L. Song Richardson (University of California, Irvine School of Law) has posted Systemic Triage: Implicit Racial Bias in the Criminal Courtroom (Yale Law Journal, Vol. 126, No. 3, 2017) on SSRN.
Here is the abstract:
In Crook County, Nicole Gonzalez Van Cleve provides a groundbreaking and disturbing ethnography of the Cook County-Chicago criminal courts, the largest unified criminal court system in the United States. She details how prosecutors, judges, public defenders and sheriff’s deputies create and maintain a criminal justice system that turns race-neutral due process protections into tools of racial punishment. This review analyzes Crook County by situating it within the broader framework of pro-active policing practices that overwhelm criminal courthouses across the country with an avalanche of cases involving non-violent offenders who are primarily individuals of color. The result is what I refer to as systemic triage. Triage denotes the process of determining how to allocate scarce resources. In this review, I use the phrase systemic triage to highlight that all criminal justice system players are impacted by criminal justice policies and policing practices that engulf, not only public defenders, but also the entire cadre of courtroom players, including prosecutors and judges. No scholar has taken this systemic view of triage and explored its implications. Using evidence from Professor Van Cleve’s ethnography and from the social psychology of implicit racial bias, I argue that systemic triage inevitably results in racialized justice, regardless of the conscious motivations of individual decision-makers. It ends with some suggestions for reform.
Minnesota is a state that mandates custodial interrogations of suspects be recorded. When the Minnesota Supreme Court announced this decision in State v. Scales (log-in required) there was a bit of an outcry from prosecutors and law enforcement. Today, few argue with the wisdom of the decision or are critical of the requirement.
Christopher Slobogin (Vanderbilt University – Law School) has posted Manipulation of Suspects and Unrecorded Questioning: After 50 Years of Miranda Jurisprudence, Still Two (or Maybe Three) Burning Issues (Boston University Law Review, 2017) on SSRN.
Here is the abstract:
Fifty years after Miranda, courts still do not have clear guidance on the types of techniques police may use during interrogation. While first generation tactics (a.k.a. the third degree) are banned, second generation tactics such as those found in the famous Reid manual continue to be used by interrogators. The Supreme Court has sent only vague signals as to which of these second generation techniques, if any, are impermissible, and has made no mention of newly developed third generation tactics that are much less reliant on manipulation. This article divides second generation techniques into four categories: impersonation, rationalization, fabrication and negotiation. After concluding, based on a review of field and laboratory research, that these techniques might well have superior “diagnosticity” to third generation techniques — and thus that police might rationally want to continue using them — it argues that the Court’s Fifth Amendment and due process jurisprudence prohibits negotiation but permits impersonation, rationalization and fabrication. At the same time, the article recognizes that these techniques can produce false confessions; accordingly, it develops evidentiary principles for determining how courts might make use of expert testimony about factors that reduce the probative value of statements obtained during interrogation (although it also questions the methodology of much of the research that might form the basis for such testimony).
To ensure the evidence necessary for this constitutional and evidentiary analysis, interrogations must be recorded. While a recording requirement has been endorsed by commentators from all points of the political spectrum, here too the Court has been silent. This article summarizes why recording is required under the Due Process Clause, the Fifth Amendment and the Sixth Amendment, not just in the stationhouse but any time after custody. The article ends with comments on how all of this should apply to interrogations of suspected terrorists. Together, these prescriptions give courts the concrete guidance the Supreme Court has failed to provide despite 50 years of caselaw.
Civil forfeiture has a history dating back several hundred years, with roots in British maritime law to the British Navigation Acts around the middle 1600s. In many respects, it is an embedded feature of the criminal justice system. Drunk drivers lose their cars. Drug dealers lose their cash & valuables. But, in the past few years, the number of critics has grown.
In some states, civil forfeiture can occur even if there is not a conviction. Opposition to forfeiture without a conviction is particularly controversial. Seventy percent (69.9%) of Oklahoma’s likely-voters supported legislation that would allow law enforcement only to keep confiscated property when a criminal conviction is achieved. Results varied only slightly based on party affiliation, with 58 percent of Republicans strongly supporting the legislation, 53 percent of Democrats, and half of all Independents. Support was also seen among both liberals and conservatives, with 59 percent strong support among those who identified themselves as “very liberal,” and 72 percent among those who identified themselves as “very conservative.”
