Today is my last posting on the AJA blog. Yesterday I resigned from the American Judges Association. I had a great run in AJA. I made more friends that it is practical to mention. Naming folks has the danger of hurting the feelings of those not mentioned. But I feel compelled to take at least some risk 

No one in the AJA family  has been closer to me that Judge (now law professor) Steve Leben. We co-authored AJA White Papers, law review articles and spoke to state and federal judges frequently together. Steve has over the years been incredibly patient with my more cavalier approach to life. 

I developed important  friendships among Canadian Judges. Russ Otter, Wayne Gorman and Catherine Carlson most notably. The decision to leave was made particularly difficult because Catherine will become AJA  President. She will be terrific. The Canadian judiciary and her community is very lucky to have her. 

There have been an eclectic group of AJA Presidents. Each brought strengths during their tenure and many continued to contribute after their terms. Elliott  Zide (who at times drove a lot of people nuts myself included) became our resident grant write for SJI funding. There are few people with a bigger heart than Elliot.

When I started the blog I really did not appreciate how much work it is. Three law clerks Laura Taken, Annie Balghiti and  Annie Bodeau posted religiously until I retired in October. Miraculous I figured out how to do it myself since then.

So what next for me? I have a web site you can find at JudgeBurke.com. (https://judgeburke.com).  It presently has a link to the AJA blog which I will have to change. I will continue write and to speak. Upcoming are presentations to the Washington State Bar Association on the future of courts, to the annual convention of the National Association of Presiding Court Professionals on the use of storytelling for leadership, and a presentation with Sixth Circuit Judge Bernice Donald to the Kansas judiciary on judicial collegiality. 

And so to all of you who have been so supportive, thanks

Principles For Remote Proceedings

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 Demise Of Warrantless Community Caretaking Searches

 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.”

Fourth Amendment Jurisprudence

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.

What is That Smell?

By Evidence ProfBlogger Share

In 2014, the Maryland General Assembly decriminalized possession of less than 10 grams of marijuana. So, in Maryland, should the smell of marijuana alone provide reasonable suspicion to conduct an investigatory stop? That was the question of first impression addressed by the Court of Special Appeals of Maryland in its opinion today in In re D.D., 2021 WL 1651304 (Md. App. 2021).

In D.D., On November 15, 2019, at 7:42 p.m., Jeffery Walden and Alexandra Moser, members of the Prince George’s County Police Department, responded to a call for service at an apartment complex in Capitol Heights. Officer Walden testified that the call for service involved “males in the basement” who were “playing music and smoking CDS,” i.e., controlled dangerous substances. When the officers arrived at the building, Officer Walden opened the front door. He observed “a group of males walking up the steps” and “smelled a strong odor of marijuana.” Officer Walden told the group, which included appellant and four other males, to “have a seat on the stairs.” He testified that he gave that instruction “because of the nature of the complaint” and because he and Officer Moser were outnumbered. There were two sets of stairs in the building, and four members of the group sat down on the stairs to the left, and appellant sat on the stairs to the right.Officer Walden then asked the group who, if anyone, lived in the building. The response was evasive, with group members “snickering, laughing, very carefree, [and] not cooperative.” No member of the group stated that they lived in the building. Appellant “shrugged his shoulders and didn’t say anything,” and his body language was “evasive.” When specifically asked where he lived, appellant responded “my dick.”

Officer Walden subsequently conducted a pat down of appellant’s waistband and recovered a “9 millimeter handgun.” 

The appellant’s motion to suppress the handgun was denied, but the Court of Special Appeals reversed that ruling today, holding thatBecause possession of less than 10 grams of marijuana is no longer a crime, the suspicion required to support a stop for the crime of possession of marijuana, therefore, is that the person is in possession of more than 10 grams of marijuana. And because the “odor of marijuana alone does not indicate the quantity, if any, of marijuana in someone’s possession,”…it cannot, by itself, provide reasonable suspicion that the person is in possession of a criminal amount of marijuana or otherwise involved in criminal activity.Other courts have reached this same conclusion. See, e.g., State v. Francisco Perez, 239 A.3d 975, 985-86 (N.H. 2020) (After decriminalization of small amounts of marijuana, the odor of marijuana remains a relevant factor in assessing reasonable suspicion, but it does not alone provide reasonable suspicion of criminal activity.); Commonwealth v. Cruz, 945 N.E.2d 899, 908 (Mass. 2011) (After the decriminalization of one ounce or less of marijuana, the odor of marijuana alone does not provide reasonable suspicion of criminal activity.).The odor of marijuana may, with other circumstances, provide reasonable suspicion that a person is involved in criminal activity. Based on the reasoning of Lewis and other cases, however, because an officer cannot tell by the smell of marijuana alone that a person is involved in criminal activity, we hold that the odor of marijuana, by itself, does not provide reasonable suspicion to conduct an investigatory stop. Accordingly, Officer Walden did not have reasonable suspicion of criminality to support the stop, and it was unreasonable under the Fourth Amendment. The circuit court erred in denying the motion to suppress.

