Professor Adam M. Gershowitz, of William & Mary Law, notes that warrantless cellphone searches are unnecessary when they can be stored in Faraday bags or wrapped in aluminum foil to prevent the remote wiping of information.
Gershowitz and other criminal law professors filed an amicus brief on behalf of the defendants in Riley v. California and United States v. Wurie, argued yesterday before the Supreme Court.
There are a lot of blogs that cover legal affairs. Many simply are not written well or don’t provide in depth analysis of complicated legal issues. The SCOTUS blog does both, as illustrated by this piece written by Amy Howe.
The article deals with the case pending before the Supreme Court regarding the ability of the police to “search” cell phones without a warrant:
It was a series of events straight out of the children’s book If You Give a Mouse a Cookie – the Law and Order edition. The storyline goes something like this: If you are driving a car with expired tags, the police might pull you over. If they do, they will ask to see your driver’s license. When you give it to them, they will run a computer check and learn that it has been suspended. So they decide to impound the car. But before they tow the car away, they search it. When they search it, they discover two handguns under the hood, so they arrest you. When they arrest you, they take your smart phone. When they take your smart phone, they read your text messages. When they read the messages, they see texts which suggest that you might be a member of a local gang. Based in part on those texts, they suspect that you may have been involved in a gang-related shooting a couple of weeks ago, and so they look at your phone again, where they find more evidence to support the theory that you belong to a gang and were involved in the shooting.
Continue reading here.
Roscoe Pound, in his speech to the American Bar Association nearly a century ago, claimed that the political jealousy between the branches due to the fact that the judiciary has the last word on matters of constitutional law was one of the causes of the popular dissatisfaction with the administration of justice. What was true then remains true today.
Years ago there was bitter conflict between the branches of government in New Hampshire over the court’s decisions regarding school funding. Today that dispute is in Kansas:
The Kansas Supreme Court isn’t about to be pushed around by lawmakers.
And lawmakers aren’t about to be bullied by judges.
This spring, the advancement of some bills by the Kansas Legislature reopened old arguments over who’s the boss of whom.
“It’s the worst I’ve ever seen it,” said Dennis Depew, Kansas Bar Association president.
Conservative Republicans in the Capitol have long been at odds with the judiciary, primarily over a 2005 Supreme Court order demanding hundreds of millions of dollars more for schools.
Relations between the two branches got testy again this spring when the Supreme Court opposed a bill redirecting administrative power to lower courts, a move that might be unconstitutional.
Chief Justice Lawton Nuss lashed out against the bill in a newspaper opinion piece. The court issued a statement emphasizing its opposition when Republican Gov. Sam Brownback signed it into law.
Read more here.
The United States Supreme Court rather swiftyly reversed the Sixth Circuit in its Burt v. Titlow decision exploring effective assistance of counsel during plea negotiations. Justice Alito wrote the opinion for the Court in Titlow. Justice Sotomayor filed a concurring opinion, and Justice Ginsburg concurred in the judgment.
Justice Alito’s opinion begins,
When a state prisoner asks a federal court to set aside a sentence due to ineffective assistance of counsel during plea bargaining, our cases require that the federal court use a “‘doubly deferential’” standard of review that gives both the state court and the defense attorney the benefit of the doubt. Cullen v. Pinholster, 563 U. S. ___, ___ (2011) (slip op., at 17). In this case, the Sixth Circuit failed to apply that doubly deferential standard by refusing to credit a state court’s reasonable factual finding and by assuming that counsel was ineffective where the record was silent. Because the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, and Strickland v. Washington, 466 U. S. 668 (1984), do not permit federal judges to so casually second-guess the decisions of their state-court colleagues or defense attorneys, the Sixth Circuit’s decision must be reversed.
Both Justice Ginsburg and Justice Sotomayor have written their own opinions in Burt v. Titlow in order to articulate their views of what the Court’s opinion does not mean. Justice Sotomayor who at one point in her career was a trial judge wrote:
In my view, this case turns on Vonlee Titlow’s failure to present enough evidence of what Frederick Toca did or did not do in the handful of days after she hired him and before she withdrew her plea. As our opinion notes, she bore the burden of overcoming two presumptions: that Toca performed effectively and that the state court ruled correctly. She failed to carry this burden. We need not say more, and indeed we do not say more. I therefore join the Court’s opinion in full. I write separately, however, to express my understanding of our opinion’s limited scope, particularly with respect to two statements that it makes about the adequacy of Toca’s performance.
