The Better Solution is: Do Not Forget to Swear in the Jury

posted by Judge_Burke @ 14:30 PM
September 13, 2016

Kathleen M. Knudsen (Regent University – School of Law) has posted The Juror’s Sacred Oath: Is There a Constitutional Right to a Properly Sworn Jury? (32 TOURO L. REV. 489) on SSRN.

Here is the abstract:

On August 12, 2012, in United States v. Turrietta the Tenth Circuit upheld a conviction by an unsworn jury under the doctrine of harmless error. By contrast, in 2007, in Spencer v. State, the Georgia Supreme Court held that a verdict by an unsworn jury was invalid, and because jeopardy never attached, the prosecution could re-prosecute a claim on which the defendant had been previously acquitted by an unsworn jury. The concept that an unsworn jury could convict but could not acquit runs fundamentally contrary to constitutional criminal procedural protections. This article argues that Federal Circuit Courts and the United States Supreme Court should rule on this issue and provide a clear precedent because district courts have denied that defendants have a constitutional right to a properly sworn jury due to the lack of clear precedential cases on this issue.



Sentencing Sex Offenders

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

If there is a class of defendants who generate little sympathy from legislatures and judges, the “winner” is likely to be sex offenders. There is an understandable desire to monitor the defendant’s behavior.

Doug Berman at Sentencing Law & Policy excerpts this interesting case. From the excerpt:

Proponents of using the penile plethysmograph correlate arousal data to deviant sexual behavior by assuming that individuals with a history of sexual offenses who respond to illicit sexual stimuli are likely to react in furtherance of their responses. There is no scientifically accepted data presented to justify this assumption, nor does it have any logical basis.

. . .

[A]dministering a penile plethysmograph test necessitates the person administering the test to be engaged in the possession, use and distribution of child pornography. There is no exception in the statute to exclude therapeutic purposes or intent from culpability.

. . .

The presuppositionless assumption is that any “arousal level” occasioned by the exposure to child pornography stimuli is deviant because convicted sex offenders are unable to resist or subdue their impulses. Urges, however, are not always overwhelming. Otherwise, there would be no opportunity for moral decisions or even so-called enlightened self-interest decisions to be made in the crucible of an experience.


No More Stopping Cars with Licenses from States with Legal Marijuana Laws

posted by Judge_Burke @ 14:30 PM
September 9, 2016

How neighboring states approach “marijuana interdiction” is an interesting issue. Nebraska and Oklahoma sued Colorado unsuccessfully over the legalization issue, and apparently the police in Kansas simply decided to stop and search Colorado residents who happen to drive though Kansas. Now the 10th Circuit Court of Appeals has held that  police officers cannot stop and search vehicles belonging to out-of-state motorists simply because of where they are registered, including states where marijuana use is legal.

By a 2-1 vote, the Court  said two Kansas Highway Patrol officers violated the constitutional rights of Colorado motorist Peter Vasquez in December 2011 by pulling him over and searching his car after he had been driving alone at night on Interstate 70.

The officers relied heavily on Vasquez’s residency to justify the search, which uncovered nothing illegal, saying Colorado was a known “drug source” where marijuana is legal.

The Court said that would justify searching motorists from the 25 U.S. states that permit marijuana use for medical purposes, and the four states, including Colorado, plus Washington, D.C., where recreational use is allowed.

“It is time to abandon the pretense that state citizenship is a permissible basis upon which to justify the detention and search of out-of-state motorists, and time to stop the practice of detention of motorists for nothing more than an out-of-state license plate,” Circuit Judge Carlos Lucero wrote.

“Absent a demonstrated extraordinary circumstance, the continued use of state residency as a justification for the fact of or continuation of a stop is impermissible,” he added.

You can access the ruling at this link.


