How to Avoid Burnout

posted by Judge_Burke @ 16:19 PM
December 5, 2016

Harvard Business Review has an interesting article entitled, “Why Some People Get Burned Out and Others Don’t.”  The authors are Kandi Wiens and Annie McKee.

Here are some excerpts:

Stress and burnout are not the same thing. And while we know that stress often leads to burnout, it’s possible to handle the onslaught of long hours, high pressure, and work crises in a way that safeguards you from the emotional exhaustion, cynicism, and a lack of confidence in one’s abilities that characterizes burnout. The key is tapping into your emotional intelligence.

This is what one of us (Kandi) discovered in a recent study (“Leading Through Burnout”) where we assessed 35 chief medical officers (CMOs) at 35 large hospitals for their level of stress and tried to determine what, if anything, they do to deal with burnout.

The findings surprised us: despite the fact that an overwhelming 69% of the CMOs described their current stress level as severe, very severe, or worst possible, the majority were not burned out according to the Maslach Burnout Inventory. In our interviews with these CMOs, we found a common theme to what kept their stress under control: emotional intelligence.

As one of us (Annie) has written about before, research suggests that emotional intelligence (EI) supports superior coping abilities and helps people deal with chronic stress and prevent burnout.

Emotional self-awareness, one of the components of EI, for example, allows us to understand the sources of our frustration or anxiety and improves our ability to consider different responses. Self-management, another EI competency, allows us to stay calm, control impulses, and act appropriately when faced with stress. Conflict management skills allow us to channel our anxiety and emotions into problem-solving mode rather than allowing the situation to bother us–or keep us up all night. Empathy also helps to fight stress. When we actively try to understand others, we often begin to care about them. Compassion, as with other positive emotions, can counter the physiological effects of stress.

. . .

What You Can Do to Manage Stress and Avoid Burnout

People do all kinds of destructive things to deal with stress–they overeat, abuse drugs and alcohol, and push harder rather than slowing down. What we learned from our study of chief medical officers is that people can leverage their emotional intelligence to deal with stress and ward off burnout. You, too, might what to try the following:

*Don’t be the source of your stress. Too many of us create our own stress, with its full bodily response, merely by thinking about or anticipating future episodes or encounters that might be stressful. People who have a high need to achieve or perfectionist tendencies may be more prone to creating their own stress. We learned from our study that leaders who are attuned to the pressures they put on themselves are better able to control their stress level. As one CMO described, “I’ve realized that much of my stress is self-inflicted from years of being hard on myself. Now that I know the problems it causes for me, I can talk myself out of the non-stop pressure.”

*Recognize your limitations. Becoming more aware of your strengths and weaknesses will clue you in to where you need help. In our study, CMOs described the transition from a clinician to leadership role as being a major source of their stress. Those who recognized when the demands were outweighing their abilities, didn’t go it alone–they surrounded themselves with trusted advisors and asked for help.

*Take deep breaths when you feel your tension and anxiety rapidly rising. Mindfulness practices help us to deal with immediate stressors and long-term difficulties. Several of our study participants described using mindfulness techniques to slow their heart rate and bring their tension level down when faced with a stressor. As one leader described, practicing mindfulness “allows me to be more open to other solutions and I don’t waste time in defense mode.” Heightening your awareness of your breathing may be difficult at first, for example, but remember that attention is the ultimate act of self-control.

*Reevaluate your perspective of the situation. Do you view a particular situation as a threat to something you value? Or do you view it as a problem to be solved? Changing your perspective on whether you’re experiencing distress or eustress can have an eye-opening effect on your ability to bring your stress level down. One CMO described the shift in her mindset, “What once felt like stress is now good stress; I’m motivated to think of it as a problem to be solved.”

*Deescalate conflicts by putting yourself in the other person’s shoes. The stress from conflicts often leads to burnout so it’s best to deescalate conflicts when you can. Be inquisitive, ask questions, listen deeply. Keep your attention to the other person and focus on what he is trying to tell you. By seeking to understand his perspective, you’ll be in a much better position to gain his trust and influence him. One person we interviewed uses this approach consistently. He described how sharpening his empathic listening skills has enabled him to foster greater collaboration and create buy-in with his colleagues. In a recent situation, he said a physician stormed into his office and said “You must do this or babies will die.” Instead of reacting defensively and potentially causing more harm, he steadied himself and focused his attention on seeking to understand the physician’s perspective. His response deescalated the conflict and resulted in a healthy, less stressful conversation.

