The Prime Minister, Justin Trudeau, today launched the process to select the next justice of the Supreme Court of Canada, who will fill the vacancy created by the upcoming retirement of Justice Rosalie Silberman Abella.

The Prime Minister also announced the members of the Independent Advisory Board for Supreme Court of Canada Judicial Appointments. This non-partisan board is responsible for identifying candidates who are jurists of the highest caliber, functionally bilingual, and representative of the diversity of our country. The seven-member advisory board will be chaired by former Prime Minister Kim Campbell. The advisory board will review applications, and submit a shortlist of highly qualified candidates for consideration by the Prime Minister.

Justice Abella was appointed to the Supreme Court of Canada from the Ontario Court of Appeal in 2004. In recognition of the convention of regional representation, the process will be open to all qualified applicants from Ontario.

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“To appoint the next justice of the Supreme Court of Canada, we are launching an open and independent process that will identify the most exceptional Canadian lawyers and judges, while recognizing regional representation and the diversity of our country. On behalf of all Canadians, I also thank Justice Abella, the court’s longest-serving member, for her leadership, excellence, and dedication on our highest court over the past 17 years.”The Rt. Hon. Justin Trudeau, Prime Minister of Canada

Quick Facts

• Qualifying candidates who wish to be considered for the upcoming vacancy must submit an application package no later than 23:59 Pacific time on April 2, 2021.
• Those interested in applying are encouraged to first review the statutory requirements set out in the Supreme Court Act, and the qualifications and assessment criteria that will guide the advisory board in evaluating a candidate’s suitability.
• Candidates may demonstrate they satisfy the geographical requirement by reference to their bar membership, judicial appointment, or other relationship with the province of Ontario.
• In 2016, the Government of Canada announced a new process for Supreme Court of Canada judicial appointments. It included the creation of an independent and non-partisan advisory board to identify qualified and suitable candidates for appointment to the Supreme Court of Canada.
• The following members have been named to the advisory board:
  • The Right Honourable Kim Campbell (Chairperson): former Prime Minister of Canada and Canadian Consul General, and the Founding Principal of the Peter Lougheed Leadership College at the University of Alberta.
  • Erika Chamberlain: Dean of Law, University of Western Ontario.
  • The Honourable Louise Charron: retired justice of the Supreme Court of Canada.
  • Signa A. Daum Shanks: Professor, Osgoode Hall Law School.
  • David Henry: Chief Executive Officer, Association des services de réhabilitation sociale du Québec.
  • Jill Perry: Managing lawyer, Nova Scotia Legal Aid.
  • Beverley Noel Salmon: former municipal councillor, and Commissioner, Ontario Human Rights Commission.
• Justice Abella will retire from the Supreme Court of Canada effective July 1, 2021.

False confessions though rare do happen. Our visceral reaction is if you confessed you are guilty. After all why would anyone confess, particularly ro a serious crime, if they did not do it. Yet we know false confessions occur. There is an interesting  new article available via SSRN and authored by Andrew Pardieck, Vanessa Edkins and Lucian Dervan. Here is its abstract:

The authors conducted a multi-year psychological deception study in the United States, Japan, and South Korea to gain greater understanding of the phenomenon of false pleas of guilty by the innocent.  The study also explored whether innocent participants would be willing to offer false testimony in return for the benefits of a plea bargain.  Our data indicate that a significant number of individuals are not only willing to falsely plead guilty in return for a benefit, they are also willing to falsely testify against others in official proceedings to secure those advantages for themselves.

This is the first time laboratory research has demonstrated the false plea phenomenon in different countries, cultures, and legal systems.  It is also the first time laboratory research has documented the phenomenon of false testimony in return for the benefits of a plea bargain.  The article also contains information regarding the history of plea bargaining in the United States, Japan, and South Korea, a discussion of the current debate about plea bargaining in each jurisdiction, and a brief review of potential paths forward to address plea bargaining’s innocence problem.

