Every trial judge is confronted with similar challenges. Presiding over cases with really good lawyers who are great writers and accomplished orators is frankly pretty easy…….yes it is even fun. But how do you effectively deal with the other end of the spectrum? Poorly prepared lawyers and or self represented litigants who regularly appear before you can make even the best trial court judge think about the benefits of being on an appellate bench appointment.

So let’s try a simple example and share our thoughts and expertise. A landlord appears before you semi regularly and pretty consistently makes mistakes but when you point out that, for example, service is not proper the retort is “Court administration told me this is what I should do.” Attacks on court employees is one of the triggers that upset you. How should a good trial judge handle this situation.

Please post your thoughts

From The Sentencing & Policy blog: The title of this post is the title of this recent article by Michael O’Hear posted a couple months ago to SSRN. Here is its abstract:

The Eighth Amendment prohibits “excessive fines,” but what exactly does “excessive” mean?  The question has taken on some urgency in recent years as American legislatures have sharply increased the economic penalties associated with criminal convictions.  In 1998, in United States v. Bajakajian, the Supreme Court for the first time established a test of sorts to determine whether an economic penalty is “excessive” in violation of the Eighth Amendment.  The test was not without its ambiguities but offered some potentially robust protection against the rising tide of fines, fees, forfeiture, and restitution.  However, the promise of Bajakajian has been undermined in the lower courts.

This Article presents the first systematic analysis of how Bajakajian has been interpreted and applied by the federal circuit courts of appeals.  The Article shows that, at practically every turn, the circuit courts have adopted narrowing interpretations of Bajakajian, which have largely negated the practical significance of the Eighth Amendment ban on excessive fines.  Indeed, in some important respects, the circuit-court opinions more closely resemble the dissenting than the majority opinion in Bajakajian.  The Article concludes with a consideration of what the Supreme Court might do in response to the circuit-court cases, from acquiescence to simple reaffirmation of Bajakajian to the development of an even more robust and easily enforceable approach to the Eighth Amendment right. 

Jenia Iontcheva Turner (Southern Methodist University – Dedman School of Law) has posted The Emerging Constitutional Law of Remote Criminal Justice (Wake Forest Law Review, Vol. 59, No. 3, 2024) on SSRN. Here is the abstract:

The COVID-19 pandemic compelled courts to experiment with a novel mode of criminal process: conducting proceedings via video. The remote format helped protect public health during the pandemic, and its convenience has led many states to continue using it in certain circumstances. Yet questions about its desirability and constitutionality have lingered, and many are concerned that it undermines the justice and integrity of criminal proceedings.

As the future of remote criminal justice is up for debate, it is important to assess to what degree it complies with fundamental constitutional principles. To that end, this Article offers a comprehensive analysis of cases addressing due process, confrontation, and right to counsel challenges to remote criminal proceedings. It analyzes courts’ reasons for granting or denying such challenges in decisions rendered by state and federal courts in 2020-23. The Article evaluates the decisions in light of relevant empirical research and then offers a framework to guide the emerging doctrine. It identifies several areas in which constitutional doctrine needs to be elaborated to provide greater transparency, predictability, and fairness. A coherent framework, informed by both research and precedent, can help ensure that the use of novel technologies to conduct criminal proceedings remains consistent with constitutional values.