Thanks to sharp reporting by Jacob Gershman we know that there are on going efforts to breath life into Third Amendment jurisprudence:

‘Forgotten’ Third Amendment Surfaces in Nevada Case

By Jacob Gershman

It’s been called the “forgotten amendment,” “an insignificant legal fossil,” and an “oft-forgotten relic” of the American Revolution.

But the Third Amendment made a rare appearance in federal court, figuring in a lawsuit filed this month by a Nevada man against the city of Henderson and its police chief.

The Third Amendment reads, in full:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law

How rare are Third Amendment cases? It’s been 30 years since a federal court handed down a significant Third Amendment decision.

Henderson resident Anthony Mitchell claims that Henderson police officers violated his Third Amendment rights when they “conspired among themselves to force . . . .”

Mr Gershman reports for the law Blog published by the Wall Street Journal. It can be found at:

http://blogs.wsj.com/law/

“Courts Can’t Agree on Whether Cops Can Track Your Cell without a Warrant”

From Wired.com:

Federal law enforcement agents have been using warrantless cell-tower locational tracking of criminal suspects in the wake of the Supreme Court’s ruling 18 months ago that they need probable-cause warrants from judges to affix covert GPS devices to vehicles.

But the law on cell-site locational tracking is all over the books, with judges offering mixed rulings on whether warrants are needed. While dozens of lower courts have ruled on the issue, only two appellate courts have. All of which means some suspects are being convicted based on locational data of what towers their cell phones are pinging, and others are not, because some courts are requiring warrants.

Increasingly there is debate among the states as to what should be the mandatory retirement age of judges. Many states have statutory requirements but some have an age set by the state constitution. Pennsylvania is one such state and until the people amend their constitution it appears that 70 will remain as the mandatory retirement age.

The Pennsylvania Supreme Court has upheld a state constitutional amendment that requires judges in the state to retire at age 70. According to the Patriot News, “Even if it might not entirely reflect the realities of today’s society, the retirement mandate was properly added to the state constitution by the voters 45 years ago, the state Supreme Court concluded in a unanimous ruling.” The article explains, “The judges who challenged the retirement mandate, and who argued their case before the Supreme Court during a hearing in May, contended that the law represented age discrimination and violated their fundamental rights guaranteed under the state constitution. The retirement cutoff is based on a fallacy that after age 70, judges become less mentally and physically capable and more prone to debilities like dementia, the judges challenging the law claimed.”

In Koontz v. St. Johns River Water Management District, the Supreme Court ruled, in a five-to-four decision by Justice Alito, that when a government – any government – engages in land-use regulation, including by denying a permit or demanding payment as a condition for a permit, the government must show that there is a nexus and rough proportionality between its demand on the landowner and the effects of the proposed land use. The case broadens property owners’ rights to bring constitutional challenges to land-use decisions, and is likely to result in increased litigation.

From The Civil-Criminal Distinction Blog:

A longtime interest of mine is the blurry distinction between civil law and criminal law. The subject is far more relevant and important than it might initially seem to those who haven’t had occasion to consider it before. The reason is that a great deal depends on whether a particular legal proceeding is civil or criminal. The two usually entail different procedures and penalties, which could determine, for example, whether someone ends up spending decades behind bars.

A highly publicized example of this distinction is the pair of trials faced by O.J. Simpson when he was accused of killing his ex-wife and her friend in 1994. First he was the defendant in a criminal trial. In that proceeding, the plaintiff was the People of the State of California because Simpson was accused of the crime of murder, and crimes are wrongs defined by and therefore considered to be perpetrated against the whole community. The prosecution in the criminal trial represented the entire population of California, where the crimes occurred.

After Simpson was acquitted of the crimes, he stood accused a second time, this time in a civil trial for causing the wrongful deaths of Ronald Goldman and Nicole Brown Simpson. In this trial, the plaintiffs were the Goldman and Brown families, who claimed that the private rights of their family members had been violated. The Goldman and Brown families would have been allowed to sue even if Simpson had been convicted in the criminal trial. Thus, the same wrongs—here, the killings—can trigger both criminal proceedings (initiated by the state for the offense against society) as well as civil proceedings (initiated by private actors for the wrongs perpetrated against them).

