We started as a nation committed to open courts – where members of the Press could, armed with quill pens, write interesting stories for newspapers.  No one worried about cameras in the courtroom.

Most state courts, like Iowa, resolved to allow cameras in the courtroom decades ago.  But now a new issue has arisen:  we increasingly don’t have newspapers as a principle source of information; we have blogs and tweets.

In the spirit of openness, the Iowa Supreme Court proposed new rules that would allow “news media” to live-tweet and blog oral arguments and other judicial proceedings.

Reuters has this story:

A Colorado police officer’s description of a purported smirk made by accused theater gunman James Holmes minutes after his arrest cannot be used at trial because the officer had an unreliable memory, a judge ruled on Friday.

Arapahoe County District Court Judge Carlos Samour Jr. ruled as inadmissible Aurora police Officer Justin Grizzle’s account that Holmes replied with a “self-satisfying offensive smirk” when the suspect was asked if he had an accomplice.

“Officer Grizzle’s recollection of pertinent events is not sufficiently reliable,” Samour wrote in an order.

Brandon L. Garrett (University of Virginia School of Law) has posted Remaining Silent after Salinas (University of Chicago Law Review, Vol. 80, 2013) on SSRN.

Here is the abstract:

In its ruling last Term in Salinas v Texas, the Supreme Court further eroded what little remains of the Fifth Amendment jurisprudence protecting against coercive police questioning of suspects. In this short piece for the University of Chicago Law Review’s online Dialogue, I explore the Salinas decision and its implications. I argue that the result encourages precisely the types of informal, undocumented questioning that can cause false confessions and wrongful convictions.

A federal appeals court has rejected Federal District Court Judge Shira Scheindlin’s motion asking the appellate court to lift an order that reassigned a pair of cases related to the New York Police Department’s stop-and-frisk department.

The appeals panel issued two new opinions (posted here and here).

The three-judge panel of the U.S. Court of Appeals for the 2nd Circuit backed away from its previous suggestion that Judge Scheindlin violated the judicial code of conduct via public comments made while the cases were pending, but did not reconsider its decision to reassign the cases.

If this were happening in any other country, Americans would be aghast. A sentence of life in prison, without the possibility of parole, for trying to sell $10 of marijuana to an undercover officer? For sharing LSD at a Grateful Dead concert? For siphoning gas from a truck? The punishment is so extreme, so irrational, so wildly disproportionate to the crime that it defies explanation.

So began an editorial by the New York Times.

For the complete editorial, see here.

U.S. prisons are costly and overcrowded.  Are punishments like shoveling manure or standing on a busy street corner wearing a sign advertising your crime reasonable alternatives?

Jonathan Turley, a professor at George Washington University Law School, and Peter Moskos, a professor at John Jay College of Criminal Justice, City University of New York, join NPR’s Scott Simon to discuss the pros and cons of public shaming.

The seven-minute story can be found here.

There is no question that there are many judges and correction officials who embrace and see great promise in evidence-based sentencing.

Given the overcrowding of many prisons and jails, just about any new approach seems a reasonable alternative. But, is evidence-based sentencing a great name with a dark side beneath it?

The title of this post is the title of a provocative new paper by Sonja Starr now available via SSRN.  Here is the abstract:

This paper critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables. I argue that this practice violates the Equal Protection Clause and is bad policy: an explicit embrace of otherwise-condemned discrimination, sanitized by scientific language.

To demonstrate that this practice should be subject to heightened constitutional scrutiny, I comprehensively review the relevant case law, much of which has been ignored by existing literature. To demonstrate that it cannot survive that scrutiny and is undesirable policy, I review the empirical evidence underlying the instruments. I show that they provide wildly imprecise individual risk predictions, that there is no compelling evidence that they outperform judges’ informal predictions, that less discriminatory alternatives would likely perform as well, and that the instruments do not even address the right question: the effect of a given sentencing decision on recidivism risk. Finally, I also present new, suggestive empirical evidence, based on a randomized experiment using fictional cases, that these instruments should not be expected merely to substitute actuarial predictions for less scientific risk assessments, but instead to increase the weight given to recidivism risk versus other sentencing considerations.

Many countries have declared that corporal punishment, by definition, is not child abuse.  But the United States is apparently not one of those countries.

A California state court recently ruled that a woman who spanked her daughter with a wooden spoon – and was reported for child abuse – did not, in fact, commit child abuse.

According to court documents, Veronica Gonzalez was labeled a child abuser by the Santa Clara County Department of Social Services after striking her 12-year-old daughter with a wooden spoon with enough force to leave visible bruises. However, the Sixth District Court of Appeal in San Jose overturned the ruling, writing, “we cannot say that the use of a wooden spoon to administer a spanking necessarily exceeds the bounds of reasonable parental discipline.”

There is a terrific resource edited by Andrew M. Ironside called the Civil Rights Law & Policy Blog.

Professor Ironside recently had this post:

[T]he Fourth U.S. Circuit Court of Appeals ruled that a Facebook “like” is protected First Amendment speech. The question arose after several employees of a sheriff’s office filed a lawsuit claiming that they had been fired for clicking “like” in support of their boss’s challenger, which violated their First Amendment rights.

Prominent UCLA law professor Eugene Volokh said, “You’re expressing the relevance of a message and that’s good enough.” The court agreed. “Liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it,” wrote the Court. “It is the Internet equivalent of displaying a political sign in one’s yard, which the Supreme Court has held is substantive speech.”

The Fourth Circuit’s ruling could have a dramatic effect on our right to vote jurisprudence. Clicking “like” on Facebook is not materially different from casting a vote. In fact, unlike clicking “like,” historically voting was often actually spoken. Indeed, the historical record indicates that at the time the Founders enshrined our democracy in the Constitution, the most common method of voting was the public expression of one’s choice.

Even before future colonists began to experience the religious and cultural oppression that would lead them across the Atlantic in search of new freedoms, the English had established this method in elections to the House of Commons. Known as viva voce, this process began when the sheriff called for a vocal public proclamation—or showing of hands—expressing support or opposition for a candidate. If the election remained in dispute, individual voters would voice their choices to an election official, who would record the voter’s name and selection in a poll book.

From the L.A. Times:

The Orange County Crime Lab produced inaccurate blood alcohol test results in 2,200 driving-under-the-influence cases filed by prosecutors this year — mistakes that could affect outcomes in dozens of cases.

Prosecutors in recent days sent letters to people charged with driving under the influence, including 900 whose cases resulted in convictions. The letters advised them that their cases were among those with miscalculations.

Crime lab officials said the “human error” occurred over nearly five months and led to mistakes in the forensic examination of blood alcohol content. But they insist the miscalculations were so few that they affect only about 200 cases.  As few as 20 people could see their blood alcohol test levels drop below 0.08%, California’s legal definition of DUI impairment.

But veteran DUI attorneys across Orange County said flaws with the lab’s basic testing probably will affect many more cases because sentence enhancements and negotiations are often based on how far over the legal limit a motorist was determined to be.

. . .

Orange County Crime Lab Director Bruce Houlihan said the facility, which serves the entire county, discovered flaws in its analysis Oct. 10 while conducting an audit.

“It was a human error that led to an instrument to be wrongly calibrated,” he said.