By Hannah Garcia, Law Week Colorado

Although a state constitutional amendment allows Coloradans to legally light up and buy marijuana from retail shops, judges in the state are still barred from using the decriminalized drug.

The Colorado Judicial Ethics Advisory Board issued Opinion 2014-01 on July 31, advising Colorado judges that use of recreational or medicinal marijuana violates Rule 1.1 of the Code of Judicial Conduct because it is still illegal under federal law. The opinion came after a judge submitted a request regarding if Colorado judges can use marijuana privately and consistently with the state’s constitution.

“Rule 1.1 requires judges to comply with the law,” the opinion read. “Although neither the rule nor the terminology section specifies that Rule 1.1 requires compliance with federal as well as state law, it is beyond dispute that judges are required to comply with federal law.”

At the heart of the issue is the idea of “minor” violations, like a parking ticket or letting a dog run off leash. Because drug-related offenses are not listed as exceptions in the Code of Judicial Conduct, the advisory board decided that a judge’s marijuana use is not a “minor” violation of the law. The idea of “minor” violations of law being exempt from ethics discipline, as provided in Rule 1.1(b), is something unique to Colorado.

In a search for revenue, many counties, states (and courts) have been pretty creative in finding things to charge for. The East Bay Express has an interesting article written by Beth Winegarner which raises questions about at what point is a fee for service wrong….or unconstitutional:

Alameda County is now charging high fees to look at court documents online — a new cost that some legal experts say may be unconstitutional.

Ben Rosenfeld is the sort of litigator that many young attorneys start out hoping they’ll become: He defends political activists, victims of police misconduct, and injured bicyclists. Many of his clients have little to no money, meaning Rosenfeld only gets paid if he wins. It also means that when courts charge for access to documents, it undermines his ability to research the legal landscape — and threatens his ability to keep assisting low-income clients.

In April, the Alameda County Superior Court quietly began charging $1 per page to view most of its legal documents online. Although the price drops to 50 cents after the fifth page, and the total cost for any document is capped at $40, those costs add up quickly when Rosenfeld is studying similar cases to determine which legal arguments are most likely to help his client. “It caught me by surprise,” he said. “I represent almost exclusively indigent plaintiffs in civil-rights cases, and it’s my responsibility to do everything I can to try to limit my clients’ costs.”

In response, Rosenfeld launched a petition urging the court to reconsider its fees, which are ten times higher than the cost of accessing files in the federal court’s system, PACER. In the petition, hosted at MoveOn.org, Rosenfeld contends that the fees might violate the Sixth and Fourteenth Amendments of the Constitution, which protect citizens’ right to counsel, due process, and access to justice.

The full article can be found here.

In 2012, the Florida Innocence Commission made a series of reform recommendations in recognition of the “dangers of false informant and jailhouse snitch testimony.” The Florida Supreme Court has now amended the rules of evidence to reflect those recommendations. See In re: Amendments to Florida Rules of Criminal Procedure 3.220 (Fla. 2014).

The Miami Herald reported the story:

Florida’s high court puts brakes on snitches’ testimony

 

The Florida Supreme Court . . . finally has changed the rules of evidence. Beginning this month, prosecutors now are required to disclose both a summary of the jailhouse informant’s criminal history and just what kind of deal a snitch will be getting in return for testimony. And now, jurors will hear about prior cases that relied on testimony from that particular informant.

The justices ordered new restrictions on the much abused informant testimony, because snitches, the court noted, “constitute the basis for many wrongful convictions.” It was an unanimous decision. It was about time.

Athan P. Papailiou, David V. Yokum, and Christopher T. Robertson (University of Arizona; University of Arizona – James E. Rogers College of Law; and University of Arizona – James E. Rogers College of Law) have posted The Novel New Jersey Eyewitness Instruction Induces Skepticism But Not Sensitivity on SSRN.

Here is the abstract:

In recent decades, social scientists have shown that the reliability of eyewitness identifications is much worse than laypersons tend to believe. The courts have only recently begun to react to this evidence, and New Jersey has, in particular, reformed its instructions to jurors, notifying them about the frailties of human memory, the potential for lineup administrators to nudge witnesses towards suspects that they police have already identified, and the advantages of certain lineup procedures including blinding of the administrator.

If you sit on the bench for any length of time, you will be faced with a motion to recuse.  Some motions are legitimate, some are frivolous, but they all require a judge to engage in honest self -reflection that is not always easy.  It is perhaps natural to get defensive when someone questions whether you can be fair.  When the basis of the recusal motion involves issues like race or religion, it is particularly hard.

The Chicago Sun Times recently had a story on a motion to recuse which began as follows:

A Jewish federal judge whose family has raised more than $3 million for a pro-Israeli charity angrily refused on Thursday to recuse himself from the terrorism-related trial of a southwest suburban Palestinian immigrant.

U.S. District Judge Paul Borman accused lawyers for Rasmieh Odeh of “careless and rank speculation” for suggesting that he couldn’t be impartial in Odeh’s case. He said Odeh’s lawyers do not have “a shred of factual support” for their “startling” suggestion that his many trips to Israel mean he has information about torture in Israeli prisons — a key issue in Odeh’s defense.

About 50 Chicagoans traveled by bus from Chicago to Michigan on Thursday to protest outside the Detroit courthouse where Borman sits. They later packed into his courtroom to show their support for the 66-year-old Odeh, who denies she lied to immigration officials about a terrorist past when she emigrated to the U.S. in 1995.

