The lessons of the Bowe Bergdahl case. Elected officials—especially President Trump—should stay out of military prosecutions. WASHINGTON POST

Do you want to get an overview of changes in criminal law in the United States? Robert Alt has  this  publication from The Federal Society   Here is how it gets started:

In 2019, state legislatures across the country modified rules and procedures related to every part of the criminal justice system, from pretrial detention to post-sentence re-entry.  States passed new legislation and amended their criminal codes addressing a range of criminal justice concerns.  A review of the legal landscape shows that states were most willing to adjust their criminal laws related to sentencing, record expungement and offender registries, marijuana legalization, and felon reenfranchisement.  This paper is not intended to serve as an exhaustive list of new criminal justice legislation in 2019, but rather highlights the most common reforms that fall generally among those categories.

As in 2018, criminal justice laws enacted in 2019 did not take a singular approach.  Some states, for example, significantly enhanced penalties for certain offenses, while others reduced sentences and repealed mandatory minimums.  Alaska adopted comprehensive criminal justice legislation that included repealing “catch and release” pretrial protocols, even as New York all but ended its pretrial detention and cash bail system.  Three states revised rules for offender release and re-entry, and two states continued the national trend of restricting civil asset forfeiture and making the process more transparent.  A handful of states amended their treatment of juvenile offenders, and several more stopped suspending driver’s licenses for unpaid fines and court costs.

Support for and opposition to criminal laws and punishments do not tend to break along traditional partisan lines. Although some legislative reforms proved to be politically contentious, including New York’s bail reform and Florida’s new re-enfranchisement requirements, others were largely bipartisan efforts wherein legislatures and governors from both ends of the political spectrum reached tenable compromises. Some legislatures even passed measures unanimously.

Professor Mark Osler is a friend and so extolling his work comes easy. The War on Drugs was from the start a bad metaphor as well as ill thought out policy. Mark has  this notable new paper now available via SSRN  Here is its abstract:

The War on Drugs is effectively over.  Drugs won.  This essay addresses some of the mistakes we made in that futile effort.  Allowing racism to motivate action and impede reform was a primary error.  So was failing to understand that narcotics crime is simply different than other types of criminalized behavior in several fundamental ways. 

In whole, we largely addressed the narcotics trade as a moral failing rather than a market — and never got around to recognizing the size and shape of that market or to using market forces to control it.  Ronald Reagan compared the War on Drugs to the Battle of Verdun, and he was right: fortunes were spent, many lives were lost, and nothing really changed.

Understandably we tend to focus our attention on the strengths and weaknesses of our own system of justice. But to fully appreciate what the United State & Canadian justice systems have understand what other nations don’t have gives us perspective.

In a quest for a fair trial, Adv. Ebru Timtik has passed away on the 238th day of her death fast in detention ward of Istanbul Sadi Konuk Training and Research Hospital.

Imprisoned lawyers Ebru Timtik and Aytaç Ünsal from the Progressive Lawyers Association (ÇHD) in Turkey started a hunger strike action on 3 February 2020, in protest of the long jail sentences they have been sentenced to for “membership of a terrorist organisation”. On 5 April 2020, Ebru Timtik and Aytaç Ünsal turned their hunger strike into a ‘death fast’ in protest of the long jail sentences they have been sentenced to. They are asking for their appeals to be considered by the Court of Cassation immediately.

On 30 July 2020, the İstanbul Forensic Medicine Institution concluded that  health condition of Ebru Timtik and Aytaç Ünsal was not suitable to remain in prison. Despite the medical report, Istanbul Court dismissed a request for their release and ordered them to be taken to a hospital detention ward instead. 

Unfortunately on the 238th day of her death-fast Ebru Timtik has passed away while her appeal is pending before the Court of Cassation. Despite the calls by hundreds of lawyers across the world, the Turkish Court of Cassation has made their appeals waiting. 

Aytaç Ünsal’s condition remains critical. 

There is a lot of material available about the career of Supreme Court Justice Ruth Bader Ginsberg. If you are interested in a short but very entertain video “When Your Boss is Notorious: Clerking for Ruth Bader Ginsburg.”Bloomberg Law posted this video on YouTube.