William McNichol has posted Toward A Rational Policy For Dealing With Marijuana Impairment – Moving Beyond ‘He Looked Buzzed To Me, Your Honor’ (McNichol, W.J., Toward A Rational Policy For Dealing With Marijuana Impairment – Moving Beyond “He Looked Buzzed To Me, Your Honor” 45 So. Ill. U. L.J. 1 (2020)) on SSRN. Here is the abstract: This paper examines how marijuana impairment is currently proven, especially in states where marijuana has been legalized under state law. Much of the currently used proofs, and in particular testimony of purported Drug Recognition Experts, and some legislatively imposed standards are scientifically unsound and their use should be discontinued or severely limited. It is recommended that development of a valid biochemical proxy for marijuana impairment should be a priority funding item in states where marijuana is legalized.

For decades sound social science research has shown that the explanation a judge gives for sentencing is a critical factor in achieving procedural fairness. But there are risks. You could say something a bit inarticulate and draw criticism or reversal. There are no easy answers to this dilemma. If it is a thought driving your decision shouldn’t transparency rule the day?

Thanks to Judge Wayne Gorman there is this Canadian decision to tee up the discussion.

R. v. Abdullahi, 2021 ONCA 82, February 8, 2021, at paragraphs 11 to 113:

The appellant is a black man. In considering the fit sentence for the appellant, the trial judge wrote the following as part of his discussion of the need to apply the principles of denunciation and deterrence for offences involving the trafficking of firearms:

Crimes involving the use of firearms that are committed by people of racial minorities, such as the defendants, may lead to stereotypical or other racist attitudes against the minority group at large.

The appellant submits that this comment was an improper basis for increased emphasis on principles of deterrence and denunciation over rehabilitation or mitigating factors. In his factum, the appellant submits: 

The implicit logic of this statement is that crimes committed by members of marginalized communities that align with stereotypes or other prejudicial beliefs about their community are necessarily more serious and merit greater denunciation because they can reinforce bigoted attitudes. Although the intent of this consideration may be well-meaning and motivated by a desire to reduce prejudice, its result is to apply a unique aggravating factor to members of minority groups, and convey that marginalized offenders are responsible for bigotry directed against their communities. Effectively, this would require longer sentences for offenders from marginalized backgrounds whenever they commit crimes that bigots believe their community is more prone to committing, as a punishment for reflecting poorly on their community. This was improper.

I accept the appellant’s submission about the implicit logic of the trial judge’s comment and the risk that it applies a unique aggravating factor to members of minority groups. While I have no doubt that the trial judge made the comment in furtherance of the fundamental purpose of sentencing to protect society and to contribute to respect for the law and the maintenance of a just, peaceful, and safe society, his apparent imposition of a unique aggravating factor on members of minority groups has no place in Canadian sentencing principles. It was an error for the trial judge to have made that statement.

Among all of the states Colorado has a tradition is strong judicial leadership and innovative approaches to there justice system. But in recent days there have been a series of stories by the Denver Post that surely must upset the admirers and supporters of Colorado courts. It has culminated in an editorial that begins “Colorado Chief Justice Brian Boatright has one more chance to reform the Judicial Department; Colorado voters should prepare to force change upon a branch of government that operates in an unaccountable silo”: The Denver Post has published an editorial that begins, “The Colorado Judicial Department is operating in an unaccountable silo where the chief justice of the Colorado Supreme Court wields power without transparency or oversight. The Denver Post has spent two years uncovering evidence of judicial misconduct being hidden from the public. Something must change.”

4 Of 5 U.S. Voters Support Halting Collections During Economic Crisis and Permanently Reducing or Replacing Fines

The Fees & Fines Justice Center is a terrific resource for those concerned about reforming how the justice system approaches fees and fines. So it is not surprising that the Center conducted the first-ever nationwide poll of U.S. voters on fines and fees policies revealed broad support for a wide range of reforms.

“These results show that fines and fees reform isn’t just the right thing to do, it’s also the politically smart thing to do,” said Lisa Foster, Co-Director of the Fines and Fees Justice Center. “Voters want action — and elected officials would be wise to pay attention.”

• 82% of U.S. voters support stopping the collection of fines and fees during the Covid-19 economic downturn. 
• 80% of U.S. voters support reducing or replacing fines for minor violations of the law. 
• 74% of U.S. voters believe everyone should pay for the justice system, not just those charged with a crime.
• 79% of voters believe that government revenue should not depend on making people pay more through fines, fees, and tickets.
• A majority of voters oppose debt-based driver’s license suspensions (51%-45%), with the margin expanding significantly after hearing pro and con messages (57%-41%). 

