Marriage duration almost twice as long in South Dakota as in DC

Longest Marriages – States – The median span of marriages in South Dakota is almost twice that of D.C. – Bloomberg Best & Worst.

(This appears not to be duration of marriage at time of divorce, which is reported fairly often, but instead duration of current marriage among census respondents generally.)  This arguably is a statistic that is of more interest to anthropologists than judges, but if conflict resolution is an aim of judges then maybe that is not true.

Michael H. Graham (University of Miami – School of Law) has posted Confrontation Clause: Williams Creates ‘Significant Confusion’ Prompting California Avoidance; Bryant’s Dual Perspective Primary Purpose Approach; 2013 Application Summary (Criminal Law Bulletin, Vol. 49, No. 6, p.1533 (2013)) on SSRN.

Here is the abstract:

Confrontation clause analysis took still one more step backward with the United States Supreme Court decision in Williams v. Illinois — U.S. — 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). In Williams, a four justice plurality, with really only three of the four justices aligning principally with an “accusing a targeted individual of engaging in criminal activity” definition of testimonial, combined with a concurrence by Justice Thomas described by Justice Kagan dissenting as adopted by no other member of the Member of the Court. Justice Kagan also said of Justice Thomas’s concurrence that it is “ — to be frank — who knows what” “formality and solemnity” approach. Combined the Williams opinions “have left significant confusion in their wake”. Id. at 2277 (emphasis added).

The Associated Press reports:

It’s a common practice among drivers who pass through a speed trap:  Flash your headlights at approaching cars as a warning to slow down.  Now, a federal court judge in Missouri says penalizing drivers for the headlight flash violates their First Amendment right to free speech.

U.S. District Judge Henry E. Autrey in St. Louis on Monday issued a preliminary injunction prohibiting the St. Louis County town of Ellisville from citing and prosecuting drivers who flash their lights to warn of radar and speed traps.  Ellisville’s city attorney said there are no plans to appeal.

The order stems from a lawsuit filed by the American Civil Liberties Union of Missouri on behalf of Michael Elli.  On November 17, 2012, Elli flashed his headlights to warn oncoming vehicles of a radar set up by Ellisville police.

The New York Times reports that the highest court in New York has declared  “that there are limits to the lies and deceptions the police can employ to get a person to confess to a crime” and ordered a new trial for a man convicted five years ago of killing his infant son.

In a unanimous ruling, the court held that detectives in Troy, N.Y., had gone too far during the interrogation of Adrian P. Thomas, and that his confession, stating that he had thrown his son onto a bed, should never have been revealed to a jury.

Detectives threatened to arrest Mr. Thomas’s wife if he did not take responsibility for the baby’s death. They repeatedly told him he would not be charged with a crime if he confessed to abusing his son. Finally, they told Mr. Thomas that his son’s survival depended on his remembering what he might have done to cause a brain injury, even though the baby was already brain-dead.

Chief Judge Jonathan Lippman, writing for the seven-member Court of Appeals, said those techniques, taken together, amounted to psychological coercion that violated Mr. Thomas’s constitutional rights.

BARRY MAHONEY sent out an e mail a few days ago, the text of which was something a lot of people hoped that they would never receive:  Barry is retiring.

Recently, Barry served as President Emeritus of The Justice Management Institute.  He was JMI’s President in 1993-2002 and 2008-09.  He has directed JMI projects on caseflow management, drug court planning and implementation, rural courts, pretrial services, pro se assistance programs, and strengthening justice system processes to help prevent the conviction of innocent persons.

During 2012-13, he worked with the MacArthur Foundation’s Models for Change initiative on juvenile justice issues in Louisiana and two other states.  His earlier work includes serving as an Assistant Attorney General in New York State, Associate Director of the National Center for State Courts, Director (twice) of the London Office of the Vera Institute of Justice, and Director of Research at the Institute for Court Management.

To scores of people in the criminal justice system he is simply Barry, but Dr. Mahoney is a graduate of Dartmouth College and Harvard Law School, and holds a PhD in Political Science from Columbia University.  He has taught extensively in judicial education programs presented by JMI, the National Judicial College, the National Center for State Courts, and other national and state organizations.  For decades he has prodded, cajoled, and drug people toward a better system of justice.

But, there is a ray of hope:  Committed as Barry is to spending more time with his family, he did say he might be available for selective assignments.

