Archive for March, 2020

Colorado Bans Ice Arrests In Courthouses

posted by Judge_Burke @ 13:52 PM
March 31, 2020

For the time being the pandemic may well prohibit much of the ordinary business conducted in state courthouses, but hopefully we will return to normal. In Colorado there will be a change when that happens. “Immigration and Customs Enforcement officers will no longer be allowed to arrest people for civil immigration violations in or around courthouses in Colorado.

Gov. Jared Polis signed Senate Bill 83 into law Monday. It prohibits ICE from making civil arrests while a person is in the courthouse or on its property or if the person is going to or from a court proceeding.

The bill excludes civil arrests related to a judge’s contempt-of-court order or other judicially issued process. A violation of the law could lead to a judge finding the agent in contempt of court, or the person could be subject to civil penalties from the attorney general.” For more: A new Colorado law bars ICE agents from making civil arrests at courthouses in the state. THE DENVER POST


The Complications Of A Gender Change

posted by Judge_Burke @ 13:37 PM
March 30, 2020

Fairly routinely courts change a person’s name. Many state court judges also change the birth certificate because there are a lot of problems when the birth certificate does not match the gender and name on for example the driver’s license. And then it gets complicated by what happens when you were born in another state. “Wyoming Supreme Court to decide on birth certificate gender changes”: Isabella Alves of The Wyoming Tribune Eagle has this report.


Transparency in Plea Bargaining

posted by Judge_Burke @ 14:49 PM
March 27, 2020

Jenia Iontcheva Turner (Southern Methodist University – Dedman School of Law) has posted Transparency in Plea Bargaining (Notre Dame Law Review, Vol. 96, No. 1, Forthcoming) on SSRN. Here is the abstract:


Plea bargaining is the dominant method by which our criminal justice system resolves cases. More than 95% of state and federal convictions today are the product of guilty pleas. Yet the practice continues to draw widespread criticism. Critics charge that it is too coercive and leads innocent defendants to plead guilty, that it obscures the true facts in criminal cases and produces overly lenient sentences, and that it enables disparate treatment of similarly situated defendants.

Another feature of plea bargaining — its lack of transparency — has received less attention, but is also concerning. In contrast to the trials it replaces, plea bargaining occurs privately and off-the-record. Victims and the public are excluded, and the defendant is typically absent. While the Sixth and First Amendments rights of public access extend to a range of pretrial criminal proceedings, they do not apply to plea negotiations. For the most part, rules and statutes also fail to require transparency in the process. As a result, plea bargaining is largely shielded from outside scrutiny, and critical plea-related data are missing.

There are some valid reasons for protecting aspects of plea negotiations from public scrutiny. Confidentiality fosters candor in the discussions and may encourage prosecutors to use their discretion more leniently. It can help protect cooperating defendants from retaliation. And it may expedite cases and conserve resources.

Yet the secrecy of the process also raises concerns. It prevents adequate oversight of coercive plea bargains, untruthful guilty pleas, and unequal treatment of defendants. It can hinder defense attorneys from providing fully informed advice to their clients. It can also potentially impair victims’ rights and interests. Finally, the absence of transparency leaves judges with few guideposts by which to evaluate plea bargains and inhibits informed public debate about criminal justice reform.

This Article reviews plea bargaining laws and practices across the United States and argues that we can do more to enhance the documentation and transparency of plea bargaining. It then proposes concrete areas in which transparency can be improved without significant costs to the criminal justice system.


What Do Attorneys Think About Risk Assessment Tools?

posted by Judge_Burke @ 21:20 PM
March 24, 2020

Anne MetzJohn MonahanLuke Siebert and Brandon L. Garrett (University of Lynchburg, University of Virginia School of Law, Masters in Public Health Candidate, University of Virginia School of Medicine; Research Assistant, University of Virginia School of Law and Duke University School of Law) have posted Valid or Voodoo: A Qualitative Study of Attorney Attitudes Towards Risk Assessment in Sentencing and Plea Bargaining on SSRN. Here is the abstract:

Prior research largely has explored judicial attitudes toward risk assessment in sentencing. Little is known about how other court actors, specifically, prosecutors and defense attorneys, make use of risk information at sentencing hearings and during plea negotiations. Here, we report a qualitative study on the use of risk assessment by prosecutors and defense attorneys in Virginia. A prior quantitative study (n=70) pointed to a statistically significant difference in how prosecutors and defense attorneys regard the role of recidivism risk in sentencing hearings and in plea bargaining. Based on the results of the quantitative study, we collected follow-up qualitative data via interview (n=30) to explain this unexpected difference. Three themes emerged from the interviews: Who is the lawyer’s identified client? (With prosecutors choosing the general public and defense attorneys choosing the particular defendant); Does past behavior strongly predict future behavior? (With prosecutors being more likely than defense attorneys to believe it does; and Is the Nonviolent Risk Assessment a statistically valid tool for assessing recidivism risk? (With prosecutors and defense attorneys equally likely to believe that the tool was no more valid than their own intuitive professional experience. Virginia is regarded as one of the leading innovators in the use of risk assessment. Thus, as more states and the federal government adopt a risk-based approach to sentencing, studies on Virginia can provide useful guidance on the implementation process.


