Although one might overstate the case, there is a lot of national interest in improving the pre-trial release process in state courts. Chief Judge Eric Washington who recently finished his term as Chair of the Conference of Chief Justices has been passionately interested in the issue. Attorney General Holder has been issued in the issue. The Pretrial Insitute grows, but before anyone jumps to the conclusion that pretrial release will be soon miraculously reformed, pause, take a deep breath, and gather your senses. There are structural issues that inhibit reform. Frequently, there is no lawyer present when bail is set. Once set, it can be hard to get an honest re-evaluation and/or the damage is done. If you spent a few days in jail and as a result  lost your job, to be sure the reconsideration that led to your release is great, but the job may well still be lost. Douglas Colbert’s article is worth reading:

Colbert on Counsel at the Initial Bail Hearing

Douglas Colbert (University of Maryland Francis King Carey School of Law) has posted When the Cheering (for Gideon) Stops: The Defense Bar and Representation at Initial Bail Hearings (The Champion, June 2012, p. 10-14) on SSRN. Here is the abstract:

This article suggests that the absence of representation at the beginning of a State criminal prosecution must come to a screeching halt. The criminal defense bar should take a leadership role and dedicate Gideon’s anniversary to making certain that an accused’s right to the effective assistance of counsel begins at the initial bail hearing. Indeed, guaranteeing vigorous representation should be the defense bar’s number one priority.

The United States Supreme Court announced that it will decide when law enforcement officers must get a warrant before ordering a blood test on an unwilling drunken-driving suspect.

The issue has divided federal and state courts around the country, and the Justices on Tuesday agreed to take up a case involving a disputed blood test from Missouri. In Missouri v. McNeely

http://www2.bloomberglaw.com/public/document/State_v_McNeely_358_SW3d_65_Mo_2012_Court_Opinion, the Missouri Supreme Court said, ”

The United States Supreme Court addressed this issue in the landmark case of Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). There, the Supreme Court provided a limited exception to the warrant requirement for the taking of a blood sample in alcohol-related arrests. Id. at 772, 86 S.Ct. 1826. The holding, which was expressly limited to the facts of that case, ultimately rested on certain “special facts” that might have led the officer to reasonably believe he was faced with an emergency situation in which the delay in obtaining a warrant would threaten the destruction of evidence. Id. at 770-71, 86 S.Ct. 1826. The threat of evidence destruction was caused by the fact that the percentage of alcohol in a person’s blood begins to diminish shortly after drinking stops and because time had to be taken both to investigate the accident scene and transport the defendant to the hospital. Id. These events left no time for the officer to seek out a judge to secure a search warrant. Id. Schmerber held that these “special facts” permitted a warrantless blood draw. Id., at 771, 86 S.Ct. 1826.

The patrolman here, however, was not faced with the “special facts” of Schmerber. Because there was no accident to investigate and there was no need to arrange for the medical treatment of any occupants, there was no delay that would threaten the destruction of evidence before a warrant could be obtained. Additionally, there was no evidence here that the patrolman would have been unable to obtain a warrant had he attempted to do so. The sole special fact present in this case, that blood-alcohol levels dissipate after drinking ceases, is not a per se exigency pursuant to Schmerber justifying an officer to order a blood test without obtaining a warrant from a neutral judge.”

 (Reuters) – The use of special license plates by New York judges is ethical, a state ethics panel has concluded, as the state Commission on Judicial Conduct nears completion on a review of whether judges use the plates to avoid traffic tickets.

 In a three-paragraph opinion released last week, the Advisory Committee on Judicial Ethics said that while it is improper for judges to use the “prestige” of their office to advance private interests, special license plates do not rise to that level. The decision was prompted by an inquiry from an unnamed judge.

 “The otherwise lawful display of a license plate duly issued by the New York State Department of Motor Vehicles is not rendered ethically impermissible merely because the license plate indicates that the vehicle registrant is a judge,” wrote the 26-member panel, which is chaired by former First Department justice George Marlow. For the complete story see:

http://newsandinsight.thomsonreuters.com/Legal/News/2012/09_-_September/Special_license_plates_for_NY_judges_are_ethical__panel/. Although the plates create no ethical issue there are security concerns about the use of special plates for judges or vanity plates that indicate that you are a judge. See the previous post by Timm Fautsko of the National Center for State Courts.

As court budgets and funding for public defender services are cut (or at least not increased) and given rising caseloads, there are places where seeking some form of payment from the poor for public defender services is happening with some frequency. It is a practice that is not without controversy. Just where does the money come from? If you are found not guilty but spent months in jail waiting for your trial, is this fair? Who gets paid first, the victim who is owed restitution or the defender fund? 

Paying for Your Public Defender

From FIndLaw. :

You should know that in some jurisdictions, a public defender is not necessarily free. States are increasingly imposing fees on indigent criminal defendants, including fees for the public defender. Sometimes defendants have to pay the fees even if they’re acquitted of the charges.

