Archive for June, 2020

Jury Trials

posted by Judge_Burke @ 21:23 PM
June 30, 2020

From the Brennan Center:

In-Person Jury Trials Resume in Some Jurisdictions with Social Distancing
After initially closing their doors to the public and suspending in-person proceedings due to the Covid-19, some courts have begun holding in-person jury trials with social distancing.
Oregon was one of the first states to resume in-person jury trials. For this first trial, the Multnomah County judge asked jurors to maintain distance throughout the process and provided masks but wearing them was optional. “There’s an inherent conflict between the rights of someone on trial and our social distancing policies,” said Dylan Potter, the defense attorney in the case. His client was found guilty.
California and Ohio have begun to hold in-person socially distanced jury trials as well. But other state courts have taken a different approach. Notably, Texas has experimented with remote jury trials. Last month, a judge in Collin County held a day-long civil trial over Zoom in which the verdict was nonbinding.
Both defenders and prosecutors have raised concerns with the use of virtual jury trials, citing evidentiary concerns, technology glitches, lack of privacy, among other drawbacks.

ICE Arrests Around the Courthouse

posted by Judge_Burke @ 11:55 AM
June 29, 2020
From the Brennan Center: Federal Judge Bans ICE Courthouse Arrests in New York State 



On June 10, U.S. District Court Judge Jed Rakoff of the Southern District of New York ruled that U.S. Immigration and Customs Enforcement (ICE) must stop arresting immigrants in and around New York state courthouses.


Judge Rakoff’s decision was issued in State of New York et al. v. ICE, a case in which the plaintiffs alleged that ICE courthouse arrests “make certain parties and witnesses fear coming to court, but the temporary chaos they create disrupts court proceedings and makes it impossible for judges to do their jobs effectively.” A 2019 report from the Immigration Defense Project found that in 2018, ICE made 178 courthouse arrests in New York, compared to 11 arrests made in 2016.


Advocates and lawyers in other states have likewise pushed back against ICE courthouse arrests. At the end of May, the Brennan Center filed an amicus brief on behalf of 19 former Massachusetts judges, arguing that ICE courthouse arrests undermine equal access to the courts. Other states, including Oregon, New Jersey, and California, have also taken action to prevent such arrests from taking place.


A Tribute To Judge Steve Leben

posted by Judge_Burke @ 13:30 PM
June 26, 2020

No member of the American Judges Association has had the impact on the organization as Judge Steve Leben.  While he will continue to be a member and make contributions to the judiciary, today marks his last day as a judge.  Later this summer he will begin a new chapter of his career as a law school faculty member at at the University of Missouri-Kansas City School of Law.

Court Review is the premier publication for judges in the United States and Canada.  Yes, the numerous authors made significant contributions with their submissions, but it was Steve’s leadership role as the editor that brought it all together.  Steve was a journalism major and while one might speculate he assumed this role to vicariously life the life of a journalist, editor of Court Review was a task that required him to give countless hours with very little praise or thanks.  But there was more.

Steve served as an officer, President and most recently as the Chair of the Budget Committee.  It was during his tenure as President that the American Judges Association adopted its first White Paper on Procedural Fairness.  It was Steve’s idea to trademark the logo “Voice of the Judiciary,” but logos without substance are meaningless.  Steve has been, throughout his career, a person of substance.  Later, Steve would co-found the Procedural Fairness web site,  Yale Professor Tom Tyler, who is the academic “parent” of procedural fairness, said of those efforts, “(the) White Paper and the California Initiative put the idea of procedural justice on the map in legal settings.  And the website at the NCSC has kept it moving forward.  The fact that Steve was honored at the USSC (United States Supreme Court when he received the Rehnquist Award) seems very fitting and reflects the high esteem with which your efforts are held in the state court system.  When I look at the NCSC website today I see efforts all over the states.”

Throughout our careers, each of us has known people who made a difference and that is what Steve did.  We should not think of his decision to leave the bench as a sad day for the judiciary.  It is not.  Steve Leben will continue to make a difference.