From the Brennan Center

On Wednesday, August 26, 2020, 6:22 AM, Ken Pope <ken@kenpope.com> wrote:Psychology, Public Policy, and Law has scheduled an article for publication in a future issue of the journal: “Making the Case for Videoconferencing and Remote Child Custody Evaluations (RCCES): The Empirical, Ethical, and Evidentiary Arguments for Accepting New Technology.”
The authors are Milfred D. Dale & Desiree Smith.
Here’s how it opens:

The impact of the COVID-19 pandemic on the child custody evaluation (CCE) community has been astounding and immediate. In March, April, and May of 2020, state and local governments and courts began issuing safe-at-home and social distancing proclamations. Provision of in-person mental health services was discouraged as unsafe (Chenneville & Schwartz-Mette, 2020). These pronouncements required evaluators to quickly learn what technology could be used and how to use it to finish incomplete evaluations or meet the demands of court orders for new evaluations. While the capability of providing behavioral health services with telecommunication technologies has been extended to virtually all clinical aspects of behavioral and mental health practice, such as assessment, consultation, psychoeducation, and treatment (Luxton, Nelson, & Maheu, 2016), utilizing these technologies in parenting plan evaluations had not been a serious topic prior to the COVID-19 pandemic. That has changed. This article examines the feasibility of remote child custody evaluations (RCCEs) both during the pandemic and beyond.
The COVID-19 pandemic has pushed an entire professional community to consider whether videoconferencing (VC) can be paired with custody methods and procedures to produce valid, reliable, and trustworthy results. For each component methodology of a comprehensive CCE that would usually require in-person contact, the best practices for using VC and the available empirical research are used to illustrate when VC is acceptable and when it is not. In a completely remote CCE, VC is used to conduct interviews of the adults and children, to conduct psychological testing (to the extent possible), and to conduct parent–child observations. RCCEs retain elements of in-person CCEs such as document retrieval and review and contacts with third-party collaterals—usually by telephone. In order to conduct an RCCE, an evaluator must be competent in both VC use in a professional relationship and in the methodological demands of properly conducting a CCE. However, not every task can be delivered via VC, not every case is appropriate for remote evaluation, not every party or child will agree to using the technology, and not every evaluator will embrace this new approach. Yet progress in a professional specialty like child custody, that looks to science for guidance, is often about generalizations where conclusions obtained in a laboratory or slightly alternative setting are developed, then transported and applied elsewhere in environments that may differ from that in the laboratory or alternative setting (Pearl & Bareinboim, 2014). This is an opportunity to do just that.
This effort is not an attempt to fundamentally alter current CCE processes but to extrapolate and accept the lessons learned about VC use in other areas of psychology in the CCE context. Using VC can enable RCCEs to be viewed as an alternative with an array of possible applications, including situations where COVID-19 or other issues require social distancing, as well as situations where other factors (e.g., access to justice, financial considerations, and resource availability) otherwise limit the choices available to families and the court. It is also possible that a family could choose to have their evaluation conducted remotely using VC for reasons entirely their own.
These issues are of interest to evaluators making decisions about whether to use VC and to conduct RCCEs. These issues are of interest to attorneys as they advise and represent their clients in various contexts including but not limited to litigation. These issues are also of interest to courts and judges who must decide whether an RCCE will help the court, under what circumstances this approach may or may not work, and how to weigh the data generated via VC. Finally, these issues are also of interest to the parties—and ultimately their children—as they weigh the considerations and factors associated with various dispute resolution alternatives and, when necessary, their access to the authority of the court for problem solving.

Here’s the abstract: “The COVID-19 pandemic and its requirements for social distancing and limited, if any, in-person contact have forced the child custody community to consider remote child custody evaluations (RCCEs) conducted through videoconferencing. CCEs are perhaps the most complex of all forensic evaluations, requiring complex, multifaceted assessments of multiple parties and their relationships in order to address the best interests of the child. Attempting these evaluations via videoconferencing should be done carefully and only after consideration of numerous factors, including whether this alternative can be safely and reliably accomplished. This article outlines the conceptual approach used by the child custody community for determining the foci of the evaluation, tailoring data collection via multiple methodologies, and analyzing the data. The article reviews the empirical literature demonstrating that professional relationships and various clinical and forensic processes have reliably and successfully used videoconferencing with adults, children, and different clinical and forensic populations. The article also outlines how evaluators conducting RCCEs must comply with the ethical demands of their discipline or profession, as well as ethical demands unique to remote service delivery. Finally, the article addresses how evaluators can prepare for challenges to their work that are based upon the standards for admissibility of expert witnesstestimony. The limitations of videoconferencing, including limitations specific to the demands of RCCEs, are also reviewed.”
Here’s the concluding passage: “This article details the growth of the telemedicine and telemental health communities over the past 10 to 15 years from an alternative to reach underserved populations to an alternative within the mainstream mental health professions. This growth is mainly a story of successful applications across people of different ages, different clinical and forensic populations, and different clinical and forensic tasks. In the absence of a vaccine for COVID-19, it is difficult to think of safe mental health service delivery without accommodations. Properly conducted RCCE may be a necessary safe substitute for in-person processes. There are limitations and situations where VC may not be a safe alternative, but the child custody community—for example, courts, attorneys, evaluators, and families—should accept RCCEs as a valid alternative that, when properly done, can help resolve custody disputes.”