The Uneven Bulwark: How (and Why) Criminal Jury Trial Rates Vary by State

T. Ward Frampton

University of California, Berkeley – School of Law

2012

California Law Review, Vol. 100, No. 1, 2012

Abstract:     
Forty-five years since the U.S. Supreme Court first recognized the right to a criminal jury trial as “fundamental to the American scheme of justice,” jury trial rates (the prevalence of jury trials relative to bench trials) in American criminal adjudication actually vary dramatically by state. A sizable body of scholarship has generally explored the decrease in criminal trials, but this “Vanishing Trial” literature has largely ignored the notable state-by-state disparities in jury trial rates. After reviewing the historic role the Framers expected the jury trial to play in criminal adjudication, this Comment analyzes the existing data on jury trial rates and identifies surprising disparities from one jurisdiction to the next. The Comment then explores various state practices that may be sources of these variations, often pushing the jury trial to the margins of criminal adjudication and disadvantaging those accused of wrongdoing. The Comment concludes by contrasting the Supreme Court’s recent jurisprudence celebrating the centrality of the jury trial with the lived experiences of criminal defendants, and argues for a more substantive understanding of the Sixth Amendment’s trial by jury guarantee.

Number of Pages in PDF File: 40

Accepted Paper Series

Garrett Epps is  a former reporter for The Washington Post,  a novelist and legal scholar.  He teaches courses in constitutional law and creative writing for law students at the University of Baltimore.

 His new book is Wrong and Dangerous: Ten Right Wing Myths About Our Constitution. He has a short but provocative commentary in the Atlantic about the influence of Justice Scalia which begins with, “The Reagan appointee has been perhaps the most significant influence on law in the past three decades. But the start of the new Term looks likely to mark the end of the Scalia Court and the beginning of the Roberts.” Sound pretty dry? Well the article does go on to say, “But for me the winning words were: “That’s enough frivolity for a while,” uttered by the Chief Justice to Scalia during the final day of the health-care marathon. Scalia had interrupted argument of this generation’s most important case to begin riffing on an old Jack Benny radio routine. The Chief Justice was not amused. He shot a venomous look at Scalia and told him, in barely civil words, to shut up. That same look flickered across Roberts’s face on June 25, when Scalia embarrassed the Court with his rant against Obama during the opinions on the Arizona case. (That monologue, I think, may have been the inspiration for Clint Eastwood’s speech in Tampa.)”

 For the complete article :one.http://www.theatlantic.com/national/archive/2012/09/is-antonin-scalia-still-relevant/262137/

According to data compiled from The American Bench, women hold 27.5 percent of state judgeships in 2012—a slight increase from 26.8 percent in 2011. At the same time, the percentage of women on the federal bench declined 0.1 percent to 24.1 percent. Representation of women on federal and state courts is highest in the Northeast (30.4 percent) and lowest in the Midwest (24.6 percent). In Indiana sixteen of the 22 applicants for a supreme court vacancy were women. Indiana is one of three states without a woman on its high court. This will be Governor Daniels’ third appointment to the five-member court. From this pool of 22 applicants, the judicial nominating commission identified ten semi-finalists for the vacancy, including six women and four men. The commission will narrow the list to three finalists in early August.

William W. Berry III (University of Mississippi School of Law) has posted The Mandatory Meaning of Miller on SSRN. Here is the abstract:

In June 2012, the United States Supreme Court held in Miller v. Alabama that the Eighth Amendment’s ban on ‘cruel and unusual’ punishment prohibited the imposition of mandatory life-without-parole sentences on juveniles. This case continued the Supreme Court’s slow but steady expansion of the scope of the Eighth Amendment over the past decade. 

In light of the Court’s decision in Miller to preclude mandatory sentences of life without parole for juveniles, this article explores the possibility of further expansion of the Eighth Amendment to proscribe other kinds of mandatory sentences. Applying the approach of the Court in Woodson and Miller to other contexts provides, at the very least, a basis to remedy some of the injustices created by mandatory sentences. 

Continue reading “Berry on Mandatory Sentences after Miller”

Engel on Applying the Fifth Amendment to Passwords

J. Adam Engel has posted Rethinking the Application of the Fifth Amendment to Passwords and Encryption in the Age of Cloud Computing (Whittier Law Review, Vol. 33, No. 3, 2012) on SSRN. Here is the abstract:

The Fifth Amendment privilege against self-incrimination protects a person from being compelled to provide a testimonial communication that is incriminating in nature. In a number of cases starting to wind through state and federal courts, the government has sought to compel suspects and defendants to provide passwords and encryption keys despite claims of Fifth Amendment Privilege by witnesses and suspects. For example, in a Colorado case, the government sought to compel the defendant to enter a password into a laptop or otherwise provide access to encrypted data stored on her computer. The government apparently believed that the encrypted computer files contained evidence of fraudulent real estate transactions.

Continue reading “Engel on Applying the Fifth Amendment to Passwords”