The National Conference of State Legislatures, with the support of the Laura and John Arnold Foundation, has updated their interactive database of pretrial laws. In addition to searching laws by topic, users can now consult an interactive map to review pretrial policy and law in all 50 states.
The Indiana Supreme Court has recently held in Fry v. State that when a defendant charged with murder seeks bail, the burden must be placed on the state to prove by a preponderance of the evidence that the defendant should be denied bail. The ruling has important implications for the pretrial process and the rights of the accused.
A couple of interesting commentaries written by The Honorable Gregg Donat, Presiding Judge of the Superior Court IV in Tippecanoe, IN and Tim Schnacke, Executive Director of the Center for Legal and Evidence-Based Practices can be found on PJI’s blog.
Four out of five voters back stronger disclosure laws for judicial campaigns in state elections, according to the Center for American Progress, which commissioned a new poll conducted by Harstad Strategic Research.
See more at: http://www.gavelgrab.org/?p=59076#sthash.BtDPubfi.dpuf
In R. v. WILLIAMS, 2013 ONCA 477, July 12, 2012, the accused was convicted of the offence of second degree murder by a jury. On appeal, he argued that a reasonable apprehension of bias arose because the trial judge (Whitten J.) conducted an earlier judicial interim release hearing into the same charge and commented favourably on the strength of the Crown’s case.
The Ontario Court of Appeal indicated that the “fact that Whitten J. presided at the appellant’s unsuccessful bail application and then at the trial, almost two years later, did not create a reasonable apprehension of bias. The trial judge’s expression of opinion at the bail hearing as to the strength of the Crown’s case was justified by the record before him and, indeed, was later borne out by the evidence called at the trial. The trial judge was not the trier of fact in this case and was not called upon to make any findings of credibility.”
Washington, DC Pretrial Risk Assessment Validation Project
The latest publication of Federal Probation examines the Pretrial Services Agency (PSA) for the District of Columbia’s recent efforts to improve their pretrial risk assessment tool. The article, Using Research to Improve Pretrial Justice and Public Safety: Results from PSA’s Risk Assessment Validation Project, outlines the process PSA went through to validate a more accurate risk tool and lays out how the tool is being implemented.
From the Richard Zorza’s Access to Justice Blog:
Disconcerting Blog Post on Bar Reactions to Recent Canadian Study of the Self-Represented
By Richard Zorza
Dr. Julie MacFarlane, who recently completed a study of the experiences of the self-represented in the Canadian courts, has posted a fascinating blog on the reactions from the legal profession to the study. It is uncomfortable, but important, reading.
Efforts to discuss the study’s findings in both formal professional and informal social settings have been regularly met with one or both of the following responses from lawyers (1) “the SRL’s in your study were all crazy, angry people” (a wholly inaccurate characterization of the research sample) and / or (2) ”you’re just lawyer-bashing”. This defensiveness casts lawyers as the victims of SRL’s, and SRL’s as the aggressors. This is a (re)framing by the (relatively) powerful that we should be familiar with from other social issues.
I know that the legal profession and the judiciary includes many amazing people who are committed to enhancing their services. Some members of the legal profession – and in particular, some important leaders – are looking carefully at the research and considering how the profession should respond. Many of these individuals – and their colleagues on the Bench – would agree that lawyers must be part of change. But they face the resistance of those who are so defensiveness about public criticism.
Discounting or rubbishing the research – and all research has its flaws – is neither an adequate nor a responsible response to the crisis of public confidence in the justice system. Efforts to stifle legitimate public concerns about legal services with cries of lawyer-bashing, or disparaging the struggles of ordinary people facing the justice system without counsel, will be completely counter-productive. It serves only to reinforce the critique – that parts of the legal profession do not care about ordinary people and are largely unaccountabie to the public.
It should be noted that the overall perspective that she brings is highly nuanced, and thus provides no justification for these criticisms. As she puts it:
My own view – stated publicly many times now – is that the experiences of SRL’s are reflections of a system problem, rather than the “fault” of any particular justice system actors – judges, lawyers, court staff, or the SRL’s themselves. The real problem is that we have a legal system that assumes that people will be represented by lawyers. Declines in family and civil legal aid have left litigants with the choice of hiring a lawyer at $350 an hour, and many cannot afford to do so. Or they run out of funds before the end of their case (over half my sample) and find themselves alone in the courtroom.
