Sentencing And COVID

Thanks to Judge Wayne Gorman:

In R. v. McKibbin, 2020 BCCA 337, November 18, 2020, the accused was convicted of the offence of trafficking in a controlled substance.  At his sentence hearing, evidence was presented establishing that the accused was suffering from chronic obstructive pulmonary disease (“COPD”).  

A period of six months of imprisonment was imposed.  The sentencing judge declined to impose a suspended sentence based upon the accused’s medical condition. The accused was granted bail, pending the hearing of his appeal from sentence. 

On appeal, the accused presented evidence indicating that were he “to contract COVID-19, his vulnerability would accelerate, thereby worsening his health”, possibly causing him “early death compared to other people without respiratory problems”.

The appeal was allowed and the sentence varied to a six month suspended sentence. 

The British Columbia Court of Appeal held that if “it were not for the unusual global circumstances currently existing” there would have been “no basis upon which to interfere with that sentence” (at paragraph 1).  However, the Court of Appeal concluded that made no sense “to require that he be re-incarcerated, particularly when the numbers of infections are reaching an all-time high in this province” (at paragraphs 24 and 25):

The evidence before us is that not only would serving the sentence be harsher, but if he contracted COVID-19, it could well lead to an early death, which in my view does amount to circumstances justifying a suspended sentence. Normally, the prison authorities would be delegated the responsibility of managing a prisoner’s illness in the prison, and they are usually equipped to do so. However, given that Mr. McKibbin faces a significantly higher risk of death if he contracts COVID-19 because of his serious pre-existing respiratory disease, and given that he has a very short time left to serve in his sentence, it makes no sense to me to require that he be re-incarcerated, particularly when the numbers of infections are reaching an all-time high in this province. If he is at home, Mr. McKibbin can control who he has contact with, something that he cannot do in the prison setting.

This is an unusual case. The sentence imposed by the sentencing judge was without error, and but for the fresh evidence, I would not interfere with the sentence. It is also unusual in the sense that it is not just the COVID-19 pandemic that has changed the sentencing landscape, but the pandemic in the context of Mr. McKibbin’s serious respiratory illness, which makes him much more susceptible to serious COVID-19 symptoms, including death.

Do you want to improve your court?


The Arnold Ventures Philanthropic Foundation
is sponsoring a new grant program for
Advancing Pretrial Policy and Research (APPR) in Trial Courts

The Laura and John Arnold Founda􏰀on (a/k/a Arnold Ventures Philanthropic Founda􏰀on), founded in 2010, has a mission to improve lives through evidence-based solu􏰀ons in the fields of criminal jus􏰀ce, health care, educa􏰀on and public finance. One of the Founda􏰀on’s primary interests has been funding technical assistance to courts, judges, prosecutors and public defenders to imple- ment and evaluate transforma􏰀ve new prac􏰀ces to eliminate unjust pretrial deten􏰀on. In doing so, the Founda􏰀on supports a group of reputable nonprofit consultancies, researchers, policy experts and advocates known as the Na􏰀onal Partnership for Pretrial Jus􏰀ce. Partnership members include such organiza􏰀ons as the Na􏰀onal Center for State Courts, Center for Effec􏰀ve Public Policy, ABA, Center for Court Innova􏰀on, Rand Corpora􏰀on, and various universi􏰀es (i.e. Stanford, University of Notre Dame, University of California, Berkeley, etc.)

Trial court jurisdic􏰀ons interested in revamping and upgrading their pretrial services func􏰀ons through working with technical assistance (TA) providers and peer prac􏰀􏰀oners, who have success- fully implemented various pretrial jus􏰀ce reforms, are invited to apply to be “Learning Sites.” Each learning site selected will receive at no cost 16-months of TA and coaching that will examine their pretrial system, iden􏰀fy improvements, and implement the Arnold-developed Public Safety Assess- ment (PSA) tool, a pretrial risk assessment instrument for use by judicial officers that produces a score represen􏰀ng the likelihood an arrested defendant will commit a new crime or will fail to appear for a future court appearance.