More recently, in a statewide poll done for the Texas Public Policy Foundation, Baselice & Associates asked 922 registered Texas voters (+/- 3.2% margin of error) from Jan. 22 to 29, 2017, the following question: “Civil asset forfeiture is when the state or federal government takes and keeps a person’s property without necessarily charging them with any criminal behavior. Should the state or federal government be allowed to take and keep a person’s property without a criminal conviction?”
Based on the results, an overwhelming majority of Texan voters don’t believe the state or federal government should be allowed to take and keep a person’s property without a criminal conviction. Below are the results of the poll, as well as crosstabs and the questions asked of voters:
Brandon L. Garrett (University of Virginia School of Law) has posted The Crime Lab in the Age of the Genetic Panopticon (Book Review) (Michigan Law Review, Vol. 114, 2017) on SSRN.
Here is the abstract:
“Scientific evidence really nails this man to the wall,” the Harris County, Texas prosecutor told the jurors in closing statements. At trial, George Rodriguez claimed he was innocent and that he had been working a factory the day of the crime. The prosecutor emphasized, however, that the blood type of swabs taken from the victim showed that Rodriguez did commit the crime and that a hair from the crime scene matched him. But seventeen years later, the same hair was tested again, this time using DNA analysis, and the evidence cleared Rodriguez and ultimately led to the crime crime lab being shut down and recreated. The Rodriguez case illustrates why the crime lab has entered a time of crisis. I will discuss that case and the larger story of the transformation of the Houston lab, to introduce the first of three wonderful new books that I review here: Sandra Guerra Thompson’s Cops in “Lab Coats: Curbing Wrongful Convictions Through Independent Forensic Laboratories.”
Second, I turn to Erin Murphy’s book, “Inside the Cell: The Dark Side of Forensic DNA,” to explore Murphy’s compelling account of why DNA testing is no panacea for these growing problems and may instead actually magnify some of them. These failings raise the larger question whether improved research to support forensic disciplines, national regulation regarding the quality and standards for labs, and constitutional criminal procedure to remedy the poor litigation of forensics in the courtroom can help to address the failings of our crime labs. I suggest that efforts to improve research, regulation, and criminal procedure are beginning to show promise, but that much remains to be done. Third, I will discuss Adam Benforado’s book, “Unfair: The New Science of Criminal Injustice, which looks broadly at the role of social science and criminal law, but focusing here on cognitive research and expert evidence. Finally, I will discuss how advances in scientific research and technology will reshape the crime lab of the future, creating new challenges and opportunities for criminal justice.
The ABA Journal recently had an interesting story by Debra Cassens Weiss. The story centers on Supreme Court Justice Clarence Thomas’s wife, Ginni Thomas. Ms. Thomas has been a long time political activist. At one point in her career she worked for Republican Congressman Dick Armey. The story Ms. Cassens Weiss wrote, in part, is:
Justice Clarence Thomas’ wife, Virginia “Ginni” Thomas, reportedly sent an email to a conservative group email list that asked how she could organize activists to support President Donald J. Trump.
The Feb. 13 email and a recent article by Ginni Thomas could raise recusal issues for justice, the Daily Beast reports. The publication obtained a copy of the email but did not reveal the source.
The email sought a way to counter grassroots efforts by a group called Daily Action, which opposes the Trump agenda, including the president’s temporary travel ban. In a recent article for the Daily Caller, Ginni Thomas commented on an interview with Christian Adams, the lawyer-author of Injustice: Exposing the Racial Agenda of the Obama Justice Department. Adams thinks acting Attorney General Sally Yates should have been dismissed even before she refused to defend the travel ban.
Thomas sounded a warning in her Daily Caller article. “Today, a subversive alt-government is emerging, in line with the alt-left’s growing resistance to use any means necessary to slow, stop and obstruct Trump’s agenda, from inside the government, to make America ungovernable,” she wrote.
Thomas sounded a similar theme in her email to the group email list.
