Thanks to the Brennan Center there is a very interesting piece on judicial ethics in the states.

Charles Gardner Geyh, a law professor at Indiana University, offers a deep dive into the history of judicial ethics and discipline in the states, providing broader context to the U.S. Supreme Court’s recent adoption of a code of conduct. “Essential to any reform effort is the need for state judicial systems to internalize more fully that rigorous investigation and remediation of judicial misconduct is indicative not of a system in trouble, but of a system in good repair,” he writes. READ MORE

The vast majority of AJA members are either state trial court or Canadian trial court judges. But the media those judges deal with frequently also cover federal courts. So do you want to help the media get better at their job? Tell them about this very good program.

COVERING MAJOR CRIMINAL CASES: some basics for members of the press

Covering any criminal case, much less a major case, is a daunting challenge for any member of the press. This is especially true in high-profile cases.
Berkeley Judicial Institute’s January 19 program is open to the public, and geared toward helping the press do their important work. January 19, 2024Noon PTVirtual75 minutesREGISTER

Judge Marcia Krieger will introduce the program. Reuters’ Dan Levine will interview Judge Bernice Donald (ret.) and Judge Jeremy Fogel (ret.). The speakers will address:

1. Key steps in major federal criminal cases
2. Explanations of procedures and jargon used in federal criminal trials
3. The rights and means available to the press in accessing information about a case
4. Your questions

This on-background program is a discussion of procedures common in all federal criminal trials. No comments will be offered on any specific cases or should be construed as addressing specific cases. This program is designed to provide in-depth knowledge to help the press cover federal criminal trials.
The program will be recorded, and the recording will be posted to our website a few weeks after the program.

Former AJA President Brian MacKenzie spearheaded the effort to educate judges about the dangers of junk science and the responsibility of judges to be gatekeepers. Forensic hair analysis is another form of junk science. Government studies acknowledge that FBI experts exaggerated the accuracy of forensic hair analysis in hundreds of cases going back decades. The National Registry of Exonerations recently found at least 129 cases in which people were wrongfully convicted at least partly because of flawed hair analysis offered by government witnesses. Fifteen people were given death sentences before forensic errors on hair fibers were found in their cases. In Florida, from death row, Gerald Murphy is trying to have his conviction overturned based on new evidence about flawed hair forensics. In collaboration with Mother Jones, Rene Ebersole has a very interesting story. THE MARSHALL PROJECT

With eroding public confidence in courts it is natural for court leaders to among other things try to make appearing in court easier. Hence there are advocates of expanding the use of remote hearings. But what if there are “hidden costs” to the use of remote hearings. Should court leaders be a bit more cautious about the use of remote hearings?

The Access to Justice Lab at Harvard Law School and LaGratta Consulting LLC are conducting a randomized control trial examining the effects of in-person versus remote hearings for self-represented family law litigants in the 3rd Judicial District Court of Utah (Salt Lake County). Early data trends suggest matters proceeded similarly regardless of medium, with little effect on time to disposition or appearance rates. The exception was in litigants’ ratings of perceived fairness, which was significantly lower in remote proceedings. Given the documented connection between perceptions of fairness and voluntary compliance, public trust, and system legitimacy, remote proceedings may come at a steep cost without targeted mitigation strategies to narrow this gap.

Litigant perceptions

Question: “Did the court treat you fairly today?”

• 84% of in-person litigants said yes, the court treated them fairly

• 65% of remote litigants said yes, the court treated them fairly

Data collection is still underway, with final results and corresponding policy and practice recommendations expected in 2024. But in the meantime perhaps the gap in perceived fairness should give court leaders reason to pause or at least conduct more research. Download a mid-project brief here or contact Emily LaGratta (Emily@lagratta.com) and Renee Danser (rdanser@law.harvard.edu) with questions or comments

The United States  Supreme Court has held  that gun rights under the Second Amendment must be viewed with a historical lens focused on the 18th century.  Recently, the Supreme Court heard arguments in its latest blockbuster Second Amendment case, United States v. Rahimi. The Fifth US Circuit in Rahimi. 

The challenge to the law came to the court in the case of Zackey Rahimi, who was the subject of a Feb. 2020 protective order in a Texas state court after an incident in which he assaulted his then-girlfriend, who is also the mother of his child, and fired a gun at a witness to the incident. The protective order barred Rahimi from going near his former girlfriend’s home and workplace, and it most importantly  also prohibited him from having a gun.

In 2021, police searched Rahimi’s home because he was a suspect in a series of shootings. After they found a rifle and a pistol, he was charged with violating 18 U.S.C. § 922(g)(8), the law at the center of this case.Rahimi sought to have the charge against him dismissed, arguing that the law is unconstitutional. In the wake of the Supreme Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen, in which the justices explained that courts should uphold gun restrictions only if there is a tradition of such regulations in U.S. history, the U.S. Court of Appeals for the 5th Circuit agreed and threw out Rahimi’s conviction. Although the government is not required to identify a “historical twin” to Section 922(g)(8), the court of appeals explained, it had not offered the kind of “well-established and representative analogue” required to uphold the law.
Justice Thomas’s majority opinion has been criticized by some judges who claim it requires trial judges to become historians. In an  order,  Federal Judge Carlton  Reeves said the Supreme Court’s opinion in New York State Rifle & Pistol Association v. Bruen requires him to “play historian in the name of constitutional adjudication.” Yet neither he nor the justices are experts “in what white, wealthy and male property owners thought about firearms regulation in 1791.” Reeves asked the parties in the gun case before him to submit briefs on whether he should appoint a historian to assist him as a consulting expert. CNN described Reeves’ opinion as “scorching.”
So what are those of us who are not on the United States Supreme Court do to properly apply the law? Although we will have to await more guidance from the Supreme Court this much is clear there were plenty of gun regulations were enacted during the Revolutionary War era. LAWFARE

I would like to say that the return of the American Judges Association blog was the result of a groundswell of public support. But that would be a fib. The truth is the AJA President Catherine Carlson is a very persuasive jurist. And so it is only fitting that the return of the blog begins with something from Canada.

