About kevinburkeaja

Judge Burke is a District Court Judge in Minnesota. In September this year he will become a senior judge. He is a past president of the American Judges Association and currently the AJA treasurer.

What To Do To Enforce Brady

It has been over 50 years since the United States Supreme Court decided Brady v Maryland. Very few lawyers are still practicing who practiced before there decision. And yet we still see Brady violations with some degree of regularity.

Brian MurrayPaul S. Heaton and Jon Gould (Seton Hall Law School, University of Pennsylvania Law School and ASU School of Criminology and Criminal Justice) have posted Qualifying Prosecutorial Immunity Through Brady Claims(Iowa Law Review, Vol. 107, 2021-22) on SSRN. Here is the abstract: This Article considers the soundness of the doctrine of absolute immunity as it relates to Brady violations. While absolute immunity serves to protect prosecutors from civil liability for good-faith efforts to act appropriately in their official capacity, current immunity doctrine also creates a potentially large class of injury victims—those who are subjected to wrongful imprisonment due to Brady violations—with no access to justice. Moreover, by removing prosecutors from the incentive-shaping forces of the tort system that are thought in other contexts to promote safety, absolute immunity doctrine may under-incentivize prosecutorial compliance with constitutional and statutory requirements and increase criminal justice system error.

The Article seeks to identify ways to use the civil justice system to promote prosecutorial compliance with Brady, while recognizing the need to provide appropriate civil protections to enable prosecutors to fulfill their unique role within the criminal justice system. After developing a novel taxonomy of Brady cases, evaluating such cases against basic tort principles, and considering the prosecutorial community’s views regarding appropriate Brady remedies, it proposes a statutory modification of absolute immunity that might better regulate and incentivize prosecutor behavior, reduce wrongful convictions, and improve access to justice.

What Is An Excessive Fine?

Seven Questions to Ask After Timbs

The title of this post is the title of this new paper authored by Wesley Hottot which is available on SSRN.  Here is its abstract:

This Article explains how Timbs v. Indiana does more than hold that the Eighth Amendment’s Excessive Fines Clause applies to state and local authorities.  Timbs also gives definition to those “excessive fines” the Constitution guarantees “shall not be . . . imposed.”

This definition emerges when Timbs is read alongside three other decisions: (1) Austin v. United States — the Supreme Court’s decision holding that forfeitures are “fines” within the meaning of the Excessive Fines Clause; (2) United States v. Bajakajian — the only other case in which the Supreme Court has applied the Excessive Fines Clause; and (3) the Indiana Supreme Court’s decision on remand in Timbs, which surveys all available case law and adopts a helpful framework for determining excessiveness.  TimbsAustin, and Bajakajian, when combined with examples from federal circuit courts and state high courts, represent a cogent standard for excessiveness.  This emerging standard can be summarized using the familiar “five W’s (and one H).”

There are seven salient questions: Who committed what offense; when and where; what property is the government taking; how was that particular property involved in the offense; and why does the government want it?  By answering these questions based on all the evidence, courts can determine whether a fine or forfeiture is excessive.

Like the five Ws, the seven questions of excessiveness are open-ended by design.  The meaning of “excessive fine” has been open ended and fact-specific for a long time.  The Eighth Amendment’s standard can be traced through centuries of Anglo-American law.  Yet, the standard has never been reduced to strict factors, rigid formulae, or balancing tests. Instead, the “fundamental” and “deeply rooted” right against excessive economic sanctions requires courts to focus on all the circumstances of a particular offense and particular offender.  Each case is viewed holistically, considering what punishments are available, those already imposed, the effect that additional economic penalties will have on the offender and her community, the government’s motivations, examples in case law, and the historical purposes of the protection against excessive fines.  The rich history of that protection, as Timbs makes clear, is key to understanding the meaning of both the Excessive Fines Clause and the Fourteenth Amendment that makes it applicable to state and local government (like virtually all Bill of Rights protections).

Each of the seven questions is explained with reference to the excessiveness standard announced on remand in Timbs, relevant Supreme Court decisions, and examples from lower courts shedding additional light.  The result is an Eighth Amendment excessiveness standard with contours and shape but little in the way of firm boundaries.  Others have proposed a balancing test; this Article proposes an open-ended inquiry that should be allowed to develop on a case-by-case basis.  Put differently, I regard the indeterminate nature of the excessiveness inquiry as a feature, not a bug, of constitutional design.

