It is often difficult for a trial judge to be blunt in written opinions. “The police officers’s description of what happened is simply not credible” are words that do not frequently appear. So, perhaps there is a lesson for all judges in an opinion from Canada:

In R. v. Kennedy, 2015 SKCA 32, April 8, 2015, the accused was convicted of the offense of assault with a weapon. The complainant (Mr. Cheon) testified that the accused was the person who assaulted him.  The accused denied doing so and argued the complainant was lying based upon a prior dispute.  

The trial judge cautioned herself concerning the frailties of eye-witness evidence and concluded that the evidence provided by the accused was “vague and evasive.” 

The accused appealed from the conviction, arguing that the trial judge’s reasons were insufficient.

In convicting the accused the trial judge reviewed Mr. Cheon’s testimony. The Saskatchewan Court of Appeal noted that “the trial judge listed various factors that she saw as either detracting from or supporting its weight.”  However, the Court of Appeal also noted that at “no point in her decision did the trial judge speak to, or consider, the question of Mr. Cheon’s credibility. In our respectful view, this was a significant oversight given the defence theory that Mr. Cheon was not telling the truth about the identity of his attacker and given defence counsel’s submission that Mr. Cheon was attempting to get Mr. Kennedy into criminal law difficulties just as the evidence suggested he had done on an earlier occasion.”

The Court of Appeal concluded that this required the ordering of a new trial (at paragraph 41):

In short, given the defence theory in this case, and given the nature of the evidence before her, it was incumbent on the trial judge to deal directly with the question of Mr. Cheon’s credibility. Her failure to do so means the trial decision was not responsive to the central argument of the defence or to the “live issues” in the case. See: R v Dinardo, 2008 SCC 24 (CanLII) at para 25, [2008] 1 SCR 788. It also means that it is not possible for this Court to properly discharge its appellate review function.

Achieving Justice is a serious task. Each day judges makes decisions that affect many people’s lives. Trying to find ways to directly address morale in the court house and collegiality within the legal community is an important task for all judicial leaders. So, the brief story in the ABA Journal may be an idea that others could try:

Shocked years ago to learn that many of the clerks for the 9th U.S. Circuit Court of Appeals had never seen 12 Angry Men, Judge Alex Kozinski arranged a screening of the classic film, starring Henry Fonda as a holdout juror.

That was the beginning of a free public movie night hosted by Kozinski several times annually at the 9th Circuit’s headquarters in San Francisco or its Pasadena, California, building, reports the Los Angeles Times (sub. req.).

Himself a film buff, the judge not only selects which film to screen for the Kozinski’s Favorite Flicks event, he also often arranges for a related speaker and provides food and drink. (That costs $10, for those who wish to partake.)

Guest speakers often have a legal background, or know someone who does, and have included U.S. Supreme Court Justice Stephen G. Breyer and his brother, a judge in San Francisco. Peter Fonda, who starred in Easy Rider, came to a screening of that film. Last year, when the 9th Circuit held its annual conference, Kozinski showed Gran Torino, and star Clint Eastwood was interviewed by Kozinski and another judge.

The 64-year-old judge calls the event a labor of love. He purchases the food at Costco, and his longtime administrative assistant, Donna Salter, makes a famous salad, the newspaper reports.

“It’s a lot of work, but it’s fun,” she told the Times, noting that “my mother, who is 93, always comes” when movie night is held in Pasadena.

In addition to acquainting others with some of his favorite films, Kozinski says the event helps the public see the judicial system in a different light.

“We should be viewed as being part of the community,” he told the newspaper. “We have these glorious facilities, and I want to bring the public in and show that this is a place where they are welcome.”

Last fall in Town of Greece v. Galloway the United States Supreme Court held in a 5-4 decision  that the town’s practice of opening its town board meetings with a prayer offered by members of the clergy does not violate the Establishment Clause when the practice is consistent with the tradition long followed by Congress and state legislatures, the town does not discriminate against minority faiths in determining who may offer a prayer, and the prayer does not coerce participation with non-adherents.  Now the Supreme Court of Canada has issued its opinion.

The Globe and mail reported:

Cities and towns across Canada began to review their tradition of reciting prayers at the start of council meetings after the Supreme Court ruled that the practice in one Quebec community violated religious liberties.

In a unanimous judgment tackling faith and freedoms in Canadian public life, the court ordered the city of Saguenay to cease its prayer inside its council chambers and pay damages to the citizen who fought the case on the basis his rights as an atheist had been trampled.

The court awarded the citizen, Alain Simoneau, more than $30,000 in damages, and issued a legal rebuke to the outspoken and staunchly devout mayor of Saguenay, Jean Tremblay. The mayor had invoked history and Quebec’s Roman Catholic heritage to justify his council’s prayer, an argument the court rejected.

