There are people who lie to judges. Recently, a colleague of mine had a party/mother tell him that she was not living with a registered sex offender (it was a custody dispute)…and when the other party/father said to the judge, “that is him sitting in the audience!,” the man stood up and denied that his name was Mr. Thadious Jones (i.e., the name of the live-in boyfriend). The judge had a booking photo of the registered sex offender — and although it is plausible the man was a long lost identical twin, the more likely conclusion was the judge was lied to.

There is research that concludes judges are no better than others in determining who is telling the truth. Yet trial judges inherently must make credibility findings. This case, forwarded by Judge Wayne Gorman, illustrates challenges we face in making those credibility calls:

In MacKay v. MacKenzie, 2016 PECA 16, October 14, 2016, two neighbours became involved in a boundary dispute. The trial judge found in favour of Mackay. In doing so, the trial judge indicated in his reasons that he did not believe Mr. MacKenzie and that he did not believe the evidence of Mr. MacKenzie’s wife and sons.  The trial judge found that “the entire family lied under oath.”

On appeal, the Prince Edward Island Court of Appeal reversed the trial judge’s decision.  In doing so, the Court of Appeal suggested that a trial judge “must exercise great care before branding a witness, let alone his entire family, as liars” (at paragraphs 42 and 43): 

While the trial judge has the best perspective from which to assess credibility, and such assessments are due great deference, findings must be properly grounded.  A trial judge is free to accept or reject, in whole or in part, the testimony of any witness.  Rejection of a witness’ evidence does not necessarily mean that the witness is lying.  There are any number of reasons for rejecting the evidence of one witness and accepting the evidence of another, including that the honest witness was simply mistaken.

There are indeed occasions where it may be proper and necessary for a trial judge to label a witness a liar.  This, however, is not one of them.  The judicial determination that one is a liar can have a profoundly detrimental impact on a person’s reputation.  The person, so judged, has no defence to the judicial pronouncement filed on the public record.  A trial judge must exercise great care before branding a witness, let alone his entire family, as liars.

The trial judge’s determination was based, in part, on demeanor. The Court of Appeal indicated that a “determination that a witness is a liar should be supported by a rational explanation comprised of more than observations of the demeanor of a witness” (at paragraph 55).

Finally, the Court of Appeal indicated that “an undue amount of time elapsed between the trial and delivery of the reasons for judgment” (the trial commenced on August 20, 2014, and continued on October 9 and 10, 2014.  A decision was rendered on June 10, 2015).  The Court of Appeal suggested that the delay “could reasonably be perceived as compromising the recollection of the writer about the evidence at trial” (at paragraph 58).


Are Risk Assessments Racist?

posted by Judge_Burke @ 14:30 PM
October 21, 2016

By far one of the best criminal law blogs is the Sentencing Law & Policy  Blog. From a recent posting:

A group of Stanford professors and students have this thoughtful new Washington Post commentary headlined “A computer program used for bail and sentencing decisions was labeled racist. It’s actually not that clear.” The piece is a must-read for everyone concerned about risk-assessment technologies (which should be everyone).  Here are excerpts:

This past summer, a heated debate broke out about a tool used in courts across the country to help make bail and sentencing decisions. It’s a controversy that touches on some of the big criminal justice questions facing our society. And it all turns on an algorithm.

The algorithm, called COMPAS, is used nationwide to decide whether defendants awaiting trial are too dangerous to be released on bail. In May, the investigative news organization ProPublica claimed that COMPAS is biased against black defendants. Northpointe, the Michigan-based company that created the tool, released its own report questioning ProPublica’s analysis. ProPublica rebutted the rebuttal, academic researchers entered the fray, this newspaper’s Wonkblog weighed in, and even the Wisconsin Supreme Court cited the controversy in its recent ruling that upheld the use of COMPAS in sentencing.

It’s easy to get lost in the often technical back-and-forth between ProPublica and Northpointe, but at the heart of their disagreement is a subtle ethical question: What does it mean for an algorithm to be fair? Surprisingly, there is a mathematical limit to how fair any algorithm — or human decision-maker — can ever be.