The Framework for Voir Dire on the Issue of Race

posted by Judge_Burke @ 15:41 PM
September 6, 2016

We all make decisions about what is proper and improper in voir dire questions, particularly when it comes to race. In my experience, voir dire is among the most divisive areas where judges are literally all over the map. Nevertheless, I thought I’d share this and ideally prompt some commentary from readers about how to best conduct voir dire on the issue of race. What follows is taken from a scholarly article, but I think it lends support to my belief that you need to give lawyers a wide berth in voir dire when it comes to questioning about race: 

It is well established that Americans, particularly whites, strongly associate criminal activity with race and race with criminal activity. That is, blacks are generally characterized as aggressive, hostile, criminal, and violent by members of the public (Sniderman and Piazza 1993Sniderman, P., and T. Piazza. 1993. The Scar of Race. Cambridge: Harvard University Press.; Hurwitz and Peffley 1997Hurwitz, J., and M. Peffley. 1997. “Public Perceptions of Race and Crime: The Role of Racial Stereotypes.” American Journal of Political Science 41 (2): 375–401.10.2307/2111769; Peffley and Hurwitz 1998Peffley, M., and J. Hurwitz. 1998. “Whites’ Stereotypes of Blacks: Sources and Political Consequences.” In Perception and Prejudice: Race and Politics in the United States, edited by J. Hurwitzand M. Peffley, 996–1012. New Haven, CT: Yale University Press.). For example, in Devine and Elliot’s (1995Devine, P. G., and A. J. Elliot. 1995. “Are Racial Stereotypes Really Fading? The Princeton Trilogy Revisited.” Personality and Social Psychology Bulletin 21: 1139–1150.10.1177/01461672952111002) follow-up study on Princeton students, 147 white students were provided a checklist comprised of 93 adjectives and asked to mark those that represent stereotypes about blacks. They found that ‘hostile’ and ‘criminal’ were in the top 10 adjectives frequently identified to describe African-Americans. Moreover, in their examination of public attitudes toward youth, race, and crime, Soler (2001Soler, M. 2001. Public Opinion on Youth, Crime and Race: A Guide for Advocates. Washington, DC: Building Blocks for Youth.) found that over 34% of respondents agreed that black juveniles are more likely to commit crime than white juveniles, and 35% agreed that black lows youth are more prone to violence than young people of other races.

Research also shows that the public overestimates the proportion of crimes committed by people of color. Using national survey data, Chiricos et al. (2004Chiricos, T.K. Welch, and M. Gertz. 2004. “Racial Typification of Crime and Support for Punitive Measures.” Criminology 42 (2): 358–390.10.1111/crim.2004.42.issue-2) discovered that a racially diverse group of respondents exaggerated black involvement in violent crime and burglary. Specifically, respondents estimated that 40% of people who commit violent offenses and 38% of people who are involved in burglary are black; however, crime victimization surveys showed these rates to be 29 and 32%, respectively. Based on the results of a nationally representative survey, Pickett et al. (2012Pickett, J. T.T. ChiricosK. M. Golden, and M. Gertz. 2012. “Reconsidering the Relationship between Perceived Neighborhood Racial Composition and Whites’ Perceptions of Victimization Risk: Do Racial Stereotypes Matter?” Criminology 50 (1): 145–186.10.1111/crim.2012.50.issue-1) also discovered that white Americans overestimated black participation in burglaries, illegal sale of drugs, and juvenile crime by 20 to 30%. Overall, studies suggest that whites and respondents from other racial and ethnic backgrounds racially typify crime.

