Archive for November, 2019

A Very Interesting Article On Emotion In The Courtroom

posted by Judge_Burke @ 19:16 PM
November 26, 2019

Susan Bandes, Closure in the Criminal Courtroom, draft of 9/7/19 (forthcoming in Edward Elgar Research Handbook on Law and Emotion, Bandes, Madeira, Temple and White eds. 2020).

Closure in the criminal courtroom: The birth and strange career of an emotion

Susan A. Bandes* Abstract:

Over the last thirty years, the notion that the criminal justice system can help provide closure for victims and their families has gained remarkable traction, both in popular discourse and in the legal arena. Closure is offered—often successfully –as an argument for imposing death sentences, trimming procedural protections, permitting victim impact statements, truncating appeals, denying clemency petitions, speeding up executions, televising executions, and granting the bereaved access to the execution chamber. More broadly, it has transformed the debate about the legitimacy of the capital system—recasting the imposition of the death penalty from a retributive act to an act of compassion for bereaved families. Closure is a puzzle. Its parameters are fuzzy, its dynamics are murky, and its origins seem to have more to do with law and politics than with psychology. There is an argument to be made that closure isn’t an emotion at all, but rather a set of legal aspirations for the conduct of criminal proceedings. Yet closure has increasingly come to be viewed as an emotional state—and one that the criminal justice system is capable of helping victims and survivors attain. It has become a prime example of the power of the criminal justice system to shape emotional expectations. This chapter discusses the evolution of closure as a legal concept, the definitional ambiguities surrounding the term, and the institutional consequences of these ambiguities for the criminal justice system. It examines the symbiotic relationship between closure and the criminal justice system, arguing that the criminal justice system has played a powerful role in reshaping the emotional expectations of victims and their families. The chapter then reviews the empirical literature on closure and criminal justice. Finally, it identifies directions for further study. The article can be found at:

Closure in the Criminal Courtroom: The Birth and Strange Career of an Emotion

The  Brennan Center for Justice released a first-of-its-kind report, The Steep Costs of Criminal Justice Fees and Fines: A Fiscal Analysis of Three States and Ten Counties, revealing that court-imposed fees and fines thwart rehabilitation, fail to make communities safer, and are an insufficient source of government revenue.

The Brennan Center’s report analyzes ten counties within Florida, New Mexico and Texas, as well as statewide data for those three states. Among the report’s key recommendations are: (1) states and localities should pass legislation to eliminate court fees imposed to fund the government; (2) states should institute a sliding scale when assessing fines based on ability to pay; (3) courts should stop jailing individuals for their failure to pay court-imposed fees; and (4) states should stop suspending driver’s licenses for people who are unable to pay their fees and fines.


How Should Courts Approach Ineffective Assistance of Counsel Claims?

posted by Judge_Burke @ 22:19 PM
November 19, 2019

Almost all of the time defendants get competent lawyers and credible representation. But occasionally there are lawyers who because of high caseloads, competence or their own afflictions simple to not perform to the standards we should expect of defense counsel. Eve Brensike Primus (University of Michigan Law School) has posted Disaggregating Ineffective Assistance of Counsel Doctrine: Four Forms of Constitutional Ineffectiveness (Stanford Law Review, Vol. 72, 2020) on SSRN. Here is the abstract:

For years, experts have blamed Strickland v. Washington’s lax standard for assessing trial attorney effectiveness for many of the criminal justice system’s problems. But the conventional understanding of Strickland as a problem for ineffectiveness claims gives Strickland too much prominence, because it treats Strickland as the test for all such claims. That is a mistake. Properly understood, the Supreme Court has recognized four different constitutional forms of trial attorney ineffectiveness, and Strickland’s two-pronged test applies to only one of the four. If litigants and courts would notice the complexity and relegate Strickland to its proper place, it would pave the way for meritorious ineffectiveness claims of the other three kinds. This Article disaggregates strands of Sixth Amendment doctrine that others have jumbled together so as to enable courts and litigants to confine Strickland to its proper domain and use more appropriate analyses elsewhere.

