What To Think About The United States Supreme Court

posted by Judge_Burke @ 14:00 PM
August 11, 2018

Tonja Jacobi and Ross Berlin (Northwestern University – Pritzker School of Law and Minnesota Court of Appeals #315B) have posted Supreme Irrelevance: The Court’s Abdication in Criminal Procedure Jurisprudence (UC Davis Law Review, Vol. 51, No. 3, 2018) on SSRN. Here is the abstract:

Criminal procedure is one of the Supreme Court’s most active areas of jurisprudence, but the Court’s rulings are largely irrelevant to the actual workings of the criminal justice system. The Court’s irrelevance takes two forms: objectively, on the numbers, its jurisprudence fails to protect the vast majority of people affected by the criminal justice system; and in terms of salience, the Court has sidestepped the major challenges in the United States today relating to the criminal justice system. These challenges include discrimination in stops and frisks, fatal police shootings, unconscionable plea deals, mass incarceration, and disproportionate execution of racial minorities. For each major stage of a person’s interactions with the criminal justice system — search and seizure, plea-bargaining, and sentencing — the Court develops doctrines that protect only a tiny percentage of people. This is because the Court focuses nearly all of its attention on the small fraction of cases implicating the exclusionary rule, trial rights, and the death penalty, and it ignores the bulk of real-world criminal procedure — searches and seizures that turn up no evidence of crime, plea bargains that occur outside of the courtroom, and the sentencing of convicts for terms of years — leaving constitutional rights unrecognized and constitutional violations unremedied. Consistently, each issue the Supreme Court neglects has a disparate impact on traditionally disadvantaged racial minorities. Together, this constitutes an abdication of the Court’s responsibility.


ABA Speaks On Fines & Fees

posted by Judge_Burke @ 16:16 PM
August 10, 2018

The ABA House of Delegates overwhelmingly approved a set of guidelines Monday evening aimed at stopping incarceration of people solely because they can’t pay court fines and fees.


Robert Weiner, chair of the ABA Working Group on Building Public Trust in the American Justice System, moved Resolution 114 in the House. The resolution adopts the working group’s Ten Guidelines on Court Fines and Fees. The guidelines are provided to jurisdictions as a best-practices guide to avoiding creating debtors’ prisons in the ordinary course of administering justice. The working group that created them was a special project of outgoing ABA President Hilarie Bass.

More than 30 years ago, the Supreme Court ruled that jurisdictions may not incarcerate people for debt stemming from inability to pay fines and fees, according to Robert Weiner, chair of the ABA committee that recommended the guidelines. “Far too many state and local legislators treat the justice system like an ATM, imposing exorbitant fines and fees for civil code violations, traffic tickets, misdemeanors, and felonies in order to fund the government,” said Joanna Weiss, co-director of the Fines & Fees Justice Center. “People who can’t immediately pay are trapped in a cycle of punishment and poverty they can rarely escape, hurting individuals, families and communities.” Jaime Hawk of the Washington State Bar Association said, “This criminalization of poverty must end.”

“And most of all, these guidelines vindicate a fundamental principle that poverty is not a crime,” said Weiner, who also chairs the Section of Civil Rights and Social Justice. “I urge you to adopt Resolution 114.”

The resolution attracted no opposition but several speakers in favor. One was Jaime Hawk of the Washington State Bar Association, which co-sponsored the resolution along with the King County Bar Association in Seattle as well as several other organizations.

“As a former state and federal defender, I have seen firsthand the injustices that routinely occur as our government seeks to cash in on those who can least afford to pay fines and fees,” Hawk said. “This criminalization of poverty must end, … and we, as the ABA, are lead[ing] the way.”

Resolution 114 passed easily.



