The Role of Women In Public Defense

posted by Judge_Burke @ 17:47 PM
March 12, 2020


From Right to Counsel:

March is Women’s History Month, and March 18th marks the 57th Anniversary of the landmark decision in Gideon v. Wainwright, in which the United States Supreme Court unanimously declared the “obvious truth” that “lawyers in criminal court are necessities, not luxuries,” and that the state must provide a lawyer to anyone whose liberty is at stake and who cannot afford one. These commemorations have more in common than first meets the eye: women have had a hand in the creation and strengthening of our public defense system, and women are increasingly in need of effective public defense themselves. As such, this March to honor this right and those who protect it, the Right to Counsel National Campaign (R2C) and the Justice Programs Office are celebrating public defenders and the courageous work they do all month long as part of R2C’s #TriviaTuesday.


Our first spotlight of the month was on the impactful yet under-recognized Clara Shortridge Foltz, whom we should thank for the concept of our modern-day public defender system. The first woman to practice law on the West Coast, Foltz authored a bill that changed one of the legal requirements for becoming a lawyer in California from “white male citizen” to “any citizen or person.” She did not stop there, however.


Because defendants with means would rarely agree to female representation, Foltz represented quite a few indigent defendants. Dissatisfied with the inequities she observed, Foltz created the concept of the public defender system to balance the public prosecutor. In 1893, 70 years before the Supreme Court decided Gideon v. Wainwright, she presented the concept of public defense at the Chicago World’s Fair, arguing that the right to a presumption of innocence was only possible with competent legal advice. Due to her efforts, Los Angeles opened the nation’s first public defender office in 1913, and the “Foltz Defender Bill” was enacted state-wide in 1921. Read more about Foltz and the women of public defense in this month’s R2C blog and follow along on Twitter as we and other organizations across the US commemorate the anniversary and the right to counsel by celebrating #PublicDefenseDay #PublicDefenderDay #GideonAnniversary.


Should Judges Deal Jump?

posted by Judge_Burke @ 21:18 PM
March 11, 2020

Michael D. Cicchini has posted Deal Jumpers (2021 U. Illinois L. Rev. __ (2021, Forthcoming)) on SSRN. Here is the abstract:

Fundamental fairness dictates that when a criminal defendant enters a plea in exchange for the prosecutor’s sentence concession, the defendant should actually receive the sentence for which he or she bargained. Surprisingly, however, many states permit the judicial practice of deal jumping: the judge can accept the defendant’s plea, disregard the sentence concession that induced the plea in the first place, and then sandbag the defendant with any punishment the judge wishes to impose. Worse yet, the hapless defendant is left without recourse, unable to withdraw his or her plea.

Deal jumping is fundamentally unfair to defendants and harmful to the criminal justice system—a system that relies on plea bargains for more than 95 percent of its convictions. To ensure fairness, transparency, and integrity in plea bargaining, state legislatures should eliminate deal jumping and require judges to approve or reject sentence concessions at the same time they approve or reject charge concessions: before accepting the defendant’s plea. Alternatively, if a judge accepts the defendant’s plea but then decides to exceed the agreed-upon sentence, the defendant should be allowed to withdraw his or her plea and proceed to trial.

Legal reform to eliminate deal jumping is simple to implement and has garnered broad-based support; nonetheless, state legislatures often resist change, clinging blindly to the status quo. Therefore, this Article also provides defense lawyers with a practical plea-bargaining strategy to protect their clients. Defense counsel should consider invoking little-known but effective legal rules—rules which exist in many states—to constrain judicial abuse, provide greater certainty at sentencing, and even ensure the defendant receives the actual benefit for which he or she bargained.


From Judge Wayne Gorman:

In RT & Anor, R. v [2020] EWCA Crim 155, February 13, 2020, the Court of Appeal for England Wales considered an appeal involving the following issue:

This appeal raises an issue about whether the trial judge was entitled to continue a trial in circumstances where a prosecution witness, aged 16 years who had been diagnosed with ADHD, who had given evidence in chief and who had been cross-examined in part on behalf of one appellant, became distressed and refused to continue to give evidence.

