Thanks to Richard Zorza, we know a lot more about an important initiative in New York courts:

New York Making Big Progress on Multi-Lingual Court Orders

by richardzorza

Many of us have long believed that creating multi-lingual court orders could have a big impact on compliance and court efficiency.

The New York courts have recently started taking big steps in that direction. As the press release says:

In April of this year, the [New York Unified Court System] commenced a pilot program utilizing bilingual orders of protection forms in Family Courts located in New York, Monroe, and Westchester counties. These forms have a Spanish translation either below or alongside the English text. Approximately 300 of the Spanish-English orders have been issued, with Chinese and Russian translations to be introduced by year’s end.

While, obviously, just the idea of bilingual orders is great, it is the way that they are being done that makes this project broadly viable, and relatively easily replicable nationally.

Continue reading here.

At the annual meeting of the American Association of Law Libraries, at least three companies exhibiting there were touting their tools for judge analytics.

It is a big data phenomenon. The quantity and variety of online information about and by judges reveals information about them that would have been virtually impossible to compile just a decade ago.

So who are these companies and what sorts of judge analytics do they provide? Here are three:

Lex Machina. Lex Machina’s Legal Analytics uses sophisticated software to analyze intellectual property cases. It extracts information from PACER federal court records, the USPTO and the U.S. International Trade Commission. Among the kinds of questions it says it can help answer are:

• How likely is a judge to grant or deny a specific motion?

• How long do cases take to terminate, get to trial, or get to the claim construction hearing before a judge?

• How likely is a judge to find patents, trademarks or copyrights infringed, invalid, or unenforceable?

 

Ravel Law. Ravel Law’s Judge Analytics promises to provide litigators with “never-before-available information and analysis about how individual federal court judges make decisions.” It pulls together data on the cases a judge has authored and the cases a judge cites to, as well as an analysis of other judges who have influenced them and other jurisdictions they consider most persuasive.

Users can examine how judges handled specific legal issues and find the exact sentences that judges like to copy and paste from opinion to opinion. Specifically, you can find:

• All of the opinions a judge has authored.

• All of the cases a judge has cited in those opinions.

• The frequency with which the judge cites specific circuits, judges and cases.

• How a judge applies the law in specific types of cases.

• How a judge relied on a specific cited case.

 

ALM Judicial Profiles. The legal news and information company ALM has offered judicial profiles for several years but is now making a push to further build it out. It provides access to judges’ case histories, biographical information and references in the news, and also lists lists lawyers and firms who have appeared before them in court.

As it now stands, ALM’s Judicial Profiles provides the following information for the judges it profiles:

• Biographical information.

• Case data, including data on active cases, opened cases and closed cases; cases by nature of suit; and specific details on active cases. The data can be filtered by nature of suit, data range, status and firms involved.

• Data on law firm appearances before the judge, showing the top firms and top attorneys and the cases they are involved in. The information can be filtered by nature of suit, date range and name of firm.

• Recent news stories mentioning the judge.

None of us should be so dogmatic that creative ideas should be regularly and systematically rejected. But, three person juries in exchange for a reduced sentence?

Ray McKoski has posted Betting Against the (Big) House: Bargaining Away Criminal Trial Rights (100 Iowa Law Review Bulletin 125 (2015)) on SSRN.

Here is the abstract:

Professor Gregory M. Gilchrist is the leading proponent of a new method for resolving criminal cases that he labels, “trial bargaining.” Under this scheme, defendants could trade away some of their trial rights in exchange for a charging or sentencing concession from the prosecution. For example, a prosecutor might agree to reduce a charge of armed robbery to simple robbery if the accused agreed to a three-person jury.

This short response to Professor Gilchrist’s proposal identifies three issues that must be addressed before experimentation with trial bargaining can begin. The first issue is whether the Supreme Court would uphold the constitutionality of trial bargaining. Second, will the sheer number of potential bargaining chips deprive the process of any semblance of uniformity and consistency? Finally, are there any fundamental safeguards that a criminal defendant should be prohibited from trading away?

