Thanks to the National Judicial College, we know more about the retirement life of Judge Peggy Hora…and when you are done reading this, you may well be exhausted.

Life After the Bench

 

Hon. Peggy Fulton Hora (Ret.)

 

If you were to have asked me how I envisioned my retirement, I could not have conjured up how fabulous it has been.  After 21 years on the California bench, I retired in 2006 and haven’t slowed down since.  Some people complain that they are bored by retirement. I have no idea what they’re thinking.  I’m so busy and engaged that I have no idea how I had time to work.

Editor’s Note:  Life expectancy rates are growing in the United States, as most Americans are expected to live 78.8 years, according to Centers for Disease Control and Prevention.

But for many judges nationwide, laws on mandatory retirement ages have not changed, leaving them with more years than ever to explore life and opportunities when their work on the bench is complete.  More judges are finding themselves with ample time to explore life beyond the bench, finding ways to explore a new professional identity alongside new hobbies and interests.  We’ve heard from judges who are training animals, writing books, traveling the world and caring for grandchildren.  Many are consulting, traveling, teaching or returning to law practices.

Here, the Hon. Peggy Fulton Hora chronicles her experiences as a judicial educator, a “Thinker in Residence” in Australian academic communities, a published author, and a worldwide traveler.

I have been a judicial educator for more than 25 years and spent lots of time giving back to the profession while still on the bench.  I would speak at out-of-state conferences, speak at California judicial education programs and, of course, teach at The National Judicial College.   Some of that work included international travel, a particular passion of mine. I became involved with law professors who had founded a field called therapeutic jurisprudence (TJ)¹ and wrote a law review article coupling TJ and drug treatment courts.²  This led to my attendance at the first International Conference on Therapeutic Jurisprudence in Winchester, England in 1998.

I was in Israel in 2005 and was chatting with consulate staff when my impending retirement came up.  They said as soon as the deed was done I must come back and speak to Dorit Beinish, the new president judge of the Supreme Court of Israel and president judges in each division about drug courts.  My official retirement day, Feb. 29, 2006, was spent sipping champagne at the U.S. Consulate in Jerusalem.  My trip back to Jerusalem to speak with the judges was funded by the State Department.  While there, I taught at the Institute for Advanced Judicial Studies in Neve Ilan, Israel.

In 2008 the State Department also sent me to Chile to do onsite technical assistance with their drug courts and the Organization of American States brought me to Argentina where the first drug court was opened in Salta in 2014.

The Second International TJ Conference was in Perth, Australia in 2008 where the keynote speaker fell ill and I was substituted in at the last minute.  How fortuitous that turned out to be. As a direct result of that trip I was one of 100 people nominated to become South Australia’s Thinker in Resident. Ultimately, I was appointed by the Premier and spent three months consulting on the justice system.  I produced a report with my findings and recommendations.³  It was an incredible experience and, coincidentally, the longest I’d ever been away from home.

Because of my work as Thinker in Residence, I became known in Australia’s national legal community.  I’ve taught at the National Judicial College of Australia; keynoted the national Drug Treatment Court Conference in Melbourne; keynoted the Community Legal Center’s conference in Tasmania; keynoted the Victorian Association of Drink & Drug Driver Services conference; key noted the Australian Institute of Criminology conference in Adelaide and, spoken at three AustralAsian Institute of Judicial Administration conferences.  On the academic side I’ve spoken at Griffith University School of Criminology in Brisbane and Flinders University in South Australia.  I was a visiting scholar at the University of Tasmania School of Law.

I’ve been to Bermuda three times for training and will present a workshop in September during a pleasure cruise from New York.  The first time I combined tourism with teaching was on a small ship trip to Holland during tulip season.  I met a TJ friend in Delft and he whisked me to Utrecht where I spoke to “Raad voor de rechtspraak” (Council for Court-Jurisdiction, The Hague).  My fellow travelers on the tour were blown away by my adventure.

I’ve taken seven trips to New Zealand helping them set up their Alcohol and Other Drug Treatment Courts.  Beginning in 2010 when I put on a drug court workshop I became the official international consultant to the courts.  The courts opened in Auckland in 2012 as a five year pilot project and are blooming.  Their Maori name is Te Whare Whakapiki Wairua (“The House that Heals the Spirit”).  I am in constant contact with the judges who preside and have sat with them on the bench during court sessions each time I’m there.  I’ll be going back for a big ceremony on March.

Besides all the national and international travel, I’ve published 10 articles since retirement and enjoy writing and research.⁴

Last, but by no means least, retirement has allowed me more time with my family. I downsized a big, two-story house and now live in a 1,056 sq. ft. condo near my sons.  I have a tradition of taking my grandchildren on an “international adventure” when they are 10 or 11.  We’ve gone to Costa Rica, the Galapagos, Egypt, Grand Cayman and on safari in Kenya and Tanzania.  In the Spring, I take my second granddaughter on “A Taste of Italy” trip to visit some of her relatives near Genoa and take cooking classes in Tuscany and Rome. I’m known as “Venture Grandma.”