Some scholars assert the criminalization of black people is facilitated in large part by racially biased media representations of crime. Media messages are potent tools in the construction of ‘otherness’ and an ‘us vs. them’ discourse, common in crime stories, where ‘us’ – the good guys – need to be wary of ‘them’ – the predatory criminal, who is often portrayed as animalistic, vengeful, violent, and a member of a racial/ethnic minority group (Barak 1994Barak, G. 1994. “Between the Waves: Mass-Mediated Themes of Crime and Justice.” Social Justice 21: 133–147.). In her examination of local news programming in Chicago, Entman (1992Entman, R. M. 1992. “Blacks in the News: Television, Modern Racism and Cultural Change.” Journalism & Mass Communication Quarterly 69: 341–361.10.1177/107769909206900209) found that 84% of crime stories about African-American suspects involved violent crime compared to 71% of white offenders. Furthermore, 38% of black suspects were featured while being physically held or restrained by officers compared with 18% of white suspects being featured in similar circumstances. Because the public relies on the mass media as their primary source of information about crime, the high volume of crime news that involves members of specific racial and ethnic groups is enough to convince the average person that the face of crime is colored (Rome 2002Rome, D. 2002. “Stereotyping by the Media: Murderers, Rapists, and Drug Addicts”. In Images of Color, Images of Crime, edited by C. R. Mann and M. Zatz, 71–81. 2nd ed. Los Angeles, CA: Roxbury.). Indeed, the stereotypical image of blacks as a criminal threat has led to perceptions of the ‘criminalblackman’ (Russell 1998Russell, K. K. 1998. The Color of Crime. New York: New York University Press.), which play into the public’s fear of crime.

Spurred by mass media, criminalized depictions of black males have produced a host of damaging consequences, including the perpetuation of negative stereotypes about blacks. However, these images and ideologies of black criminality are not new. During the earliest periods of American development, European colonists transported Africans to the New World as chattel slaves, a degradation that lasted well into the twentieth century (Bell 1992Bell, D. A. 1992. Race, Racism, and American Law. Boston, MA: Little Brown., 2). In order to justify their enslavement, black people had to be viewed as inferior beings, and were often portrayed as animalistic and violent ‘savages’ who were inherently criminal (Fishman 2006Fishman, L. T. 2006. “The Black Boogeyman and White Self-Rightousness.” In Images of Color, Images of Crime, edited by C. R. MannM. S. Zataand N. Rodriguez, 197–211. New York: Oxford University Press.; Unnever and Gabbidon 2011Unnever, J. D., and S. L. Gabbidon. 2011. Race, Racism, and Crime. New York: Taylor & Francis.). The legacy has persisted with images of ‘menacing’ blacks, most recently revived in the 1970s and 1980s in the context of the ‘War on Drugs,’ which some have come to see as a ‘War on blacks’ (Nunn 2002Nunn, Kenneth B. 2002. “Race, Crime and the Pool of Surplus Criminality: Or Why the ‘War on Drugs’ Was a ‘War on Blacks’.” Journal of Gender Race and Justice 6: 381–445.). That is, blacks have borne the brunt of the drug war, as they are disproportionately arrested, prosecuted, convicted, and imprisoned for drug offenses (Tonry 1995Tonry, M. 1995. Malign Neglect: Race, Crime, and Punishment in America. New York: Oxford University Press.; Alexander 2010Alexander, M. 2010. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press.). Ultimately, it is argued that the structural inequalities facing many blacks is rooted in the nation’s history, and is a product of, and integral to, their ongoing racialization (Wacquant 2002Wacquant, L. 2002. “From Slavery to Mass Incarceration: Rethinking the ‘Race Question’ in the US.” New Left Review 13: 41–60.; Omi and Winant 2015Omi, M., and H. Winant. 2015. Racial Formation in the United States. 3rd ed. New York: Routledge.).