The COMPAS tool assigns defendants scores from 1 to 10 that indicate how likely they are to reoffend based on more than 100 factors, including age, sex and criminal history. Notably, race is not used. These scores profoundly affect defendants’ lives: defendants who are defined as medium or high risk, with scores of 5-10, are more likely to be detained while awaiting trial than are low-risk defendants, with scores of 1-4.

We reanalyzed data collected by ProPublica on about 5,000 defendants assigned COMPAS scores in Broward County, Fla. (See the end of the post, after our names, for more technical details on our analysis.) For these cases, we find that scores are highly predictive of reoffending. Defendants assigned the highest risk score reoffended at almost four times the rate as those assigned the lowest score (81 percent vs. 22 percent).

Northpointe contends they are indeed fair because scores mean essentially the same thing regardless of the defendant’s race. For example, among defendants who scored a seven on the COMPAS scale, 60 percent of white defendants reoffended, which is nearly identical to the 61 percent of black defendants who reoffended. Consequently, Northpointe argues, when judges see a defendant’s risk score, they need not consider the defendant’s race when interpreting it….

But ProPublica points out that among defendants who ultimately did not reoffend, blacks were more than twice as likely as whites to be classified as medium or high risk (42 percent vs. 22 percent). Even though these defendants did not go on to commit a crime, they are nonetheless subjected to harsher treatment by the courts. ProPublica argues that a fair algorithm cannot make these serious errors more frequently for one race group than for another.

Here’s the problem: it’s actually impossible for a risk score to satisfy both fairness criteria at the same time…. If Northpointe’s definition of fairness holds, and if the recidivism rate for black defendants is higher than for whites, the imbalance ProPublica highlighted will always occur.

It’s hard to call a rule equitable if it does not meet Northpointe’s notion of fairness. A risk score of seven for black defendants should mean the same thing as a score of seven for white defendants. Imagine if that were not so, and we systematically assigned whites higher risk scores than equally risky black defendants with the goal of mitigating ProPublica’s criticism. We would consider that a violation of the fundamental tenet of equal treatment.

But we should not disregard ProPublica’s findings as an unfortunate but inevitable outcome. To the contrary, since classification errors here disproportionately affect black defendants, we have an obligation to explore alternative policies. For example, rather than using risk scores to determine which defendants must pay money bail, jurisdictions might consider ending bail requirements altogether — shifting to, say, electronic monitoring so that no one is unnecessarily jailed.

COMPAS may still be biased, but we can’t tell. Northpointe has refused to disclose the details of its proprietary algorithm, making it impossible to fully assess the extent to which it may be unfair, however inadvertently. That’s understandable: Northpointe needs to protect its bottom line. But it raises questions about relying on for-profit companies to develop risk assessment tools.

Moreover, rearrest, which the COMPAS algorithm is designed to predict, may be a biased measure of public safety. Because of heavier policing in predominantly black neighborhoods, or bias in the decision to make an arrest, blacks may be arrested more often than whites who commit the same offense.

Algorithms have the potential to dramatically improve the efficiency and equity of consequential decisions, but their use also prompts complex ethical and scientific questions. The solution is not to eliminate statistical risk assessments. The problems we discuss apply equally to human decision-makers, and humans are additionally biased in ways that machines are not. We must continue to investigate and debate these issues as algorithms play an increasingly prominent role in the criminal justice system.


Can the Police Conduct Sweeps to Clear People Off the Streets?

posted by Judge_Burke @ 14:30 PM
October 20, 2016

The Sixth Circuit Court of Appeals has ruled that the city of Memphis can no longer conduct sweeps to clear people off Beale Street unless public safety requires it.

U.S. District Judge Jon McCalla issued his ruling in June 2015, ending a police practice that has existed for years in which officers “sweep” the street to clear people off or push them into clubs, usually in the early morning hours of weekends.

After McCalla’s decision, the city appealed. In October 2016, the Sixth Circuit ruled.

“The jury found that the city implemented its street-sweeping policy without consideration of whether conditions throughout the Beale Street area posed an existing, imminent or immediate threat to public safety. Based on the jury’s findings, the district court found the policy unconstitutional under strict scrutiny, entered an injunction and ordered other equitable relief on behalf of the class,” the ruling read. “For the reasons set forth below, we affirm the district court.”

