Former AJA President Catherine Shaffer Talks To Fox News!

posted by Judge_Burke @ 19:32 PM
October 18, 2019

Here is a recap of Judge Shaffer’s interview.

The case

On July 19, 2019, the Washington State Supreme Court issued a decision in a murder and assault case involving a motion for a new trial because of allegations that the jury deliberations were tainted by racial bias.  The decision focused on the trial court’s responsibility to oversee the process of determining whether this occurred, including deciding whether to hold an evidentiary hearing and controlling how jurors are to be questioned about deliberations.

The case: State of Washington versus Tomas Mussie Berhe, 444 P.3d 1172, filed July 18 2019.  

Summary: A jury convicted petitioner Tomas Berhe of first degree murder and first degree assault. After the trial, juror 6, the only African-American juror came forward to the defense and to the court.  Juror 6 indicated to the defense that she was treated in an abusive and dismissive way that seemed to be based on her race.  The trial court denied Berhe’s motion for a new trial without an evidentiary hearing, instead relying solely on written declarations prepared with the aid of counsel on both sides.

The Ruling 

The Washington Supreme Court ruled that the trial court failed to exercise sufficient oversight and conduct a sufficient inquiry before denying the defendant’s motion for new trial without an evidentiary hearing.   The court vacated the trial court’s order denying the new trial motion and remanded the case for further inquiry and other proceedings as necessary.

King County Superior Court Judge Catherine Shaffer, a co-chair of the King County Superior Court’s Jury Committee, interprets the ruling this way:


As the Washington Supreme Court pointed out, racial bias is a common and pervasive evil that causes systematic harm to the administration of justice.  And where explicit or implicit racial bias factors into a jury verdict, as the state Supreme Court said, “the defendant is deprived of their constitutional right to a fair trial by an impartial jury.”

Both because it is difficult for those who are racially biased to admit their bias, and because implicit racial bias is unconscious and can influence decision making without the decision maker recognizing that influence, the state Supreme Court held that trial courts must control the inquiry when it is alleged that racial bias in the jury influenced the jury’s verdict.

This seems logical.  “If this were a group setting and someone asked, “Are you a racist?” do you really think you would get an honest answer?” posited Judge Shaffer.   

For trial courts, it is also very important that the information gathered from jurors is done on the record, under the oversight of the court, and in an open-ended way.  In the Berhe case, unfortunately, the prosecutors acted without court oversight and sent a two-question survey to the jurors which asked, “Did you personally do anything to Juror #6 which was motivated by racial bias during deliberations?” and “Did you observe any other juror do anything to Juror #6 which appeared to be motivated by racial bias?” This tended to lead the jurors into a response that supported the prosecutor’s opposition to the new trial motion and undermined the ability to find the facts.

What is the guidance

The state Supreme Court asked trial courts to be more engaged in the process of assessing an allegation of racial bias tainting a verdict, from the start.  It said that as soon as defense counsel learned that juror 6 was alleging racial bias in deliberations, the court and prosecutors should have been notified, and the court should have instructed counsel to have no further communications with jurors about the alleged bias unless on the record and overseen by the court.

The state Supreme Court directed that a trial court should first decide if there is sufficient information, objectively viewed, to indicate race played a factor in the verdict.  If this evidence is unclear, the court should, on the record, make further inquiries, such as asking the juror alleging bias to provide more information or clarify their statements.  If it appears that there is information indicating racial bias did play a part in the verdict, then the court should hold an evidentiary hearing.

Judge Shaffer believes the state Supreme Court provided helpful guidance to trial courts that they must be more engaged, in cases involving allegations that racial bias affected a verdict, in gathering clarifying information about whether race played a role in the deliberations.

This does not mean that trial courts will be investigating or breaching the secrecy of deliberations.  Instead, the Berhe decision creates a roadmap for courts looking at the specific question of whether racial bias influenced a verdict.

