Myles Frederick McLellan (Algoma University) has posted on SSRN, “The Real Number of Wrongful Convictions and Presumptive Innocence” (October 8, 2013).

Here is the abstract:

Based upon a narrow definition of innocence, it has been estimated that upward of one half to one per cent of convictions are wrongful each year. This paper considers a broader, but potentially more realistic definition of innocence, and argues that the presumption of innocence is more than a procedural due process right. By applying innocence to acquittals, wrongful cases are identifiable and the individuals who have been subjected to the excruciating burden of being accused of criminality are considered truly innocent by the only legal mechanism we have.  

“From an ethical standpoint, it is never a good sign when someone starts a sentence with the comment, “I’m sure I am going to get in trouble for [this]…. ” That is particularly true when the someone is a federal judge, obligated by a code of judicial conduct to avoid the “appearance of impropriety.”

So begins a commentary by Stanford Law Professor Deborah Rhode in a very interesting (and short) series by the New York Times on the decision of the Second Circuit to remove Federal District Court Judge Shira Scheindlin from presiding over litigation regarding the New York Police Department’s Stop & Frisk Policy.

In the piece, several commentators take to task the Second Circuit which removed Judge Scheindlin despite the fact that no one in the litigation brought a motion to remove her.

The Second Circuit decision can be found here.

There are a growing number of critics of the Strickland standard for determining effective assistance of counsel.

The critics argue that the standard hides from judicial review substandard representation. Most opinions that affirm Strickland claims of ineffective assistance of counsel are not as blunt as State v. Cahill, 2013-Ohio-3753 (Ohio Ct. App. Aug. 30, 2013):

For all of Cahill’s protestations to the contrary, this was an open-and-shut case, competently presented by the prosecutor. The finest criminal defense lawyer in the land cannot work a miracle. Cahill was not constitutionally entitled to a victorious defense counsel, he was merely entitled to an effective defense counsel; and he had one.

In Kaley v. United States the United States Supreme Court will decide whether, when a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, the Fifth and Sixth Amendments require a pre-trial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges.

The oral argument can be found here, and here (transcript).

In R. v. Wilson, 2013 NBCA 38, the accused was convicted of the offence of sexual assault.  The accused appealed form conviction arguing that the trial judge failed to provide sufficient reasons and failed to properly apply the applicable onus and standard of proof.  The New Brunswick Court of Appeal indicated that though the “judge’s reasons for decision are far  from being a model of certainty and clarity,” they were sufficient.  However, the Court of Appeal concluded that the trial judge had erred in applying the criminal standard of proof (at paragraph 49):

Immediately after stating he did not believe Mr. Wilson about the hundred-dollar bill, the trial judge repeated he had to consider whether the prosecution had proven guilt beyond a reasonable doubt and adds that he had “to attempt to resolve the inconsistencies and understand the whole context in this case.” This is not a correct statement of law. The judge did not have to attempt to resolve any inconsistencies. The inconsistencies might have been resolved in the sense of being satisfactorily explained away, but it is not the judge’s role to “attempt to” resolve them. Rather, the judicial role is to consider nexplained inconsistencies in determining who to believe and how much to believe. The judge should also consider inconsistencies in determining whether reasonable doubt lingers notwithstanding disbelief. In the end, the trial judge must weigh “unresolved” inconsistencies in determining whether proof of the essential elements of the offence had been made beyond a reasonable doubt. While inconsistencies may be explained away, and a trial judge may disregard them for proper reasons, to the extent they are relevant to the issue of credibility, if they are not satisfactorily explained, they should be weighed in the balance. It is not the trial judge’s role to attempt to resolve them.

As reported by the Milwaukee Journal Sentinel,

“Jimmie C. Green, 31, was convicted of a 2009 drive-by gang shooting in Racine that killed a 12-year-old boy. As part of his appeal, he claimed he might have been prejudiced by the trial judge passing some leftover Halloween candy to the jury.

More specifically, Green claimed his attorney was deficient for not moving for a mistrial when he learned that the jury had sent a thank-you note to the judge for the candy.

“Green argues that this indirect contact may have caused the jury ‘to view Mr. Green’s case as a ‘we vs. them’ matter,’ especially given the gang-related evidence,” the court wrote in a per curiam decision.

“At the Machner hearing, trial counsel testified that though he was initially concerned about how to handle the thank-you note, he did not feel it necessary to pursue the matter further once he heard the judge’s explanation. Trial counsel testified that he never felt an ‘us versus them’ dynamic in the courtroom.”

Apparently, the judge had given the candy to the bailiff to give the jury, not intending for jurors to know where it came from. But the bailiff mentioned the treats were courtesy of the judge.

“The record demonstrates that the trial court was well aware of the prohibition against ex parte communication with the jury and avoided any direct contact,” the appeals court found. “There is nothing improper about a neutral body providing leftover candy to the jury through the bailiff.”

So, tomorrow, when your child (or you) has leftover candy and you want to distribute it to jurors, tell the bailiff not to mention it came from the judge…and be sure to bring a sufficient number of tooth brushes for the jurors to use after they eat the candy.