Procedural Fairness

posted by Judge_Burke @ 19:00 PM
March 17, 2020
Procedural Justice During a Pandemic

by Steve Leben

Wow. It seems that the world has changed around us in a heartbeat. The changes are disruptive and unsettling. And that’s true for just about everybody—inside and outside the courthouse.

As judges and others connected to the justice system work through this, we are making orders and changes to how we handle cases that will have profound effects on people. The stakes are high, and the amount of time we can spend on individual cases will usually be—understandably at this moment—quite limited. Even so, we need to keep procedural-justice principles in mind; they represent the public’s expectations of us.

One of the core principles is that we need to be transparent and explain our decisions. Even in making orders on our own motion that change hearing dates and keep some orders in effect pending a postponed hearing, we can explain why we’re doing that. Some may respond that it’s obvious why we’re doing these things. But it may be completely clear to all who are affected. We can at least provide some explanation for the decisions made, including the key considerations we took into account.

For example, in civil-protection-order cases, we may well be leaving a temporary ex parte order of protection in place for an extended period. Perhaps the order was unfair from the outset, having been based on a one-sided understanding of the situation. Even if the order is fair, the party on the receiving end—who has not yet been heard—may perceive its fairness differently. And now we’re leaving it in place without hearing from that party. We should at least provide an explanation of why we did that. And if possible, we should also provide some mechanism for written motions for relief in truly unjust circumstances. Doing that would meet two of the key procedural-justice principles—both providing an explanation and some forum in which we will listen to other viewpoints.

Another important principle of procedural justice is showing respect for those who are coming through or working in our court system. Let’s keep that one in mind too; there are creative ways to show respect for others. One is by recognizing that the demands on all of us may be quite different for a while. Many will be faced with the need to take care of children or other family members while still interacting with the courts. Texas trial judge Emily Miskel (@emilymiskel on Twitter) came up with a creative but respectful solution: an order suspending the normal business dress code for both in-person and remote appearances.

For practical and comprehensive information about handling court cases during this pandemic, check out the National Center for State Courts website,

One more thing: take care of yourself. You can’t do a good job making decisions for others unless you take care of yourself.

There’s a book I reviewed a few years ago by law professors Nancy Levit and Doug Linder called The Happy Lawyer: Making a Good Life in the Law. My review focused on how judges could use the research found there to be better judges. Levit and Linder reported that the two biggest factors in improving happiness were control and social connections. Judges usually have control of lots of the things we do, and trial judges often have ample opportunity for social interactions. This pandemic is quickly turning all of that on its head. We seem to lose control hour by hour, day by day, of more and more of what’s going on in our daily activities. And we also are losing our social connections.

Yet as judges, we still must make decisions that will have significant effects on other people’s lives. We need to be sure we remain in the mental and emotional shape to do that well.

Social psychologist Pam Casey, Kevin Burke, and I put together an article about how judges generally can be at the top of their mental game. Give some consideration to what you may need to do right now to keep yourself in the right mental frame to be your best as a judge.

I only realized this morning that part of what was both distracting and annoying me was the loss of control. I realized that when I found myself ironing the no-iron shirts that come out of the dryer in almost-good-enough shape. Some of them could use just a touch of the iron, but usually I don’t go there. Today I did—with starch. I realized that this was just something I could control. It was a little thing, but I needed it today. And I’m grateful that the experience helped me to step back and think more about what’s going on and how I can best deal with it.

With a quick check back at what Levit and Linder had taught me, I saw how this fit into a bigger picture. I’ll think more now about how to keep a sense of control and some social connections as I work through the next weeks or months. I hope you will think about what you need to do for you too; we need our judges at the best they can be right now.

These are some of my thoughts. I, like you, have little training for a moment like this. I welcome your thoughts and suggestions in the comments.