The historical criminalization of blacks coupled with excessive news coverage portraying African-Americans as criminal is integral to the formation of implicit bias (Staats and Patton 2013Staats, C., and C. Patton. 2013. State of the Science: Implicit Bias Review. The Kirwan Institute. Implicit bias refers to the attitudes and stereotypes that impact our understanding, actions, and decision-making processes in an unconscious manner (Staats and Patton 2013Staats, C., and C. Patton. 2013. State of the Science: Implicit Bias Review. The Kirwan Institute. Research with police officers has examined implicit bias in law enforcement settings. Correll et al. (2007Correll, J.B. ParkC. M. JuddB. WittenbrinkM. S.Sadler, and T. Keesee. 2007. “Across the Thin Blue Line: Police Officers and Racial Bias in the Decision to Shoot.” Journal of Personality and Social Psychology 92 (6): 1006–1023.10.1037/0022-3514.92.6.1006) used video game simulation in which armed black and white men appeared, and instructed officers from the Denver Police Department (who were predominately white) to shoot armed targets as quickly as possible. They found that officers shot armed black suspects more quickly than armed white suspects, but that they were less likely to mistakenly shoot at unarmed black suspects than members of the general public. Likewise, another study of police officers from across the USA found that not only were officers quicker to shoot black suspects than white suspects but also that the officer’s accuracy was higher in scenarios involving African-Americans than for scenarios involving whites (Sadler et al. 2012Sadler, M. S.J. CorrellB. Park, and C. M. Judd. 2012. “The World is Not Black and White: Racial Bias in the Decision to Shoot in a Multiethnic Context.” Journal of Social Issues 68: 286–313.10.1111/j.1540-4560.2012.01749.x). Automatic implicit bias has also been found to negatively influence officers’ interpretations of blacks’ behavior (as suspicious or aggressive), and the perception of blacks as more blameworthy, thus meriting harsher sanctions (Graham and Lowery 2004Graham, S., and B. S. Lowery. 2004. “Priming Unconscious Racial Stereotypes about Adolescent Offenders.” Law and Human Behavior 28 (5): 483–504.10.1023/B:LAHU.0000046430.65485.1f; Richardson 2011Richardson, L. S. 2011. “Arrest Efficiency and the Fourth Amendment.” Minnesota Law Review 95 (6): 2035–2098.). Available evidence suggests that the general public is aware of such bias on the part of law enforcement.  


How Profoundly the United States Has Changed

posted by Judge_Burke @ 14:30 PM
September 2, 2016

When President  Nixon advocated a tough on crime law and order policy early in his presidency, only about 100 people were incarcerated per 100,000 of the population (a level that had not substantially changed since the 1920s). Now that figure is more than 700 — lower than at the peak, but still the highest rate in the world. How profoundly our nation has changed. 


Are Elections Good for the Judiciary?

posted by Judge_Burke @ 14:15 PM
September 1, 2016

From the LSE US Centre’s daily blog on American Politics and Policy:

In the US, state Supreme Court judges are either appointed, elected, or more commonly, are subject to retention elections. Traditionally, electoral accountability boosts a court’s perceived legitimacy, but can this be undermined with the negative campaigning that can often come with elections? In new research, Benjamin Woodson examines this relationship, finding that the negative effects of campaigning can outweigh the positive boost provided through electoral accountability only in states with a large amount of campaign activity.

Elections are a political institution that are revered in theory and loathed in practice by the American public. The reverence stems from them providing the essential foundation of legitimacy for any democratic system. The loathing comes from the campaigning and political machinations surrounding elections.

This ambivalence applies to elections for executive or legislative positions but increases for elections to the judiciary, where many scholars (but not the majority of the American public) thinks it’s inappropriate for judges to be elected. One aspect of many scholars’ concern stems from the potential that elections and especially the campaigning that surrounds them may undermine the legitimacy of courts. My analysis of a survey administered by YouGov with a national sample of 819 respondents shows that these scholars are partially correct but do not take into account the multiple ways in which elections affect legitimacy perceptions.

The ambivalence Americans feel toward judicial elections causes them to have two opposing effects on the amount of legitimacy the American public attributes to state Supreme Courts. Since elections are the foundation of democratic legitimacy, they provide a boost to a court’s perceived legitimacy through electoral accountability, but this effect is counteracted by the negative influence on perceived legitimacy caused by campaign activities such as attack ads and campaign donations.


The full blog post is available here.


A Report from Arizona Worth Reading

posted by Judge_Burke @ 14:00 PM
August 31, 2016

The experience of many courts has been that their state Supreme Court appoints a task force to address a critical problem, and several years later a report is issued that few read. At least on the issue of a timely response to a critical problem, kudos to Arizona!