When You Can Legally Require A Defendant To Remain Drug Free?

posted by Judge_Burke @ 14:00 PM
August 7, 2018

It seems so simple but perhaps it is not. Conditions of probation at some level need to be reasonably related to the defendant and/or the offense. So the decision of the Massachusetts Supreme Judicial  Court may not be shocking to anyone (but the defendant). The Massachusetts Supreme Judicial Court Massachusetts v. Eldred, No. SJC–12279 (Mass. July 16, 2018) (available here). The opinion starts this way:

Following a probation violation hearing, a judge in the District Court found that the defendant, Julie A. Eldred, had tested positive for fentanyl, in violation of a condition of her probation requiring her to abstain from using illegal drugs. The judge ordered that the conditions of her probation be modified to require her to submit to inpatient treatment for drug addiction. The defendant appeals from that finding and disposition.  The judge also reported a question drafted by the defendant concerning whether the imposition of a “drug free” condition of probation, such as appeared in the original terms of defendant’s probation, is permissible for an individual who is addicted to drugs and whether that person can be subject to probation violation proceedings for subsequently testing positive for illegal drugs.

We conclude that, in appropriate circumstances, a judge may order a defendant who is addicted to drugs to remain drug free as a condition of probation, and that a defendant may be found to be in violation of his or her probation by subsequently testing positive for an illegal drug. Accordingly, we affirm the finding that the defendant violated her probation and the order requiring her to submit to inpatient treatment for her addiction.


Judicial Performance Evaluation On An App

posted by Judge_Burke @ 23:32 PM
August 6, 2018

Do not panic, there is no app available for judicial performance evaluation. Perhaps the idea is just too bizarre. After all, there are times when the role of a judge is not to win a popularity contest.  However, the police seem a bit more adventuresome than one might have thought. 

THE MARSHALL PROJECT recently published Like Yelp for Cops describing the NYPD’s new “public opinion monitor,” a program designed to determine the sentiment New York residents feel for the police who patrol their particular neighborhood. Precinct officials now receive a monthly “trust score” along with other data that measures how safe residents feel and how comfortable they are with the level and methods of policing they are receiving. How do those residents get to express their feelings? Through ads that pop up on their smartphones asking them to complete a survey.


It Is Just A Misdemeanor

posted by Judge_Burke @ 18:31 PM
August 6, 2018

Actually, that kind of thinking leads to all kinds of injustice. Samuel R. Gross (University of Michigan Law School) has posted Errors in Misdemeanor Adjudication (Boston University Law Review, Vol. 98, No. 999, 2018) on SSRN. Here is the abstract: 

Millions of defendants are convicted of misdemeanors in the United States each year but almost none obtain exonerations, primarily because ordinarily exoneration is far too costly and time consuming to pursue for anything less than years of imprisonment. The National Registry of Exonerations lists all known exonerations in the United States since 1989 — 2,145 cases, as of the end of 2017; only 85 are misdemeanors, 4%. In all but one of these misdemeanor exonerations the defendants were convicted of crimes that never happened; by comparison, more than three-quarters of felony exonerees were convicted of actual crimes that other people committed. In almost 80% of the misdemeanor exonerations we know about, the defendants pled guilty, compared to 16% of felony exonerations. In fact, two thirds involved defendants who pled guilty to misdemeanor drug possession in a single jurisdiction — Harris County (Houston), Texas. They were exonerated because the local forensic crime lab tests seized “drugs” even after criminal cases are closed by guilty pleas, and it found that these defendants were carrying no illegal drugs. Routine post-plea testing of alleged drugs may be unique to Harris County. Judging from these cases, however, guilty pleas by innocent misdemeanor defendants are common. Of the minority of misdemeanor exonerations that did not involve guilty pleas to drug possession, most were assaults, usually on police officers. Most of the defendants were exonerated either because videos that proved their innocence came to light after conviction, or because the police officers who testified that they had been assaulted were themselves charged with perjury, violence or other misconduct. Nearly all the few misdemeanor exonerations we know about depended on fortuitous events that made the process cheap and simple — usually forensic tests that police conducted for their own purposes; sometimes previously unknown videos, or criminal investigations of police officers. Otherwise, it seems, innocent defendants convicted of misdemeanors are just out of luck.


