Don’t forget the AJA Midyear Meeting coming up May 2-4 at the Wyndham Lake Buena Vista in Orlando, Florida.  In addition to business meetings and a full day of excellent education sessions on Will Facebook be Friends with Courts:  Social Media, Digital Evidence and Emerging Trends, you and/or your family members may have time to enjoy the many attractions in the area.  Disney has created a complimentary webpage for AJA attendees to have access to some unique options and special savings on pre-arrival purchases for Disney theme park tickets.  The link is http://www.mydisneymeetings.com/wlbv.  For complete information about the meeting, you can go to http://aja.ncsc.dni.us/conferences/.

Beth A. Colgan

Stanford Law School

February 11, 2013

Stanford Journal of Civil Rights and Civil Liberties, Vol. IX, No. 1, 2013

Abstract:
Three cases have arisen in the first seven years of the Roberts Court in which concepts of childhood have played a key role. First came Graham v. Florida, a 2010 case in which the Court held that the Eighth Amendment’s Cruel and Unusual Punishment’s Clause prohibited sentencing of juveniles to life without parole for non-homicide offenses. Next was J.D.B. v. North Carolina, a 2011 case in which the Court held that a juvenile’s age is a relevant consideration when determining whether a reasonable person would believe he was in custody for Miranda purposes. Finally, the Court decided Miller v. Alabama, a 2012 case in which the Court held that the mandatory imposition of life without parole in cases where juveniles were convicted of homicide was cruel and unusual punishment because it precluded consideration of age and its attendant consequences.

Though at first glance these three cases appear consistent — they each result in some degree of enhanced constitutional protection for juveniles — a closer look reveals significant jurisprudential tension because the opinions are riddled with contradictions. This Article explores those tensions and the need to resolve them, focusing in particular on two major line-drawing problems that have emerged in the juvenile cases. The first is inherent to but largely ignored in the cases: whether and where to draw the line between childhood and adulthood. The second line is judicially manufactured: the line between homicide and non-homicide offenses. The Article describes and critiques the Court’s line drawing and offers proposed solutions to remedy flaws in the Court’s reasoning.

Graham on Overcharging

Kyle Graham (Santa Clara University School of Law) has posted Overcharging (Ohio State Journal of Criminal Law, Vol. 12, No. 1, 2014) on SSRN. Here is the abstract:

The prosecutors in several recent high-profile criminal cases have been accused of “overcharging” their quarry. These complaints have implied — and sometimes expressly asserted — that by “overcharging,” the prosecutors engaged in socially undesirable, illegitimate, and even corrupt behavior. United States Supreme Court Justice Antonin Scalia also weighed in on the “overcharging” phenomenon not long ago, describing this practice as a predictable though regrettable aspect of modern plea bargaining.

 

Unfortunately, many of these commentators either have failed to explain precisely what they meant by “overcharging,” or have used the same word to describe different types of charging practices. The various meanings given to “overcharging,” when the term is defined at all, have made it difficult to ascertain what this practice entails, why it is improper, and who the worst offenders are. This essay aims to improve the ongoing conversation about overcharging in two ways: first, by disentangling and fleshing out the core meanings of this term; and second, by proposing and then applying some metrics to identify prosecuting authorities that chronically overcharge.

It is sometimes not easy for trial judges to decide on how to rule on a motion to recuse. Most of the current discussion about recusal is centered on recusing because of campaign donations. See for example Capperton v. A.T Massey Coal Co. 556 U.S. 868, 129 S.Ct. 2252 (2009). Aside from the fact that James “Whitey” Bulger  is a pretty notorious guy, the decision to remove the trial judge by a unanimous three judge panel of the First Circuit was written by former United States Supreme Court Judge David Souter. You can access the ruling of the U.S. Court of Appeals for the First Circuit at this link.