First, we state that “[a]lthough a defendant’s proclamation of innocence does not relieve counsel of his normal responsibilities under Strickland, it may affect the advice counsel gives.” Ante, at 8. The first part of that statement bears emphasis: Regardless of whether a defendant asserts her innocence (or admits her guilt), her counsel must “make an independent examination of the facts, circumstances, pleadings and laws involved and then . . . offer his informed opinion as to what plea should be entered.” Von Moltke v. Gillies, 332 U. S. 708, 721 (1948) (plurality opinion). A defendant possesses “ ‘the ultimate authority’ ” to determine her plea. Florida v. Nixon, 543 U. S. 175, 187 (2004). But a lawyer must abide by his client’s decision in this respect only after having provided the client with competent and fully informed advice, including an analysis of the risks that the client would face in proceeding to trial. Given our recognition that “a defendant’s proclamation of innocence does not relieve counsel of his normal responsibilities,” ante, at 8, our further observation that such a proclamation “may affect the advice counsel gives,” ibid., states only the obvious: that a lawyer’s advice will always reflect the objectives of the representation, as determined by the adequately informed client.
The Court’s decision and Justice Sotomeyer’s concurrence highlight the weaknesses of the Strickland v. Washington standard for evaluating ineffective assistance of counsel claims. Nothing better illustrates those weaknesses than this part of Justice Alito’s opinion, “[Counsel] may well have violated the rules of professional conduct… and he waited weeks before consulting respondent’s first lawyer about the case. But the Sixth Amendment does not guarantee the right to perfect counsel; it promises only the right to effective assistance, and we have held that a lawyer’s violation of ethical norms does not make the lawyer per se ineffective.”
As we head toward Scottsdale for the 2014 Mid-Year Meeting, AJA leaders, Past Presidents, Officers, Governors, Committee Chairs, and all will be thinking about what needs to be done to or for AJA going forward. Do we need to re-invent the organization? Why is growth stagnant? What stimulation is needed? How do we change course? Wait! Do we need to change course? Do we stop meeting Mid-Year? Who are we trying to reach? Why?
We bill ourselves as “The Voice of the Judiciary” and claim to be an organization “of Judges, by Judges, and for Judges” yet we are sadly lacking in growth and individual commitment to do, to create, to be that Voice of the Judiciary that desperately needs to be heard in this new century of rapidly proliferating ideas and public commentary. People are more vocal than they used to be, regardless of their understanding of the issues. It seems everyone has some agenda or another, and a ready platform from which to espouse and vent their every whim and wish.
Across this country, we have Legislators dumping on the Judiciary, openly and publicly critical of decisions in forums from which the Judges are constrained ethically to enter. Most extreme in the assault on the integrity of the Judicial Branch of Government, a measure too often ignored by Judges and Lawyers alike, is the notion that the Judiciary should be self-funded (like any agency of government selling licenses and privileges to use or harvest state assets), in other words, be a “user pay” system. They think the benefit of a Judiciary is to the users, the litigants only and that funding should come from them. That is so short-sighted! Because court decisions are studied by the bar and others, people can order their conduct, can determine application of the rule of law to their affairs based upon the steady, consistent work of the Judiciary. We do not merely serve the few thousand litigants who come to our Courts every year, we serve the hundreds of thousands who do not. They can avoid litigation because they can see, by reason of stare decisis, the likely outcome of their disputes and avoid or resolve them without Court intervention. But, no one is telling the public that message. We need to do that. We are uniquely positioned to inform and defend the institution of the constitutional Judicial Branch, while we make ourselves yet better Judges in the process. We are about the stability of the law. Unfortunately, our stability may be leaving our organization stagnant when it should be vibrant.
So, what is AJA’s part in the national debate, in the assault upon judicial independence, if such a term still exists?