“What is the best way to, with minimal costs, set up a daily text capacity for a ground up-grassroots army for pro-Trump daily action items to push back against the left’s resistance efforts who are trying to make America ungovernable?” Thomas wrote. She then referred to Daily Action and its popularity on Facebook.
“But there are some grassroots activists, who seem beyond the Republican party or the conservative movement, who wish to join the fray on social media for Trump and link shields and build momentum,” she wrote. “I met with a house load of them yesterday and we want a daily textable tool to start. … Suggestions?”
The Daily Caller spoke with ethics experts who said the timing of Thomas’ email suggests she was trying to organize support for Trump’s executive orders, including the temporary ban on entry into the United States by refugees and immigrants from seven majority-Muslim nations.
That kind of conduct by a justice’s spouse could spur “a nonfrivolous disqualification motion” by travel ban challengers, should the issue reach the U.S. Supreme Court, according to Georgetown University Law Center professor Heidi Li Feldman.”
So, what does a judge need to do when their spouse has their own political career? It may be reasonable to be concerned, but there are famous couples with decidedly different political views, e.g. James Carville & Mary Matalin. We no longer live in an era where husbands could simply tell their wives what job, if any, they could accept. Nor, for that matter, do we live in an era where wives can simply tell their husbands what job, if any, they can accept. So how does the modern-day judge appropriately deal with the political activity of their spouse.
The issue of recusal is not just an issue for judges in the United States. Judge Wayne Gorman provided some insight in Canadian thinking about recusal:
In Cabana v. Newfoundland And Labrador, 2014 NLCA 34, Mr. Cabana applied for an interlocutory injunction concerning the development of a hydro-electric power plant at Muskrat Falls in Labrador. The application was dismissed. Mr. Cabana appealed, arguing that the application judge should have recused herself. The Newfoundland and Labrador Court of Appeal indicated that the “grounds of appeal on which Mr. Cabana submits that the judge was required to recuse herself” included judge’s spouse as a partner in a law firm; legal work for Newfoundland and Labrador Hydro done by the judge prior to her appointment; and political donations made by the judge prior to her appointment…The final issue is disqualification of the judge based on the conduct of the hearing.”
Litigation – Judge’s Husband as Partner in a Law Firm:
The Court of Appeal indicated that Mr. Cabana “is being sued by Alderon Iron Ore Corporation and an individual. They are being represented, not by the judge’s husband, but rather by other lawyers in the firm in which the judge’s husband is a partner. Mr. Cabana says this gives the judge a pecuniary interest arising from her husband’s share of the fees from the Alderon litigation.”
The Court of Appeal concluded, at paragraph 26, that the “fact that the judge’s husband earns money as a partner in the law firm and that a portion of that money comes from litigation undertaken by the firm cannot form the basis for a finding of reasonable apprehension of bias by the judge in this case. The allegation does not pass muster when the Wewaykum test of an informed person, viewing the matter realistically and practically – and having thought the matter through – is applied.”
Legal Work for Hydro:
The Court of Appeal noted that in 2007, the applications judge “represented Newfoundland and Labrador Hydro in hearings before the Public Utilities Board. The hearings related to setting rates for electricity, which the Board regulates. Representing Hydro may be characterized as akin to representing Nalcor, which is a party to this proceeding, because Hydro is a wholly-owned subsidiary of Nalcor.”
The Court of Appeal concluded, at paragraph 38, that this did not form a basis for recusal. It indicated that “the judge did work for Hydro six years before Mr. Cabana raised the issue of apprehension of bias in this case. The work the judge did had no direct relationship to the issues at play in this case. The judge was not an employee of Hydro, having done the work on a contractual basis, and there was no evidence of an on-going solicitor-client relationship.”
However, the Court of Appeal also indicated that “it would have been preferable for the judge, at the outset, to disclose these facts, to give the parties an opportunity to consider their positions.”
The Court of Appeal indicated that Mr. Cabana “sought to put into evidence information concerning political donations the judge made prior to her appointment as a judge.” The Court of Appeal held that the application judge “correctly refused to allow the evidence. A lawyer is free to engage in political activity and to make donations to political parties. This changes upon appointment as a judge.”