“These reforms represent significant steps to reduce economic and racial inequality throughout the U.S.,” said Joanna Weiss, co-director of the Fines and Fees Justice Center. “When jurisdictions rely on police and judges to generate revenue through fines and fees, it’s a lose-lose situation for both residents and their government.”

Following the 2008 Recession, state and local governments dramatically increased the number and amount of fines and fees imposed on people for everything from minor traffic and municipal code violations, to misdemeanors and felonies — and used draconian tactics to collect them. This regressive system of taxation is now entrenched in virtually every state, and in municipalities large and small across the country, extracting billions of dollars from our most vulnerable communities.

But over the past few years, dozens of U.S. states and localities have enacted a wide range of fines and fees reforms. Twelve U.S. states from across the political spectrum — including seven states in 2020 alone — have recently passed reforms to end debt-based driver’s license suspensions. Hundreds of jurisdictions have also enacted emergency measures to alleviate the harms of fines and fees in response to the Covid-19 economic crisis.

President-Elect Joe Biden’s platform includes fines and fees reform, while Vice President-Elect Kamala Harris co-sponsored the federal Driving for Opportunity Act, which would incentivize states to end debt-based driver’s license suspensions. 

The public opinion survey was conducted from Sept. 26 to Oct. 12 by the bipartisan research team of FM3 Research and American Viewpoint. 

First-Of-Its-Kind National Poll Reveals Broad Consensus for Fines and Fees Reform

4 Of 5 U.S. Voters Support Halting Collections During Economic Crisis and Permanently Reducing or Replacing Fines

The first-ever nationwide poll of U.S. voters on fines and fees policies revealed broad support for a wide range of reforms.

“These results show that fines and fees reform isn’t just the right thing to do, it’s also the politically smart thing to do,” said Lisa Foster, Co-Director of the Fines and Fees Justice Center. “Voters want action — and elected officials would be wise to pay attention.”

• 82% of U.S. voters support stopping the collection of fines and fees during the Covid-19 economic downturn. 
• 80% of U.S. voters support reducing or replacing fines for minor violations of the law. 
• 74% of U.S. voters believe everyone should pay for the justice system, not just those charged with a crime.
• 79% of voters believe that government revenue should not depend on making people pay more through fines, fees, and tickets.
• A majority of voters oppose debt-based driver’s license suspensions (51%-45%), with the margin expanding significantly after hearing pro and con messages (57%-41%). 

“These reforms represent significant steps to reduce economic and racial inequality throughout the U.S.,” said Joanna Weiss, co-director of the Fines and Fees Justice Center. “When jurisdictions rely on police and judges to generate revenue through fines and fees, it’s a lose-lose situation for both residents and their government.”

Following the 2008 Recession, state and local governments dramatically increased the number and amount of fines and fees imposed on people for everything from minor traffic and municipal code violations, to misdemeanors and felonies — and used draconian tactics to collect them. This regressive system of taxation is now entrenched in virtually every state, and in municipalities large and small across the country, extracting billions of dollars from our most vulnerable communities.

But over the past few years, dozens of U.S. states and localities have enacted a wide range of fines and fees reforms. Twelve U.S. states from across the political spectrum — including seven states in 2020 alone — have recently passed reforms to end debt-based driver’s license suspensions. Hundreds of jurisdictions have also enacted emergency measures to alleviate the harms of fines and fees in response to the Covid-19 economic crisis.

President-Elect Joe Biden’s platform includes fines and fees reform, while Vice President-Elect Kamala Harris co-sponsored the federal Driving for Opportunity Act, which would incentivize states to end debt-based driver’s license suspensions. 

The public opinion survey was conducted from Sept. 26 to Oct. 12 by the bipartisan research team of FM3 Research and American Viewpoint. 

Why is it that some judges are very good at case management and others struggle with a caseload that just keeps rising? Why is it that some judges work until late at night and are in on weekends and others are far more efficient? Perhaps the answer is not enough judicial education has focused on time management. Harvey Mackay is not a judge nor is he a lawyer, but his commentary in the Star Tribune might give you insight into improving your performance as a judge.

