How to deal with the maturity of juveniles making decisions about their rights is often not easy.

In the family law area, courts are frequently asked to determine whether the juvenile is of sufficient age and maturity to decide which parent to live with.  Occasionally, judges are asked to decide whether the juvenile should be emancipated.

Courts are also asked to decide if juveniles are of sufficient age and maturity to make decisions like abortion.  But, the area where courts most frequently see the issue is around the decision to waive the right to counsel in criminal (delinquency) cases.  So, this post on SSRN is interesting:

Kentucky Should Mandate Attorney Consultation Before Juveniles Can Effectively Waive Their Miranda Rights 

Sandra Eismann-Harpen

Salmon P. Chase College of Law

September 16, 2013

Northern Kentucky Law Review, Vol. 40, No. 1, p. 201, 2013

Abstract:

Kentucky’s protection of juveniles’ Miranda rights is not only inadequate, but it also lags behind other states. Although the Supreme Court of the United States expanded the protection of juveniles’ Miranda rights in J.D.B., the reasonable child standard created in J.D.B. is insufficient. Juveniles’ brains are not fully developed, and they often fail to comprehend the risks and potential consequences of waiving their Miranda rights. To circumvent this issue, some states require parental consultation for valid waiver of Miranda rights by juveniles; however, parents and guardians typically lack legal knowledge to adequately represent juveniles’ rights and may have interests that conflict with the juvenile’s interests. Therefore, this article proposes a modification to Kentucky law to better safeguard juveniles’ constitutional rights by creating a bright-line rule mandating attorney consultation before juveniles can effectively waive their Miranda rights.

Judge Wayne Gorman reports on an interesting case from Canada,

In R. v. Alboukhari, 2013 ONCA 581, September 27, 2013, the accused was convicted of the offence of sexual assault.  The offence involved the accused having sexual intercourse with the complainant. The complainant testified that she thought she was having sexual intercourse with her boyfriend.  Thus, the issue became whether the accused had taken reasonable steps to ascertain consent as required by section 273.2(b) of the Criminal Code. The Ontario Court of Appeal set aside the conviction and ordered a new trial on the basis of the trial judge’s misapprehension of the evidence.  Of interest to us is that the Court of Appeal’s judgment provides a succinct summary of the law in relation to the application of section 273.2(b) of the Criminal Code.  At paragraphs 40 to 44:

A complainant’s apparent consent to sexual activity may provide an accused charged with sexual assault with a defence.  Since the identity of an individual’s sexual partner is an inseparable component of consent to sexual activity, s. 273.2(b) of the Criminal Code requires that reasonable steps be taken to ascertain that the individual is consenting to have sex with the accused.   The accused may rely on the defence that he honestly but mistakenly believed that the complainant was consenting to have sex with him.  However, that defence is not available if the accused did not take reasonable steps, in the circumstances known to him, to ascertain consent.

The Manitoba Court of Appeal has described the approach to determining if the accused has taken reasonable steps to ascertain consent as a “quasi-objective test”: R. v. Malcolm, 2000 MBCA 77, 147 C.C.C. (3d) 34, at para. 24, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 473.  In Malcolm, the court set out a useful approach to the determination, as follows, at para. 24:

First, the circumstances known to the accused must be ascertained. Then, the issue which rises is, if a reasonable man was aware of the same circumstances, would he take further steps before proceeding with the sexual activity? If the answer is yes, and the accused has not taken further steps, then the accused is not entitled to the defence of honest belief in consent. If the answer is no, or Even maybe, then the accused would not be required to take further steps and the defence will apply.

Thus, while reasonable steps are assessed from an objective point of view, this assessment is informed by the circumstances subjectively known to the accused.  The accused is not under a positive obligation to determine all of the relevant circumstances; rather, the assessment is based on the circumstances actually known to him or her at the time:  R. v. Darrach (1998),  38 O.R. (3d) 1 (C.A.), at p. 89,  aff’d on other grounds 2000 SCC 46, [2000] 2 S.C.R. 443.

What is required in terms of reasonable steps depends on the facts. As the British Columbia Court of Appeal stated in R. v. G.(R.), at para. 29:

[Section] 273.2(b) clearly creates a proportionate relationship between what will be required in the way of reasonable steps by an accused to ascertain that the complainant was consenting and “the circumstances known to him” at the time. Those circumstances will be as many and as varied as the cases in which the issue can arise, and it seems to me that the section clearly contemplates that there may be cases in which they are such that nothing short of an unequivocal indication of consent from the complainant, at the time of the alleged offence, will suffice to meet the threshold test which it establishes as a prerequisite to a defence of honest but mistaken belief.

