Attempted Suicide as Evidence of Guilt

posted by Judge_Burke @ 21:03 PM
November 14, 2018

There are many reasons why people attempt to commit suicide. According to the American Foundation for Suicide Prevention (AFSP), over 44,000 people try to commit suicide each year in the United States. There’s no single reason why someone may try to take their own life, but certain factors can increase the risk. Someone may be more likely to attempt suicide if they have a mental health disorder. About 90 percent of people who commit suicide have a mental illness at the time of their death. Depression is the top risk factor, but there are various other mental health disorders that can contribute to suicide, including bipolar disorder and schizophrenia.

So is attempted suicide evidence of guilt and admissible in a criminal trial?  By Evidence ProfBlogger:

Assume that a defendant who has been charged with a crime attempts suicide while detained prior to trial. Should evidence of this suicide attempt be admissible at the defendant’s ensuing trial? This was the question of first impression addressed by the Supreme Court of South Carolina in its recent opinion in State v. Cartwright, 2018 WL 4609386 (S.C. 2018).

In Cartwright, “Harold Cartwright, III (Cartwright) was convicted of one count of first-degree criminal sexual conduct (CSC), eight counts of first-degree CSC with a minor, two counts of second-degree CSC with a minor, one count of third-degree CSC, and sixteen counts of committing a lewd act on a minor.” At Cartwright’s trial, the prosecution was allowed to present evidence that Cartwright attempted to commit suicide while detained prior to trial. At trial, Cartwright gave the following explanation for his suicide attempt:

I turned myself in. I’d been there for 30 days. I couldn’t get a bond. I was charged with some of the most heinous crimes that somebody could ever think about being charged with…. I’m in my cell with all these things on my mind, and then the daughter that I loved, [Daughter], hates me so much because I had her husband … locked up … and she held a grudge against me, and they come [sic] and served me ten warrants…. [A]t that time I didn’t feel I wanted to live any more [sic].

After he was convicted, Cartwright appealed, claiming that evidence of his suicide attempt should have been deemed inadmissible. The Supreme Court of South Carolina noted that it hadn’t addressed this issue before, but that in State v. Mann, 132 N.J. 410, 625 A.2d 1102, 1107 (1993), the New Jersey Supreme Court determined evidence of attempted suicide is admissible to show consciousness of guilt, but requires the trial court to hold a hearing outside the presence of the jury to evaluate whether evidence of the suicide attempt supports an inference that the defendant was seeking to avoid prosecution….The Mann court recognized that humans commit, and attempt to commit, suicide for a myriad of reasons including, but not limited to, prison conditions, family issues, financial problems, mental illness, emotional instability, disbelief in the justice system, stress, failure, and embarrassment….Acknowledging the complex nature of the evidence, the Mann court instructed trial courts to consider defendants’ alternative explanations, as well as the possible prejudice to a defendant from the introduction of the attempted suicide evidence. Additionally, the court noted trial courts “should ensure that a defendant has been given adequate notice of the State’s intention to offer proof of the attempted suicide.”

Finding this general logic persuasive, the Supreme Court of South Carolina ruled as follows:

Accordingly, in future cases, we instruct trial courts to conduct a hearing outside of the presence of the jury. During this hearing, at which the State and the defendant shall be permitted to introduce evidence, the trial court shall determine whether the State has proven that: (1) a jury could reasonably find that a suicide attempt occurred; (2) the defendant was aware of the occurrence of the alleged crimes at the time of the suicide attempt; and (3) an unmistakable nexus exists by clear and convincing evidence linking the suicide attempt to a guilty conscience derivative of the offense for which the defendant is on trial. If the trial court concludes that the three factors have been established, the evidence is relevant and may be admitted, subject to a Rule 403, SCRE analysis. The suicide-attempt evidence may be admitted only when all three factors have been met, and the evidence survives a Rule 403 analysis. We recognize that in view of our rigorous framework, suicide-attempt evidence will rarely be admitted.

But, despite this last line, the court found the evidence of Cartwright’s suicide attempt admissible because Prison authorities found Cartwright hanging in his cell, the same day Cartwright was served with additional warrants. Cartwright admitted that he attempted suicide after he became aware of the new charges. The record further reflects Cartwright threatened to commit suicide if the victims (Daughter, Stepdaughter One, and Stepdaughter Two) told anyone about the sexual abuse.


Sentencing Reform

posted by Judge_Burke @ 21:25 PM
November 13, 2018

Peter A. Joy and Rodney J. Uphoff (Washington University in St. Louis – School of Law and University of Missouri School of Law) have posted Sentencing Reform: Fixing Root Problems (University of Missouri-Kansas City Law Review, Vol. 87, No. 1, 2018) on SSRN. Here is the abstract:

In theory, at least, many subscribe to the belief that it is better to let 10 or 100 guilty persons go free rather than convict an innocent person. Indeed, the American criminal justice system provides criminal defendants a panoply of important rights, including the right to effective assistance of counsel, in large part to ensure that the innocent are not convicted of crimes that they did not commit. But defense counsel is there not only to protect the innocent, but also to ensure that, if the defendant is found guilty after trial or if the defendant pleads guilty before trial, he or she will receive a fair sentence.

In practice, however, too many criminal defendants receive lackluster representation, and few ever actually exercise their right to trial. Instead, our current criminal justice system is plea-bargain-driven, and the vast majority of state and federal criminal offenders plead guilty—approximately 97% of federal cases and 94% of state cases are resolved by guilty pleas rather than trials. Commenting on the prevalence of negotiated guilty pleas, the U.S. Supreme Court has stated that “plea bargaining is . . . not some adjunct to the criminal justice system; it is the criminal justice system.” Why, then, are criminal defense lawyers able to persuade the vast majority of their clients to plead guilty, even those who are actually innocent? Put simply, it is because our system punishes so severely those who go to trial and lose. If we are serious about both minimizing the conviction of the innocent and sentencing reform, we must address this reality. This essay, therefore, focuses on two pernicious features of our current criminal justice system—misuse of plea bargaining and misuse of informants—that explain why so few criminal defendants exercise their right to trial. We conclude with proposals that might ameliorate those features of our system.


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.