A recent criminal justice-related article in The New York Times touches on implicit bias.

Some excerpts:

But studies suggest that implicit bias, rather than explicit racism, is behind many recent tragedies. Indeed, simulator experiments show that the biggest danger posed to young African-American men may not be hate-filled cops, but well-intentioned police officers exposed to pervasive, damaging stereotypes that link the concepts of blackness and violence.

Likewise, Americans have been sold a myth that there are two kinds of judges — umpires and activists — and that being unbiased is a choice that a person makes. But the truth is that all judges are swayed by countless forces beyond their conscious awareness or control. It should have no impact on your case, for instance, whether your parole hearing is scheduled first thing in the morning or right before lunch, but when scientists looked at real parole boards, they found that judges were far more likely to grant petitions at the beginning of the day than they were midmorning.

The full article is available here.

Since In Re Gault, judges in the United States have struggled with how to apply appropriate rules of procedure for juveniles. In its opinion, the Court in Gault underscored the importance of due process, stating that it “is the primary and indispensable foundation of individual freedom,” and that “the procedural rules which have been fashioned from the generality of due process are our best instruments for the distillation and evaluation of essential facts from the conflicting…data that life and our adversary methods present.”  In re Gault, 387 U.S. 1, 20 (1967).

Professor  David R. Katner (Tulane University – Law School) has posted Eliminating the Competency Presumption in Juvenile Delinquency Cases (24 Cornell Journal of Law and Public Policy 403 (2015)) on SSRN.

Here is the abstract:

The legal presumption used in virtually all juvenile delinquency cases in the U.S. is that all juveniles are competent to stand trial. This article calls for the elimination of that legal presumption, which is historically based on the Dusky v. United States decision and in the adult criminal justice system. The recent decisions of the U.S. Supreme Court recognize the developmental and organic brain differences between adults and juveniles. Current research demonstrates a higher frequency rate of incompetence based on intellectual deficiencies among children when compared with adults found to be not legally competent to stand trial.

By eliminating the competency presumption for juveniles in both delinquency and adult criminal proceedings, the party seeking an adjudication would be responsible for establishing that the accused juvenile is in fact, competent to stand trial. Foreign jurisdictions in Europe, Asia, Africa, and South America have long required higher thresholds — at least fourteen years of age — for holding juveniles accountable for criminal misconduct, none of them presuming that juveniles are competent to go to trial. In the alternative, by expanding the factors currently in use for determination of juvenile competency by adding developmental immaturity and mental illness, juvenile justice systems could identify the reduction of recidivist offending as the primary systemic objective.

CCI Seeks Criminal Courts to Participate in Procedural-Fairness Project

by Steve Leben

The Center for Court Innovation (CCI) is seeking courts to participate in an assessment of each court’s procedural-fairness practices. CCI is accepting applications until June 12 from local courts with the jurisdiction to hear criminal cases.

The official Request for Proposals gives full details on the project, but CCI says that it hopes to advance procedural-justice goals “by (1) highlighting promising practices for the field at large, (2) helping jurisdictions identify problem areas, and (3) outlining short- and longer-term plans to implement appropriate interventions.”

CCI suggests that this project “is targeted to criminal courts interested in deepening their understanding of procedural justice and examining whether and how their current practice promotes the core elements of procedural justice: voice, respect, understanding, and neutrality.” The selected sites will gain the feedback of outsiders who are familiar with the background research in this area.

The project will focus on four key areas at each site:

· Providing information about court procedures to court users and to the community;

· Fostering a user-friendly courthouse environment;

· Developing mechanisms to solicit and respond to feedback from staff and court users; and

· Improving the communication strategies used by judges and other court staff.

Project staff will provide suggestions for improving practices in each court.

There are many judges who are, to put it charitably, not enthusiastic about voir dire. But, are they right? In a quest to “get things moving,” have important questions been left out of the voir dire equation?