The Article also explains why additional disaggregation is necessary within the category of cases where Strickland rightly applies. Implicitly, the Supreme Court has created not one but three tests for assessing deficient performance within that domain, and it has indicated a willingness to soften the outcome-determinative prejudice prong as well. Failure to recognize these different forms of Strickland ineffectiveness has made the test seem much harder for defendants to satisfy than needs to be true. Recognizing these complexities, and applying the right test in the right case, is necessary if individual defendants are to be treated fairly and systemic constitutional problems in the provision of indigent defense services are to be addressed.


Restricting ICE Arrests In Courthouses

posted by Judge_Burke @ 21:23 PM
November 18, 2019

Oregon Supreme Court Chief Justice Martha Walters enacted a new rule Thursday that will make it harder for immigration agents to make civil arrests in the state’s courthouses.

The new rule requires U.S. Immigration and Customs Enforcement officers to have a signed judicial warrant if they plan to enter a courthouse to make an arrest. In the past, ICE agents have used administrative warrants that are signed by other ICE officers, rather than a neutral third party, like a judge.

The new rule follows a petition that was sent to the court by immigrants’ rights groups in December 2018. They have argued, among other things, that immigration arrests around and near courthouses puts a chilling effect on those seeking access to the justice system.

“Adopting this rule protects the integrity of the state judicial process and will allow state courts to fully hold accountable people accused of a crime,” Walters said in a release. “Arrests in courthouses have interfered with judicial proceedings and removed criminal defendants before they have been sentenced or completed their sentences. We are adopting this rule to maintain the integrity of our courts and provide access to justice — not to advance or oppose any political or policy agenda.”

The rule also bans civil immigration arrests in courthouses, their parking lots, sidewalks and entryways, unless a judge has signed an arrest warrant.

Oregon is the third state, after New York and New Jersey, to issue a statewide court rule. California lawmakers passed a rule that offers similar protections to immigrants, according to the ACLU of Oregon. For the full story:


It Is Just A Bunch Of Garbage

posted by Judge_Burke @ 23:38 PM
November 15, 2019

Tanner Russo has posted Garbage Pulls Under the Physical Trespass Test (Virginia Law Review, Vol. 105, No. 6, 2019) on SSRN. Here is the abstract:

By reintroducing the physical trespass test to the Fourth Amendment search inquiry, United States v. Jones (2012) and Florida v. Jardines (2013) supplemented the Katz privacy test with a property-based trespassory inquiry. Jones asks courts to consider whether police have physically trespassed on a personal effect with an investigatory purpose, and Jardines asks courts to consider whether police have engaged in an unlicensed physical intrusion into a constitutionally protected area, such as the curtilage of a home. This Note addresses one area of doctrinal uncertainty in the wake of Jones and Jardines: garbage pulls, a practice the Supreme Court found in California v. Greenwood (1988) did not constitute a Fourth Amendment search where garbage awaits collection on the curb.

This Note assesses the status of garbage pulls under the physical trespass test. First, it argues that under Jones, household garbage could qualify as an effect because of its status as personal property and its close connection to domestic intimacy. Second, it presents arguments that under Jardines, police likely exceed the boundaries of the implied license by entering the curtilage of a home to seize or investigate garbage. Here, the Note highlights a series of federal and state appellate court decisions that have historically dismissed the importance of the curtilage in cases involving garbage pulls. Ultimately, this Note demonstrates how the physical trespass test as articulated in Jones and Jardines could significantly restrict the permissible scope of garbage pulls.


