An Interesting Case Before the United States Supreme Court

posted by Judge_Burke @ 14:45 PM
October 7, 2016
  • Nelson v. ColoradoWhether Colorado’s requirement that defendants must prove their innocence by clear and convincing evidence to get their money back, after reversal of conviction of a crime entailing various monetary penalties, is consistent with due process.

Our Trust of the Police

posted by Judge_Burke @ 14:30 PM
October 7, 2016

Rachel Moran (University of Denver Sturm College of Law) has posted In Police We Trust (Villanova Law Review, Forthcoming) on SSRN.

Here is the abstract:

Despite a recent slew of highly-publicized incidents of police brutality, white Americans are still, for the most part, highly supportive and trusting of law enforcement officers. And United States laws — mostly drafted, enacted, and interpreted by white people — reflect that trust. The American legal system, from United States Supreme Court case law to municipal ordinances, is extraordinarily deferential to police officers’ actions and decisions, reflecting an oft-expressed belief that police officers are simply doing the best they can in a difficult job. The experience in many communities, particularly those primarily comprised of people of color, is very different — many people of color report that police officers routinely mistreat them, and there is much evidence to support these complaints. But our ingrained system of deference makes it far too difficult to hold police officers and departments accountable for those abuses. 

This Article explores the history of deference afforded to police officers in the United States, and tracks the change from a country founded by people highly suspicious of law enforcement authority, to one with a legal system employing knee-jerk deference to police officers’ decisions and actions. In so doing, it explores why so many white people — who have rarely been the target of police misconduct — still place such trust in law enforcement, while people of color, who have endured decades of law enforcement suspicion, often do not.

Although the law affords deference to police officers in many contexts, this piece analyzes the problems with deference primarily through the lens of police misconduct claims. Specifically, when a citizen complains that a police officer has mistreated her, that complaint is supposed to be thoroughly investigated and, if found to be true, should result in meaningful consequences for the offending officer. In reality, most complaint review systems are so deferential that officers are very rarely held accountable in any significant way for their misconduct. The result is a system that has demoralized communities of color and dangerously eroded the legitimacy of law enforcement in the eyes of many people of color. After providing extensive evidence regarding the flaws in our current systems of review, the Article closes with a series of suggested reforms for review of misconduct complaints.


A Strategy to Reduce Wrongful Convictions

posted by Judge_Burke @ 14:30 PM
October 6, 2016

The Downstream Consequences of Misdemeanor Pretrial Detention

Paul S. Heaton 

University of Pennsylvania Law School

Sandra G. Mayson 

University of Pennsylvania Law School

Megan Stevenson 

University of Pennsylvania Law School

July 14, 2016

Stanford Law Review, Vol. 69, 2017, Forthcoming 
U of Penn, Inst for Law & Econ Research Paper No. 16-18 


In misdemeanor cases, pretrial detention poses a particular problem because it may induce otherwise innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication. While practitioners have long recognized this possibility, empirical evidence on the downstream impacts of pretrial detention on misdemeanor defendants and their cases remains limited. This Article uses detailed data on hundreds of thousands of misdemeanor cases resolved in Harris County, Texas — the third largest county in the U.S. — to measure the effects of pretrial detention on case outcomes and future crime. We find that detained defendants are 25% more likely than similarly situated releases to plead guilty, 43% more likely to be sentenced to jail, and receive jail sentences that are more than twice as long on average. Furthermore, those detained pretrial are more likely to commit future crime, suggesting that detention may have a criminogenic effect. These differences persist even after fully controlling for the initial bail amount as well as detailed offense, demographic, and criminal history characteristics. Use of more limited sets of controls, as in prior research, overstates the adverse impacts of detention. A quasi-experimental analysis based upon case timing confirms that these differences likely reflect the causal effect of detention. These results raise important constitutional questions, and suggest that Harris County could save millions of dollars a year, increase public safety, and reduce wrongful convictions with better pretrial release policy.


