From the Pew Research Center for the People & the Press:

Amid continuing tensions over the police shooting of an unarmed teen in Ferguson, Mo., most Americans give relatively low marks to police departments around the country for holding officers accountable for misconduct, using the appropriate amount of force, and treating racial and ethnic groups equally.

However, most also continue to express at least a fair amount of confidence in their local police forces to avoid using excessive force and to treat blacks and whites equally, though there are large racial gaps in opinion here as well as in views of police performance nationally. Public confidence in community police in these areas has not changed substantially since 2009.

The new national survey by the Pew Research Center and USA TODAY, conducted August 20-24 among 1,501 adults, finds that overall perceptions of relations between blacks and whites are only modestly changed from five years ago.

Currently, 69% of the public, including majorities of both whites (75%) and blacks (64%), say blacks and whites in this country get along “very well” or “pretty well.” Since 2009, the share of blacks with a positive view of relations between the races has fallen 12 points (from 76% to 64%) while remaining largely unchanged among whites (80% in 2009).

The full report can be found here.

The Fourth Circuit Court of Appeals, in upholding a firearms conviction, has held that police in Baltimore acted in good faith when using a tracking device without a warrant to follow the movement of a suspect:

In 2011, the police installed the battery-operated Global Positioning System device under the rear bumper of a vehicle parked in a public lot in suburban Baltimore. Officers used visual surveillance and the GPS tracker to find and stop the driver, Henry Stephens, the target of a gun and drug investigation. The police found a loaded pistol in Stephens’ vehicle.

Stephens pleaded guilty but kept alive his challenge of the admission of the evidence in the case. The installation of the device occurred before the U.S. Supreme Court, in January 2012, ruled in United States v. Jones that the warrantless use of a tracking device was a “search” under the Fourth Amendment that implicated privacy rights.

“The court did not, however, rule that all warrantless GPS searches violate the Fourth Amendment; instead, the court expressly declined to decide whether reasonable suspicion or probable cause may justify warrantless GPS attachment to vehicles, and that remains an open question,” Judge Dennis Shedd of the Fourth Circuit wrote for the majority.

Read more here (log-in required).

Governing Magazine has an interesting perspective on the causes of the trouble in Ferguson, MO…and perhaps there are lessons that courts can learn:

Much has been made of the apparently poor police-community relations in Ferguson, Mo., where a confrontation with the police two weeks ago left 18-year old Michael Brown dead and sparked weeks of community unrest. But there are other less visible yet no less serious indicators of simmering conflict in Ferguson, say experts, including one buried in the city’s Comprehensive Annual Financial Report (CAFR).

Ferguson’s budget relies heavily on public safety and court fines that have skyrocketed in recent years. A review of Ferguson’s financial statements indicates that court fine collections now account for one-fifth of total operating revenue. The St. Louis suburb of about 21,000 residents took in more than $2.5 million in municipal court revenue last fiscal year, representing an 80 percent increase from only two years prior, when fines netted about $1.4 million.

While the media has focused largely on the police department’s testy relationship with the majority black community and the city’s shifting demographics, longstanding frustration with the municipal court system may have also contributed to the civil unrest, say some.

Brendan Roediger, an assistant professor at the Saint Louis University School of Law who supervises a local civil advocacy clinic, said practices of the local court system are a major driver of Ferguson residents’ distrust of government and law enforcement. Roediger described a court system in Ferguson and select areas of St. Louis that function primarily as a revenue generator. “They don’t want to actually incarcerate people because it costs money, so they fine them,” he said. “It appears to be a blatant money grab.”

From his time representing clients in Ferguson, Roediger estimates the court — which holds three sessions each month — heard 200 to 300 cases per hour some days.

The full article is here.

Writing for the AJA blog — and occasionally authoring commentaries for other online publications, like MinnPost (see http://www.minnpost.com/author/judge-kevin-s-burke) — is interesting. It gives you a chance to share ideas and perhaps influence others. But, there may be a downside.