On first blush it makes me feel good that we have really not experienced anything like this in the States — except, of course, for some rather special situations. I would like to think that this is because our bar has made a major commitment to access to justice, and is able to face up to the realities of the system.
But before we blow our own horns, we must acknowledge that while some of the US states have gathered input into court planning, and others have conducted focus groups and talked to the self-represented, we have never done anything as systematic at Dr. MacFarlane’s study. Maybe if we did, it might elicit some of the same reactions.
Of this however I am confident: the more we bring the bar into the research, analysis, planning and innovation process for access, the more successful we will be, not only at avoiding the kind of reaction reported by Dr. MacFarlane, but more critically, in solving the underlying access issue.
I particularly look forward to hearing how the debate moves forward — knowing as I do from recent participation at an excellent session organized by the Canadian Bar Association that there is indeed very strong interest in access in the Bar, and a lot of creativity and commitment.
Russell D. Covey
Georgia State University College of Law
2013
Duquesne University Law Review, Vol. 51, 2013
Abstract:
In dissenting opinions in Lafler v. Cooper and Missouri v. Frye – two recent cases dealing with the application of the Sixth Amendment right to counsel to the plea bargaining process – Justice Scalia warned of the coming creation of a whole new field of constitutional criminal procedure: plea bargaining law. This symposium contribution assesses that prediction. It concludes that the Lafler and Frye cases do lay the groundwork for important, albeit incremental, expansion of constitutional protections to criminal defendants in the guilty plea process. In particular, it urges the extension of prosecutorial disclosure obligations to the guilty plea stage and increased restrictions on coercive bargaining practices by prosecutors seeking to induce defendants to plead guilty.
Full paper available here.
The truth is a lot of judges have thin skins when it comes to protests on the court house steps. Judges are more often than not better at protecting the First Amendment on someone else’s turf. And so fresh on the heels of a court decision striking down a ban on protests on Supreme Court grounds, the United States Supreme Court issued a new rule Thursday banning demonstrations. There were no dissents.
The new regulation, approved by the chief justice and effective as of Thursday, says “no person shall engage in a demonstration within the Supreme Court building and grounds. The term ‘demonstration’ includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to draw a crowd or onlookers. The term does not include casual use by visitors or tourists that is not reasonably likely to attract a crowd or onlookers.”
On Tuesday, a D.C. District Court judge struck down the Supreme Court’s previous ban on protests, saying the law was over broad and unreasonably restrictive of free speech.
The previous rule made it illegal to “parade, stand or move in processions or assemblages” on Supreme Court grounds or to display a “flag, banner or device designed or adapted to bring into public notice a party, organization or movement.”
The court had argued that the rule was necessary to ensure the ability of people to enter and leave the building and for ‘preserving the appearance of the Court as a body not swayed by external influence,’ but Judge Beryl A. Howell said it violated the First Amendment for the court to “so broadly” restrict expression to achieve those goals.
Thanks to sharp reporting by Jacob Gershman we know that there are on going efforts to breath life into Third Amendment jurisprudence:
‘Forgotten’ Third Amendment Surfaces in Nevada Case
By Jacob Gershman
It’s been called the “forgotten amendment,” “an insignificant legal fossil,” and an “oft-forgotten relic” of the American Revolution.
But the Third Amendment made a rare appearance in federal court, figuring in a lawsuit filed this month by a Nevada man against the city of Henderson and its police chief.
The Third Amendment reads, in full:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law
How rare are Third Amendment cases? It’s been 30 years since a federal court handed down a significant Third Amendment decision.
Henderson resident Anthony Mitchell claims that Henderson police officers violated his Third Amendment rights when they “conspired among themselves to force . . . .”
Mr Gershman reports for the law Blog published by the Wall Street Journal. It can be found at:
“Courts Can’t Agree on Whether Cops Can Track Your Cell without a Warrant”
From Wired.com:
Federal law enforcement agents have been using warrantless cell-tower locational tracking of criminal suspects in the wake of the Supreme Court’s ruling 18 months ago that they need probable-cause warrants from judges to affix covert GPS devices to vehicles.
But the law on cell-site locational tracking is all over the books, with judges offering mixed rulings on whether warrants are needed. While dozens of lower courts have ruled on the issue, only two appellate courts have. All of which means some suspects are being convicted based on locational data of what towers their cell phones are pinging, and others are not, because some courts are requiring warrants.
blog.amjudges.org 