If Simpson had lost his criminal trial, he could potentially have faced life imprisonment. (If the district attorney had opted to pursue the death penalty, Simpson could also possibly have faced that punishment.) When he lost the civil trial and was found liable for the wrongful deaths of Brown Simpson and Goldman, he was ordered to pay $33.5 million to the victims’ families.

Although both trials dealt with the same alleged acts, the outcomes differed, which demonstrates yet another significant difference: civil trials and criminal trials are conducted differently. While both involve an adversarial process and the right to a verdict rendered by a jury, criminal proceedings entail different rights and procedural safeguards than do civil proceedings. For example, in the criminal trial, the prosecution bore the burden to prove beyond a reasonable doubt that Simpson committed the crimes with which he was charged. In the civil trial, however, the plaintiffs had to prove by a preponderance of the evidence that Simpson was liable for the wrongful deaths. “Beyond a reasonable doubt” is a heavier onus than “a preponderance of the evidence.” The difference in the legal protections stems from the relative seriousness of the potential outcomes; while having to pay millions of dollars is a serious sanction, it is regarded as less severe than spending decades in prison.

I’ve tried to provide a very accessible example here for the benefit of those who might not be familiar with the civil-criminal distinction. Of course, both fields of law can be enormously complex, and other cases and examples about which I’ll blog illustrate that fact. As I continue blogging, I hope it becomes apparent that the Simpson case is just the tip of the iceberg, and that the divide between the civil and the criminal is often quite unclear. Because so much depends on whether a proceeding is civil or criminal, the distinction also creates problematic incentives and generates a multitude of thorny legal questions.

The blurry bifurcation between civil law and criminal law is an important matter that, at the very least, warrants its own blog. I intend to use this space to call attention to interesting scholarship on the topic, to highlight current news involving the civil-criminal distinction, to discuss cases implicating this subject, and to share my own thoughts on the issue. I welcome comments, both on the blog itself and via e-mail at civil.criminal.distinctionATgmail.com.

Juries and the Criminal Constitution

Meghan J. Ryan

Southern Methodist University – Dedman School of Law

June 21, 2013

Alabama Law Review, Forthcoming

SMU Dedman School of Law Legal Studies Research Paper No. 121

Abstract:

Judges are regularly deciding criminal constitutional issues based on changing societal values. For example, they are determining whether police officer conduct has violated society’s “reasonable expectations of privacy” under the Fourth Amendment and whether a criminal punishment fails to comport with the “evolving standards of decency that mark the progress of a maturing society” under the Eighth Amendment. Yet judges are not trained to assess societal values, nor do they, in assessing them, ordinarily consult data to determine what those values are. Instead, judges turn inward, to their own intuitions, morals, and values, to determine these matters. But judges’ internal assessments of societal standards are likely not representative of society’s morals and values — because judges, themselves, are ordinarily not representative of the communities that they serve. Juries, on the other hand, are constitutionally required to be drawn from a representative cross-section of the community. Further, because juries are composed of several different individuals, they may draw on a broader range of knowledge and expertise in making their decisions. The historically trusted body to protect defendants from an overbearing government, juries, rather than judges, should be the ones empowered to determine these criminal constitutional moral matters.

From the Cleveland Plain Dealer:

A Cuyahoga County prosecutor was fired after he admitted to posing as a woman in a Facebook chat with an accused killer’s alibi witnesses in an attempt to persuade them to change their testimony.

William K. Oliver has written a call for help with respect to resolutions pending before the American Bar Association meeting later this summer,

The Judicial Division (JD) urgently needs your assistance regarding two proposed resolutions currently pending before the American Bar Association (ABA) House of Delegates (HOD) that affect the Model Code of Judicial Conduct ethics rules on judicial disqualification requirements regarding election campaign contributions. JD supports proposed Resolution 10 B and opposes proposed Resolution 108. The reasons for JD’s support for 10 B and opposition to 108 are expressed in the Judicial Division Executive Summary Regarding Proposed Resolutions 10 B and 108, which you are invited to review on Division’s website at http://www.americanbar.org/jd.

