From Jurist:

The New Jersey Supreme Court [official website] ruled [opinion, PDF]  that police must obtain search warrants before obtaining tracking information from cell phone providers. The unanimous ruling marks the first time a state supreme court has recognized aFourth Amendment [Cornell LII backgrounder] protection for cell phone location data. In the decision, Chief Justice Stuart Rabner noted that cellphone tracking technology has the potential to violate a person’s privacy rights and must be subject to judicial review. Rabner also noted that no warrants will be required in emergency situations.

The decision to put the elderly into nursing homes over their objection is a crisis many families painfully face. But if the decision is not to place the elderly in a nursing home, is that neglect? The Washington Supreme Court ruled that the guardian of an elderly Pierce County woman was not negligent when she didn’t force her into a nursing home against her wishes.

The court explained in the unanimous ruling that even if the bed-bound woman could have gotten better care in such an institution, she should not have been forced to move into one. Following her wishes was not neglect.

In a unanimous ruling, the Supreme Court reversed a decision by the Washington Court of Appeals, citing the Legislature’s mandate against placing incapacitated persons against their will. The full opinion can be found here (PDF).

Judicial Gatekeeping of Suspect Evidence: Due Process and Evidentiary Rules in the Age of Innocence

Keith A. Findley 

University of Wisconsin Law School

June 3, 2013

Georgia Law Review, Vol. 47, No. 723, 2013

Abstract: 
The growing number of wrongful convictions exposed over the past two-and-a-half decades, and the research that points to a few recurring types of flawed evidence in those cases, raise questions about the effectiveness of the rules of evidence and the constitutional admissibility standards that are designed to guard against unreliable evidence. Drawing on emerging empirical data, this Article concludes that the system can and should be adjusted to do a better job of guarding against undue reliance on flawed evidence. The Article first considers the role of reliability screening as a constitutional concern. The wrongful convictions data identify what might be called “suspect evidentiary categories” — a few types of evidence (eyewitness identifications, confessions, forensic science, and snitch testimony) that are both recurring features of wrongful convictions and not otherwise susceptible to correction through traditional trial mechanisms and that, therefore, can and should be subjected to heightened scrutiny for reliability under the Due Process Clause.

Recognizing, however, that the Supreme Court is moving away from using constitutional doctrine to screen for reliability, this Article considers other mechanisms for better ensuring reliable evidence and accurate trial outcomes. First, current trends in Supreme Court jurisprudence suggest a due process framework that focuses upstream of the trial process on regulating the police and prosecutorial conduct that generates some of the most suspect trial evidence. Second, the Article assesses new applications of non-constitutional evidence law that offer promise for filling the void in reliability review of such suspect types of evidence. Finally, the Article considers remedies in addition to exclusion that might aid in the enterprise of mitigating the harm from flawed evidence. Principal among these are broader use of expert witnesses and jury instructions to educate fact finders about the counter-intuitive but scientifically established qualities of these categories of suspect evidence. And because courts have proven reluctant to apply reliability-based exclusionary rules rigorously, the Article concludes by exploring partial exclusion — excluding the most objectionable parts of the evidence while permitting other parts — as a remedy that courts might be more likely to actually enforce.

The National Association of Criminal Defense Lawyers has this new press release reporting on a new report about American criminal justice systems.   Here is how the press release starts (with a link to the report):

Issued today, a groundbreaking report on a matter of immense public importance — Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparities in the Criminal Justice System — is a critically important and inclusive examination of the profound racial and ethnic disparities in America’s criminal justice system, and concrete ways to overcome them.

The HBO documentary Gideon’s Army is showing throughout the month of July (Next showing is tomorrow:  Friday, July 26 at 2:20 PM CT on HBO Signature East/5:20 PM CT on HBO Signature West).

The film follows the personal stories of three young public defenders in the Deep South. The issue of bail and pretrial justice is a theme throughout the documentary.

Schedule available at: http://www.hbo.com/#/documentaries/gideons-army/index.html/

The Law Blog has an article by Jacob Gershman which reports that:

 “More than a third of Americans say the First Amendment goes too far in the rights it guarantees, according to a new survey.