The period between a person’s arrest and his or her case being adjudicated presents a significant opportunity to safely minimize future criminal justice involvement and make needed connections to behavioral health care. Nationally, about 17 percent of people entering jails pretrial meet criteria for a serious mental illness. In addition, about three-quarters of people with serious mental illnesses in jails have a co-occurring substance use disorder. These are individuals who, by and large, are eligible to receive publicly funded health care. Many communities have found ways to make effective connections to treatment for some individuals as part of pretrial release or diversion programs, but policymakers and practitioners continue to struggle to identify and implement research-based policies and practices at this stage of the criminal justice system.

This report introduces essential elements for responding to people with mental illnesses at the pretrial stage, including decisions about pretrial release and diversion. These elements encourage data collection not only to help individual communities, but also for future researchers who are dedicated to these important questions.

Read the full report here.

Annabelle Lever (University of Geneva – Department of Political Science) has posted Race and Racial Profiling (Oxford Handbook of the Philosophy of Race, ed. Naomi Zack (OUP 2016)) on SSRN.

Here is the abstract:

Philosophical reflection on racial profiling tends to take one of two forms. The first sees it as an example of ‘statistical discrimination,’ (SD), or when, if ever, probabilistic generalisations about group behaviour or characteristics can be used to judge particular individuals.(Applbaum 2014; Harcourt 2004; Hellman, 2014; Risse and Zeckhauser 2004; Risse 2007; Lippert-Rasmussen 2006; Lippert-Rasmussen 2007; Lippert-Rasmussen 2014). This approach treats racial profiling as one example amongst many others of a general problem in egalitarian political philosophy, occasioned by the fact that treating people as equals does not always require, or permit, us to treat them the same. The second form is concerned with how racial profiling illuminates the nature, justification, and reproduction of hierarchies of power and privilege based on skin colour and morphology. This form of reflection on racial profiling is therefore less about the justification for judging people based on the characteristics of the group to which they (appear to) belong, and more concerned with the specific ways in which the association of racialised minorities – and, in particular, black people – with crime, contributes to, and reflects, racial inequality, unfreedom, and oppression.(Kennedy 1998; Zack, 2015; Lever, 2005; Lever 2007). Both approaches to profiling have much to recommend them and, taken together, they form an essential component of the political philosophy of race. The statistical approach has the merits of linking racial profiling, as practice, to a body of other practices that generate and justify inequalities based on factors other than race, but it typically offers little by way of insight into the role of racial profiling itself in sustaining racial inequality and injustice. The racial construction approach, for obvious reasons, is rather better at the latter task, but its insights tend to come at the price of a broader understanding of the ways in which inequality is reproduced and justified, or of the ethical dilemmas raised by our competing claims to security. As we will see, insights from both approaches can be synthesized to clarify what, if anything, is wrong with racial profiling and what broader conclusions for equality and security follow from the study of profiling.

A recent study by Kroll Ontrack looked at the prevalence of ghost data – data that was thought to be dead but unexpectedly came back to life – on secondhand devices and technologies. The results? Haunting.

• Almost 50% of the hard drives contained residual data

• Thousands of leftover emails, call logs, texts, photos, and videos were retrieved from 35% of the mobile devices

• 57% of the mobile devices and 75% of the hard drives had unsuccessful deletion attempts before their sale

From a special Halloween blog, read more about ghost data and its implications on ediscovery.

The Sentencing Law & Policy blog recently highlighted a notable article about a push for a new criminal procedure rule concerning plea bargaining practices Ohio.

The article is headlined “Plea deals must reflect crime committed, judges demand,” and here are excerpts:

Judge Michael P. Donnelly had seen enough by the time his spreadsheet of plea deals in sexual-assault cases reached nearly 200. In each case, the defendant pleaded guilty to a lesser crime that bore no factual resemblance to what occurred, allowing many to avoid sex-offender registration requirements.

Many rape cases involved pleas to aggravated assault, a crime involving serious bodily harm in which the defendant was provoked by the victim — a scenario common in a drunken bar fight but wildly inconsistent with rape. “It’s sidestepping the truth. It’s legal fiction, nothing more than a lie,” said Donnelly, a Cuyahoga County Common Pleas Court judge. “No one can defend this process. There is no ethical defense.”

