An Acrimonious Divorce Heads to Federal Court

posted by Judge_Burke @ 16:22 PM
December 15, 2016

Years ago, there was a conference attended by state and federal court leaders, convened by Chief Justice William Rehnquist. Among the topics presented was a plea from federal judges to figure out how to send diversity cases to state courts. “These are, after all, essential state claims,” the proponents argued. And so I made a joke:  ”I think it is a great idea! We in the state courts can take your diversity cases and you take the divorces.” The Chief Justice of a Midwestern state very much appreciated my humor, but few if any of the federal judges appreciated it.

And so we now move to the decision this week by the Seventh Circuit Court of Appeals. Barry Epstein sued his estranged wife, Paula, alleging that she violated the federal Wiretapping and Electronic Surveillance Act by intercepting his emails. Mr. Epstein’s lawsuit arose from the couple’s acrimonious divorce. Paula accused Barry of serial infidelity, so in discovery Barry asked her for all documents related to that accusation. Paula and her lawyer, Jay Frank, complied and produced copies of incriminating email correspondence between Barry and several women. According to the Seventh Circuit opinion:

On the face of it, the messages seem to have been forwarded from Barry’s email accounts to Paula’s. This came as a shock to Barry; he inferred from this discovery response that Paula must have secretly placed a “rule” on his email accounts automatically forwarding his messages to her. With the divorce action still ongoing, Barry filed this federal suit against Paula and Frank pursuant to 18 U.S.C.§ 2520,which authorizes civil actions against persons who violate the Wiretap Act. The complaint alleges that Paula unlawfully intercepted, disclosed, and used Barry’s emails in violation of the Act, and that Frank violated the Act by unlawfully disclosing and using the emails in the divorce proceeding. Copies of some of the intercepted emails were attached to the complaint as exhibits.

 

Apparently fearing that this was the beginning of Judge Kevin Burke’s attempt to move all divorce cases from state court to federal court in exchange for the diversity cases, the Federal District Court dismissed the case. This week, a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit – in an opinion written by Circuit Judge Diane S. Sykes – reinstated Barry’s Wiretap Act claim against his estranged wife.

While the opinion may strike fear in the hearts of family court lawyers, there is some solace:  the Court of Appeals affirmed the dismissal of the claim against Paul’s family court lawyer, Jay Frank. Oh yes, it appears that Paula and Barry are still litigating their divorce in Cook County’s court.

 

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Can We Safely Cut the Number of People We Incarcerate?

posted by Judge_Burke @ 15:30 PM
December 15, 2016

Nearly 40 percent of the U.S. prison population — 576,000 people — are behind bars with no compelling public safety reason, according to a new report from the Brennan Center for Justice at NYU School of Law. The first-of-its-kind analysis provides a blueprint for how the country can drastically cut its prison population while still keeping crime rates near historic lows.

How Many Americans Are Unnecessarily Incarcerated? | Brennan Center for Justice

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Surely the Truth Should Be an Essential Part of Our Democracy

posted by Judge_Burke @ 15:31 PM
December 13, 2016

A new Ipsos/BuzzFeed poll finds that fake news headlines fool American adults about 75% of the time. The survey also found that people who cite Facebook as a major source of news are more likely to view fake news headlines as accurate than those who rely less on the platform for news.

NPR has a similar story:

We Tracked Down A Fake-News Creator In The Suburbs. Here’s What We Learned.

Jestin Coler [the fake-news creator] was amazed at how quickly fake news could spread and how easily people believe it. He wrote one fake story for NationalReport.net about how customers in Colorado marijuana shops were using food stamps to buy pot. “What that turned into was a state representative in the House in Colorado proposing actual legislation to prevent people from using their food stamps to buy marijuana based on something that had just never happened,” Coler says.

 

Read more here.

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Sleep-Deprived Drivers Have Plenty in Common with Drunk Drivers

posted by Judge_Burke @ 15:41 PM
December 12, 2016

From The Washington Post:

Drivers who have had too little sleep are no different than those who have had three or four drinks and are too drunk to drive.