The “million dollar question” as we head to Scottsdale is this: How do we kindle the spirit of the volunteer firefighter, who will get out of his warm bed in the middle of the nastiest bone-chilling winter night or leave her warm dinner on the table to go help a neighbor in need, in the hearts of our Judges? People, the house is burning down all around our society.
I don’t think there is any ready answer in a can.
Personally, I’m not ready to abandon the brand or jettison the concept. We don’t need to be run by some professional organization who will teach us what to think. I don’t think we need to have everything served to us on a platter. It is time to step up and take some risks, do the hard work for a change. Let’s think outside the box. Can we be “of, by, and for” each other and the people we serve? If we just want to join another organization and see what they are serving at the buffet today, there are plenty of other organizations just like that. Is that what we are?
In order to figure out how to reach them and why, we need to thoroughly examine who Judges are, generally. Let’s take a look at all the characteristics, the good, the bad, the ugly. Then, we need to honestly ask ourselves where we stand personally, individually. Do we fit the ideal? Are we the spark, the tinder, the fuel, the catalyst or the extinguisher? What are you?
Judges are intelligent. But, they often think more highly of themselves than they ought. Judges are accustomed to having the last word, not offering a suggestion that might backfire or prove the Judge’s ignorance or shortsighted views. Judges are accustomed to people standing when they enter a room. Judges are used to being served, very rarely reflecting the heart of a servant. Judges see themselves as “leaders” rather than oarsmen at the bottom
of the slave galley living only to serve the ship.[1]
Many Judges hold their offices in politically charged jurisdictions and, perhaps, think their time in office is so short-lived that they can hardly justify too much personal investment in a system they may be enjoying only for a few brief moments.
The fact is Judges by office are leaders. But, are Judges themselves leaders? It is well past time to start leading again.
We are leaders because we can see what works. We experience the conflicts of society on a daily basis. We evaluate credibility every day. We have to understand what the law is in order to apply it appropriately. We preserve the integrity of the rule of law, regardless of the personal criticism generated naturally in an adversarial system of winners and losers.
Please do not claim there is no time. We all have busy dockets. We all have family issues, duties and obligations. We can all manage our level of fun and relaxation when we need it. We are all underpaid and terribly underappreciated in our jurisdictions. The fact is that we can always find the time, effort and resources to do whatever extra we want to do. So, admit it. If you are not that interested, please step aside. If you are committed, then grab an oar. No matter how busy your schedule, when your estranged daughter asks you to help with her wedding plans, you will drop everything else to do so. We always find time to do what we want to do. Your daughter is asking you now!
That being said, I don’t think we need to judge each other’s level of commitment. Some really are dealing with illness, for instance, or other issues that do frustrate their intentions and desires to do more with their lives. Some are always working their backsides raw for AJA or whatever other organizations they belong to, without fanfare or recognition, while others may do so with hopes of upward mobility and more opportunities to direct and serve. So, regardless of the level compared to others, if you are doing 100% of what you can do, hats off to you. We applaud and appreciate any and all efforts. If you are too stressed when asked to help or to participate more or to take up a leadership position, do not be afraid or embarrassed to say, “I would love to, but I cannot right now.” And please, do not let that embarrassment (which you shouldn’t have in the first place) transform you into withdrawal or anger when asked to do more than you can. We have to ask. We need your help. How are you going to know what is needed if you are not asked?
We have some very hardworking, dedicated people in this organization. But, we may be doing something wrong. Maybe we are not good at marketing ourselves. For instance, our education Committee consistently works hard to get us some of the best Continuing Judicial Education available anywhere. But, why are our conferences so lightly attended? Is it because the same or similar number of required CJE hours can be obtained less expensively elsewhere? We have an extremely scholarly Court Review journal. And, we have a great deal of ongoing effort being spent with the AJA blog. Are Judges reading and finding them useful? What are we doing well? And, what can we do better? What should we jettison?
The hard cruel fact is that in most volunteer organizations that are run by volunteers themselves, the natural dumbing down means that no one wants to put in too much effort and let others reap the glories of their labor. Or, everyone compares their own investment with what they can see from others. Worse, those who are at the helm, steering the organization might be so transfixed with the authority, they fail to entertain, allow or solicit any other ideas for which they will not be able to claim credit or which they cannot still control. In short, apathy rules!
