The Rundown

Hello,

This is the first release of The Rundown, which will hopefully be a series of broadcasts aimed at explaining some of what the American Judges Association, and I as the president, do on behalf of the members of the association.

Recently I had the opportunity to attend the mid-year meeting of the Conference of Chief Justices which was held in San Antonio, Texas.  The Conference is made up of the all of the State Chief Justices from around the US, and the Chief Justices of the various territories including Guam and the U.S. Virgin Islands. By the way, the Chief Justices of Guam and the Virgin Islands are both great people, and they said to invite all of you to come visit.

Actually, all of the Justices I met were hard working and friendly and while I could not attend every session, their conference was filled with things that might interest you.  Let me simply mention two of them.  The Amicus Review Team met to discuss the conference’s amicus brief filled in the case of Yulee v. the Florida Bar Association. The plaintiff in Yulee, as many of you know, sued to overturn the ban on direct judicial fundraising. The Justices on the committee discussed their brief in support of the Florida ban and possible outcomes including how the ethics rules in all of the states that have elections would have to be changed if the plaintiff prevails.  Those of you in states with judicial elections might want to take a moment to read the transcript of the Supreme Court argument:

http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-1499_bq7c.pdf

William C. Hubbard, the President of the American Bar Association was the keynote speaker for the judicial luncheon. He spoke about the problem of over-incarceration, noting that while the United States has only five percent of the world’s population it has twenty-five percent of the world’s prisoners.  He pointed out that sentencing reform was one of the few places where the ACLU and the Heritage Foundation are in agreement. He argued there is a need to reform the way we sentence defendants. His speech received a warm reception from the Justices. I had a chance to speak with him later at a social event and found him to be quite the southern gentleman.

On the evening of the second day of the conference we attended a special dinner event at the Mission San Jose, known as the “Queen of Missions”.  This Mission is the largest in the United States, and was fully restored by the WPA in the 1930’s. As you can see from the picture, it was a wonderful place for a meal and conversation.

Finally, my wife and I had a chance to enjoy the Riverwalk and to visit the Alamo. There I learned, to my everlasting disappointment, that John Wayne’s movie had it wrong.  If you too want to be disappointed, here is a link telling the actually story of the Alamo:

http://www.dailymail.co.uk/news/article-2026338/Davy-Crocketts-defiant-stand-Alamo-lasted-just-20-minutes-claim-historians.html

That is it for now.  I hope to write again soon.  Thanks and be well. Brian MacKenzie

The Associated Press reports:

Pennsylvania Gov. Tom Wolf (D) announced that he has placed a moratorium on the state’s death penalty.

Wolf said the moratorium will remain until has reviewed an upcoming report by the Pennsylvania Task Force and Advisory Commission on Capital Punishment, which was established in 2011 to review the death penalty policy.

“This moratorium is in no way an expression of sympathy for the guilty on death row, all of whom have been convicted of committing heinous crimes,” Wolf said in a statement. “This decision is based on a flawed system that has been proven to be an endless cycle of court proceedings as well as ineffective, unjust, and expensive.”

Wolf’s action put the execution of Terrance Williams on hold. Williams, who was convicted of a 1984 murder, was scheduled to be executed on March 4. Williams would have been the first person executed in the state since 1999.

According to the state, Pennsylvania currently has 186 inmates on death row.

Governor Wolf’s full announcement can be found here.

The New York Times story about the director of the FBI’s speech about law enforcement began:

The F.B.I. director, James B. Comey, on Thursday delivered an unusually frank speech about the relationship between the police and black people, saying that officers who work in neighborhoods where blacks commit crimes at higher rates develop a cynicism that shades their attitudes about race.

He said that officers — whether they are white or any other race — who are confronted with white men on one side of the street and black men on the other do not view them the same way. The officers develop a mental shortcut that “becomes almost irresistible and maybe even rational by some lights” because of the number of black suspects they have arrested.

“We need to come to grips with the fact that this behavior complicates the relationship between police and the communities they serve,” Mr. Comey said in the speech, at Georgetown University.

While officers should be closely scrutinized, he said, they are “not the root cause of problems in our hardest-hit neighborhoods,” where blacks grow up “in environments lacking role models, adequate education and decent employment.”

“They lack all sorts of opportunities that most of us take for granted,” Mr. Comey said.

Mr. Comey’s speech was unprecedented for an F.B.I. director. Previous directors have limited their public comments about race to civil rights investigations, like those of murders committed by the Ku Klux Klan and how the bureau wiretapped the Rev. Dr. Martin Luther King Jr.

People will listen because of who Mr. Comey is, but we need more people to speak up. The relationship between judges and people of color is also very important – and there are hard truths to be said about that as well

Lack of role models, adequate education and decent employment affect how judges make decisions about bail and sentencing every day. There may well be no panacea for judges to make this a better world, but remembering that the people who appear before us all too often “lack all sorts of opportunities that most of us take for granted” is a decent place to start.

