How Should A Judge Sentence Animal Cruelty Cases?

posted by Judge_Burke @ 14:30 PM
June 3, 2020

Years ago there was a Minnesota judge, who when faced with the task of sentencing a defendant charged with cruelty to puppies, went off on a diatribe about how the law allows abortion and yet this guy was in court for killing puppies. Needless to say, it was the wrong thing to say and a firestorm of criticism ensued. There are not many times in a judicial career when animal cruelty cases occur, but if you have one there are resources to guide your thinking. Mirko Bagaric (Swinburne Law School) has posted A Rational Approach to Sentencing Offenders for Animal Cruelty: A Normative and Scientific Analysis Underpinning Proportionate Penalties for Animal Cruelty Offenders (South Carolina Law Review, Vol. 71, No. 4, 2019) on SSRN. Here is the abstract:

Over the past few decades, animal welfare groups and others have exposed the immense cruelty that humans inflict on animals. Despite this, the United States has been slow to criminalize comprehensively and penalize appropriately human cruelty towards animals. This is attributable to the lack of consistent, coherent definitions of animal cruelty, and established, considered jurisprudence regarding the objectives and principles that should inform the sentencing of animal cruelty offenders. As a consequence, there is a lack of uniformity and coherence regarding the sentencing of animal cruelty offenders.

This Article addresses this under-researched area of law and proposes an overarching definition of animal cruelty and a rational sentence framework for the sentencing of offenders who commit acts of animal cruelty. We recommend the development of a classification of animal cruelty offenses that differentiates between animals on the basis of their sentience, and encapsulates the varied nature of such offending. Further, we suggest that, in sentencing animal cruelty offenders, courts should pursue the objectives of community protection and rehabilitation to some degree, but most importantly they should attempt to impose penalties that reflect the principle of proportionality, which provides that the harshness of the sanction should match the seriousness of the offense.

We also argue that both classification and sentencing of animal cruelty offenses should be informed by: (i) scientific evidence of animals’ physiology and psychology (which helps explain the nature of animal cruelty); (ii) social norms regarding human interaction with animals; and (iii) moral theory (which establishes why it is ethically imperative to protect certain animals from human cruelty). The reform proposals advanced in this Article will make this area of the law more consistent and coherent, and often result in the imposition of harsher sentences on animal cruelty offenders


How Are The Self Represented Doing?

posted by Judge_Burke @ 15:33 PM
June 2, 2020

From the Brennan Center

Existing Barriers to the Civil Justice System Worsened by Covid-19


Access to the civil justice system for self-represented litigants has worsened as a result of the Covid-19 pandemic, according to Buzzfeed News.


With courthouses closed or operating on a more limited basis, civil courts are struggling to meet the needs of self-represented litigants. The move to remote operations has also assumed that litigants will be able to navigate cases on their own, or have access to the technology required for virtual proceedings, further exacerbating an already strained civil justice gap.


Unlike the criminal justice system, civil litigants also have no constitutional right to counsel. In addition, the digital divide persists as a major access issue for many Americans, especially those who are lower-income or are people of color, who are less likely to have access to the technologies needed to participate in virtual court.


Some state and local court officials have attempted to respond to these challenges. The Florida Supreme Court, for example, has issued a list of best practices for video proceedings. Legal aid organizations, such as the New York Legal Assistance Group, have also created resources to help self-represented litigants navigate the courts during the pandemic.

Developments in the Law Regarding Cell Phones

posted by Judge_Burke @ 15:31 PM
June 1, 2020

Powering on a cell phone to look at the lock screen was a search intruding on defendant’s reasonable expectation of privacy. United States v. Sam, 2020 U.S. Dist. LEXIS 87143 (W.D. Wash. May 18, 2020):

Here, the FBI physically intruded on Mr. Sam’s personal effect when the FBI powered on his phone to take a picture of the phone’s lock screen. See United States v. Jones, 565 U.S. 400, 410 (2012) (plurality opinion) (holding Government searched a car by attaching a GPS device to the car); Bond v. United States, 529 U.S. 334, 337 (2000) (concluding Border Patrol agent searched a bag by squeezing it); Arizona v. Hicks, 480 U.S. 321, 324-25 (1987) (holding officer searched stereo equipment by moving it so that the officer could view concealed serial numbers). The FBI therefore “searched” the phone within the meaning of the Fourth Amendment. See Jardines, 569 U.S. at 5. And because the FBI conducted the search without a warrant, the search was unconstitutional. See Vernonia Sch. Dist., 515 U.S. at 653.