Let’s not let that continue if that has infected us. We are poised to make a great leap forward or to sputter to a miserable end of a splendid run – an organization drowned in complacency, rotting and lifeless. Instead, let’s find a way to re-energize ourselves to serve, to catch a renewed vision. What is the Judicial Branch of Government about anyway? What is its constitutional purpose and function supposed to be? Regardless of our jurisdictional distinctions and labels, we all do the same thing – we resolve disputes by the application of the rule of law, in a forum that affords an opportunity to be heard, with the expectation of equal application of the principles of existing law to all who are similarly situated, with respect, order and preservation of the dignity of everyone.
If you are reading this – as a busy Judge, and not just a critic – I am guessing you are interested in the business of judging, interested enough in the AJA web site to check the blog page, and interested to read this far, I hope. So, interested Judge, what are your thoughts? We need your ideas in Scottsdale and beyond. Even if you cannot attend, find a way to participate with your ideas!
What can AJA do to help you? What can you do to help AJA?[2]
A San Diego Superior Court commissioner who presided over a lawyer’s wedding was not required to disqualify herself from hearing a case involving the attorney, the Fourth District Court of Appeal ruled recently. As reported in Metropolitan News-Enterprise:
The “average person on the street” would not assume that a judicial officer is biased merely because she acted as an officiant, Justice Judith Haller wrote for Div. One. But taking a more active role, such as by attending the reception, might indicate the type of social relationship that would give rise to a reasonable doubt as to the judge’s impartiality, the justice said.
The ruling came as a result of postjudgment proceedings between Kenneth Wechsler and his former wife, Kimberly Wechsler. The ex-wife’s then-attorney, Alexandra O’Neill, informed the ex-husband’s attorney, Cary Cotton, in late October of last year that the commissioner hearing the case, Patti Ratekin, would be officiating at O’Neill’s wedding in December.
Motion to Disqualify
Less than a week after the disclosure, Cotton brought a motion to disqualify Ratekin for cause. Ratekin responded with a declaration explaining that she did not have a social relationship with O’Neill, but that during an appearance about a month earlier, the attorney asked her to perform the ceremony. Ratekin said she agreed to perform the ceremony but had no plan to attend the reception.
O’Neill said in her own response:
“Because Commissioner Ratekin is only appearing at the ceremony, and leaving immediately thereafter, I will not have a chance to speak with her at the ceremony and the expectation is only that she will be supervising the recitation of the vows, exchange of wedding rings and signing the marriage license.”
Judge Jeffrey Barton, who heard the challenge under Code of Civil Procedure §170.3(b), said the facts as set forth in the declarations would not cause a reasonable person to doubt Ratekin’s objectivity, and rejected the challenge.
The ex-husband sought writ review. Although the ex-wife later changed attorneys, the Court of Appeal said the petition raised an important issue that was likely to recur and declined to dismiss the petition as moot.
Case Cited
Haller said the trial judge was correct, citing People v. Carter (2005) 36 Cal.4th 1215. The court held in that case that the judge who officiated at the wedding of the prosecutor’s daughter several months earlier was not disqualified from hearing a murder case.
The facts of that case, Haller explained, indicated that the relationship between the prosecutor and the judge was “professional and casual,” rather than a close social relationship; that the request to officiate came from the prosecutor’s daughter, not from the prosecutor; that no fee was paid or requested—the Code of Judicial Ethics allows judges to accept payment for performing weddings on weekends and holidays—and that it is customary for judges in San Bernardino County to perform weddings for lawyers and their families.
It is not unusual for judges to perform wedding ceremonies purely as an official function, signifying no bias in favor of the persons being married or their family members, the justice said, and requiring their disqualification for having done so would have negative consequences.
She wrote:
“These observations are consistent with the public policy of encouraging judges to provide this public service for couples who prefer a secular wedding ceremony. A holding that the agreement to officiate at an attorney’s wedding automatically disqualifies a judge from presiding over a matter in which the attorney appears would preclude judges from performing this public service and/or would require assignment to a new judicial officer, thus unnecessarily interrupting and delaying case resolution.”