Odeh spent 10 years in an Israeli prison after an Israeli court convicted her of two terrorist bombings — one of which killed two people — in Jerusalem in 1969. But she failed to acknowledge that fact when she came to the U.S., and again when she successfully applied for U.S. citizenship in 2005, the feds said when they arrested her in the Chicago area in October.

In his order denying the motion to recuse, Judge Paul Borman said his religious and philanthropic activities were commonplace, and fell far short of the standard for personal involvement where a judge should remove himself from a case such as the prosecution of Arab-American activist Rasmea Odeh for allegedly failing to disclose her convictions by an Israeli military court in connect with a pair of bombings in Jerusalem in 1969.

“The law of recusal is clear that a judge’s prior activities relating to his religious convictions are not a valid basis for questioning his impartiality in a particular case,” Borman wrote in an 11-page ruling rejecting the defense motion.

Peter A. Joy and Rodney J. Uphoff (Washington University in Saint Louis – School of Law and University of Missouri School of Law) have posted Systemic Barriers to Effective Assistance of Counsel in Plea Bargaining on SSRN.

Here is the abstract:

In a trio of recent cases, Padilla v. Kentucky, Missouri v. Frye, and Lafler v. Cooper, the U.S. Supreme Court has focused its attention on defense counsel’s pivotal role during the plea bargaining process. At the same time that the Court has signaled its willingness to consider ineffective assistance of counsel claims at the plea stage, prosecutors are increasingly requiring defendants to sign waivers that include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims such as those that proved successful in Padilla and Frye. Had Jose Padilla and Galin Frye been forced to sign a waiver of any ineffective assistance of counsel claim as a condition of entering their pleas, and if the Supreme Court approved of such waivers, then neither Padilla nor Frye would have secured the relief the Court held that they deserved.

Waivers of ineffective assistance of counsel claims pose both legal and ethical issues.

We are a nation with great ideals, but we are also a nation with an over-incarceration and race problem.

Plugging the work of a local academic seems perfectly appropriate if you write a blog…so here goes:

Nekima Levy-Pounds (University of St. Thomas School of Law) has posted Par for the Course?: Exploring the Impacts of Incarceration and Marginalization on Poor Black Men in the U.S. (14 Journal of Law and Society 29 (2013)) on SSRN.

Here is the abstract:

African Americans represent 13% of the U.S. population, but represent nearly 40% of those who are incarcerated in local jails and state and federal prisons. Poor black men in particular are more susceptible to experiencing incarceration due to high rates of poverty, unemployment, marginalization, and exclusion from mainstream society. Additionally, laws and policies that comprise the war on drugs have fueled a tremendous growth in rates of incarceration for this segment of the population, with devastating consequences to boot for the children, families, and communities of those who are incarcerated. Further, this paper explores the links between the historical links between Thirteenth Amendment to the Constitution and the current over-representation of African Americans within the criminal justice system. Finally, this paper examines disturbing trends in unemployment, poverty, and incarceration of African American men in Detroit, Michigan.

Richard Zorza’s blog recently contained this item:

As reported in The Washington Post, the SC Superior Court is now offering chat informational services.

D.C. Superior Court officials on Tuesday announced a new online Web chat feature where court users can ask questions of court employees about their cases within the civil division.

Individuals with cases in small claims court (involving disputes of $5,000 or less), landlord and tenant, and civil actions (involving disputes of more than $5,000) can access the various Web chats through the court’s main Web site.

Of course, every court should be offering this service — there are several advantages of chat, two of the biggest are that the litigants get a full text record of the interaction that they can review later, and that supervisors can review the chats for quality.  The use of the stored answers can make chats much more efficient that traditional phone info services, and produces higher quality from volunteer information providers.

In terms of expansion, it should not be forgotten that chat — and indeed phone hotline services — may well be more efficiently be provided that locally based services.

A Jones Day partner won’t have to write, “I will not make frequent deposition interruptions” 100 times, but the firm will have to make amends with U.S. District Judge Mark Bennett via an unusual sanction.

The judge is requiring a partner at the firm to make a video explaining “the impropriety of unspecified ‘form’ objections, witness coaching, and excessive interruptions.”  Above the Law has a story and links to the order, dated July 28.

Bennett says the firm doesn’t have to make the video publicly available and it can be filed under seal with his court.

He begins his opinion with a lament about “obstructionist discovery conduct” that “fuels the astronomically costly litigation industry.”

One of these days, a judge (perhaps even an AJA member judge) will go on the bench for what seems like a routine suppression hearing and will then hear the words, “Your Honor, this stop was permissible because of the Police Department’s use of predictive policing.” While you will undoubtedly be scrambling for your law clerk and searching Westlaw, perhaps thinking about the future of the Fourth Amendment might help, too.

Fabio Arcila, Jr. (Touro College – Jacob D. Fuchsberg Law Center) has posted Nuance, Technology, and the Fourth Amendment: A Response to Predictive Policing and Reasonable Suspicion (63 Emory Law Joural Online 87 (2014)) on SSRN.

Here is the abstract:

In an engaging critique, Professor Arcila finds that Professor Ferguson is correct in that predictive policing will likely be incorporated into Fourth Amendment law and that it will alter reasonable suspicion determinations. But Professor Arcila also argues that the potential incorporation of predictive policing reflects a larger deficiency in our Fourth Amendment jurisprudence and that it should not be adopted because it fails to adequately consider and respect a broader range of protected interests.