The Advancing Pretrial Policy and Research (APPR) technical assistance teams began working with the first Learning Sites in July 2020. Those pilot sites included Douglas County, Nebraska (Omaha); Dade County, Florida (Miami); Williamson County, Texas (Aus􏰀n suburb); Wake County, North Carolina (Raleigh); and the City of Youngstown, Ohio.

APPR will be presen􏰀ng an informa􏰀onal, no obliga􏰀on webinar on December 15, 2020 at 3:00 PM (EST) to discuss the Learning Sites project, answer ques􏰀ons about the assistance offered, and review the process for jurisdic􏰀ons in applying to become a project site. If interested, applica- 􏰀ons must be submi􏰁ed by January 15, 2021 or February 26, 2021 to be considered for the program that will begin in early 2021. Jurisdic􏰀ons selected will work with TA providers and peer prac􏰀􏰀oners through an online workspace.

more informa􏰀on? | register for the upcoming webinar? | request an applica􏰀on?

 


Judicial Behavior

How do parties, lawyers and the public hope that judges will behave in court? How can judges sharpen their understanding of their emotional responses to their often difficult jobs and regulate those responses in a way that supports an appropriate judicial demeanor? Join Judge Jeremy Fogel, BJI’s Executive Director, and Professor Terry Maroney as they discuss Professor Maroney’s work and consider how her study and observation can help judges in the courtroom.

CLE credit offered.


The Right To Confrontation & Forensic Science

Andrew Hamm has an interesting article in the Crime Report. 

On December 3, the Maryland Court of Appeals will hear oral arguments in two cases that address when a criminal defendant has a right to cross-examine a lab technician who tested a DNA sample in his case.In State v. Leidig, a jury convicted James Leidig of burglary on the basis of a DNA profile constructed from a swab that police collected from the windowsill of the house. That DNA was the only evidence the state had to connect Leidig to the crime.DNA was also the only evidence that the state had on Matthew Miller, whom a jury convicted of rape in State v. Miller. The victim in Miller’s case did not identify him from a line-up as her assailant.At trial, both Leidig and Miller had the chance to cross-examine lab analysts, who answered questions about the procedures used in DNA testing. But neither of them got an opportunity to confront specific analysts who performed testing in their cases.Leidig never got to cross-examine the analyst who produced the DNA profile from the biological sample on the windowsill. And Miller never got to cross-examine the analyst who both produced a DNA profile after the rape and later connected that profile to one from a known sample of Miller’s.This issue matters because forensic science is far from perfect.In 2016, a landmark report by the President’s Council of Advisors on Science and Technology, “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods,” determined that six methods of forensic analysis lacked foundational validity. Empirical studies have never shown that the procedures for techniques like hair analysis are repeatable, reproducible, or accurate.The report did find foundational validity for DNA analysis of biological samples containing the DNA of one or two persons, the technique involved in Leidig’s and Miller’s investigations.However, the report cautioned that the possibility of human error remains present.And Maryland has a troubling track record when it comes to its forensic analysis. In 2007, the Innocence Project revealed that a firearms examiner who worked for both Baltimore City Police and Maryland State Police had lied on the stand about his credentials. Maryland State Police recently launched a review of 4,041 case files involving this examiner after determining that in some reports he had forged the initials of the person who was supposed to be reviewing his work.Despite the issues presented by forensic science, courts have struggled to articulate a single test for when analysts are witnesses. Among the concerns for judges are line-drawing problems. For example, DNA testing typically requires six steps, and sometimes different analysts perform separate stages. Intuition could suggest that at least someone from the laboratory has to show up at trial for questioning, but not every single team member.That may be simple enough as a practical matter—except that if one analyst is a witness, it is not easy to decipher why the other analysts are not also witnesses whom a defendant has a constitutional right to confront.

