The Wisconsin Court of Appeals has issued an opinion in which it “caution(ed) circuit courts that a mandatory condition of release based solely on the nature of a charged crime without considering a defendant’s individual circumstances constitutes an erroneous exercise of discretion in setting bail conditions.” The court issued this caution in a case that challenged the practice in one Wisconsin county of imposing substance abuse treatment as a blanket condition of pretrial release in all cases in which a defendant was charged with a second or subsequent offense of operating a motor vehicle while intoxicated. The full case can be found here.

The key to this case is a finding by the court of Appeals that the trial judge’s decision was made on an evaluation of the defendant and was individualized.

Other jurisdictions also have found that conditions requiring drug testing for release imposed on an individual basis do not run afoul of the Fourth Amendment. See Oliver, 682 A.2d at 189-190; York, 892 P.2d at 814-15.

In York, the California Supreme Court upheld a decision that random drug testing was a permissible condition of release upon a court’s consideration of the specific facts and circumstances of each defendant’s case. York, 892 P.2d at 806, 816.

The District of Columbia court of appeals likewise found that a condition of release requiring drug testing for an admitted drug abuser was not an unreasonable search under the Fourth Amendment.  Oliver, 682 A.2d at 192-193.

AJA gives members new tools to face the brave new world of technology

AJA Midyear – Orlando Florida, May 2 – 4, 2013

“Will Facebook be friends with Courts:  Social Media, Digital Evidence and Emerging Trends.”

The midyear meeting in Orlando at the Wyndham Lake Buena Vista Conference Center will include a day long opportunity for judges to earn up to 7 continuing education units on Friday, May 3, 2013.  This conference is open to all judges and a special conference registration rate is available for Florida judges.

The following topics and issues will be addressed over the course of the day:

1.        What good judges need to know about the many ways the communications revolution, social media and technology challenge how courts and judges operate.

2.       What good judges need to know about social media to avoid pitfalls including running afoul of canons of judicial conduct

3.       Challenges to discovery of Electronically Stored Information (ESI), where it is and how to get it

4.       Admissibility issues related to Electronically stored Information

The faculty for this program includes:

Dana Babbin, esq  who served as a  prosecutor in Massachusetts  between October 1999 and March 2011.   Between 2003 and 2007, Dana served the Attorney General’s Office as its Internet Crimes Against Children Prosecutor, handling the prosecution of child pornography cases, did vast amounts of outreach and training, both locally and nationally, for state and federal organizations.  Between August 2007 and March 2011, Dana spearheaded the establishment of a first-ever cybercrime division at the Middlesex County D.A.’s Office and  supervised the D.A.’s Cyber Enforcement Unit, where experts analyzed the seized digital evidence.  She continues with her outreach efforts, spending considerable time working with schools that were increasingly faced with problems stemming from the intersection of crime and technology (such as cyber-bullying and “sexting”), ultimately building materials used to “divert” young persons from the criminal justice system who had been caught “sexting” at school.  Dana travels statewide and nationwide as a guest speaker for government, legal, and pedagogical organizations, focusing primarily on the education of police, school personnel, and professionals who are concerned with the many facets of digital evidence and cyber safety. She now operates Cadence Consulting (callcadence.com) which provides outreach and training, primarily to police academies, digital evidence examiners, digital evidence labs, and school personnel.

Daniel K. Gelb, is a Partner at Gelb & Gelb LLP, in Boston . His practice focuses on business, securities, accountant’s liability, corporate raiding and trade secrets and criminal  law.  He is a frequent presenter and author in the area of electronic discovery.  He is a member of the Sedona Conference Working Group on Electronic  Document Retention and Production, the National Association of Criminal Defense Lawyers electronic  discovery task force, and of the advisory board of the Bureau of National Affairs White Collar Crime Report

Hon. Elliott Zide (ret), is now  President-elect of AJA and a widely known and respected judicial education development strategist with over 25 years of experience planning conferences, developing curricula designed to improve judicial performance  and designing and presenting programs and initiatives to develop judicial education faculty who better meet their learning goals.  Judge Zide worked primarily with his colleagues in Massachusetts and the American Judges Association but has also worked abroad in the UK, India, Macedonia, and Oman.

