Just How Creative Should You Be in Your Written Orders?

posted by Judge_Burke @ 18:30 PM
January 16, 2018

Every once in a while judges issue orders that are quite creative. Those orders are usually radically different. For many judges, they acknowledge or are even envious about the creativity of those orders, but their tone makes them uncomfortable. Snarky orders don’t engender trust even if they do get widely circulated. At the same time boring orders don’t get circulated and may not get read very carefully.

So with those thoughts, if you have not seen this order it clearly is in the creative category:  US v. Bishop






Racism in Jury Verdicts

posted by Judge_Burke @ 16:18 PM
January 10, 2018

Our nation has a history that betrays the values of equality. Racism has an ugly part in our history. And so the decision of the United States Supreme Court in a Georgia death penalty case is interesting.

The U.S. Supreme Court Monday granted relief to a condemned Georgia man whose capital case was marked by juror bias.

The juror in question reportedly told investigators after the trial that there were two kinds of black people in the world: “ni–ers and “regular black folks.” This, the justices concluded, raised questions about that juror’s service on the jury. The case now has been returned to the lower courts for review. Justice Thomas wrote a dissent on behalf of himself and two colleagues.

The New York Times has the story.


Applying the 4th Amendment in the Age of Technology

posted by Judge_Burke @ 15:30 PM
January 8, 2018

Shawn Marie Boyne (Indiana University Robert H. McKinney School of Law) has posted StingRay Technology, the Exclusionary Rule, and the Future of Privacy: A Cautionary Tale on SSRN.

Here is the abstract:

Sometime in 2017, smartphone ownership in the United States will exceed 222 million users which will be equivalent to a market penetration rate of over 85 percent. Although millions of individuals in the United States enjoy the convenience of using smartphones, it is likely that few of those citizens understand that government agencies have used those same phones to track the location of individuals in real time as well as to access the significant and previously private information stored on those devices without a warrant. The public’s general lack of awareness of the intrusiveness of current law enforcement surveillance is but one factor responsible for creating this knowledge gap. Another root of the gap however is that the judicial institutions that we entrust with protecting our rights cannot preemptively adjust constitutional doctrines to parallel technological change. Indeed, judicial institutions have typically adopted a cautious approach to adjusting constitutional doctrines to technological developments. For example, although Apple introduced the IPhone in January 2007, it took seven years for the Supreme Court to hold that government agents must obtain a warrant to search smartphones seized incident to arrest. This article argues that the widespread deployment of cell-site-simulator technology and its warrantless use by law enforcement agencies illustrates the weakness of our current structure of Fourth Amendment protections and that we cannot rely on the judicial branch to adequately protect individual privacy rights in an age of rapidly developing technology.

In Part I of this article, I highlight the evolution of the use of StingRay technology in criminal investigations in the United States and the efforts by privacy rights organizations to elevate the standard of judicial scrutiny of those devices. In Part II, I examine two ground-breaking 2016 court decisions in which courts for the first time suppressed evidence obtained through the use of cell-site simulator technology. While United States v. Lambis is the first instance where a federal court suppressed stingray-related evidence, the decision of the Maryland Court of Special Appeals in State of Maryland v. Andrews, is the first state appellate decision to uphold a trial court’s CSS-related suppression order. Finally in Part III, I argue that the history of the government’s use of CSS technology demonstrates that in a common law system restricted to litigating current cases and controversies, the judicial branch standing alone cannot adequately protect individual privacy rights.


The Second Amendment and Domestic Violence

posted by Judge_Burke @ 15:17 PM
January 5, 2018

There are terrorists in our country…but they are not shadowy figures from the Middle East. They are perpetrators of domestic violence. Each year more women and children die from domestic violence in numbers far greater then those who die from terrorists. And so there are bans on possession of guns by those who commit acts of domestic violence. But, do those bans violate the Second Amendment?

The Associated Press reports:

A divided federal appeals court panel on Thursday upheld the U.S. ban on guns for people convicted of misdemeanor domestic violence, even decades after the offense.

The 6th U.S. Circuit Court of Appeals judges voted 2-1 to affirm a lower court’s dismissal of the challenge to by an Ohio man who pleaded no contest in 1997 to a domestic violence charge for “knowingly causing or attempting to cause harm” to his then-wife.

