To the Followers of this Blog

posted by Judge_Burke @ 20:34 PM
July 26, 2017

Today marks 33 years on the bench. Thanks to Governor Perpich, who appointed me; the people of Hennepin County, who elected me; family, friends, and colleagues who supported me.

The challenges to the judiciary today are serious. We need to have courage to speak about injustice, and we need to focus on making sure our courts are fair. It is not an easy task. Each generation of judges has likely claimed theirs was among the most critical of their democracy. The answer to that debate can’t be agreed upon, but what can be agreed upon is the judges in the United States and Canada have the capacity to make our courts the best they can be. Some of our excuses for why we fail are, frankly, tired and lame:  ”We simply have too many cases to do a quality job.” Volume should be viewed as one of our strengths, not as a weakness. Each case gives us the opportunity to show litigants and their supporters that there is a fair and responsive justice system. So what we need…what each judge needs…is to take a deep breath, reflect for a moment, and then rededicate ourselves to achieving excellence.



Is the Civil Justice System in India Speedier Than in Washington DC?

posted by Judge_Burke @ 14:30 PM
July 26, 2017

A woman who sued the Washington, D.C., Department of Corrections for sexual discrimination is still awaiting the final resolution of her lawsuit 27 years after it was filed.

The Washington Post reports:

The length of the suit filed by Deborah Jean Bryant “may set a record for the court system in the nation’s capital and is likely among the most protracted in the history of American jurisprudence.”

The case has been before nine judges; a 10th will consider her dispute over interest this week.

Bryant had claimed in her suit that she was denied a promotion because she refused the advances of her former supervisor. The Washington, D.C., Department of Human Rights and Minority Business Development ruled in Bryant’s favor, and the corrections department appealed.

The appeal lasted 11 years, and a dispute over whether Bryant was entitled to interest on her back wages lasted nine years. After she was awarded interest in 2012, Bryant claims the department miscalculated the amount.

Bryant’s lawyer, Robert Adler, told the Post that the case has dragged on because the Washington, D.C., legal system is slow-moving.

“This is not a hard case. It’s really pretty easy,” Adler said. “These people just don’t work that hard. That’s what the fact of the matter is.”

George Washington University law professor Jonathan Turley agreed that delays are a problem in government workplace cases in Washington, D.C., where a mix of administrative law judges and superior court judges preside at different stages.

“Each one of these case transfers has built into it months, even years, of delay,” he told the Post. “A litigant can find themselves ping-ponging between the court and the administrative office.”


Thinking About Reform of Plea Bargaining

posted by Judge_Burke @ 14:30 PM
July 25, 2017

Cynthia Alkon (Texas A&M University School of Law) has posted Hard Bargaining in Plea Bargaining: When Do Prosecutors Cross the Line? (Nevada Law Journal, Vol. 17, No. 2, 2017) on SSRN.

Here is the abstract:

Well over 90 percent of all criminal cases in the United States are resolved by plea bargaining and not by trial. This means that how plea bargaining works impacts nearly every criminal defendant. However, there are few restrictions to protect defendants in the negotiating process. One serious problem is that prosecutors regularly use hard bargaining tactics such as exploding offers, threats to add enhancements, take-it-or-leave-it offers, and threats to seek the death penalty. These hard bargaining tactics contribute to the often highly coercive atmosphere of plea bargaining that can lead innocent defendants to plead guilty. Pressure to plead guilty can also lead defendants to fail to litigate issues, such as search and seizure motions. Finally, the coercive atmosphere in plea bargaining can lead defendants to accept bad deals as they try to avoid potentially much higher sentences after trial.

This article argues that the U.S. Supreme Court should limit prosecutorial hard bargaining tactics in plea negotiations to better protect defendants’ right to counsel. In 2012, the U.S. Supreme Court, in Lafler v. Cooper and Missouri v. Frye, held that there is a constitutional right to effective assistance of counsel in plea bargaining. This article argues that Lafler and Frye demand that the Court restrict prosecutorial hard bargaining behavior that interferes with defense lawyers’ ability to do their jobs and thereby deprives defendants of their constitutional right to counsel. Other areas of law, notably labor law, prohibit hard bargaining. Under the National Labor Relations Act, unions and companies are required to bargain in good faith. Courts have held that some types of hard bargaining act to undermine the representation role of the union and are, therefore, a violation of the duty to bargain in good faith. This article will suggest that one way to argue the Supreme Court should limit prosecutorial hard bargaining is that allowing unrestricted prosecutorial hard bargaining undermines the representation of counsel and thereby prevents effective assistance of counsel in plea bargaining. This article also gives specific examples of what kinds of prosecutorial hard bargaining tactics should be restricted to better protect defendants’ constitutional rights in the plea bargaining process.