Judge Hora retired from the California Superior Court after serving 21 years.  She had a criminal assignment that included presiding over the drug treatment court.  She is a former dean of the B.E. Witkin Judicial College of California and has been on the faculty of The National Judicial College for more than 20 years.

 

1.         http://therapeuticjurisprudence.org

2.         Hora, Peggy Fulton, Hon. William G. Schma and Rosenthal, John T.A., “Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System’s Response to Drug Abuse and Crime in America.” Notre Dame Law Review Vol. 74, No. 2., (1999)

3.         https://youtu.be/fJGZkHziKOE

4.         For a complete list of Judge Hora’s publications, see http://www.judgehora.com

Sponsors of a new website hope more information about judges, and Ohio courts in general, will result in more ballots cast in Ohio judicial races:

VOTING:  The goal of a new website is to provide information and get more voters to cast a ballot for judges.

In 2014, more than 3 million votes were cast for Ohio governor, but only about 2.5 million voters made a choice for the Ohio Supreme Court.

A 2014 survey found this drop-off in voters was primarily due to a lack of information about judicial candidates and the court system in general.

The new website, JudicialVotesCount.org, hopes to educate voters and address the lack of information.

JudicialVotesCount is a joint effort of the Ray C. Bliss Institute of Applied Politics at the University of Akron, Ohio Supreme Court Justice Maureen O’Connor, the League of Women Voters of Ohio, and the Ohio State Bar Association, the co-sponsors of the judicial elections survey.

John Green, director of the Bliss Institute, said the website explains the court system, offers links to websites about voting, and provides basic information about the judges. It will display details on 55 municipal court judges up for election in November, with plans for a bigger push in 2016  when more judges are on the ballot.

In Rowe v. Gibson, 2015 No. 14-3316 (U.S.C.A.), the plaintiff, a prisoner, sued a prison and its staff in relation to medical treatment. The suit was dismissed, but reversed on appeal by the Seventh Circuit of the United States Court of Appeals.

The interesting point in the Court of Appeals’ decision was described by one of the justices as follows (at page 27):

…a disagreement about the outcome of this relatively simple case has morphed into a debate over the propriety of appellate courts supplementing the record with Internet research.

In a partly dissenting judgment, Justice Hamilton took umbrage at his colleagues’ use of the internet (at pages 39 and 40):

The ease of research on the internet has given new life to an old debate about the propriety of and limits to independent factual research by appellate courts.  The majority’s approach turns the court from a neutral decision-maker into an advocate for one side. The majority also offers no meaningful guidance as to how it expects other judges to carry out such factual research and what standards should apply when they do so. Under the majority’s approach, the factual record will never be truly closed. This invites endless expansion of the record and repetition in litigation as parties contend and decide that more and more information should have been considered.

Justice Posner, writing the majority judgment suggested that modern trial judges are not “like the English judges of yore” (at page 12):

In citing even highly reputable medical websites in support of our conclusion that summary judgment was premature we may be thought to be “going outside the record” in an improper sense. It may be said that judges should confine their role to choosing between the evidentiary presentations of the opposing parties, much like referees of athletic events. But judges and their law clerks often conduct research on cases, and it is not always research confined to pure issues of law, without disclosure to the parties. We are not like the English judges of yore, who under the rule of “orality” were not permitted to have law clerks or other staff, or libraries, or even to deliberate—at the end of the oral argument in an appeal the judges would state their views seriatim as to the proper outcome of the appeal.

Judge Richard A. Posner wrote the majority opinion, including an appendix responding to the dissent.

Circuit Judge Ilana Diamond Rovner issued a concurring opinion that begins, “A disagreement about the outcome of this relatively simple case has morphed into a debate over the propriety of appellate courts supplementing the record with Internet research.”  Circuit Judge David F. Hamilton issued an opinion concurring in part and dissenting in part. In dissenting, Judge Hamilton writes, “the reversal is unprecedented, clearly based on ‘evidence’ this appellate court has found by its own internet research.”

What is a bit fascinating about this appellate judge skirmish is that it is also going on in Canada, where a similar issue arose in R. v. C.D.H., 2015 ONCA 102.

In C.D.H. the accused was charged with a number of offences, including the offence of sexual assault. The trial judge entered an acquittal for sexual assault, but entered a conviction for the included offence of assault.