We do this already 

Trial courts are quite familiar with the process of talking to jurors, because they do it often in jury selection and occasionally during trial when there are allegations of misconduct.  For post-verdict inquiries into racial bias, the decision means trial courts use a similar approach and supervise the process.

If this happened in her courtroom, and inquiries of juror 6 on the record indicated racial bias had an impact on the verdict, Judge Shaffer said she would consult with counsel, on the record, in her court to develop open-ended questions for an evidentiary hearing such as, “Did you notice Juror 6 being treated in a different way? Why do you think that happened?” She would then have jurors questioned individually to get at the most honest answers.  This is very similar to the procedure that is used in many cases in jury selection to investigate potential issues of bias, for example in cases that have drawn pretrial publicity or that raise sensitive issues.

“We have questionnaires. For example, a sexual assault trial, you ask if the juror can be fair if the juror has been the victim of sexual assault or is close to someone who has. Then we listen carefully,” said Judge Shaffer.

“In the Ride the Ducks trial, we had a lot of questions to get to whether people could be fair: Do you have detailed information about the Ducks incident? Are you familiar with the Aurora Avenue Bridge? Have you or people close to you been in a serious vehicle accident?

“There are certainly times people aren’t forthcoming. When I was a prosecutor, I had a juror who remained silent on a particular issue during voir dire. We had the trial. During jury deliberations, she said based on a particular belief and experience she had not disclosed in voir dire, she absolutely would NOT agree to convict on a particular charge. So it was 11-1 on that charge, but we had other charges.”

Is this a groundbreaking ruling? Not particularly. This is the direction the county is going. “We take allegations of racial bias very seriously,” Judge Shaffer said, “That implicit and explicit bias can negatively affect the court system is well established.  Justice Yu referenced that problem in her decision. Other organizations that have published on this topic include the American Bar Association, Scientific American, and the National Center for State Courts.”


You Can Always Learn About Decision Making

posted by Judge_Burke @ 21:52 PM
October 17, 2019

Personality & Individual Differences includes a study: “Dimensions of decision-making: An evidence-based classification of heuristics and biases.”

The authors are Andrea Ceschia, Arianna Costantinia, Riccardo Sartoria, Joshua Wellerb, & Annamaria Di Fabioc.

Here’s the abstract:

Traditionally, studies examining decision-making heuristics and biases (H&B) have focused on aggregate effects using between-subjects designs in order to demonstrate violations of rationality. Although H&B are often studied in isolation from others, emerging research has suggested that stable and reliable individual differences in rational thought exist, and similarity in performance across tasks are related, which may suggest an underlying phenotypic structure of decision-making skills. Though numerous theoretical and empirical classifications have been offered, results have been mixed. The current study aimed to clarify this research question. Participants (N = 289) completed a battery of 17 H&B tasks, assessed with a within-subjects design, that we selected based on a review of prior empirical and theoretical taxonomies. Exploratory and confirmatory analyses yielded a solution that suggested that these biases conform to a model composed of three dimensions: Mindware gaps, Valuation biases (i.e., Positive Illusions and Negativity effect), and Anchoring and Adjustment. We discuss these findings in relation to proposed taxonomies and existing studies on individual differences in decision-making.


Here’s a link: Ken Pope: Dimensions of Decision-Making: An Evidence-Based Classification of Heuristics and Biases


Is There An Easy Way To Determine Whether A Child Is Telling The Truth?

posted by Judge_Burke @ 20:55 PM
October 15, 2019

Among the most difficult decisions a judge faces is determine credibility. Judges make factual findings. Judges (including this one) are not necessarily better than others at figuring out who is telling the truth. For example, in a controlled study of 110 judges with an average of 11.5 years on the bench, judges did no better than chance in telling who was being truthful and who was not.  See Paul Ekman & Maureen O’Sullivan, Who Can Catch a Liar?, 46 Am. Psychologist 913 (1991); Richard Schauffler & Kevin S. Burke, Who Are You Going to Believe?, 49 Court Rev. 124 (2013). Judge Learned Hand once said, “The spirit of liberty is the spirit which is not too sure that it is right.”

