Archive for September, 2019

Be Careful What You Like On Facebook

posted by Judge_Burke @ 19:17 PM
September 30, 2019

There are those who claim that judges should not participate in social media, and others who see social media as an effective communication tool in our modern society. Some state ethics officials prohibit it and others don’t. But if you do use Facebook or Twitter, be cautious, as illustrated by this recent decision in Kentucky.  A Kentucky judge whose social media interactions raised questions about his impartiality was recently removed from presiding over a politically hot-button lawsuit challenging an investigation of mass teacher protests by Republican Gov. Matt Bevin’s administration.

The state’s chief justice, John D. Minton Jr., disqualified Franklin County Circuit Judge Phillip Shepherd from hearing the suit brought by Bevin’s political nemesis, Democratic Attorney General Andy Beshear. Bevin and Beshear are locked in a close race for governor this year.

Minton transferred the “teacher sickout” case to circuit Judge Thomas Wingate.

The lawsuit challenges the state Labor Cabinet’s authority when it demanded that several school districts turn over the names of teachers who called in sick during protests at the state Capitol during this year’s legislative session. In some districts, so many teachers called in sick that schools closed. Bevin has harshly criticized teachers for using sick days to protest, which has become a key issue in Beshear’s effort to oust the Republican incumbent.

Bevin’s legal team sought Shepherd’s removal from the case because the judge “liked” a Facebook post that showed a photo of a Democratic lawmaker with a Beshear campaign volunteer. The governor’s lawyers said that raised questions about the judge’s impartiality.

Shepherd has noted that he’s also “liked” posts that “celebrated Republicans promoting their cause (which includes the re-election of Gov. Bevin) at the State Fair, the visit of President Donald Trump to Louisville” and a reception honoring Bevin’s ticket. Shepherd has said his intent in “liking” such posts was to encourage people to “actively participate in our democracy.”

In his order Friday, Minton said he was convinced that Shepherd would have presided over the case in a “completely fair, neutral and unbiased manner.” But the chief justice noted that the standard for disqualification doesn’t require actual proof of bias.

“Rather, the standard simply requires a disqualification in circumstances where the judge’s impartiality might reasonably be questioned,” Minton wrote.

“Given that Judge Shepherd’s ‘like’ may reasonably be perceived as a public endorsement of a candidate’s campaign, that the candidate is a party in this case, and that this case involves a central issue in that candidate’s campaign, this is one such circumstance,” he added.



When Should You Recuse? A Canadian Perspective

posted by Judge_Burke @ 19:22 PM
September 27, 2019

From Judge Wayne Gorman: In R. v. Van Wissen, 2018 MBCA 100, October 4, 2018, the appellant brought an application to have Monnin J.A. recuse himself.  The nature of the application was described in the following manner:

The accused alleges, because of comments I addressed to his counsel during the course of his submissions on one particular ground of appeal, that I demonstrated a reasonable apprehension of bias. He alleges that the comments made indicate that I had decided the issue in advance of the case being disposed of; that my comments undercut his argument that his grounds of appeal were to be dealt with cumulatively; and that I was deciding this appeal on the basis of past history.

Monnin J.A. dismissed the application.  He indicated that “[u]nlike trial courts, where judges typically do not descend into the arena, appellate court judges are expected to enter the fray and challenge counsel and the validity of the arguments being advanced.  It is appropriate for appellate court judges to play an active role in the appeal hearing” (at paragraph 16).  Monnin noted that an appeal is not a “tea party” (at paragraph 20):

I acknowledge that I used strong language in my exchange with Mr. Glazer, but when that exchange is taken in context, it falls short of demonstrating that I had, or have, a reasonable apprehension of bias towards the accused.  A Court of Appeal hearing is not a tea party.


Procedural Fairness in New York

posted by Judge_Burke @ 20:04 PM
September 26, 2019

From the Crime Report, “Despite interventions that made New York courthouses easier to navigate and led to more positive perceptions of procedural justice, fundamentally negative opinions of the criminal justice system have not changed, according to a new survey of defendants.

“Despite more positive perceptions of certain aspects of how defendants were treated in court that day … defendants did not report significantly improved trust and confidence in the fairness of the New York City court system overall,” according to the study conducted by the Center for Court Innovation, funded by the New York City Mayor’s Office of Criminal Justice (MOCJ).

The study, “Procedural Justice at the Manhattan Criminal Court Impact, Limitations, and Complications,” looked at reactions to a series of changes made in Manhattan courthouses between June 2017 and June 2018,  including  physical improvements to the  building itself and changes in how  judges and court officers interacted with defendants, with some court personnel undergoing training.