“Sponsorship of one religious tradition by the state in breach of its duty of neutrality amounts to discrimination against all other such traditions,” Justice Clément Gascon, from Quebec, said in writing for the court.

Prayer is a religious practice, the court said. “Even if it is said to be inclusive, it may nevertheless exclude non-believers.”

The judgment affirmed governments’ responsibility to remain neutral, and its impact reached immediately into municipalities across Canada. Mayors in Ottawa, Lévis, Que., and Dieppe, N.B., began to review the towns’ practice of reciting prayers, and some already vowed to jettison them.

President Obama issued a proclamation just for us (and our fellow public servants across the country)!

Being a judge too often does not generate a lot of thanks, so from the AJA leadership…thanks to each of you!!

Russell D. Covey (Georgia State University College of Law) has posted Abolishing Jailhouse Snitch Testimony (Wake Forest Law Review, Vol. 49, 2014) on SSRN.

Here is the abstract:

Jailhouse snitch testimony is inherently unreliable. Snitches have powerful incentives to invent incriminating lies about other inmates in often well-founded hopes that such testimony will provide them with material benefits, including in many cases substantial reduction of criminal charges against them or of the time they are required to serve. At the same time, false snitch testimony is difficult, if not altogether impossible, for criminal defendants to impeach. Because such testimony usually pits the word of two individuals against one another, both of whose credibility is suspect, jurors have little ability to accurately or effectively assess or weigh the evidence. Moreover, research suggests that jurors frequently succumb to fundamental attribution error and unwittingly fail to properly discount the reliability of evidence supplied by biased and self-interested witnesses.

Although a few jurisdictions have placed modest limits on jailhouse snitch testimony, no jurisdiction has banned jailhouse snitch testimony outright, relying instead on the traditional tools of trial practice – cross-examination and post-conviction review – to screen out unreliable evidence and safeguard defendants’ rights.

These methods, however, are plainly insufficient, as demonstrated by the mounting evidence of wrongful convictions resulting from false snitch testimony. The only truly effective solution is the flat preclusion of jailhouse snitch testimony. The doctrinal infrastructure already exists to permit courts to move in this direction; the Supreme Court’s longstanding preclusion of coerced confession evidence provides a precedent readily applicable to confession evidence provided by jailhouse snitches. Although constitutionally-based exclusion of jailhouse snitch evidence is warranted, in all likelihood, change in this area will come, if it does, not through the courts but instead through legislative or executive action to take meaningful steps to reduce wrongful convictions.

• Percentage of last meals requested by male death-row prisoners that include salad or vegetables:  11

• Of those requested by female death-row prisoners:  62

Birmingham, Ala., April 2 (Reuters) – A man who has been on death row in Alabama for nearly three decades is expected to walk free on the orders of a local judge, officials said on Thursday.

Anthony Ray Hinton is expected to be released on Friday from a jail in Jefferson County, a spokesman for the Alabama Department of Corrections said.

Prosecutors decided not to retry him for the killings of two fast-food managers in 1985 after experts failed to determine that the bullets were fired from the gun found at Hinton’s house, according to District Attorney John Bowers.

“I’m absolutely thrilled. Nothing has kept me up at night more than the fate of Mr. Hinton,” said his attorney, Bryan Stevenson, director of the Alabama-based Equal Justice Initiative, who has worked on the case for 16 years.

“I don’t think I have ever had a case that so exemplified the problems with our criminal justice system,” he added.

Alabama Circuit Court Judge Laura Petro dismissed the case on Thursday a little over a year after Hinton’s conviction was overturned by the U.S. Supreme Court.

Hinton, 59, has been in jail since age 29, most of the time in a solitary death row cell, said his lawyer, adding that his client was emotional on Wednesday night before his court date.

Kathryne M. Young (Stanford University – Bill Lane Center for the American West) has posted Outing Batson: How the Case of Gay Jurors Reveals the Shortcomings of Modern Voir Dire (Willamette Law Review, Vol. 48, No. 243, 2011-12) on SSRN.

Here is the abstract:

Although scholarly attention has been devoted to the argument that Batson v. Kentucky should apply to gay and lesbian jurors, little or no attention has been paid to how these challenges would work in practice. This article is, foremost, a thought experiment about how peremptory challenges would function if Batson were applied to sexual orientation. I examine several scenarios to understand the practical implications of this change and conclude that it would be ineffective at best and socially appalling at worst. My analysis reveals a fundamental problem with the current peremptory system: it fails to take into account the complex nature of social identity and the psychological realities of human interaction and bias. The goal of equal protection, I suggest, would be better served if changes were made to the existing peremptory challenge system, such as reducing the number of challenges allowed and requiring a Batson-style explanation for every peremptory challenge exercised.