With Donnelly leading the charge for change, the Ohio Supreme Court — unless legislators object — could amend court rules to require charges in felony plea deals to be factually based — to reflect what actually occurred. “Ending the charade” would promote transparency and foster public accountability in the justice system, Donnelly said. “We can be allowing pleas to something that everyone knows didn’t happen.”

The court’s rules commission has advanced the proposal by moving to seek public comment on the changes in Criminal Rule 11 as part of the early steps of a lengthy process leading to approval or rejection. The Ohio Judicial Conference, which represents the state’s judges, is on board with the change, calling “often convenient” plea agreements “contrary to the objectives of the justice system.”

Advocates for sexual-assault victims also support the change, saying pleas to lesser, unrelated offenses leave victims’ trauma unacknowledged and victims feeling “like the justice system let them down.”

Criminal-defense lawyers oppose the change, saying that it would unfairly limit their options in representing criminal defendants and could increase the number of cases going to trial. “While (plea deals) may be factually incorrect, from a justice perspective it is the right thing to do,” said Ohio Public Defender Timothy Young. “We have punishments that are not proportional to everyone who commits a crime because not every crime, while of the same name, is of the same nature.”

Barry Wilford, public-policy co-director of the Ohio Association of Criminal Defense Lawyers, said, “Truth in plea bargaining is an easily stated expression, but it begs the question, ‘What is the truth?’  ” Prosecutors and defense lawyers, with the ultimate approval of judges, “have to have some freedom, some negotiating room. … There’s give and take by both sides. Each side has its objectives. The law should permit them that liberty,” Wilford said.

Donnelly’s study of 197 cases between 2008 and 2012 that resulted in plea agreements that he determined were not based on the facts represented only about 5 percent of the 3,700 sexual-assault cases handled in Cuyahoga County, an official said. “Sometimes, you take the sure thing to get someone off the street and hold them accountable,” said Joseph Frolik, spokesman for Prosecutor Timothy McGinty, who took office in 2013.

Franklin County Prosecutor Ron O’Brien agrees with Donnelly that plea deals “should resemble what the conduct was.” He and his assistants work to base plea agreements on the factual circumstances of cases and preserve sex-offender registration, often by using lesser and included “attempted” offenses, such as attempted rape, he said. “It’s been on everyone’s radar for a number of years. Anyone who has been doing it to an improper degree probably already has changed that practice,” O’Brien said.

Greene County Common Pleas Judge Stephen A. Wolaver leads the Ohio Supreme Court’s criminal-rules committee and believes truth-in-plea-agreements should be adopted to foster public confidence in courts. “If you are going to handle a case based on the fact a person committed a crime, transparency says they should have committed that crime. If there is no fact basis for a particular crime, the question is raised, ‘Was there actually justice?’  ” Wolaver asked.

If you are honest, in serious cases involving brutal crimes, applying the exclusionary rule can require a judge to bear down and apply the law even if the result is something they might privately not like.

But, we are judges and we swear to uphold the constitution…so we faithfully do it…or do we subconsciously do something else?

Avani Mehta Sood (University of California, Berkeley – School of Law) has posted Cognitive Cleansing: Experimental Psychology and the Exclusionary Rule (Georgetown Law Journal, Vol. 103, p. 1543, 2015) on SSRN.

Here is the abstract:

The exclusionary rule generally bars the use of illegally obtained evidence in a criminal case, regardless of the defendant’s crime. However, using a combination of doctrinal analysis, social psychology theory, and original experimental data, this Article proposes a more cognitively complicated picture of how the rule may actually operate. In cases of egregious crime that people are highly motivated to punish, the exclusionary rule and its continually expanding exceptions present a fertile entry point for “motivated cognition,” a psychological process through which decision makers unknowingly reason toward their desired outcomes, seemingly within the constraints of the law.