These resolutions are expected to be presented for a vote by the HOD at the ABA Annual Meeting in August 2013 in San Francisco, CA. While negotiations have taken place between JD and the proponents of proposed Resolution 108 to modify the language of 108 in a manner that would be acceptable to JD, it does not now appear that such negotiations will be successful.

Accordingly, JD requests that all JD members who have a personal connection to state delegates to the HOD or otherwise feel comfortable contacting them contact those delegates and persuade them to vote for Proposed Resolution 10 B and against Proposed Resolution 108 so judges can avoid what JD perceives as dire negative consequences. If you need to see a list of your state delegates to determine whether you have a personal connection or otherwise feel comfortable contacting them, or if you want to see copies of the resolutions, please contact Denise Jimenez at denise.jimenez@americanbar.org or by phone at 312-988-5723.

Few judges relish getting assigned a child pornography case. If there is a conviction, fashioning a sentence and dealing with legal issues like what amount if any restitution should be ordered is a challenge. But before you get to that stage there is the issue of pre-trial discovery. As reported by the New Jersey Law Journal, the New Jersey Supreme Court has an important new ruling on discovery:

New Jersey’s high court has made it possible for defense lawyers to obtain for review the evidence against clients charged with child pornography-related offenses.

The unanimous court ruled on Thursday, in State v. Scoles, A-41-11, that lawyers can access the material in their offices provided they agree to certain strictures and conditions.

Noting an increase in child pornography prosecutions and that judges have been fashioning their own rules for pretrial discovery, the court said it wanted to promote consistency and a more uniform approach across the state.

The justices rejected the federal approach, in which evidence of child pornography is kept under the control of the government or the court.

The court followed the approach upheld in the case of Neil Cohen, a Democratic Assemblyman from Montclair charged in 2008 with possession of images of child pornography in his legislative office. The appellate ruling in that case, State v. Cohen, A-3682-08, was ordered published on Thursday.

The justices said that a court-issued protective order designed to secure computer images of alleged child pornography from intentional and unintentional dissemination should closely track Cohen, in which Mercer County Superior Court Judge Gerald Council ordered that prosecutors produce copies of all computer images and data confiscated, subject to certain conditions to prevent their dissemination.

The court said protective orders should provide that:

• The images may not be copied, reproduced, distributed, disseminated, electronically stored and/or electronically uploaded or downloaded, or used for any purpose outside the case.

• The material must be viewed on a dedicated computer, not connected to the internet, a network or a printer, which must be locked and secured when not in use.

• Transfer of the material from the state to the attorney, from the attorney to an expert, and from the attorney back to the state must be hand-to-hand.

• Anyone viewing the material on behalf of the defense should be furnished with a copy of the order and will be subject to its terms.

• Agreements between defense counsel and their experts should include a provision certifying that the expert acknowledges the order’s terms.

• The defendant may not view the materials outside the presence of defense counsel.

• At the conclusion of the case, steps must be taken to ensure that all of the material is completely and irretrievably deleted from the computer.

Gov. Jerry Brown and the Legislature’s Democratic leaders last week formally unveiled a compromise that restores $63 million that was cut from court funding in the governor’s revised budget plan last month.

The court funding agreement is part of an overall compromise that largely mirrors the governor’s proposal for a fiscally restrained spending plan that assumes conservative revenue projections, but which key Democrats said would not prevent them from pushing for additional spending if tax collections exceed those projections.

Brown said there’s no agreement to renegotiate the budget if revenues exceed projections.

“Only time will tell, but in general I think prudence rather than exuberance should be the order of the day,” the governor said.

While legislative leaders wanted more, Chief Justice Tani Cantil-Sakauye said the restoration of $60 million for trial courts and $3 million for appellate courts was a good first step and expressed hope the Legislature will restore more money later.

“We hope that as the state’s economy improves, the branch’s budget will improve so that we can rebuild the kind of access to justice the public deserves,” she said in a statement.