Protest is Different

posted by Judge_Burke @ 14:30 PM
October 5, 2016

If you are a trial court judge, there is some possibility that at one or more points in your career you will be confronted with issues relating to protests and/or civil disobedience. It could come in the form of a pipeline protest, a civil rights protest, an abortion clinic protest — or it could be a simple act of vandalism.

Jessica L. West (Vermont Law School) has posted Protest Is Different (University of Richmond Law Review, Vol. 50, No. 2, Pp. 737-81, 2016) on SSRN.

Here is the abstract:

Acts of civil disobedience, long used to provoke social change, ignite a tense clash between foundational rule of law principles and deep-seated beliefs in the right to air grievances. This article explores these tensions and, relying upon evolving concepts of capital jurisprudence, argues in favor of a new framework for evaluating the criminal culpability of civilly disobedient protesters. United States Supreme Court jurisprudence has repeatedly recognized that capital cases are distinct from non-capital proceedings. One rationale underlying the acknowledgement that “death is different” is that the complexity of the moral determination inherent in a sentence of death requires a judgment of community condemnation. This assessment of condemnation must be made individually and by a jury; it cannot be prescribed by rule of law or imposed by a judge. Though once a jurisprudential silo, the analytical influence of death penalty law is expanding and, while the difference between a sentence of death and one of imprisonment is unmistakable, distinctions between and among criminal offenses do not begin and end with the punishment. Acts of civil disobedience, though criminal, are unlike ordinary criminal acts. The competing values underlying acts of civil disobedience are similar in depth and complexity to the values underlying the individualization and community conscience requirements in capital proceedings. This article proposes that in criminal prosecutions of protesters, society, represented by the jury, should individually evaluate whether an act of civil disobedience offends collective values sufficiently to warrant the community condemnation implicit in a criminal conviction.


An Important New Report on Forensic Science

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

Judge Alex Kozinski  wrote a very interesting commentary on forensic science in criminal cases for The Wall Street Journal:

“The White House will release a report Tuesday that will fundamentally change the way many criminal trials are conducted. The new study from the President’s Council of Advisors on Science and Technology (PCAST) examines the scientific validity of forensic-evidence techniques—DNA, fingerprint, bitemark, firearm, footwear and hair analysis. It concludes that virtually all of these methods are flawed, some irredeemably so.

Americans have long had an abiding faith in science, including forensic science. Popular TV shows like “CSI” and “Forensic Files” stoke this confidence. Yet the PCAST report will likely upend many people’s beliefs, as it should. Why trust a justice system that imprisons and even executes people based on junk science?

Only the most basic form of DNA analysis is scientifically reliable, the study indicates. Some forensic methods have significant error rates and others are rank guesswork. “The prospects of developing bitemark analysis into a scientifically valid method” are low, according to the report. In plain terms: Bitemark analysis is about as reliable as astrology. Yet many unfortunates languish in prison based on such bad science.

Even methods valid in principle can be unreliable in practice. Forensic scientists, who are often members of the prosecution team, sometimes see their job as helping to get a conviction. This can lead them to fabricate evidence or commit perjury. Many forensic examiners are poorly trained and supervised. They sometimes overstate the strength of their conclusions by claiming that the risk of error is “vanishingly small,” “essentially zero,” or “microscopic.” The report calls such claims “scientifically indefensible,” but jurors generally take them as gospel when presented by government witnesses who are certified as scientific experts.


The full piece can be found here.  



A New Supreme Court Case Takes on Double Jeopardy – The Atlantic

posted by Judge_Burke @ 14:29 PM
September 20, 2016

“I could shoot you in the middle of Mardi Gras,” Libby Parsons (played by Ashley Judd) tells her husband Nick in the 1999 thriller Double Jeopardy, “and they can’t touch me.” Nick had faked his own death and framed Libby for the non-existent murder. Now, holding a pistol to his head, she invokes one of Americans’ most beloved rights—the Fifth Amendment guarantee that no one shall be “subject for the same offence to be twice put in jeopardy of life or limb.”