TO OBTAIN A COPY OF THE ARTICLE: Contact info for reprint requests and questions or other correspondence about this article: drbuddale@outlook.com 

Thanks to the “tip” from Minnesota District Court Judge Judge TJ Conley      DALLAS — The jurors appeared on screen from their living rooms, bedrooms and home offices. Juror 11 took notes as a sheriff’s deputy testified about giving a speeding ticket. Juror 18 occasionally looked away as a white cat scampered across her couch.They gathered on a video conference call Tuesday in what Texas court officials said is a national first — a virtual jury trial in a criminal case.“You’re here today for jury duty in a different way,” Judge Nicholas Chu said at the start of the trial. “That’s jury duty by Zoom.”The Travis County misdemeanor traffic case is the latest experiment in how to resume jury proceedings in a criminal justice system that’s been crippled by the coronavirus pandemic. It was greeted by lawyers and legal experts as a low-risk step forward, but one that could imperil defendants’ rights.Nationwide, the virus has put many court cases on indefinite hold and left some defendants in jail longer, possibly exposing them to outbreaks. It has forced judges to hold hearings via video conference and even led the Supreme Court to hold oral arguments by phone for the first time in its history.In Texas, fewer than 10 jury trials have been held since state courts resumed in-person proceedings in June, according to Megan LaVoie, a spokeswoman for the state judicial branch. She said Tuesday’s case was picked as the first criminal jury trial to be held virtually in the U.S. because both sides agreed and it was “ready to go.”The trial of Calli Kornblau, an Austin-area nurse charged with speeding in a construction zone, was broadcast live on YouTube. At some points, there were more than 1,000 people tuned in to hear testimony about traffic rules and the workings of police laser speed readers. For the rest of the story by the Washington Post https://www.washingtonpost.com/health/texas-court-holds-jury-trial-in-traffic-crime-case-over-zoom/2020/08/11/5d0c60a6-dc35-11ea-b4f1-25b762cdbbf4_story.html

By CrimProf BlogEditor  Orin S. Kerr (University of California, Berkeley School of Law) has posted The Questionable Objectivity of Fourth Amendment Law (Texas Law Review, Forthcoming) on SSRN. Here is the abstract: The Supreme Court often insists that Fourth Amendment rules must be objective. The doctrine should focus on what police officers do, not what they are thinking when they do it. Recently, however, Fourth Amendment law’s objective façade has begun to crack. In a series of cases, the Supreme Court has introduced subjective tests. Fourth Amendment law is now best understood as a complex mix of subjective and objective tests. The Justices have not offered a clear explanation for why they use objective rules in some cases and subjective rules in others. But it should be clear that the Justices are making a choice, and that both subjective and objective approaches are in play.

This Article identifies the Supreme Court’s recent turn to subjective rules and offers a normative framework for the choice between subjective and objective tests in Fourth Amendment law. It begins by reviewing existing caselaw and showing how it often hinges on an officer’s subjective state of mind. The Article then offers a framework for choosing between objective and subjective tests. Subjective approaches can permit courts to craft narrower rules that better distinguish harmful from beneficial police practices. But the benefits of subjectivity depend on whether harms track subjectivity and whether states of mind can be determined reliably. To best achieve the aims of Fourth Amendment law, courts should consider in each context the civil liberties benefit of narrowing doctrine in light of the risk that a subjective test will be misapplied.

Should judges attend Black Lives Matters protests? there are many judges who might privately hold sympathetic views but a lot more are likely to be reticent about public expressions of support. From the Baltimore Sun:

Quietly in Maryland, institutional pushback has surfaced against the national resurgence of the Black Lives Matter movement and calls for justice reform in the wake of George Floyd’s killing by police in Minnesota. Eye opening to me, a veteran Baltimore City public defender and a former candidate for Baltimore Circuit Court judge who’s all too familiar with institutional racism and police misconduct, were a couple of recent actions to come out of our court system.

