Fictional Pleas

posted by Judge_Burke @ 14:13 PM
November 12, 2018

In one state, the legislature has decided that really significant fines are required upon conviction of driving without a valid drivers license. So, what if the defense lawyer, prosecutor, judge think that the defendant is never going to be able to pay? Or, what if the defendant is a single parent struggle to pay the rent?

Amend the charge to disorderly conduct and the problem is taken care of.

If the defendant finally got their drivers license, but picked up a driving after suspension just before the license got reinstated? Amend the charge to public nuisance and the problem is solved.

If you think this is creative, if you are appalled, or if you are just curious, you might want to read this new paper now available via SSRN authored by Thea Johnson.  Here is its abstract:

A fictional plea is one in which the defendant pleads guilty to a crime he has not committed with the knowledge of the defense attorney, prosecutor and judge.  With fictional pleas, the plea of conviction is totally detached from the original factual allegations against the defendant.  As criminal justice actors become increasingly troubled by the impact of collateral consequences on defendants, the fictional plea serves as an appealing response to this concern.  It allows the parties to achieve parallel aims: the prosecutor holds the defendant accountable in the criminal system, while the defendant avoids devastating non-criminal consequences.  In this context, the fictional plea is an offshoot of the “creative plea bargaining” encouraged by Justice Stevens in Padilla v. Kentucky.  Indeed, where there is no creative option based on the underlying facts of the allegation, the attorneys must turn to fiction.

The first part of this Article is descriptive, exploring how and why actors in the criminal justice system — including defendants, prosecutors and judges — use fictional plea for the purposes of avoiding collateral consequences.  This Article proposes that in any individual case, a fictional plea may embody a fair and just result — the ability of the defendant to escape severe collateral consequences and a prosecutor to negotiate a plea with empathy.

But this Article is also an examination of how this seemingly empathetic practice is made possible by the nature of the modern adversarial process — namely, that the criminal system has continually traded away accuracy in exchange for efficiency via the plea bargain process.  In this sense, fictional pleas serve as a case study in criminal justice problem solving.  Faced with the moral quandary of mandatory collateral consequences, the system adjusts by discarding truth and focusing solely on resolution.  The fictional plea lays bare the soul of an institution where everything has become a bargaining chip: not merely collateral consequences, but truth itself.  Rather than a grounding principle, truth is nothing more than another factor to negotiate around.


Marijuana In Mexico

posted by Judge_Burke @ 21:23 PM
November 9, 2018

Canada has legalized marijuana. That decision got a lot of press coverage in the United States. And of course there are several states that have also legalized marijuana. Now Mexico’s Supreme Court has ruled that an absolute ban on recreational use of marijuana was unconstitutional, effectively leaving it to lawmakers to regulate consumption of the drug. Announcing it had found in favor of two legal challenges filed against prohibition of recreational marijuana use, Mexico’s top court crossed the threshold needed to create jurisprudence: five similar rulings on the matter. That creates a precedent other Mexican courts will have to follow.

“This is a historic day,” Fernando Belaunzaran, an advocate of drug reform and member of the opposition leftist Party of the Democratic Revolution (PRD), said. The Supreme Court made its first ruling to allow a group of people to grow marijuana for personal use in November 2015. In a statement, the court said the ruling did not create an absolute right to use marijuana and that consumption of certain substances could still be subject to regulation. “But the effects caused by marijuana do not justify an absolute prohibition on its consumption,” it said.

The court ordered federal health regulator COFEPRIS to authorize people seeking the right to use marijuana to do so personally, “albeit without allowing them to market it, or use other narcotics or psychotropic drugs.” Congress would now have to act to regulate the use of marijuana in Mexico, Belaunzaran said.


Meanwhile, in West Virginia

posted by Judge_Burke @ 21:20 PM
November 8, 2018

Governing Magazine, Alan Greenblatt, reports that,

West Virginia politics has been roiled this fall by the impeachment trials of all the sitting justices on the state Supreme Court. The events overshadowed a ballot measure meant to address the underlying issue that led to the trials — how the judiciary spends its funds. Still, the constitutional amendment easily passed.

The measure gives the legislature more control over the judicial budget. Now, any part of the court system’s budget could be cut or eliminated by lawmakers, so long as the overall judicial budget is at least 85 percent as large as it had been the prior fiscal year. West Virginia had been the only state where the legislature had no say over it.

The changes to judicial funding drew much less media coverage or voter interest than the ongoing impeachment drama, or another amendment on the state ballot regarding abortion. “Most of the attention seems to be on the impeachment trials themselves, not on structural fixes to the perceived problems,” Scott Crichlow, a political scientist at West Virginia University, said in early October.