A copy of Mr. Cormey’s remarks can be found here.

In her paper, Governance: The Final Frontier, Mary McQueen writes:

This paper suggests that court leaders and their allies may have based reform efforts on incompatible organizational models, which has hindered progress in improving court governance.  Too much attention and energy has been focused on finding ways to emulate in the court environment what appears to work in administering or governing executive branch agencies and private businesses.  This paper argues that court leaders should instead consider what is called a “loosely coupled organization” model for governing courts and look to the processes and mechanisms that the leaders of those organizations use to achieve effective governance.

So, just how loosely coupled should Kansas courts be? Can they be loosely coupled and simultaneously unified?  Recently, the chief judge for the Thirtieth Judicial District in Kansas, Larry T. Solomon, filed suit against the state, arguing that a new law that strips the Kansas Supreme Court of its power to administer the district courts is unconstitutional.

“The people of Kansas ratified an amendment to the Constitution that says the state judiciary would be administered by a unified judicial system,” Matthew Menendez told the Lawrence Journal World. “This law flies in the face of that amendment and could delay justice for all Kansans.” Judge Solomon is represented by the Irigonegaray & Associates, Kaye Scholer LLP, and the Brennan Center for Justice.

Read more in The Wichita Eagle.

There has been a lot of legal news regarding same sex marriage in the past few weeks, but what about other legal issues that arise out of sexual orientation?  There is an interesting development in New Jersey that thus far has received little attention:

ADVERTISING LAW

By Martha Neil, ABA Journal

A New Jersey lawsuit against a group that referred individuals to therapists who claimed to be able to help clients change their sexual orientation won’t be tried before this summer.

But a Tuesday ruling by the judge overseeing the case is being hailed by the Southern Poverty Law Center, which brought the suit, as a significant milestone. For the first time, they say, a court has found that therapists who make such claims are committing consumer fraud, reports the New Jersey Advance.

“It is a misrepresentation in violation of the Consumer Fraud Act, in advertising or selling conversion therapy services to describe homosexuality, not as being a normal variation of human sexuality, but as being a mental illness, disease (or) disorder,” wrote Superior Court Judge Peter Bariso Jr.

He also found there is no factual basis for advertising a claimed success rate for such therapy and, in another ruling last week, barred testimony by defense witnesses who planned to describe homosexuality as an illness.

Charles LiMandri of the Freedom of Conscience Defense Fund is representing the defendant, Jews Offering New Alternatives for Healing.

He said he expects JONAH to prevail at trial because the group did not advertise success rates and did not, “in a scientific sense,” claim that being homosexual is a disorder, the Advance reports.

“This is not a situation in which people are forced into something they don’t want to do,” LiMandri said, contending that the plaintiffs in the suit are trying to prevent others from the right to make choices for themselves.

“Americans want people to have the right to free self-determination,” he said. “I believe when the jury hears all the facts, they will ultimately decide in favor of our clients.”

Melissa Hamilton (University of Houston Law Center) has posted Back to the Future: The Influence of Criminal History on Risk Assessment (Berkeley Journal of Criminal Law (Forthcoming)) on SSRN.

Here is the abstract:

Evidence-based practices providing an empirical basis for predicting recidivism risk have become a primary focus across criminal justice decision points. Criminal history measures are the most common and heavily weighted factors in risk assessment tools, yet is such substantial reliance fully justified? The empirical and normative values placed on criminal history enjoy such commendation by criminal justice officials, practitioners, and the public that these practices are rarely questioned. This paper fills the gap by introducing and exploring various issues from legal, scientific, and pragmatic perspectives.

As a general rule, a common assumption is that past behavior dictates an individual’s likely future conduct. This axiom is often applied to criminal behavior, more specifically, in that prior offending is considered a primary driver to predict future recidivism. Criminal justice officials have a long history of formally and informally incorporating risk judgments into a variety of criminal justice decisions, ranging from bail, sentencing, parole, supervisory conditions, and programming. A more contemporary addendum represents empirically informed risk assessment practices that integrate actuarial tools and/or structured professional judgments. Various criminal history measures pervade these newer evidence-based practices as well. Instead of presuming the value and significance of prior crimes in judging future recidivism risk, this Article raises and critically analyzes certain unexpected consequences resulting from the significant reliance upon criminal history in risk assessment judgments. Among the more novel issues addressed include: (1) creating a ratchet effect whereby the same criminal history event can be counted numerous times; (2) resulting in informal, three-strikes types of penalties; (3) counting nonadjudicated criminal behaviors and acquitted conduct; (4) proportionality of punishment; (5) disciplining hypothetical future crime; (6) punishing status; and (7) inadequately accounting for the age-crime curve. In the end, criminal history has a role to play in future risk judgments, but these issues represent unanticipated outcomes that deserve attention.