The Government argues that the FBI did not need a warrant because Mr. Sam had no reasonable expectation of privacy in his phone’s lock screen. But that expectation is irrelevant. The reasonable-expectations test first emerged in Katz v. United States, 389 U.S. 437 (1967). Although the test sometimes determines when the Government engages in a search, the Supreme Court has repeatedly emphasized that “a person’s ‘Fourth Amendment rights do not rise or fall with the Katz formulation’” because “the Katz reasonable-expectations test ‘has been added to, not substituted for,’ the traditional property-based understanding of the Fourth Amendment.” Jardines, 569 U.S. at 10-11 (quoting United States v. Jones, 565 U.S. 400, 409 (2012)); see also Carpenter, 138 S. Ct. at 2213. Thus, when the Government gains evidence by physically intruding on a constitutionally protected area-as the FBI did here-it is “unnecessary to consider” whether the government also violated the defendant’s reasonable expectation of privacy. Jardines, 569 U.S. at 10-11. Accordingly, the Court GRANTS Mr. Sam’s motion to suppress as to the evidence the FBI gathered during the second examination of Mr. Sam’s phone.


What Is Happening In Minneapolis?

posted by Judge_Burke @ 16:52 PM
May 29, 2020

What is happening in Minneapolis is not easy to explain. There is of course the police. The Marshall Project reported

“Chronicle of a disaster foretold. Long before George Floyd died in police custody this week after a violent arrest, police officials in Minneapolis were warned that they needed to implement systemic policing reforms, including changes to their use-of-force standards. Some of these reforms were put into place over the past five years, but many others were not. One of the biggest lapses, critics say, centers around the failure of police officials to discipline line officers who engaged in excessive force and other misconduct. TMP’s Jamiles Lartey and Simone Weichselbaum have our story. THE MARSHALL PROJECT More: Why the Minneapolis police offered such a militarized response to the protests. THE WASHINGTON POST

But there is more than just how the police acted and reacted. The truth is the leaders of the justice system, myself included, knew that there were problems. There was a hurricane coming which we were not prepared for.

Perhaps the reason we are so good about confronting natural disasters is they come upon us so quickly, and they are so ferocious and so graphic.

Our nation has seen the horror that Hurricanes Harvey and Irma caused. What happened was not simply the loss of life, but the ravaging and destruction of communities that at best will take years to rebuild. There is no silver lining in this tragedy. Yes, we came together. Yes, the traditionally broken Congress acted swiftly to fund a response, but if you are a victim it will take a long time to heal. Or, is there a silver lining?

Perhaps we learned that if we act in concert, even the most generational catastrophes can be overcome. Swiftly, every living U.S. president joined to plead for donations and support for the victims. People of faith opened their hearts, and in a nation divided by partisanship to the extreme, there was little of it. People are sending money to charities. They are, occasionally, in private crying about the destruction. Everyone knows this hurt.

Manmade disaster

Hurricanes produce a natural tragedy. This recent experience shows we are a nation resilient and prepared to confront the worst. But, there is a third hurricane we cannot ignore. This one is not a natural disaster. The disaster is the manmade racial division and bigotry that exists in our country. If we do not address this category 5 hurricane, we are doomed to a fate equal to the destruction wrought by Hurricanes Harvey and Irma.

Good parents worry about their children. Worry is one of the joys of being a parent. But there are too many African-American parents of sons who worry about what may happen to them as young black men. Will they be stopped by the police? Will something get out of hand? The hurricane in those African-American parents’ lives is a lifetime of confronting bigotry. How do you explain the Ku Klux Klan to a 6-year-old child? If you are from the South, how do you explain to your child who these Confederate soldiers with statues were?

The need to confront racial inequality and bigotry

We are a nation who believes in American exceptionalism. But, for us to achieve that exceptionalism we need to respond to the imperative of confronting the racial inequality and bigotry that has for too long been part of our nation.

The hurricane that is bearing down on our values is every bit as dangerous as Irma and Harvey. There will not be a 24-hour news cycle about racial division and bigotry, but these issues will surely be as destructive as the hurricanes.

Perhaps the reason we are so good about confronting natural disasters is they come upon us so quickly, and they are so ferocious and so graphic. Almost everyone knows denial is not a safe shelter. Maybe more of us need to be shaken by pictures of the bewildered faces of small children who cannot understand the brutal part of our nation’s racial history. Maybe more of us need to hear the agony of mothers’ fear for the fate of their African-American sons. There are people who are in some sense worn out about the struggle for equality. Like the people who do not respond to “Evacuate Now!,” there are too many people in denial and willing to risk their lives and others’ just to ride out the storm.