The Issue of ‘Formality’

For Justice Clarence Thomas of the U.S. Supreme Court, the confrontation right turns on formality: Criminal defendants have a right to cross-examine the authors of “formal” statements introduced against them at trial. Explaining his views most recently in the 2012 case Williams v. Illinois, Justice Thomas wrote that the DNA report was not formal because it did not “attest that its statements accurately reflect the DNA testing processes used or the results obtained.”Before Leidig’s and Miller’s cases reached the Maryland Court of Appeals, the judges on the Maryland Court of Special Appeals had applied Justice Thomas’ formality test to the DNA reports. For the processes used, the court noted that the analysts in both cases had followed the Federal Bureau of Investigation’s Quality Assurance Standards for Forensic DNA Testing Laboratories.As for the results obtained, the court noted that the reports, using slightly different language, stated that they contained the analyst’s conclusions, interpretations and opinions.Faced with these facts, three judges from the Maryland Court of Special Appeals determined that the report in Miller’s case was formal. However, three different judges determined that the report in Leidig’s case was not formal. At a minimum, these inconsistencies demonstrate weaknesses in Justice Thomas’s formality test. for the complete article :

Are There Lessons From Cook County’s Bail Reform?

Recent bail reforms in Chicago, Illinois, did not cause a surge in gun violence in the city, a new report concludes. The Cook County judge who implemented the reforms says the study shows “that bail reform furthers the cause of justice and equality by releasing defendants not deemed a danger to any person or the public.” WBEZ  The report can be found here: LOYOLA UNIVERSITY CHICAGO

Should Courts Suspend Civil Jury Trials

As a result of the pandemic increasing numbers of states have temporarily closed bars and restraints, gyms and sometimes schools. So is it time for courts to follow suit?

Tennessee jury trials have been postponed through Jan. 31 because of rising coronavirus cases.

The Tennessee Supreme Court issued the order suspending trials Tuesday. The suspension will begin Nov. 23 through Jan. 31 unless an exemption is granted by the Chief Justice on a case-by-case basis. 

The order also directs judicial districts to reexamine their reopening plans and coronavirus protocols, specifically mentioning the high court receiving complaints of judges, attorneys and defendants failing to follow protocols and some even attending court while testing positive for the virus. 

Face masks are required for everyone who enters courthouses. 

The order urges court staff to use phone and video conference calls as a way to avoid in-person meetings when possible

Tennessee is not alone in making this decision. what should courts do? Feel free to chime in.

Addressing Justice System Inequities Head-On

JMI’s Tom Eberly and three members of the National Network of Criminal Justice Coordinating Councils (NNCJCC) conducted a webinar on navigating how to facilitate difficult discussions, specifically on racial inequities in the justice system. Hosted by the Council of State Governments Justice Center with funding support from the U.S. Department of Justice’s Bureau of Justice Assistance, the webinar featured Kristy Danford, Project Director for the Criminal Justice Coordinating Council in Charleston County, South Carolina; Michael Daniels, Director of Justice Policies and Programs in Franklin County, Ohio; and Tiffany Iheanacho, Justice Services Director in Buncombe County, North Carolina.Leaders of local criminal justice initiatives often need to facilitate sensitive conversations when evidence points to disparities in the system. Disparate outcomes can take many different forms, such as longer jail stays for people with serious mental illnesses or disproportionate numbers of people of color being booked into jail. Elevating these topics as priorities and guiding system stakeholders toward meaningful action may feel uncomfortable, challenging, and stressful for the people driving the conversation. During this webinar, a panel of county justice system directors shared their approach for championing change when systemic disparities demand a new path forward.The webinar highlighted the efforts in each of the three counties and the critical role that CJCCs and criminal justice coordinators serve in guiding and supporting those conversations.The recorded webinar can be found here:

What To Do About Requests For Bench Trials

Some states do not require the consent of the prosecution for a bench trial but that is not the rule in federal court (and some states). The pandemic has created new problems with this issue. and at least in one case a federal judges has decided that the request for a bench trial should be granted even though the prosecution has objected.