Close Relationship
Disqualification would be required, Haller suggested, if the judge were asked to officiate because of a close relationship with the person being married or his or her family, of if close ties were created in the process of planning the wedding, “reflected by the judicial officer participating in prewedding planning events, attending the wedding reception or other related social functions, or accepting monetary or other gifts in exchange for performing the wedding.”
In deciding whether to accept the invitation to preside, she said, a judge should consider “the extent of the judge’s involvement in the ceremony and in other related events; the nature of the parties’ past and current social/personal relationship; any ties or connections with the families of the wedding party; and the nature of the issues pending or likely to come before the court. “ And if the judge is going to officiate, he or she should disclose that within a reasonable time, she said.
The case is Wechsler v. Superior Court (Wechsler), 14 S.O.S. 1115.
There is an interesting interview in The Atlantic with Wallace B. Jefferson, Texas’s former Chief Justice:
The newly retired Chief Justice of Texas’s Supreme Court is remarkable for many reasons. A Republican in the most Republican state in the Union, a black man in a state dominated by white conservatives, he has nonetheless been a dogged voice on behalf of Texas’s poorest and least powerful litigants. He has also been a consistent critic of the dubious way in which Texas selects and retains its judges—through a series of judicial elections that are unabashedly partisan.
This month, Jefferson returned to private practice, leaving his post on the highest civil court in Texas nine years after he was appointed its chief by Governor Rick Perry. I recently interviewed him by telephone on a series of issues. First up was the notion of judicial elections. Here’s a slightly edited version of our lengthy conversation (the first of a series I’ll be posting here at The Atlantic over the next few weeks). Jefferson’s remarks aren’t just notable for their candor about the structural failure of the state’s judicial campaigns. They also shed valuable insight into the motivations behind that failure — and explain why things aren’t likely to change anytime soon.
Read the full story here.
The Supreme Court has ruled that an anonymous tip can be sufficient to justify a decision by police to pull a car over on suspicion of reckless or drunken driving.
The justices voted 5-4 to uphold a traffic stop in northern California in which officers subsequently found marijuana in the vehicle. The officers themselves did not see any evidence of reckless driving.
Justice Clarence Thomas said the tip phoned in to 911 that a Ford pickup truck had run the caller off the road was sufficiently reliable to allow for the traffic stop without violating the driver’s constitutional rights.
Justice Clarence Thomas delivered the opinion of the Court in Prado Navarette v. California, No. 12-9490. Justice Antonin Scalia issued a dissenting opinion, in which Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan joined.
You can access the oral argument via this link.
This notable new article by John Stinneford (University of Florida Levin College of Law) is now available via SSRN.
Here is the abstract:
Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect.
This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a substitute for constitutional interpretation. A growing body of scholarship has shown that constitutional adjudication involves at least two distinct judicial activities: interpretation and implementation. Prophylactic rules are defensible as implementation tools that are necessary to reduce error costs in constitutional adjudication.
This Article contributes to implementation rules theory by showing that constitutional interpretation, defined as a receptive and non-instrumental effort to understand constitutional meaning, normally must precede constitutional implementation. When the Supreme Court constructs implementation rules without first interpreting the Constitution, the rules appear arbitrary and overreaching because they do not have a demonstrable connection to constitutional meaning. Such rules also narrow the scope of the Constitution itself, denying protection to any claimant who does not come within the rules. The only way to remedy this dysfunction and provide meaningful protection across a broad range of cases is to interpret the Constitution before implementing it.
A Hamilton County court must reconsider the life-without-parole sentence of Springdale’s Eric Long, convicted of murdering two men in 2009, when he was 17.
In a 24-page decision, the Ohio Supreme Court found that when juveniles are convicted of murder and the potential sentence is life in prison without the possibility of parole, judges must consider the juvenile’s age as a factor in that sentencing.
The Ohio Supreme Court sent the case back in a 5-2 ruling handed down Wednesday. Republican justices Sharon Kennedy and Terrence O’Donnell dissented.
blog.amjudges.org 