Sleepy Punishers Are Harsh Punishers: Daylight Saving Time and Legal Sentences by Kyoungmin Cho, Christopher Barnes, and Cristiano Guanara
Abstract: The degree of punishment assigned to criminals is of pivotal importance for the maintenance of social order and cooperation. Nonetheless, the amount of punishment assigned to transgressors can be affected by factors other than the content of the transgressions. We propose that sleep deprivation in judges increases the severity of their sentences. We took advantage of the natural quasi-manipulation of sleep deprivation during the shift to daylight saving time in the spring and analyzed archival data from judicial punishment handed out in the U.S. federal courts. The results supported our hypothesis: Judges doled out longer sentences when they were sleep deprived.
Are Sleepy Punishers Really Harsh Punishers?: Comment by Holger Spamann
Abstract: This comment points out four severe reservations regarding Cho et al.’s (PS 2017) finding that U.S. federal judges punish more harshly on “sleepy Mondays,” the Mondays after the start of Daylights Savings Time. First, Cho et al.’s finding pertains to only one of at least two dimensions of harshness, and the opposite result obtains in the second dimension. Second, even within the first dimension, Cho et al.’s result is statistically significant only because of a variable transformation and sample restrictions that are neither transparent in the article nor theoretically sound. Third, reanalysis of the data with superior methods reveals no significant “sleepy Monday” effect in the years 1992- 2003. Fourth, sentences were on average shorter on “sleepy Mondays” out of sample, namely in 2004-2016.
If you read all of the recent academic studies on judges…and sleep on it…it is possible that you will achieve the goal of getting adequate rest.
Recently there have been studies specifically examining how sleep or lack of sleep might affect a judge’s decision. It may not take a study to convince you that decision making during periods of fatigue might not be optimal. But, for those skeptics, there is relief in sight. Holger Spamann (Harvard Law School) has posted Are Sleepy Punishers Really Harsh Punishers?: Comment on SSRN.
Here is the abstract:
This comment points out four severe reservations regarding Cho et al.’s (PS 2017) finding that U.S. federal judges punish more harshly on “sleepy Mondays,” the Mondays after the start of Daylights Savings Time. First, Cho et al.’s finding pertains to only one of at least two dimensions of harshness, and the opposite result obtains in the second dimension. Second, even within the first dimension, Cho et al.’s result is statistically significant only because of a variable transformation and sample restrictions that are neither transparent in the article nor theoretically sound. Third, reanalysis of the data with superior methods reveals no significant “sleepy Monday” effect in the years 1992-2003. Fourth, sentences were on average shorter on “sleepy Mondays” out of sample, namely in 2004-2016.
Thanks to Judge Wayne Gorman who shared this interesting analysis:
The Sentencing Advisory Council for Victoria, on February 20, 2017, released a discussion paper entitled: Swift, Certain and Fair Approaches to Sentencing Family Violence Offenders (see https://www.sentencingcouncil.vic.gov.au/).
Following a recommendation by the Royal Commission into Family Violence, the Council was asked in September of 2016 to advise the Attorney-General on the desirability of implementing a “swift, certain and fair” approach to sentencing family violence offenders, and how such an approach might be implemented in Victoria.
The Royal Commission described the principles of “swift and certain” approaches to include:
-a clearly defined behavioural contract – that is, rules setting out the conditions of compliance and consequences of non-compliance in a way that is clearly understandable to an offender;
-consistent application of those rules;
-swift delivery of the consequences of non-compliance; and
-parsimonious use of punishment – that is, the least amount of punishment necessary to bring about the desired change.
The Council was also asked, in the event that the government introduces some form of “swift and certain” approach, to advise on the following matters:
-which specific approaches are preferred within the Victorian context;
-whether there are particular groups of family violence offenders at which swift and certain approaches should be focused;
-whether modifications to current laws and sentencing practice and procedure are needed to support preferred swift and certain approaches;
-whether additional sentencing options are needed to support preferred swift and certain approaches;
-the broad demand implications of any approach, or approaches, that the Council may consider desirable; and
-any other matter that the Council considers appropriate.