In FERNANDEZ v. CALIFORNIA the United States Supreme Court considered the issue of a consent search of residence, with dual occupants, in which one of the occupants provides the consent. Justice Samuel A. Alito, Jr. delivered the opinion of the Court. Justices Antonin Scalia and Clarence Thomas issued concurring opinions. And Justice Ruth Bader Ginsburg issued a dissenting opinion, in which Justices Sotomayor and Kagan joined. You can access the oral argument via this link.

In Fernandez, the police saw a suspect in a robbery run into an apartment building and then heard screams coming from one of the apartments. They knocked on the apartment door, which was answered by Ms. Roxanne Rojas.  Her “face was red, and she had a large bump on her nose. The officers also saw blood on her shirt and hand from what appeared to be a fresh injury.”  The officers asked her to step out of the apartment.  The Supreme Court of the United States indicated that after asking “Rojas to step out of the apartment so that he could conduct a protective sweep, petitioner appeared at the door wearing only boxer shorts. Apparently agitated, petitioner stepped forward and said, ‘You don’t have any right to come in here. I know my rights.’…Suspecting that petitioner had assaulted Rojas, the officers removed him from the apartment and then placed him under arrest.”

An officer later returned to the apartment and, after obtaining Ms. Rojas’ oral and written consent, searched the premises, where the officer found several items linking the accused to the robbery.

The questions that the Supreme Court resolved were:

While it is clear that a warrantless search is reasonable when the sole occupant of a house or apartment consents, what happens when there are two or more occupants? Must they all consent? Must they all be asked? Is consent by one occupant enough?

The Supreme Court indicated that its decisions “firmly establish that police officers may search jointly occupied premises if one of the occupants consents. See United States v. Matlock, 415 U. S. 164 (1974). In Georgia v. Randolph, 547 U. S. 103 (2006), we recognized a narrow exception to this rule, holding that the consent of one occupant is insufficient when another occupant is present and objects to the search.” The Court noted that in this case, “we consider whether Randolph applies if the objecting occupant is absent when another occupant consents. Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present. We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared.”

The Supreme Court pointed out that in its decision in Randolph, it “went to great lengths to make clear that its holding was limited to situations in which the objecting occupant is present. Again and again, the opinion of the Court stressed this controlling factor…”

In this case, the defendant argued that despite his absence when Ms. Rojas consented to the search, Randolph applied because “he was absent only because the police had taken him away” and because “he objected to the search while he was still present.”

The United States Supreme Court rejected both of these propositions.  It concluded that “the lawful occupant of a house or apartment should have the right to invite the police to enter the dwelling and conduct a search”:

…the lawful occupant of a house or apartment should have the right to invite the police to enter the dwelling and conduct a search. Any other rule would trample on the rights of the occupant who is willing to consent. Such an occupant may want the police to search in order to dispel “suspicion raised by sharing quarters with a criminal.” 547 U. S., at 116; see also Schneckloth, 412 U. S., at 243 (evidence obtained pursuant to a consent search “may insure that a wholly innocent person is not wrongly charged with a criminal offense”). And an occupant may want the police to conduct a thorough search so that any dangerous contraband can be found and removed. In this case, for example, the search resulted in the discovery and removal of a sawed-off shotgun to which Rojas’ 4-year-old son had access.

Denying someone in Rojas’ position the right to allow the police to enter her home would also show disrespect for her independence. Having beaten Rojas, petitioner would bar her from controlling access to her own home until such time as he chose to relent. The Fourth Amendment does not give him that power.

Professor Orin Kerr has this post at ScotusBlog on the opinion.  Among his observations:

Fernandez says that “presence” is the key to triggering Randolph, but I wonder what that means. Does the requirement of presence mean present at the door, or does it mean present on or near the premises? . . .

Which is it, presence at the door or presence on the premises? It’s at least possible that it’s a bit of both. Specifically, perhaps the initial objection has to be at the door, and then the objection lasts as long as the defendant is on the premises. Reading over the opinion, I’m not sure. Either way, it would seem to make a difference at least in some cases. Imagine the objector tells the police to buzz off, and the police then wait five minutes and ring the doorbell again. The consenting occupant answers the door, and the officers ask again while the objector is elsewhere in the house (perhaps in the bathroom or taking a nap). Can the police search the house then? And if so, what happens if the objecting occupant realizes what is happening and objects again — is he “present” again for purposes of the Randolph rule if he is present where the search is occurring?

The Massachusetts Supreme Judicial Court has ruled that police need a warrant to obtain cellphone location data to track a suspect for more than a brief time period.

