Archive for April, 2020

What Is Happening With Domestic Violence?

posted by Judge_Burke @ 15:14 PM
April 28, 2020

From the THE MARSHALL PROJECT

Interpreting the sound of silence. A spate of recent stories suggest that domestic violence is rising across the country as couples shelter in place and victims are placed in close and consistent confinement with their abusers. But a review of data from three cities—Chicago; Austin, Texas; and Chandler, Arizona—suggests a more complex reality. Domestic abuse reports are not dropping as much as crime overall, and some of the abuse reported is more violent. Moreover, some accused abusers are being released because of fears they may be infected by coronavirus. TMP’s Weihua Li and Beth Schwartzapfel parse the data and the nuances of domestic violence during a pandemic.

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Where To Begin On Insuring An Effective Public Defender System

posted by Judge_Burke @ 15:48 PM
April 27, 2020

Irene Joe (University of California, Davis – School of Law) has posted Structuring the Public Defender (Forthcoming in the Iowa Law Review 2021) on SSRN. Here is the abstract:

The public defender may be critical to protecting individual rights in the U.S. criminal process, but state governments take remarkably different approaches to distributing the services. Some organize indigent defense as a function of the executive branch of state governance. Others administer the services through the judicial branch. The remaining state governments do not place it within any branch of state government, they delegate its management to local counties. This administrative choice has important implications for the public defender’s efficiency and effectiveness. It influences how the public defender will be funded and also the extent to which the public defender, as an institution, will respond to the particular interests of local communities.

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The Decision To Require Unanimous Juries Was Not Unanimous

posted by Judge_Burke @ 21:24 PM
April 24, 2020

From the Washington Post

 

April 20, 2020 at 1:27 p.m. CDT
The Supreme Court on Monday ruled 6 to 3 that state court juries must be unanimous to convict a defendant of a serious crime, a decision that scrambled the court’s usual ideological lineups and prompted soul-searching among some justices about when to overturn precedent.Louisiana and Oregon are the only two states that do not require unanimity for major crimes, and Justice Neil M. Gorsuch said each state’s decision was rooted in discrimination. Although unanimity is not mentioned in the Constitution’s guarantee of an unbiased trial, he wrote, it is clear what is required.

“Wherever we might look to determine what the term ‘trial by an impartial jury trial’ meant at the time of the Sixth Amendment’s adoption — whether it’s the common law, state practices in the founding era, or opinions and treatises written soon afterward — the answer is unmistakable,” Gorsuch wrote. “A jury must reach a unanimous verdict in order to convictBut it was not so obvious to a previous court. In a 1972 opinion, the Supreme Court ruled 5 to 4 that the Sixth Amendment requires unanimous verdicts in federal trials. But one of the five, Justice Lewis F. Powell Jr., said unanimous verdicts were not required in state trials.

Whether to overrule the decision in Apodaca v. Oregon and a companion case, Johnson v. Louisiana — and whether Powell’s view was a precedent at all — deeply divided the court.

 

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This Is Sad

posted by Judge_Burke @ 14:31 PM
April 23, 2020

In an ideal world the commitment to transparency that courts should have would allow for the disclosure of the names of jurors in high profile cases. Responsible journalists could report on the jurors’ experience and the vast majority of the time that experience is positive. But then there is this,

“Jurors of the Day: All 12 of Trump operative Roger Stone’s federal jurors asked their trial judge to continue to protect their anonymity in the face of threats from the president’s supporters.” See more on CNN.

Those jurors request for anonymity is perfectly understandable…..sad…..but understandable.

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Fines, Fees & The Pandemic

posted by Judge_Burke @ 21:18 PM
April 21, 2020

22 million people are now unemployed. Most had jobs just a short time ago. Before the pandemic, there were those who championed reform of fines and fees in the criminal justice system. Even now reforms are happening. Ramsey County Minnesota took a very big step to eliminate many fees, even at a time when the county & court leaders knew that budget challenges lay ahead. But all is not well:

“Pandemic means death, taxes and court fees. Across the country, trials have been postponed, hearings canceled and courthouses closed to limit the spread of COVID-19. But that hasn’t stopped court officials and the police from enforcing obligations to pay outstanding court fines and fees as state and local budgets dry up. In Louisiana, that means drive-thru debt-payment locations at an old bank. In Oklahoma, it means arrests for unpaid debts. In Arizona, it means the government is keeping tax refunds. More bad news? The pressure on local officials to collect these fees will increase as budgets fall further behind. The good news? Some jurisdictions, like Maine and California, have stopped trying to collect some past due amounts. TMP’s Eli Hager has our story. THE MARSHALL PROJECT

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What Is Appropriate Attire For A Court Appearance on Zoom?

posted by Judge_Burke @ 15:02 PM
April 20, 2020

Many of us are getting a bit more casual at work meetings because we’re attending them via video conference from home. Then there’s North Oaks city council member Martin Long, who recently attended a city council meeting from his hot tub in the well-heeled northern St. Paul suburb. As can be seen in an online video recording on the city’s website, about an hour into the April 9 teleconferenced council meeting, the camera on Long starts to move, and it’s apparent that he’s gone outside. He sits down somewhere outside of his house and after a few minutes, he disappears briefly and then reappears and his polo shirt is gone.