Those are the findings of an AAA Foundation for Traffic Safety report released Tuesday that draws on original research and past studies to create a troubling picture of the risk caused by a go-go world where many people don’t get enough rest.

About 35 percent of people get fewer than the needed seven hours of sleep, and 12 percent say they sleep for five hours or less, according to the Centers for Disease Control and Prevention.

Earlier research by AAA Foundation showed that 21 percent of fatal crashes involved a sleep-deprived driver. The group’s new work uses data from the National Motor Vehicle Crash Causation Survey to delve into how much driving ability decreases based on varying lack of sleep.

[Falling asleep causes 1 in 5 auto crashes]

Not surprisingly, the less sleep, the higher the risk of a crash.

“You cannot miss sleep and still expect to be able to safely function behind the wheel,” said David Yang, executive director for the foundation. “Our new research shows that a driver who has slept for less than five hours has a crash risk comparable to someone driving drunk.”

People who pride themselves on their ability to function on less sleep than the recommended seven-plus hours will contend otherwise, but the foundation used a sample of 4,571 crashes in which police determined a cause to conclude that those non-sleepers are wrong.

 

Read more here.

 

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The Remarkable Justice Rick Teitelman

posted by Judge_Burke @ 15:34 PM
December 8, 2016

Missouri Supreme Court Justice Richard B.  Teitelman recently passed away. He was a remarkable person. He served his state and the nation’s courts with great honor. For many years he served on the board of the American Judicature Society where I got to know him. Kurt Erickson wrote of the Justice:

Judge Teitelman, known as “Rick,” began his service on the state’s high court in March 2002 and served as its chief justice from July 2011 through June 2013.

He was 69. Details of his death were not immediately available, but his longtime colleague and friend, former Supreme Court Justice Michael Wolff, said Teitelman had been ailing for several years.

“He’s had some serious health problems,” said Wolff, who is dean of the St. Louis University Law School.

In honor of Teitelman, the court canceled oral arguments scheduled for Tuesday, but will hear arguments as scheduled on Wednesday.

“It is with great sadness that the Supreme Court of Missouri acknowledges the passing of its beloved colleague,” the court said in a statement issued Tuesday morning.

Teitelman — the first Jewish judge to serve on the state’s high court — was born in Philadelphia. At a Missouri Bar Association event earlier this year, Teitelman said his mother had wanted him to become a doctor.

At age 13, however, he was declared legally blind. He graduated from University of Pennsylvania in 1969 with a degree in math and moved to Missouri where he attended law school at Washington University.

He worked at Legal Services of Eastern Missouri in St. Louis for nearly a quarter-century before being appointed to the Missouri Court of Appeals in 1998. He was elevated to the state Supreme Court by former Gov. Bob Holden, a Democrat, in 2002.

On Tuesday, Dana Tippin Cutler, president of the Missouri Bar, offered condolences to Teitelman’s family and friends.

“We join with the Court in recognizing his 18 years of service to the people of Missouri as an appellate judge and his career-long dedication to making sure all Missourians, regardless of their income, have equal access to justice in Missouri,” Tippin Cutler noted in a statement.

House Minority Leader Gail McCann Beatty said the court benefited from Teitelman’s dedication to equal justice for all.

“During his decades representing poor clients as a legal aid attorney and later as a jurist, Judge Richard Teitelman’s commitment to protecting the less fortunate from injustice was unwavering,” McCann Beatty said.

Thomas G. Glick, president of the board of directors of Legal Services of Eastern Missouri offered praise for Teitelman.

“He gave voice to those without representation and was tireless in his work to protect the vulnerable,” Glick said.”

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The Key to Building Respect for Courts

posted by Judge_Burke @ 15:30 PM
December 6, 2016

We treat people as people as people, not as docket numbers.