The new discussion paper forms the basis of the Council’s consultation and community engagement, and contains:
-a definition of what “swift, certain and fair” approaches are;
-a summary of the available evidence about the effectiveness of ‘swift, certain and fair’ approaches;
-an outline of the current frameworks for managing family violence offenders in Victoria; and
-a discussion of possible options for implementing a ‘swift, certain and fair’ approach in Victoria.
The discussion paper notes that for “the criminal justice system to be effective, it must respond to crime in a timely, consistent and fair manner. People who would otherwise engage in criminal behaviour are most effectively deterred when they perceive their chances of being caught as high, and when they believe that sanctions will be imposed sooner rather than later.”
Swift and certain prosecution of community correction order contraventions:
The discussion paper indicates that one option “for implementing an SCF [swift, certain and fair] approach in Victoria may be to change the way in which high-risk family violence offenders who have been sentenced to a community correction order (CCO) are responded to whenever they contravene the conditions of the CCO. In addition to fast-tracking CCO contravention prosecutions that involve family violence offenders, a reformed approach might involve legislative change. For example, when sentencing, a court might be allowed to prescribe CCO conditions that should be targeted with a ‘zero-tolerance’ approach to prosecution for contravention, thereby requiring particular (or indeed all) condition contraventions to be met with a swift and certain response.”
Alternatively, the discussion paper notes that “Corrections Victoria could implement a different (administrative) approach to the management of high-risk family violence offenders on a CCO, again requiring condition contraventions to be met with a swift and certain response.”
Minnesota trial judge Kevin Burke is concerned about negative public perceptions of our courts – especially among people of color.
People too often believe they are treated unfairly and that judges are biased and make their decisions based upon “political views” and not the law. They also think judges are not understandable and that court processes are mysteries.
Judge Burke is on a mission to stem this negative tide. He has studied this issue, done surveys, written about it and is lecturing extensively to judicial groups across the country.
Judge Burke says to counteract the problem, judges need to do a better job with basic “procedural fairness” – making sure everyone feels they are being treated fairly and that people understand what a judge does in court…and why.
He says judges, not only need to explain what they do in understandable terms, but they need to listen better to people who want to tell their story.
Judge Burke believes that people don’t trust what they don’t understand and that it is a duty of every judge to make sure each party understands what the court is doing. If this happens, according to the judge, compliance with court orders increases, recidivism decreases, and public perception improves.
He is a proponent of giving parties before the court “voice and respectful treatment.” In that way, judges can foster a sense of neutrality and fairness.
If judges follow guidelines for procedural fairness, Judge Burke argues that perceptions of the judicial system will improve and become positive instead of negative.
You can find the podcast here.
Michael D. Cicchini has posted The Battle over the Burden of Proof: A Report from the Trenches (University of Pittsburgh Law Review, Vol. 79, No. 1, 2017) on SSRN.
Here is the abstract:
After explaining the concept of “proof beyond a reasonable doubt,” many trial courts will conclude their burden of proof instructions by telling jurors “not to search for doubt” but instead “to search for the truth.” Criminal defense lawyers have argued that such truth-based instructions improperly lower the burden of proof to a mere preponderance of evidence standard. Prosecutors, however, have dismissed defense lawyers’ concerns as pure speculation.
To resolve this dispute, Professor Lawrence White and I empirically tested the impact of truth-based jury instructions on verdicts. In our two recently published studies, mock jurors who received truth-based instructions convicted at significantly higher rates than jurors who were simply instructed on reasonable doubt. Jurors who received the truth-based instructions were also far more likely to mistakenly believe it was proper to convict even when they had a reasonable doubt about guilt.
Based on plain language, logical argument, and now the supporting empirical evidence, we defense lawyers have been asking trial courts to remove truth-related language from their burden of proof jury instructions. Prosecutors, however, are fighting to keep these burden-lowering, truth-based instructions and have made twenty different arguments when attempting to preserve the status quo.
This Article collects, organizes, and debunks these prosecutorial arguments. Its purpose is to assist criminal defense lawyers and judges in recognizing and responding to invalid arguments, many of which are based on logical fallacies, misstatements of law, misrepresentations of fact, or a gross misunderstanding of the scientific research. Debunking these prosecutorial arguments is a critical step in winning the battle over the burden of proof and protecting each defendant’s right to remain free of conviction “except upon proof beyond a reasonable doubt.”