What Groups Should A Judge Feel Comfortable Attending?

posted by Judge_Burke @ 23:28 PM
November 14, 2019

The web site How Appealing had this post recently,  ““I Was a Federal Judge. My Former Colleagues Must Stop Attending Federalist Society Events.” Former U.S. Magistrate Judge James P. Donohue (W.D. Wash.) has this jurisprudence essay online at Slate.” There are many judges who are members of the Federalist Society some of which sit on the United States Supreme Court. Most of the members of the American Judges Association are either state court judges or Canadian judges. Each of us have different ethical rules or more importantly different interpretations of the same rules. Perhaps there is no universally good answer to the question but for sure it is worth thinking about.


The Right To Beg

posted by Judge_Burke @ 22:26 PM
November 13, 2019

Anatole France — ‘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.’ 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. A ban on harassing panhandling in Arkansas is likely unconstitutional, and enforcement of the law may be banned statewide, a federal appeals court has ruled.

The 8th U.S. Circuit Court of Appeals at St. Louis upheld a statewide preliminary injunction in a First Amendment challenge filed by the American Civil Liberties Union of Arkansas. Courthouse News Service, the Arkansas Democrat-Gazette and the Associated Press have coverage of the Nov. 6 decision. A press release is here.

The law bans begging in a manner that is harassing, causes alarm or impedes traffic.

The ACLU had filed its suit on behalf of Michael Andrew Rodgers and Glynn Dilbeck, two men cited under a prior version of the law. Rodgers and Dilbeck said they had changed their begging behavior because they fear arrest under the new law.

The 8th Circuit said the law is a content-based restriction that singles out charitable solicitation, and it is not “narrowly tailored to achieve its public and motor-vehicle safety interest.”

The panel majority upheld the statewide reach of the preliminary injunction banning enforcement of the law. Such broad relief may be appropriate when a facial First Amendment challenge is likely to succeed, the 8th Circuit said. Judge Michael Melloy wrote the majority opinion.

In a partial dissent, Judge David Stras said enforcement of the law should be enjoined only as applied to the two plaintiffs. “I do not agree that the district court could prevent the entire Arkansas State Police force from enforcing the law against anyone, anywhere, at any time based on the harm faced by two individual plaintiffs,” he wrote.


Batson Challenge Is Introduced in Canada

posted by Judge_Burke @ 22:35 PM
November 8, 2019

For judges in the United States, dealing with Batson challenges to peremptory challenges is a staple of our law. The Globe & Mail has a story that shows it is now Canadian judges’ turn on how to ensure that juries are representative.

The Globe story:

A federal ban on unexplained objections to potential jurors, enacted after a defence lawyer appeared to use the legal tactic to keep Indigenous people off a jury in a high-profile case, has been struck down by an Ontario judge. The ruling highlights the potential for chaos in jury trials across the country, now that the selection process has become an unsettled area of law.

The Liberal government intended the ban to address perceived bias in jury selection after a Saskatchewan jury acquitted white farmer Gerald Stanley of second-degree murder last February in the shooting death of Colten Boushie, an Indigenous man, who had been on his property.

The judge’s ruling this week was in response to an Indigenous defendant who argued that the seven-week-old law discriminated against him – the opposite of its stated purpose. By the judge’s own description, the ruling throws jury trials into uncertainty in the province, because several other Ontario judges have upheld the ban.

But the ruling could have wider implications. Although it does not apply directly to other provinces, jury verdicts nationwide could be on shaky ground if the Supreme Court ultimately rules against the jury process as set out in the new law.

Objections to potential jurors, without a reason being given – known as peremptory challenges – have been around since the Magna Carta of 1215. They were seen as a way to give defendants confidence in the people who were judging them.

And Justice Andrew Goodman stressed that he still sees them that way. Ruling on a constitutional challenge by Dale King, who is accused of second-degree murder, he said Mr. King had been denied the right to participate in the selection of a representative jury.

“In order to provide for a measure of protection against the discrimination of jurors, Parliament has abolished [Mr. King’s] ability to prevent discrimination against himself,” the Ontario Superior Court judge wrote in an 81-page ruling released this week.