On March 3, 2016, Chief Justice Scott Bales issued Administrative Order No. 2016-16, which established The Task Force on Fair Justice for All:  Court-Ordered Fines, Penalties, Fees, and Pretrial Release Policies. The administrative order outlined the purpose of the task force as to study and make recommendations as follows:

a) Recommend statutory changes, if needed, court rules, written policies, and processes and procedures for setting, collecting, and reducing or waiving court- imposed payments.

b) Recommend options for people who cannot pay the full amount of a sanction at the time of sentencing to make reasonable time payments or perform community service in lieu of some or all of the fine or sanction.

c) Recommend best practices for making release decisions that protect the public but do not keep people in jail solely for the inability to pay bail.

d) Review the practice of suspending driver’s licenses and consider alternatives to license suspension.

e) Recommend educational programs for judicial officers, including pro tem judges and court staff who are part of the pretrial decision-making process.

f) Identify technological solutions and other best practices that provide defendant notifications of court dates and other court-ordered deadlines using mobile applications to reduce the number of defendants who fail to appear for court and to encourage people who receive citations to come to court.

The Chief Justice asked the task force to file a report and make recommendations to the Arizona Judicial Council (AJC) by October 31, 2016. The report consists of 53 recommendations, plus additional educational and training recommendations, and can be found here.



How Should Courts Approach the Issue of Juvenile Confessions?

posted by Judge_Burke @ 14:00 PM
August 30, 2016

The issue of how courts should approach juvenile confessions gained a spotlight in the news recently when a federal court in Wisconsin overturned the conviction of Brendan Dassey, who was accused of helping his uncle kill Teresa Halbach, in a case brought to the national spotlight in the Netflix documentary, “Making a Murderer.”

Dassey was arrested at the age of 16 and sentenced to 41 years in prison on charges of first-degree intentional homicide, second-degree sexual assault and mutilation of a corpse after he confessed that he helped his uncle, Steven Avery, kill Halbach in 2005 in Manitowoc County, Wisconsin.

Magistrate Judge William E. Duffin in Milwaukee has ordered that Dassey be released in 90 days, unless the case is appealed, according to court documents.

Duffin wrote that investigators made repeated claims to Dassey that they already knew what happened, and falsely promised that he had nothing to worry about. These repeated false promises, when considered in conjunction with all relevant factors – most especially Dassey’s age, intellectual deficits, and the absence of a supportive adult – rendered Dassey’s confession involuntary.

Dassey’s confession was, as a practical matter, the entirety of the case against him on each of the three counts. A recent law review article posted on SSRN gives an academic view of the serious issue facing courts regarding juvenile confessions:

Taking Back Juvenile Confessions 

by Kevin Lapp (Loyola Law School Los Angeles)  


The limited capacity of juveniles to make good decisions on their own — based on centuries of common sense and empirically supported in recent decades by abundant scientific research — informs almost every field of legal doctrine. Recent criminal justice reforms have grounded enhanced protections for youth at punishment and as criminal suspects on their limited cognitive abilities and heightened vulnerability. One area of criminal procedure doctrine lags behind this legal, scientific, and social consensus. Despite historical recognition of the need for special protections for interrogated youth, current law regarding the waiver of the rights to silence and to counsel at interrogation predominantly treats juvenile suspects like adults. This underenforces their privilege against self-incrimination, disrespects their dignity, and raises the risk of wrongful convictions. This Article considers whether interrogation law should correct course by incorporating a rule akin to contract law’s centuries-old infancy doctrine and permit individuals to retract uncounseled Miranda waivers elicited by law enforcement while they were juveniles. The justifications, advantages, and drawbacks to such a doctrinal shift are explored.


Candidates Can Mislead…But Just Not Tell Outright Lies

posted by Judge_Burke @ 14:30 PM
August 26, 2016

Running for political office is not easy. If you are a major party candidate for President like Donald Trump or Hillary Clinton, you are constantly under the glare of the media. Unfortunately sometimes even honest differences in opinion are twisted into claims that one or the other is telling an outright lie.