The Court based its ruling on protections from unreasonable searches and seizures in the state constitution.  How Appealing links to the opinion.  The ruling is the second by a state supreme court to require a warrant.  The New Jersey Supreme Court was the first state supreme court to afford constitutional protection to cell phone records.

The Massachusetts court ruled 5-2 in the case of Shabazz Augustine, who was arrested based on data showing his location when his girlfriend was killed.  The court noted that police had obtained two weeks of data by persuading a court the information was relevant and material to an ongoing probe.

Because police obtained two weeks’ of data, a search warrant supported by probable cause was required, the court said.  “The tracking of the defendant’s movements in the urban Boston area for two weeks was more than sufficient to intrude upon the defendant’s expectation of privacy” safeguarded by  the Massachusetts Commonwealth’s  constitution, the majority opinion held.

The Conference of Chief Justices and the Conference of State Court Administrators have developed the Pretrial Justice Center for Courts (PJCC).  The PJCC was formed to help implement their resolution recommending evidence-based assessment of risk in setting pretrial release conditions, and the presumptive use of non-financial release conditions consistent with assessment of risk.

The new website with important tools and resources can be accessed here.

In R. v. Beardy, 2014 MBCA 23, February 18, 2014, the accused pleaded guilty to the offences of attempted robbery and aggravated assault.  He stabbed a person (twice) at a gas station.

At the sentence hearing, the Crown requested that a period of four years imprisonment be imposed. The offender “recommended” that a period of two and one-half years imprisonment be imposed.  The sentencing judge imposed a period of six years imprisonment.  The accused appealed.

The Manitoba Court of Appeal reduced the sentence imposed to four years imprisonment. The Court of Appeal held that “that the sentencing judge erred by failing to inform counsel of his concerns with respect to the range suggested by the Crown and by not providing counsel the opportunity to make further submissions to address his concerns.” The Court of Appeal recommended that the following procedure should be utilized when a trial judge thinks about “jumping” the Crown’s sentence recommendation (at paragraph 6):

For a guilty plea to be valid, an accused must understand the nature and consequences of the plea prior to entering it (see s. 606(1.1)(b)(ii) of the Criminal Code).  This includes an understanding of the Crown’s position on sentence.  Typically, the Crown’s position will represent the upper limit of any sentence an accused can expect to receive from the sentencing judge.  While the Crown’s position cannot bind the discretion of the sentencing judge, judges should be slow to go over the recommended upper limit of the sentence or “jump” the sentence without first giving counsel an opportunity to address any concerns.  In the same way that a sentencing judge, who is thinking of “jumping” a joint submission, should inform counsel of his/her concerns and provide them with an opportunity to present further submissions or authority, so should a judge who is contemplating sentencing an accused to a sentence that is much harsher than what the Crown is recommending (see R. v. Hagen, 2011 ONCA 749 at paras. 4-5 (QL); R. v. Menary (W.), 2012 ONCA 706 at paras. 3-4, 298 O.A.C. 108; and R. v. Poorsarwar, 2012 ONCA 799 at para. 4 (QL)).  It is the fair thing to do. 

Liza I Karsai (Atlanta’s John Marshall Law School) has posted The ‘Horse Stealer’s’ Trial Returns: How Crawford’s Testimonial-Nontestimonial Dichotomy Harms the Right to Confront Witnesses, the Presumption of Innocence, and the ‘Beyond a Reasonable Doubt’ Standard (Drake Law Review, Vol. 62, No. 129, 2013) on SSRN.

Here is the beginning of the abstract:

The Sixth Amendment to the United States Constitution provides a defendant to a criminal charge with the right to confront the witnesses against him. In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court set out a bright-line test, under which the right of confrontation applies only to (1) witnesses who appear at trial, and (2) hearsay declarants whose out-of-court statements are “testimonial.” The Court has never fully defined the term “testimonial” but, at a minimum, testimonial statements include “formal” statements made for the primary purpose of establishing or proving a past fact for use as evidence. Hearsay statements that were not made with the primary purpose of furnishing evidence, such as statements to friends and family members, statements to jailhouse informants, and government surveillance recordings of statements made by individuals who lacked awareness of the surveillance, have been classified “nontestimonial” in the Court’s dicta or by lower courts applying Crawford’s test. Nontestimonial statements are subject only to any hearsay rules in the relevant jurisdiction. Accordingly, if the hearsay rule is liberalized or abolished in the future, the effect would be to further liberalize the admission of unconfronted nontestimonial statements as evidence of guilt at a criminal trial.