About 1,100 surveys were collected during the study. The majority of respondents were black and Latino men who were in court for misdemeanors or violations and represented by a public defender. The most common arrest charges included: assault, petty larceny, drug possession, disorderly conduct, driving without a license, theft of service (jumping the turnstile) and trespassing.

The changes included:

    • Signs installed throughout the building and in the courtroom “to help
      defendants navigate the courthouse, understand key court processes (e.g., what the courtroom rules are, what key terminology means, where to find specific actors and on-site amenities), inform them of their Constitutional rights, and convey a commitment to fair treatment”;
      •  “New microphones “to increase audibility, in hopes of facilitating defendants’ understanding of courtroom proceedings, and sense of transparency of the process”;
    • Deep cleaning of the ground floor walls in the lobby and hallway of the courthouse “out of the belief that their dirt and disrepair communicate disrespect.”

However, after going through an experience in courtrooms with better facilities and clearer explanations and more polite judges and officers, only a little more than one-third agreed or strongly agreed that the court system treats people with dignity and respect.

The study also found that 52 percent believed that the average person cannot
understand what takes place in the courts. Only about one-third “felt that the court listens carefully to what people have to say.”

And even after the changes made in the courthouse for the study, over half of respondents felt that African Americans, those who are Latinx, and low-income people are treated worse by the courts.

Some 40 percent of the respondents felt that those who don’t speak English are treated worse.

When asked about the source of their unhappiness, a main complaint was long wait times and how it took them away from family responsibilities and caused them to lose a day’s pay.

Respondents were also frustrated with the length of time it took for their case to be fully resolved. Respondents felt that their experience in court that day would have been better if they had been able to have more interactions with the judge and other key court actors.

Some respondents remarked that court officers were rude and intimidating, and were “constantly” telling people to put their phones away.

The study concluded that many of the respondents’  “underlying concerns go beyond what the tools of procedural justice can address—and beyond what the court system alone can address.”

The study recommended that “future efforts to increase the overall legitimacy of and trust in the New York City court system should include a focus on defendants’ perceptions of differential treatment of certain racial/ethnic groups and people without financial resources, the criminal justice system’s attention to low-level crimes, and their experiences with the police.”

To read the full study, please click here.


How Many People In Your State Go To Jail?

posted by Judge_Burke @ 20:58 PM
September 25, 2019

From Professor Doug Berman’s Sentencing Law & Policy blog: “The question in the title of this post is the heading of this new posting at the Prison Policy Initiative building off the the group’s recent big report Arrest, Release, Repeat.  Here is part of the set up to the latest state-by-state data analysis (which requires a click through to see in detail):

County and city jails have been called “mass incarceration’s front door,”but campaigns to reform or close jails often don’t receive the attention they deserve. Why? Because the traditional way we measure the impact of jails — the average daily population — significantly understates the number of people directly affected by these local facilities.

Because people typically stay in jail for only a few days, weeks or months, the daily population represents a small fraction of the people who are admitted over the course of a year. But the statistic that better reflects a jail’s impact on a community — the number of people who go to jail — is rarely accessible to the public.

Thankfully, we can now get close to closing this gap in the data and making the impact of jails clearer.  Building on our new national report Arrest, Release, Repeat, we’re able to estimate the number of people in every state who go to local jails each year.”



Race in Criminal Law

posted by Judge_Burke @ 20:24 PM
September 23, 2019

Mark William Osler (University of St. Thomas – School of Law (Minnesota)) has posted Short of the Mountaintop: Race Neutrality, Criminal Law, and the Jericho Road Ahead (49 University of Memphis Law Review 77 (2018)) on SSRN. Here is the abstract:

One of the greatest impediments to achieving racial equity in criminal law is the myth that we have already achieved racial equity. This essay, written for the symposium commemorating the 50th anniversary of Dr. Martin Luther King Jr.’s death in Memphis, starts with the problem of that falsehood, which has been trumpeted by political leaders including an Attorney General of the United States. It then examines the reality on the ground: continuing and unjustified racial disparities. Finally, it addresses possible short-term measures to address these disparities while recognizing that given the broad discretion given to hundreds of thousands of decision-makers within thousands of American criminal justice systems, the only true cure for racial inequity in criminal law will be the difficult but long-sought elimination of bias in the greater society.