So perhaps you might read this cautiously. Kaila BruerSarah ZanetteXiaopan DingThomas D. Lyon and Kang Lee (University of Regina, University of Toronto, National University of Singapore (NUS), University of Southern California Gould School of Law and Institute of Child Study) have posted Identifying Liars Through Automatic Decoding of Children’s Facial Expressions (Forthcoming in Child Development) on SSRN. Here is the abstract:

This study explored whether children’s (N=158; 4-9 years-old) nonverbal facial expressions can be used to identify when children are being deceptive. Using a computer vision program to automatically decode children’s facial expressions according to the Facial Action Coding System, this study employed machine learning to determine whether facial expressions can be used to discriminate between children who concealed breaking a toy(liars) and those who did not break a toy(nonliars). Results found that, regardless of age or history of maltreatment, children’s facial expressions could accurately (73%) distinguished between liars and nonliars. Two emotions, surprise and fear, were more strongly expressed by liars than nonliars. These findings provide evidence to support the use of automatically coded facial expressions to detect children’s deception.


Justice Sotomayor On The Death Penalty

posted by Judge_Burke @ 20:06 PM
October 14, 2019

From the Sentencing Law & Policy Blog,

Adam Liptak has this new New York Times piece headlined “In Death Penalty Cases, Sotomayor Is Alone in ‘Bearing Witness’.” Here are brief excerpts:

The terse Supreme Court rulings arrived in the evening, in time to allow an execution later that night. There were three rulings in the last month or so, at 5:52 p.m., at 7:01 p.m. and at 10:13 p.m. They were bland and formulaic, saying only that the court had denied an “application for stay of execution of sentence of death.” The inmates who had filed the applications were put to death within hours.

In all three cases, only one member of the court bothered to write an opinion, to give a hint about what was at stake. That was Justice Sonia Sotomayor, who maintains a sort of vigil in the capital cases other justices treat as routine. She described shortcomings in the trials the inmates had received and oddities in the laws the courts below had applied….

There is a precedent for Justice Sotomayor’s attention to capital cases, said Jordan M. Steiker, a law professor at the University of Texas…. “Justice Sotomayor is carrying forward the tradition of Justices Brennan and Marshall,” Professor Steiker said, referring to Justices William J. Brennan Jr. and Thurgood Marshall, who came to adopt a practice of dissenting in every death penalty case….

Justice Sotomayor’s sustained attention to the capital justice system, Professor Steiker said, was part of an effort to speak to many audiences. “She recognizes the institutional limits of the court in correcting every injustice or every misreading of federal law, yet she wants to communicate the wrongness of those injustices and misreadings despite the court’s inability to intervene,” Professor Steiker said. “Justice Sotomayor is speaking to institutional actors — judges, prosecutors, defense lawyers — to make clear that the court, or least some portion of it, is keenly aware of problems that it is not presently able to correct.


The Constitutional Right To An Insanity Defense

posted by Judge_Burke @ 19:50 PM
October 11, 2019

You can go through a very long career on the bench and never handle a case with an insanity defense. Most of those types of cases fall into two categories: everyone agrees the defense applies and there is a short, virtually stipulated, court trial or a jury trial where most but not all defendants lose. See this article by By Garrett Epps. THE ATLANTIC.

 The U.S. Supreme Court recently heard argument in a Kansas case that will help refine how far states can continue to go to restrict use of the age-old defense.