Parable of two wolves

Our nation has struggled and been divided about racial inequality and bigotry. There is a parable of a grandfather teaching his grandson about life:

“A fight is going on inside me,” he said to the boy.

“It is a terrible fight and it is between two wolves. One is evil – he is anger, envy, sorrow, regret, greed, arrogance, self-pity, guilt, resentment, inferiority, lies, false pride, superiority, and ego.” He continued, “The other is good – he is joy, peace, love, hope, serenity, humility, kindness, benevolence, empathy, generosity, truth, compassion, and faith. The same fight is going on inside you – and inside every other person, too.”

The grandson thought about it for a minute and then asked his grandfather, “Which wolf will win?”

The grandfather simply replied, “The one you feed.”

A lot of people will contribute money to the victims of the hurricanes. It is the right thing to do, particularly when it is a charitable gift to victims they will never meet. Those gifts are from the good wolf in each of us who believes in generosity and compassion. That same wolf in each of us that must rise up and do something which contributes to the dramatic change this nation must make in how we see all of our neighbors.

Change like this starts within the soul. Want to know what implicit biases you have? Take the Harvard Implicit Bias test. If you are a parent or grandparent, have a conversation with a child about the wolves within each of us. And the next time you hear someone say they can ride out the storm of injustice, tell them how dangerous that is.


Who Would Have Thought To Consult With The Dictionary

posted by Judge_Burke @ 13:30 PM
May 29, 2020

Eleventh Circuit Finds Judges Can Take Judicial Notice of Dictionary Definitions

By Evidence ProfBlogger

Federal Rule of Evidence 201  covers judicial notice, and subsections (a) and (b) state the following:

(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.

(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

So, can a judge take judicial notice of dictionary definitions? That was the question addressed by the Eleventh Circuit in its recent opinion in Robinson v. Liberty Mutual Insurance Company, 2020 WL 2315763 (11th Cir. 2020).

In Robinson, after the Robinsons moved into their home, they discovered an infestation of the highly venomous brown recluse spider. Following an attempt to eradicate the infestation, the Robinsons obtained a homeowners policy from Liberty Mutual. That policy “insure[d] against risk of direct loss to property…only if that loss is a physical loss to property.” But the policy excluded from coverage any loss “[c]aused by… [b]irds, vermin, rodents, or insects.” Liberty Mutual cited that exclusion in its letter denying coverage for a claim the Robinsons filed for damage to their home after further attempts to eradicate the infestation failed.

After the Robinsons sued Liberty Mutual for breach of contract, the district court dismissed their complaint, finding that brown recluse spiders are both insects and vermin, with the Eleventh Circuit later affirming. Both courts took judicial notice of dictionary definitions, noting, inter aliathat

All dictionaries we have reviewed, both modern and old, list spiders as an example of an “insect.” See, e.g.Insect, Oxford English Dictionary Online (last visited May 9, 2020), (in American English), Collins Dictionary Online (last visited May 9, 2020),’s Collegiate Dictionary (11th ed. 2007); InsectWebster’s Third New International Dictionary(1993); InsectWebster’s New International Dictionary (2d ed. 1961); InsectWebster’s New International Dictionary (1st ed. 1920); and

Brown recluse spiders are also “vermin” under the ordinary meaning of that term. Vermin include “small common harmful or objectionable animals (as lice or fleas) that are difficult to control.” VerminMerriam-Webster’s Collegiate Dictionarysupra. The term refers to “noxious or objectionable” creatures and includes “creeping or wingless insects (and other minute animals) of a loathsome or offensive appearance or character, esp. those which infest.” Vermin, Oxford English Dictionary Online (last visited May 9, 2020), also Vermin, American Heritage Dictionary of the English Language Online (last visited May 9, 2020),’s Third New International Dictionarysupra.