The results were released Tuesday by the First Amendment Center, a non-partisan group that advocates for First Amendment protections and conducts an annual survey of public views.”

The Anchorage Daily News contains an article that begins, “The Alaska Supreme Court Friday unanimously upheld a lower court decision that a voter initiative banning all abortions could not appear on the Alaska ballot because it was unconstitutional.”

You can access the  ruling of the Supreme Court of Alaska at this link (PDF).

The National Association of Court Managers held its annual conference last week in San Antonio. Judge Steve Leben and Dr. Pam Casey presented a session on procedural fairness and making better decisions….mindfulness. These are the Power point slides (PDF) but without the video.

NACM_San_Antonio_7-18-13-1

Actually the title of this post probably makes no connection except that the theme from the Music Man was a story based in Iowa and the litigation in Nelson v. James H. Knight DDS, P.C. is also from Iowa.  The Iowa Supreme Court recently  unanimously reaffirmed that an unfair termination is not illegal (Iowa is an at-will employment state), and that terminating an employee based on a consensual, personal relationship (even if based on sexual attraction) does not amount to gender discrimination.

As reported by the very well written blog, On Brief: Iowa’s Appellate Blog

“The majority opinion, written by Justice Mansfield and joined by Justices Appel, Waterman, and Zager, remains mostly unchanged (though there are additions and alterations). But this time around, Chief Justice Cady wrote a concurring opinion to further explain his reasoning. Perhaps responding to the media coverage of the Court’s earlier decision, Chief Justice Cady (joined by Justices Wiggins and Hecht) wrote that “challenges to defining sex discrimination in the workplace have, at times, created controversy and divisiveness, especially when decisions by courts are not fully explained or when court decisions are not fairly read and interpreted or accepted.”

And with that, the Chief Justice explained himself. Dr. James Knight terminated long-time employee Melissa Nelson, after Knight’s wife asked him to do so. Knight and Nelson had a developed a consensual personal relationship that extended beyond the workplace, and Knight was admittedly attracted to Nelson. Because of that, Knight’s wife and Knight both feared that Nelson’s continued employment posed a threat to their marriage. That may be unfair, but it’s not illegal. Chief Justice Cady summed it up this way:

“The complexity of such cases is not necessarily tied to the complexity of the law as much as the complexity of human relationships and interactions with others. Nevertheless, the law does not escape some blame for the difficult nature of the issue in light of the countervailing employment-at-will doctrine, which permits employers to terminate employees for reasons personal to them, so long as the will of the employer is not discriminatory or otherwise against public policy. This is our law in Iowa. Thus, while the loss of a job is often devastating to an employee, and at times unfair, these considerations do not play a role under our employment-at-will doctrine, and our exceptions to this law, such as sex discrimination, are only based on the underlying discriminatory. Of course, the unfairness is enhanced for employees when the termination results from a personal relationship with the employer because only the employee suffers the loss of a job, while the other participant in the relationship does not. This result can make acceptance of the law even more difficult.”

So that is the end of the case except there remains trouble in River City.  AP reporter Ryan Foley  reported  that  Melissa Nelson–the “irresistible employee”–has filed a second petition for rehearing.

The BBC reports that,

“Sir John Thomas has been confirmed as the new Lord Chief Justice, replacing Lord Judge as head of the judiciary of England and Wales.

Sir John, currently president of the Queen’s Bench Division, will take over the £240,000-a-year role in October.

The 65-year-old was involved in recent high-profile cases including those of Abu Hamza and Julian Assange.

After his appointment he pledged that judges would help ensure that justice was delivered “fairly and efficiently”.

As well as leading the judges of England and Wales, he will also play a key role mediating between the courts and ministers.

Sir John was born in Carmarthen and brought up in Ystradgynlais, Powys. He was called to the bar in 1969 and was knighted when he became a High Court judge in 1996.

‘Inevitable tension’

Some had predicted the job would be given to Lady Justice Hallett, who led the London bombings inquest and would have become the first woman in the role.

Also in the running, according to the BBC’s legal correspondent Clive Coleman, was Lord Justice Leveson who led the recent inquiry into the ethics and practices of the press”.