Thinking About Judicial Ethics

posted by Judge_Burke @ 14:30 PM
May 10, 2017

Dealing with ex parte requests should make every judge quite nervous. Dealing with domestic violence or the welfare of a child should make every judge vigilant. So, what happens when the two intersect? A New Jersey judge facing disciplinary action for allegedly intervening in a child custody matter defended herself at a judicial conduct hearing, saying she acted properly given the facts she had at the time.

Passaic County Superior Court Judge Liliana DeAvila-Silebi is charged with violating the judicial code of conduct by calling the police on a weekend and having a child transferred from one parent to another.

At the time, DeAvila-Silebi was in the middle of transferring from Bergen County to Passaic County, and was an emergent judge on call that weekend. DeAvila-Silebi told the state Supreme Court’s Advisory Committee on Judicial Conduct that she received a call on her cellphone from someone purporting to be an attorney, who read a Family Court order describing a child custody agreement and alleging that the father had violated the order by keeping the child out of school for a week and not returning him to his mother.

“You can’t help but be human,” the judge told the ACJC. “As a judge you still have compassion. DeAvila-Silebi’s attorney, Raymond Reddin, said in the answer that she acted as best she could under the circumstances.” Given the volume, the unexpectedness, and the ex parte nature of these emergent phone calls, it would be very unreasonable and unrealistic to expect an emergent judge, without the benefit of a court staff or even a file, to field an emergent call on a weekend and completely vet the entire situation prior to making a decision,” he said.

It turned out that the phone call, purportedly from an attorney, came from an unidentified male using a phone later found to belong to the mother of the child involved in the custody dispute, the complaint said.


Important Decision on Bail in Texas

posted by Judge_Burke @ 14:30 PM
May 9, 2017

For the most part, much of the current efforts to reform bail practices are through rules, statutory or even state constitutional amendments. But, there is litigation, and a decision from the Federal Court in Texas is worth noting.

A federal judge recently issued a 193 page ruling, holding that the Harris County money bail system is unconstitutional and saying it is fundamentally unfair to detain indigent people arrested for low-level offenses simply because they can’t afford to pay bail. In his ruling, Chief U.S. District Judge Lee H. Rosenthal ordered the county to begin releasing indigent inmates as early as May 15 without posting cash bail while they are awaiting trial on misdemeanor offenses. 

Rosenthal concluded the county’s bail policy violates the due process and equal protection clauses of the Constitution, and granted “class-action” status to the case, meaning that her findings will apply to all misdemeanor defendants.”Liberty is precious to Americans and any deprivation must be scrutinized,” the order states, citing a comment from Texas Supreme Court Chief Justice Nathan.The ruling — a temporary action that will stay in place until the lawsuit is resolved — will not apply to those charged with felonies, or those who are being detained on other charges or holds. First Assistant County Attorney Robert Soard said late Friday that officials are reviewing the orders.”No decision has been made at this time concerning an appeal of the preliminary injunction.”


Really? You Mean We Cannot Keep the Money?

posted by Judge_Burke @ 14:30 PM
May 8, 2017

The U.S. Supreme Court ruled 7-1 in Nelson v. Colorado that “[p]eople who are freed from prison when their convictions are reversed deserve a refund of what they paid in fees, court costs and restitution,” wrote David Savage for the Los Angeles Times.

The case was brought by two people “who were convicted of sex crimes but had their convictions reversed.” After the reversals, “the state insisted on keeping the restitution they had paid.” Justice Ruth Bader Ginsburg, who authored the majority opinion, wrote that they “are entitled to be presumed innocent” and that the state “has zero claim” to their money. She added that “Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary extractions.” Justice Clarence Thomas dissented from the ruling, writing that “petitioners have not demonstrated that the defendants whose convictions have been reversed possess a substantive entitlement, under either state law or the Constitution, to recover money they paid to the state pursuant to their convictions.” Justice Samuel Alito, who filed a separate concurrence, wrote that while he agreed with the outcome, it was “unnecessary for the court to issue a sweeping pronouncement on restitution.”


The Atlantic on Plea Bargaining

posted by Judge_Burke @ 14:30 PM
May 5, 2017


Shondel Church was arrested in Kansas City, Missouri, last July, accused of stealing a generator and a tool box from his stepmother. He sat in Lafayette County Jail for six weeks before his first conversation with a public defender, Matthew Gass. Gass was reportedly hopeful that he could win the case at trial, but explained that the intensity of his workload meant he would need six months to prepare—six months during which Church would remain jailed. As a father of four and his family’s primary breadwinner, Church felt he couldn’t wait that long and instead pled guilty to a misdemeanor. He received two years of probation and a $2,600 bill for his stay in pretrial detention.