A primary reason the court cited was that a citizen has the right to ”travel locally through public spaces and roadways.” The city argued that the sweeps have only a minimal affect, if any, on that right.

The opinion can be found here.


The Brooking Institution has interesting short papers outlining what the next President should do. Certainly criminal justice reform is one of the issues the next President needs to deal with: 

Americans across partisan, ideological, and racial lines are rethinking the country’s criminal justice system. This is entirely appropriate—and necessary. And yet, conversations, debates, and policy prescriptions around this issue often are not rooted in sound data. All too often, convoluted and even contradictory facts are cited, undermining efforts to improve a system that is in many ways broken. In this brief, we seek to provide citizens and policymakers—including the next president—with a framework for assessing the opportunities and challenges of criminal justice reform by situating decades-long trends in crime and punishment in the appropriate historical and comparative contexts. We have compiled, and report here, the best substantiated data on five critical elements of the criminal justice system: nationwide crime rates; prison population and buildup; the costs of incarceration; and individuals killed by police.

Taken together, the facts presented here establish an evidentiary basis that will allow interested parties to approach these exceedingly complex issues from a common place of factual understanding. We conclude by examining recent legislative efforts related to criminal justice reform and urging the next president and congress to seize the opportunity afforded by contemporary bi-partisan support and public demand for action around these issues.

The future course of the American criminal justice system has come under immense scrutiny in very recent years. The White House has indicated that substantial reform would be a leading priority for President Obama’s last year in office; both chambers of congress have seen legislation introduced and debated; Americans across the country have turned their passionate attention to the issue; and the subject has been raised in all of the presidential and vice presidential debates thus far in the 2016 campaign. At times, however, the passions of both citizens and lawmakers on this issue are fueled by incomplete, inaccurate, and insufficient data. For that reason, we set out to collect and compile the best substantiated data on critical elements of the criminal justice system and to provide an informed and common framework for understanding the state of the system today, and the proposed reforms that will shape its future.


The full report can be found here.  



The Right to Speedy Sentencing

posted by Judge_Burke @ 14:30 PM
October 18, 2016

Last term, the United States Supreme Court ruled that there is no constitutional right to a speedy sentencing. It might be good public policy (speed to disposition impacts recidivism, and reducing the number of appearances per disposition impacts efficiency), but good public policy and a constitutional right are different.

Carissa Byrne Hessick (University of North Carolina (UNC) at Chapel Hill – School of Law) has posted Betterman v. Montana and the Underenforcement of Constitutional Rights at Sentencing (Ohio State Journal of Criminal Law, Vol. 14, No. 1, Forthcoming) on SSRN.

Here is the abstract:

This past Term, in Betterman v. Montana, the U.S. Supreme Court took up the question whether the Sixth Amendment’s speedy trial guarantee applies to sentencing proceedings. In a unanimous opinion by Justice Ginsburg, the Court held that it does not. Perhaps in order to achieve unanimity, Betterman left open important questions, which may ultimately allow defendants, at least in some situations, to demand a speedy sentencing. But, as this short commentary explains, Betterman represents an unfortunate example of the courts’ tendency to underenforce constitutional rights at sentencing.


Tinkering for Tightening

posted by Judge_Burke @ 14:30 PM
October 17, 2016

In the last few terms of the United States Supreme Court, there were records set both for fewest opinions in modern times and most number of words ever. While lawyers are verbose, judges can have the same affliction. A recent posting by the lawprose blog had great tips for lawyers that are just as useful for judges:

Most professional writing (the type you see in major newsmagazines) is tight; most legal writing isn’t. You want a tip on tightening? After you have a fairly polished draft, look at the last line, half-line, or quarter-line of every paragraph. Play with the paragraph to try to shorten it by one line. It’s a little editorial game you can play, and it works. An example:

A few cases tend to suggest that if a plaintiff’s own inexcusable neglect was responsible for the failure to name the correct party, an amendment substituting the proper party will not be allowed, notwithstanding that adequate notice has been given to the new party. Although this factor is germane to the question of permitting an amendment, it is more closely related to the exercise by the trial court of discretion under Rule 15(a) about whether to allow the change than it is to the satisfaction of the requirements of notice pursuant to Rule 15(c).

