Just How Did All of This Start?

posted by Judge_Burke @ 16:09 PM
July 5, 2017

From the Marshall project, on an article in the Los Angeles Times:

Five sentences 101 words, and a tragically erroneous medical conclusion. A new report traces the origins of our opioid epidemic — at least 200,000 Americans have died from prescription drug overdoses — to a 1980 letter to the editor in the New England Journal of Medicine in which the authors concluded “that despite widespread use of narcotic drugs in hospitals, the development of addiction is rare in medical patients with no history of addiction.” The conclusion led to widespread prescriptions of painkillers we now know are highly addictive. 

 

A related article is here:  The other victims of the opioid epidemic

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Can We Do Better With the Right to Counsel?

posted by Judge_Burke @ 15:04 PM
July 3, 2017

David Rossman (Boston University – School of Law) has posted Resurrecting Miranda’s Right to Counsel (97 B.U. Law Review 1127 (2017)) on SSRN.

Here is the abstract:

The regime created by Miranda v. Arizona is at this point in its history bankrupt both intellectually and in terms of practical effect. Justices who have joined the Court after Miranda have cut back its scope by stingy interpretations of the doctrine’s reach and effect. In practice, few suspects actually benefit from the way Miranda is now implemented in police stations and courtrooms. Given the failure of Miranda’s promise, can we envision an alternative? Here is one that may be politically palatable and doctrinally feasible, largely adopted from English practice:

1. Police would give the same Miranda warnings that they have always provided.

2. The police would still operate under the same rules governing the legitimacy of a suspect’s decision to talk in the absence of an attorney. The waiver rules for Miranda rights won’t change, in other words.

3. If the police go ahead and obtain a statement from a suspect without the presence of an attorney, the jury would be instructed that there is a policy in the jurisdiction that the police should not interrogate suspects in the absence of a defense attorney and that the jury may take into account in evaluating the credibility of the statement the fact that the police did not follow this policy.

4. If the police do provide an attorney for the suspect during interrogation, the suspect would be permitted to consult with the attorney and the attorney would be given a reasonable opportunity to advise the suspect during the interrogation.

5. If the suspect does not answer questions that are reasonable for someone in the suspect’s position at the time to respond to, that information would be admissible as substantive evidence of the suspect’s guilt, subject to a ruling on the probative value of the suspect’s silence at the time of trial.

6. If the suspect at trial maintains that his or her silence during the interrogation was based on the advice of the attorney, that claim shall constitute a waiver of the attorney client privilege insofar as it would otherwise protect the contents of the conversation between the suspect and the lawyer. This paper explores the feasibility of the most contestable of these proposals, the one dealing with an adverse inference from silence. It makes the case for viewing the privilege against self incrimination as a doctrine directed at prohibiting compulsion to speak rather than a broad guarantee of a right to silence.

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Is the Job of a Judge to do Justice?

posted by Judge_Burke @ 14:30 PM
June 30, 2017

Anna Roberts (Seattle University School of Law) has posted Dismissals as Justice (Alabama Law Review, Forthcoming) on SSRN.

Here is the abstract:

More than a third of our states have given judges a little-known power to dismiss prosecutions, not because of legal or factual insufficiency, but for the sake of justice. Whether phrased as dismissals “in furtherance of justice” or dismissals of “de minimis” prosecutions, these exercises of judicial power teach two important lessons.

First, judges exercising these dismissals are rebutting the common notion that in the face of over-criminalization and over-incarceration they are powerless to do more than rubberstamp prosecutorial decision-making. In individual cases, they push back against some of the most problematic aspects of our criminal justice system: its size, harshness, and bias.

Second, these cases converge on shared principles of justice. These principles conjure a vision of a very different criminal justice system: one in which an alleged criminal act is viewed not in isolation, but within a broader context that includes the apparent motivations for it, the state’s role in and response to it, and possible responses other than the criminal law. There is no logical reason to confine these principles to this procedural context, and the Article urges their broader consideration.