Vida B. Johnson (Georgetown University Law Center) has posted Presumed Fair? Voir Dire on the Fundamentals of Our Criminal Justice System (Seton Hall Law Review, Vol. 45, No. 2, 2015) on SSRN.

Here is the abstract:

The American criminal justice system is built on three bedrock principles: the presumption of innocence, the burden of proof, and the standard of proof beyond a reasonable doubt. These ideals, however, are frequently ignored by jurors. Social science research has shown that jurors routinely believe that a defendant must prove his innocence, and that the mere fact that the defendant is standing trial is proof of guilt. Jurors persist in these beliefs despite proper instructions on the law.

Despite the acknowledged centrality of these legal ideals, trial courts in many jurisdictions, routinely prevent defense attorneys from questioning prospective jurors on these fundamental legal issues based on a mistaken view that jurors will follow the given instructions.

Unlike instructions, voir dire regarding prospective jurors’ ability or willingness to apply the presumption of innocence and hold the government to its burden of proof beyond a reasonable doubt is not granted uniformly across jurisdictions. While the Supreme Court has sanctioned voir dire in capital cases on whether jurors can impose the death penalty, it has thus far remained silent on whether there is a right under the Due Process Clause to question prospective jurors on the presumption of innocence and the government’s burden of proof of beyond a reasonable doubt. The states and federal circuits are split on the question.

This Article explores whether, in order to ensure fundamental principles of fairness, voir dire questions about the presumption of innocence and the burden of proof should be required in all criminal jury trials.

There was a recent story in the Washington Post entitled, Uncle Sam Had Better Start Treating His Employees Right.  The story is not about courts, but there are important lessons for court leaders.  The article says, in part:

The Office of Personnel Management recently released SES Exit Survey Results, reflecting the responses of 221 senior executives, from 24 agencies, who participated in the survey from April 2013 through July 2014.

One of the most troubling lines in the report said: “Work environment issues are the highest contributing factors in an executive’s decision to leave.”

The single largest factor for leaving cited by these top federal employees was the “political environment.” It was blamed as a contributing factor “to a great extent” or “to a very great extent” by 42 percent of those surveyed. There was a three-way tie for second place, among “senior leadership,” “organizational culture” and a “desire to enjoy life without work commitments.”

Court leaders cannot print their own money, but they can have enormous positive (or negative) impact on the morale of the courthouse workforce.

Many of the funding debates and discussions are conducted in forums in which court leaders are not able to unilaterally dictate the ultimate results. Where court leaders can have an influence is with courthouse-employee morale. So maybe where we can all be terribly more effective is to lead institutions with great employee morale.

My friend Becky Kourlis recently wrote, “Lawyers and judges may have been the last to know, or maybe just the last to admit the truth. The American public is fed up with the civil justice system.  It costs too much, is convoluted and agonizingly slow.  In the end, it seems to be all about putting both parties in a posture where anything is better than forging ahead, and they settle — often with little attention to the facts or the law, but rather on the basis of who blinks first.  The parties who can afford it often escape into alternative dispute resolution systems where they can control the pace and, to some extent, the process.  The civil jury trial is all but gone, and the development of appellate case law arising out of trial court decisions in civil cases is waning.  In short, the American civil justice system — the bulwark of our social contract with one another that protects individuals, enforces constitutional rights and contracts — is in trouble. But, there is hope.”

I met Becky shortly after she resigned from the Colorado Supreme Court in a quest to establish an action-oriented think-tank devoted to reform of the American legal system (an admittedly daunting task).  IAALS under Becky’s leadership has been spectacularly successful in addressing issues of system change in our nation’s state and federal courts.  IAALS has issued a new publication Reforming Our Civil Justice System: A Report on Progress and Promise. The report calls for a sharp realignment of the discovery process and greater court resources to manage cases.

•           The “one size fits all” approach to trying cases is not optimal; the process appropriate for one case is not necessarily the process appropriate for another case. Both court rules and judicial case management strategies should reflect that reality.