Charlie Gerstein has posted Plea Bargaining and the Right to Counsel at Bail Determination (Michigan Law Review, Vol. 111, No. 1513, 2013) on SSRN.

Here is the abstract:

A couple million indigent defendants in this country face bail hearings each year, and most of them do so without court-appointed lawyers. In two recent companion cases, Lafler v. Cooper and Missouri v. Frye, the Supreme Court held that the loss of a favorable plea bargain can satisfy the prejudice prong of an ineffective assistance of counsel claim. If the Constitution requires effective assistance of counsel to protect plea bargains, it requires the presence of counsel at proceedings that have the capacity to prejudice those bargains. Pretrial detention has the capacity to prejudice a plea bargain because a defendant held on bail will plead guilty when faced with any deal that promises he will serve less time than he expects to wait in jail. Because a bad outcome at a bail hearing can prejudice the defendant in subsequent plea bargaining, bail is now a critical stage.

Jack Healy has this article in The New York Times:

Utah Court Strips Criminal of Right to Counsel, and Some Lawyers Object

For David M. Corbett, a lawyer in Salt Lake City, the breaking point came when his client, a white supremacist convicted of murdering a prison officer, began threatening him, then managed to learn Mr. Corbett’s home address and mailed him an envelope of legal papers. Mr. Corbett, rattled, asked to be taken off the case.

The Utah Supreme Court agreed, but it went a big step further in an unusual ruling that added an asterisk to one of the bedrock rights of America’s legal system. The court said that the defendant, Curtis Allgier, had behaved so badly with so many court-appointed lawyers that he had forfeited his right to counsel as he appealed his murder conviction.

“Forfeiture is a drastic measure,” the court wrote in a ruling.  But it said that in this case, it was justified in cutting off his access to public defenders: “Mr. Allgier has made a series of threats to multiple appointed appellate attorneys.”

You can access the per curiam ruling of the Supreme Court of Utah at this link.

California judges will no longer be allowed to participate in the Boy Scouts organization after the state Supreme Court voted to eliminate an exception to a rule that bars jurists from being a part of discriminatory organizations.

The Judicial Branch of California issued a news release titled “Supreme Court Eliminates Ethics Exception that Permitted Judges to Belong to Nonprofit Youth Organizations That Discriminate.” Although there are judges and others who hope that the Boy Scouts of America will discontinue barring gay and lesbian adults from serving as leaders in the organization so far that has not happened.

California’s judicial code of ethics bars judges from holding “membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity or sexual orientation.”

Until this new order, California had provided an exception covering nonprofit youth organizations, including the Boy Scouts – the only state in the nation to do so.

California is one of 47 states that ban judges from joining discriminatory groups, and one of 22 that include a ban on groups that discriminate on the basis of sexual orientation.

An ethics advisory committee to the California Supreme Court proposed the change again last year, saying it would “promote the integrity of the judiciary” and “enhance public confidence” in the judicial branch’s impartiality.

The WSJ Lawblog has an interesting article discussing the issue of how should the criminal justice system deal with defendants whose criminal convictions hinged on evidence tested at a scandal-ridden crime lab.

It’s a vexing question for prosecutors and judges, and one that has gained urgency amid a string of reports across the country about lab failures.  Massachusetts’s highest court will try to tackle it.

Reports WSJ’s Jennifer Levitz:

The state Supreme Judicial Court will hear arguments on a request to toss out tens of thousands of convictions tied to a former Massachusetts drug-lab chemist who is serving a prison sentence after pleading guilty in 2013 to tampering with evidence.

The actions by Annie Dookhan, who worked at the lab from 2003 to 2012, potentially tainted 40,323 drug cases, state officials have said.

The American Civil Liberties Union of Massachusetts, which filed the petition, says convictions based on Ms. Dookhan’s tests should be presumed flawed and set aside en masse. District attorneys argue reviews should be done on a case-by-case basis.

“This is potentially an extremely important opportunity to create a model for other states,” said University of Virginia School of Law professor Brandon Garrett, an expert in criminal procedure. “These crime-lab scandals are not going away. There need to be ground rules to grant relief for all these people whose cases are affected.”

Massachusetts discovered the problem in 2012 while transferring control of the lab to the state police from the state public-health agency. Ms. Dookhan, known as one of the most productive chemists at the lab, admitted to visually identifying some drugs rather than performing the required chemical test, according to prosecutors.

She pleaded guilty to more than two dozen charges and was sentenced to three to five years in prison.

A separate report issued by the governor’s office found that many of the 40,323 tainted cases involved low-level drug offenses that didn’t lead to prison time but saddled defendants with the potential consequences of a criminal record.

As of late November, close to 1,000 people had undergone hearings seeking new trials, plea withdrawals or other relief related to the lab scandal, according to the WSJ article, citing state court officials. About 375 people had been released from the state Department of Corrections as of Dec. 29.