The Judge’s order is five pages long and well worth reading in its entirety. Many judges….perhaps most judges… never issue a gag order. But there lessons each of us can learn about how to appropriately deal with a litigant like former President Trump. The most important  lesson is DO NOT LOSE YOUR COOL. (caps used  in deference to Truth Social messages). 

Judge Merchan in his order  addresses the importance of protecting the First Amendment rights of political candidates: “Courts are understandably concerned about the First Amendment rights of a defendant, especially when the accused is a public figure … that is because ‘the impact of an indictment upon the general public is so great that few defendants will be able to overcome it, much less turn it to their advantage.” But, he concludes, “The circumstances of the instant matter, however, are different. The conventional ‘David vs. Goliath’ roles are no longer in play as demonstrated by the singular power Defendant’s words have on countless others.”

So what would you do? Feel free to leave a comment. 

Donald Trump launched yet another attack against the daughter of New York Supreme Court Justice Juan Merchan, who is overseeing the trial regarding the former president’s alleged hush money payments to adult film actress Stormy Daniels,” Rolling Stone reports. “The post included photos of Merchan’s daughter… Trump has attacked the judge’s daughter at least three other times in the last week.”

Judges refraining from engaging in partisan politics is imperative. But what should judges do, if anything, when their families become the ire of a litigant? Federal Judge Reggie Walton recently spoke up. https://www.cnn.com/2024/03/29/politics/federal-judge-donald-trump-rebuke/index.html. There was an inordinate amount of media coverage to his remarks but what I strongly suspect is there are thousands of judges who totally agree with him. Our families….and our children…..are off limits.

It was a little covered story and from a legal standpoint not a particularly noteworthy result. But Chief Justice Roberts, in a rare “in-chambers opinion” (a writing accompanying a circuit justice’s solo order), denied emergency relief to Peter Navarro—who had sought to be kept out on bail while he appeals his conviction for contempt of Congress. Chief Justice Roberts’s decision was the first in-chambers opinion since 2014(!). This might this be a good opportunity for all judges to reflect on how they might improve their own judicial practice. Procedural fairness research shows that explanations are an important component to achieving litigant satisfaction. No explanation leaves a litigant to wonder why and that wondering can be destructive. “I lost because the judge was a woman” “I lost because that judge was (or is) a Republican”. Etc. So good for you Chief Justice Roberts!  Hopefully your decision to include an albeit brief explanation will motivate other judges as well.

among the must check blog sites for judges is the Sentencing Law & Policy blog of Professor Doug Berman. The title of a recent post of professor Berman is the title of this new essay appearing in Judicature authored by Jeffrey Bellin. The essaay draws from Bellin’s recent book, “Mass Incarceration Nation: How the United States Became Addicted to Prisons and Jails and How it Can Recover.”  Here is a section from start and from the close of this essay:

While people readily recognize the contributions of legislators, police, and prosecutors to incarceration rates, the role played by judges is obscured by a variety of factors.  One obscuring factor is that the American criminal justice system is not a system at all, but the illusion of a system generated by the interconnected decision-making of a series of independent officials, each with distinct roles.  This independent interdependence makes it hard to hold any single official actor responsible for over-incarceration.  Legislators enact criminal laws, police make arrests, prosecutors charge, and judges sentence; but each actor can point to someone else to explain why any particular individual gets locked up….

While their individual contributions can get lost in the day-to-day bureaucracy of the modern American “system,” judges play a substantial role in how many people are locked up.  And it is helpful to spotlight that role so that judges can be conscientious in assessing their contributions to the country’s incarceration rate and potential role in reducing it….

Of course, judges do not bear sole responsibility for incarceration rates. Mass Incarceration Nation highlights the role of all the officials in the criminal justice system, including legislators, police, and prosecutors, as well as the important role — spanning the book — played by a transient crime spike and the American public’s reaction to that spike. One of the book’s core arguments is that “it takes a village to send someone to prison.”  Every official actor had to cooperate to fill the nation’s prisons.  In a nutshell, that’s what happened.

But the book includes chapters on the important role played by judges.  After all, it is hardly controversial to recognize that judges matter; elevation to a judicial post is a much sought after, and properly celebrated, pinnacle of a legal career.  No one would seek the position if judges didn’t have a substantial influence on the cases that came before them.  Thus, it should be no surprise that judges played an important role in the country’s incarceration explosion.  The good news is that judges can help the country return to its historical norm of low incarceration rates. When that happens, the American criminal justice system will once again be recognized for its best features, not its bloated incarceration rate.

Reuters: “Serious threats to U.S. federal judges have more than doubled over the past three years, part of a growing wave of politically driven violence.” There is no data base about serious threats to state judges nor is it easy to find data on serious threats to Canadian judges. But the absence of data should not undermine our concern about safety.

Many times  when state Supreme Courts make a ruling on independent state grounds based upon that state’s constitution there is some textual difference between the US Constitution and the state constitution. The opinion of the Hawaii Supreme Court begins by stating ” Article I, section 17 of the Hawai’i Constitution mirrors the Second Amendment to the United States Constitution. We read those words differently than the current United States Supreme Court. We hold that in Hawai’i there is no state constituional right to carry a firearm in public.”

 The Supreme Court of Hawaii unanimously ruled this week that the state’s constitution does not include the right to carry a firearm in public. THE ASSOCIATED PRESS Read the opinion. SUPREME COURT OF HAWAII

Sentencing is never an easy task but surely deciding what to do with a teenager or your adult convicted of a brutal crime is a judge’s greatest challenge. The Massachusetts Supreme Court’s new ban on life-without-parole sentences for “emerging adults” under 21 follows a trend over the past decade that has seen more than two dozen states also limit sentences for young adults. BOLTS

A Synthesis of the Science and Law Relating to Eyewitness Misidentifications and Recommendations for How Police and Courts Can Reduce Wrongful Convictions Based on Them

Seattle University Law Review, Vol. 47, No. 1, pp. 1-118 (2023).

Henry F. Fradella

Arizona State University – School of Criminology and Criminal Justice

Date Written: October 27, 2023

Abstract

The empirical literature on perception and memory consistently demonstrates the pitfalls of eyewitness identifications. Exoneration data lend external validity to these studies. With the goal of informing law enforcement officers, prosecutors, criminal defense attorneys, judges, and judicial law clerks about what they can do to reduce wrongful convictions based on misidentifications, this Article presents a synthesis of the scientific knowledge relevant to how perception and memory affect the (un)reliability of eyewitness identifications. The Article situates that body of knowledge within the context of leading case law. The Article then summarizes the most current recommendations for how law enforcement personnel should—and should not—conduct eyewitness identification procedures. Finally, the Article concludes by making law and policy recommendations for handling eyewitness identification evidence in ways that can reduce wrongful convictions.