So we try to save half a line with a little tinkering:

A few cases tend to [Some cases] suggest that if a plaintiff’s own inexcusable neglect was responsible for [caused] the failure to name the correct party, an amendment substituting the proper party will not be allowed, notwithstanding that adequate notice has been given [despite adequate notice] to the new party. Although this factor is germane to the question of permitting an amendment, it is more closely related to the exercise by the trial court of discretion [trial court’s discretion] under Rule 15(a) about whether to allow the change than it is to the satisfaction of the requirements of notice pursuant to Rule 15(c) [Rule 15(c)’s notice requirements].

The changes here: 5 words to 2; 3 words to 1; 7 words to 3; 5 words to 3; and 5 words to 3. Let’s see the result…


Keep reading here



posted by Judge_Burke @ 14:30 PM
October 14, 2016

Our nation is divided on the issue of marijuana. Governing Magazine reports that the wife of a candidate for Governor will be charged with possession of marijuana because she uses it to alleviate pain from chronic arthritis. Arizona voters will vote in November whether to fully legalize marijuana as have a few other states. But make no mistake, there are those who see decriminalization as a very bad policy choice.

A study released Wednesday by the American Civil Liberties Union (ACLU) and Human Rights Watch (HRW) (advocacy websites) found that arrests for possessing marijuana exceeded arrests for violent crimes. Law enforcement agencies made roughly 13.6 percent more arrests for possession of marijuana, reportedly for personal use, than arrests for violent crimes. Here is part of the report’s summary introduction:

Every 25 seconds in the United States, someone is arrested for the simple act of possessing drugs for their personal use, just as Neal and Nicole were. Around the country, police make more arrests for drug possession than for any other crime. More than one of every nine arrests by state law enforcement is for drug possession, amounting to more than 1.25 million arrests each year. And despite officials’ claims that drug laws are meant to curb drug sales, four times as many people are arrested for possessing drugs as are arrested for selling them.

As a result of these arrests, on any given day at least 137,000 men and women are behind bars in the United States for drug possession, some 48,000 of them in state prisons and 89,000 in jails, most of the latter in pretrial detention. Each day, tens of thousands more are convicted, cycle through jails and prisons, and spend extended periods on probation and parole, often burdened with crippling debt from court-imposed fines and fees. Their criminal records lock them out of jobs, housing, education, welfare assistance, voting, and much more, and subject them to discrimination and stigma. The cost to them and to their families and communities, as well as to the taxpayer, is devastating. Those impacted are disproportionately communities of color and the poor.

This report lays bare the human costs of criminalizing personal drug use and possession in the US, focusing on four states: Texas, Louisiana, Florida, and New York. Drawing from over 365 interviews with people arrested and prosecuted for their drug use, attorneys, officials, activists, and family members, and extensive new analysis of national and state data, the report shows how criminalizing drug possession has caused dramatic and unnecessary harms in these states and around the country, both for individuals and for communities that are subject to discriminatory enforcement.


Could Atticus Finch Get Elected?

posted by Judge_Burke @ 15:33 PM
October 13, 2016

Representing the unpopular client is not easy, but a fair system of justice requires lawyers willing to take on difficult and emotionally charged cases.

Atticus Finch, the fictional lawyer in “To Kill a Mockingbird,” passionately believed in justice. He didn’t like criminal law, yet he accepted the appointment to represent Tom Robinson, an African-American man charged with raping a young white girl. The story, set in Maycomb County, Alabama, in the early 1930s, portrays a lawyer who felt that the justice system should be colorblind. Had Atticus Finch run for office after the trial, could he have been elected?

A web video from the Republican National Committee darkly portrays Democratic vice presidential nominee Sen. Tim Kaine as having “protected the worst kinds of people” on death row as a defense attorney. The video features Lem Tuggle, whom Kaine defended on rape and murder charges. Tuggle was eventually executed. The video also focuses on Richard Lee Whitley, who was executed despite what the Richmond Times-Dispatch described as “about 1,000 hours of largely free legal work” on Kaine’s part. We admire Atticus Finch, so why is it that Kaine’s defense of death penalty defendants is treated differently?