California Supreme Courts Holds The Poor Are Entitled To Court Reporters

posted by Judge_Burke @ 14:00 PM
August 2, 2018

Over the last decade few states’ courts systems have faced as many challenges as California. Courthouses were closed and massive layoffs occurred. In at least one court, judges took voluntary pay cuts to alleviate the pain and potential for even more employees losing their jobs.  So at some level it was not surprising that providing court reporters paid for by the court in civil cases would be eliminated. That is fine if the parties are wealthy, but what if one of the parties is destitute?

The California Supreme Court unanimously ruled that litigants entitled to court filing fee waivers are also entitled to obtain a court reporter without charge.

In response to a reduced budget, the San Diego County Superior Court had a “cost-cutting policy of eliminating court reporters in civil cases, even for litigants with fee waivers.” According to Courthouse News Service, an indigent prisoner had sued a doctor, alleging medical malpractice, but after a decade-long litigation process, was not given a court reporter for his trial although he had a fee waiver. After he appealed the eventual ruling, the court found that “without such a record, it couldn’t reach the merits of Jameson’s argument that the trial court got it wrong.”

Ultimately, the California Supreme Court found that this rule violated the policy of equal access to justice embodied in California law, explaining, “The challenged court policy creates the type of restriction of meaningful access to the civil judicial process that the relevant California in forma pauperis precedents and legislative policy render impermissible.”

San Diego Superior Court Presiding Judge Peter Deddeh responded to the ruling, “We are currently reviewing the Supreme Court’s decision and will take all steps to implement it. Due to severe budget cuts over the past several years, our court was forced to make the difficult decision to remove court reporters from cases where their services were not legally mandated.”


Third Circuit Rules There Is No Right To Cash Bail

posted by Judge_Burke @ 14:17 PM
August 1, 2018

A federal appeals court recently upheld the constitutionality of a New Jersey law that mostly ended the use of monetary bail.

The Philadelphia-based 3rd U.S. Circuit Court of Appeals upheld the law in a challenge by Brittan Holland, who was accused of second-degree aggravated assault for his alleged involvement in a bar fight.

The New Jersey law had prioritized nonmonetary conditions of release over money bail, and had called for a risk-based assessment system to determine whether a defendant is a flight risk or a danger to the community. Holland was released before trial on home detention with electronic monitoring.

The key question, the 3rd Circuit said, is “whether there is a federal constitutional right to deposit money or obtain a corporate surety bond to ensure a criminal defendant’s future appearance in court as an equal alternative to non-monetary conditions of pretrial release. Our answer is no.”

Another plaintiff in the case was the Lexington National Insurance Corp., a company that does business with the bail-bond industry. The 3rd Circuit said the company did not have standing to challenge the law.

ABA Journal


Article by Eric Black:

As you have likely heard by now, President Donald Trump nominated Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals to fill the upcoming vacancy on the U.S. Supreme Court to replace the retiring Justice Anthony Kennedy.

The nomination of any new Supreme Court justice is a big development, and, assuming Kavanaugh is confirmed (and, at the moment, I would say that is a reasonably safe assumption), this will be big. Kavanaugh is just 53 and could serve for decades. He solidifies the high court’s conservative wing (replacing the conservative, but not on everything, Kennedy).

The two oldest remaining justices are liberals, Ruth Bader Ginsburg, age 85, and Stephen Breyer, 79. Kavanaugh will be the second youngest (the other Trump appointee, Neil Gorsuch is just 50). Such demographic matters as life expectancy are not exactly destiny. But they are important, and recent presidents have figured out that appointing a relatively young justice to a lifetime gig is a powerful thing.

At the public announcement last night, Trump was about as coherent and rational-seeming as you have ever seen him, bordering on gracious and almost even dignified. Kavanaugh came across charming and appropriate, with his wife and two young daughters at his side.