Prosecutor’s Use of Bloody, Vomit-Stained Mannequin Proper in Sentencing Phase of Murder Trial

By Evidence ProfBlogger 

Assume that a defendant is convicted of the first degree murder based upon fatally shooting a deputy sheriff. Would it be prosecutorial misconduct for the prosecutor during the sentencing phase of trial to use of life-sized mannequin of the deputy sheriff to demonstrate his injuries? That was the question addressed by the Supreme Court of California in its recent opinion in People v. Steskal, 2021 WL 1684072 (Cal. 2021).

In Steskal, the facts were as stated above, with Maurice Gerald Steskal being convicted of the first degree murder of Orange County Deputy Sheriff Bradley J. Riches. During the sentencing hearing, the prosecutor showed the jury

a life-sized mannequin dressed in Deputy Riches’s bloody uniform. There was vomit on the front shirt pocket and the dried blood blended in with the color of the uniform, which was dark green. Rods placed in the mannequin reflected the location and trajectory of bullet wounds. Ruling that the mannequin was admissible, the trial court observed that it was not going to “shock anybody’s sensibilities.” The prosecutor referred to the mannequin during the pathologist’s testimony to show the location of each wound as he described them. During his closing argument, the prosecutor brought the mannequin out to show the concentration of shots directed to the upper left chest area, highlighting the aggravated nature of the crime. When not in use during the testimony and closing argument, the mannequin was stored outside of the jury’s view and was not placed in the jury room during deliberations.

After being given a death sentence, Steskal appealed, claiming that “there was little probative value to the mannequin, given that the circumstances of the crime were not contested, and that the mannequin was prejudicial because it was ‘startlingly life-like’ and the condition of the uniform was ‘shocking.'” The Supreme Court of California disagreed, concluding thatThis argument is not persuasive; this court has repeatedly held that otherwise relevant evidence is not inadmissible simply because it is graphic or because it depicts uncontested facts….In Thomas, for instance, although the cause and circumstances of death were not in dispute, we upheld the guilt phase introduction of life-sized mannequins representing slain officers, as well as their blood- and tissue-stained clothing….The trial court in this case did not err when it admitted similar evidence in Steskal’s penalty retrial, a juncture in the proceedings when the constraints on its discretion to exclude the evidence were greater than they would have been in the guilt phase….We have long recognized that “[m]annequins may be used as illustrative evidence to assist the jury in understanding the testimony of witnesses or to clarify the circumstances of a crime”…and have “rejected challenges to the prosecution’s use of mannequins to represent victims during the presentation of aggravating evidence”…We have similarly upheld the admission of a victim’s stained clothing to show the circumstances of the crime…as well as the admission of photographs and videotape portraying actual victims in death…We conclude the trial court acted within its discretion in finding that the probative value of the mannequin was not substantially outweighed by the risk of undue prejudice. “Consistent with our holding in People v. Medina (1990) 51 Cal.3d 870, 898–899 [274 Cal.Rptr. 849, 799 P.2d 1282] — a case where the prosecution entered into evidence a mannequin wearing a victim’s bloodstained shirt — we find that ‘[t]he trial court was in a far better position than we to assess the potential prejudice arising from the display of such physical evidence.’ Upon the record before us, we see no basis to upset its decision”…and conclude there was no violation of Steskal’s federal constitutional rights.

Ineffective Assistance in Plea Negations

There is an interesting cert petition before the Supreme Court as noted by the SCOTUS blog:

Anaya v. Lumpkin involves burdens of proof for defendants claiming that they rejected a plea deal based on incorrect advice of counsel. David Anaya was indicted in Texas on charges of murder and aggravated assault with a deadly weapon, for which he claimed self-defense. Anaya rejected a plea offer after his lawyer advised him that, under Texas law, his failure to retreat from the situation “did not matter or make a difference” for his self-defense claim. However, his lawyer was incorrect because Anaya’s status as a felon in possession of a weapon meant that his failure to retreat was relevant. At trial, the government focused on Anaya’s failure to leave the situation even though he was in a car at the time he shot the victim. He received sentences akin to a life sentence. Anaya’s petition before the Supreme Court involves his claim that he received ineffective assistance of counsel in rejecting the plea offer. The U.S. Court of Appeals for the 5th Circuit recognized that Anaya received deficient performance but ruled against Anaya because the government could have withdrawn the plea offer. In his petition, Anaya argues that the 5th Circuit’s ruling conflicts with Supreme Court cases on ineffective assistance leading to rejected plea deals.

Judicial Collegiality

Join Berkeley Judicial Institute on May 14 at 9:00 A.M. PT for a discussion of best practices that promote judicial collegiality.
 FREE REGISTRATIONU.S. Sixth Circuit Court of Appeals Judge Bernice Donald and MN district court Judge Kevin Burke (retired) will facilitate the conversation. Just participating is a step toward greater collegiality!Have ideas for other academics Berkeley Judicial Institute should invite to discuss their work?  Let us know, please, by emailing bji@law.berkeley.edu.LEARN MORE ABOUT BJI
UC Berkeley School of Law
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Berkeley, CA 94720

Time To Fix Immigration Courts

Several years ago the American Judges Association passed a resolution calling for reform of how immigration judges are treated. The work they do is important. They are for many people the first face of the American justice system. And yet they are not given the independence they deserve and many times have crushing caseloads. Time to fix our immigration courts, broken for decades. We need to hire more immigration judges, drop hundreds of thousands of low-level cases from the docket and root out Trump hard-liners embedded within the system. THE NEW YORK TIMES