From the blog How Appealing “When Court Moves Online, Do Dress Codes Still Matter? The legal profession is rooted in tradition, but social distancing is upending old norms. One judge in Broward County, Fla., asked lawyers to keep it professional during videoconferencing calls. Jacey Fortin has this article in The New York Times.

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Innovation In How Courts Can Be More Effective With The Mentally Ill

posted by Judge_Burke @ 23:57 PM
April 16, 2020

“The Definition of Insanity,” which premiered recently on PBS, looks at the groundbreaking work of judges, advocates and others in Miami to help those suffering from mental illness within the criminal justice system. Here is Lloyd I Sederer M.D.‘s article reviewing the show in PSYCHOLOGY TODAY.

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Who Would Have Thought to Write A Law Review Article on Disorderly Conduct?

posted by Judge_Burke @ 20:25 PM
April 15, 2020

Jamelia Morgan (University of Connecticut School of Law) has posted an abstract of Rethinking Disorderly Conduct (California Law Review, Forthcoming) on SSRN. Here is the abstract:

Disorderly conduct laws are an amalgamation of a number of common law offenses aimed at protecting the public order, peace, and tranquility. Like their common law antecedents, modern day disorderly conduct laws proscribe behaviors such as breach of the peace, physical fighting, and fighting words, and might also criminalize behavior falling within the domain of criminal offenses such as riot, unlawful assembly, and trespass. Contrary to common legal conceptions, the criminalization of disorderly conduct is not only about policing behavior that threatens to disrupt public order or even the public’s peace and tranquility, but also reflects and reinforces deeply rooted discriminatory understandings about what kinds of behavior — and which persons — violate community norms. By relying on a false dichotomy between “order” and “disorder,” disorderly conduct laws construct and reinforce a hierarchy of normative behaviors that are imbued with racism, sexism, and ableism.

Disorderly conduct laws “otherize” certain non-conforming behaviors, de-legitimizing them through the label of “disorderly,” and in doing so exclude certain historically marginalized groups from normative conceptions of community. They do all this in part by prohibiting a wide range of behavior and conferring vast amounts of discretion to law enforcement and private citizens to target individuals for behavior regulation, physical removal, and community exclusion. In this way, disorderly conduct laws delineate and police the normative boundaries of communities. Moreover, these laws also often determine access to shared community spaces resulting in the exclusion of historically marginalized groups within these purportedly “public” spaces. Despite these harms, disorderly conduct laws persist even given the lack of concrete evidence as to the precise nature of the social harm to be prevented in each case. The article’s critique demonstrates how disorderly conduct laws define and construct boundaries of communities. Viewed in this light, the article is situated within ongoing discussion within criminal legal scholarship on the broader question of role of “the community” in criminal law and criminal justice reform. This critique of disorderly conduct offers a site for problematizing unitary models of community in criminal law. The article concludes by identifying pathways to reforming the harms of the disorderly conduct regime by offering a set of reforms that rely less on consensus-driven models and more on contestatory models of democratic participation in criminal justice reform efforts that better account for the multiplicity of communities impacted by criminal law enforcement.

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I’ll See You In Court

posted by Judge_Burke @ 21:53 PM
April 14, 2020

Well, perhaps not.

“Judicial Zoom: Courts rapidly adopting videoconferencing tech to conduct business.” Ryan Lovelace of The Washington Times has an article that begins, “The Zoom videoconferencing platform is fast becoming the judiciary’s technology of choice to conduct business while following social distancing requirements for the coronavirus pandemic.”

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ABA Speaks On The Judicial Ethics of Imposing Fines & Fees

posted by Judge_Burke @ 15:16 PM
April 9, 2020

Formal Opinion 490 March 24, 2020

Ethical Obligations of Judges in Collecting Legal Financial Obligations and Other Debts. Here is the summary:

This opinion addresses the ethical requirement of judges under the Model Code of Judicial Conduct, Rules 1.1 and 2.6, to undertake a meaningful inquiry into a litigant’s ability to pay court fines, fees, restitution, other charges, bail, or civil debt before using incarceration as punishment for failure to pay, as inducement to pay or appear, or as a method of purging a financial obligation whenever state or federal law so provides. Meaningful inquiry is also required by Rules 1.2, 2.2, and 2.5 as a fundamental element of procedural justice necessary to maintain the integrity, impartiality, and fairness of the administration of justice and the public’s faith in it. According to the same Rules, a judge may not set, impose, or collect legal financial obligations under circumstances that give the judge an improper incentive either to multiply legal financial obligations or to fail to inquire into a litigant’s ability to pay. The opinion also discusses innovative guidance on best practices for making ability to pay inquiries, including model bench cards, methods of notice, and techniques for efficiently eliciting relevant financial information from litigants.

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