The accused’s mistaken belief in consent need not be reasonable in order for the defence to be available. As Morden A.C.J.O. stated in Darrach, at p. 90, “[w]ere a person to take reasonable steps, and nonetheless make an unreasonable mistake about the presence of consent, he or she would be entitled to ask the trier of fact to acquit on this basis.

Recently, the Los Angeles Times reported that, “A federal appeals court grappled with whether a prohibition against excluding jurors because of race or gender should be extended to sexual orientation.”

During an hour-long hearing, a three-judge panel of the U.S. 9th Circuit Court of Appeals peppered lawyers with questions about the removal of a gay man during jury selection for an antitrust trial two years ago.

The dispute between Abbott Laboratories and SmithKline Beecham involved Abbott’s price hike for an AIDS drug, which had infuriated the gay community.  An attorney for  Abbott used a peremptory challenge to exclude a man who had spoken of his male partner while being questioned for possible placement on the jury.

SmithKline objected to the strike, charging that Abbott did not want gays on a jury. The Abbott attorney denied removing the man because of his sexual orientation and insisted that he did not know whether the prospective juror even was gay.”

You can access the audio for the Ninth Circuit oral argument at this link.

Michael Tonry is among the nation’s most preeminent scholars whose work focuses on sentencing.  He has posted a new work on Social Science Research Network (SSRN):  Sentencing in America, 1975-2025 (June 11, 2013).  ‘Crime and Justice in America, 1975-2025’, Michael Tonry (ed.), University of Chicago Press, 2013, Forthcoming.

Here is the abstract:

American sentencing policy has gone through four stages in the past 50 years. Indeterminate sentencing was followed by a sentencing reform period in which policy initiatives sought to make sentencing fairer and more consistent, a tough on crime period in which initiatives sought to make sentences harsher and more certain, and the current period, which is hard to characterize. Most tough on crime initiatives remain in place, co-existing with rehabilitative and restorative programs that aim to individualize sentencing and programming. Social science evidence was influential in the second period and to a limited degree in the current period. Indeterminate sentencing was broadly compatible with prevailing utilitarian ideas about the purposes of punishment and the sentencing reform period was broadly compatible with retributive ideas. The initiatives of the tough on crime period are difficult to reconcile with any coherent set of normative ideas. Current sentencing policies are a crazy quilt, making it impossible to generalize about prevailing normative ideas or an “American system of sentencing.”

The Associated Press recently reported a ruling by a federal court of appeals that clicking “Like” on Facebook is constitutionally protected free speech and can be considered the 21st century-equivalent of a campaign yard sign.

The 4th U.S. Circuit Court of Appeals in Richmond reversed a lower court ruling that said merely “liking” a Facebook page was insufficient speech to merit constitutional protection.

Exactly what a “like” means – if anything – played a part in a Virginia case involving six people who say Hampton Sheriff B.J. Roberts fired them for supporting an opponent in his 2009 re-election bid, which he won. The workers sued, saying their First Amendment rights were violated.

Roberts said some of the workers were let go because he wanted to replace them with sworn deputies while others were fired because of poor performance or his belief that their actions “hindered the harmony and efficiency of the office.”  One of those workers, Daniel Ray Carter, had “liked” the Facebook page of Roberts’ opponent, Jim Adams.

The Fourth Circuit opinion can be found at:  http://www.ca4.uscourts.gov/Opinions/Published/121671.P.pdf

There are a number of states that have banned judges from citing foreign law.  Some have advocated including such a ban in state constitutions, and others have threatened to not give full faith and credit to decisions based upon a foreign court decision.  So the safe way to avoid such problems, arguably, is not to mention a foreign decision.  But the New York Times reports a decision in Spain that cannot go unnoticed for those who are interested in family law:

The economic crisis in Spain has had the unintentional consequence of forcing warring couples who cannot afford divorces to remain together. Now, a judge in Seville has ordered a divorcing couple to split their 2,700-square-foot apartment down the middle.

