A recently released Pew Research Center report found that:

Over the past year, there has been a substantial rise in the share of Americans — across racial and ethnic groups — who say the country needs to continue making changes to give blacks equal rights with whites, and a growing number of Americans view racism as a big problem in society.

Today, 50 years after the passage of the Voting Rights Act, roughly six-in-ten Americans (59%) say the country needs to continue making changes to achieve racial equality, while 32% say the country has made the changes needed to give blacks equal rights with whites. A year ago — and at previous points in the last six years — public opinion was much more closely divided on this question.

Though a substantial racial divide in these views remains, a majority of whites (53%) now say more needs to be done. Last year, just 39% of whites said this. And although large majorities of African Americans have consistently said that changes must continue to be made to achieve racial equality, the share saying this now (86%) is greater than in the past.

The full report can be found here.

Communication and notes from jurors are fairly common in the United States. The safest (and frequently required) response from the trial judge is give the lawyers a copy of the note, solicit their input and then do what you, as a judge, think is right. But how do other courts deal with this issue?

In Smith v. The Queen [2015] HCA 27, August 5, 2015, the issue of procedural fairness  and disclosure of information by a trial judge arose in the context of a trial before a judge and jury.

In Smith, the accused was charged with the offence of rape. The High Court of Australia noted that after “the jury retired to consider its verdict, the trial judge received a note from the jury which disclosed interim votes of the jury and the voting pattern for each disclosed interim vote. The trial judge told counsel that the note indicated that the jury was not in total agreement but the trial judge did not disclose to counsel those interim votes or interim voting patterns.”

The High Court then asked the following question:

Did the failure of the trial judge to inform counsel of those interim votes and interim voting patterns constitute a denial of procedural fairness?

The High Court provided the following answer:

The answer to that question is no.

Procedural Fairness and a Fair Trial:

The High Court indicated, at paragraph 39, that one “of the requirements of a fair trial is that the accused be accorded procedural fairness.” At paragraph 40, the Court referred to its earlier decision in R v Wise, in which it noted that it “explained one part of procedural fairness in these terms”: “It is an elementary rule, whether in relation to civil or criminal proceedings, that a judge shall not determine any question without affording counsel for each party an opportunity to see and comment upon any material relevant to the issue before the court which is available to the judge and known not to be available to counsel“. (the High Court’s emphasis added)

The High Court of Australia concluded that procedural fairness mandates a judicial obligation to disclose relevant information (at paragraphs 41 and 42):

There are two related aspects of this rule. First, information relevant to issues before the court which is available to the judge and known not to be available to counsel must be disclosed to counsel. The second aspect is that the accused and the prosecution must be afforded an opportunity to make submissions which bear upon questions about the future conduct of the trial. For these reasons, as Chernov JA rightly said in Ucar v Nylex Industrial Products Pty Ltd:

“[T]he general rule [is] that a party should be given the opportunity to respond to matters prejudicial to its interests that are known only to the court and which might be taken into account in the determination of issues that may affect the party’s property, rights or
legitimate expectations.”

It follows that if information made available to a judge is not relevant to an issue before the
court, nor regarded by the judge as relevant, then its non-disclosure to counsel cannot be a denial of procedural fairness.

Conclusion:

In the context of this case, the High Court of Australia concluded that the trial judge was not obliged “before determining whether to permit a majority verdict or to discharge the jury to disclose to counsel the precise contents of that note” to counsel “because a jury’s votes can and do change, a statement of what a jury’s votes were at a time prior to verdict is not relevant. It is a statement which adds nothing to the knowledge that the jury is deadlocked or has not yet reached a verdict” (at paragraph 52).

As a few of you know, I am married to Judge Susan Burke.  We serve on the same bench.  The Burlington Free Press recently reported:

Gov. Peter Shumlin is set to make Vermont history by appointing the first husband and wife team to the judiciary.

Vermont Legal Aid lawyer Kirstin Schoonover was named to the Vermont Superior Curt on Wednesday, while the formal announcement about her husband, Brian K. Valentine, as a magistrate judge in the Family Division of Superior Court is due later this week.

Schoonover of Huntington fills the seat left open by the elevation of Judge Harold “Duke” Eaton Jr. of Woodstock to the Vermont Supreme Court.

Valentine will fill the seat left open by the retirement of Magistrate Judge Shelley Gartner. She presided in Chittenden and Orange counties.

Shumlin said his decision is about the quality of the appointments and not making history.

And so…in honor of the newly appointed couple, I am pleased to announce the formation of the National Association Of Married Judges.

Russell L. Weaver and Steven Friedland (University of Louisville – Louis D. Brandeis School of Law and Elon University School of Law) have posted Driving While ‘Intexticated’: Texting, Driving, and Punishment (47 Tex. Tech L. Rev. 101 2014-2015) on SSRN.