Last month, the state Senate reprimanded Justice Beth Walker but voted to let her keep her seat on the bench, following a two-day impeachment trial. That same day, a jury was selected in the criminal trial of suspended Justice Allen Loughly, who faces 22 federal charges, including mail fraud, obstruction of justice and making a false statement.

In August, the West Virginia House voted to impeach Loughry, Walker and two other justices, charging them with failure to carry out their duties. Several justices were charged with misuse of funds on office renovations, salaries or vehicles and computers. A fifth justice, Menis Ketchum, had stepped down in the face of a federal indictment. He pleaded guilty in August to misusing public funds…




posted by Judge_Burke @ 15:11 PM
November 7, 2018

You do not need to be a treatment court judge to know that addiction drives much of the criminal justice system. So we all need to know just a little bit more about it. Years ago a Congressman from Minnesota, who was a champion of improving our nation’s response to addiction, said that far too many members of Congress saw addiction as a moral failure. It isn’t.

Stephen Morse (University of Pennsylvania Law School) has posted an abstract of Criminal Law and Addiction (The Routledge Handbook of Philosophy and Science of Addiction 540-53 (Hanna Pickard and Serge H. Ahmed, eds., 2019)) on SSRN. Here is the abstract:

There is a debate among addiction specialists about the degree to which addicts can exert control over seeking and using substances and about other behaviors related to addiction. Some think that seeking and using are solely or almost solely signs of a disease and that addicts have little choice about whether to seek and use. In contrast are those who believe that seeking and using are constrained choices but considerably less constrained on average than the first group suggests. This group is also more cautious about, but does not reject, characterizing addiction as a disorder. There is evidence to support both positions. There is a third group who believe that addiction is simply a consequence of moral weakness of will and that addicts simply need to and can pull themselves up by their bootstraps. The empirical evidence for the moralizing third view seems weak, although such attitudes play a role in explaining the limited role the criminal law accords to addiction. This chapter demonstrates that existing Anglo-American criminal law is most consistent with the choice position. It also argues that this is a defensible approach that is consistent with current science and with traditional justifications of criminal blame and punishment.

The chapter first discusses preliminary issues to avoid potential objections that the discussion adopts an unrealistic view of addiction. It then provides a general explanation of the responsibility criteria of the criminal law and briefly addresses false or distracting claims about lack of responsibility. Then it turns to analysis of the criminal law’s doctrines about addiction to confirm that the criminal law primarily adopts a choice model and that addiction per se plays almost no role in responsibility ascriptions. It concludes with a general defense of present doctrine and practice, but briefly suggests beneficial liberalizing reforms.


Do You Need A Ride To Court?

posted by Judge_Burke @ 21:56 PM
November 5, 2018

MacArthur Foundation grant aims to get offenders to court, avoid night in jail

By Rochelle Olson Star Tribune:

The MacArthur Foundation, which focuses on social issues and is known for its “genius grants,” awarded the money to the county and city as part of a warrant reform project called Hitch Health designed to remove a barrier to defendants showing up for court dates.

The free rides will be offered beginning in January.

Jeanette Boerner, first assistant Hennepin County public defender, said economic barriers often keep defendants from going to court. It’s expensive to park downtown, they may not have a license or be able to afford insurance, or child care may fall through at the last minute.

“A lot of times they have so many crises they’re trying to deal with” that something has to give, Boerner said.

When a defendant doesn’t show up in court, the judge issues a warrant for their arrest. Typically they get picked up and spend the night in jail, spiraling them further into a web of problems, she said.

Getting defendants to court on time also should make judges’ schedules less congested with rescheduled appearances, Boerner said. Some defendants will receive rides to go downtown and meet with lawyers before their court appearance.

The money is expected to cover some 3,000 rides. Boerner said the pilot project will continue until the money runs out.

The grant proposal was written by Mary Ellen Heng, deputy Minneapolis city attorney, and is part of the MacArthur Foundation’s Safety and Justice Challenge in 52 cities and counties across 32 states. The challenge is trying to stem the misuse and overuse of jails, which the foundation calls a “fundamental driver of over-incarceration in America.

View the original article at the star tribune website.


An Interesting New Report From The Brennan Center

posted by Judge_Burke @ 19:58 PM
November 2, 2018

The Brennan Center calls for reform to state supreme courts, where high-cost elections have become the norm.

The report, “Choosing State Judges: A Plan for Reform,” urges states to abolish elections for state supreme court justices and instead adopt a transparent, publicly accountable appointment process for their highest courts. It also calls for the adoption of a lengthy single term for state supreme court justices, along with other reforms designed to rein in the role of money and politics in state courts.The Brennan Center’s research has shown, million-dollar campaigns for state supreme court seats are fast becoming the national norm. Dark, untraceable funds are flooding judicial races, and national political groups and business interests regularly pour money into these campaigns.The  Brennan Center research also  shows that one-third of all elected state justices have been through at least one million-dollar race, and 90 percent of voters believe campaign cash affects judicial decision making.