By using and developing your emotional intelligence, you can put a stop to burnout–for you, and for others. Remember, though: improving EI takes time and effort. Be patient with yourself, as well as forgiving and kind. The last thing you want to do is to make improving your EI another source of stress.


What Must Be Disclosed to a Judge About a Confidential Reliable Informant?

posted by Judge_Burke @ 15:30 PM
December 2, 2016

Everyday, judges are presented with search warrants extolling the reliability of the confidential reliable informant “who has given reliable information in the past that has lead to the arrest and conviction of …,” etc.

But, what if in addition to those helpful activities, the CRI was simultaneously committing crimes, getting arrested, and getting convicted themselves. Should the judge be told those things? Does the defendant have a right to discovery of this kind of information? Maybe not according to one case.

The search warrant affiant wasn’t required to include the CI’s criminal history as a possible indicator of lack of credibility. The key is past information that has proven truthful or detailed or corroborated current observations that bespeaks credibility. United States v. Courtney, 2016 U.S. Dist. LEXIS 162883 (N.D.Ohio Nov. 23, 2016). Defendant’s 2255 discovery requests are denied without showing far more. Whether all courts would agree with this analysis is debatable, but it is something worth thinking about. 


The Canadian Charter & Criminal Justice in Canada

posted by Judge_Burke @ 15:31 PM
December 1, 2016

Don Stuart (Queen’s University, Faculty of Law) has posted The Canadian Charter and Criminal Justice (In Nathalie Des Rosiers, Patrick Macklem, & Peter Oliver, eds., The Oxford Handbook of the Canadian Constitution (Oxford: Oxford University Press) (Forthcoming)) on SSRN.

Here is the abstract:

This chapter analyses the pervasive impact of the Charter on the Canadian criminal justice system. Active judicial interpretation of Charter rights has put in place distinctive constitutional standards of substantive law, including those of fault and struck down oppressive laws for arbitrariness and overbreadth. Also examined are new standards for police powers to stop, detain and arrest, fair trial rights such as the duty of full Crown disclosure and for sentencing. The article describes and welcomes a robust exclusionary discretion for evidence obtained in violation of the Charter. It is suggested that the Canadian Charter standards are no panacea and are sometimes too weak but that they have often provided a welcome balance to the expedient lure of law and order politics.


Perhaps, Just Perhaps, HOPE Probation is Not as Effective as Claimed

posted by Judge_Burke @ 15:30 PM
November 30, 2016

From the Washington Monthly:

In light of the  success of the Hawaii HOPE program, which brought attention to the application of Swift-Certain-Fair (SCF) principles in community corrections, and the spread of such programs nationally, the Bureau of Justice Assistance authorized a large-scale, four-site field trial (the Demonstration Field Experiment, or DFE) to examine how well such a program would do in other jurisdictions. Those results are now in – in the form of a paper by Pam Lattimore and her colleagues at the Research Triangle Institute (RTI)- and the findings are not especially favorable. It appears that HOPE probationers committed no fewer new crimes and spent on average somewhat more time confined in jail or compulsory residential treatment. The authors conclude that “HOPE/SCF seems unlikely to offer better outcomes and lower costs for broad classes of moderate-to-high–risk probationers.”

The journal decided to make the Lattimore et al. paper freely available, but chose not to do so for the other papers in the same issue, including a number of commentaries on Lattimore et al.,  two of them sharply critical.”


How to Deal With Delay in Forensic Services

posted by Judge_Burke @ 17:26 PM
November 29, 2016

There is still a backlog of requests for forensic services at crime labs around the country, but it’s much smaller than it was in 2009, according to the Bureau of Justice Statistics. But, as illustrated by the response of a Utah judge — who was frustrated over a lack of DNA results from the state crime lab — the issue of forensic delay is serious. The Utah judge said if the results aren’t complete by next month, he’ll put a crime lab employee behind bars. (It is not clear that the jail has facilities to allow the forensic scientists to continue their DNA work.)

Christopher Lee Monson has been in jail for the past 13 months, after prosecutors in Davis County charged him with rape and attempted kidnapping in connection with an alleged assault of his ex-girlfriend last October.

A seven-day trial had been scheduled for next month, but Monson’s attorney, Mary Corporon, told 2nd District Judge Thomas Kay in a mid-November hearing that attorneys still have not received the DNA results of a rape kit that was completed last year.