By HARVEY MACKAY |JANUARY 31, 2021 — 2:00PMTEXT SIZEEMAILPRINTMORE

“How do you explain the relativity of time?” a professor was asked.

“Well,” she replied, “if I am rushing to catch a plane, and the check-in clerk is so slow that I miss my flight, the extra two minutes don’t mean much to him, but they sure make a difference to me. That’s relativity.”

Time is one gift that we are all given equally. Twenty-four hours a day, seven days a week, 52 weeks a year. The only variable is how many years we each have. And that alone is reason enough to make every minute count.

Have you ever wondered where all your time goes?

The average person spends seven years in the bathroom, six years eating, four years cleaning house, five years waiting in line, two years trying to return phone calls to people who aren’t there, three years preparing meals, one year searching for misplaced items and six months waiting at red lights.

That’s why prioritizing your time should be a top priority.

February is National Time Management Month, a perfect time to develop a plan to ensure that everything you do is moving you in the direction of your goals and limiting the distractions that prevent you from realizing them. Do a quick audit of your day to consider whether you are working hard or smart.

I’m a time-management freak, so anything I can do to save time is important to me. That includes returning phone calls at the end of the day, being specific in leaving messages when I’m available to prevent telephone tag, calling ahead to confirm an appointment and even the best place to park to get going quickly. Time is money. I can get more money, but I can’t get more time.

The value we place on each minute of every day will have a cumulative impact on the remainder of our lives. Maybe that’s why Ben Franklin said, “Waste neither time nor money, but make the best use of both.”

Peter Drucker, the late management guru, said, “Time is the scarcest resource, and unless it is managed, nothing else can be managed.

“Everything requires time,” he added. “It is the only truly universal condition. All work takes place in time and uses up time. Yet most people take for granted this unique, irreplaceable and necessary resource.”

My friend Wally “Famous” Amos sent me this story years ago. A man was working on a Saturday when he realized how he had lost track of his life’s priorities, including spending time with his family. He did a little arithmetic and figured the average person lives about 75 years. He multiplied 75 times 52 and came up with 3,900, which is the number of Saturdays that the average person will live. With his age, he figured if he lived to age 75, he would have 1,000 Saturdays left, so he went to a toy store and bought 1,000 marbles and went home and put them in a large jar.

Every Saturday after that, he took one marble out and threw it away. He found that watching the marbles diminish helped him really focus on the important things in life.

There’s nothing like trying to gauge your time here on Earth to get your priorities straight. When every minute is precious, you learn to use them to the fullest. As humorist Bob Murphey said, “The only person to succeed while horsing around is a bookie.”

A little boy, late for school, asked God to help him get there on time. He ran, stumbled and breathlessly said, “God, I asked you to help me, but don’t push me.”

Don’t let your time push you. Take the time to manage your time.

Mackay’s Moral: You can save time, but you can’t bank it.

Harvey Mackay is a Minneapolis businessman. Contact him at 612-378-6202 or e-mail harvey@mackay.com.

Supreme Court of North Carolina Reverses Convictions Based on Trial Judge Flatly Prohibiting Questions About Implicit Bias to Prospective Jurors

By Evidence ProfBlogger 

An implicit bias is “‘an association or preference that is not consciously generated and is experienced without awareness.’” Michele Benedetto Neitz, Pulling Back the Curtain: Implicit Bias in the Law School Dean Search Process, 49 SETON HALL L. REV. 629, 656 (2019) (quoting J. Bernice B. Donald & Sarah E. Redfield, Framing the Discussion, in ENHANCING JUSTICE: REDUCING BIAS 5, 14 (Sarah E. Redfield ed., 2017)). So, does a court violate the Constitutional rights of an African American defendant by precluding his attorney about implicit bias during jury selection? That was the question addressed by the Supreme Court of North Carolina in State v. Crump, 851 S.E.2d 904 (N.C. 2020).In Crump, Ramar Crump, a African American man, was convicted of 9 counts of armed robbery and second degree kidnapping, 2 counts of possession of a firearm by a convicted felon, conspiracy to commit armed robbery and 2 counts of assault with a deadly weapon with intent to kill. These charges stemmed from a shootout between Crump and police officers.

