Archive for January, 2020

How Do We Improve?

posted by Judge_Burke @ 20:34 PM
January 8, 2020

There are no easy answers to how to reduce the racial disparity of stops. The Supreme Court of Massachusetts heard arguments recently in a case involving a police stop in 2017 that raises questions about racial bias.

MassLive discusses the following question:  Is “reasonable suspicion” triggered differently with black suspects and white ones?

This is a nationwide problem as illustrated by a very recent analysis in California that found  black motorists  are stopped by police at significantly higher rates than their white or Latino counterparts, a state audit reveals. View an article on this issue from the LOS ANGELES TIMES.

Part of the problem arguably is it is very difficult to get reliable data.  For example a Stanford University  project — Law, Order & Algorithms — has found that even though a little more than half the states, 31, routinely collect data on race (based on officer perception), the way it’s collected is far from uniform.

Even where data exist, some states have not analyzed it. Even fewer states make the information available for public review.

In Nevada, officers record the driver’s race only if they issue a ticket or make an arrest. In South Carolina, officers note a driver’s race only when the driver is not ticketed or arrested. Georgia has a spot on its traffic warning forms for race, but not on its tickets. Even then, troopers aren’t required to fill it in. At least three states collect information but don’t compile the data or analyze it. Maine, for example, collects the information on paper only.

In the rest of country, 15 states either did not respond or did not say whether, or how, any data were collected. Four states said they did not track the race of drivers they stop at all. In one of those, Louisiana, the state police said it was “not required to maintain such information because we have a written policy against racial profiling.”


The Politics Of Judicial Elections

posted by Judge_Burke @ 22:56 PM
January 3, 2020
Brennan Center Releases New Report, The Politics of Judicial Elections 2017-18
On December 11, the Brennan Center for Justice released a new report, The Politics of Judicial Elections, 2017-18: How Dark Money, Interest Groups, and Big Donors Shape State High Courts, analyzing spending in state supreme court elections during the 2017-18 election cycle. The report, based on data from the National Institute on Money in Politics, found that $39.7 million was spent in 48 races to elect state supreme court judges in 21 states.
Among the report’s findings were that special interest groups accounted for 27 percent of every dollar spent in state supreme court campaigns, and that eight of the ten biggest spenders did not disclose the source of their funds. For example, Arkansas saw the most outside spending with over $2.8 million, which made up 84 percent of all the state’s spending. Much of this outside spending in Arkansas came from the Judicial Crisis Network, a group which spent $10 million last year to support Brett Kavanaugh’s nomination to the U.S. Supreme Court.
Other major findings include the biggest source of dark money was likely the Judicial Crisis Network and states have made little progress towards achieving more diverse state supreme court benches. The report argues that the continued proliferation of expensive and politicized elections threatens the hope of equal justice for all.

Jury Nullification

posted by Judge_Burke @ 23:30 PM
January 2, 2020

From Professor Doug Berman’s Sentencing Law & Policy blog, “A helpful reader made sure I did not miss this How Appealing post flagging the fascinating split Second Circuit panel ruling yesterday in US v. Manzano, No. 18-3430 (2d Cir. Dec. 18, 2019).  The start of the majority opinion sets forth the basics:

Respondent Yehudi Manzano stands charged with production of child pornography, an offense punishable by a mandatory minimum term of fifteen years’ imprisonment, and transportation of child pornography, which is punishable by a mandatory minimum term of five years’ imprisonment.  Shortly before trial, he filed motions requesting permission to argue for jury nullification — in essence, that the jury should render a verdict not in accordance with the law — and to present evidence regarding the sentencing consequences of a conviction in this case.  On the eve of trial, the district court (Underhill, Chief Judge) granted Manzano’s request to argue jury nullification, but reserved decision on the admissibility of evidence regarding the sentencing consequences of a conviction.