Here is the abstract:

In this short article, we argue that texting while driving presents a special danger to society for which preventive solutions are needed. Although a variety of societal responses might be possible, and some other (softer) approaches should generally be preferred (e.g., education), since this is a symposium on homicide, it is appropriate to note that there will be situations when a prosecutor might justifiably (and probably should) bring murder or manslaughter charges against a driver whose texting causes a fatal accident. This article outlines the problems associated with texting, explains the legal basis on which homicide charges might be brought, and suggests some less drastic alternatives for dealing with the problem.

A new formal opinion released by California’s Committee on Professional Responsibility and Conduct cautions attorneys about their ethical duties regarding electronically stored information. “Your Honor, I am a Tech Troglodyte and don’t understand how eDiscovery works,” will no longer be a valid acceptable argument in California.

The California opinion states that attorneys should be held responsible for evaluating the need for electronic discovery on a case-by-case basis. If eDiscovery is needed or conducted by either the defendant or plaintiff, lawyers on both sides must understand how the information is stored, mined, retained, searched and deleted. If the technology or process eludes them, it’s up to the attorney to seek help from another source. (Asking your ten year-old daughter frequently may get the tech challenged lawyer going in the right direction).

“An attorney lacking the required competence for eDiscovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in eDiscovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality,” noted the opinion.

Mae C. Quinn (Washington University in Saint Louis – School of Law) has posted In Loco Juvenile Justice: Minors in Munis, Cash from Kids, and Adolescent Pro Se Advocacy – Ferguson and Beyond on SSRN.

Here is the abstract:

In recent years many have challenged the imposition of lengthy adult prison terms for kids convicted of serious crimes. Given their special vulnerabilities, advocates argue young felony offenders should have their cases handled in our country’s specialized juvenile courts where they might receive age-appropriate interventions intended to support redirection and development. However, these conversations have largely overlooked another set of legal venues and their juvenile justice implications – those adjudicating low-level offenses such as local traffic and ordinance violations. Thus, there has been little scholarly, judicial, or advocacy address of the phenomenon of prosecuting minors in municipal courts.

This essay calls for greater attention to the issue. It does so in the wake of recent events in Ferguson, Missouri which have generated wide-spread agreement that local courts need to change the ways they process, prosecute, and punish low-level ordinance violations. Indeed, as the nation has now learned, aggressive pursuit of fines and court fees through traffic cases and related quality-of-life actions are one of the most troubling aspects of life for many poor residents in St. Louis and beyond.

Yet, juveniles – youth under the age of eighteen – are a population whose experiences have received almost no attention in the course of these critiques and recent calls for reform.

This article fills that gap by opposing prosecution of minors in municipal courts – venues largely focused on financial enrichment of the localities they serve. It explains that municipal courts frequently deploy localized punitive practices against children that work to displace state and federal standards intended to protect them from harm, including taking cash from kids. Thus it urges rejection of in loco juvenile justice practices and instead argues youth – as a matter of common sense and constitutional doctrine – should have a right to juvenile court as venue of first resort.

The ABA Journal recently had an article about lawyer burnout which certainly has some applicability to judges:

Two character traits—perfectionism and pessimism—are prevalent among lawyers and may make them prone to anxiety, according to Gayle Victor, who worked as a consumer debt attorney for 25 years before becoming a social worker. “Perfectionism helps lawyers succeed in practice because the profession is excessively detail-oriented. In the Johns Hopkins study, optimism outperformed pessimism—except in the legal profession, because lawyers are hired to always look out for what can go wrong.” Stressed-out lawyers account for 75 percent of Victor’s practice, Care for Lawyers, which is based in Evanston, Illinois.

Taken to the extreme, perfectionism transforms into a feeling that nothing is good enough. “Attorneys develop an overdeveloped sense of control, so if things don’t go as planned, they blame themselves. They think they didn’t work hard enough or they were careless,” explains Tyger Latham, a Washington, D.C.-based psychologist who treats many lawyers and law students. “Paid worriers, lawyers are expected to predict the future, to anticipate threats and guard against anything that could arise. So they learn to see problems everywhere, even when they don’t exist. And they start to perceive threats as if they’re life-or-death matters. That’s the very definition of anxiety.”

The full article and — more importantly — some suggested solutions can be found here.

Anna Roberts (Seattle University School of Law) has posted Reclaiming the Importance of the Defendant’s Testimony (University of Chicago Law Review, Vol. 83, 2016) on SSRN.

Here is the abstract:

Implicit courtroom stereotypes are an urgent problem. When, as is disproportionately the case, trial defendants are African-American, they are vulnerable to implicit fact finder stereotypes that threaten the presumption of innocence: unconscious associations linking the defendants with violence, weaponry, and guilt. Implicit social cognition reveals that one valuable tool in combating this threat is individuating information — information that, through methods such as defendant testimony, brings an individual to unique life.

