“From an ethical standpoint, it is never a good sign when someone starts a sentence with the comment, “I’m sure I am going to get in trouble for [this]…. ” That is particularly true when the someone is a federal judge, obligated by a code of judicial conduct to avoid the “appearance of impropriety.”

So begins a commentary by Stanford Law Professor Deborah Rhode in a very interesting (and short) series by the New York Times on the decision of the Second Circuit to remove Federal District Court Judge Shira Scheindlin from presiding over litigation regarding the New York Police Department’s Stop & Frisk Policy.

In the piece, several commentators take to task the Second Circuit which removed Judge Scheindlin despite the fact that no one in the litigation brought a motion to remove her.

The Second Circuit decision can be found here.

There are a growing number of critics of the Strickland standard for determining effective assistance of counsel.

The critics argue that the standard hides from judicial review substandard representation. Most opinions that affirm Strickland claims of ineffective assistance of counsel are not as blunt as State v. Cahill, 2013-Ohio-3753 (Ohio Ct. App. Aug. 30, 2013):

For all of Cahill’s protestations to the contrary, this was an open-and-shut case, competently presented by the prosecutor. The finest criminal defense lawyer in the land cannot work a miracle. Cahill was not constitutionally entitled to a victorious defense counsel, he was merely entitled to an effective defense counsel; and he had one.

In Kaley v. United States the United States Supreme Court will decide whether, when a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, the Fifth and Sixth Amendments require a pre-trial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges.

The oral argument can be found here, and here (transcript).

In R. v. Wilson, 2013 NBCA 38, the accused was convicted of the offence of sexual assault.  The accused appealed form conviction arguing that the trial judge failed to provide sufficient reasons and failed to properly apply the applicable onus and standard of proof.  The New Brunswick Court of Appeal indicated that though the “judge’s reasons for decision are far  from being a model of certainty and clarity,” they were sufficient.  However, the Court of Appeal concluded that the trial judge had erred in applying the criminal standard of proof (at paragraph 49):

Immediately after stating he did not believe Mr. Wilson about the hundred-dollar bill, the trial judge repeated he had to consider whether the prosecution had proven guilt beyond a reasonable doubt and adds that he had “to attempt to resolve the inconsistencies and understand the whole context in this case.” This is not a correct statement of law. The judge did not have to attempt to resolve any inconsistencies. The inconsistencies might have been resolved in the sense of being satisfactorily explained away, but it is not the judge’s role to “attempt to” resolve them. Rather, the judicial role is to consider nexplained inconsistencies in determining who to believe and how much to believe. The judge should also consider inconsistencies in determining whether reasonable doubt lingers notwithstanding disbelief. In the end, the trial judge must weigh “unresolved” inconsistencies in determining whether proof of the essential elements of the offence had been made beyond a reasonable doubt. While inconsistencies may be explained away, and a trial judge may disregard them for proper reasons, to the extent they are relevant to the issue of credibility, if they are not satisfactorily explained, they should be weighed in the balance. It is not the trial judge’s role to attempt to resolve them.