 2011, Judge Slone and his wife, Gretchen, adopted an infant son who was born suffering from withdrawals as a result of his birth mother’s opioid use.


An Anniversary That Needs To Be Remembered

posted by Judge_Burke @ 21:29 PM
August 26, 2019

This year marks the 400th anniversary of slavery in America and groups across the country are gathering to reflect on the solemn occasion. This past  weekend, thousands of people met at Point Comfort in Virginia where the first ship carrying enslaved Africans arrived on British American soil in 1619. The three-day program included talks, prayers and remembrances, and ended with a four-minute series of four bell tolls: One for each century of African American history and culture.


The Prevalence of Fines

posted by Judge_Burke @ 15:53 PM
August 23, 2019

Profit motive: When your local government is addicted to fines.


Speed traps through small towns in rural parts of the country are a phenomenon as old as car traffic itself. But today this form of predatory policing has become endemic in some jurisdictions. How big is the problem? Fines “account for more than 10 percent of general fund revenues in nearly 600 U.S. jurisdictions. In at least 284 of those governments, it’s more than 20 percent.”


See the full article at GOVERNING.


From Judge Wayne Gorman:

In R. v. Dudhi, 2019 ONCA 665, August 22, 2019, the accused was charged with the offences of possession of cocaine for the purpose of trafficking and breach of recognizance.  The police arrested the accused for breaching a condition of his recognizance that was no longer in force.  After the arrest, the police searched the vehicle the accused had been driving and found cocaine.

At the trial, there was evidence that the “the arresting officer [Constable Clayton] made a comment over the radio to his police colleagues about ‘brown’ drug dealers”.

The accused argued that “he was racially profiled and therefore arbitrarily detained, contrary to s. 9 of the Charter”. The trial juge concluded that “there was no link between the comment and the reason for the arrest”. The cocaine was admitted as evidence and the accused was convicted.

The accused appealed from conviction.  The Ontario Court of Appeal concluded that the trial judge erred in his analysis of whether racial profiling had occurred and in his application of section 24(2) of the Charter.  The Court of Appeal set aside the convictions and ordered a new trial.

Racial Profiling:

The Court of Appeal indicated that racial profiling “has two components: (1) an attitudinal component; and (2) a causation component”.  These components were explained by the Court of Appeal in the following manner (at paragraph 55):

The attitudinal component is the acceptance by a person in authority, such as a police officer, that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous…The causation component requires that this race-based thinking must consciously or unconsciously play a causal role. Meaning, race or the racial stereotype must motivate or influence, to any degree, decisions by persons in authority regarding suspect selection or subject treatment.

The Court of Appeal indicated that “racial profiling occurs where race or racial stereotypes are used ‘to any degree in suspect selection or subject treatment’” (at paragraph 59). Thus, “a decision need not be motivated solely or even mainly on race or racial stereotypes to nevertheless be ‘based on’ race or racial stereotypes. If illegitimate thinking about race or racial stereotypes factors into suspect selection or subject treatment, any pretence that the decision was reasonable is defeated. The decision will be contaminated by improper thinking and cannot satisfy the legal standards in place for suspect selection or subject treatment” (at paragraph 62).

In the context of this case, the Ontario Court of Appeal concluded that the trial judge “committed two errors in his racial profiling reasoning, each relating to the causation component. First, he believed improperly that the racist comment made by Cst. Clayton could not support a racial profiling finding because it was uttered after the decision to arrest had already been made. Second, he gave undue weight to what he felt were reasonable grounds that would have justified Mr. Dudhi’s arrest in any event” (at paragraph 67).

Section 24(2):

The Court of Appeal also concluded that the trial judge erred in his application of section 24(2) of the Charter (at paragraphs 90 and 91):

First, I cannot accept the trial judge’s finding that the failure of the officers to “dig deeper” before arresting Mr. Dudhi “falls closer to the less serious negligence or lack of due diligence end of the continuum.” This conclusion reflects an error in principle: the continuum spans good faith to bad faith. Negligence or the lack of due diligence does not fall at either end of that continuum…The negligence demonstrated by the officers in this case is far removed from good faith and actually sits more proximate to the bad faith end of the breach spectrum…

Second, I cannot agree with the trial judge’s view that even had the police learned that the cellphone prohibition had been varied, they could have stopped Mr. Dudhi in any event under the authority of the Highway Traffic Act. I agree with Mr. Dudhi’s submission on this point. Had the police used the Highway Traffic Act to pursue a drug investigation, this would have been a pretence stop, contrary to the Charter.