The Urban Institute recently released this significant new report titled, “The Processing and Treatment of Mentally Ill Persons in the Criminal Justice System: A Scan of Practice and Background Analysis.”

Here is an excerpt from the first few paragraphs of the report’s executive summary (with few references omitted):

Mentally ill offenders possess a unique set of circumstances and needs. However, all too often, they cycle through the criminal justice system without appropriate care to address their mental health.  According to the Bureau of Justice Statistics, individuals with mental health needs make up a large proportion of the US correctional population.  An estimated 56 percent of state prisoners, 45 percent of federal prisoners, and 64 percent of jail inmates have a mental health problem.  These individuals often receive inadequate care, with only one in three state prisoners and one in six jail inmates having received mental health treatment since their admission.  Offenders with severe mental illness place even more strain on the criminal justice system as a whole, in terms of their unique case-processing requirements and treatment needs and their increased risk of recidivism. Housing mentally ill offenders in the criminal justice system is costly.  In addition to high health care costs, mentally ill inmates tend to have higher rates of prison misconduct and recidivism.

Despite the evidence that mental illness in the criminal justice system is a pressing concern, our comprehensive effort to identify cost-effective, evidence-based programs and policies for managing and treating mentally ill persons in the criminal justice system brought to light how limited current knowledge is on this topic.  There have been only a few rigorous evaluations of criminal justice programs and policies targeted at mentally ill offenders.  This limitation, in and of itself, is a notable finding, as it shows what more needs to be done to better understand how to effectively alleviate the costs and challenges of treating and processing offenders with mental illness in the criminal justice system. Given these challenges and their financial consequences for society and governments, it is important to understand how to identify and provide early intervention for those who suffer from mental illness in the criminal justice system.

This report focuses on the societal and economic costs of holding mentally ill offenders in jails and prisons.  It also presents a detailed discussion of how mentally ill offenders are processed in the criminal justice system, highlighting the diversity of protocols and practices outlined in state statutes to address these challenges.  Further, it discusses several promising criminal justice interventions and policies for mentally ill offenders….

There may well be no more dedicated legal blogger than Professor Douglas Berman. He is the Sentencing Law & Policy Blog. He recently wrote:

I did not miss this notable new story from the state up north headlined “Sex offenders can be within 1,000 feet of schools after federal judge strikes down parts of law.  Here are the details:

A federal judge struck down some portions of Michigan’s Sex Offender Registry Act in a court decision handed down last week.  U.S. District Court Judge Robert Cleland issued a ruling March 31, striking down four portions of Michigan’s Sex Offender Registry Act, calling them unconstitutional.  The ruling came in a lawsuit filed by the American Civil Liberties Union on behalf of five John Does and one Jane Doe against Michigan Gov. Rick Snyder and Michigan State Police Director Col. Kriste Etue.

Cleland’s ruling stated the “geographic exclusion zones” in the Sex Offender Registry Act, such as student safety areas that stretch for 1,000 feet around schools, are unconstitutional, according to court documents.

The law is too vague on whether the 1,000 feet barrier should be as the crow flies or how people actually travel, and if it goes from building-to-building or property-line-to-property-line, Cleland said in his ruling.  “While a prescribed distance may appear concrete on its face, without adequate guidance about how to measure the distance, such provisions are susceptible to vagueness concerns,” he wrote.

Cleland also stated law enforcement doesn’t have strong enough guidelines to know how to measure the 1,000-foot exclusion zone around schools. Neither sex offenders or law enforcement have the tools or data to determine the zones, even if the guidelines on how to measure the zones were stronger, he said. “Accordingly, due to (the Sex Offender Registry Act’s) vagueness, registrants are forced to choose between limiting where the reside, work and loiter to a greater extent than is required by law or risk violating SORA,” he wrote.

Cleland struck down other portions of the law as well, but ruled in favor of the government on the rest of the lawsuit. Other portions of the law ruled unconstitutional were: a requirement to report in person to the “registering authority” when an offender begins to drive a vehicle regularly or begins to use a new e-mail or instant messaging address; a requirement for an offender to report all telephone numbers routinely used by an offender; a requirement to report all e-mail and instant messaging addresses; a requirement to report the license plate number, registration number and description of any motor vehicle, aircraft or vessel used by an offender….

The ruling drew an immediate reaction from State Sen. Rick Jones, R-Grand Ledge. In a statement released Tuesday morning, Jones, a former sheriff, said he plans to help rewrite the law to make up for the judge’s ruling. “I warn sex offenders to stay away from schools. This is one judge’s ruling, and the law will soon be changed to clarify it,” said Jones, the chair of the Senate Judiciary Committee. “I’m working to make sure there is no vagueness in Michigan’s Sex Offender Registry law. Child molesters must stay away from our schools. Law enforcement will be watching.”

The full ruling, which runs 70+ pages, is available at this link.