Combating Racial Bias

posted by Judge_Burke @ 14:34 PM
July 24, 2017

William Y. Chin (Lewis & Clark Law School) has posted Racial Cumulative Disadvantage: The Cumulative Effects of Racial Bias at Multiple Decision Points in the Criminal Justice System (6 Wake Forest J.L. & Pol’y 441 (2016)) on SSRN.

Here is the abstact:

Racial bias in the twenty-first century endures in the form of racial cumulative disadvantage. It exists in the criminal justice system where people of color suffer from racial biases at multiple decision points. The multiple biases accumulate to create adverse outcomes such as imprisonment for defendants of color; in capital cases, the adverse outcome is death. Defendants of color in the criminal justice system, therefore, contend not with a mere single incident of racial bias, but with multiple instances of racial biases spread among multiple actors across multiple stages that accumulate. Remedying racial cumulative disadvantage entails dismantling the school-to-prison pipeline, requiring racial impact statements to consider cumulative disadvantage effects, and abolishing the death penalty. The goal is to eradicate racial cumulative disadvantage to promote equal advantage and thereby craft a more just society.


Do Not Take the Bait

posted by Judge_Burke @ 14:30 PM
July 21, 2017

The vast majority of lawyers are highly professional and really can be a pleasure to deal with in trial. But, there are times when the adversarial system becomes a courtroom brawl. Judges in these situations need to manage their own emotional reaction and manage other people’s emotions too. It is not always easy.

ABA Journal has a short, but interesting piece on this topic written by Debrra Cassens Weiss:

A defense lawyer who told an 80-year-old federal judge that he was “advocating for the government” and “abdicating your job as a judge” can’t be rewarded for her inappropriate conduct, a federal appeals court has ruled.

The Chicago-based 7th U.S. Circuit Court of Appeals rejected arguments that U.S. District Judge Charles Norgle Sr. had prejudiced the jury in a mortgage fraud trial by showing contempt toward lawyer Jennifer Bonjean, the Chicago Tribune reports.

Some trial decisions by Norgle may have been “puzzling,” but they didn’t justify Bonjean’s “frequent and serious” outbursts, the court said in a June 20 opinion by Judge David Hamilton. “We do not reward defendants ‘for success in baiting the judge,’” he wrote, quoting from a 1983 appellate decision.

At one point, Bonjean asked Norgle whether “the court would like to take off its robe and come down here and do the government’s job for it?” She claimed, in front of jurors, that the judge was “doing recross for the government,” attempting to influence jurors, and violating her client’s Sixth Amendment rights.

Bonjean “got off on the wrong foot even before voir dire began,” the opinion said, “telling the judge his questions as she argued a motion were ‘exceptionally rude’ and ‘interrupting.’” Her arguments “quickly became sarcastic to the point of hyperbole,” the court said.

The judge “did not show infinite patience” in the face of those provocations, but his responses weren’t excessive, the court said.


Point/Counterpoint from the Marshall Project

posted by Judge_Burke @ 14:22 PM
July 20, 2017

Easing up on drug-dealers has violent consequences: U.S. Attorney General Jeff Sessions takes to the editorial pages of the Washington Post to argue for increasing punishment for drug convictions. “The truth is that while the federal government softened its approach to drug enforcement, drug abuse and violent crime surged.” The Washington Post 

Counterpoint: Meanwhile, a new data analysis from Pew finds that “higher rates of drug imprisonment do not translate into lower rates of drug use, fewer drug arrests, or fewer overdose deaths.” Pew Charitable Trusts


Thinking About Plea Bargaining

posted by Judge_Burke @ 14:30 PM
July 19, 2017

Thea Johnson (University of Maine School of Law) has posted Measuring the Creative Plea Bargain (Indiana Law Journal, Vol. 92, 901 (2017)) on SSRN.