The man, Terry Stimmel, was blocked in 2002 from buying a gun at a Walmart store after a background check showed his domestic violence record. He said he wanted the gun to “defend his home and family.”

Stimmel appealed unsuccessfully to the FBI and then filed a challenge to the U.S. statute on domestic violence and guns, saying it unconstitutionally undercuts his Second Amendment right to keep and bear arms and his right to equal protection under the law. He has had no other conviction but contends he has little chance of getting a pardon or otherwise having his misdemeanor conviction set aside.

However, Judge Richard Allen Griffin, joined by Judge Helene White, said federal courts have consistently upheld the gun ban for misdemeanor domestic violence convicts, who were included in a 1996 law intended to disarm domestic abusers who weren’t prosecuted for felonies but posed continued risks of violence to their families.

“The record contains sufficient evidence to reasonably conclude that disarming domestic violence (misdemeanor convicts) is substantially related to the government’s compelling interest of preventing gun violence, and particularly, domestic gun violence,” Griffin wrote.

Judge Danny Boggs dissented, saying the government offered, “at best, minimal evidence” that someone with no other domestic violence history presents a heightened risk decades later.” You can access the  ruling of the U.S. Court of Appeals for the Sixth Circuit at this link. Senior Circuit Judge Danny J. Boggs issued this dissenting opinion.


Homeless Court in Hawaii

posted by Judge_Burke @ 15:59 PM
January 3, 2018

From Honolulu Civil Beat, via the NACDL news scan:

He was four years into homelessness and had been to court so many times the bailiff recognized him. Prichett told the judge he wanted an attorney. At the Office of the Public Defender, he learned about Community Outreach Court, a program that would resolve his legal issues and lead him to services that put a roof over his head. 

. . .

Nearing its first anniversary, the fledgling court program has helped Prichett and 34 other people dig themselves out of what he calls “that deep hole with all the tickets” in exchange for community service hours rather than jail time or fines.

The program is available to defendants with low-level, nonviolent offenses, including being in a park after hours, camping without a permit and driving without a license.


The Seven Principles of Public Life

posted by Judge_Burke @ 14:30 PM
December 28, 2017

Great Britain has been rocked by its own set of scandals and in response to the desire to achieve public trust in government, has created a commission to develop principles of public life. While they may seem self evident as you read them, they are a good reminder of what public life should be about. 

1. Selflessness

Holders of public office should act solely in terms of the public interest.

2. Integrity

Holders of public office must avoid placing themselves under any obligation to people or organisations that might try inappropriately to influence them in their work. They should not act or take decisions in order to gain financial or other material benefits for themselves, their family, or their friends. They must declare and resolve any interests and relationships.

3. Objectivity

Holders of public office must act and take decisions impartially, fairly and on merit, using the best evidence and without discrimination or bias.

4. Accountability

Holders of public office are accountable to the public for their decisions and actions and must submit themselves to the scrutiny necessary to ensure this.

5. Openness

Holders of public office should act and take decisions in an open and transparent manner. Information should not be withheld from the public unless there are clear and lawful reasons for so doing.

6. Honesty

Holders of public office should be truthful.

7. Leadership

Holders of public office should exhibit these principles in their own behaviour. They should actively promote and robustly support the principles and be willing to challenge poor behaviour wherever it occurs.

For further information on the 7 principles and the work of the Committee on Standards in Public Life, visit the Committee’s website and blogsite.


Assessing Risk Assessment in Action

posted by Judge_Burke @ 15:30 PM
December 27, 2017

In recent years there has been an increasing use of assessment tools in an effort to achieve “evidence base sentencing.” For some the tools have become not an aid to judgement, but a substitute for it. There are notable critics such as former Attorney General Holder. There are critics who warn that some of the actuarial tools just are not very good predictors or have their own set of biases. Professor Megan Stevenson has written this interesting new paper available via SSRN.

Here is the abstract:

Recent years have seen a rush towards evidence-based tools in criminal justice.  As part of this movement, many jurisdictions have adopted actuarial risk assessment to supplement or replace the ad-hoc decisions of judges.  Proponents of risk assessment tools claim that they can dramatically reduce incarceration without harming public safety. Critics claim that risk assessment will exacerbate racial disparities. Despite extensive and heated rhetoric, there is virtually no evidence on how use of this “evidence-based” tool affects key outcomes such as incarceration rates, crime, or racial disparities.  The research discussing what “should” happen as a result of risk assessment is hypothetical and largely ignores the complexities of implementation.