From U.S. v. Cohn, decided Wednesday by Judge Gary R. Brown (E.D.N.Y.):As a result [of the epidemic], at this writing, despite significant effort, research and investment by the Court, this district has not held a jury trial since March of this year, and in-person proceedings have been limited, although the Court has been gradually expanding its operations.This backdrop provides the context for a dispute in the instant criminal prosecution, in which securities fraud-related charges have been pending against the defendant for more than a year. At the Court’s suggestion, the parties considered whether a bench trial could provide an appropriate avenue for resolution of the charges given the complexities posed by a potential jury trial in the current circumstances. After careful consideration with counsel, the defendant agreed to waive his constitutional right to a trial by jury and consented to a bench trial. The Government, on the other hand, has declined to consent to a nonjury trial, insisting instead on a jury trial when that becomes a viable alternative for this case….While the Federal Rules of Criminal Procedure require the Government’s consent, in extraordinary situations, the Court is empowered to conduct a bench trial upon the defendant’s waiver even over the Government’s objection when required by the interests of justice. Upon careful consideration, the Court finds that the unusual, if not unique, circumstances presented by this particular case dictate that a bench trial be held notwithstanding the Government’s objection. The facts and circumstances considered within the legal framework discussed herein include

  1. the length of time during which the charges have been pending, which in this case is more than a year;
  2. the uncertainty of providing a jury trial in this particular case within an ascertainable time frame;
  3. the complexity of this case—involving weeks of testimony and hundreds of thousands of pages of documents—which will serve to further complicate a jury trial under present circumstances;
  4. the defendant’s age and health profile, which not only render a trial more difficult but may bear upon his right to testify in his own defense;
  5. the marked public interest in this case and the delays in its resolution, which implicates the public’s right to a speedy trial; and
  6. evidentiary issues already identified by the Court raising the specter of possible juror confusion.

Upon consideration of the facts and circumstances, as discussed below, the Court will grant the defendant’s application to hold a bench trial in the absence of the Government’s consent….The court’s analysis is pretty detailed; if you’re interested, read the entire opinion


The Gallup release, headlined “Fewer Americans Call for Tougher Criminal Justice System,” reports on new polling number concerning pubic views on the US criminal justice system. As summarized by Professor Doug Berman in his Sentencing blog Here are the details:

Americans’ belief that the U.S. criminal justice system is “not tough enough” on crime is now half of what it was in Gallup’s initial reading of 83% in 1992.  The latest measure, at 41%, is the lowest on record and down slightly from the previous reading in 2016 — although it remains the view of the plurality.  At the same time, there has been a seven-percentage-point uptick among those who say the system is “too tough” (21%) and no change among those who think it is “about right” (35%).

Americans’ perceptions of whether the criminal justice system in the U.S. is too tough, not tough enough or about right in its handling of crime since 1992.  The percentage saying it is not tough enough has fallen from 83% in 1992 to 41% now.  At the same time, the percentage saying it is about right has risen from 12% in 1992 to the current 35%, and those who think it is too tough has increased from 2% in 1992 to 21% now.

Across the five times Gallup has asked this question since 1992, when public perceptions of national and local crime rates were at or near their highest points, there has been a steady decrease in the percentage saying the system is not tough enough and increases in the percentages saying it is too tough or about right.  These changes coincide with declines in crime rates in the U.S.  The latest reading is from Gallup’s annual Crime poll, conducted Sept. 30-Oct. 15, 2020.

Americans’ faith in the U.S. criminal justice system remains low according to Gallup’s 2020 Confidence in Institutions poll conducted earlier this year, and confidence in one element of that system — the police — fell to a record-low level in the same poll.  This decline in confidence in the police followed several high-profile deaths of Black Americans at the hands of police officers, including George Floyd, Breonna Taylor and Rayshard Brooks.

Views of the criminal justice system vary by party identification and racial background.  A 58% majority of Republicans and Republican-leaning independents say the criminal justice system is not tough enough.  However, this view is shared by less than half as many Democrats and Democratic-leaning independents (25%), while 37% think the system is about right and 35% too tough.

More White Americans than non-White Americans say the justice system is not tough enough on crime (45% vs. 31%, respectively).  The plurality of non-White adults, 40%, think it is about right, while 26% believe it is too tough.

Americans across these four party and racial subgroups have become significantly less likely to say the criminal justice system is not tough enough, but it has declined the most among Democrats, falling from 62% in 2000 to 25% today.  Over the same period, Democrats’ view that the system is too tough has grown from 6% to 35%.

Given two options for approaches to lowering the U.S. crime rate, more Americans prefer putting money and effort into addressing social and economic problems such as drug addiction, homelessness and mental health (63%) rather than putting money and effort into strengthening law enforcement (34%).