•           Effective case management by judges is critical to each case, ultimately saving the parties time and money, and leading to more informed and reasonable resolutions. Management should be tailored to the needs of the case.

•           To accomplish this greater involvement by judges, courts need more resources. Where judicial resources are in short supply, those resources should be increased to allow courts and judges to work more efficiently and effectively.

•           Proportionality is reaffirmed to be a guiding principle for all discovery. This is a consistent theme across the country and a significant aspect of the proposed amendments to the federal rules of civil procedure.

Many of the ideas in this report are common practices in our states. But before we become too self-righteous, we owe it to the litigants to recommit to not just being good, but being the best at what we do.  To again quote Becky, “Great changes are underway already in some places, but our legal system and profession must unite around principles that can be extended nationwide, so that every court—and every litigant—will benefit.”

An Ohio appeals judge who plans to run for a spot on the Ohio Supreme Court is suing the state’s chief justice, saying the state’s rules on judicial campaigns are stifling her free speech.

Colleen O’Toole, a Republican judge on the 11th Ohio District Court of Appeals in Warren, wants a federal judge to overturn a state rule that allows judicial candidates to start raising campaign money only 120 days prior to a primary election.

O’Toole is one of at least four candidates who will be running for three open seats on the Ohio Supreme Court. The others, according to the lawsuit, are Chief Justice Maureen O’Connor and Cincinnati-based appeals judges Patrick DeWine and Patrick Fischer.

In her lawsuit, filed in a federal court in Columbus, O’Toole says she had $93.99 in her campaign accounts as of Dec. 31, while her opponents have thousands on hand. O’Connor, in particular, has $52,481, while DeWine has $245,493, the suit says.

This means both can start spending and actively campaigning, while O’Toole is severely limited, said her attorney, Curt Hartman. She believes this is a violation of free speech, and limits the “ability to compete on an equal footing in order to get our message out,” Hartman said.

O’Toole is also asking for an injunction to prevent the state from enforcing this rule while the case is being litigated.

There are some judges who get in the habit of “always” making certain activity prohibited as a condition of probation.  Perhaps no condition is more frequently set than prohibiting the use of alcohol. So, a recent Eighth Circuit case is worth noting.

In United States v. Woodall, the Appellant was convicted and sentenced for failing to register as a sex offender.  As a condition of supervised release, the sentencing court prohibited Appellant from consuming alcohol or entering bars or similar establishments.  The Eighth Circuit struck this condition, noting that Appellant only lightly consumed alcohol and occasionally used marijuana.  Absent evidence that Appellant was “drug dependent,” or that alcohol spurred his criminal behavior, the court held that the condition could not be justified.

The district court had rejected Mr. Woodall’s objection to the special condition relating to alcohol prohibitions.  The court based its imposition of the condition on its conclusion that “[t]here’s codependence between marijuana or other street drugs and alcohol.  When a person who has a history of substance abuse can’t use illegal drugs, they frequently will resort to alcohol, and that’s the basis for the alcohol condition.”

In R. v. Dick (K.D.), 2015 MBCA 47, April 27, 2015, the accused pleaded guilty to the offence of manslaughter.  The trial judge imposed a period of seven years imprisonment.  The accused appealed form sentence and argued that the sentencing judge erred in her consideration of his expression of remorse at the sentence hearing.

The Manitoba Court of Appeal noted that following sentencing submissions “the defence produced a written apology stated to be from the accused that defence counsel read to the court.  The sentencing judge questioned whether it was the accused’s words, given that, in her view, the sophistication of the vocabulary did not match the reduced level of his intellectual functioning as found by Dr. Somers.  Defence counsel said that the accused told her that he had help preparing it from his case manager and another inmate at the institution where he was being held.  Defence counsel also stated that the accused said that ‘these are his words, this is what he wanted to say and he had some help writing it out.’”