In this series of experiments, when research participants acting as judges were faced with pivotal but illegally obtained evidence of a morally repugnant crime, they unknowingly construed the circumstances of the case in a manner that enabled them to invoke an exception to the exclusionary rule — thereby “cognitively cleansing” the tainted evidence to admit it and achieve their punishment goals without flouting the law.

By contrast, when an identical illegal search uncovered evidence of a less reprehensible crime, participants were significantly more likely to suppress the evidence, construing the circumstances of the case to support the use of the exclusionary rule without exception. Even people’s judgments about the investigating police officers, who conducted exactly the same illegal search in both scenarios, depended on the egregiousness of the crime that the search happened to uncover. Critically, however, introducing awareness-generating instructions that alerted participants to the possibility that criminal egregiousness could drive their suppression judgments significantly curtailed the influence of this doctrinally irrelevant factor.

Contributing to a growing body of empirical research on cognitive pitfalls in legal decision making, the results of these studies highlight why the justice system should not turn a blind eye to covertly motivated applications of the exclusionary rule, or any legal doctrine that is susceptible to the motivated cognition effect. Aside from the benefits of stability and legitimacy that arise from applying legal rules in a predictable and transparent manner, the finding that decision makers set aside their personal punishment goals to more objectively adhere to the law when an instructional intervention cognitively equipped them to do so reflects a conscious choice worth recognizing. Illustrating how the tools of social psychology can be mobilized to reveal new normative dimensions of longstanding doctrinal debates and stimulate data-driven prescriptions for reform, this Article proposes a path toward more informed, consistent, and cognitively realistic applications of the law.

A short piece from the ABA Journal:

Lawyers for a criminal defendant were not constitutionally required to predict the demise of bullet analysis that was once widely accepted, the U.S. Supreme Court ruled this week in a per curiam opinion.

The Oct. 5 decision (PDF) reinstates the murder conviction of James Kulbicki, convicted for the 1993 fatal shooting of his mistress, the Baltimore Sunreports. Maryland’s top court had cited ineffective assistance of counsel when it overturned Kulbicki’s conviction.

An FBI agent had testified in Kulbicki’s 1995 trial about a match between the lead in bullet fragments found in the victim’s brain and in Kulbicki’s truck. Maryland’s Court of Appeals said Kulbicki’s lawyers should have found a 1991 report by the FBI agent that found matches from lead coming from separately packaged bullets, a finding that “presaged the flaws” in bullet match evidence.

The report, however, did not question the validity of bullet lead analysis, and the forensic technique was widely accepted at the time, the U.S. Supreme Court said.

A compilation of forensic studies that included the FBI agent’s report had been distributed to various public libraries at the time. “But which ones?” the Supreme Court asked. “And in an era of card catalogues, not a worldwide web, what efforts would counsel have had to expend to find the compilation?”

The court said the Maryland ruling was akin to asking the lawyers to go looking for a needle in a haystack. “The Court of Appeals demanded something close to ‘perfect advocacy,’ ” the Supreme Court said, “far more than the’ reasonable competence’ the right to counsel guarantees.”

Hat tip to How Appealing.

Tracey Booth (University of Technology Sydney, Faculty of Law) has posted Victim Impact Statements, Sentencing and Contemporary Standards of Fairness in the Courtroom (Wilson and Ross (eds), Crime, Victims and Policy, Palgrave Macmillan, 2015) on SSRN.

Here is the abstract:

The inclusion of victims and their victim impact statements (VISs) in sentencing modifies the adversarial sentencing hearing in order to reflect shifts in community sensibilities and expectations of fairness in legal proceedings. Drawing on findings from a recent qualitative study of victim participation in sentencing hearings in the New South Wales Supreme Court, this chapter explores the challenges generated by victim participation and the emotional nature of victim impact evidence for the sentencing judge. It considers how judges can respond to the victims’ interests in a manner designed to enhance the fairness of proceedings for victims while not jeopardising the offender’s entitlement to a fair hearing. Ultimately, fairness to victims in this context is more than an entitlement to submit a VIS. Fairness involves meeting a range of procedural conditions in relation to victims including: treating victims with dignity and giving them appropriate space and time to present their statements; keep victims informed where appropriate; and afford victims due recognition as a participant.