Learning the law from The Atlantic may seem odd to some judges; although The Atlantic is a well written and popular publication, it is not the Harvard Law Review. But, this is an article well worth reading. 



Wisdom from Richard Zorza on Incentives in Access to Justice

posted by Judge_Burke @ 14:30 PM
September 19, 2016

Richard Zorza has a new paper on incentives in access to justice that has been published in the Georgetown Journal of Legal EthicsHere it is. 

The  abstract is:

Most of the current deregulation discussion focuses on permitting both non-lawyers and lawyers to do more than currently authorized. While such changes would presumably contribute to solving the problem of increasing access to justice while maintaining quality and consumer protection, such discussions alone are unable to offer any realistic hope of achieving the 100 percent access to justice services for all envisioned by the recent Resolution of the Conference of (State Court) Chief Justices and the Conference of State Court Administrators. This Article discusses the potential for fully achieving that 100 percent goal by integrating broad regulatory changes with largely positive economic incentives on courts, bar and legal aid designed to increase efficiency and reduce costs, and with politically achievable ways of bringing in additional resources.

The five proposed solutions are:

A.  Releasing non-profit legal-serving entities from almost all regulation, while moving the subsidy system of legal aid to a genuinely competitive model;

B.  Deploying a mix of more limited de-regulation on the bar as a whole, combined with inter-related mandated sliding fees and broad tax incentives, for both litigants and providers;

C.  Maintaining almost all regulation, but placing the obligation of ensuring and providing 100 percent access to justice services on the bar as a whole, while giving the bar the authority to tax its members to fulfill that obligation and modify regulation;

D.  Internalizing all costs of access to justice into the court system, in order to incentivize court simplification and some appropriate deregulation; and

E.  Allowing for broad National Technology Limited Practice Licenses on condition of free services for the poor and reasonable ones for middle income, and with appropriate regulatory relaxations.

This Article proposes and applies a seven question conceptual framework for assessing these approaches and their long-term utility:

  • Does it ensure that everyone with significant legal need would be appropriately served, regardless of financial or other barriers?
  • Does it provide the resources to fill the resource gap?
  • Would it meet the political and economic requirements of being highly cost effective
  • Would services be varied, flexible and matched to need?
  • Would the solution incentivize changes in the system as a whole?
  • Would the solution protect the consumer, either through the relevant traditional formal values of the profession or through some other means such as a structuring of market incentives?
  • Could one be sure that any new resource mechanism would not introduce or exacerbate any additional general non-neutrality into the system? 

What Effect Does a Football Game Upset Have on Sentencing?

posted by Judge_Burke @ 14:30 PM
September 16, 2016

There has been some research by the Brennan Center for Justice which suggests that judges who are up for election tend to sentence more harshly.  But what if the judge is an avid college football fan and the judge’s favorite team loses in an upset? Surely that makes no difference in the sentencing outcome.

From a report in Inside Higher Education:

Judges whose college football teams lose in an upset fashion frequently let their emotions over the loss affect sentencing decisions, according to a new working paper published by the National Bureau of Economic Research.

To reach their conclusion, Naci Mocan and Ozkan Eren, both economics professors at Louisiana State University, examined every defendant case file from 1996 to 2012 for juveniles in the state of Louisiana. Each file contained information about the defendant, his or her offense, and sentence length. Most of the files also listed where the judges in the cases went to college and law school. The researchers then compared this information to LSU football game records.

Mocan and Eren found that in the week following LSU’s football team losing a game it was expected to win, judges with bachelor’s degrees from LSU doled out harsher sentences, especially to black juveniles. In some cases, a surprise LSU loss resulted in a sentence that was as much as 74 days longer than cases following an LSU win or cases decided by judges who graduated from other institutions. In total, the researchers said, juveniles spent an extra 1,332 days in custody or on probation because a judge may have been in “emotional shock” over an upset.