The Confrontation Clause

Jeffrey Bellin and Diana Bibb (William & Mary Law School and College of William and Mary – William and Mary Law School) have posted The Modest Impact of the Modern Confrontation Clause (Tennessee Law Review, Forthcoming) on SSRN. Here is the abstract: 

The Sixth Amendment’s Confrontation Clause grants criminal defendants the right “to be confronted with the witnesses against” them. A strict reading of this text would transform the criminal justice landscape by prohibiting the prosecution’s use of hearsay at trial. But until recently, the Supreme Court’s interpretation of the Clause was closer to the opposite. By tying the confrontation right to traditional hearsay exceptions, the Court’s longstanding precedents granted prosecutors broad freedom to use out-of-court statements to convict criminal defendants.

The Supreme Court’s 2004 decision in Crawford v. Washington was supposed to change all that. By severing the link between the Sixth Amendment and the hearsay rules, Crawford “ushered in a revolution in the world of evidence and criminal prosecutions.” But the excitement did not last. Shifting majorities filled in the details of Crawford’s lofty rhetoric, muddying the distinction between the new jurisprudence and what had gone before.

This Article takes stock of the “Crawford Revolution.” First, it explores changes in confrontation doctrine since 2004 and examines, as a theoretical matter, how those changes map onto the state and federal hearsay exceptions that Crawford purportedly rendered irrelevant to constitutional analysis. This interplay between the hearsay rules and the Confrontation Clause is critical. The constitutional right would seem to have little significance if all it does is bar evidence that is already forbidden by nonconstitutional hearsay rules. Second, the Article reports the results of a novel empirical survey designed to test the theory by carefully cataloguing the hearsay pathways that generated Confrontation Clause challenges in hundreds of federal and state cases. The findings reveal an underappreciated role of the modern confrontation right, and changes to that role after 2004.

Consent To Search

It takes a certain amount of “guts” to tell a police officer that no I will not consent to your search of my car or person or house. What will happen to me if I say no?

Norman Hobbie has posted Fourth Amendment Consent Searches and the Duty of Further Inquiry (Creighton Law Review vol. 54, no. 2, pg. 227-268, March 2021) on SSRN. Here is the abstract:

Consent searches, presently justified on arguably weak grounds, account for nearly ninety percent of all warrantless searches. Though scholars debate whether the Fourth Amendment bars consent searches, the Supreme Court of the United States has continued to reaffirm the constitutionality of such searches. Under current doctrine, third parties, often without actual authority, are able to consent to a search of another’s premises. Yet, if doubt endures over whether an individual possesses adequate authority to offer consent, officers may have to engage in further inquiry to resolve whether sufficient authority exists.

With little guidance offered as to what this further inquiry entails, there is currently a split among the circuits as to the dimensions of this directive. On one end of the split, some circuits require that if ambiguity exists over authority, a duty of further inquiry is triggered. The other circuits, by contrast, have either expressly rejected the application of the duty, or have yet to take a position on the issue. This Article’s first contribution is to adopt the United States Court of Appeals for the Seventh Circuit’s view of the duty of further inquiry. Thus, when officers are faced with other equally plausible possibilities for a consenting party’s authority, officers have a duty of further inquiry. This Article’s second contribution is to clarify and augment the Seventh Circuit’s approach. This Article modifies and defines the ambiguity threshold triggering the duty of further inquiry and delineates the substance of that inquiry.

Are Zoom Trials Fair & Effective?

For proponents of Zoom hearings the answer is Zoom hearings….indeed virtual jury trials…..are a magnificent by product of courts trying to respond to the pandemic. But are they really fair and effective. The Atlantic magazine explores the issue:

illustration of pixellated person taking oath with one hand raised

SOMNATH BHATTThis article was published online on April 13, 2021.In july, Michelle Rick, then a circuit-court judge in two Michigan counties, tweeted cheerily about a divorce she’d recently finalized. The participants had appeared in court via their smartphones. “He was on the road & parked his car to attend; she video-tx’d from her work breakroom,” the judge wrote. They were done in 15 minutes—faster than the proverbial Reno divorce.  For the full story in the Atlantic see: https://www.theatlantic.com/magazine/archive/2021/05/can-justice-be-served-on-zoom/618392/

Language Counts

From the Sentencing Law & Policy Blog

The Marshall Project unveils “The Language Project” to explore words used to describe people in the justice system

As a lawyer who thinks precise language and legal terminology is always important, and as a blogger who often hopes to avoid clumsy locutions and sometimes parrots and reprints journalistic word conventions, I am always interested in debates over the array of words we use in describing the criminal justice system and the people connected to it.  These debates are heating up as interest in criminal justice reform heats up.  Indeed, as some readers surely know, even the term “criminal justice system” is a matter of debate; many now speak of the “criminal legal system” in an effort to undercut any suggestion that the current system helps to achieve “justice.”

Against this backdrop, I am quite intrigued to see that The Marshall Project has unveiled today “The Language Project,” which it sets up this way:

Reporters and editors have long believed that terms such as “inmate,” “felon” and “offender” are clear, succinct and neutral.  But a vocal segment of people affected by the criminal justice system argue that these words — and any other words that define human beings by their crimes and punishments — are dehumanizing.