‘Closure’ and Emotion in the Criminal Courtroom

posted by Judge_Burke @ 21:19 PM
October 10, 2019

Closure in the Criminal Courtroom: The Birth and Strange Career of an Emotion by Susan A. Bandes :: SSRN

Over the last thirty years, the notion that the criminal justice system can help provide closure for victims and their families has gained remarkable traction, both in popular discourse and in the legal arena. Closure is offered—often successfully—as an argument for imposing death sentences, trimming procedural protections, permitting victim impact statements, truncating appeals, denying clemency petitions, speeding up executions, televising executions, and granting the bereaved access to the execution chamber. More broadly, it has transformed the debate about the legitimacy of the capital system—recasting the imposition of the death penalty from a retributive act to an act of compassion for bereaved families. Closure is a puzzle. Its parameters are fuzzy, its dynamics are murky, and its origins seem to have more to do with law and politics than with psychology. There is an argument to be made that closure isn’t an emotion at all, but rather a set of legal aspirations for the conduct of criminal proceedings. Yet closure has increasingly come to be viewed as an emotional state—and one that the criminal justice system is capable of helping victims and survivors attain. It has become a prime example of the power of the criminal justice system to shape emotional expectations. This chapter discusses the evolution of closure as a legal concept, the definitional ambiguities surrounding the term, and the institutional consequences of these ambiguities for the criminal justice system. It examines the symbiotic relationship between closure and the criminal justice system, arguing that the criminal justice system has played a powerful role in reshaping the emotional expectations of victims and their families. The chapter then reviews the empirical literature on closure and criminal justice. Finally, it identifies directions for further study.



Did You Know This About The Miranda Decision?

posted by Judge_Burke @ 19:22 PM
October 9, 2019

Raneta Lawson Mack (Creighton University School of Law) has posted From the Sublime to the Ridiculous and Everything In-Between: Fifty Things You May or May Not Know About Miranda v. Arizona (7 LAW J. FOR SOC. JUST. 33, 2017) on SSRN. Here is the abstract:

The purpose of this article is to give Miranda a proper celebration with a 50-point reflection highlighting some of Miranda’s ups, downs and in-betweens. The goal is to thoughtfully (and briefly) reflect on the various trials and tribulations of one the most important cases in our constitutional history. By bringing these disparate concepts together in one piece, the hope is that they will do Miranda justice, for as Chief Justice Rehnquist declared, “the warnings have become part of our national culture.”


What Can You Constitutionally Say to A Police Officer?

posted by Judge_Burke @ 15:48 PM
October 7, 2019

From the Marshall Project , “Decision of the Day: In Arkansas, anyway, you have a constitutional right to shout “Fuck You” to a cop without fear of a subsequent retaliatory arrest.  For those of you that are a bit offended by the language if you read the decision the court does not use these actual words.



Do Jurors Understand The Instructions In Canada?

posted by Judge_Burke @ 20:20 PM
October 3, 2019

Michelle Bertrand and Richard Jochelson (University of Winnipeg and Robson Hall, University of Manitoba Faculty of Law) have posted Mock-Jurors’ Self-Reported Understanding of Canadian Judicial Instructions (Is Not Very Good) on SSRN. Here is the abstract:

Studies of the criminal jury within a Canadian context remain few and far between compared to such research based in other jurisdictions especially the United States. The study of jury work in Canada is significantly curtailed for structural reasons, which we outline below. This makes the study of actual jurors who have served almost impossible in Canada so researchers must use alternative methods to study Canadian juridical issues.

The current study used a student sample to investigate comprehension of Canadian Judicial Council (CJC) pattern instructions. This is the first study to interrogate CJC pattern instructions in relatively common and uncomplicated crimes.

In this article, we discuss the barriers to jury research in Canada, consider some challenges facing jurors in comprehending legal concepts, and explore the development of pattern instructions in Canada. We then describe the results of our study, which revealed that a majority of participants self-reported a lack of comprehension in the pattern instructions provided and demonstrated a lack of understanding of foundational legal principles based on responses to other questions. This lack of comprehension has implications for policy development and for future studies in the area of juror comprehension.


How Far Can The Police Go In Searching For Drunk Drivers?

posted by Judge_Burke @ 21:32 PM
October 1, 2019

A federal appeals court concluded that Michigan police violated the constitutional rights of a homeowner who refused to answer the door immediately to undergo a breathalyzer test that was a requirement of his probation. 6TH U.S. CIRCUIT COURT OF APPEALS.