Mike Duffey is a special agent with the Florida Department of Law Enforcement currently assigned to the Computer Crimes Center.  He is responsible for statewide computer crime investigations including Internet crimes against children.  Mike also conducts awareness and prevention presentations to various schools and civic organizations.  He has also presented to law enforcement officers around the world on how to conduct child exploitation investigations.  As a member of the Tallahassee Police Department and Florida Department of Insurance, Mr. Duffey investigated street crimes, narcotics, burglary, and insurance fraud cases.  Mr. Duffey has worked with multiple federal, state, and local agency task forces in conducting Internet crimes against children investigations.  His current cases include network intrusion cases, Phishing scams, and denial of service attacks.  Mike has a Bachelor’s of Science Degree from Florida State University School of Criminology and he has completed his Microsoft Certified System Administrator (MCSA) course work along with multiple child exploitation classes and computer forensics.

AND…other experts knowledgeable about social media, technology and digital evidence from Florida.

Program participation includes:  the program, excellent written materials and materials on disk (for easier transport).  The Faculty intend to present some hypothetical examples over the course of the day which the participants will use to focus on the issues discussed.

In addition we welcome:

Any judge who may wish to serve as additional panel members, judges who wish to submit a hypothetical and  judges who wish to submit written materials (flow charts, schematics, short articles)

If you have any thoughts about the program or want to serve as faculty please correspond directly with Elliott Zide, judgezide AT yahoo DOT com,  being certain to insert the relevant words in the subject space on your e-mail server.

To register for the conference or make reservations at the Wyndham, go to http://aja.ncsc.dni.us/conferences/.

Few organizations are as consistently observant of trends and developments that can improve or be a setback to a fair system of justice then the Brennan Center. So it is not surprising that the Center makes this observation,

As the nation prepares itself for the across the board budget cuts, Drug Policy Alliance Executive Director Ethan Nadelmann and Brennan Center Justice Program Director Inimai Chettiar point out today in The Hill that the sequester gives the Department of Justice an opportunity to rethink outdated criminal justice policies that simply don’t work and waste money. “The Justice Department has some discretion in the sequester, particularly over how specific departments within agencies execute the cuts,” write Chettiar and Nadelmann. By prioritizing evidence-based programs and policies that protect public safety, the Justice Department can make responsible cuts that “increase both the fiscal health and effectiveness of the eternally cash-strapped agency.

 

For more details on how the Justice Department can implement smart cuts, read Chettiar’s and Nadelmann’s piece in The Hill, as well as the Brennan Center’s letter to the Justice Department and White House’s Office of Management and Budget. Read more from Chettiar on realigning federal funding incentives and from Nadelmann on drug policy reform.

The Alaska Supreme Court issued an interesting opinion written by Chief Justice Fabe regarding domestic abuse.

The Volokh Conspiracy has an excellent synopsis.

The full opinion can be found at: http://courts.alaska.gov/ops/sp-6749.pdf.

The facts in the case are brutal.  Simone Greenway and her friend Carrie Randall–Evans were dancing together in a suggestive manner and teasing Jeffrey Evans, Carrie’s husband. Mr. Evans left the room, returned with a pistol, and shot everyone inside, killing Carrie. Evans then shot and killed himself. David Hurn, the father of Carrie’s two minor children, sued, claiming that Greenway’s participation in the dance was negligent either because it breached her duty as homeowner to control her guests or because it created a foreseeable and unreasonable risk of violence. With children left with no mother it is arguably understandable why a creative lawyer might try to find some insurance coverage. But Chief Justice Fabe wrote, “Hurn asks us to reduce domestic violence in this state by imposing a duty to “refrain from teasing or bullying someone known to be potentially violent.” But we refuse to give victims the duty to prevent their own abuse and then hold them liable when they fail.

The record suggests that Jeffrey was an abusive husband. And if Greenway is liable for taunting an abusive husband, it follows that victims themselves may be liable for provoking their partners if the result is harm to a third party.

Some courts have already been asked to hold a recipient of domestic abuse liable under § 302B for the crimes of her partner. The Iowa Supreme Court held that a woman was not liable for the actions of her jealous and abusive boyfriend after he assaulted another man she brought home. [Footnote: See Fiala v. Rains, 519 N.W.2d 386 (Iowa 1994); cf. Wilkins v. Siplin, 13 Cal.Rptr.2d 634 (Cal.App.1992) (holding that a wife could be liable for inviting a co-worker to a remote cabin where he was attacked by her husband) (depublished by order of the California Supreme Court).] These requests are particularly troubling where, as here, the “provocation” is an act of resistance. [Footnote: The sparring, dancing, and teasing at issue were a direct response to Jeffrey’s not-so-veiled threat to Carrie and Greenway’s physical safety: “[W]hat would you girls do if somebody came in that door right now, after you?” In response, Carrie and Greenway laughed, gave each other a high five, said “[W]e’d kick his ass,” and started sparring to demonstrate how they would repel the intruder. While they were sparring and dancing and laughing at Jeffrey, Greenway was [implicitly] expressing to Carrie: “[T]his is my domain, you don’t have to be afraid here.”]

