By far one of the best legal blogs is Sentencing Law & Policy authored by Professor Douglas Berman. It can be found at http://sentencing.typepad.com   The blog covers  this local news piece, which is headlined “Judges to consider veteran experiences before sentencing.”  How judges should treat military service in bail or sentencing over the years has changed. For a while, there were those who said judges should not consider military service. When there was a draft, the effect of crediting military service in bail or sentencing decisions could introduce gender discrimination and was therefore disfavored among some. More recently, there has been heightened interest in doing right by military veterans. While prior military service may not have any predictive value in determining whether someone will show up if released without bail, there may be other approached judges can take to “credit” people for service to the country in the military. Veterans’ courts are growing around the country and are very successful.  Ohio appears poised to enact a bill to require consideration of military service at all sentencings.  As reported by Professor Berman, here are the details of the Ohio legislation: 

Before sentencing, veterans who commit a crime may soon be given consideration by a judge for their military service. The goal is rehabilitation instead of incarceration.

A bill unanimously passed by the Ohio Senate would require a court to consider a person’s military service as well as their emotional, mental and physical condition before being sentenced for a crime.

The legislation proposed by Senator Joe Schiavoni would apply to both misdemeanor and felony charges. “They have been through things that most of us haven’t,” Schiavoni said. “It’s so, so important we consider that before they get thrown into jail and their problems aren’t handled properly.” Schiavoni says the bill has bipartisan support from both legislators and judges.

Youngstown Municipal Judge Robert Milich supports the bill. He says judges shouldn’t only consider what role a veteran’s experiences overseas may have played in the crime, but how that experience could better their odds of rebuilding and becoming a productive part of society. “As soon as you start getting them to talk about their military experience, which I do, you can see they stand a little taller because it was a time when they did something they were proud of, they were respected, they controlled resources, and people,” said Judge Milich. “This brings it back, gives them something to build on, and you don’t find that in a lot of the defendants.”

The bill will now go to the Ohio House of Representatives, where it is expected to be voted on before the end of the lame duck session. 

The text of this bill is available at this link, with the provisions setting forth the change in Ohio’s sentencing law underlined.  Here is one version of the key language in the bill requiring consideration of military service at sentencing:

(F) The sentencing court shall consider the offender’s military service record and whether the offender has an emotional, mental, or physical condition that is traceable to the offender’s service in the armed forces of the United States and that was a contributing factor in the offender’s commission of the offense or offenses.

 In language typical of his blog Professor Berman reports,

Hard-core federal federal sentencing fans know that, effective November 2010, section 5H1.11 of the federal sentencing guidelines was amended to change a policy statement that  previously deemed military service “not ordinarily relevant” to a departure.  The current version of these guidelines now say military service “may be relevant in determining whether a departure is warranted,” but the proposed change to Ohio law goes further by requiring consideration of military service.

I am aware that North Carolina statutorily provides that having “been honorably discharged from the United States armed services” is a mitigating factor at sentencing, see N.C. Gen. Stat. § 15a-1340.16(e)(14), but this new Ohio law also goes further because it demands a broader consideration of factors and does not demand an honorable discharge.  Thus, I am pretty sure if and when this Ohio bill becomes law it will be breaking some new and valuable sentencing ground.” Many jurisdictions give judges great latitude in sentencing. Rarely are there imposed sentencing guidelines for misdemeanors. Even in states with well established sentencing guidelines there is some latitude for judges. So perhaps the discussion should not center upon a few legislative initiatives but a broader discussion among judges and others interested in fair sentencing. 

 Third Circuit Allows Judges to Put Time Limits On Civil Cases

The Pittsburgh Post-Gazette recently reported that

The 3rd U.S. Circuit Court of Appeals on Monday denied a motion to overrule U.S. District Judge Arthur J. Schwab’s decision to put time limits on a civil trial. Judge Schwab, like some other judges, limits each side’s use of time at civil trials to spare juries from excessively long presentations.

The appeals court, however, stopped well short of endorsing the proposed trial clock.

The decision came in a case in which a committee of creditors is suing 16 former officers and directors of the bankrupt Lemington Home for the Aged. Judge Schwab ruled that the committee would have 30 minutes to make an opening statement, 71/2 hours to present testimony and 30 minutes to close. The group of defendants would have about the same amount of time.

