What Judges Should Know About Adolescent Brain Development

posted by Judge_Burke @ 15:00 PM
March 14, 2017

New research is showing distinct changes in the brains of young adults, ages 18 to 21, suggesting that they too may be immature in ways that are relevant to justice policy. A new knowledge brief from the MacArthur Foundation Research Network on Law and Neuroscience considers the implications of this research:

The justice system in the United States has long recognized that juvenile offenders are not the same as adults, and has tried to incorporate those differences into law and policy. But only in recent decades have behavioral scientists and neuroscientists, along with policymakers, looked rigorously at developmental differences, seeking answers to two overarching questions: Are young offenders, purely by virtue of their immaturity, different from older individuals who commit crimes? And, if they are, how should justice policy take this into account? 

A growing body of research on adolescent development now confirms that teenagers are indeed inherently different from adults, not only in their behaviors, but also (and of course relatedly) in the ways their brains function. These findings have influenced a series of Supreme Court decisions relating to the treatment of adolescents, and have led legislators and other policymakers across the country to adopt a range of developmentally informed justice policies.



Handling a High Visibility Case with High Visibility Criticism

posted by Judge_Burke @ 15:43 PM
March 13, 2017

How immune are judges to public criticism? Even judges with lifetime appointments can succumb to pressure. Is it worse if you are an elected judge? Either way, how a judge reacts is very important.

A decades-old feud between a Philadelphia judge and the late actor Charlton Heston may have helped a Pennsylvania man get his 1998 murder conviction overturned. A U.S. appeals court granted Paul McKernan’s appeal, ruling that the judge who found him guilty 19 years ago, Judge  Lisa Richette, may have felt pressure to dispel Heston’s claim that she was soft on crime. Heston, known for his starring roles in films like “The Ten Commandments,” “Ben-Hur” and “Planet of the Apes,” was also famous as the longtime president of the National Rifle Association. At the group’s 1998 convention in Philadelphia, Heston called Richette, then  a local judge, “Let ‘em Loose Lisa.”

Joseph Ax of Reuters has this report on a ruling that the U.S. Court of Appeals for the Third Circuit issued. 


Judicial Involvement in Plea Bargaining

posted by Judge_Burke @ 15:30 PM
March 10, 2017

There are states where judges never participate in plea negotiations (even if the rules might permit it), and there are states where judges do (sometimes regardless of the rules that prohibit judicial participation in plea bargaining).

Darryl K. Brown (University of Virginia School of Law) has posted What’s the Matter with Kansas — And Utah?: Explaining Judicial Interventions in Plea Bargaining (Forthcoming in Texas Law Review See Also, vol. 95 (February 2017)) on SSRN.

Here is the abstract:

This short piece suggests explanations for an apparent increase in a certain kind of “managerial judging” among state criminal court judges. In a recent study of ten states that authorize their trial court judges to play a role in the plea bargaining process, Nancy King and Ronald Wright found evidence that judges in eight states have indeed have become more involved in facilitating negotiated pleas. I suggest that an important likely reason for this development is that the eight states with active judges all have broad regimes of pretrial discovery. The two states in which judges have not moved into more active role — Kansas and Utah — are the two jurisdictions with much more limited pretrial discovery rules. Broad discovery was a key explanation the “managerial judging” that Resnik described in her classic account of federal civil litigation. Discovery — rather than simply rules authorizing a judicial role in the plea process — seems likely, for various reasons, to be an important factor in the somewhat analogous development of the judicial role in state criminal courts. I also consider the possible effects of other factors that make Kansas and Utah distinctive — they are the most rural states in the King-Wright study, and they have consistently had the lowest state incarceration rates.


Reducing Implicit Bias is Not Easy: But We Need to Try

posted by Judge_Burke @ 15:30 PM
March 9, 2017

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.


Is the Solution to Mandate that Interrogations Must Be Recorded?

posted by Judge_Burke @ 15:30 PM
March 8, 2017

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.


How Popular Is Asset Forfeiture?

posted by Judge_Burke @ 15:30 PM
March 7, 2017

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:




Thinking About Crime Labs

posted by Judge_Burke @ 16:23 PM
March 6, 2017

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. 


What Should You Do When Your Spouse Is Politically Active?

posted by Judge_Burke @ 15:57 PM
March 3, 2017

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.”

Political Donations:

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.”



More on What Lack of Sleep May Do to a Judge’s Sentencing

posted by Judge_Burke @ 16:19 PM
March 1, 2017

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. 


Forget About Getting Proper Sleep; You Will Not Hurt Anyone?

posted by Judge_Burke @ 16:39 PM
February 28, 2017

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.