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Collecting Child Support

posted by Judge_Burke @ 14:47 PM
June 29, 2017

Governing Magazine reports:

Officials in Westchester County, N.Y., want to help low-income fathers who are behind in their child support payments.

“These guys aren’t deadbeats,” says Kevin McGuire, the county’s social services commissioner. “They’re dead broke.”

In a 2006 study of nine states, 70 percent of late child support payments were owed by parents who made no more than $10,000 a year. For these parents, the average child support obligation equaled about 83 percent of their reported income, according to the Urban Institute.

Once child support debt piles up, interest can be added to it every month it goes unpaid. For some, the punishment is jail, which further limits their ability to pay. Nationally, about a third of child support isn’t paid each year, and only 15 percent of related debt and interest gets collected.

In Westchester, officials see employment as the main solution for getting fathers to comply with child support orders. But job assistance programs alone hadn’t solved the problem in the past, and Joseph Kenner, the county’s deputy commissioner of social services, thought he knew why.

“What I felt was missing was some kind of carrot,” Kenner says.

In the county’s Responsible Employed Active Loving (R.E.A.L) Parenting Pilot for Stronger Families, the carrot is the opportunity for non-custodial parents to eliminate most of the debt they owe to the county government. (It does not, however, affect debt they owe to families.)

Here’s how the program works: The county Department of Social Services recruited 25 volunteers — unemployed fathers on public assistance who have child support debt anywhere from $2,000 to $80,000 — to take 40 hours of classes over 10 weeks. The classes cover a range of topics, from financial management to parenting to career counseling. At the end of the 40 hours, the county reduces participants’ debt by 25 percent. That’s the first carrot. 

 

For the full story, go here.

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AJA Member in the News

posted by Judge_Burke @ 17:16 PM
June 27, 2017

AJA Past President Mike Cicconetti is again in the news (see this blog’s post dated June 20, 2017). Drunk driving kills a lot of people and causes a lot of damage. Innovative approaches toward reducing recidivism are an imperative, and not surprisingly, Judge Mike Cicconetti has an approach that might just work:  This Judge is Using a Phone App to Combat Drunk Driving

 

 

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Judicial Wisdom from Judge Wayne Gorman

posted by Judge_Burke @ 16:59 PM
June 26, 2017

Being a trial judge sometimes can be a challenge. Managing our emotions can be challenging. Managing other people’s emotions presents another layer of challenge.

Sometimes we do things that are not intended or not carefully thought out. Judge Wayne Gorman shared a case which provides a summary of where any of us can get in trouble:

R. v. Murray, 2017 ONCA 393, May 17, 2017, at paragraph 94:

The principal types of intervention that attract appellate disapprobation include, but are not limited to:

i. questioning an accused or witnesses in such a way as to convey an impression that the judge aligns him or herself with the case for the Crown;

ii. questioning witnesses in such a way as to make it impossible for counsel to present the defence case;

iii. intervening to such an extent in the testimony of the accused that it prevents the accused from telling his or her story; and

iv. inviting the jury to disbelieve the accused or other defence witnesses.

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Advocacy for Mentally Ill Youth

posted by Judge_Burke @ 14:30 PM
June 21, 2017

Historically, judges in Canada are far more reluctant to engage with the press than judges in the United States. So this story stands out not just for the content, but for the willingness of the Canadian judge to talk with the press. The Canadian Broadcasting Corporation recently had this article: “‘I’m trying to save his life’: Judge blasts Alberta government for mentally ill teen with nowhere to go.”

Here are some excerpts:

An exasperated youth court judge summoned members of the media to his courtroom on Thursday as he dealt with the case of a mentally ill, drug addicted boy who has nowhere to go. Judge Steve Lipton who has served on the youth court for two decades says he is “very, very angry” about the lack of services and supports available for the vulnerable boy. “As a last resort I asked the media to come here because of my frustration of what is going on right now in the child welfare system,” said Lipton. “I am trying to save his life.”