She told Kay that she doesn’t know if the evidence will help or hurt Monson’s defense — but said she can’t go forward with the trial without the results, according to a recording of the court hearing.




View Full Story from The Salt Lake Tribune here  


What Respect Should a Court Give to Elected Officials?

posted by Judge_Burke @ 18:21 PM
November 28, 2016

Okay, before you answer “not very much,” perhaps a little more thought might help. The Boston Herald reports that Attorney General Maura Healey promised to “vigorously oppose” a Texas judge’s order for her to testify in a deposition relating to her office’s probe of Exxon Mobil’s climate change policy and said she has no plans to visit the Lone Star State for the Dec. 13 hearing.

“Our position in this ligation is that the authorities in Texas, and specifically the federal court down there, has no jurisdiction over state attorneys general and the work of their offices,” Healey told reporters today at the State House. “It’s been disappointing to see Exxon fight the request for basic information. Our job as attorneys general is to be able to ask questions.”

Healey launched her probe of Exxon Mobil’s research in April, arguing the oil giant was deceiving consumers and investors. Exxon Mobil filed for an injunction — which Healey’s lawyers have moved to dismiss — to stop her on First Amendment and other grounds.

Judge Ed Kinkeade late last week ordered Healey, along with New York AG Eric Schneiderman, to answer questions in a Dallas courtroom deposition December 13.

“We are vigorously opposing any order to testify or produce discovery,” Healey said. “We believe we are on strong legal ground, not only with respect to the questions that we asked, but also to the position that this court has no jurisdiction over us.

“In simple terms, what the court has done is inappropriate,” the AG added.

Asked whether Healey has plans to travel to Texas for the deposition, she replied, “No, I don’t and we will take it up on appeal.”

Kinkeade has noted Exxon Mobil has charged Healey with attempting “to satisfy a political agenda,” and said in his order he wants to know more about what is behind her probe before he finds for either side.

Whether Attorney General Healey has a “political agenda” isn’t reasonably in dispute. She is, after all, an elected political figure. She is neither the first nor the last elected Attorney General who has started inquires relating to deceptive practices.

So, to the point:  Should a Federal judge interfere with an ongoing or incipient investigation by requiring the Massachusetts Attorney General to travel to his courtroom for a deposition? Maybe? How about requiring the next Attorney General to appear in a Federal Judge’s courtroom for a deposition? After all, he is just an appointed figure…but an important, busy guy…so maybe whether you are elected pursuing a “political agenda” or appointed is not the proper question. So, how about a state court judge from Colorado who tells Attorney General Sessions “show up in my courtroom so I can find out why you are messing with our legalized marijuana laws”?

Tricky stuff, which suggests maybe judges needs to be cautious in this arena. 


If You Are Innocent (Really Innocent) Why Plead Guilty

posted by Judge_Burke @ 15:30 PM
November 23, 2016

From the Marshall Project:

When someone is innocent of a crime, it seems safe to assume that that person would fight his case. But as the Associated Press pointed out, the opposite often happens. Out of 157 exonerations last year, 68 involved defendants who had pleaded guilty, a number that reflects just how overwhelmed our criminal justice system has become.

“For a long time, it was our country’s crown jewel, built on the principle that it was better that 10 guilty go free than one innocent be wrongfully convicted,” one defense attorney says. “Now sadly, the system accepts and even encourages innocent people to plead guilty.”

Alysia Santo


There is a lot of good new material on the procedural fairness web site!

Check it out here.  


Reflecting on the Role Judges Play in Dealing with Collateral Consequences

posted by Judge_Burke @ 15:30 PM
November 18, 2016

Up until the last decade, many judges and appellate courts gave little attention to collateral consequences. Indeed there are many appellate courts who ruled that failure to advise on the collateral consequence of deportation was no big deal (except, of course. to the deportable defendant). Since the decision in Padilla v. Kentucky, 559 U.S. 356 (2010), appellate courts and judges have given much more thought to collateral consequences, as illustrated by an essay written by Nora Demleitner.