We reject the idea that victims are responsible for the violence they endure in the home, and we will not blame them for their otherwise reasonable actions simply because those actions foreseeably result in violence.

Excerpts taken from  Admired – 21 Ways to Double Your Value by Mark C. Thompson and Bonita S. Thompson:

In global studies with world leaders, we’ve seen over and over that the only way to do your best work is to employ as many of your passions as possible to get it done.  By trusting this instinct and pursuing what you love… by becoming more skilled at that passion, you can create a win-win for your career, your organization, and your life.  But can this philosophy translate into a courthouse or is this approach solely a private sector thing. Judges do perform a unique service but that does not mean that judges can”t learn or can’t invest in themselves. DISCOVER YOUR STRENGTHS:   What are you doing when you are at your best?   This question is deceptively simple but incredibly powerful.  When you are a very good judge what are you doing when you are at your best?    StrengthsFinder 2.0 can give you a head-start at discovering your strengths. The StrengthsFinder test will identify your top 5 themes and provide suggestions for utilizing them to the utmost.

 

DO A TIME DIARY:  How do you (really) spend your time? For one day, write down what you want to accomplish and then use an online tool called Time Tracker  to keep a record of everything you do. At the end of the day compare your goals with what actually happened.  This is an amazingly revealing exercise because it shows you how much time you waste on random, useless activities. How much time do you spend checking email?  How much time endlessly browsing the news, feeling productive but not actually accomplishing anything?  As an exercise, see if you can identify the 20% of your time that produced 80% of your results. What can you do to have more highly productive time like this?

 

SET WEEKLY GOALS AND REVIEW PROGRESS:  What is your #1 goal this week?  This personal investment strategy is similar to time management, but it lasts for an entire week. Oftentimes, we get so caught up in the day-to-day rush that we fail to step back and look at the things that are most critical.  It’s the old urgent-versus-important problem. We spend our time dealing with small, urgent issues, when we should be focusing on important (but non-urgent) tasks.  This week, fight back against the chaos by setting one main goal that you want to have accomplished in seven days.  You can also pick two secondary goals if you’re feeling ambitions, but no more than that.  Look back on how you did at the end of the week. Did setting goals help you work more purposefully and effectively? If you had done nothing but work on your three main goals, what would have happened?

 

GET A MENTOR:  This is a harder challenge, but the benefits are worth it.  You need to find a mentor.  Most likely the mentor will be another judge but it maybe someone else. Try to set up a regular meeting time and overarching goals for the relationship when you first get together.  Establish a task to work on in between each of your meetings, so you can get feedback and support from your mentor.

 

FIND YOUR WHY:  Purpose is a powerful thing. Too often judges don’t reflect on something as important as how they approach their job.  It gets you up in the morning and keeps you awake at night. Anyone who accomplished anything great was driven by a strong, deeply-held belief of what is wrong with the world and how it can be made right. What is your purpose? Why do you work?  Take an hour today to sit quietly by yourself and reflect on what you care about most deeply. What types of “bigger than yourself” activities really get you fired up or make you feel most fulfilled?  Don’t skip this challenge. The benefits of knowing your purpose will last a lifetime.

Professor Drinan on Lafler and Frye

Cara H. Drinan (Catholic University of America (CUA)) has posted Lafler and Frye: Good News for Public Defense Litigation (Federal Sentencing Reporter, Vol. 25, No. 2, 2012) on SSRN. Here is the abstract:

In Missouri v. Frye and Lafler v. Cooper, the Supreme Court confirmed that the Sixth Amendment right to counsel applies to the plea negotiation process and held that prejudicial error can flow from ineffective plea advice. The defense community has applauded these decisions for recognizing the pivotal role that guilty pleas play in our criminal justice system and for requiring a minimum level of efficacy in plea lawyering. In this brief essay, I suggest that Frye and Lafler are victories for the defense community in yet another way. The decisions reflect judicial realism, and in this respect, they are especially important cases for systemic public defense litigation. Courts confronted with these suits in the past have stymied reform efforts by approaching these suits in a formalistic way, sending plaintiffs either to seek a post-conviction remedy or legislative redress, neither of which are practical options. Frye and Lafler, because they are grounded in the reality of today’s criminal justice system, may provide critical leverage to lawyers asking courts for systemic relief.

The Associated Press reports that, “Maine’s highest court prepared to weigh in on whether a man can be charged with invasion of privacy for viewing videos of accused johns who were recorded without their knowledge while engaging in sex acts with a woman who’s charged with using her Zumba studio as a front for prostitution.