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How to Avoid Burnout

posted by Judge_Burke @ 16:19 PM
December 5, 2016

Harvard Business Review has an interesting article entitled, “Why Some People Get Burned Out and Others Don’t.”  The authors are Kandi Wiens and Annie McKee.

Here are some excerpts:

Stress and burnout are not the same thing. And while we know that stress often leads to burnout, it’s possible to handle the onslaught of long hours, high pressure, and work crises in a way that safeguards you from the emotional exhaustion, cynicism, and a lack of confidence in one’s abilities that characterizes burnout. The key is tapping into your emotional intelligence.

This is what one of us (Kandi) discovered in a recent study (“Leading Through Burnout”) where we assessed 35 chief medical officers (CMOs) at 35 large hospitals for their level of stress and tried to determine what, if anything, they do to deal with burnout.

The findings surprised us: despite the fact that an overwhelming 69% of the CMOs described their current stress level as severe, very severe, or worst possible, the majority were not burned out according to the Maslach Burnout Inventory. In our interviews with these CMOs, we found a common theme to what kept their stress under control: emotional intelligence.

As one of us (Annie) has written about before, research suggests that emotional intelligence (EI) supports superior coping abilities and helps people deal with chronic stress and prevent burnout.

Emotional self-awareness, one of the components of EI, for example, allows us to understand the sources of our frustration or anxiety and improves our ability to consider different responses. Self-management, another EI competency, allows us to stay calm, control impulses, and act appropriately when faced with stress. Conflict management skills allow us to channel our anxiety and emotions into problem-solving mode rather than allowing the situation to bother us–or keep us up all night. Empathy also helps to fight stress. When we actively try to understand others, we often begin to care about them. Compassion, as with other positive emotions, can counter the physiological effects of stress.

. . .

What You Can Do to Manage Stress and Avoid Burnout

People do all kinds of destructive things to deal with stress–they overeat, abuse drugs and alcohol, and push harder rather than slowing down. What we learned from our study of chief medical officers is that people can leverage their emotional intelligence to deal with stress and ward off burnout. You, too, might what to try the following:

*Don’t be the source of your stress. Too many of us create our own stress, with its full bodily response, merely by thinking about or anticipating future episodes or encounters that might be stressful. People who have a high need to achieve or perfectionist tendencies may be more prone to creating their own stress. We learned from our study that leaders who are attuned to the pressures they put on themselves are better able to control their stress level. As one CMO described, “I’ve realized that much of my stress is self-inflicted from years of being hard on myself. Now that I know the problems it causes for me, I can talk myself out of the non-stop pressure.”

*Recognize your limitations. Becoming more aware of your strengths and weaknesses will clue you in to where you need help. In our study, CMOs described the transition from a clinician to leadership role as being a major source of their stress. Those who recognized when the demands were outweighing their abilities, didn’t go it alone–they surrounded themselves with trusted advisors and asked for help.

*Take deep breaths when you feel your tension and anxiety rapidly rising. Mindfulness practices help us to deal with immediate stressors and long-term difficulties. Several of our study participants described using mindfulness techniques to slow their heart rate and bring their tension level down when faced with a stressor. As one leader described, practicing mindfulness “allows me to be more open to other solutions and I don’t waste time in defense mode.” Heightening your awareness of your breathing may be difficult at first, for example, but remember that attention is the ultimate act of self-control.

*Reevaluate your perspective of the situation. Do you view a particular situation as a threat to something you value? Or do you view it as a problem to be solved? Changing your perspective on whether you’re experiencing distress or eustress can have an eye-opening effect on your ability to bring your stress level down. One CMO described the shift in her mindset, “What once felt like stress is now good stress; I’m motivated to think of it as a problem to be solved.”