The defendants asked the 3rd Circuit to alter the time clock, arguing that they could not get a fair trial. The appeals judges wrote that judges can put parties on the clock at trial and the parties can appeal after trial if they feel they were unable to present their evidence.
The Third Circuit opinion can be found at:

http://www.ca3.uscourts.gov/opinarch/114447p.pdf

“Oklahoma Judge Sentences Teen to Church for 10 Years”

The title of a recent  post in the Sentencing Law & Policy blog  is the headline of this local sentencing story which reveals that the separation of church and state apparently does not apply to some sentencings. Every judge who sentences defendants in the heart most likely acknowledges that there are times when judges are not as creative as we could be. If you look at the overall results from the perspective of evidenced based sentencing surely there is room for improvement. But when is judicial creativity in sentencing just a bit too creative? The Sentencing Law & Policy blog reported, ” Here are the (inspired? revealed? prophetic? spiritual?) details:

Anybody who knows Oklahoma District Court Judge Mike Norman probably yawned at the news that he’d sentenced a teen offender to attend church as part of his probation arrangement, and that the judge’s pastor was in the courtroom at the time. Not only had he handed down such a sentence before, but he’d required one man to bring the church program back with him when he reported to court.

“The Lord works in many ways,” Norman, 69, told ABC News today. “I’ve done a little bit of this kind of thing before, but never on such a serious charge.”

Norman sentenced Tyler Alred, 17, Tuesday after he pleaded guilty to first-degree manslaughter in August for killing friend and passenger John Luke Dum in a car crash. Dum died on impact in December after Alred crashed his Chevrolet pickup truck, ejecting Dum. Alred was 16 at the time of the crash and had been drinking prior to the deadly accident. Oklahoma Highway Patrol issued a Breathalyzer at the time, and although Alred was under the state’s legal alcohol limit, he had been drinking underage.

The judge could have sent Alred to jail but, instead, taking into account his clean criminal and school records, sentenced him to wear a drug and alcohol bracelet, participate in counseling groups and attend a church of his choosing – weekly. He must also graduate from high school. To avoid jail time, Norman gave Alred a maximum 10-year deferred sentence….

“It’s not going to be automatic, I guarantee you,” Norman said of the church sentence on future manslaughter charges. “There are a lot of people who say I can’t do what I did. They’re telling me I can’t legally sentence someone to church.”

Alred’s lawyer is not among the critics. “I usually represent outlaws and criminals,” defense attorney Donn Baker told the Muskogee Phoenix. “This is a kid that made a mistake. I think he’s worth saving.”

In the courtroom this week, an emotional scene between the victim’s family and Alred played out after statements from Dum’s mother, father and two sisters were read during the sentencing. Dum’s father and Alred stood up in court, turned toward each other and embraced one another. “At that moment, it sure became a reality to me that I would sentence this boy to church” to help set him on the right path, Norman, a member of First Baptist Church in Muskogee, said. “There’s nothing I can do to make this up to the family.

“I told my preacher I thought I led more people to Jesus than he had but, then again, more of my people have amnesia. They soon forget once they get out of jail.”

After completing the rest of the requirements in his sentence, Alred will have the charge removed from his record. “Only time will tell if we’ve saved Tyler Alred’s life,” the judge said.”

Each year the American Bar Association rates blogs. It is a big deal to be ranked in the top 100, so it might be interesting to occasionally  look at what makes a good quality blog. Among the top 100 legal bogs this year is  http://www.circuitsplits.com/. A recent entry illustrates why adding this blog to your favorites might be in order:

the Ninth Circuit issued the latest in a long line of opinions calling attention to a circuit split over the appropriate standard of review for hearsay rulings. See Wagner v. Cnty. of Maricopa, No. 10-15501 (9th Cir. Nov. 16, 2012). Several appellate panels have considered whether a statement was hearsay de novo, while panels within other circuits have reviewed such decisions for an abuse of discretion. It is also worth noting that both the Sixth Circuit and the Ninth Circuit have issued conflicting decisions on the question.

A.    De Novo Review

• United States. v. Ferguson, 653 F.3d 61, 86 (2d Cir. 2011);

• Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 378-381 (6th Cir. 2009); but see Trepel v. Roadway Exp., Inc., 194 F.3d 708, 716-17 (6th Cir. 1999) (“Therefore, in disregard of our heretofore well-settled precedent that hearsay evidentiary rulings are reviewed de novo, we shall review the district court’s ruling for an abuse of discretion.” (citation omitted)).