The government now seeks a writ of mandamus directing the district court to (1) preclude defense counsel from arguing jury nullification, and (2) exclude any evidence of sentencing consequences at trial.  Applying settled law in this circuit, we hold that the government has a clear and indisputable right to a writ directing the district court to deny defense counsel’s motion for leave to argue jury nullification, and that the other conditions for mandamus relief are satisfied.  We further hold that, at this time, the government does not possess a clear and indisputable right to a writ directing the district court to exclude any evidence of sentencing consequences.

Here is the start of Judge Barrington Parker’s partial dissent:

We are fortunate that the prosecutors in this Circuit nearly always bring a high degree of professionalism, good judgment, and common sense to bear in the exercise of their responsibilities.  This case presents the unusual circumstance where a conscientious jurist is confronted with a charging decision that, in his considered judgment, reflects an abuse of prosecutorial power.  Charging decisions are, of course, by and large the exclusive province of prosecutors.

There is a straightforward solution that could avoid the problems raised by the petition and discussed in this dissent.  The petition should be held in abeyance and the case remanded to the District Court, at which time the prosecutors could revisit their charging decision. If they chose not to do so, they could provide information as to why they believed their decision was appropriate. If this approach did not resolve the problem, this Court could then revisit the petition.

Faced with the Government’s charging decision, Judge Underhill could, I suppose, have acquiesced in whatever the prosecutors wanted.  But he is not a piece of Steuben glass. Instead, witnessing what he perceived to be abuse, he pushed back.  I believe that most conscientious jurists would have done the same.  I have no difficulty concluding that Judge Underhill was right to do so.  “[F]ederal courts have authority under their supervisory powers to oversee the administration of criminal justice within federal courts.”  United States v. Johnson, 221 F.3d 83, 96 (2d Cir. 2000) (quoting Daye v. Attorney Gen., 712 F.2d 1566, 1571 (2d Cir. 1983)).  They should use these powers “to see that the waters of justice are not polluted” and “to protect the integrity of the federal courts.” United States v. Payner, 447 U.S. 727, 744 (1980); accord United States v. HSBC Bank USA, N.A., 863 F.3d 125, 135 (2d Cir. 2017).  Their supervisory powers are not restricted to the protection of explicit constitutional rights.  McNabb v. United States, 318 U.S. 332, 341 (1943).  The powers exist “in order to maintain respect for law” and to “promote confidence in the administration of justice.”  Olmstead v. United States, 277 U.S. 438, 484 (1928) (Brandeis, J., dissenting); accord Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974); United States v. Getto, 729 F.3d 221, 229 (2d Cir. 2013).  The supervisory powers should be sparingly exercised.  HSBC, 863 F.3d at 136.  Judges are not, of course, free to disregard the limitations of the law they are charged with enforcing under the guise of exercising supervisory powers or at other times.  Payner, 447 U.S. at 737.  But since Payner, we have recognized that within their supervisory powers, courts should “not hesitate to scrutinize the Government’s conduct to ensure that it comports with the highest standards of fairness.” Johnson, 221 F.3d at 96 (quoting United States v. Lawlor, 168 F.3d 633, 637 (2d Cir. 1999)). This requirement applies with particular force in contexts such as charging and sentencing, especially those involving mandatory minimum sentences, where the Government plays an “often decisive role.” Id.

Whether Judge Underhill went too far is debatable.  But because this case does not come close to meeting the exacting standards for mandamus, I respectfully dissent from the majority’s grant of a writ directing the District Court to allow no arguments for jury nullification.  I concur to the extent that the majority denies a writ directing the District Court to exclude at trial evidence of sentencing consequences.

This local article about the ruling reports that the defendant’s lawyer is going to seek en banc review. I am not optimistic the full Second Circuit will take up this matter or resolve it different, but I would like to see these issues get a lot more attention particularly in light of recent Sixth Amendment jurisprudence.  Notably, in the recent Haymond case, Justice Gorsuch spoke broadly about the Framers’ vision of the jury right and explained: “Just as the right to vote sought to preserve the people’s authority over their government’s executive and legislative functions, the right to a jury trial sought to preserve the people’s authority over its judicial functions.” But how can the people have authority over the judicial function if they are not fully informed of their rights and authority as jurors and not made aware of the possible consequences of their decisions?