Read more at Journal Sentinel.

Lyle Denniston is one of the nation’s most thoughtful commentators on the United States Supreme Court. He now writes for the Scotus Blog.

He has this notable and effective new commentary at the blog of the National Constitution Center. (If you read the Scotus blog then checking out How Appealing is a great addition.)

Here are excerpts:

The Constitution’s Second Amendment, the Supreme Court ruled five years ago, protects an individual’s personal right to have a gun for self-defense.  It has returned to the Second Amendment only once since then, in a decision three years ago extending that personal right across the nation, so that it can be used to challenge state and local gun control laws as well as such laws at the federal level.

Since then, more than a half-dozen test cases on the issue have been filed at the court, and each one has been bypassed.  It appears that no one on the court is pushing to return to the issue; it takes four votes on the bench to grant review, and there is no reliable indication that any case has drawn even one vote.

. . .

Although lower courts have issued an array of differing and sometimes conflicting decisions (the pattern that usually draws in the Supreme Court), the scope of the Second Amendment right is still in a kind of constitutional limbo.  It remained there on Tuesday, when the Justices turned aside an appeal by a Maryland man, Raymond Woollard, who lives near Baltimore. He once had a permit to have a gun that he could carry outside his home, because he had shown he faced a potential threat from a son-in-law who had shown violent tendencies.  But when he tried to get the permit renewed, he was turned down, on the premise that he had not proved that he still faced a threat to his safety.  The court’s refusal to hear his appeal came quickly, after the Justices’ first fleeting look at the case. That has been the pattern for the past several years.

. . .

The message that the Supreme Court has seemed to be sending — at least up until now — is that it is in no hurry to resolve open questions about how far constitutional gun rights extend. It has not even agreed to spell out in a final way the constitutional test that it will apply to judge the validity of any specific gun control law.

As this trend continues, it tends to put an exaggerated emphasis on each new case that reaches the Supreme Court: Will this be the one that will finally get the Justices’ attention; if not, what will it take?  Since the Supreme Court is the sole entity to determine the scope of the Second Amendment right (aside from the legislatures that can put together a clarifying constitutional amendment), judges and legislators across the country have to wonder when they will get new constitutional guidance.

The economic downturn has had an impact on many courts, but due to a combination of factors above and beyond a weak economy, the California courts have been particularly hard hit.

A significant number of employees have been laid off, courthouses have been closed, salaries have been frozen for years, and the remaining workforce has had “furlough days” (translated:  that means your salary was reduced).

So, when in trouble, create a non-profit?

Several prominent lawyers and civic leaders have banded together to form a new group to advocate on behalf of California’s courts.

The private nonprofit Foundation for Democracy and Justice “seeks to increase awareness about the relationship between adequate state funding for the administration of justice – at the state and local level – and the ability to deliver equal access to justice for all.”

The organization plans to educate the public about the branches of government, with a focus on the role of the judiciary.

The founders of the group include:

• Carlos Moreno, retired state Supreme Court Associate Justice
• Lee Baca, Los Angeles County Sheriff
• Frank C. Damrell, retired U.S. District Court Judge in Sacramento
• Joseph Dunn, chief executive officer of the State Bar of California and retired state senator
• Arturo González, partner in the Morrison Foerster law firm
• Larry Kramer, president of The William and Flora Hewlett Foundation
• Edith R. Matthai, partner in the Robie & Matthai law firm
• Mark P. Robinson, Jr., partner in the Robinson Calcagnie Robinson Shapiro Davis, Inc. law firm
• Mark Yudof, professor at UC Berkeley Law School and former president of the University of California
• Allan Zaremberg, president and chief executive officer of the California Chamber of Commerce

Read more here:   Capitol Alert, Sacramento Bee

Given the conflict between the federal law and the law in the State of Washington, it was inevitable that this question would be raised:  Can lawyers in the State of Washington ethically smoke pot?

The King County Bar Association hopes to clear up the confusion, the Stranger reports.

The Bar Association has asked the Washington State Supreme Court to clarify that lawyers aren’t violating the ethics rules simply by smoking pot or counseling clients about the Washington marijuana law passed by voters in November 2012.

The Bar’s proposed changes to the Rules of Professional Conduct are here.

There is no word on whether the sought-after clarification will apply to the State of Washington’s judges.

Two former judges will chair a task force for the N.J. Bar Association, which was created to recommend fixes for an ongoing conflict between Republican Gov. Chris Christie and the state Senate’s Democratic majority over judicial appointments.

The task force on judicial independence will do its work for as long as the “current threats to weaken our judiciary” remain, said Ralph Lamparello, the Bar association president. The co-chairs are Dorothea Wefing and Maurice Gallipoli, both of whom were appointed to the bench by a Republican governor, Thomas H. Kean.

Lamparello said that “since the 1947 state constitution, which resulted in the wholesale remaking of our New Jersey courts, there has been no more paramount issue facing us as a profession than the current threats to weaken our judiciary by undermining its independence.”

Learn more from Gavel Grab.