Justice Souter wrote that the trial judge’s prior role as a prosecutor called his impartiality into question. “Our analysis of … relevant facts does not question either Judge Stearns’ ability to remain actually impartial or his sincerity in concluding that he is not biased against the defendant, nor do we draw any conclusion that he is biased,”  The opinion continued stating,

“Despite our respect for Judge Stearns and our belief in his sincerity, we are nonetheless bound to conclude that it is clear that a reasonable person might question the judge’s ability to preserve impartiality through the course of this prosecution,” the court held and ordered a new judge be assigned to the case

Mr. Bulger is facing trial on charges that he committed or ordered 19 murders in the 1970s and ’80s.  Judge Stearns had worked in the U.S. Attorney’s Office in Boston in the 1980s, at a time when the FBI was investigating Bulger’s alleged role as leader of the city’s Winter Hill crime gang.

During the investigation into Bulger’s gang, prosecutorial duties for organized crime had been split between the U.S. Attorney’s Office in Boston and a second team, called the New England Organized Crime Strike Force.

Since the strike force had worked to develop the government’s case against Bulger, Judge Stearns had argued that his roles at the U.S. Attorney’s Office did not compromise his impartiality.

But in the opinion Justice Souter noted that the two teams had not been “free from communication”.

Souter said his decision reflected only that a person could reasonably question Stearns’ impartiality, and did not represent a conclusion that Judge Stearns was biased.

Jacob Gershman recently wrote in the Wall Street Journal’s Legal Blog that:

“Defendants in Texas could be served notice of a lawsuit through social media sites under state legislation. Texas judges could offer that option if a defendant maintains a profile page on a social media site, regularly accesses the account and “could reasonably be expected to receive actual notice if the electronic communication were sent to the defendant’s account,” according to the bill text.

The bill is sponsored by Rep. Jeff Leach. If enacted, Texas would be the first state to offer the option of serving papers via Facebook.

50 years ago this week the United States Supreme Court decided the case of Gideon v. Wainwright. The Court responded to a plea written by Clarence Gideon in pencil and ruled that poor people are entitled to a lawyer and if they cannot afford one the government must appoint one. MinnPost published an article I wrote on the case. The article can be found at:  http://www.minnpost.com/community-voices/2013/03/happy-anniversary-clarence-gideon

Like any author who writes something I hope you take just a few minutes to read the article. But frankly I’d like to ask more. The right to counsel in our country is not in good shape. In the words of Supreme Court Justice Kagan  poor people are not entitled to a Cadillac defense but at least  should get a Ford Taurus defense. My Dad worked for Ford so obviously the reference to Ford products would resonate with me but the truth is in many places in our nation the right to counsel is a Model T Ford. We need to change that. So this is what I ask. If you think the message of this article makes sense please spend a few minutes passing it on to legislators, judges,  lawyers  and just plain friends. Ask them to join an incipient campaign to reinvigorate the right to counsel. If you know a public defender or appointed counsel consider sending them a note to thank them for what they do. But please think of how we can make fairness in the criminal justice system  and the right to counsel more of a reality.

Thanks,

Kevin

The Public Strategies Group donor advised fund at Minnesota Philanthropy Partners, The Public Strategies Group, Inc. (PSG) and The Center for Policy Studies, announce Catapult!, an international competition of worthy innovative public purpose system change.

Up to three winners of the competition—one international, one North American, and one from a Minnesota based organization—will receive a Catapult! grant designed to boost your change initiative.

The grant comes in the form of a Lab, an intensive week-long design, strategy development, and/or planning session involving key people of your choosing, outside experts you may choose in conjunction with PSG, and members of the PSG team who will facilitate the work of the Lab, provide design expertise, and change management strategy expertise.

Depending on the needs of the competition winners, the Lab can focus on a “clean sheet” design for a delivery system that produces better results for the money, a change management strategy to help further an initiative that is already designed, or a problem solving strategy to overcome a particular barrier that might be hindering an important change effort.

The Lab will take place this summer (2013) at PSG headquarters in St. Paul, Minnesota in a room designed and equipped especially for this type of creative work. The purpose and content scope of the Lab will be determined by the winning organization, but it must aim to measurably improve the public good. PSG will provide a team throughout the Lab to facilitate all Lab activities as well as to provide creative strategists to help provoke and support the thinking of Lab participants.