I’ll save any further thoughts of my own for now and pass along reactions from a couple of local experts and some of those who delivered instant left- and right-leaning analysis on TV:

Hennepin County District Judge Kevin Burke wrote his reaction to me, thus:

“No one should be so naive as to expect that President Trump might have nominated someone viewed as a centrist (not so liberal to scare Republicans but not so conservative as to freak out Democrats). I sincerely hope that I am wrong but this nomination after the Senator McConnell steal likely dooms the thought that the United States Supreme Court might be viewed as something other than a partisan political court.

“When he ran for governor, Arne Carlson pushed the idea that there should be ‘merit selection’ of judges. While I think he overstated the problem then, there is no room for doubt today. The appointment of appellate judges in the United States is a crazily political process that ill serves the nation.”

You probably know what Burke meant by the “McConnell steal,” but, just in case: Burke refers to Senate Majority Leader Mitch McConnell’s success in 2016 at refusing to even hold hearings, let alone allow a confirmation vote, on President Barack Obama’s nomination of Judge Merrick Garland to fill the vacancy created by the death of Justice Antonin Scalia, which preserved the vacancy to be filled by Trump.

University of Minnesota Law School Professor Heidi Kitrosser, who teaches about matters constitutional, including Supreme Court appointments, emailed me thus:

“As would have been the case with any of the four potential nominees, Judge Kavanaugh will, if confirmed, almost certainly move the Court further to the right than it was already leaning. Make no mistake about it, Justice Kennedy himself was quite conservative. But he did act as a swing vote in some important areas, including abortion, gay rights, and affirmative action. So on those and likely more fronts, the Court will become more reliably conservative if Judge Kavanaugh becomes Justice Kavanaugh.

“As for specific areas, the most talked-about one thus far has been abortion. On that front, Roe v. Wade already has been chipped away at considerably over the years. With a Justice Kavanaugh (again, assuming that he is confirmed), there may well now be a 5-4 majority to overturn Roe outright. Alternatively, the Court may take the less dramatic road of chipping away at Roe yet more vigorously, even if they do not overrule it outright.

“Another area that comes to mind is voting rights. Justice Kennedy was a pretty reliable vote for conservatives when it came to issues such as voter ID and the Voting Rights Act. He had, however, indicated that he might be open to persuasion on the topic of partisan gerrymandering by anti-gerrymandering advocates. With Kennedy gone and a Justice Kavanaugh in place, gerrymandering opponents likely have lost their shot at a Supreme Court victory for the foreseeable future.

“Judge Kavanaugh should also prove quite friendly to litigants who challenge any number of health and safety regulations. While on the DC Circuit, Kavanaugh cast a skeptical eye on agencies’ power to create ‘major’ regulations, including clean air regulations, without very clear instructions from Congress.

“One more thought, based on some quick and dirty follow-up research: There’s good reason to think — based on his opinions and his academic writings — that Kavanaugh will be a very reliable vote for strong presidential powers on a number of fronts, including presidential immunity from prosecution and very firm presidential control over executive branch subordinates. This might be the aspect of Kavanaugh that Donald Trump finds most attractive.”

The president’s presentation of Judge Kavanaugh happened to occur during the hour that features Rachel Maddow on MSNBC and Sean Hannity on Fox. So a bit of left-right reaction:

On Maddow, Sen. Corey Booker argued that Trump’s nomination of Kavanaugh was self-serving because Kavanaugh has argued that any attempt to indict a sitting president would be a disaster, and he urged Congress to pass a law assuring that no president could be prosecuted unless and until he had been impeached by the U.S. House and convicted and removed by the U.S. Senate.

Nancy Northrup of the Center for Reproductive Rights said that Kavanaugh did not have a clear record indicating how he might rule on abortion rights, but, she said, Donald Trump has publicly stated that anyone he would nominate to the Supreme Court would be prepared to overturn Roe v. Wade, so she assumed Kavanaugh would provide the necessary fifth vote to overturn Roe.