B.    Review for Abuse of Discretion

• Wagner v. Cnty. of Maricopa, No. 10-15501 (9th Cir. Nov. 16, 2012); but see Mahone v. Lehman, 347 F.3d 1170, 1173-74 (9th Cir. 2003) (“We review the district court’s construction of the hearsay rule de novo . . . .” (quoting Orr v. Bank of Am., NT & SA, 285 F.3d 764, 778 (9th Cir. 2002)));

• United States v. Brown, 669 F.3d 10, 22 (1st Cir. 2012);

• United States v. Lopez-Garcia, No. 98-2252 (10th Cir. Aug. 18, 1999).

According to the Sixth Circuit, the Supreme Court has already settled the matter “in categorical terms: ‘[A]buse of discretion is the proper standard of review of a district court’s evidentiary rulings.’” United States v. Clay, 667 F.3d 689, 703 (6th Cir. 2012) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997)).”  split Circuits can be found at:

http://www.circuitsplits.com/

Blocking nominees to the federal bench has increased in recent years, according to the Congressional Research Service. Just 5.1 percent of uncontroversial circuit court nominees had to wait 200 or more days to be confirmed by the Senate under President Ronald Reagan. Under George H. W. Bush, it was 7.3 percent; Bill Clinton, 22.2 percent; George W. Bush, 35.7 percent; and Obama, 63.6 percent.

Like a lot of organizations, Justice at Stake has called for the Senate to take prompt action and hold up-or-down votes on pending judicial nominees, saying, “Our courts should not be held hostage to partisan politics.” 

“This remains just as true for the lame-duck session as for any other time of the legislative year,” JAS Executive Director Bert Brandenburg said.  “At its heart,” Brandenburg added, “the judicial vacancy crisis is a justice crisis, and this much is clear—justice cannot wait until January.” He also emphasized that Justice at Stake has long held the view that judicial nominees are entitled to up-or-down confirmation votes, “absent extraordinary circumstances, regardless of who occupies the White House or which party controls the Senate.”

JAS also joined a letter to Senate leaders and signed by 22 other organizations, pressing for cooperation and confirmation votes on pending judicial nominees. Read about the JAS letter in Gavel Grab, and read about the coalition letter here.

The current issue of Court Review (Volume 48, Issues 1-2) is a special issue devoted entirely to eyewitness evidence. Yesterday the Oregon Supreme Court issued an important opinion changing how that states will in the future deal with eyewitness evidence. The opinion can be found at http://www.publications.ojd.state.or.us/docs/S059234.pdf.

 The Oregonian story about the case begins…

About a month before Samuel Lawson was to go on trial for the 2003 murder of a Douglas County man, a detective in the case quietly took a star witness to one of Lawson’s hearings to get a look at him.
Sherl Hilde had been unable to consistently identify Lawson as the suspect who shot her and killed her husband in the attack at a national forest campsite.
But a few weeks after her courtroom visit, the doubt was gone. “I’ll never forget his face as long as I live,” Hilde told jurors. Lawson was convicted of five counts of aggravated murder and is serving a life sentence.
In a sweeping ruling Thursday, the Oregon Supreme Court not only ordered a new trial for Lawson, but also established a new procedure for evaluating whether eyewitness identifications can be used as evidence.
The Supreme Court found “serious questions” about the reliability of Hilde’s identification of Lawson, Justice Paul De Muniz wrote in the unanimous decision. Police asked Hilde leading questions, gave her a photo of the suspect and made suggestive statements that could have implanted in her mind that Lawson — who had encountered the couple earlier in the day — was the shooter, the justices said.

Greg Berman who leads the Center for Court Innovation is among the nation’s great thinkers about courts so that when he makes observations people should read them. He recently posted on his blog the following commentary:
One of the more enjoyable assignments I have had of late was provided to me by the good folks at Quid Pro Books, who asked me to write the foreword for a new edition of Malcolm Feeley‘s Court Reform on Trial: Why Simple Solutions Fail.  I was flattered by the ask.  I am a big fan of Feeley’s work, which also includes the classic The Process Is The Punishment.