Reasonable Doubt

posted by Judge_Burke @ 15:14 PM
June 25, 2020

Michael Conklin (Angelo State University) has posted Reasonable Doubt Ratcheting: How Jurors Adjust the Standard of Proof to Reach a Desired Result on SSRN. Here is the abstract:

Research has already been conducted into how jurors alter the reason-able doubt standard based on different legal definitions of the standard provided and perceived harshness of punishment. This article discusses the findings of research that is the first to analyze how jurors also alter the reasonable doubt standard based on their sympathy toward the defendant — namely, how jurors “ratchet up” reasonable doubt to acquit sympathetic defendants and “ratchet down” reasonable doubt to convict unsympathetic defendants. Political affiliation and gender are also analyzed for potential causal relationships with this effect. The results of this novel re-search provide valuable information for trial attorneys, judges, and advocates of criminal justice reform.


American Bar Association Programs On The Pandemic

posted by Judge_Burke @ 19:52 PM
June 23, 2020

From the ABA website:

Trending CLE: COVID-19 Collections

The spread of COVID-19 (coronavirus) is having significant legal implications across the sector: from remote working to dealing with the effects of the pandemic on business, firms, employees and associates. The ABA is pleased to be able to offer a variety of CLE webinars and on-demand products that specifically address some of your questions on the effects of this outbreak. We are pleased to feature free-to-member live webinars for your legal education. Get CLE credit and get informed!


Bail & Race

posted by Judge_Burke @ 14:08 PM
June 18, 2020

David ArnoldWill Dobbie and Peter Hull (Princeton University, Harvard University – Harvard Kennedy School (HKS) and University of Chicago – Becker Friedman Institute for Economics) have posted Measuring Racial Discrimination in Bail Decisions on SSRN. Here is the abstract:

We develop new quasi-experimental tools to measure racial discrimination in the context of bail decisions. Observational comparisons of white and black pretrial release rates suffer from omitted variables bias when there are unobserved racial differences in pretrial misconduct potential. We show that the bias in these observational comparisons is a function of average white and black misconduct risk, which can be estimated from the quasi-random assignment of bail judges. Estimates from New York City show that less than one-third of the release rate disparity between white and black defendants is explained by unobserved differences in misconduct potential, with more than two-thirds explained by racial discrimination. We then develop a hierarchical marginal treatment effects model that imposes additional structure on the quasi-experimental variation to investigate the drivers of this discrimination. Model estimates show that discrimination in bail decisions is driven by both racial bias and statistical discrimination, with the latter coming from a higher level of average risk and less precise risk signals for black defendants.


Now What?

posted by Judge_Burke @ 13:03 PM
June 17, 2020

There are many courts in the United states and Canada that are struggling with how to fairly sentence in an era of a pandemic.

Roee Sarel (Institute of Law and Economics, University of Hamburg) has posted Crime and Punishment in Times of Pandemics on SSRN. Here is the abstract:

How should we think about crime deterrence in times of pandemics? The economic analysis of crime tells us that potential offenders will compare the costs and the benefits from crime and from innocence and then choose whichever option that is more profitable. We must therefore ask ourselves how this comparison is affected by the outbreak of a pandemic and the policy changes which may accompany it, such as governmental restrictions, social distancing, and economic crises. Using insights from law and economics, this article investigates how the various components in the cost-benefit analysis of crime might change during a pandemic, focusing on COVID-19 as a test case. Building on classical theoretical models, existing empirical evidence, and behavioral aspects, the analysis reveals that there are many potentially countervailing effects on crime deterrence. The article thus highlights the need to carefully consider which aspects are applicable given the circumstances of the pandemic, as whether crime deterrence will increase or decrease should depend on the strength of the effects at play.


What Should A Judge Say?

posted by Judge_Burke @ 13:41 PM
June 16, 2020

Explanations are critically important for litigants and the public to understand why judges decide cases. We tend to be good at the law but not necessarily good at explaining ourselves. Want a practice pointer? Every educational program you go to until you retire from the bench sit there , listen and think how might I explain this. It isn’t necessarily about being affirmed on appeal. A judge I admired once said, “I have been affirmed so many times by the court of appeals that I have lost all respect for them.” The reason for explanations is each decision incrementally advances or detracts from confidence in the courts. Judges can be eloquent and judges can say incredibly rude things particularly when making oral rulings. And sometimes there is just a fine line where reasonable minds differ as illustrated by this recent commentary about a Canadian case.