Ninety-seven percent of federal cases are settled the way Church’s was, by plea bargain. State-level data suggest similar numbers nationwide. Though access to a public trial is enshrined in the Sixth Amendment, taking a plea forecloses that possibility. “This constitutional right, for most, is a myth,” U.S. District Judge John Kane wrote in 2014—one voice among a chorus of jurists, advocates, and academics all calling for reform. Some want tweaks to the regulation and oversight of pleas; others urge more ambitious overhaul of the way trials are conducted, streamlining the process to make it accessible to greater numbers of people.

Plea bargains were almost unheard of prior to the Civil War. Only in its aftermath, as waves of displaced Americans and immigrants rolled into cities and crime rates climbed, did appellate courts start documenting exchanges that resemble the modern practice. The plea became a release valve for mounting caseloads. Appellate courts “all condemned it as shocking and terrible” at the time, said Albert Alschuler, a retired law professor who has studied plea bargains for five decades. The courts raised a range of objections to these early encounters, from the secretiveness of the process to the likeliness of coercing innocent defendants. Pleas, wrote the Wisconsin Supreme Court in 1877, are “hardly, if at all, distinguishable in principle from a direct sale of justice.”


Keep reading here.







Come To Cleveland!!!!

posted by Judge_Burke @ 14:34 PM
May 4, 2017

AJA is excited to announce that the information for the 2017 Annual Educational Conference in Cleveland is now available on the AJA website at  The printed registration brochure is in the mail to all members, but right now you can find that brochure, an online and printable registration form, link to the Renaissance Cleveland’s website and to their special reservations page for AJA under the above link (please note the August 15 cut-off date).  The conference will be September 10-15, and all members are welcome and encouraged to attend for some outstanding education sessions, wonderful opportunities to talk with colleagues from across the United States and Canada, and to enjoy the many, many attractions of the vibrant city of Cleveland.  The Planning Committee is working on some wonderful optional activities, perhaps including group tickets to a Cleveland Indians game and/or the Rock and Roll Hall of Fame, so watch your email for more information.  Don’t miss this terrific conference!

PLUS, the first 100 PAID registrants for the conference will receive a free 7″, 8-gig Amazon Fire Tablet with Alexa to use during the conference and to take home with you.  Payment MUST accompany your registration, either by credit card or check.


Racial Profiling In Canada

posted by Judge_Burke @ 15:00 PM
May 3, 2017

David M. Tanovich (University of Windsor – Faculty of Law) has posted Applying The Racial Profiling Correspondence Test (66(1) Criminal Law Quarterly, 2018, Forthcoming) on SSRN.

Here is the abstract:

In the landmark Canadian racial profiling case of R v Brown, an unanimous Ontario Court of Appeal firmly recognized that racial profiling is a reality that is “supported by significant social science research.” 

Brown established a correspondence test for proving racial profiling. This paper aims to set out, in some detail, how and when the correspondence test can be applied.

Part I sets out the test from Brown. Part II identifies the different manifestations of racial profiling. Part III examines the relevant indicators that can be used to meet the test. These indicators include context, pretext and lessons learned. Part III also summarizes the recent carding/street check data which reveals the widespread nature of the disproportionate policing of Black and other racialized individuals in a number of cities across Canada. 

It is suggested that this evidence requires a reconsideration of the argument made in Peart v Peel Regional Police Services that there should be a rebuttable presumption of racial profiling in litigation. Parts II and III are presented in a largely non-traditional format to enhance accessibility and appreciation of the nature and scope of the problem. The paper concludes with a discussion of the relevance of the impact of racial profiling in assessing whether to exclude evidence found in breach of the Charter even where there is no finding of racial profiling in the particular case. This is an important contribution to our exclusionary rule jurisprudence and should be relied on in any case involving a racialized or Aboriginal accused. Finally, an Appendix is included which documents twenty-seven (27) positive judicial and tribunal findings of racial profiling by police in Canada in the post-Charter era.


The Time Has Come: We Must Speak Up on Behalf of Judges

posted by Judge_Burke @ 15:00 PM
May 2, 2017


           The late Chief Justice William Rehnquist once said that criticism of judges and their decisions “is as old as our Republic” and can be a healthy part of the balance of power between the branches of government. Today, however, recent attacks on judges have not only become unhealthy but threaten to undermine the public’s understanding of the role of judges in a democratic society.

           In a democratic society, judges will inevitably make rulings that challenge the authority of the other two branches or that protect the disadvantaged and those without political power.

           Intemperate personal attacks on judges by political leaders are simply wrong. The political leaders of our country have an obligation to foster public understanding of the role of courts, even when they disagree with a court’s ruling.

