Archive for February, 2020

The Fourth Amendment After Carpenter

posted by Judge_Burke @ 22:23 PM
February 20, 2020

Matthew Tokson (University of Utah – S.J. Quinney College of Law) has posted 42nd Annual Foulston-Siefkin Lecture: The Next Wave of Fourth Amendment Challenges After Carpenter (Washburn Law Journal, Forthcoming) on SSRN. Here is the abstract:

The lecture discusses the future of Fourth Amendment law following the Supreme Court’s enormously important decision in Carpenter v. United States. It analyzes Carpenter and argues that its detailed account of the privacy harms caused by government surveillance will be its most important legacy. Moreover, the Court’s emphasis on the risk of privacy harm is not a one-off or a sharp break from previous practice. Carpenter is consistent with a long line of Supreme Court decisions ignoring or reshaping previous Fourth Amendment doctrines when necessary to protect citizens against unchecked surveillance. It also echoes previous cases that focus on the revealing, extensive, or intimate nature of surveillance when assessing whether a Fourth Amendment search has occurred.
The lecture then details some of the novel surveillance technologies that are likely to reach the Supreme Court over the next several years. These technologies include drones, smart homes and devices, web surfing surveillance, and pole cameras targeting a specific suspect’s home. Many of these technologies have already been used in police investigations and evaluated by judges in lower court cases. The lecture evaluates how the Supreme Court is likely to resolve these cases and uses the framework of Carpenter and its predecessors to make predictions about the future direction of Fourth Amendment law.


Remorse & Judging

posted by Judge_Burke @ 21:10 PM
February 19, 2020

Susan A. Bandes (DePaul University – College of Law) has posted Remorse and Judging (in Remorse in Criminal Justice: Multi-Disciplinary Perspectives, Routledge, Taylor & Francis Group, 2020, Forthcoming) on SSRN. Here is the abstract:

This chapter focuses on the judicial evaluation of remorse. It is an article of faith that judges can and should evaluate remorse when determining sentence. Although the dynamics of this evaluation are understudied, the existing literature helps illuminate the assumptions judges employ and the dangers and limitations of those assumptions. Judges rely on evaluation of demeanor and body language and on allocution, and their interpretations are rife with implicit assumptions and unstated rules about what counts as remorse. Many of these assumptions (for example the link between remorse and decreased recidivism and the possibility of assessing remorse from demeanor) lack evidentiary support. These assumptions and implicit rules vary widely from judge to judge. They often fail to account for the influence of race, ethnicity, gender and social class on the expression and evaluation of remorse. Moreover, they put a premium on the willingness to plead guilty, and to do so at the earliest possible opportunity. The chapter draws upon the few existing empirical studies on the topic and identifies areas that require further study


What Groups Should Judges Join?

posted by Judge_Burke @ 22:42 PM
February 12, 2020

There is no easy answer to this question. If you are a judge in a jurisdiction with a tradition of hotly contested elections you might legitimately answer the question different than if you have a lifetime appointment. Perhaps it is one thing to speak to a group and another to be an active member. The Fair Courts Alert Reports that:

The Committee on Codes of Conduct of the U.S. Judicial Conference circulated a draft ethics advisory opinion that would prohibit federal judges from officially affiliating, whether as a member or in a leadership role, with the American Constitution Society (ACS) or the Federalist Society, but not the American Bar Association (ABA).
According to the draft opinion, official affiliation with ACS or the Federalist Society is inconsistent with the Code of Conduct for United States Judges because membership in either group “could convey … that the affiliated judge endorses the views and particular ideological perspectives advocated by the organization … and generally frustrate the public’s trust in the integrity and independence of the judiciary.” Membership in the ABA’s Judicial Division “does not raise these same concerns and is not necessarily inconsistent with the Code.”
Speaking at a Federalist Society event last week, Supreme Court Justice Clarence Thomas criticized the draft opinion, saying “I think they’re about to silence the Federalist Society.” The Wall Street Journal Editorial Board also published an editorial, calling the draft ethics opinion “political mischief masked in high-sounding rhetoric.”

How Do I Decide If A Fine, Forfeiture Or Fee Is Excessive?

posted by Judge_Burke @ 22:48 PM
February 11, 2020

Beth A. Colgan and Nicholas McLean (University of California, Los Angeles (UCLA) – School of Law and University of Hawaii – William S. Richardson School of Law) have posted Financial Hardship and the Excessive Fines Clause: Assessing the Severity of Property Forfeitures After Timbs (The Yale Law Journal Forum (2020)) on SSRN. Here is the abstract:

In the wake of the Supreme Court’s decision in Timbs v. Indiana—which held that the Fourteenth Amendment incorporates against the states the Eighth Amendment’s ban on the imposition of “excessive fines”—it is likely that state and lower federal courts around the nation will be called upon to further develop Excessive Fines Clause doctrine. The Court’s historical exegesis in its Timbs opinion, as well as aspects of existing Eighth Amendment doctrine, support an analytical framework under which courts would look to the effects of property forfeiture on individuals and their families—in particular, the infliction of financial hardship—when assessing the severity of a forfeiture in the proportionality review context. In this Essay, we sketch the outlines of a forfeitures jurisprudence that would take into account the ways that property deprivations may restrict employment and educational access, interfere with the ability to meet basic needs (including food, shelter, and medical care), create family and social instability, and impede the ability to satisfy legal obligations.