The Eleventh Circuit reject[ed] the Robinsons’ argument that the district court could not take “judicial notice” of dictionary definitions without first affording them a hearing. See Fed. R. Evid. 201. Rule 201 permits courts to take notice of “an adjudicative fact” that is “generally known” and “whose accuracy cannot reasonably be questioned,” so long as it affords the parties an opportunity to be heard on the propriety of doing so if requested. Fed. R. Evid. 201(a)-(b), (e). But Rule 201 “governs judicial notice of an adjudicative fact only, not a legislative fact.” Fed. R. Evid. 201(a). “[A]djudicative facts are those developed in a particular case,” while “[l]egislative facts are established truths, facts or pronouncements that do not change from case to case but apply universally.” W. Ala. Women’s Ctr. v. Williamson, 900 F.3d 1310, 1316 (11th Cir. 2018) (internal quotation marks omitted); see also Fed. R. Evid. 201(a) advisory committee’s note to 1972 proposed rule (“Adjudicative facts are simply the facts of the particular case.”). Dictionary definitions establish legislative facts when used to answer a question of law, such as how to interpret contractual terms. See Fed. R. Evid. 201(a) advisory committee’s note to 1972 proposed rule (“Legislative facts … are those which have relevance to legal reasoning and the lawmaking process … in the formulation of a legal principle or ruling by a judge or court….”) (emphasis added).


How Serious Is The Problem Of Fines And Court Fees?

posted by Judge_Burke @ 13:30 PM
May 28, 2020
For the first time, the Federal Reserve Board has analyzed the economic burdens of court debt. This is a “huge accomplishment,” Fines Fees Justice Center’s Judge  Lisa Foster told Law360. “Until we get folks thinking about it, we won’t be able to get to a point where we can end it.”

Jury Trials At Your Local Gym?

posted by Judge_Burke @ 13:30 PM
May 27, 2020

Is Anywhere Safe for a Jury Trial During the Covid-19 Pandemic? Try a School Gym,” by WSJ’s Rebecca Davis O’Brien:

“In the remote Kootenai Valley of northwestern Montana, the Libby Middle High School gymnasium has always been the main venue for youth sports and awards ceremonies. Beginning next month, it will become a courtroom. …

“State courts handle about 106,000 trials each yeartens of thousands of which have already been delayed because of the coronavirus shutdowns, said Paula Hannaford-Agor, director of the center for jury studies at the National Center for State Courts, a nonprofit organization now leading Covid-19 response groups of judges and court administrators from around the country. … The result will be a patchwork of cautious improvisations, reflecting distinct court rules, local public-health guidance and the varying tolls Covid-19 has taken state to state. The proceedings — whether in gymnasiums or in reconfigured courtrooms or online — will bear little resemblance to the formal trials familiar to most Americans.”


Jury Trials By Video

posted by Judge_Burke @ 13:11 PM
May 26, 2020

Officials in a Texas county have begun what is thought to be the first jury trial to be held completely by video conference as the coronavirus pandemic continues to force Americans to avoid gathering in public.

Reuters reported that jury selection began last Monday over video conference for a summary jury trial in the Collin County District Court, in which insurance giant State Farm is accused of not paying out a claim to cover property damage caused by a storm in 2017.

The trial was originally set to be held in March, but like many around the country was delayed due to the pandemic, which has effectively prohibited juries from gathering. One Texas Supreme Court justice told the news service that the pandemic has vexed legal experts around the country.

“You can’t drag people down to the courthouse and make them sit together for days at a time,” Texas Supreme Court Chief Justice Nathan Hecht said. “It’s just too dangerous.”

“It’s just imponderable,” he added. “There are hundreds of people over the country studying how do we get back to jury trials.”


Is Criminal Justice Reform A Place For Bi-Partisanship?

posted by Judge_Burke @ 13:30 PM
May 22, 2020

Over the past decade, the longstanding challenge of criminal-justice reform has emerged into the spotlight with a new twist: Republicans and Democrats alike are on board. But if both parties want to lower the incarceration rate, why are our jail and prison populations still so large? The latest series from POLITICO Magazine works to answer this important question and take a deeper look into what it will take to make progress in the policy and politics of justice reform. READ THE FULL ISSUE.


From the Brennan Center:

An increasing number of state high courts are working to mitigate the impact of implicit racial bias in jury selection, according to The Marshall Project.
In 1986, the U.S. Supreme Court held that race discrimination in jury selection is unconstitutional in Batson v. Kentucky, and since then, prosecutors have been required to provide a “race neutral” reason for striking prospective jurors. Despite Batson, the discriminatory use of preemptive strikes has continued across the country because courts have been willing to accept almost any reason from prosecutors as race neutral, even if the result is an all-white jury.
Over the past two years, however, state supreme courts in WashingtonConnecticut, and California have taken steps beyond Batson to protect against race-based jury selection. Earlier this month, North Carolina became the latest state to strengthen protections against jury selection bias, with the state’s high court issuing a decision that trial judges are required to provide more scrutiny for allegations of racial discrimination in jury selection.