In a column for NJ.com, Donald Scarinci suggests that any online perspectives offered by lawyers may come under scrutiny if they are ever nominated to a judgeship. Attorney Stephen Bough, nominated to serve as a federal judge in the Western District of Missouri, has been blogging since 2007. During his hearing before the Senate Judiciary Committee last month, Bough was questioned about some potentially damaging comments he made on his blog.

Sen. Chuck Grassley, R-Iowa, noted that Bough himself acknowledged in one of his posts that he may not be cut out for a judgeship. ‘One time you said something you might regret,’ Grassley joked with a smile. He then read a quote from the blog. ‘You and the 3 other folks who read this blog will agree I shouldn’t be a judge… ,’ Bough wrote in response to a reader.

Grassley went on to say, “I just wanted you to know in fairness that we’ll be taking a close look at your writings on that blog and I imagine some of my colleagues will as well.”

Scarinci says Bough’s experience “shouldn’t scare [lawyers] off or discourage them from offering their perspectives online.”

Brooks Holland (Gonzaga University School of Law) has posted Criminal Procedure in the October 2013 Term: Cell Phones and Some Other Stuff (41 Preview 321 (2014)) on SSRN.

Here is the abstract:

This brief article reviews the U.S. Supreme Court’s criminal procedure decisions in the October 2013 Term. Cases reviewed include:

– Kaley v. United States (pre-trial forfeiture and the right to counsel).

– Kansas v. Cheever (self-incrimination and mental health examinations).

– Fernandez v. California (third-party consent to search).

– Navarette v. California (anonymous 911 calls and reasonable suspicion).

– Riley v. California (warrantless searches of cell phones incident to arrest).

The National Law Journal reports:

I thought they were well framed, but every question drew an objection. “How are you employed?” “Objection! Assumes facts.” “Are you employed?” “Objection! Vague.” “Do you have a job?” “Objection! Misleading, confusing, vague and ambiguous.” A bigger man would have let it go, but “Dick,” I asked opposing counsel, “when your parents named you, how did they know?”

Lawyers will be lawyers; we have all played the game. It’s hard to stay awake at a deposition if you don’t lob in an objection now and then. So I’ve done it; I’ve had it done to me. I’ve rejoined with colloquy; I’ve been colloquyed right back in my face. It’s just part of litigation.

Not so fast. On July 28, U.S. District Judge Mark Bennett in Security National Bank of Sioux City v. Abbott Laboratories imposed sanctions against a lawyer who made repeated deposition objections. Significantly, the judge in the Iowa case imposed sanctions sua sponte — not only did opposing counsel not complain, but he declined to take a position when the court raised the issue on his own.

Bennett does not have a hair trigger. In 20 years, he has imposed sanctions on a lawyer less than five times. It was not personal. Bennett went out of his way to laud the trial skills of the lawyer he sanctioned; he described the sanctioned lawyer’s partner who argued against sanctions as “one of the best trial lawyers I have ever encountered.” Clearly, he was stirred to unusual action. It is a must-read opinion.

The ink is hardly dry. The sanctioned lawyer’s firm has announced its intention to appeal. After all, in our system, all persons are presumed to know the law — except of course trial judges, for whom our system has provided courts of appeal. Bennett’s decision may or may not stand.

Read more here (log-in required).

The nation’s state court system is losing one of its leaders, the Charlotte Observer reports:

After three decades on the bench, Sarah Parker soon will find herself in an unfamiliar role:  No cases to hear, no opinions to write, no court system to run.

This week Parker, chief justice of North Carolina’s Supreme Court for eight years, steps down after reaching the mandatory retirement age of 72 Saturday.

“There may be something to be said for statutory senility,” she says.

A former Charlotte lawyer, Parker will leave with a reputation as a respected if unassuming jurist who guided the court through choppy waters with a steady hand and even temperament.

“Sarah is a quintessential professional,” says Republican Bob Orr, a former associate justice. “She has a sense of the history and tradition of the court as well as the system. She’s been a good chief justice in difficult times.”