The trial judge dismissed 46 invasion of privacy counts against Mark Strong Sr., ruling that someone engaging in criminal conduct doesn’t have the same right to privacy as someone changing in a dressing room or locker room.”

The full story is here.

Susan Dimock, York University

Mohamad Al-Hakim, Florida Gulf Coast University

New Criminal Law Review (formerly known as Buffalo Criminal Law Review), Volume 15, Number 4, pp. 572-611, Fall 2012

Abstract:       

Our principal concern in this paper is with the accusation that hate crime legislation violates the principle of proportionality and related principles of just sentencing, such as parity, fair notice, and representative labelling. We argue that most attempts to reconcile enhanced punishment for hate crimes with the principle of proportionality fail. More specifically, it seems that any argument that tries to justify hate crime legislation on the grounds that such crimes are more serious because their consequential harms are worse or their perpetrators are more culpable than their nonhateful counterparts will fail, and thus enhanced punishment will violate the principle of proportionality. Given the seeming irreconcilable tension between proportionality and hate crime legislation, we turn to consideration of hybrid theories of punishment that permit deviations from strict proportionality when needed to serve other important and legitimate purposes of sentencing. We argue that even if such hybrid theories can justify the enhanced punishments for hate crimes, existing theories cannot provide any principled limit on the extent from which proportionality can be deviated. We suggest such a limit and provide a principled justification for it.

“Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause: Rediscovering the Eighth Amendment’s ‘Economic Survival’ Norm”

There are few cases that raise Eighth Amendment Issues but the issue of how much is too much is real. There is this interesting-looking new paper now up on SSRN authored by Nicholas McLean. Here is the abstract:

Most modern courts that have been called upon to interpret and apply the Excessive Fines Clause of the Eighth Amendment have concluded that a fine or forfeiture can be unconstitutionally excessive only if it is grossly disproportionate to its associated offense. However, in light of its text, history, and purpose, the Excessive Fines Clause is appropriately understood as encoding both a proportionality principle and a further limiting principle linking penalties to the personal circumstances and economic status of the offender.  This article seeks to address a significant and surprising gap in the extant literature by articulating and systematically developing an account of this second principle, known in traditional English law as salvo contenemento.  This principle is properly understood as signifying an “economic survival” or “livelihood protection” norm inherent in Eighth Amendment jurisprudence.

An emerging academic literature has concluded that the practice of assessing criminal financial penalties without regard to offenders’ personal economic circumstances is both widespread and extremely harmful.  Indeed, the burden of unpayable criminal justice debt can effectively destroy offenders’ capacity to reintegrate into society.  I submit that such practices are not just bad policy, but may be properly seen as constitutionally infirm: a constitutional fines and forfeitures jurisprudence that reflected the original meaning of the Excessive Fines Clause would be significantly more sensitive to the plight of the indigent criminal defendant, and more conducive to the rehabilitative goals of the criminal law.

The exact issue was one of first impression in the federal courts. Can the police stop a car if the only articulable reason is the color of the car does not match the registration? The opinion of the Seventh Circuit begins,

 Early one morning, Jesus Uribe was driving along Interstate 70 in Indiana. Apparently, he was not speeding or driving too slowly, weaving recklessly across lanes, crossing the dividing line, or giving any indication that he was intoxicated.

Nor is there evidence that Uribe’s vehicle, a blue Nissan Altima with Utah plates, was in violation of any of Indiana’s numerous vehicle requirements—no malfunctioning brake lights, improperly tinted window, visibly altered muffler, or expired license plate. Only one aspect of Uribe’s travel was interesting: the blue Nissan he was driving had a registration number that traced back to a white Nissan. Although this color discrepancy alone is not unlawful either in Indiana, where Uribe was driving, or in Utah, where the car was registered, the deputy following Uribe’s car initiated a traffic stop “to check for registration compliance.” That stop led to a search of the vehicle, nearly a pound of heroin, and a federal indictment.

Uribe filed a motion to suppress the evidence obtained following the stop, contending that the seizure violated the Fourth Amendment because the deputy had no reasonable suspicion or probable cause to detain him. Although the government offered no evidence to support its objection to the motion, it argued that there was reasonable suspicion that the car was stolen and that its driver was violating Indiana law by operating a vehicle displaying a different car’s registration number. The district court granted Uribe’s motion, finding the government’s explanations insufficient to establish that at the time of the stop the deputy had had a reasonable, articulable suspicion that Uribe was engaged in criminal activity.

The full opinion can be found here.