The Court of Appeal noted that an accused person “has a fundamental right under the criminal law to a fair trial. The right of a legal representative to ask questions of witnesses giving evidence against the defendant is one way in which a fair trial is delivered but limitations have long been recognised to the right to question…In some cases the effect of not being able to cross examine a witness who has become ill and unable to continue has meant that a fair trial becomes impossible. In other cases it has proved possible to continue the trial and ensure that it is fair” (at paragraph 37).

The Court of Appeal indicated that when “considering whether a fair trial is possible when a witness’s evidence has been cut short a judge will have regard to the extent to which the defence has been put and explored with the witness, whether previous inconsistent statements can be put into agreed facts, and whether there is other relevant evidence” (at paragraph 39).


The Court of Appeal concluded that “the trial judge was entitled to continue the trial” (at paragraphs 42 to 44):

In our judgment the trial judge was entitled to continue the trial of RT and Mr Stuchfield even though Ms F was not available for the whole of the cross examination on behalf of Mr Stuchfield and there was no cross examination on behalf of RT. This was because the trial remained fair for both RT and Mr Stuchfield in the particular circumstances of this case. The relevant circumstances included the facts that first the jury had seen Ms F give evidence and be cross examined at least in part. Secondly there was some unfortunate questioning of Ms F which explained her refusal to stay for the whole of the cross examination, although we make it clear that the trial judge found that this questioning was not carried out deliberately to provoke the witness, and counsel for RT did not have the opportunity to carry out any questioning. Thirdly there was material which was admitted, including the Facebook messages, which enabled the jury to make a fair assessment of the credibility and reliability of Ms F’s evidence. Fourthly Ms F’s evidence could be assessed in the context of the other evidence which included: DNA evidence against RT; evidence about earlier social media conversations about a plan to commit a robbery; CCTV evidence showing the movements of RT and Mr Stuchfield; and Mr Stuchfield’s letter sent after the offence. Fifthly the judge gave proper directions to the jury identifying the limitations of Ms F’s evidence.

We are also satisfied that there was no abuse of process in continuing the trial in the circumstances set out above. This was because the trial process enabled the appellants to deal with the effect of the absence of Ms F. We can see no basis for saying that the conviction of either RT or Mr Stuchfield was unsafe.

For the detailed reasons given above we dismiss the appeal against conviction.



The Right To Counsel

posted by Judge_Burke @ 21:18 PM
March 6, 2020

Paul Marcus and Mary Sue Backus (William & Mary Law School and University of Oklahoma College of Law) have posted The Right to Counsel in Criminal Cases: Still A National Crisis (George Washington Law Review, Vol. 86, No. 1564, 2018) on SSRN. Here is the abstract:

In 1963, Gideon v. Wainwright dramatically changed the landscape of criminal justice with its mandate that poor criminal defendants be entitled to legal representation funded by the government. As scholars and practitioners have noted repeatedly over more than fifty years, states have generally failed to provide the equal access Gideon promised. This Article revisits the questions raised by the authors over a decade ago when they asserted that a genuine national crisis exists regarding the right to counsel in criminal cases for poor people. Sadly, despite a few isolated instances where litigation has sparked some progress, the issues remain the same: persistent underfunding and crushing caseloads, and little support from the Supreme Court to remedy ineffective assistance claims. The authors conclude that our patchwork system of public defense for the poor remains disturbingly dysfunctional.


From Judge Wayne Gorman: The Scottish Sentencing Council has released a report entitled: The Development of Cognitive and Emotional Maturity in Adolescents and its Relevance in Judicial Contexts.

The Council provided the following “executive summary”:

This report provides a synthesis and evaluation of the current neurobiological, neuropsychological and psychological literature on adolescent cognitive maturation. Using an ‘umbrella review’ methodology, systematic reviews, meta-analyses, and narrative reviews were collated, critically assessed, and then synthesized to provide robust findings and interpretations of the data as it applies to cognitive maturation and juvenile sentencing.

During adolescence and within normal individual development, an imbalanced growth pattern is observed between the brain regions governing emotion and mood, like the amygdala, and those involved in executive functions (those that provide the cognitive abilities which are necessary for prosocial behaviour, successful goal planning and achievement), like the prefrontal cortex. Converging findings suggest that this latter brain region is the last to reach maturity, leaving adolescents with immature and compromised core cognitive abilities for much of this developmental period. This immaturity, when coupled with the increased motivation to achieve rewards observed to coincide with puberty, is thought to be the most likely underlying mechanism contributing to the poor problem solving, poor information processing, poor decision making and risk-taking behaviours often considered to typify adolescence. Evidence suggests that the influence, or presence, of peers further exacerbates these tendencies.