A spokesman for the Ontario Attorney-General’s department declined to say whether the province would appeal. Jonathan Shime, a lawyer representing Mr. King, also declined to comment on the case while it is before the courts.

Mr. King is accused in the shooting death of Yosif Al-Hasnawi two years ago in Hamilton. The case has a high profile because Mr. Al-Hasnawi was a good Samaritan breaking up a dispute when he was shot, and because two paramedics who arrived at the scene were charged with failing to provide the “necessaries of life” to him, after allegedly deeming him to have faked his distress.

The ban on peremptory challenges took effect on Sept. 19. Both the defence and prosecution had a certain number of challenges, depending on the seriousness of the offence; both sides had those challenges taken away from them in Bill C-75.

But even if, as an Ontario prosecutor argued in the King case, the system is fair and has the appearance of fairness to the public, that is not good enough for Mr. King, Justice Goodman wrote.

“He is entitled to the appearance of fairness, not only to the community at large, but more importantly to him, as the individual whose liberty is at stake.”

Justice Goodman ruled that the peremptory-challenges ban violated Section 7 of the Charter of Rights and Freedoms – the right to life, liberty and personal security – because it was broader than it needed to be. The government could simply have given enhanced power to judges to step in when either side discriminates in their use of peremptory challenges, or reduced the numbers of such challenges available, he said.

The immediate effect of the decision is to give Mr. King a right to peremptory challenges of prospective jurors. But it also creates uncertainty about what will happen for others exercising their right to a jury trial.

And that uncertainty is nationwide, Vancouver lawyer Marianna Jasper says, because if people are convicted under the new system, and the new system is ruled unconstitutional, they could be entitled to new trials. (The dispute over the ban’s constitutionality is not the only one. There have been conflicting decisions in Ontario and other provinces on whether the ban applies to charges laid before the law took effect.)

“The lawfulness of jury verdicts across the country will remain doubtful until (many years from now) the Supreme Court of Canada has addressed the constitutionality of the new regime, when it started to apply, and how it is to be administered,” Ms. Jasper said in an e-mail.

Ontario Superior Court Justice John McMahon had upheld the ban on Sept. 24, saying the law had several safeguards for accused rights, including the vesting of greater discretion in the trial judge to reject jurors.

Usually, judges are bound by rulings of other judges at the same level in a province – unless they deem them plainly wrong. And that is exactly how Justice Goodman termed Justice McMahon’s ruling.

For instance, under the new system, an accused might object that a potential juror sneered at them; a prosecutor might disagree, and the judge may not have seen it. The expanded judicial discretion is no help, Justice Goodman wrote, because it is unclear how judges would use it. Ignore disputed objections? he asked. Accept them? Ask questions, as yet unspecified, of the potential juror?

“Will the selection system descend into the morass of juror questioning, polling, submissions and the like that is found with our American cousins?”

University of Toronto law professor Kent Roach said the ban is fair because the Canadian legal system “utterly failed in attempting to prevent the discriminatory use of peremptory challenges,” and Parliament was justified in abolishing them.





Thoughts About Implicit Bias

posted by Judge_Burke @ 22:16 PM
November 7, 2019

It is safe to say that this might be one of the issues where there is unanimity among judges with  concern about implicit bias in the justice system. I will confess I have no solution, but I thought I’d share some thoughts developed for a talk I am giving.

Former Federal Judge Mark Bennet has an interesting implicit bias instruction:

Growing scientific research indicates each one of us has “implicit biases,” or hidden feelings, perceptions, fears, and stereotypes in our subconscious.  These hidden thoughts often impact how we remember what we see and hear and how we make important decisions.  While it is difficult to control one’s subconscious thoughts, being aware of these hidden biases can help counteract them.  As a result, I ask you to recognize that all of us may be affected by implicit biases in the decisions that we make.  Because you are making very important decisions in this case, I strongly encourage you to critically evaluate the evidence and resist any urge to reach a verdict influenced by stereotypes, generalizations, or implicit biases.