A landmark sentence in Canada. A Canadian judge sentenced an “incel” killer as a terrorist for attacks on two women. It’s the first time in that country that the murder of a woman killed because of her gender has been labeled an act of terrorism. THE NEW YORK TIMES

The case represents the first time in Canada that the murder of a woman killed because of her gender has been prosecuted as an act of terrorism, a charge that increases the length of a prison sentence.

In a country that has grappled with recent, high-profile attacks against women, the case underscores how Canada is rethinking the classification of some violent acts as terrorism.

Illinois has become the first state to pass a bill to ban police from lying or tricking juveniles during questioning, Fox Chicago reports.

Minors are considered especially vulnerable, and have a much higher rate of confessions to crimes they did not commit.

In an article in the Northwestern University Law Review, the Brennan Center’s Alicia Bannon and Douglas Keith analyze courts’ use of virtual proceedings amid Covid-19 and the lessons learned over the past year.

In the essay, “Remote Court: Principles for Virtual Proceedings During the COVID-19 Pandemic and Beyond,” the authors note the advantages to using remote technologies to conduct court proceedings, including time savings and greater court access for those who have the technology necessary to participate. But they also note that research suggests remote courts have significant shortcomings for some litigants and defendants, including a weakened attorney-client relationship, obstacles to submitting and reviewing documentary evidence, and unique disadvantages for self-represented litigants on the wrong side of the digital divide.

Building off of the Brennan Center’s work analyzing how video proceedings impact litigants’ access to justice, Bannon and Keith expand on their earlier set of principles courts should adhere to going forward when using remote technology. These principles include engaging a diverse array of stakeholders in decision-making, tailoring the plans for using remote tools to each type of proceeding, and bolstering the attorney-client relationship, among others.

 The United States  Supreme Court on Monday ruled in Canigilia v. Strom  that police violated a  man’s constitutional rights by seizing his guns without a warrant amid fears that he would kill himself.Justice Clarence Thomas wrote the opinion for the unanimous high court, rejecting lower court arguments that the “community caretaking” exception to the warrant requirement allowed officers to seize the guns based on legitimate safety concerns for the man and his wife. as reported by Professor Douglas Berman in his Sentencing Law & Policy blog “  The start and close of the short opinion for the Court by Justice Thomas serves as a useful summary:Decades ago, this Court held that a warrantless search of an impounded vehicle for an unsecured firearm did not violate the Fourth Amendment.  Cady v. Dombrowski, 413 U.S. 433 (1973).  In reaching this conclusion, the Court observed that police officers who patrol the “public highways” are often called to discharge noncriminal “community caretaking functions,” such as responding to disabled vehicles or investigating accidents.  Id., at 441.  The question today is whether Cady’s acknowledgment of these “caretaking” duties creates a standalone doctrine that justifies warrantless searches and seizures in the home.  It does not….What is reasonable for vehicles is different from what is reasonable for homes.  Cady acknowledged as much, and this Court has repeatedly “declined to expand the scope of . . . exceptions to the warrant requirement to permit warrantless entry into the home.”  Collins, 584 U.S., at ___ (slip op., at 8).  We thus vacate the judgment below and remand for further proceedings consistent with this opinion.Intriguingly, Justices Alito and Kavanaugh write distinct concurring opinions, both longer than the opinion of the Court, in order to set out questions unresolved and examples of what Justice Kavanaugh views as “warrantless entries that are perfectly constitutional under the exigent circumstances doctrine.”  Here is a notable passage from Justice Alito’s concurrence that brings to mind a famous commercial (footnotes removed):Today, more than ever, many people, including many elderly persons, live alone.  Many elderly men and women fall in their homes, or become incapacitated for other reasons, and unfortunately, there are many cases in which such persons cannot call for assistance.  In those cases, the chances for a good recovery may fade with each passing hour.  So in THE CHIEF JUSTICE’s imaginary case, if the elderly woman was seriously hurt or sick and the police heeded petitioner’s suggestion about what the Fourth Amendment demands, there is a fair chance she would not be found alive.  This imaginary woman may have regarded her house as her castle, but it is doubtful that she would have wanted it to be the place where she died alone and in agony.”

Juval O. Scott, The Myth of Objectivity in Fourth Amendment Jurisprudence, 36 Criminal Justice 13 (No. 1 Spring 2021):

People of color, especially Black and Indigenous Americans, do not have the luxury of revising history and how it defines our existence in the United States. Though this country was founded on the principle that all men are created equal, the founders intended something else. By men, they meant white men— not women nor anyone with melanin in their skin, and especially not the people whose land they stole or whose bodies they owned. Embedded in the fabric of this country is a horrific history, and our legal system continues to perpetuate the less-than-equal historical legacy among Black, Indigenous, and people of color (BIPOC).

Decades of litigation have assured the BIPOC community access to the promises of the Constitution. But the centimeter-by-centimeter approach to providing basic human rights has done little to truly even the imbalance. The inequity inherent in Fourth Amendment jurisprudence is one of many areas that must be reconsidered from a racially informed perspective. A court that continues to protect police under the guise of qualified immunity, and, at the same time, admits illegally obtained evidence by those same officers, is complicit in gutting constitutional rights for the BIPOC community. This is especially true for the individuals who reside in poor neighborhoods.