Here is the abstract:

A great deal of criminal law scholarship and practice turns on whether a defendant gets a good deal through plea bargaining. But what is a good deal? And how do defense attorneys secure such deals? Much scholarship measures plea bargains by one metric: how many years the defendant receives at sentencing. In the era of collateral consequences, however, this is no longer an adequate metric as it misses a world of bargaining that happens outside of the sentence. Through empirical research, this Article examines the measure of a good plea and the work that goes into negotiating such a plea. Through in-depth interviews with twenty-five public defenders in four states, I investigate the ways in which collateral consequences impact the negotiation of the plea. What emerges is a picture of creative plea bargaining that takes into account a host of noncriminal sanctions that fall outside of the charge and sentence. Public defenders assess the priorities of their clients — regarding both the direct and collateral consequences of the case — and piece together pleas that meet these varied needs. The length of sentence after a plea does not tell the full story about whether a defendant got a good deal because a successful plea now encompasses much beyond the final sentence.

These findings have broad implications for the way we think about assessing public defense offices and individual defenders. Much of what goes into a plea — particularly at the misdemeanor level — is a product of the client’s desire to avoid certain collateral consequences, and those desires generally do not enter the formal record or off-the-record negotiations with prosecutors. As a result, pleas that look bad on paper may actually be meeting the needs of the client. Therefore, in order to assess pleas and the defenders who negotiate them, we must understand the limits of publicly available data and focus on creating a more robust data set by which to judge public defenders. Additionally, this Article provides a fuller picture of prevailing professional norms at the plea phase after Padilla, Lafler, and Frye. As courts grapple with the role of the defense attorney during plea bargaining, it is critical that they understand that in many cases lawyers achieve optimal outcomes by providing advice and advocacy for their clients on concerns outside of the immediate criminal case. Finally, this Article serves as a renewed call for attention and funding for the holistic model of public defense.


More on Plea Bargaining

posted by Judge_Burke @ 14:30 PM
July 14, 2017

Nancy J. King and Ronald F. Wright (Vanderbilt University – Law School and Wake Forest University – School of Law) have posted Managerial Judging and Judicial Plea Negotiations: Further Evidence on SSRN.

Here is the abstract:

This is a companion report to our article, “The Invisible Revolution in Plea Bargaining: Managerial Judging and Judicial Participation in Negotiations,” 95 Texas Law Review 325 (2016), available at Based on field interviews with judges and attorneys in ten different states, we documented new procedures in state courts that involve judges routinely in the settlement of criminal cases. We learned of grant-funded problem-solving sessions, multi-case conferences where other lawyers chime in, settlement dockets with retired judges, full-blown felony mediation with defendant and victims, and more.

In this companion report, we make publicly available some additional quotations from our field interviews, adding depth to our description and evaluation of judicial negotiation practices. The additional evidence from our interviews includes further examples and exceptions that we did not publish in the original article. This report ends with an appendix describing our methodology in assembling this interview data.


Just How Good a Job is Being a Judge? Tips to Make it Even Better.

posted by Judge_Burke @ 14:30 PM
July 13, 2017

There are a lot of lawyers who try to become judges. Frankly, most do not make it. And then there are those who do make it, and let the power and prestige get to them. They develop black robe disease which, of course, is fatal. There seems to be no known cure for it. So, practicing “safe judging” is the best way to avoid getting black robe disease — and may even be the key to those already afflicted with it who quest for a cure.

Maybe we need to talk about gratitude. There is a plethora of research on gratitude. According to an article in the Psychiatry MMC journal:

The majority of available research studies indicate that gratitude is associated with an enhanced sense of personal well-being . . . [e]xperiencing gratitude, thankfulness, and appreciation tends to foster positive feelings, which in turn, contribute to one’s overall sense of well-being. Therefore, gratitude appears to be one component, among many components, that contributes to an individual’s well being.


This is not an argument for self-delusion or false optimism, but rather a recognition that it is all too easy to lose perspective and see only bad behavior and motives. A Harvard Medical School publication put it this way:

Gratitude is a thankful appreciation for what an individual receives, whether tangible or intangible. With gratitude, people acknowledge the goodness in their lives. In the process, people usually recognize that the source of that goodness lies at least partially outside themselves. As a result, gratitude also helps people connect to something larger than themselves as individuals — whether to other people, nature, or a higher power.

In positive psychology research, gratitude is strongly and consistently associated with greater happiness. Gratitude helps people feel more positive emotions, relish good experiences, improve their health, deal with adversity, and build strong relationships.