During jury selection, the trial judge precluded defense counsel from asking prospective jurors about implicit bias, including the following exchange: [DEFENSE COUNSEL]: Now, something else I want to talk about. This one is a difficult one. It’s called implicit bias. It’s the concept that race is so ingrained in our culture that there’s an implicit bias against people of a particular race, specifically African Americans, that people experience. What I’m going to do is I’m going to ask a couple of pointed questions of you all about that…. When you hear the statement the only black man charged with robbery, what’s the first thing that pops into your head?[THE STATE]: Objection. THE COURT: Sustained. [DEFENSE COUNSEL]: Is there anything that pops into your head when I say that statement, any thoughts? [THE STATE]: Objection.THE COURT: Sustained.

The Supreme Court of North Carolina first found that the trial court erred by flatly prohibited questions about implicit bias. The court then found this error was prejudicial and reversible, agreeing with this argument by the defense:

Defendant asserts that he was prejudiced by the trial court’s restrictions on his questioning during voir dire because the jurors’ determination of his guilt or innocence depended upon their resolution of a core factual dispute—who shot first on the night of 29 September 2013, defendant or the police officers—based solely on their weighing of defendant’s and the officers’ competing accounts. Thus, defendant contends that if he had been given the opportunity to assess the jurors’ possible racial biases and opinions regarding police-officer shootings of black men, he would have been able to intelligently exercise his for-cause and peremptory challenges in a manner that would have allowed him to exclude jurors who might impermissibly base their decision to believe one witness and disbelieve the other on improper biases. In addition, defendant emphasizes that the questions he sought to ask were also relevant to other disputed facts considered by the jury at trial, most notably what inference to *916 draw from defendant’s refusal to immediately surrender to law enforcement officers after the shooting.

America’s Broken Legal SystemWednesday, February 17 | 6:00 p.m.–7:00 p.m. ETToo often, the criminal justice system compels innocent people to plead guilty. It disproportionately incarcerates Black and brown Americans, often for relatively minor offenses. Meanwhile, high-level executives are rarely prosecuted or held accountable for much more serious crimes. Jed S. Rakoff, a federal trial judge and an expert on white-collar crime, examines these and other paradoxes in a new book, Why the Innocent Plead Guilty and the Guilty Go Free: And Other Paradoxes of Our Broken Legal System. He will be joined by Hernandez Stroud, counsel in the Brennan Center’s Justice Program, to discuss the shortcomings of the country’s legal system and propose paths to reform. RSVP today.This event is produced in partnership with New York University’s John Brademas Center.

Douglas A. Berman and Alex Kreit (Ohio State University (OSU) – Michael E. Moritz College of Law and Northern Kentucky University – Salmon P. Chase College of Law) have posted Ensuring Marijuana Reform Is Effective Criminal Justice Reform (Arizona State Law Journal, Forthcoming) on SSRN. Here is the abstract: In less than a decade, marijuana legalization has gone from unthinkable to seemingly unstoppable. This essay — written for a special issue on improving Arizona’s criminal justice system — discusses how Arizona should best advance marijuana legalization so that it can significantly improve Arizona’s criminal justice system. Now that Arizona has legalized marijuana via ballot initiative, we do not wade too deeply into the arguments for and against legalization or the criminal justice impact inherent in the repeal of prohibition (such as reductions in marijuana arrests and sentences). Instead, we focus on steps that Arizona policymakers and advocates who are interested in improving the criminal justice system can take to ensure that legalization best advances this goal. First, we set the stage in Part I with a brief history of marijuana prohibition, its role in criminal enforcement today, and the movement to enact state legalization laws. In Part II, we turn our attention to Arizona, beginning with a description of marijuana reform efforts in Arizona and key facets of the Smart and Safe Arizona Act. We then provide recommendations for policymakers and other concerned parties about how to ensure modern marijuana reforms in Arizona (and elsewhere) can and should help build a reform infrastructure that could not only ensure record relief to redress past marijuana convictions but also address broader criminal justice issues that historically intersect with marijuana prohibition.