In addition to these normative trajectories of adolescent neurocognitive development, cognitive maturation may be hindered or compromised by several factors including traumatic brain injury, alcohol and substance use, psychiatric and neurodevelopmental disorders and adverse childhood experiences, all of which have the potential to inhibit and disrupt typical development. Notably, adolescent cognitive maturation varies between individuals, and will not be the same for every individual, particularly when impacted upon by the environmental factors listed. Thus, the nature of adolescent cognitive development is not a process that allows us to specify an exact age at which cognitive maturity is definitively reached at an individual level. While we do not therefore recommend the use of stringent age ranges in sentencing guidelines, it is however recommended that the brain’s continued growth, until as late as 25-30 years of age, and the resulting cognitive immaturity, is considered during judicial processes involving adolescents and young people.


Should I Sign That Search Warrant?

posted by Judge_Burke @ 21:43 PM
March 4, 2020

Gregory Brazeal (Tulane University – Law School) has posted Mass Seizure and Mass Search (University of Pennsylvania Journal of Constitutional Law, Forthcoming) on SSRN. Here is the abstract:

As courts attempt to develop Fourth Amendment doctrine to address the threats to privacy created by digital surveillance technologies, a valuable doctrinal resource has been largely neglected: the law governing the seizure of persons. Just as courts today struggle with the specter of mass search using digital technologies, courts in the 1960s were confronted with the problem of mass seizure through the growing use of stop-and-frisk by police departments. The responses to mass seizure developed by the Supreme Court in Terry v. Ohio (1968) and its progeny provide lessons for courts today considering how to respond to the risks of digital mass search. By adopting the “mosaic theory,” the Supreme Court has already begun to apply to digital search a form of aggregative reasoning that has long been used to define the seizure of persons.
The analogy between seizure doctrine and search doctrine also sheds light on the significance of the Supreme Court’s recent, landmark decision in Carpenter v. United States (2018), which responded to the declining cost of digital surveillance in a way that resembles Terry’s response to the rising use of stop-and-frisk in the 1960s. Carpenter opens the door for courts to develop a two-tiered doctrinal scheme for digital search, with less invasive searches requiring reasonable suspicion and more invasive searches requiring probable cause. Among other virtues, such an approach would provide a doctrinal foothold for subjecting the bulk collection of metadata and other digital mass surveillance programs to Fourth Amendment review.


Sanctions In Problem Solving Courts

posted by Judge_Burke @ 22:18 PM
March 3, 2020

Meghan M. O’Neil and Daniel Strellman (University of Michigan Law School and University of Michigan Law School, Law School – JD Candidate Author) have posted The Hidden Cost of the Disease: Fines, Fees, and Costs Assessed on Persons with Alleged Substance Use Disorder on SSRN. Here is the abstract:

The age-old adage “crime doesn’t pay” is true in more ways than one. This article stems from two years of field work in problem-solving treatment courts; circuit, district, and federal courts; addiction treatment centers; and probation offices throughout the State of Michigan. Persons experiencing substance use disorder (SUD) can rapidly amass criminal charges on any given day, given that the private use of controlled substances is illegal, as is driving while intoxicated. These repeated behaviors can, and frequently do, culminate in incarceration, supervision (e.g., probation or parole), and hefty fines and fees. Moreover, persons experiencing SUD are far from uncommon: overdose is now the leading cause of death for Americans under 50, and in 2018, focus groups with state district court judges in Michigan estimated that four out of every five criminal defendants were experiencing problematic substance use, illuminating the overwhelming degree to which SUD permeates our criminal justice system. Practitioners, academics, and policymakers involved with the justice system ought to be concerned with the costs assessed in SUD cases because they can be potentially expensive to collect, excruciatingly burdensome on vulnerable people involved with the justice system trying to maintain sobriety and re-enter society, and present a generally inefficient method of punishment when the cost of collection outweighs the total amount which is ultimately collected by the state. While crime doesn’t pay generally, it is particularly costly for vulnerable defendants experiencing SUD. Identifying best practices for supervision of SUD offenders might present avenues to improve the cost effectiveness and efficiency of fines in ways that actually reduce subsequent offending—as fines were meant to do.