What Do You Need to Prove Causation?

posted by Judge_Burke @ 18:47 PM
July 12, 2017

Allison H. Semaya recently posted on this topic in Expert Issues:

In the vast majority of jurisdictions, a plaintiff is required to offer expert testimony to establish the applicable standard of care and that the defendant’s alleged breach of that standard was the proximate cause of the plaintiff’s injuries. Although courts generally consider licensed physicians qualified to provide expert testimony regarding the proximate cause of a plaintiff’s alleged injuries, there is less of a consensus as to whether a nurse practitioner is equally as qualified. Recently, the Washington Supreme Court held that certain nurse practitioners may be qualified to testify as to whether medical conduct was the cause of the injuries in medical malpractice actions. See Rudy Frausto V. Yakima HMA, LLC, No. 93312-0 (Wash. Apr. 27, 2017) (en banc)

The Plaintiff, Rudy Frausto, a quadriplegic man, sustained pressure ulcers when the nurses at the medical facility where he was being treated for pneumonia allegedly failed to provide proper care. Id. at 2. Mr. Frausto filed suit against the medical provider, Yakima HMA LLC. Id. Defendant responded by moving for summary judgment, arguing that Plaintiff had failed to provide expert testimony as is required by statute when commencing a medical malpractice suit.  Id. In opposition, Plaintiff offered the sworn affidavit of Karen Wilkinson, an advanced registered nurse practitioner (“ARNP”) with more than 30 years of experience “providing direct patient care, serving as clinical nursing faculty for students providing care, and publishing nursing texts on the subject.” Id. Wilkinson stated that, in her professional medical opinion, the treating nurses breached applicable standards of care and that this breach proximately caused Plaintiff’s injuries. Id.

The trial court ruled that although Wilkinson was qualified as an expert with respect to the applicable standard of care, she was not qualified to testify as to the issue of proximate cause. Id. at 3. The appeals court reversed, finding that the expert testimony was allowed and adequate. Accordingly, the sole issue before the Supreme Court was whether ARNP’s are “per se disqualified from testifying on proximate cause in a medical negligence case.” Id.

Under Washington law, a plaintiff in a medical malpractice action is required to prove two key elements: “(1) that the defendant health care provider failed to exercise the standard of care of a reasonably prudent health care provider in that same profession and (2) that such failure was a proximate cause of the plaintiffs injuries.” Id. (citing RCW 7.70.040). In Washington, expert testimony is required to establish causation in all circumstances except where technical medical expertise is not necessary to assess the cause of the alleged injury. See id. (citing Young v. Key Pharm., Inc., 112 Wn.2d 216, 228, 770 P.2d 182 (1989)(for example, no expert is required in the case of “amputating the wrong limb or poking a patient in the eye while stitching a wound on the face”)). Washington Rules of Evidence Rule 702 (“ER 702”) states that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

In Frausto, the Court observed that a majority of jurisdictions permit testimony from nurses regarding causation in medical malpractice cases. The Court rejected Defendant’s argument that the Court should instead follow the few jurisdictions that do not allow such expert support, finding that Washington was different from those jurisdictions because: (1) its “nursing statutes differ from statutes in other states in that our legislature has empowered ARNPs to diagnose illnesses and injuries to at least a limited degree”; and (2) “the jurisdictions allowing nurses to testify on causation rely on ER 702 for the requisite qualification of experts and since an ARNP is qualified to independently diagnose a particular medical condition, “it follows that the ARNP may have the requisite expertise under ER 702 to discuss medical causation of that condition.” Id. at 8. In other words, the Court adopted the approach taken by the majority of jurisdictions and held that “ER 702 provides the appropriate mechanism for a trial court to determine whether an ARNP’s opinion on causation is sufficient based on the qualifications of the ARNP and the statutory scope of that ARNP’s authority and certification as a health care provider.” Id. at 17. As such, the Court ultimately concluded, “Whether or not an ARNP has the requisite specialized knowledge to qualify as an expert on causation is a determination left to the trial court under our Rules of Evidence, taking into consideration the ARNP’s particular scope of practice and expertise.” Id. at 19.

This unanimous opinion from the Washington Supreme Court that nurse practitioners may offer expert testimony as to the cause of an injury in medical malpractice suits is not only an important development for Washington litigants, but is also a useful reminder for litigants nationwide to evaluate which medical professionals may serve as experts and for what purpose in a medical malpractice lawsuit.