Revisiting R v. S. (R.D.), 1997: A Case About a Black Judge on “Trial” for Acquitting a Black Boy 

by Heather Douglas

“It wasn’t that long ago in Canada when our justice system put a Black judge on trial for acquitting a Black boy of allegedly running his bike into an officer’s leg – her offence? Speaking truth to power by stating that sometimes police over-react when dealing with Black youth.” – Professor David Tanovich @dtanovich 

In R v S. (R.D.), 1997 CanLII 324 (SCC), R.D.S. was a young person accused of assaulting a police officer. At trial, the testimonies of the police officer and the accused differed in material ways. The trial judge acquitted R.D.S. after trial. The case was appealed on the issue of whether there was a reasonable apprehension of bias.

At trial, R.D.S. testified that while riding his bike to his grandmother’s house, he saw his cousin being arrested by a police officer. R.D.S. tried to speak to his cousin. The police officer told him to “Shut up, shut up, or you’ll be under arrest too.” When R.D.S. continued to ask his cousin if he should call his mother, Constable Steinburg arrested R.D.S. and put him in a choke hold. R.D.S. stated that he could not breathe. R.D.S. denied running his bike into anyone or pushing the police officer.

In the course of the trial judge’s judgment, she commented that:











Justice Major writing for the dissent (Lamer C.J., Sopinka J., and Major J.) stated that the appeal should not be decided on questions of racism but instead on how courts decide cases. “A fair trial is one that is based on the law, the outcome of which is determined by the evidence… Did the trial judge here reach her decision on the evidence presented at the trial or did she rely on something else?”

Justice Major wrote that the judge’s statement “was stereotyping all police officers as liars and racists, and applied this stereotype to the police officer in the present case… Whether racism exists in our society is not the issue. The issue is whether there was evidence before the court upon which to base a finding that this particular police officer’s actions were motivated by racism. There was no evidence of this presented at trial.”

Justice Major continued that the life experience of a judge is an important ingredient to understand human behaviour and assess credibility. However, it has no value in reaching conclusions for which there is no evidence. “Life experience is not a substitute for evidence… In my opinion the comments of the trial judge fall into stereotyping the police officer… judges cannot judge credibility based on irrelevant witness characteristics.”

Justice L’Heureux-Dube and Justice McLachlin found the comments of the trial judge Justice Sparks to reflect an appropriate recognition of the facts in evidence in the case and the context of the case, which was well known to Justice Sparks and to any well-informed member of the community. for the rest of the commentary:


What Should Our Court Do About The Pandemic?

posted by Judge_Burke @ 21:14 PM
June 11, 2020

The resources of federal courts are different from those in state and Canadian courts but this report may still be of interest:

A comprehensive new report on conducting federal jury trials and convening grand juries during the pandemic details the number of factors for courts to consider, from changes to prospective juror questionnaires to creating safe spaces for jurors to deliberate safely.

“Jury trials are the bedrock of our justice system, expressly provided for in the Constitution and in the Sixth and Seventh Amendments,” the report says. “When each court determines that the time is right, the judiciary must reconstitute jury trials during the COVID-19 pandemic.”

The newly released 16-page report was written by a group of federal trial judges, court executives, and representatives from the federal defender community and the Department of Justice as part of the work of the COVID-19 Judiciary Task Force.


Ending Mass Incarceration

posted by Judge_Burke @ 13:30 PM
June 9, 2020

POLITICO Magazine Justice Reform: The Decarceration Issue, presented by Verizon : Over the past decade, the longstanding challenge of criminal-justice reform has emerged into the spotlight with a new twist: Both Republicans and Democrats are on board with reform. But if both parties want to lower the incarceration rate, why are U.S. jail and prison populations still so high? The latest series from POLITICO Magazine searches for answers to this important question and takes a deeper look into what it will take to make progress toward real justice reform. READ THE FULL ISSUE.