Good luck to all of us as we work through these times, day by day, courthouse by courthouse.—Steve Leben

Steve Leben | March 16, 2020 at 3:09 pm | Categories: Uncategorized | URL:


The Role of Women In Public Defense

posted by Judge_Burke @ 17:47 PM
March 12, 2020


From Right to Counsel:

March is Women’s History Month, and March 18th marks the 57th Anniversary of the landmark decision in Gideon v. Wainwright, in which the United States Supreme Court unanimously declared the “obvious truth” that “lawyers in criminal court are necessities, not luxuries,” and that the state must provide a lawyer to anyone whose liberty is at stake and who cannot afford one. These commemorations have more in common than first meets the eye: women have had a hand in the creation and strengthening of our public defense system, and women are increasingly in need of effective public defense themselves. As such, this March to honor this right and those who protect it, the Right to Counsel National Campaign (R2C) and the Justice Programs Office are celebrating public defenders and the courageous work they do all month long as part of R2C’s #TriviaTuesday.


Our first spotlight of the month was on the impactful yet under-recognized Clara Shortridge Foltz, whom we should thank for the concept of our modern-day public defender system. The first woman to practice law on the West Coast, Foltz authored a bill that changed one of the legal requirements for becoming a lawyer in California from “white male citizen” to “any citizen or person.” She did not stop there, however.


Because defendants with means would rarely agree to female representation, Foltz represented quite a few indigent defendants. Dissatisfied with the inequities she observed, Foltz created the concept of the public defender system to balance the public prosecutor. In 1893, 70 years before the Supreme Court decided Gideon v. Wainwright, she presented the concept of public defense at the Chicago World’s Fair, arguing that the right to a presumption of innocence was only possible with competent legal advice. Due to her efforts, Los Angeles opened the nation’s first public defender office in 1913, and the “Foltz Defender Bill” was enacted state-wide in 1921. Read more about Foltz and the women of public defense in this month’s R2C blog and follow along on Twitter as we and other organizations across the US commemorate the anniversary and the right to counsel by celebrating #PublicDefenseDay #PublicDefenderDay #GideonAnniversary.


Should Judges Deal Jump?

posted by Judge_Burke @ 21:18 PM
March 11, 2020

Michael D. Cicchini has posted Deal Jumpers (2021 U. Illinois L. Rev. __ (2021, Forthcoming)) on SSRN. Here is the abstract:

Fundamental fairness dictates that when a criminal defendant enters a plea in exchange for the prosecutor’s sentence concession, the defendant should actually receive the sentence for which he or she bargained. Surprisingly, however, many states permit the judicial practice of deal jumping: the judge can accept the defendant’s plea, disregard the sentence concession that induced the plea in the first place, and then sandbag the defendant with any punishment the judge wishes to impose. Worse yet, the hapless defendant is left without recourse, unable to withdraw his or her plea.

Deal jumping is fundamentally unfair to defendants and harmful to the criminal justice system—a system that relies on plea bargains for more than 95 percent of its convictions. To ensure fairness, transparency, and integrity in plea bargaining, state legislatures should eliminate deal jumping and require judges to approve or reject sentence concessions at the same time they approve or reject charge concessions: before accepting the defendant’s plea. Alternatively, if a judge accepts the defendant’s plea but then decides to exceed the agreed-upon sentence, the defendant should be allowed to withdraw his or her plea and proceed to trial.

Legal reform to eliminate deal jumping is simple to implement and has garnered broad-based support; nonetheless, state legislatures often resist change, clinging blindly to the status quo. Therefore, this Article also provides defense lawyers with a practical plea-bargaining strategy to protect their clients. Defense counsel should consider invoking little-known but effective legal rules—rules which exist in many states—to constrain judicial abuse, provide greater certainty at sentencing, and even ensure the defendant receives the actual benefit for which he or she bargained.


From Judge Wayne Gorman:

In RT & Anor, R. v [2020] EWCA Crim 155, February 13, 2020, the Court of Appeal for England Wales considered an appeal involving the following issue:

This appeal raises an issue about whether the trial judge was entitled to continue a trial in circumstances where a prosecution witness, aged 16 years who had been diagnosed with ADHD, who had given evidence in chief and who had been cross-examined in part on behalf of one appellant, became distressed and refused to continue to give evidence.

The Court of Appeal noted that an accused person “has a fundamental right under the criminal law to a fair trial. The right of a legal representative to ask questions of witnesses giving evidence against the defendant is one way in which a fair trial is delivered but limitations have long been recognised to the right to question…In some cases the effect of not being able to cross examine a witness who has become ill and unable to continue has meant that a fair trial becomes impossible. In other cases it has proved possible to continue the trial and ensure that it is fair” (at paragraph 37).

The Court of Appeal indicated that when “considering whether a fair trial is possible when a witness’s evidence has been cut short a judge will have regard to the extent to which the defence has been put and explored with the witness, whether previous inconsistent statements can be put into agreed facts, and whether there is other relevant evidence” (at paragraph 39).