In response to the sentencing judge’s comments, defence counsel “offered to contact the case manager and get more information regarding the preparation of the apology, but the sentencing judge refused.  Instead, she suggested that the accused make his statement orally in court.  He attempted, but spoke only a few words to say that he was sorry.  This was significantly simpler than the written apology and did not demonstrate the insight into the effects of his criminal behaviour and the commitment to rehabilitation that was expressed in his written apology.”

In her written reasons for imposing sentence, the sentencing judge stated that “[t]he prepared statement is a sham attempt to demonstrate any sense of true remorse.”

On appeal, the Manitoba Court of Appeal concluded that the sentencing judge did not improperly consider the expression of remorse proffered.  The Court of Appeal held, at paragraphs 16 and 17, that given “all of the evidence available to the sentencing judge, it was open to her to conclude that the written apology was not that of the accused and that the remorse was not genuine…we do not find that the sentencing judge erred in her conclusion that the written apology was a sham on the part of the accused or that she gave it too much weight.  Thus, in the end, she did not commit any error in relation to her treatment of circumstances of the written apology, the accused’s lack of true remorse or the weight that she gave to those circumstances.”

However, the Court of Appeal also pointed out that “many accused have difficulties expressing themselves, both verbally and in writing” and that therefore there “is absolutely nothing wrong with an accused receiving some assistance in preparing a statement to be presented in court, as long as that statement expresses the true sentiments and insights of the accused” (at paragraphs 13 and 14):

It is clear that many accused have difficulties expressing themselves, both verbally and in writing.  There is absolutely nothing wrong with an accused receiving some assistance in preparing a statement to be presented in court, as long as that statement expresses the true sentiments and insights of the accused.  These statements are intended to have an impact on the sentence imposed, and, if they do not express the true sentiments and insights of an accused, then their use will result in an improper sentence.

In this case, given her later, rather strong finding that the written apology was a sham, it would have been better had the sentencing judge first permitted the defence to speak to the case manager to try to clear up the details of the preparation of the written apology.  In the end, however, there was evidence to support her findings that the apology was not written by the accused and that his remorse was not genuine.  The vocabulary and sophistication of the apology was inconsistent with Dr. Somers’ assessment of the accused’s mental deficits.  Further, as the sentencing judge noted, the pre-sentence report “further noted that [the accused] had expressed no remorse for his involvement in the death of [the deceased], but was more concerned about his own safety should he go to a federal institution” (reasons at para. 9).  This pre-sentence report was compiled only three months before the sentencing submissions.  In addition, while she does not specifically refer to this aspect of Dr. Somers’ report, she had clearly read it closely and there is no reference in Dr. Somers’ report to the accused expressing any remorse, although the accused did talk of the risk to himself in federal prison.  Dr. Somers’ report was prepared only one week before the presentation of the written apology.  Thus, if the accused did feel true remorse, it came very late in the game, which could lead to questions about whether it was genuine.

In Citizen’s United, The United States Supreme Court granted corporations the First Amendment right of people to participate in the political process. Now, in a 5-4 ruling the United States Supreme Court has held that laws barring judicial candidates from personally asking for campaign cash do not run afoul of First Amendment free speech rights.

“Judges are not politicians, even when they come to the bench by way of the ballot,” Chief Justice Roberts wrote. . “A state may assure its people that judges will apply the law without fear or favor – and without having personally asked anyone for money.”

The court’s four liberal justices joined Roberts.

The ruling took note of concerns that lawyers in particular might have a hard time refusing to contribute when a judge personally asks for campaign cash. Chief Justice John G. Roberts delivered the opinion of the Court (except as to Part II of his opinion) in Williams-Yulee v. Florida Bar. No. 13-1499. Justice Stephen G. Breyer issued a concurring opinion. Justice Ruth Bader Ginsburg issued an opinion concurring in part and concurring in the judgment, which Justice Breyer joined in part. Justice Antonin Scalia issued a dissenting opinion, in which Justice Clarence Thomas joined. And Justices Anthony M. Kennedy and Samuel A. Alito, Jr. also issued dissenting opinions.