Organizations wishing to compete for an opportunity to have a Lab created especially around their needs and purposes should notify Laura Schwartz at The Public Strategies Group (laura@psg.us or 651-227-9774) of their interest. An RFP will be issued in March spelling out conditions of the competition and criteria that will be used in determining the three winners. An informational webinar will take place on March 28th at 1:00 PM Central Time (more information coming soon).

This is a philanthropic undertaking. No fees of any kind are associated with being a winner in this competition. The selected organizations must be willing to invest the time of their key people who are leading the change.

You can learn more about Catapult! here: http://catapult.psg.us.

Richard Zorza has for decades been a champion of the self represented and improving how courts deal with access to justice issues. He  has an interesting post on his blog:

“In State Dept. of Family Services v. Currier, 2013 WY 16, the Wyoming Supreme Court rejected the claim that the risk of incarceration required appointment of counsel in civil contempt child support cases in which the relief was sought by the state, with the assistance of counsel.

This, of course, is a question reserved in Turner v. Rogers.

The opinion is disturbing, not only in the result, or the fact that this is the first state supreme court to decide the issue since Turner, but because of the logic, which seems fallacious.

The court correctly notes that the issue is held open by Turner,  and then discuses the analysis of Turner and Mathews v. Edgridge, but then makes the following leap.

By contrast, the procedure employed in Wyoming contempt proceedings for failure to pay child support was described by the district court in this case as:

The Respondent in this and all Child Support Enforcement matters are informed in the Petition, and by the Court, of the burden on the State to show a failure to pay court ordered child support is willful. Respondents are provided forms upon which they can set forth current income, asset and liability information and are given opportunity to explain any reasons they may have for failure to pay.

These procedures meet the notice and opportunity to be heard requirements set out in Turner. Given those procedures, it is hard to imagine what more appointed counsel could bring to the dialogue.

There are two problems here.  First, the question, as indeed accurately stated but never properly analyzed by the court is: “We must consider what procedures are in place or may be put in place to offset the lack of symmetry occasioned by DFS being represented while the obligor is not to determine the comparative risk of erroneous incarceration.”

The procedures approved by by the Wyoming Supreme Court, however, were the same as those approved in Turner for use in situations where the plaintiff is not the state and no party is represented by counsel.  The Wyoming Supreme Court did not examine whether these same procedures could also suffice in the case before it, where the state is the plaintiff.  In fact, it is hard to know how the Wyoming Supreme Court really could have passed on these procedures as applied to the facts, given how little detail it had about the facts from the trial court.  The court also gave little heed to the warning in Turner that state-initiated proceedings “more closely resemble debt-collection proceedings” (Turner at 15) and that, “[T]he average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.” (Turner at 15-16, cf cite, quoting Johnson v. Zerbst)“

Don’t forget the AJA Midyear Meeting coming up May 2-4 at the Wyndham Lake Buena Vista in Orlando, Florida.  In addition to business meetings and a full day of excellent education sessions on Will Facebook be Friends with Courts:  Social Media, Digital Evidence and Emerging Trends, you and/or your family members may have time to enjoy the many attractions in the area.  Disney has created a complimentary webpage for AJA attendees to have access to some unique options and special savings on pre-arrival purchases for Disney theme park tickets.  The link is http://www.mydisneymeetings.com/wlbv.  For complete information about the meeting, you can go to http://aja.ncsc.dni.us/conferences/.

Sitting on the bench for any length of time exposes a judge to bad press. Sometimes that bad press  maybe quite deserved and other times  unfair, misleading or provoke the judge to want to sue for libel. Not many judges actually sue anyone  and even fewer succeed. Jacob Gershaman had an interesting posting on the Wall Street Journal Legal blog about an interesting opinion dealing with a judge who did sue: “by the U.S. Court of Appeals for the Third Circuit in a libel suit involving a Virgin Islands judge and a newspaper there illustrates at least this much: It’s a lot more difficult to prove that a journalist recklessly disregarded the truth in cases that hinge on what is being insinuated, not spelled out.

The court ruled that the newspaper didn’t defame Superior Court Judge Leon Kendall when it published articles about his release of a man who later murdered a 12-year-old girl. The judge claimed that the newspaper had strongly implied that he had known the man was dangerous before granting him bail.”