The Court of Appeal concluded that “the trial judge was entitled to continue the trial” (at paragraphs 42 to 44):

In our judgment the trial judge was entitled to continue the trial of RT and Mr Stuchfield even though Ms F was not available for the whole of the cross examination on behalf of Mr Stuchfield and there was no cross examination on behalf of RT. This was because the trial remained fair for both RT and Mr Stuchfield in the particular circumstances of this case. The relevant circumstances included the facts that first the jury had seen Ms F give evidence and be cross examined at least in part. Secondly there was some unfortunate questioning of Ms F which explained her refusal to stay for the whole of the cross examination, although we make it clear that the trial judge found that this questioning was not carried out deliberately to provoke the witness, and counsel for RT did not have the opportunity to carry out any questioning. Thirdly there was material which was admitted, including the Facebook messages, which enabled the jury to make a fair assessment of the credibility and reliability of Ms F’s evidence. Fourthly Ms F’s evidence could be assessed in the context of the other evidence which included: DNA evidence against RT; evidence about earlier social media conversations about a plan to commit a robbery; CCTV evidence showing the movements of RT and Mr Stuchfield; and Mr Stuchfield’s letter sent after the offence. Fifthly the judge gave proper directions to the jury identifying the limitations of Ms F’s evidence.

We are also satisfied that there was no abuse of process in continuing the trial in the circumstances set out above. This was because the trial process enabled the appellants to deal with the effect of the absence of Ms F. We can see no basis for saying that the conviction of either RT or Mr Stuchfield was unsafe.

For the detailed reasons given above we dismiss the appeal against conviction.



The Right To Counsel

posted by Judge_Burke @ 21:18 PM
March 6, 2020

Paul Marcus and Mary Sue Backus (William & Mary Law School and University of Oklahoma College of Law) have posted The Right to Counsel in Criminal Cases: Still A National Crisis (George Washington Law Review, Vol. 86, No. 1564, 2018) on SSRN. Here is the abstract:

In 1963, Gideon v. Wainwright dramatically changed the landscape of criminal justice with its mandate that poor criminal defendants be entitled to legal representation funded by the government. As scholars and practitioners have noted repeatedly over more than fifty years, states have generally failed to provide the equal access Gideon promised. This Article revisits the questions raised by the authors over a decade ago when they asserted that a genuine national crisis exists regarding the right to counsel in criminal cases for poor people. Sadly, despite a few isolated instances where litigation has sparked some progress, the issues remain the same: persistent underfunding and crushing caseloads, and little support from the Supreme Court to remedy ineffective assistance claims. The authors conclude that our patchwork system of public defense for the poor remains disturbingly dysfunctional.


From Judge Wayne Gorman: The Scottish Sentencing Council has released a report entitled: The Development of Cognitive and Emotional Maturity in Adolescents and its Relevance in Judicial Contexts.

The Council provided the following “executive summary”:

This report provides a synthesis and evaluation of the current neurobiological, neuropsychological and psychological literature on adolescent cognitive maturation. Using an ‘umbrella review’ methodology, systematic reviews, meta-analyses, and narrative reviews were collated, critically assessed, and then synthesized to provide robust findings and interpretations of the data as it applies to cognitive maturation and juvenile sentencing.

During adolescence and within normal individual development, an imbalanced growth pattern is observed between the brain regions governing emotion and mood, like the amygdala, and those involved in executive functions (those that provide the cognitive abilities which are necessary for prosocial behaviour, successful goal planning and achievement), like the prefrontal cortex. Converging findings suggest that this latter brain region is the last to reach maturity, leaving adolescents with immature and compromised core cognitive abilities for much of this developmental period. This immaturity, when coupled with the increased motivation to achieve rewards observed to coincide with puberty, is thought to be the most likely underlying mechanism contributing to the poor problem solving, poor information processing, poor decision making and risk-taking behaviours often considered to typify adolescence. Evidence suggests that the influence, or presence, of peers further exacerbates these tendencies.

In addition to these normative trajectories of adolescent neurocognitive development, cognitive maturation may be hindered or compromised by several factors including traumatic brain injury, alcohol and substance use, psychiatric and neurodevelopmental disorders and adverse childhood experiences, all of which have the potential to inhibit and disrupt typical development. Notably, adolescent cognitive maturation varies between individuals, and will not be the same for every individual, particularly when impacted upon by the environmental factors listed. Thus, the nature of adolescent cognitive development is not a process that allows us to specify an exact age at which cognitive maturity is definitively reached at an individual level. While we do not therefore recommend the use of stringent age ranges in sentencing guidelines, it is however recommended that the brain’s continued growth, until as late as 25-30 years of age, and the resulting cognitive immaturity, is considered during judicial processes involving adolescents and young people.