Judicial Challenges to the Collateral Impact of Criminal Convictions:  Is True Change in the Offing? is the title of this notable new essay.  Here is the abstract:

Judicial opposition to disproportionate sentences and the long-term impact of criminal records is growing, at least in the Eastern District of New York.  With the proliferation and harshness of collateral consequences and the hurdles in overcoming a criminal record, judges have asked for greater proportionality and improved chances for past offenders to get a fresh start.  The combined impact of punitiveness and a criminal record is not only debilitating to the individual but also to their families and communities.  A criminal case against a noncitizen who will be subject to deportation and a decade-long ban on reentry and three different requests for expungement will demonstrate how three federal judges struggled with the long-term effects of the current sentencing and collateral consequences regime.  These cases exemplify both judicial creativity and judicial impotence, as the courts have to call upon the support of other actors within the executive and legislative branches for change, in these individual cases and systemically.

These judicial critics of the current approach argue within an emerging normative framework that is coming to dominate the societal discourse on punishment.  Increasingly some offenders are deemed “worthy” of receiving our assistance in reintegration.  They are generally nonviolent first offenders, those with an unblemished record save for the offense of conviction, those who have been gainfully employed or desperately want to work, and those who have cared for their children.  They present no danger to the community, and their continued punishment may negatively impact them, their surroundings, and ultimately the country.  On the other hand, those labeled violent or sex offenders or terrorists are being considered dangerous, unredeemable, and deserving of the harshness the criminal justice system has brought to bear on them.  The specific categorization of offenses, the definitions of terms, and the categorization of offenders remain fluid, contingent, and subject to constant revision.  Still, these judicial efforts expand on the incipient efforts at full reintegration of some of those with a criminal record. Whether their challenges will resonate with their colleagues and in other branches of government remains to be seen.


Governing Magazine Names Judge Steve Leifman as Public Official of the Year

posted by Judge_Burke @ 15:30 PM
November 17, 2016

Each year, Governing Magazine names several public officials of the year. It is quite an honor for a judge (I received the award in 2004). United States Senators, Governors, and Mayors of the nation’s largest cities are chosen, but frankly not many judges are recipients.

Governing explained why Judge Leifman was selected:

In 1973, Steve Leifman was a college student interning for a Florida state senator in Tallahassee. One day, the office received a letter from a constituent claiming that her son was being held at a state psychiatric hospital over the family’s objections. Leifman was sent to investigate. When he arrived at the hospital, staff showed him to the patient’s room. There Leifman found the young man shackled to a bed. He was enormously overweight: Hospital staff had been injecting him with Thorazine, an antipsychotic medication that causes weight gain. Thorazine can work as a treatment for psychosis. But the young man strapped to the bed was not psychotic. He was autistic.

Leifman was deeply shaken. Then a volunteer took him down to the basement to see where the truly psychotic patients were held. Eventually they reached a metal cage where a guard was hosing feces off several naked men. “It was one of those experiences that you never forget,” says Leifman. “The only thing I could think of while I was standing there was, ‘We treat animals better in the zoo.’”

Florida eventually closed most of its state mental hospitals. But when Leifman, a former public defender, became a county court judge in 1995, he realized where most of the patients had gone — to jails and prisons. In Miami-Dade County, which has the highest rate of mental illness in the entire nation, one-fifth of all the arrests involved people with mental problems. The Miami-Dade jail was the biggest psychiatric care facility in the state of Florida. Every few months saw incidences in which area law enforcement officers shot and killed someone who was suffering from mental illness. 

Leifman set out to change this. He developed a “crisis intervention training” program to teach police how to handle people with mental disease. Working with area law enforcement, mental health providers and elected leaders, he created the Criminal Mental Health Project (CMHP), which diverts the mentally ill out of the criminal justice system and into community treatment. In 2004, Leifman and his allies persuaded Miami-Dade County voters to approve a $21 million bond issue to convert a shuttered jail into a mental health-care facility. This year, the county and Jackson Memorial Hospital approved another $20 million for a new state-of-the-art facility, with construction scheduled to start in 2017. In June, Gov. Rick Scott signed a law that requires communities across the state to develop CMHP-style models of coordinated care. 

Many communities now try to keep people with mental illnesses out of the criminal justice system. What makes the Miami model distinctive, The New England Journal of Medicine noted in an article hailing Miami as a national model, is “a comprehensive, coordinated response to what’s recognized as a shared community problem.” Leifman is now working with the American Psychiatric Association Foundation, the National Association of Counties and the Council of State Governments on a new initiative, Stepping Up, which seeks to bring the Miami model to places across the country.

“The most exciting part of all of this is that people are recovering; they are getting their lives back,” says the 57-year-old Leifman. “Communities are saving money and improving public safety in the process. It doesn’t get better than that.”