The Brennan Center’s  policy report makes the following recommendations:

    • The 38 states that have elections or retention elections for state supreme court justices should eliminate them.
    • States should adopt a publicly accountable appointment process where an independent, bipartisan commission vets candidates and creates a shortlist for appointment by the governor.
    • Those commissions should have transparent procedures and clear criteria for vetting candidates, and their membership should be bipartisan, appointed by diverse stakeholders, and include non-lawyers.
    • State justices should serve for a single, lengthy term rather than face elections or a political reappointment process to retain their seats.


The report also lays out suggestions for how states that use elections can mitigate the influence of big-money politics, such as adopting a more accountable process for interim appointments, strengthening recusal rules, and adopting public financing for judicial races, among other key reforms.


The Happy California Judges

posted by Judge_Burke @ 16:01 PM
November 1, 2018

“California judges to get $15,000 checks for raises they missed during recession”: 

Adam Ashton of The Sacramento Bee has an article that begins,

The state of California owes about $40 million in back wages to judges after Governor  Jerry Brown’s administration lost its last appeal in a long-running lawsuit that centers on how it calculated their raises after the recession.


Hopefully This Too Will Pass

posted by Judge_Burke @ 18:54 PM
October 31, 2018

There are several types of threats that can affect judicial independence. But in the final analysis, the driving force is fear. In 2010, three justices were defeated in a highly contentious retention election in Iowa. The defeated justices were recognized for their courage in doing what they thought was right: the State of Iowa’s constitution gave gay people a right to marry.

Hopefully this too will pass.  From Stephen Gruber-Miller and the Des Moines Register:

A conservative Iowa group that successfully pushed to oust three Iowa Supreme Court justices in 2010 over a decision legalizing same-sex marriage is hinting it could do it again — this time over abortion.

Drew Zahn, director of communications for The Family Leader, said although the group has no plans in place right now to target specific justices, “we’re not ruling that out” in the future. No state supreme court justices are on the ballot this year but three will be in 2020.

An email to supporters sent Friday by Bob Vander Plaats, The Family Leader’s president and CEO, criticized ”notorious opinions” issued by the state Supreme Court. That includes a 5-2 decision in June that found women in Iowa have a fundamental right to an abortion under the Iowa Constitution.

“We have no plans in place right now to target any specific judges, but we absolutely object to the philosophy of evolving standards for evaluating our constitution,” Zahn said, referring to the abortion decision, which struck down a portion of a law requiring a 72-hour waiting period to get an abortion.

Vander Plaats, in the email, advised supporters on how to decide whether or not to retain the Iowa judges on the ballot this November and argued that Iowa’s system for selecting judges should change.

“We’re hoping that there won’t be another battle over Supreme Court justices, but if there is, the bar association will be there to support the court, I can tell you that,” said Tom Levis, president of the Iowa State Bar Association.

Justices Susan Christensen, Edward Mansfield, Thomas Waterman and David Wiggins will face a retention election in 2020, while the remaining three justices will be on the ballot in 2024.

Mansfield and Waterman dissented from the decision that found the Iowa Constitution protects the right to an abortion, while Wiggins was in the majority. Christensen was appointed to the court this year by Republican Gov. Kim Reynolds, after the court ruled in the abortion case.



Did Chief Justice Marshall Suborn Perjury in Marbury v. Madison?

posted by Judge_Burke @ 19:05 PM
October 30, 2018

We live in an era where the confirmation process has become toxically partisan. There are some who allege that Justice Kavanaugh committed perjury.  So, not surprisingly, there are some who yearn for the ‘good old days.’ Were there really good old days?  Professor Anthony Gaugan posted this recently on the Faculty Lounge.

On CSPAN’s Q & A program Sunday evening, Brian Lamb interviewed Joel Richard Paul about his new book, Without Precedent: Chief Justice John Marshall and His Times. The whole interview is quite good but one part of it especially caught my attention. While researching his book, Professor Paul found a letter that suggests Chief Justice John Marshall may have suborned perjury in the landmark case of Marbury v. Madison.

The basic facts of Marbury are well-known. On March 3, 1801—the last day of the Adams Administration—the lame duck Federalist Senate confirmed 42 Federalist nominees for justices of the peace. The confirmations were part of the “Midnight Appointments” whereby the Federalists attempted to stack the federal judiciary before the Jeffersonian Republicans took power following the election of 1800.

