So Much For Merit Selection

posted by Judge_Burke @ 21:23 PM
August 23, 2018

In an ideal world there would be merit selection of judges. But of course it depends upon how you define “merit” and that is where the whole process breaks down. Election of judges is viewed in other countries (and by many in the United States) as a very odd process. But before you exclaim all of the virtues of the federal court appointment process consider this reportLiberals crushed in SCOTUS spending war; Conservatives are vastly outspending liberals and targeting vulnerable senators in the fight to confirm Brett Kavanaugh, by Burgess Everett and Maggie Severns of Politico.


What Rights Of Privacy Should Those Who Live In Apartments Have?

posted by Judge_Burke @ 21:17 PM
August 22, 2018

If you are a strict constructionist like Justice Scalia, the answer might be that we had no apartments at the time of the adoption of the United States Constitution so there was no need to think about dogs running around sniffing at people’s doors. Or perhaps the answer for a strict constructionist might be that no one at the time of the adoption of the Constitution thought of training dogs to finds anything. But we are no longer living in that era. Lots of people live in apartments and condominiums. Do they have a reasonable right to privacy? Far less so in Minnesota.

From Minnesota Public Radio, via the NACDL news scan:

While a person’s home can be considered constitutionally protected, the Supreme Court said today, an apartment hallway is not, even if the dog had to sniff at the seam of Edstrom’s door to smell the drugs.

Writing for the majority (see opinion), Chief Justice Lorie Gildea said the essential question of the expectation of privacy in the hallway is whether the device police used — in this case: a dog — is “’capable of detecting lawful activity’” as well as illegal activity,” Gildea said in citing a U.S. Supreme Court decision.​  There is another way of looking at this issue as illustrated by Justice David Lillehaug’s dissent.

Here is an excerpt from the dissent:

In Florida v. Jardines, the United States Supreme Court held that a narcotics-dog sniff at the door of a single-family residence was a “search” in violation of the Fourth Amendment’s warrant requirement. 569 U.S. 1, 11–12 (2013). This is so because the area “immediately surrounding and associated with the home—what our cases call the curtilage—[is] part of the home itself for Fourth Amendment purposes.” Id. at 6 (citation omitted) (internal quotation marks omitted).

Today, the court reads out of Jardines the area “immediately surrounding” the home. The unfortunate result of this omission is discrimination among Minnesotans based on where they live. The search of the door of a single-family home requires a warrant, but the search of the door of an apartment home does not.

But homes are homes. Because Minnesotans’ constitutional rights should not depend on the form of their dwelling, I respectfully dissent.”


The Right To Openly Bear Arms

posted by Judge_Burke @ 20:26 PM
August 21, 2018

The Second Amendment grants gun owners the constitutional right to openly bear arms in public for “self-defense,” a divided panel of the  9th U.S. Circuit Court of Appeals ruled in a case out of Hawaii. The ruling applies to roughly 20 percent of the nation’s population and the nation’s federal appeals courts are split almost evenly on the issue.  Read the ruling: 9TH U.S. CIRCUIT COURT OF APPEALS.


If there is anything that binds judges in solidarity, the issue of judicial independence may well be at the top of the list. And so when you see that immigration judges filed a formal grievance against the attorney general, one might expect that quite a few judges would (or should) become concerned.

The formal grievance against Attorney General Sessions claims he is trying to influence the results of cases before a Philadelphia-based judge whom Trump officials say is not processing cases quickly enough. The Justice Department says, in response, that the judge, Steven Morley, is himself under investigation for possible violations of “processes and practices.” See articles from USA Today and CNN.


Should AJA Be Concerned About What Is Happening In West Virginia?

posted by Judge_Burke @ 14:00 PM
August 17, 2018

It is frankly difficult to be sympathetic to a Supreme Court justice who spends over $30,000 on a couch or a Supreme Court justice who outsourced the writing of her opinions to a private law firm. Impeachment of Supreme Court justices is rare. It is unheard of to impeach an entire court.

From Cambell Robertson at the New York Times:

CHARLESTON, W.Va. — The whole episode began with office renovations and a $32,000 dark blue suede sectional sofa, accented with more than $1,000 worth of throw pillows. Now West Virginia’s entire Supreme Court is being impeached.

Late Monday night, after a long day of discussion and at times testy debate, the West Virginia House of Delegates passed 11 articles of impeachment against the four sitting justices of the Supreme Court of Appeals, the state’s highest court.

Advocates for the impeachment, mostly Republicans, who hold a large majority in the House, said the scale of the justices’ misconduct, though not illegal, called for an extraordinary response, a process the Legislature has resorted to only once over the past hundred years.

“They think they’re better than everybody in this state that works a blue collar job!” thundered Delegate Michael Folk, a Republican, tapping into the populism that runs deep in the state. “The average citizen in the state of West Virginia is appalled.”

View the whole story here.




A Tool To Help Predict Future Criminal Behavior?

posted by Judge_Burke @ 18:12 PM
August 16, 2018

Phrenology is a pseudomedicine primarily focused on measurements of the human skull, based on the concept that the brain is the organ of the mind, and that certain brain areas have localized, specific functions or modules. At one point there was a belief that phrenology could revolutionize the criminal justice system. Nobody really believes that the shape of our heads are a window into our personalities anymore. But the idea which was developed by the German physician Franz Joseph Gall in 1796  was hugely popular in the 19th century. So what about a modern version of phrenology?