The Marshall Project occupies a unique space in criminal justice reporting.  We are not an advocacy organization, but we are committed to sustaining a sense of national urgency about the U.S. criminal justice system.  As a result, fellow journalists often ask us about our style and standards around the language of criminal justice, and activists we meet frequently confront us about our usage of words such as “inmate.”

The Marshall Project began addressing this issue in 2015, our second year of existence, but we did not make a decision to change our style guide.  Since then, through our deepening engagement with formerly and currently incarcerated people, we have realized the urgency of examining and articulating the language we use.

The Language Project serves three purposes.  First, through a series of powerful pieces by and about people with intimate experience with incarceration, we show the human impact of the words we choose.  Second, our guide, “What Words We Use — and Avoid — When Covering People and Incarceration,” makes public our decision to avoid labels such as “inmate,” in favor of language that follows the logic of “person-first” language.  Third, we provide alternatives to the labels.

At its heart, journalism is a discipline of clarity. The Language Project is our attempt to set the record straight.

Here are links to the first set of pieces in this notable new “Project”:

Thoughts From Greg Berman


Greg Berman was for many years the force that drove the Center for Court Innovation. He is a very insightful guy. I got this e mail from him recently…..he has stepped down from his leadership role at the Center…..and I thought it should be shared.

I am writing to share some of the writing I have been doing of late, which has largely focused on the challenges confronting nonprofit leaders and criminal justice reformers.  This includes the latest in the series of interviews I am doing for the Harry Frank Guggenheim Foundation on the surge in violence in New York City.

“People Who Do Hurtful Things Are Reacting to Hurtful Things”: A Conversation with Marlon Peterson

Man Plans, God Laughs: How Not to Reform the Criminal Justice System 

Hard Choices: How Can the “Nonprofit Industrial Complex” Do Better?

A View from the Future: Questioning the Conventional Wisdom in Criminal Justice

Greg Berman was for many years the force that drove the Center for Court Innovation. He is a very insightful guy. I got this e mail from him recently…..he has stepped down from his leadership role at the Center…..and I thought it should be shared.

Covid and Caseloads

The National Center for State Courts (NCSC) recently published a new paperand dashboard detailing trends in state court case filings and dispositions during the Covid-19 pandemic.
 
The research, based on data from 12 states, found that the number of criminal, traffic, and juvenile cases decreased last year and is likely to return to normal over the course of 2021. However, NCSC did not expect a surge in these types of cases because there was a widespread decline in criminal incidents, traffic incidents, and arrests since the outset of the pandemic.
 
The number of case filings in civil cases, on the other hand, is expected to surge according to NCSC, especially for cases dealing with eviction, foreclosure, and debt-collection, due to the economic downturn brought on by the pandemic. The number of juvenile dependency and domestic relations cases is also expected to surge as more children return to school and people become more mobile and able to leave their current living situation.

Just What Happened In The Presidential Election?

Join us for an important webinar on 
The Role of the Judiciary in Preserving Our
Constitutional Democracy
As Seen in the 2020 Presidential Election
Thursday, April 15, 2021
Noon to 3:30 p.m. Pacific / 3 p.m. to 6:30 p.m. Eastern
Register now
Despite scores of failed legal challenges, numerous recounts, and Congress’ confirmation of Joe Biden’s Electoral College victory, polls showed that a large majority of people who voted for Donald Trump for president in 2020 believed Mr. Trump’s claim that the election was stolen.

In a free society, people have a right to their own opinion. But we rely on the courts for findings of fact.

This no-cost webinar will examine how dozens of judges fulfilled their obligation to rule impartially on these challenges and what we as members of the judiciary can do to preserve judicial independence.

The program will begin with introductory and welcoming remarks by American Judges Association President Peter Sferrazza.

Berkeley Law Dean Erwin Chemerinsky will discuss cases that were considered by or appealed to the United States Supreme Court.

National Judicial College President Benes Aldana will moderate a panel of experts on the challenges filed in four key states:Nevada: Attorney General Aaron Ford, who defended challenges to the state’s election resultsGeorgia: Professor Neil Kinkopf, former staff member for the Senate Judiciary CommitteeArizona: Retired Arizona Chief Justice Scott Bales, who taught election law at Arizona law schools before joining the state’s Supreme CourtPennsylvania: Attorney Mark Aronchick, who represented Pennsylvania governmental interests in more than 25 cases in federal and state courts during the 2020 election cycle, at trial and during appeals
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This webinar is presented free of charge in collaboration with the American Judges Association (AJA), National Center for State Courts (NCSC), and The National Judicial College (NJC).