Read the full story here.

THE AJA BLOG RARELY POSTS ON WEEKENDS OR HOLIDAYS:  THIS IS AN EXCEPTION.

40-hour work week grows to 47-60 hours

By Paul Bedard | August 29, 2014

The old “9 to 5” work week is becoming about as obsolete as the American Dream.

A new Gallup poll finds that economically-stressed Americans are now working an “average” of 47 hours, with a growing number clocking 60 hours or more.

“Adults employed full time in the U.S. report working an average of 47 hours per week, almost a full workday longer than what a standard five-day, 9-to-5 schedule entails. In fact, half of all full-time workers indicate they typically work more than 40 hours, and nearly four in 10 say they work at least 50 hours,” said Gallup, based on their 2014 Work and Education survey.

Full time workers:

— Less than 40 hours per week, 8 percent.

— 40 hours, 42 percent.

— 41-49 hours, 11 percent.

— 50-59 hours, 21 percent.

— 60 hours or more, 18 percent.

Gallup said that salaried workers are putting in more hours, on average five hours more per week, 49 vs. 44 for hourly workers.

That comes with a cost. “While workers earning a salary may enjoy greater income than their counterparts who are paid hourly, they do pay a price in lost personal time,” said Gallup.

TO ALL OUR READERS:    RELAX, ENJOY THE WEEKEND!

The vast majority of police in this country are dedicated public servants. Being a police officer has rewards, but – make no mistake – it is also a job that can take a personal toll. And there are officers who do not live up to the standards we hope for.

American Judges Association members who have attended our annual conferences know there are few more thoughtful commentators on the United States Supreme Court than Professor Erwin Chemerinsky. Fortunately for us, he will again be at our conference in Las Vegas.

How the Supreme Court Protects Bad Cops:  Erwin Chemerinsky recently had this op-ed in The New York Times.

Thanks to Judge Wayne Gorman, we have an illustration of the differences between public access to a criminal trial in the United States and in Canada.

Recently, the Supreme Court of Canada considered when an accused person must be allowed to testify in the absence of the public.

The United States perspective is illustrated by Justice Brenan, who wrote for the United States Supreme Court,

“[A]t the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open. And since that time, the presumption of openness has remained secure. Indeed, at the time of this Court’s decision in In re Oliver, the presumption was so solidly grounded that the Court was unable to find a single instance of a criminal trial
conducted in camera in any federal, state, or municipal court during the history of this country.  This uniform rule of openness has been viewed as significant in constitutional terms not only because the Constitution carries the gloss of history, but also because a tradition of accessibility implies the favorable judgment of experience.”

Globe Newspaper Co. v.  Superior Court, 457 U.S. 596, 605 (1982) (internal quotations and citations omitted).

But, the fact situation that the Supreme Court of Canada considered was a bit odd:

In R. v. Hart, 2014 SCC 52, July 31, 2014, the accused was convicted of murdering his two young daughters. The accused confessed to the murders during a “Mr. Big” operation.  In  such an operation the police pretend to be involved in a large scale criminal organization in which membership requires an interview with the head of the crime organization (“Mr. Big”) in which “confessing to the crime provides a ticket into the criminal organization and safety from the police.”

During his trial, the accused sought to testify with the public excluded.  The trial judge dismissed the application and the accused did not testify.

The convictions entered at the trial were overturned by the Court of Appeal.  The Crown appealed to the Supreme Court of Canada. The following issues were raised:

1) Did the trial judge err in admitting the confessions made by the respondent during the Mr. Big operation?

2) Did the trial judge err in precluding the respondent from testifying with the public excluded from the courtroom?

The Supreme Court of Canada dismissed the appeal.  It held that the accused should have been allowed to testify in the absence of the public.  In addition, it created a new common law test for the admission of “Mr. Big” confessions (such a confession is presumptively inadmissible and admissibility requires the Crown to establish on a balance of probabilities that the probative value of the confession outweighs its prejudicial effect). The Supreme Court applied this test to the confession elicited in this case and ruled that it was inadmissible.