As risk assessment tools become ever more integral to the criminal justice system, some neuroscientists are looking to the brain to aid in the effort. They call it “neuroprediction,” the science of using MRIs to determine whether someone is likely to commit more crime. Critics warn the science is not ready for prime time. Defense attorneys worry it will make juries less sympathetic. But proponents say neuroprediction accounts for differences in individual brains much better than a broad category like age does. In collaboration with Tonic, Andrew Calderon has the story.


What Role Should Statistical Evidence Play In Combating Racial Inequality?

posted by Judge_Burke @ 14:00 PM
August 15, 2018

John Charles Boger (University of North Carolina School of Law) has posted Mccleskey V. Kemp: Field Notes from 1977-1991 (Northwestern University Law Review, Vol. 112, 2018) on SSRN. Here is the abstract:

This Essay is an expanded version of a keynote address to a Symposium hosted by the Northwestern University School of Law. It examines the handiwork of the Supreme Court in the McCleskey v. Kemp (1987) case and the adverse impact of McCleskey on the subsequent judicial consideration of statistical evidence — even of widespread racial discrimination — in the capital and criminal justice systems. As one member of the legal team who brought the McCleskey case, my contribution was to speculate on how and why the Court might have disregarded such meticulously documented and unrebutted patterns of racial disparities in capital sentencing, despite the Justices’ formal condemnation of racial discrimination in principle and their occasional intervention to curb particularly egregious acts of racial injustice. This Essay ends by encouraging social scientists and legal scholars to continue to uncover and oppose patterns of racial discrimination that remain widespread in the administration of criminal justice.



How Does My State Compare to Others Regarding Public Safety?

posted by Judge_Burke @ 14:00 PM
August 14, 2018

It is not an easy question…or, more accurately, it is not an easy question to answer. But, thanks to the Council on State Governments, it may be easier than you think.

The Council on State Governments Justice Center has released the 50-State Report on Public Safety, a first of its kind, web based resource that combines extensive data analysis, case studies and recommended strategies to help policymakers address their state’s specific public safety challenges. Here is an excerpt from the report:

Although crime rates across the country are near all-time lows, each state faces a unique combination of public safety challenges, including increasing crime rates in some communities, growing numbers of people who have mental illnesses entering county jails and state prisons, spiking opioid and other drug-related deaths, high recidivism rates, rising correctional populations and costs, pervasive barriers to employment and housing for people with criminal records, and more. These challenges may appear overwhelming, but many states are using innovative approaches to tackle them and are achieving results.


Should I Just Go Search On The Internet?

posted by Judge_Burke @ 14:00 PM
August 13, 2018

In an age when smartphones are ubiquitous, and the ability to seek the answer to any question at any time has almost made “Google” a generic term, the paper-based information resources of years past have given way to voice search and virtual home assistants. Thus, despite the legal profession often lagging behind other industries on the tech front, its institutions are slowly being transformed by this ready access to limitless information, including within the judiciary.

It is perhaps for this reason that late last year, the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility (the “Committee”) issued an advisory opinion on the subject of internet research by judges, or more specifically, when such research is permissible and when it is not. The opinion represents a renewed assertion by the ABA that judicial use of independent internet research presents challenges that are distinct from those associated with other extrinsic sources of information, which have long found their way into judicial reasoning.

The ABA’s recent opinion provides a clear explanation of the legal framework informing its conclusions, though its guidelines revolve around the somewhat nebulous law of judicial notice. Possibly recognizing the practical difficulties of complying with rules that are anchored to such an arguably messy body of law, the Committee provides a series of hypotheticals and questions that members of the judiciary may refer to in determining the propriety of running a case-related Google search at any given time. It also offers a more cohesive overview of the legal doctrines implicated by judicial use of internet research than much of the relevant legal authority has done to date, acknowledging the intersection of ethical, evidentiary, and constitutional questions at issue in this context. This sort of guidance is especially critical as the role of judicial internet research in legal proceedings continues to expand, bringing with it important consequences for core legal system values including due process, transparency, and an impartial judiciary.​

The full article, written by , can be found at Justia.


A Perplexing Challenge For Judges: Is The Defendant Competent?

posted by Judge_Burke @ 14:00 PM
August 12, 2018

Richard J. Bonnie (University of Virginia – School of Law) has posted Competence for Criminal Adjudication: The Emerging Significance of Decisional Competence on SSRN. Here is the abstract:

The practice of assessing and adjudicating competence for criminal adjudication in the United States developed largely without assistance from the U.S. Supreme Court or other appellate courts for most of the nineteenth and twentieth centuries. However, the need for appellate guidance became evident in the 1980s, especially regarding the significance of mental or emotional conditions that can impair capacity for rational decision-making. In a series of articles in the early 1990s, I called attention to emerging issues regarding “decisional competence” and speculated about possible approaches for resolving them. During the past twenty-five years, some governing principles have come into view, but important issues remain unresolved. After a brief review of the historical and conceptual foundations of the competence requirement, the article focuses on two decisions in which the Supreme Court has addressed decisional competence.

In Godinez v. Moran (1993), the Court ruled that a pretrial finding that the defendant was competent to stand trial established that he was competent to waive representation by counsel and plead guilty because the test for competence is the same in all three contexts. However, in Edwards v. Indiana (2007), the Court held that a defendant who is competent to stand trial while being represented by counsel may not be competent to represent himself at trial. Although these decisions are not strictly contradictory, they are in deep tension with one another. This article attempts to set the law on a coherent path by highlighting the significance of doubts about decisional competence in both cases. In so doing, it sometimes draws on a personal account of the recent intellectual and scientific history of competence for criminal adjudication.