Over on Fox, you’ll be surprised to hear, Hannity predicted that liberals would mount “a full-fledged effort to ‘Bork’ Judge Kavanaugh.” (That’s a reference to the belief on the right that former Judge Robert Bork was smeared and otherwise treated unfairly when he was nominated to the Supreme Court in 1987 by Ronald Reagan. The very conservative Bork was not confirmed.)

“It’s already in full swing,” Hannity said, of the Borking of Kavanaugh, because “most Democrats will never accept that they lost the election and that President Trump is appointing somebody who believes in fidelity to the Constitution, who believes in separation of powers, who will interpret U.S. law based on the clear and written intent of our Founders. And a clear and written law as written by a separate branch of government – in other words, the legislative branch.”

See original post here.


Dementia and The Criminal Justice System

posted by Judge_Burke @ 13:49 PM
July 30, 2018

From DementiaJustice: “The Ottawa Citizen published an in-depth front page story on persons with dementia who come into conflict with the criminal justice system. Written by reporter Elizabeth Payne, and using specific case examples, the article discusses how aspects of the justice system are ill-suited to manage persons with dementia who break the law: ‘Dementia is largely seen as a health, rather than a legal challenge. It must be viewed through both lenses,’ says Dementia Justice founding director Heather Campbell.”

Read the full article here.


Implicit Bias from The National Judicial College

posted by Judge_Burke @ 16:39 PM
June 25, 2018


Should judges be warning jurors about unconscious bias? Our poll says few are

Unconscious bias has been in the headlines since Starbucks closed all its stores nationwide for an afternoon late last month to conduct racial-bias education for employees.

The training came in response to a racial incident at a Starbucks in Philadelphia. A pair of African-American men were waiting for a business meeting and hadn’t purchased anything, which is a common scenario with patrons of all kinds at the coffee shops. The store’s manager asked them to leave and then called the police when they did not comply.

Our June Question of the Month asked judges if they do anything to alert jurors to unconscious or implicit bias before they render a verdict. Of the 338 judges who voted, 71 percent said they do not alert jurors to potential implicit bias.

As the preface to the poll question noted, some states, including California and Washington, require that juries be informed about implicit bias. And one judge shared the instructions that he himself issues to jurors.

Of the 125 respondents who posted comments (mostly anonymous), several said they don’t consider it necessary to talk about unconscious bias because they feel counsel often address it adequately in voir dire. Others seemed unsure how to bring up the topic with jurors.

Iowa District Court Judge Jeff Neary (Sioux City) said he starts by talking about overt bias before turning to the implicit or unconscious form.

“[I ask] folks from this area to raise their hands if they consider themselves Iowa Hawkeyes fans, Iowa State Cyclones fans or Nebraska Cornhusker fans. And then I use that show of hands—and the typical joking that takes place—to talk about how we feel about those who might not like a team we like or point out how we take sides in such contests and may generally feel or react to others who do not see things as we do.”

Several judges said that they would like to discuss unconscious bias but haven’t figured out how to do so. They worry about calling attention to the fact that a witness or a defendant may be subject to bias. They don’t want to plant a seed of bias in jurors’ minds

“I address [bias] during jury orientation [but] not as thoroughly as I would like to,” wrote one judge, who self-identified as an African American from a southern state. “I don’t get the sense that jurors are as open to me addressing this with them.”

Another judge cited a study that, according to the judge, found that “alerting” jurors to their unconscious or implicit biases can exacerbate them.

The overwhelming weight of research shows the opposite, according to Kimberly Papillon, a judicial professor who has taught about neuroscience in decision-making for the NJC for 10 years. She said numerous studies show brain reactions change and fairness increases when people are alerted to bias.

“This is particularly true when people make decisions that will be scrutinized in public, like jury verdicts,” she said.