 

THE ADMISSIBILITY OF THE CONFESSIONS

The Supreme Court of Canada held “that where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him, any  confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility will be overcome where the Crown can   establish, on balance, that the probative value of the confession outweighs its prejudicial effect.  In this context, the confession’s probative value is a function of its reliability.  Its prejudicial effect stems from the harmful character evidence that necessarily accompanies its admission.  If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidence surrounding the Mr. Big operation becomes irrelevant.”

As to how probative value is to be assessed, the Supreme Court held that a court must consider “the circumstances in which the confession was made” and look to “the confession itself for markers of reliability” (at paragraph 105).  The Supreme Court held that in “the end, trial judges must weigh the probative value and the prejudicial effect of the confession at issue and decide whether the Crown has met its burden.  In practice, the potential for prejudice is a fairly constant variable in this context” (at paragraph 108).

ABUSE OF PROCESS

 In addition, the Court held that trial judges “must also carefully scrutinize the conduct of the police to determine if an abuse of process has occurred.  No matter how reliable the confession, the courts cannot condone state conduct — such as physical violence — that coerces the target of a Mr. Big operation into confessing.  Where an accused establishes that an abuse of process has occurred, the court can fashion an appropriate remedy, including the exclusion of the confession or a stay of proceedings.”  The Court concluded, at paragraph 115, that the “police cannot be permitted to overcome the will of the accused and coerce a confession.  This would almost certainly amount to an abuse of process.”

TESTIFYING IN THE ABSENCE OF THE
PUBLIC

The Supreme Court of Canada noted, at paragraph 51, while “the importance of the open court principle cannot be doubted, s. 486(1)  of the Criminal Code, R.S.C. 1985, c. C-46 , provides trial judges with a discretion to exclude the public from the courtroom in several
circumstances, including where such an order is in the interests of ‘the proper administration of justice’. In Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, this Court set out three factors trial judges are to consider in making such an order: (1) the availability of reasonable and effective alternatives; (2) whether the order is limited as much as possible; and (3) the importance of the order’s objectives and its probable
effects when weighed against the importance of openness and the particular expression that will be limited.”

The Supreme Court concluded that the trial judge’s “error lay at the third stage of the test” (at paragraphs 53 to 55):

 A trial judge’s decision under s. 486(1)  is entitled to deference and “should not lightly be interfered with” (Canadian Broadcasting Corp., at para. 78).  Here, however, I am respectfully of the view that the trial judge erred in refusing the respondent’s request.  The trial judge’s error lay at the third stage of the test.  To begin, the respondent’s testimony was critically important in the circumstances of this case.  If he was to be acquitted, the jury would have to believe, or at least have a reasonable doubt, that the confessions he made during the Mr. Big operation were false.  Testifying in order to disavow them was a near tactical necessity for the respondent.  The respondent sought to testify outside of the
presence of the public in part because he was concerned that the stress of testifying in front of a full courtroom would cause him to have a seizure.  It was incumbent on the trial judge, in the unique circumstances of this case, to take reasonable steps to accommodate the respondent’s disability and to facilitate his testimony. 

Unfortunately, the trial judge mistook the nature of the respondent’s request, as is apparent from his comment that he was reluctant to prevent the public from “hear[ing]” the respondent’s evidence.  The respondent was not asking that the public be completely foreclosed from hearing his evidence.  Rather, he simply wanted to testify outside of their physical presence.  As such, his evidence could have been made available to the public, while granting his request, by broadcasting his testimony into another courtroom on closed  circuit television.  In the particular circumstances of this case, granting the accommodation sought would not, in my view, have undermined the open court principle. 

As a result, I agree with the conclusion of the Court of Appeal.  This error alone necessitates a new trial.

CONCLUSION

After excluding the accused’s confession, the Supreme Court of Canada said: “it is doubtful whether any admissible evidence remains upon which a jury, properly instructed and acting reasonably, could convict.  However, the final decision on how to proceed rests with the Crown.”