The Crown appealed from the acquittal, arguing that the trial judge had erred in conducting his own research on the website “Match.com” (the evidence at trial had been that the complainant and the respondent had met on Match.com and that during the alleged sexual assault encounter, the respondent had become angry and searched that website to see the complainant’s other contacts there).

On appeal, the Ontario Court of Appeal indicated “that the circumstances we have outlined gave rise to a reasonable apprehension of bias. The acquittals must be set aside and a new trial ordered.” The Court of Appeal held that the “conduct of the trial judge in conducting his own evidentiary research while the decision was under reserve – whether or not he had already written his reasons or he accessed any actual details about the complainant – and his comment to the officer about using the website information to ‘hang’ the complainant, created the appearance of bias.”

The Court of Appeal held that the trial judge’s conduct contravened the “basic principle that judges and jurors must make their judicial decisions based only on the evidence presented in court on the record.”

The federal judiciary announced the proposal to get rid of the ancient documents exception on and is accepting public comments through February. U.S. District Judge William Sessions III of Vermont, chairman of the advisory committee on evidence rules, said in a report that the foundation of the exception “has always been questionable.”

“A document does not become reliable just because it is old; and a document does not magically become reliable enough to escape the rule against hearsay on the day it turns 20,” Sessions wrote. “The committee concluded that the exception has been tolerated because it has been used so infrequently, and usually because there is no other evidence on point.”

Liesa Richter, a professor at the University of Oklahoma College of Law who teaches evidence, applauded the proposal.

“Age is no guarantee of reliability,” Richter said. “Now that we have this flood of electronically stored information that never goes away—it doesn’t disappear ever—[there are] just so many factual assertions out there electronically that will be available for savvy lawyers to dig up and admit. I think it is a real problem and a real concern.”

Read more here.

The abundance of electronically stored documents is spurring a committee of the U.S. Judicial Conference to propose abolishing the “ancient documents” rule.

The rule—803(16) of the Federal Rules of Evidence—allows the admission of documents that would usually be banned as hearsay if the documents are at least 20 years old and appear authentic. The National Law Journal (sub. req.) has a story on the proposal to scrap the rule.

A committee report (PDF) said the rule “has always been questionable” but it has been tolerated  because it is infrequently used,

The abundance of electronic documents creates a strong likelihood that the ancient documents exception will be used much more frequently in coming years, according to the report by U.S. District Judge William Sessions III of Vermont, who chairs the advisory committee on evidence rules.

“Many forms of [electronically stored evidence] have just become or are about to become more than 20 years old, and there is a real risk that substantial amounts of unreliable ESI will be stockpiled and subject to essentially automatic admissibility under the existing exception,” the report said.

The ancient documents exception was originally intended to cover property issues to ease proof of title, the report said. But the premise for the rule was flawed. “A document does not magically become reliable enough to escape the rule against hearsay on the day it turns 20,” the report said.

Sessions told the National Law Journal that the residual exception to the hearsay rule could still be invoked in some cases where the ancient documents rule would apply. Codified in Rule 807, the residual exception can be used to admit hearsay when it is more probative than other reasonably available evidence.

Public comments on the proposal can be submitted until Feb. 16, according to the U.S. courts website.

Joseph L. Gastwirth (George Washington University – Columbian College of Arts and Sciences) has posted Statistical Testing of Peremptory Challenge Data for Possible Discrimination: Application to Foster v. Chatman on SSRN.

Here is the abstract:

Ensuring that minority groups are treated fairly in the legal process is an important concern. The Castaneda v. Partida and Duren v. Missouri decisions enable courts to monitor the demographic composition of the selection of potential jurors using a variety of statistical techniques. This paper shows that Fisher’s exact test is appropriate for examining statistical data on peremptory challenges when Batson issues are raised. In addition to being a well-established method, it evaluates the challenges made by each party assuming the other side is fair. Thus, it is consistent with the Supreme Court’s statement in Miller-El that the defendant’s pattern of challenges is not relevant in determining whether the prosecution’s challenges were fair. Although one has the entire population of potential jurors and the number of peremptory challenges, which are regarded a sample from the venire, both the population and the sample are of small size. This limits the power of the test to detect a system in which the odds a minority member is challenged are two or three times those of a majority member. When data is available for similar or related trials, an appropriate method for combining the Fisher tests for each trial is noted. In every case where the Supreme Court found discrimination in peremptory challenges and the data is reported, even though the power of Fisher’s exact test is low, it found a statistically significant difference in the proportions of minority members of the venire and majority members removed. It also finds a statistically significant excess of African-Americans were challenged by the prosecutor in Foster. In a case where the Court did not find bias in peremptory challenges the test did not have sufficient power to detect a substantial disparity, so the Court properly did not give the statistics much weight.