Determining credibility is among the most difficult things judges and jurors do.  Judges regularly make credibility determinations. But before you think with practice judges get better at this there are studies which found that judges are not necessarily better than others at figuring out who is telling the truth.  For example, in a controlled study of 110 judges with an average of 11.5 years on the bench, judges did not do better than chance in telling who was being truthful and who was not.  See Paul Ekman & Maureen O’Sullivan, Who Can Catch a Liar?, 46 Am. Psychologist 913 (1991); Richard Schauffler & Kevin S. Burke, Who Are You Going to Believe?, 49 Court Rev. 124 (2013).  Judge Learned Hand once said, “The spirit of liberty is the spirit which is not too sure that it is right.”

If judges are the “experienced pros” at determining credibility what about jurors? Minnesota’s  pattern jury instructions say that jurors should consider the manner in which a witness testifies.  See Minnesota CIVJIG 12.15 Evaluation of Testimony–Credibility of Witnesses – Guidelines for evaluating testimony and Minnesota CRIMJIG 3.12 Evaluation of Testimony — Believability of Witnesses. Most states have something similar to Minnesota’s jury instruction.   Telling jurors to consider the manner of a witness may well be appropriate, but is it possible that we unintentionally invite jurors to decide credibility based upon implicit bias as a result of this part of the instruction?  Perhaps we can learn from New Zealand.

The New Zealand Supreme Court said:

[R]esearch which indicates that a person’s demeanour when giving evidence in court generally provides little or no assistance to a fact-finder charged with determining whether or not the witness is telling the truth. A witness who presents as confident, articulate and honest may be mistaken or dishonest; a witness who presents as diffident, hesitant or awkward may be telling the truth and their evidence may be accurate. Not only can appearances be deceptive, but fact-finders may over-estimate their ability to recognise those who are truthful from those who are not, by, for example, relying on unreliable behaviours such as fidgeting or looking away.

Taniwha v. The Queen [2016] NZSC, September 8, 2016.

New Zealand’s suggested Jury Instruction:

I must warn you, though, that simply observing witnesses and watching their demeanour as they give evidence is not a good way to assess the truth or falsity of their evidence. For example, a witness may not appear confident or may hesitate, fidget or look away when giving evidence. That doesn’t necessarily mean that their evidence is untruthful. The witness may be understandably nervous giving evidence in an unfamiliar environment in front of unknown people. Or there may be cultural reasons for the way a witness presents. On the other hand, a witness may appear confident, open and persuasive but nevertheless be untruthful. And remember that even an honest witness can be mistaken.

Things like gestures or tone of voice may sometimes help you to understand what the witness actually means. But you should be cautious about thinking that they will help you much in determining whether or not the witness is telling the truth.


Should Judges Be Concerned About Breath Testing Devices Accuracy?

posted by Judge_Burke @ 21:18 PM
November 6, 2019

There is a saying that I am fond of: “Every once in a while we should hang a question mark after the things we take for granted.” Forensic science is not only important in DWI cases but in all criminal cases. A major cause of wrongful convictions is forensic science was wrongfully applied. That is among the reasons the Justice Speakers Institute and the National Judicial College published the Judge’s Science Bench Book.  See  Perhaps the most frequently used forensic tools in criminal law are breath tests given to suspected drunk drivers. We mostly assume the machines are accurate, however The New York Times has a piece on breath testing devices that may challenge our thinking, including frightening allegations against some of those responsible for guaranteeing accurate testing and a survey of recent legal challenges.

The New York Times piece is  quite interesting. I hope others read it. It is easy to be dismissive about the claims that defense counsel make, or to develop such an ingrained sense of cynicism that we don’t readily put the question mark after things we, for so long, take for granted. So, whether you agree with the conclusions of the article may not be as important as being far more open minded when hearing challenges to the technology that we employ in DWI  cases.