The Washington Post Fact Checker  uses a Four Pinocchio scoring system. Why can’t these candidates simply mislead the voters and abandon outright lies? Judicial candidates in Kentucky can make misleading statements, but they can’t tell outright lies. Presumably that means no Four Pinocchios for them.

Kentucky judges can say they are endorsed by a political party or tout themselves as the conservative Republican or the liberal Democrat in the race. But, they cannot act as a party leader, or endorse or make political contributions to a candidate.

In a major ruling on political speech in judicial races, the 6th Circuit Court of Appeals on Wednesday affirmed most of a federal judge’s opinion in May that erased many of the restrictions in non-partisan judicial races.

But the three-judge panel sent back a portion of the case for more deliberation in which U.S. District Judge Amul Thapar struck down a canon that barred candidates from making a commitment on an issue or case that is “inconsistent with the impartial performance of the adjudicative duties of judicial office.”

The appeals court ruled in a lawsuit brought by three candidates in Northern Kentucky who said the Judicial Conduct Commission had violated their free-speech rights by threatening to discipline them. All three said they were interested in running again and wanted to clear up the rules.


Can You Constitutionally Open Court with a Prayer?

posted by Judge_Burke @ 18:52 PM
August 25, 2016

There is no doubt that many judges pray before they go on the bench. They pray that the lawyers will be short and concise and they fervently may pray that the case will settle. However, not many judges actually pray out loud to open court sessions. Professor Ruthann Robson who teaches at the City University of New York had a short interesting commentary on the issue of opening court sessions with a prayer.

Texas Attorney General Ken Paxton has issued an opinion today that the First Amendment’s Establishment Clause is not violated if court were opened with a prayer.  He stated:

A court would likely conclude that a Justice of the Peace’s practice of opening daily court proceedings with a prayer by a volunteer chaplain as you describe is sufficiently similar to the facts in Galloway such that the practice does not violate the Establishment Clause.

Galloway is the United States Supreme Court’s sharply divided 2014 opinion in Town of Greece v. Galloway which involved a town board meeting. Justice Kennedy’s opinion for the Court in Galloway repeatedly referred to the issue as whether the “legislative prayer” approved by the Court in Marsh v. Chambers (1983) as part of a historical practice extended to a local legislature, despite the fact that some non-legislative functions occurred at the town board. In the dissent on behalf of four Justices, Justice Kagan essentially argued that a prayer at the beginning of a trial was clearly unconstitutional.  Indeed, in his separate concurring opinion, Justice Alito seemingly agreed:

I am troubled by the message that some readers may take from the principal dissent’s rhetoric and its highly imaginative hypotheticals. For example, the principal dissent conjures up the image of a litigant awaiting trial who is asked by the presiding judge to rise for a Christian prayer, of an official at a polling place who conveys the expectation that citizens wishing to vote make the sign of the cross before casting their ballots, and of an immigrant seeking naturalization who is asked to bow her head and recite a Christian prayer. Although I do not suggest that the implication is intentional, I am concerned that at least some readers will take these hypotheticals as a warning that this is where today’s decision leads—to a country in which religious minorities are denied the equal benefits of citizenship.

Nothing could be further from the truth. All that the Court does today is to allow a town to follow a practice that we have previously held is permissible for Congress and state legislatures. In seeming to suggest otherwise, the principal dissent goes far astray.

At least for Attorney General Ken Paxton, Justice Kagan’s hypothetical was not as “highly imaginative” as Justice Alito averred. Paxton’s opinion recognizes that the only United States Circuit court opinion to directly consider the issue, North Carolina Civil Liberties Union Legal Found. v. Constangy (4th Cir. 1991), found opening court with prayers unconstitutional, but Paxton opines “other courts deciding the issue may disagree with Constangy that prayer in judicial settings lacks historical foundation.”  Thus, Paxton states that “a Justice of the Peace’s practice of opening daily court proceedings with a prayer by a volunteer chaplain,” would not violate the Establishment Clause.