The property belongs to the husband’s parents, but the judge ordered the man to bisect it to create two independent abodes, citing economic considerations and the well-being of the couple’s two daughters, ages 6 and 7, according to the written ruling released by the court this month.

Josep Maria Torres, a family law expert at Roca & Junyent, a leading law firm in Barcelona, said Friday that the ruling was highly unusual. “It is an extraordinary decision that could encourage other judges to seek similarly extreme solutions,” he said. “Spain’s economic crisis
has changed everything.”

The potential for awkward encounters between the couple in the stairwell presented “the lesser of two evils in view of the economic situation presented by both parties,” the judge wrote, referring to the couple’s complaint that the crisis had decimated their earnings. The couple were not available for comment.

In her ruling, the judge reasoned that since the husband’s parents had not taken any action against their daughter-in-law, it was evident that they did not want to expel her and her two daughters from the apartment.  She said that the husband had his offices downstairs from the apartment and that the proximity would benefit his daughters.

The ruling requires the husband to pay for the division. But it does not specify whether he must erect walls or can simply put tape across the floor, a penny-pinching solution that some splitting couples have tried. But this couple appeared to have means.

There may be few people more committed to improving the plight of self-represented people and insuring access to justice than Richard Zorza. His blog recently had this very interesting piece:

Training 211 Operators on Legal Access Resources Has Major Impact in Minnesota Collaboration

One of the great — and too little explored — potentials of having integrated access services is the potential of much better linkages with broader help gateways. A recent report on such an approach in the Minnesota Twin Cities area between Call for Justice and the United Way shows just how dramatic the results can be — for both sides of the partnership. The key components seem to be meetings between information providers and trainings for the 211 staff and others. The Project’s annual budget is $175,000, which came from the foundation arms of the Hennepin and Ramsey County Bar Associations, the Saint Paul and Bigelow Foundations, and 29 Twin Cities law firms — again a great collaborative model. Given how dramatic the results shown below are, I can not see how any state legal access website can justify not exploring such a relationship with the 211 system. Here is a link to the National 211 Gateway. 211 Systems now cover 90% of the US population. How many of these systems are linked to state LawHelp systems?

According the Minnesota project’s new press release and report:

Outcomes referenced in the report include:

– A 200 percent increase in referrals for 9 key legal resources—to providers that previously had received more limited referrals, effectively helping connect callers to programs more appropriate to the callers’ legal needs.

– A 786 percent increase in referrals to LawHelpMN.org, a resource-based website related to the Minnesota Legal Services Coalition.

– Increases of 336 percent and 560 percent to Court Self-Help resources in Hennepin and Ramsey Counties, respectively.

– Connecting attorneys with nearly 80 women and their children involved in a large Twin Cities program fighting intergenerational poverty. This “adoption” by two Minneapolis law firms was the result of an offshoot program that convenes various nonprofit legal and social service providers to facilitate organic collaborations.

– Providing more than 70 homeless individuals with legal advice within the first four months of a collaboration between a Legal Aid organization and a homeless meal and resource center.

– The creation of the first-of-its-kind (in Minnesota) panel of LGBT lawyers to serve homeless and at-risk LGBT youth.

– Nearly 1100 views of 2-1-1 training videos posted on the C4J website, including videos on immigration law, landlord-tenant law and bankruptcy.

– 8,035 page views of the C4J website (which includes 2-1-1 training materials) by 3,134 visitors.

– 533 views of the C4J website page that lists legal clinics. This is one of the few “print friendly” lists of Twin Cities metro legal clinics.

– Multiple outreach presentations to community organizations (Rotary, Optimists, etc.) regarding United Way 2-1-1 as a legal referral resource.

– Key assistance in helping to recruit more than 100 attorneys to assist low-income tenants at risk of eviction in housing court.

Some of these results are just stunning.

Here is the portion of the Report on the increased overall use of LawHelp MN:

Beginning in March, 2012, C4J identified LawHelpMN.org as a key legal resource, in part because one only needs access to the Internet as a way of obtaining important legal information. Thereafter, C4J repeatedly referenced the LawHelpMN website in its United Way 2-1-1 trainings as well as in public outreach and Legal Liaison programming.