“These results provide evidence for the impact of emotions in one domain on a behavior in a completely unrelated domain among a uniformly highly educated group of individuals (judges), with decisions involving high stakes (sentence lengths),” Mocan and Eren wrote. “They also point to the existence of a subtle and previously unnoticed capricious application of sentencing.” So far there is no reliable research on the effect professional football has on sentencing practices of judges.


How Should Juries Be Instructed on Demeanor?

posted by Judge_Burke @ 14:30 PM
September 15, 2016

A special thanks to Judge Wayne Gorman. Determining who is telling the truth is not easy. Inherently, judges or juries can make mistakes driven by implicit bias or by myths about factors that suggest someone is telling the truth. Judge Gorman came across a recent New Zealand case that raises the issue of how juries should be instructed on demeanor:

In Taniwha v. The Queen [2016] NZSC 121, September 8, 2016, the accused was convicted in a trial before a jury of a number of physical and sexual assaults.  In addressing the jury, the prosecutor referred to the complainant’s reaction when shown a photograph and suggested that her reaction “wasn’t made up, that wasn’t faked.”

On appeal, the accused argued that the trial judge ought to have provided the jury with a “tailored demeanour direction” (i.e., explaining that demeanour in the witness stand should not be over-emphasized).

The appeal was dismissed.  The Supreme Court of New Zealand concluded that “the Judge’s failure to give a tailored demeanour direction in summing up to the jury” did not give “rise to a miscarriage of justice” (at paragraph55).

In rendering its judgment, however, the Supreme Court suggested that there is “research which indicates that a person’s demeanour when giving evidence in court generally provides little or no assistance to a fact-finder charged with determining whether or not the witness is telling the truth. A witness who presents as confident, articulate and honest may be mistaken or dishonest; a witness who presents as diffident, hesitant or awkward may be telling the truth and their evidence may be accurate. Not only can appearances be deceptive, but fact-finders may over-estimate their ability to recognise those who are truthful from those who are not, by, for example, relying on unreliable behaviours such as fidgeting or looking away.”

The Supreme Court suggested that in instructing a jury on demeanour, the judge should identify “factors which will help jurors to determine whether a witness is telling the truth. This should reflect the particular circumstances of the case as far as they can be assessed in advance, but could include reference to considerations such as”:

(a) Whether the witness’s evidence is consistent with the evidence of other witnesses which the jury has accepted.

(b) Whether the witness’s evidence is consistent with objective evidence such as documents or text messages, and if it is not, what explanation is offered for any inconsistencies.

(c) Whether the witness’s account is inherently plausible – does it make sense? Is it likely that people would have acted in the way suggested?

(d) Whether the witness has been consistent in their account over time and, if not, why not?

The Supreme Court also suggested that “a direction along the following lines could be given”

I must warn you, though, that simply observing witnesses and watching their demeanour as they give evidence is not a good way to assess the truth or falsity of their evidence. For example, a witness may not appear confident or may hesitate, fidget or look away when giving evidence. That doesn’t necessarily mean that their evidence is untruthful. The witness may be understandably nervous giving evidence in an unfamiliar environment in front of unknown people. Or there may be cultural reasons for the way a witness presents. On the other hand, a witness may appear confident, open and persuasive but nevertheless be untruthful. And remember that even an honest witness can be mistaken.

Things like gestures or tone of voice may sometimes help you to understand what the witness actually means. But you should be cautious about thinking that they will help you much in determining whether or not the witness is telling the truth.


How Much Does Incarceration Cost?

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

Estimate of the Day:

Incarceration in America costs more than $1 trillion per year, a new study concludes. That’s more than 10 times the $80 billion figure generally cited as the cost of running the nation’s corrections systems.

Source:  St. Louis Post-Dispatch