Court Funding Reform In Louisiana?

posted by Judge_Burke @ 22:46 PM
February 10, 2020

Louisiana’s reliance on fines and fees to fund its justice system is ineffective, unfair and possibly unconstitutional and the legislature should make major changes in the current term, according to a state commission’s draft report.

The Louisiana Commission on Justice System Funding report says general government revenue primarily should fund the courts, not fines and fees. How much that will cost state government remains an open question. The current system encourages local jurisdictions to focus on debt collection rather than helping victims and reducing recidivism, the report says. The system is “void of basic notions of transparency and ripe for potential fraud from bad actors,” it continues.

The report recommends that lawmakers mandate uniform reporting by all entities that collect or receive money from fines and fees. Under the current system, the reporting methods and level of detail varies widely by jurisdiction, making it impossible for state auditors to determine how much money is being spent or verify that it is being spent the way it should be.“You can’t manage a problem until you can measure it,” Will Harrell, a criminal justice activist who served on the committee, said in an interview. “We simply don’t have the data yet to measure.”

Commission members also discussed changing the law to prevent offenders on probation or parole from being sent back to jail for failure to pay fines and fees, though there is some dispute about how often that actually happens. This approach is costly and inefficient, the report continues, as some jurisdictions spend more money to collect than they take in. In 2015, the city of New Orleans collected $4.5 million in fines and fees while spending $6.4 million to detain people who couldn’t pay.

Funding courts through fines and fees entrenches poverty and racial disparities, the report says. A 2017 federal report found that some communities target poor minority communities, jailing those who are unable to pay and undermining confidence in the judicial system.

And in two recent decisions, courts have found the user-funded justice system unconstitutional. The Fifth Circuit says the funding structure of the Orleans Parish Criminal District Court violates due process rights because it creates a temptation for judges to focus on raising money, not impartial justice.


Good Reading

posted by Judge_Burke @ 21:55 PM
February 7, 2020

A colleague sent me this: “Ya gotta love self-represented litigants. Every once in a while they give you some background on cases that you’d never get from lawyers.


Today’s reading:


In the memorandum to support default judgment, the self-represented Plaintiff/moving party explained that he’d have more sympathy for the lawyer who filed his answer late (the basis for Plaintiff seeking default) if that lawyer had not compared Plaintiff’s chance of prevailing to “Martians landing on the Earth tomorrow and taking over the planet.”


Ninth Circuit Rules on Court Processes and Media Right to Access

posted by Judge_Burke @ 22:12 PM
February 6, 2020

Steven D. Schwinn, UIC John Marshall Law School

The Ninth Circuit ruled on Friday that a media plaintiff had a First Amendment right to access nonconfidential civil complaints, and that one court policy violated that right, where another court policy didn’t. The ruling sets a test and clarifies the law in the Ninth Circuit.

The case, Courthouse News Service v. Planet, arose when CNS challenged the process of releasing nonconfidential complaints to the press in Ventura County Superior Court. That process, dubbed “no access before process,” meant that the court put newly filed civil complaints through a seven-step administrative process before releasing them to the media. That could take a couple days, so CNS sued, seeking immediate access. (Venture County doesn’t use electronic filing; it’s all paper.)

As the case worked its way through the federal courts, Ventura County changed its practice to a “scanning policy.” Under the scanning policy, the court scanned complaints and made them available the same day (in most cases) on court computers. CNS still wanted immediate access, however, so the case moved on.

The Ninth Circuit said that CNS has a qualified First Amendment right of access to newly filed, nonconfidential civil complaints, and that the “no access before process” violated it, while the “scanning policy” didn’t. The Ninth Circuit held that courts could adopt reasonable restrictions on access resembling time, place, and manner regulations. These could result in incidental delays in access, so long as they are content-neutral, narrowly tailored and necessary to serve the court’s important interest in the fair and orderly administration of justice. Or: “Ventura County must demonstrate first that there is a ‘substantial probability’ that its interest in the fair and orderly administration of justice would be impaired by immediate access, and second, that no reasonable alternatives exist to ‘adequately protect’ that government interest.”

As to the “no access before process” policy, the court said that it resulted in significant delays, but didn’t serve (and in fact were entirely unrelated to) the stated interests in privacy and confidentiality, complying with accounting protocols, controlling quality and accuracy, promoting efficient court administration, or promoting the integrity of court records. It also said that the policy “caused far greater delays than were necessary to protect [these interests].”

As to the scanning policy, the court said that it directly related to the court’s asserted interests and that, after the court changed its filing hours, the policy resulted in “near perfect” same-day access to the complaints. (Before the court changed its filing hours, there wasn’t near perfect same-day access, but the Ninth Circuit gave the court a pass, because it faced resource constraints.)

The ruling leaves the current scanning policy in place.

Judge Smith concurred in part, arguing that the majority wrongly applied strict scrutiny, and instead should have applied “reasonable time, place and manner restrictions.”


How Much Might Cognitive Bias Affect Forensic Science?

posted by Judge_Burke @ 22:23 PM
February 3, 2020

A new study suggests cognitive bias by forensic experts who perform bullet and cartridge-case testing. Judges are gatekeepers regarding admissible evidence  but our ability to properly guard the gate is often a product of how effective the lawyers are who challenge the admissibility of forensic evidence.

Here is a link to the study: Science Direct.