During the final hours of the Adams presidency, John Marshall simultaneously served as chief justice and secretary of state. In the latter capacity, he signed with an official seal each of the commissions for the new justices of the peace. But amid the chaotic rush to get the commissions out, some inadvertently remained behind on a desk in the State Department. The new Secretary of State, James Madison, refused to deliver the commissions when he took office the next day. Nine months later, four of the would-be justices of the peace—including a wealthy Federalist named William Marbury—filed a writ of mandamus asking the Supreme Court to order Madison to deliver the commissions.

The case of Marbury v. Madison reached the Supreme Court in February 1803, which is where Professor Paul’s discovery comes in.

The key witness in the Marbury case was James Marshall, brother of the chief justice. In an affidavit submitted to the Court, James explained that he agreed to deliver the commissions on behalf of the State Department, but the package containing the commissions was too large to carry. James decided to leave behind some of the commissions, apparently assuming someone else would deliver them, but no one did.

James Marshall’s affidavit was absolutely crucial to William Marbury’s case because without it Marbury would have lacked evidence of his undelivered commission. In a display of partisan defiance, the Jefferson Administration and the Republican Congress refused to provide any evidence regarding the Adams commissions. John Marshall, of course, had personal knowledge of the commissions, but he obviously could not serve as a witness in a case he presided over as judge. The upshot was Marbury’s whole case rested on James Marshall’s memory of events.

But according to Professor Paul, James Marshall’s testimony “was most likely a complete fabrication. Historians have long accepted James’s story, but it made no sense.” Paul’s revisionist account rests on a letter he discovered in the Marshall papers. In mid-March 1801, two weeks after Jefferson’s inauguration, John Marshall wrote a letter to his brother in which the chief justice expressed his “infinite chagrin” that the Jefferson Administration had refused to deliver the remaining commissions. The chief justice explained that he expected James Madison to deliver them since they had already been signed and sealed. In the letter, John Marshall then went on to take personal responsibility for the undelivered commissions:

“I should however have sent out the commissions which had been signed & sealed but for the extreme hurry of the time & the absence of Mr. Wagner who had been called on by the President to act as his private Secretary.”

The crucial point is that John Marshall blamed himself, not his brother, for the non-delivery of the commissions. The letter could thus be read as an indication that James did not have any role in delivering the commissions. As Professor Paul explains, “If James was responsible for delivering the commissions, then Marshall’s explanation to James would have been superfluous. 

But when Marbury later brought suit against Madison, James Marshall signed an affidavit asserting that it was his responsibility to deliver the commissions, and that he personally saw the undelivered commissions (thus establishing their existence). In the words of Professor Paul, It is apparent that James Marshall perjured himself in the Supreme Court and that the chief justice not only knew this but probably asked him to lie.” Paul argues that John Marshall persuaded James to take responsibility for the undelivered commissions in order to maintain the viability of Marbury’s case.

Ironically, Marshall ultimately ruled against Marbury. In one of the shrewdest opinions of his career, the chief justice (writing for a unanimous Court) held that Article III of the Constitution did not grant the Supreme Court original jurisdiction to issue writs of mandamus, and thus Section 13 of the Judiciary Act of 1789—which purported to grant the Court such jurisdiction—violated the Constitution.

As Paul explains, “Marshall invented a conflict between the Constitution and the Judiciary Act in order to create the opportunity to assert the power of judicial review,” all while avoiding a direct political confrontation with the Jefferson Administration. “Most likely,” Paul conjectures, “John and James Marshall sat down with their friend Charles Lee [Marbury’s attorney]—perhaps over a glass of Marshall’s favorite Madeira—and constructed this case from start to finish.”

It is a very interesting argument. The relevant portions of the book are on pages 243-60 (especially 252-4) and the CSPAN interview with Joel Richard Paul is available here.


Drunk Driving Defense in Canada

posted by Judge_Burke @ 21:53 PM
October 29, 2018

The issue of access to source codes with the devices that were used to test persons suspected of drunk driving plagued Minnesota courts for several years.  The Supreme Court of Canada recently held that the maintenance logs for breathalyzers used in drunk-driving stops and charges are only disclosable in court if a defendant can show such records are relevant to the defendant’s case.

The defendant, Ms. Awashish, was charged with impaired driving and driving “over 80” and requested documents related to her charges, called disclosure, specifically those related to a breathalyzer used to test her. A lower court judge ordered Canada to give her the documents.

The Supreme Court of Canada held that Ms. Awashish’s records were not material to how a breathalyzer works on any given day nor did Ms. Awashish “establish a basis for the records’ existence or relevance. [Canada] was therefore under no obligation to inquire into the matter.”

In addition, in a procedural matter, the issue was whether Ms. Awashish or the government was able to appeal on an evidence disclosure question in the first place when it was not the question of the trial, but a side matter. In response, the Supreme Court essentially confirmed a general rule that trials should not be interrupted to deal with side issues, according to a “Case in Brief” Report published on the Supreme Court’s website.