The 14-year-old Indigenous boy — whose identity is protected by a publication ban — faces charges of assault, failure to appear, mischief, and theft. The teen also suffers from paranoia and hallucinations, has been diagnosed with gonorrhoea and is heavily addicted to crystal meth and alcohol. He believes people are going to kill him and inject him with drugs when he’s sleeping. “He’s mentally ill and I’m keeping him in jail and he’s a kid,” said Lipton. “What is wrong with this picture?”

The first option for the boy was to send him to a secure treatment bed under the Child Youth and Family Enhancement Act. All of those beds are full in the southern Alberta region. Lipton said he even inquired about having the boy sent to a secure safe house for children and youth who need substance abuse treatment under the Protection for Children Abusing Drugs Act. Again, all of those beds are full. The judge noted the boy’s social worker has gone “above and beyond” her duties in her efforts to try and secure a placement for the teen.

“I’m angry, very angry. He deserves to be in a treatment facility not in jail.” Lipton said he is “sick and tired” of the government not prioritizing programs and services for vulnerable, at-risk youth.

The full article is online here.

 

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Require an App as a Condition of Probation?

posted by Judge_Burke @ 14:00 PM
June 20, 2017

Most first time drunk driver defendants have learned their lesson and do not repeat offend, but some do. So, would an app be an appropriate condition of probation? Get a Lyft from the bar, or get a lift to the slammer?

Ohio Judge Michael Cicconetti has been ordering drunk driving defendants to download ride-hailing apps as part of their sentences.

On June 6, a first-time offender who blew a .200 on a breathalyzer test was ordered to go through a prevention program, pay court costs, relinquish her license and, as part of her probation, download and activate Lyft or Uber on her phone. Cicconetti got the idea for the sentence after dealing with a repeat offender who would drive drunk despite living just blocks away from the bar, according to The News-Herald, a Cleveland-area newspaper.

For Judge Cicconetti, the requirement is a no-brainer. “If you can save one person from getting another [DUI], one person from getting into an accident, one person from hurting somebody else, it makes sense,” he told The News-Herald. “It doesn’t cost anybody anything to install it and activate it, and it’s far cheaper than paying the thousands of dollars you’d have to pay for another [DUI].”

 

For the full story, go here.

 

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Changes in New Mexico

posted by Judge_Burke @ 16:49 PM
June 19, 2017

New Mexico’s supreme court has overhauled the state’s rules of practice and procedure to make the detention system more transparent and rational. The revised rules do not eliminate the use secured money bond, but they do take New Mexico closer to a pretrial system that balances fairness and public safety effectively and transparently. 

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Achieving Diversity In Jury Pools

posted by Judge_Burke @ 14:00 PM
June 14, 2017

Five counties in Illinois have begun the first phase of a pilot program to increase jury diversity, Bernard Schoenburg recently wrote in The State Register-Journal. According to an Illinois State Courts E-Newsletter, the program was implemented following “a recommendation to test a new system for jury selection through a pilot program” by the Conference of Chief Circuit Judges.

According to Andy Kravetz of the Journal Star, the counties will “gather demographic on their jury pools and then use ZIP codes to ensure they get the right mix based upon population,” with the goal being to have the demographics of the state reflected in the pool of potential jurors. Schoenburg writes that the court will collect data from before and after the pilot is instituted to measure the impact of the new system. Circuit Judge John Schmidt said he “think[s] it’s important that every member in every segment of our society be represented for jury duty, to the best of the system’s ability.” Judge Steve Kouri added that under the current system “[w]e have a segment of the population who think the system is rigged, slanted, and a number of those aren’t people who are defendants” and that “[i]t’s very important that people think a verdict at trial, guilty or not guilty, is legitimate.”

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