A long tradition in U.S. system

Representing unpopular clients has a long tradition in the American legal system. John Adams represented British soldiers accused of murder in the 1770 Boston Massacre. Before agreeing to represent the British soldiers (who were that era’s terrorists), Adams worried about his reputation. Yet, he said of his experience, “The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.” John Adams was elected president of the United States. In an age of 24-hour cable, Willie Horton ads, and internet-driven misinformation, could Adams be elected president today?


For the complete commentary, see MinnPost.


When is Deference to Police Expertise Abdication of Judicial Responsibility?

posted by Judge_Burke @ 14:30 PM
October 12, 2016

Deference to police expertise happens, but as one trial court judge from New York wrote, 

Too much deference to police “expertise” is an abdication of judicial responsibility, particularly where, as here, the police officer’s own testimony shows that his expertise focuses to a disproportionate extent on Blacks and Hispanics. By the Sergeant’s own testimony, 65% to 75% of the people stopped are Black and Hispanic. They may comprise an even higher percentage of those actually arrested (and indicted). Surely this “pattern of strikes” might give rise to an inference of discrimination which requires rebuttal. Cf., People v. Jenkins, 75 N.Y.2d 550, 555 N.Y.S.2d 10, 554 N.E.2d 47 (discriminatory pattern of peremptory challenges). But the PAPD does not keep records which might rebut this inference. Thus, to the extent that the courts do not analyze the components of the so-called expertise, we may be approving of actions based on racial or ethnic bias. Cf., People v. George T., 39 N.Y.2d 1028, 387 N.Y.S.2d 247, 355 N.E.2d 302 (ethnic identity of youths on Madison Avenue created the basis of the officer’s suspicion). Minorities did not fight their way up from the back of the bus just to be routinely stopped and interrogated on their way through the terminal.                            


Anna Lvovsky has posted The Judicial Presumption of Police Expertise (Harvard Law Review, Vol. 130, Forthcoming) on SSRN.

Here is the abstract:

This Article examines the unrecognized origins and scope of the judicial presumption of police expertise: the notion that trained officers develop insight into crime sufficiently rarefied and reliable to justify deference from courts. Police expertise has been widely criticized in Fourth Amendment analysis. Yet the Fourth Amendment is in fact part of a much broader constellation of deference, one that begins outside criminal procedure and continues past it. Drawing on judicial opinions, appellate records, trial transcripts, police periodicals, and other archival materials, this Article argues that courts in the mid-twentieth century invoked police expertise to expand police authority in multiple areas of the law. They welcomed policemen as expert witnesses on criminal habits; they deferred to police insights in evaluating arrests and authorizing investigatory stops; and they even credited police knowledge in upholding criminal laws challenged for vagueness, offering the officer’s trained judgment as a check against the risk of arbitrary enforcement.

Complicating traditional accounts of judicial deference as a largely instrumental phenomenon, this Article argues that courts in the mid-century in fact came to reappraise police work as producing rare and reliable “expert” knowledge. And it identifies at least one explanation for that shift in the folds and interconnections between courts’ diverse encounters with the police in these years. From trials to suppression hearings to professional activities outside the courtroom, judges experienced multiple sites of unique exposure to the rhetoric and evidence of the police’s expert claims. These encounters primed judges to embrace police expertise not only through their deliberative doctrinal content, but also their many structural biases toward police knowledge. This development poses important and troubling consequences for the criminal justice system, exacerbating critiques of police judgment in the Fourth Amendment context and raising novel concerns about the limits of judicial reasoning about police practices.


Enforcing the Right to Counsel

posted by Judge_Burke @ 14:30 PM
October 10, 2016

Public defenders in Pennsylvania, on behalf of their clients, can sue counties that are under-funding indigent defense budgets, the state’s supreme court has declared.

From the Associated Press:

Pennsylvania’s highest court will allow criminal defendants to sue a county in an effort to prove a public defender’s office isn’t adequately funded to provide the constitutional right to an attorney, a victory for civil rights lawyers.

The state Supreme Court’s unanimous ruling late Wednesday overturned a lower appellate court decision.

Mary Catherine Roper, the deputy legal director of the American Civil Liberties Union of Pennsylvania, said Thursday that, while the ruling is a victory, it is not a final victory for the plaintiffs — two criminal defendants — in the lawsuit against Luzerne County in northeastern Pennsylvania.


Read the full opinion here