For starters, the Maryland Judicial Ethics Committee published an opinion at the end of July telling judges not to attend Black Lives Matters events. The committee is made up of nine judges, a lawyer and three lay people. On its face, the opinion might seem sensible. “The Maryland Code of Judicial Conduct repeatedly uses “independence, integrity and impartiality” as bench marks for our judges to act in a neutral way. Unfortunately, too many judges wear their biases on their robes. Whether it’s a disdain for public defenders because of our typically poor, Black clientele or a buddy-buddy relationship with state’s attorneys, it comes across both ways in my experiences.Ethics panel: Maryland judges should not attend Black Lives Matter events »

It seems as if the ethics committee endorsed the false notion of Black Lives Matters existing as a radical, fringe movement wishing harm upon police officers. Black Lives Matters, in reality, seeks to remind us of the value of a Black life. It recognizes the mistreatment of Black people by law enforcement, but that doesn’t necessarily equate with anti-police. The opinion expresses concerns that judges might appear in photos where protesters carry signs reading “Defund the Police” or “I Can’t Breathe.” The horror!

Seems like judges have to quarantine for good. No more Spike Lee or Ava DuVernay movies. And forget about having family or friends participate in such controversy. Is it really that radical to oppose murder? Is it overtly one-sided to rebuke racism? Even the late conservative Supreme Court Justice Antonin Scalia once wrote an opinion in favor of judges expressing their legal philosophies during contested elections. Justice Scalia essentially said that every judge comes to the job with preconceptions and none have a blank slate. Let’s hope judges don’t hold potential jurors to these same uncompromising standards whenever jury trials resume.

If the Black Lives Matters ban has merit for you, juxtapose it with the ethics committee’s previous two opinions. In May, the panel took up the question of whether judges could take part in swearing in ceremonies of state’s attorneys who will practice before the court. The answer is that this long-established practice, typically involving judges who were former state’s attorneys, can continue. It is kosher for a judge to give a public speech and words of wisdom to new prosecutors in the very courtrooms where they will dispense justice. While there is no comparable ceremony for public defenders or private criminal defense attorneys, this implies a bias.

More troubling, in April, the committee decided that judges are not required to recuse themselves from proceedings where they have received a campaign contribution from an attorney involved in the matter. They can assess it case by case. Yeah, right. In my experience, those lawyers who donate to judges’ campaigns not only appear before the very judges they support, but they get their cases called quickly and are usually warmly greeted by the judge. Prosecutors (and defense attorneys) not only give money to the sitting judges’ campaign, they help run it — and they still practice before the judges. Lawyers and judges even pose in campaign pictures together. Seems hypocritical when compared to the Black Lives Matter ban.

Meanwhile, in a recent federal court hearing regarding the consent decree requiring the Baltimore Police Department to correct unconstitutional practices, the judge in charge of the process declared that defunding police is not an option. Wow. The judge is concerned that with less money the police department will not be able to pay for reforms that are a part of the 2017 agreement between the city and the federal government. Namely, the decree calls for increased hiring. Then why not restructure or redo it? The decree is premised on an outdated model that feeds the beast of failed policing (still demonstrated regularly by Baltimore police) instead of investing in mental health experts, domestic violence specialists, diversion tactics and more community-based policing.Federal judge overseeing Baltimore Police consent decree says ‘defunding the police’ is not an option »

Finally, the Maryland Court of Special Appeals, in a July ruling, acquiesced to the infamous Law Enforcement Officers’ Bill of Rights by saying that 15 internal affairs complaints against Baltimore police officers should be tossed out because of a technical mishap on the part of the department. The department didn’t officially charge the complaints in the right amount of time. The court blamed the police department for not following its own practices in charging as required by the bill of rights. But the court ignores whether the bill of rights is correctly interpreted by the police department in the first place and, of course, never questions why the department polices itself. It’s almost as if the department sandbagged the 15 complaints by delay, knowing that they’d be dismissed in court.

We should all pay attention to Black Lives Matters and truly invest in institutional reform in the justice system. It’s clear the opposition such efforts will face.

Todd Oppenheim is a Baltimore City public defender and former candidate for candidate for city circuit court judge. The opinions in this article are his own. Twitter: @Opp4Justice.