Yet current case law frequently chills defendant testimony by permitting impeachment by prior conviction. Courts determining whether criminal defendants should be impeached by their prior convictions use a multi-factor test, of which one factor is “the importance of the defendant’s testimony.” This factor was designed to prevent defendant testimony from being chilled: if the testimony was important, then impeachment was to be avoided. Now, courts often invert the factor’s meaning: they find that if the defendant’s testimony is important, the government should be able to impeach it. The distortion of this factor means not only that impeachment is typically permitted, and defendants frequently silenced, but also that a valuable opportunity to tackle courtroom bias is lost.

This Article proposes that the “importance of the defendant’s testimony” factor should be reclaimed as a means for defendants to argue that the individuating information that their testimony can offer militates against permitting impeachment. Where the defendant’s race risks triggering stereotypes that threaten the presumption of innocence, individuation represents a crucial part of the struggle for a fair trial.

Giving people a second chance seems obvious to some and to others quite contrary. Judges occasionally expunge records, but in an information age it is questionable whether anything can really be expunged. Moreover there are judicial leaders who advocate giving people a second chance – and yet the hiring policies of the judiciary are often not a model for employers willing to give people the second chance judges encourage the private sector to give individuals. Forgiveness is, in short, a challenge.

Jenny Roberts (American University, Washington College of Law) has posted Expunging America’s Rap Sheet in the Information Age (Wisconsin Law Review, Vol. 2, No. 321, 2015) on SSRN.

Here is the abstract:

As the Wall Street Journal recently put it, “America has a rap sheet.” Today, between 70 and 100 million people in the United States have a criminal arrest or conviction record, and anyone — including employers, landlords, and data collection companies — can easily access these records on line. At the same time, collateral consequences of even the most minor offenses have increased exponentially, affecting employment, housing, parenting, and just about every other aspect of daily life. The convergence of mass criminalization, ubiquitous criminal records, and pervasive collateral consequences is a major factor in the criminal justice system’s troubling racial and economic disparities.

States are reacting to the criminal records crisis in different ways, with many focusing on expanding record sealing or expungement laws that currently range widely in the relief offered. The time has come for a well-tailored response to mass criminalization and collateral consequences in the information age.

Sealing and expungement laws must be part of a multi-faceted approach to alleviating harmful consequences of a criminal record. The goal of limiting access to and use of relevant criminal records to those with a legitimate need to know is best advanced through focused legislative reform.

This Article describes why well-crafted sealing and expungement laws matter, responds to the major moral and practical arguments against such laws, and situates sealing and expungement as part of a comprehensive scheme for relief from a criminal record. Reforms might include regulating data brokers to ensure that sealed or expunged records are removed from their databases, banning employers from asking about arrests not ending in conviction or expunged convictions in the absence of a statutory mandate to do so, and offering employers who comply with such rules immunity from certain negligent hiring lawsuits.

The starting and ending point is that the vast majority of prosecutors in the federal and states courts are dedicated and often over worked public servants. But, there is little doubt that the adversary system of justice has brought out the worst of people occasionally

Brady v. Maryland is nearly fifty years old yet there remain far too many instances of “Brady non-compliance.” Appellate courts find prosecutorial error and simultaneously say it was harmless error. Too often there is more discussion in opinions about why the error is harmless, and not enough discussion about why the prosecutorial behavior is wrong and should not be repeated.

It is in that context that the WSJLaw blog recently had an interesting piece:

If you could look beneath the blindfold worn by Lady Justice, would her eyes be closed? One of the nation’s most influential judges suggests she would be giving a wink to prosecutors seated across from the defendant.

In the latest issue of Georgetown Law Journal, Judge Alex Kozinski of the Ninth U.S. Circuit Court of Appeals turns a critical gaze toward America’s criminal justice system. It’s a long piece — part diagnosis of ailments and part treatment — with a broad sweep. But one of its major themes is prosecutorial advantage, both in federal and state courtrooms.

“They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape,” writes Judge Kozinski.

Among his specific concerns is what he sees is a reluctance on the part of judges to blow the whistle on prosecutorial abuse:

Defense lawyers who are found to have been ineffective regularly find their names plastered into judicial opinions, yet judges seem strangely reluctant to name names when it comes to misbehaving prosecutors. Indeed, judges seem reluctant to even suspect prosecutors of improper behavior, as if they were somehow beyond suspicion….Naming names and taking prosecutors to task for misbehavior can have magical qualities in assuring compliance with constitutional rights.

If judges have reason to believe that witnesses, especially police officers or government informants, testify falsely, they must refer the matter for prosecution. If they become aware of widespread misconduct in the investigation and prosecution of criminal cases, a referral to the U.S. Department of Justice for a civil rights violation might well be appropriate.