           Judges have historically been reluctant to respond to unfair attacks. But as far back as Chief Justice John Marshall, there have been times when judges have seen the need to speak up. This is one of those times.

           The leaders of the American Judges Association will speak out in defense of judges who are unfairly attacked, and we encourage others to do so too. Unfair or unseemly attacks on individual judges are not merely an attack on that individual judge—they are an attack on the institution of the judiciary, an institution indispensable to our democracy.

Approved by the Board of Governors at its April 29, 2017 meeting in Arlington, Virginia.


Happy Law Day…It is May 1st!

posted by Judge_Burke @ 16:11 PM
May 1, 2017

In 1958, when President Dwight D. Eisenhower proclaimed May 1 to be Law Day USA, he stated, “In a very real sense, the world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law.”

Each year the American Bar Association designates a Law Day theme to highlight an issue that is important. Although we have different roles, each of us who work in the courts contributes to insuring our community has a fair and effective system of justice. Sometimes we deal with difficult people, those who are under stress or with seemingly intractable problems. We might not get it right every time – after all, we are human.

The theme for Law Day 2017 is the 14th Amendment. Since its adoption, the 14th Amendment has been a key to liberty and freedom for a lot of people, but in the end, it is a document used by people like us to make our nation a better place. What we do is important, so in a sense Law Day is a celebration of our contributions to democracy.   

About the 2017 Law Day Theme

The 14th Amendment: Transforming American Democracy

The 2017 theme provides the opportunity to explore the many ways that the Fourteenth Amendment has reshaped American law and society. Through its Citizenship, Due Process and Equal Protection clauses, this transformative amendment advanced the rights of all Americans. It also played a pivotal role in extending the reach of the Bill of Rights to the states. Ratified during Reconstruction a century and a half ago, the Fourteenth Amendment serves as the cornerstone of landmark civil rights legislation, the foundation for numerous federal court decisions protecting fundamental rights, and a source of inspiration for all those who advocate for equal justice under law.

Click here to learn more about the 14th Amendment through the Library of Congress.

Click here to listen to the audio news release.



Since the decision in Padilla, there has been a lot more discussion about collateral consequences. Some cynics say there are nearly 40,000, so no one can adequately have knowledge of them all. But, in medicine, doctors face thousands of alternatives about why the human body gets sick and the reaction is not, “Darn, it is just too complicated!”

Gabriel “Jack” Chin (University of California, Davis – School of Law) has posted Collateral Consequences of Criminal Conviction (Academy for Justice, A Report on Scholarship and Criminal Justice Reform (Erik Luna ed., 2017, Forthcoming)) on SSRN.

Here is the abstract:

For many people convicted of crime, the greatest effect will not be imprisonment, but being marked as a criminal and subjected to collateral consequences. Consequences can include loss of civil rights, public benefits, and ineligibility for employment, licenses, and permits. Often applicable for life, the United States, the 50 states, and their agencies and subdivisions impose collateral consequences based on convictions from any jurisdiction. Collateral consequences are so numerous and scattered as to be virtually uncountable. In recent years, the American Law Institute, ABA, and Uniform Law Commission all have proposed reforms.

Collateral consequences should be: (1) collected so that defendants, lawyers, judges and policymakers can know what they are; (2) incorporated into counseling, plea bargaining, sentencing and other aspects of the criminal process; (3) subject to relief so that individuals can pursue law-abiding lives, and regain equal status; and (4) limited to those that evidence shows reasonably promote public safety.


If you look at those courts that are plagued with court delay, one of the principle factors is discovery disputes. If you look among those courts at those that have an incidence of wrongful convictions, wrongfully withheld discovery is a principal factor. Reform is necessary. 

Darryl K. Brown (University of Virginia School of Law) has posted Discovery Reform in State Criminal Justice (Forthcoming in Academy for Justice: A Report on Scholarship and Criminal Justice Reform (Erik Luna ed., 2017)) on SSRN.

Here is the abstract:

Rules of pretrial evidence disclosure vary widely in state criminal justice systems. In all states discovery is more restricted than it is in civil litigation. In a substantial minority of states, it remains dramatically restricted. That is in part a relic of the common law tradition when it was assumed most cases would be resolved by trial. But trials are now rare; nearly all convictions are the result of a plea bargain. The pretrial stage is the only place in which adversarial process operates and in which parties can evaluate evidence. Most states have adopted broader discovery rules in light of this reality, because disclosure failures have led to wrongful convictions, and because experience show that risks related to certain disclosures are easily managed. The primary agenda for discovery reform in state criminal justice is to convince those states that still adhere to outdated disclosure policies to join the majority of their peers and require more evidence to be exchanged between prosecutors and defense attorneys prior to plea bargaining.