Laird C. Kirkpatrick (George Washington University – Law School) has posted The Admissibility of Forensic Reports in the Post-Justice Scalia Supreme Court on SSRN. Here is the abstract:

Forensic reports apparently linking a defendant to a crime often constitute the most powerful and persuasive evidence that can be offered at a criminal trial. Yet the Supreme Court is sharply divided about the constitutional requirement for admitting such reports under the Confrontation Clause. In the three cases addressing this question the Court divided 5-4 in its first two decisions and 4-4-1 in its most recent opinion. In a recent dissent to the denial of a Petition for a Writ of Certiorari in Stuart v. Alabama, Justice Gorsuch noted that the Court’s opinions on this question “have sown confusion in courts across the country.” Justice Gorsuch urged his colleagues to clarify the law in this area and went on to reveal his own views about the application of the Confrontation Clause to forensic reports. His views, which are analyzed in this article, are of critical importance because he is the potential fifth vote who could either overturn or reaffirm the controlling case law in this area.

It also appears that he intends to play a leading role in clarifying and shaping the future direction of confrontation jurisprudence. Justice Gorsuch is the successor to Justice Scalia, who developed the now prevailing interpretation of the Confrontation Clause as requiring “testimonial” hearsay to be cross-examined. Justice Scalia’s interpretation of the Sixth Amendment is a major part of his legacy, but is currently under attack in these cases. How much of the legacy of Justice Scalia that survives may depend to a considerable extent on Justice Gorsuch, which is why his views on this issue, which are analyzed in this article, are of particular importance.


What Happens When There Are Not Enough Court Reporters?

posted by Judge_Burke @ 19:59 PM
August 8, 2019

“The nation’s courtrooms are critically short of court reporters. And already it is causing delays in hearings and trials. The decline has been sudden and sharp; there are 18 percent fewer reporters than there were in May 2018. And there is no reason to think that a wave of new reporters is waiting to take those jobs. The dropout rate at court reporter schools is infamously high. Only six of 111 students passed their California certification test in March.” See full article from THE WALL STREET JOURNAL, and see THE MARSHALL PROJECT for more.


So What Exactly Is A Reasonable Expectation Of Privacy?

posted by Judge_Burke @ 20:00 PM
August 7, 2019

Matthew Tokson (University of Utah – S.J. Quinney College of Law) has posted The Emerging Principles of Fourth Amendment Privacy (George Washington Law Review, Forthcoming) on SSRN. Here is the abstract:

The Fourth Amendment applies when the government violates a citizen’s “reasonable expectation of privacy.” But the Supreme Court has never explained what makes an expectation of privacy reasonable, and scholars regularly complain that this standard is incomprehensible and unworkable.

Yet the reasonable expectation of privacy standard may be more coherent than is currently recognized. The Supreme Court has decided more than forty reasonable expectation of privacy cases since the standard was developed. This Article is the first to analyze all of these decisions. It draws out three consistent principles that drive the Court’s assessments of Fourth Amendment privacy: the intimacy of the place or thing targeted; the amount of information sought; and the cost of the investigation.

The Article traces these principles through the Court’s Fourth Amendment jurisprudence, offering an explanatory account of a body of law often thought to be inexplicable. And it brings them forward, generating predictions for future cases involving novel surveillance technologies.

The Article makes several contributions to the Fourth Amendment literature. It develops a unified model of Fourth Amendment privacy, one that operates consistently across a variety of surveillance contexts. It details the Supreme Court’s growing acknowledgment of the principles of intimacy, amount, and cost. It makes the case for more overt recognition of these principles, which would have substantial benefits for Fourth Amendment jurisprudence and scholarship. And it offers a clear, comprehensible answer to the question of what violates a reasonable expectation of privacy.


Improving Jury Decision Making

posted by Judge_Burke @ 18:06 PM
August 6, 2019

Dan Simon (University of Southern California Gould School of Law) has posted an abstract of On Juror Decision Making: An Empathic Inquiry (Forthcoming in Annual Review of Law and Social Science (2019)) on SSRN. Here is the abstract:

This review examines the workings of jurors deciding criminal cases. It seeks not to commend or condemn jury decision making but rather to offer an empathic exploration of the task that jurors face in exercising their fact-finding duty. Reconstructing criminal events in the courtroom amounts to a difficult feat under the best of circumstances. The task becomes especially complicated under the taxing conditions of criminal adjudication: the often substandard evidence presented in court; the paucity of the investigative record; types of evidence that are difficult to decipher; the unruly decision-making environment of the courtroom; and mental gymnastics required to meet the normative demands of criminal adjudication. The critical spotlight is directed not at the jurors but at the conditions under which we expect them to fulfill their duty and the reverence in which their verdicts are held. The article concludes with a set of recommendations designed to assist our fact-finders in meeting the societal expectations of this solemn task.