Conference Of Chief Justices Urges Reform Of Legal Services

posted by Judge_Burke @ 22:00 PM
March 2, 2020

Members of the Conference of Chief Justices (CCJ) gathered recently for their midyear meeting where the debate over a variety of proposed innovations in the regulation of the delivery of legal services was a hot topic. State supreme courts, after all, don’t just act as arbiters of legal disputes, but also hold ultimate authority for the regulation of the practice of law in their states.

The assembled members heard from the President of the American Bar Association (ABA), Judy Perry Martinez, who did not mince words about how critical innovation is in the effort to close the nation’s access to justice gap. She also emphasized the vital role of both the ABA and state judicial leaders in fostering open discussion about potential reforms.

“We need and are beginning to see bold new ideas to address our nation’s unmet legal needs,” said Martinez. “Given the dire circumstances that the public faces when trying to protect their basic rights, doing nothing—having no dialogues and conversations among stakeholders; fearing to ask “what if” or “why not”—may pose an even greater risk.”

At its business meeting, CCJ adopted a policy resolution Urging Consideration of Regulatory Innovations Regarding the Delivery of Legal Services, which was proposed by its committee on Professionalism and Competence of the Bar. The resolution “urges its members to consider regulatory innovations that have the potential to improve the accessibility, affordability and quality of civil legal services, while ensuring necessary and appropriate protections for the public.”

As ABA President Martinez noted: “The ultimate purpose of regulation is not to protect the livelihood of lawyers but to advance the administration of justice.”


The Fourth Amendment After Carpenter

posted by Judge_Burke @ 22:23 PM
February 20, 2020

Matthew Tokson (University of Utah – S.J. Quinney College of Law) has posted 42nd Annual Foulston-Siefkin Lecture: The Next Wave of Fourth Amendment Challenges After Carpenter (Washburn Law Journal, Forthcoming) on SSRN. Here is the abstract:

The lecture discusses the future of Fourth Amendment law following the Supreme Court’s enormously important decision in Carpenter v. United States. It analyzes Carpenter and argues that its detailed account of the privacy harms caused by government surveillance will be its most important legacy. Moreover, the Court’s emphasis on the risk of privacy harm is not a one-off or a sharp break from previous practice. Carpenter is consistent with a long line of Supreme Court decisions ignoring or reshaping previous Fourth Amendment doctrines when necessary to protect citizens against unchecked surveillance. It also echoes previous cases that focus on the revealing, extensive, or intimate nature of surveillance when assessing whether a Fourth Amendment search has occurred.
The lecture then details some of the novel surveillance technologies that are likely to reach the Supreme Court over the next several years. These technologies include drones, smart homes and devices, web surfing surveillance, and pole cameras targeting a specific suspect’s home. Many of these technologies have already been used in police investigations and evaluated by judges in lower court cases. The lecture evaluates how the Supreme Court is likely to resolve these cases and uses the framework of Carpenter and its predecessors to make predictions about the future direction of Fourth Amendment law.


Remorse & Judging

posted by Judge_Burke @ 21:10 PM
February 19, 2020

Susan A. Bandes (DePaul University – College of Law) has posted Remorse and Judging (in Remorse in Criminal Justice: Multi-Disciplinary Perspectives, Routledge, Taylor & Francis Group, 2020, Forthcoming) on SSRN. Here is the abstract:

This chapter focuses on the judicial evaluation of remorse. It is an article of faith that judges can and should evaluate remorse when determining sentence. Although the dynamics of this evaluation are understudied, the existing literature helps illuminate the assumptions judges employ and the dangers and limitations of those assumptions. Judges rely on evaluation of demeanor and body language and on allocution, and their interpretations are rife with implicit assumptions and unstated rules about what counts as remorse. Many of these assumptions (for example the link between remorse and decreased recidivism and the possibility of assessing remorse from demeanor) lack evidentiary support. These assumptions and implicit rules vary widely from judge to judge. They often fail to account for the influence of race, ethnicity, gender and social class on the expression and evaluation of remorse. Moreover, they put a premium on the willingness to plead guilty, and to do so at the earliest possible opportunity. The chapter draws upon the few existing empirical studies on the topic and identifies areas that require further study