This Article is one of the first studies to document the impacts of risk assessment in practice.  It evaluates pretrial risk assessment in Kentucky, a state that was an early adopter of risk assessment and is often cited as an example of best-practices in the pretrial area.  Using rich data on more than one million criminal cases, the paper shows that a 2011 law making risk assessment a mandatory part of the bail decision led to a significant change in bail setting practice, but only a small increase in pretrial release. These changes eroded over time as judges returned to their previous habits.  Furthermore, the increase in releases was not cost-free: failures-to-appear and pretrial crime increased as well.  Risk assessment had no effect on racial disparities in pretrial detention once differing regional trends were accounted for.

Kentucky’s experience does not mean we should abandon risk assessment, but it should temper the hyperbolic hopes (and fears) about its effects.  Risk assessment in practice is different from risk assessment in the abstract, and its impacts depend on context and details of implementation.  If indeed risk assessment is capable of producing large benefits, it will take research and experimentation to learn how to achieve them.  Such a process would be evidence-based criminal justice at its best: not a flocking towards methods that bear the glossy veneer of science, but a careful and iterative evaluation of what works and what does not.


The answer is not in our lifetime. But musing about what should happen is reasonable. There is an interesting paper (and the title of this post) written by Professor Brittany Deitch now available via SSRN.

Here is the abstract:

The criminal defendant’s right to a jury trial is enshrined within the U.S. Constitution as a protection for the defendant against arbitrary and harsh convictions and punishments.  The jury trial has been praised throughout U.S. history for allowing the community to democratically participate in the criminal justice system and for insulating criminal defendants from government oppression.  This Article asks whether the jury selection process is consistent with the defendant-protection justification for the Sixth Amendment right to a trial by jury. Currently, the prosecution and defense share equal control over jury selection.  Looking to the literal text of the Sixth Amendment, the landmark case on the right to a jury trial, and the Federal Rules of Criminal Procedure for guidance, this Article explains that jury selection procedures undermine the defendant-protection rationale for the Sixth Amendment right to a jury trial.  Because the Sixth Amendment grants this right personally to the defendant and the Supreme Court has construed this right as intending to protect the defendant from governmental overreach, the prosecution should not be entitled to select the very jury that is supposed to serve as a check against its power.  After concluding that symmetrical power in jury selection undermines the constitutional purpose of the jury trial, this Article proposes two possible remedies.


Have We Learned Nothing from Ferguson?

posted by Judge_Burke @ 16:20 PM
December 22, 2017

Apparently the US Department Administration did not. There is a story in The New York Times today:  Justice Dept. Revokes 25 Legal Guidance Documents Dating to 1975. Among these legal guidance documents was the Department of Justice’s advice in response to Ferguson and the imposition of fines and fees.

Throughout our country there are far too many fines and fees that are not just unfair to the poor, they ultimately undermine the perception that judges are fair. With the decline in trust in government institutions, courts need to be vigilant that of the three branches of government, the judiciary’s power (and independence) comes from the public’s trust in the fairness of judges. Leadership on this must now come from state courts and individual judges willing to say, “I will not do this anymore.” In effect, fines and fees have transformed the halls of justice into for-profit courts.


What Does the Public Think of Judges & Courts?

posted by Judge_Burke @ 15:30 PM
December 22, 2017

For the fourth consecutive year the National Center for State Courts contracted with GBA Strategies to conduct a comprehensive public opinion survey of 1,000 registered voters in order to gauge current levels of public trust and confidence in the state courts.  

The survey was conducted by telephone between October 30-November 1, 2017.  Survey findings are considered accurate within  +/- 3.1 percent, 19 times out of 20.

Key findings of the 2017 survey include:

  • After several years of survey work, we see consistency emerging on core questions of public trust and confidence.
  • Judges are perceived as out of touch with community concerns, and the public seeks greater engagement from the courts.
  • Access to justice in rural areas is a concern for many—especially those in the South and Southwest.
  • The justice system is still seen as too complicated to allow for self-representation—but the public can identify specific customer service challenges and simple solutions to remedy this.


For more detail on the survey findings, read this six-page summary from GBA Strategies, or download the presentation slides. Interested in a presentation on these survey findings? Contact Jesse Rutledge.