*Deescalate conflicts by putting yourself in the other person’s shoes. The stress from conflicts often leads to burnout so it’s best to deescalate conflicts when you can. Be inquisitive, ask questions, listen deeply. Keep your attention to the other person and focus on what he is trying to tell you. By seeking to understand his perspective, you’ll be in a much better position to gain his trust and influence him. One person we interviewed uses this approach consistently. He described how sharpening his empathic listening skills has enabled him to foster greater collaboration and create buy-in with his colleagues. In a recent situation, he said a physician stormed into his office and said “You must do this or babies will die.” Instead of reacting defensively and potentially causing more harm, he steadied himself and focused his attention on seeking to understand the physician’s perspective. His response deescalated the conflict and resulted in a healthy, less stressful conversation.

By using and developing your emotional intelligence, you can put a stop to burnout–for you, and for others. Remember, though: improving EI takes time and effort. Be patient with yourself, as well as forgiving and kind. The last thing you want to do is to make improving your EI another source of stress.

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What Must Be Disclosed to a Judge About a Confidential Reliable Informant?

posted by Judge_Burke @ 15:30 PM
December 2, 2016

Everyday, judges are presented with search warrants extolling the reliability of the confidential reliable informant “who has given reliable information in the past that has lead to the arrest and conviction of …,” etc.

But, what if in addition to those helpful activities, the CRI was simultaneously committing crimes, getting arrested, and getting convicted themselves. Should the judge be told those things? Does the defendant have a right to discovery of this kind of information? Maybe not according to one case.

The search warrant affiant wasn’t required to include the CI’s criminal history as a possible indicator of lack of credibility. The key is past information that has proven truthful or detailed or corroborated current observations that bespeaks credibility. United States v. Courtney, 2016 U.S. Dist. LEXIS 162883 (N.D.Ohio Nov. 23, 2016). Defendant’s 2255 discovery requests are denied without showing far more. Whether all courts would agree with this analysis is debatable, but it is something worth thinking about. 

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The Canadian Charter & Criminal Justice in Canada

posted by Judge_Burke @ 15:31 PM
December 1, 2016

Don Stuart (Queen’s University, Faculty of Law) has posted The Canadian Charter and Criminal Justice (In Nathalie Des Rosiers, Patrick Macklem, & Peter Oliver, eds., The Oxford Handbook of the Canadian Constitution (Oxford: Oxford University Press) (Forthcoming)) on SSRN.

Here is the abstract:

This chapter analyses the pervasive impact of the Charter on the Canadian criminal justice system. Active judicial interpretation of Charter rights has put in place distinctive constitutional standards of substantive law, including those of fault and struck down oppressive laws for arbitrariness and overbreadth. Also examined are new standards for police powers to stop, detain and arrest, fair trial rights such as the duty of full Crown disclosure and for sentencing. The article describes and welcomes a robust exclusionary discretion for evidence obtained in violation of the Charter. It is suggested that the Canadian Charter standards are no panacea and are sometimes too weak but that they have often provided a welcome balance to the expedient lure of law and order politics.

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Perhaps, Just Perhaps, HOPE Probation is Not as Effective as Claimed

posted by Judge_Burke @ 15:30 PM
November 30, 2016

From the Washington Monthly:

In light of the  success of the Hawaii HOPE program, which brought attention to the application of Swift-Certain-Fair (SCF) principles in community corrections, and the spread of such programs nationally, the Bureau of Justice Assistance authorized a large-scale, four-site field trial (the Demonstration Field Experiment, or DFE) to examine how well such a program would do in other jurisdictions. Those results are now in – in the form of a paper by Pam Lattimore and her colleagues at the Research Triangle Institute (RTI)- and the findings are not especially favorable. It appears that HOPE probationers committed no fewer new crimes and spent on average somewhat more time confined in jail or compulsory residential treatment. The authors conclude that “HOPE/SCF seems unlikely to offer better outcomes and lower costs for broad classes of moderate-to-high–risk probationers.”

The journal decided to make the Lattimore et al. paper freely available, but chose not to do so for the other papers in the same issue, including a number of commentaries on Lattimore et al.,  two of them sharply critical.”

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