Qualified Immunity

posted by Judge_Burke @ 18:35 PM
September 20, 2019

It may well be premature to say that this is a trend in the law but there are an increasing number of cases finding that police may not have qualified immunity for their actions. For example,  A federal appeals court rejected an attempt by North Carolina police officers to avoid liability for their roles in the wrongful convictions of Henry McCollum and Leon Brown, two intellectually disabled brothers found guilty of murder 35 years ago. The court refused to grant the officials qualified immunity, allowing the brothers’ lawsuit to proceed. 4TH U.S. CIRCUIT COURT OF APPEALS


How Would You Have Sentenced Her?

posted by Judge_Burke @ 15:23 PM
September 19, 2019

The sentencing of the actress Felicity Huffman at least momentarily generated a lot of press coverage. How would you have sentenced her?  Doug Berman has this post at Sentencing Law and Policy, collecting commentary and adding this wise thought of his own:

I continue to be disappointed at our system’s and our society’s general failure to treat and view any sentencing terms other than imprisonment as “real punishment.” Of course, most persons subject to any form of criminal investigation and prosecution will report that the process itself is very often a significant punishment and so too can be any period of supervision and the array of collateral consequences (both formal and informal and often lifetime) that always accompany a criminal conviction. But, problematically, the perception persists that anything other than prison, and often anything less than a lengthy period in prison, is but a trifle.



Have you downloaded the Science Bench Book yet?

posted by Judge_Burke @ 20:05 PM
September 17, 2019

It is among the most ambitious projects targeted to improving judges’ understanding of science and the law. It is written by a distinguished group of authors and it is free.

Access it here:



Thinking About Ineffective Assistance of Counsel

posted by Judge_Burke @ 19:00 PM
September 16, 2019

Michael D. Cicchini has posted Constraining Strickland (7 Texas A&M L. Rev. __ (forthcoming, 2020)) on SSRN. Here is the abstract:

When a convicted defendant pursues an ineffective assistance of counsel (IAC) claim on appeal — for example, by alleging that the defense lawyer failed to call an important witness at trial — the defendant must satisfy Strickland’s two-part test. This requires a showing that (1) defense counsel performed deficiently, and (2) this deficient performance prejudiced the defendant’s case.

The Strickland test is intentionally difficult for a defendant to satisfy, and courts reject nearly all IAC claims. The primary justification for this is that prosecutors and judges should not have to retry defendants because of defense counsel’s errors, as such errors are completely outside the government’s control.

Strangely, however, courts have dramatically expanded their use of Strickland’s two-part test beyond its original purpose. In addition to using it to analyze defense counsel’s performance, courts also use it to blame defense counsel for prosecutorial and judicial misconduct. When a prosecutor cheats or a judge is incompetent, courts turn Strickland’s two-part test on the defense lawyer to answer for the failure to object to the prosecutor’s misconduct or to educate the judge on the spot, in the middle of trial. Strickland, in effect, now requires the defense lawyer to do three jobs in one: his or her own, the prosecutor’s, and the judge’s.

This bizarre expansion of Strickland is not supported by law or logic, and it creates serious problems for defense lawyers. Further, by viewing acts of prosecutorial and judicial misconduct through Strickland’s lens — a framework that was never intended to protect prosecutors and judges from their own misdeeds — courts are also harming defendants’ chances on appeal and damaging the integrity of the criminal justice system.

This Article demonstrates how courts have improperly expanded Strickland, explains the resulting harms, and advocates for clear, simple, and theoretically-sound legal reform. That is, courts must hold prosecutors and judges accountable for their own misconduct, rather than diverting blame to the defense lawyer through Strickland’s ill-suited IAC framework.


Addicted To Fines & Fees

posted by Judge_Burke @ 19:19 PM
September 11, 2019

The first step toward recovery is to admit you have a problem. As hard as it is to take this step, many courts need to acknowledge that there is a widespread problem with excessive use of fines and fees. Courts created the climate for the problem by too often trumpeting how much revenue we brought in and complaining about how little credit we got. There is a new report from Governing Magazine that details where we are. Here is an excerpt:

All throughout the country, select cities and towns generate substantial fines and other court revenues that fund sizable portions of their budgets. Some are known for issuing lots of speeding tickets. Others raise revenues from parking citations, municipal ordinance violations or traffic cameras.

Five years ago, the issue of excessive fines and fees gained national attention following the civil unrest in Ferguson, Mo., and reports that many St. Louis area municipalities prioritized generating revenues from their courts. No reliable national data quantifying fine revenues for individual governments exists, however.

To better understand the extent to which local governments rely on fines, Governing conducted the largest analysis of fine revenues to date, constructing a database from thousands of annual financial audits and reports filed to state agencies. We found that for hundreds of mostly small cities and towns, fines are a critical source of funding, at times accounting for more than half of all general revenues.