Data on vastly increased traffic to the LawHelpMN website coincide with C4J’s efforts to publicize the website as a key legal resource:

• 7/1/11 – 12/31/11: 88,312 visits (479 average visits per day)
• 1/1/12 – 6/30/12: 101,603 visits (558 average visits per day)
• 7/1/12 – 12/31/12: 158,590 visits (862 average visits per day)
• 1/1/13 – 6/30/13: 169,728 visits (938 average visits per day)

The key comparison is June 2012 with June 2013, which reflects a near 60% increase in LawHelpMN.org visitors. While many factors contributed to that increase, we believe this single metric underscores the value of the C4J-United Way 2-1-1 collaboration and how it better connects low-income people with under-utilized legal resources.

For a variety of reasons, lots of courts and lots of court administrators have focused on collecting revenue. This notable new paper by Wayne Logan and Ronald Wright, now available via SSRN, should be of interest.

Here is the abstract:

Today, a growing number of bill collectors are standing in line to collect on the debt that criminals owe to society. Courts order payment of costs; legislatures levy conviction surcharges; even private, for-profit entities get a piece of the action, collecting fees for probation supervision services and the like. While legal financial obligations (LFOs) have long been a part of the criminal justice system, recent budget cutbacks have prompted an
unprecedented surge in their use. The resulting funds are dedicated to sustaining and even expanding system operations. With this shift, criminal justice actors have become mercenaries, in effect working on commission.

While a significant literature now exists on the adverse personal consequences of LFOs for offenders, this article is the first to examine their legal and institutional ramifications. Although any single LFO might be justifiable, the cumulative effects of assessed LFOs might overwhelm offenders. Further, when criminal justice actors find themselves collecting payments that benefit their own institutions or entities, there comes systemic risk of self-dealing. To mediate these threats, the article proposes use of LFO commissions, which could inventory and assess the propriety of current and proposed LFOs, and monitor their use going forward.

George Vallas has posted A Survey of Federal and State Standards for the Admission of Expert Testimony on the Reliability of Eyewitnesses (American Journal of Criminal Law, Vol. 39, No. 1, Fall 2011) on SSRN. Here is the abstract:

Eyewitness testimony is indispensable to the proper functioning of the criminal justice system. However, as Justice Frankfurter famously observed: “The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.” Social scientists, legal commentators, and even courts have long been skeptical of eyewitness testimony. Developments in forensic testing have established beyond any doubt that eyewitness testimony has the potential to be dangerously unreliable, and eyewitness misidentification remains the leading cause of false convictions in the United States.

It is not just federal judges who occasionally make a mistake in sentencing. The Associated Press recently reported that Colorado judges have declined to change prison sentences in more than 1,200 cases that officials said could have mistakenly allowed convicts to reduce their time. Governor John Hickenlooper requested the reviews of cases involving multiple felonies after a sentencing error led to the early release of Evan Ebel, the parolee suspected of killing Colorado Department of Corrections chief Tom Clements on March 19. The fact is mistakes happen and they happen with the result of a more harsh and more lenient sentence. Any thoughtful judge who does criminal sentencing painfully knows that mistakes are made. Accuracy in Sentencing is the title of this interesting looking new paper by Brandon Garrett now available via SSRN. Here is the abstract:

A host of errors can occur at sentencing, but whether a particular sentencing error can be remedied may depend on whether judges characterize errors as involving a “miscarriage of justice” — that is, a type of claim of innocence.  The Supreme Court’s “miscarriage of justice” standard, created as an exception to excuse procedural barriers in the context of federal habeas corpus review, has colonized a wide range of areas of law, from “plain error” review on appeal, to excusing appeal waivers, the scope of cognizable claims under 28 U.S.C. § 2255, the post-conviction statute for federal prisoners, and the “Savings Clause” that permits resort to habeas corpus rather than § 2255.  That standard requires a judge to ask whether a reasonable decisionmaker would more likely than not reach the same result.  However, the use of the miscarriage of justice standard with respect to claims of sentencing error remains quite unsettled.

In this essay, I provide a taxonomy of types of innocence of sentence claims, and describe how each has developed, focusing on federal courts. I question whether finality should play the same role regarding correction of errors in sentences, and I propose that a single miscarriage of justice standard apply to all types of sentencing error claims, when not considering on appeal under reasonableness review. Finally, I briefly describe how changes to the sentencing process or sentencing guidelines could also reflect certain concerns with accuracy.

 

Read more here: http://www.bellinghamherald.com/2013/08/14/3147270/colo-judges-decline-to-change.html#storylink=cpy