Alabama Chief Justice Roy Moore gets a lot of media attention.  He has forcefully opposed same sex marriage, and earlier in his career was removed from office due to his efforts to place the Ten Commandments in the Courthouse.  Is he a rightwing demagogue as some portray him as?  Perhaps he is more complex than the stereotype.  Chief Justice Moore says the case of a 76-year-man sentenced to life without parole for a drug offense shows the need to change sentencing laws.

In his opinion, Chief Justice wrote:

Moore issued a special writing Friday as the Supreme Court refused to overturn the case of Lee Carroll Brooker. “I believe Brooker’s sentence is excessive and unjustified,” Moore wrote.

Brooker lived with his son in Houston County, and court documents show police found a marijuana-growing operation there during a search in 2013. The elderly man was convicted of drug trafficking last year, and a judge sentenced him to life without parole because of past robbery convictions in Florida. His son was also convicted. Moore writes that the life-without-parole sentence for a non-violent drug offense shows “grave flaws” in Alabama’s sentencing system.

“A trial court should have the discretion to impose a less severe sentence than life imprisonment without the possibility of parole,” Moore added. “I urge the legislature to revisit that statutory sentencing scheme to determine whether it serves an appropriate purpose.”

The full opinion by Chief Justice Moore is available at this link.

Tonja Jacobi (Northwestern University – School of Law) has posted Miranda 2.0 on SSRN.

Here is the abstract:

Fifty years after Miranda v. Arizona, significant numbers of innocent suspects are falsely confessing to crimes while subject to police custodial interrogation. Critics on the left and right have proposed reforms to Miranda, but few such proposals are appropriately targeted to the problem of false confessions. Using rigorous psychological evidence of the causes of false confessions, this article analyzes the range of proposals and develops a realistic set of reforms directed specifically at this foundational challenge to the justice system. Miranda 2.0 is long overdue; it should require: warning suspects how long they can be interrogated for; delivering the warnings via a non-police intermediary, preferably a pre-approved audio-visual recording; recording all interrogations; varying the strength of warnings according to characteristics that make suspects differently susceptible; and reforming and simplifying the rules of waiver. This article establishes why each of these proposals most effectively combats the problem of false confessions and how they can be realistically implemented, without overly burdening police efficiency and efficacy.

In the nomenclature of the American Judges Association, we use the term, “procedural fairness.” Academics sometimes use the term “procedural deterrence.”  There is a very interesting, albeit a bit heavy, new study that supports much of what AJA has advocated since the AJA White Paper on Procedural Fairness.

Kristina Murphy, Ben Bradford and  Jonathan Jackson (Griffith University, University of Oxford – Centre for Criminology and London School of Economics & Political Science – Department of Methodology) have posted Motivating Compliance Behavior Among Offenders: Procedural Justice or Deterrence? (Criminal Justice and Behavior, Forthcoming) on SSRN.

Here is the abstract:

Research shows that procedural justice can motivate compliance behavior through the mediating influence of either legitimacy or social identity. Yet few studies examine the relative importance of these two mediators in the same analysis. Using three waves of longitudinal survey data collected from 359 tax offenders we examine: (a) whether procedural justice is important to offenders’ decisions to comply with their future tax obligations over and above fear of sanctions; and (b) whether legitimacy and social identity processes mediate the relationship between procedural justice and compliance. Our results reveal that: (1) legitimacy mediates the effect of procedural justice on compliance; (2) social identity mediates the procedural justice/compliance relationship; (3) identity seems to matter slightly more than perceptions of legitimacy when predicting tax compliance; (4) perceived risk of sanction plays a small but counterproductive role in predicting tax compliance. We conclude that normative concerns dominate taxpayers’ compliance decisions. Our findings have implications for understanding compliance behavior, but also for conceptualizing why and how procedural justice can motivate such behavior.

Benjamin J. Priester (Florida Coastal School of Law) has posted From Jones to Jones: Fifteen Years of Incoherence in the Constitutional Law of Sentencing Factfinding on SSRN.

Here is the abstract:

With tens of thousands of persons sentenced every year in the United States, the contemporary American criminal justice system places undeniable importance upon the constitutional constraints governing the scope of the permissible and impermissible exercises of factfinding authority by sentencing judges in the course of determining the specific punishment to be imposed upon an individual convicted of a criminal offense. Yet for the past fifteen years the United States Supreme Court has failed to provide doctrinal stability and consistency to this crucial area of constitutional law. Even the most recent decisions, such as Alleyne v. United States (2013) regarding mandatory minimum sentencing provisions, have generated only more unpredictability in the doctrine and more disagreements among the justices’ viewpoints. The path to an enduring doctrinal solution is not readily evident, and the Court’s unwillingness to reach consensus leaves the constitutional law of sentencing factfinding trapped in an ongoing cycle of unpredictability and doctrinal incoherence.