It was a pleasure to be given an excuse to re-read Court Reform on Trial, which was one of the few books that directly influenced Trial & Error in Criminal Justice Reform.  As a teaser to encourage sales of the reprint when it becomes available, I offer this small taste of Feeley’s prose from Court Reform on Trial:

“Whatever one’s goals, there is a tendency to expect too much of the courts.  Higher standards can lead to improvements, but exaggerated expectations can also foster disillusionment…Courts cannot solve the problem of crime or event make a significant dent in it.  Thus, in a very real sense the courts — charged with handling society’s failures — will always fail.  What the family, the church, the workplace, and the school cannot do, neither can the courts.”

Recently I had the privilege of speaking at a conference of Alaska judges, prosecutors, and public defenders on hearsay and confrontation issues. Perhaps the only notable thing that I said was the splintered opinion in Williams v. Illinois will inevitably result in a lot of litigation on the parameters of the Confrontation Clause.

The California Supreme Court issued two decisions recently on the Confrontation Clause and forensic reports.  The first case, People v. Lopez, involves a lab report of blood alcohol content.   A majority of the court says that the analyst doesn’t have to show up because the lab report was not sufficiently formal.
The second case, People v. Dungo, involved an autopsy report in a murder case.  The majority decision says the autopsy was not testimonial because it was not made with the primary purpose of creating evidence for trial. But the fact situation does illustrate that there may be reasons for courts to be cautious about forensic experts or applying the rationale of People v. Dungo in your jurisdiction.  The prosecution prior to trial informed the court that pathologist George Bolduc, who had performed the autopsy of victim’s body, would not be called as an expert witness. Instead, the prosecution‘s witness would be forensic pathologist Robert Lawrence who at the time of trial was Dr. Bolduc‘s employer. The prosecution did not indicate that Dr. Bolduc was unavailable to testify. Defendant objected to the prosecution‘s tactic.

At a  pretrial evidentiary hearing, Dr. Lawrence testified on cross-examination by the defense that Dr. Bolduc had at one point been a coroner in Kern County but was fired, a fact not disclosed in Bolduc’s résumé. The record showed that in his previous employment as a coroner for Orange County, Dr. Bolduc had resigned under a cloud. As a result of these incidents, Dr. Lawrence said, some newspaper articles asserted that Dr. Bolduc was incompetent, and prosecutors in several counties in California refused to use him as an expert witness in homicide cases. Dr. Lawrence had seen no evidence that [Dr. Bolduc] ever did anything incompetent.  He said the allegations against Dr. Bolduc were generated by people who don’t know what they’re talking about, and he described much of the criticism of Dr. Bolduc as ridiculous and patently absurd.  Dr. Lawrence agreed with the conclusion in Dr. Bolduc’s autopsy report that the victim died from asphyxia due to neck compression.

Of course a judge does……what a silly comment. But during the oral argument on the Affordable Health Care Act Justice Scalia jokingly asked or mused that surely no one expected him to read all the Act in its entirety.  Given the fact that judges not infrequently get briefs with appendices that would take hours to carefully read, perhaps the honest answer is not so clear, but at least in the United States, there are few cases which directly address the responsibility of judges to read briefs or view evidence. Now there is a case out of Canada.

Canada’s highest court has defended the right of a judge to refuse to view graphic video in a child sex abuse case.

The Ontario Court of Appeal, in a precedent-setting ruling earlier this year, supported the decision of Justice Stephen Hunter, who refused to view video of a father having sex with his child before delivering a sentence in the sexual assault case.

The Supreme Court of Canada upheld that decision Thursday, dismissing a request by the Crown to appeal the ruling.

“The Crown is disappointed that the Supreme Court has declined to hear this case,” Crown attorney Lee Burgess said.

The March decision by the Ontario appeal court judges garnered national headlines when the majority opinion upheld Hunter’s decision.

Hunter said he believed he knew the specifics of the case and that he had seen enough graphic sexual assault evidence as a former lawyer for the local children’s aid society. He said he didn’t need to see any more.

Hunter’s decision sparked debate over whether a judge is obligated to view all video evidence — disturbing or otherwise — before arriving at an appropriate sentence.

Perhaps because of its size, no state has attracted more national attention to court funding (or lack of court funding) than California. There are some who argue that the California courts funding problem were a result of the decision to go to state funding and just about as many who argue that state funding is not the culprit.  A working group established by the Chief Justice and the Governor to evaluate state trial court funding will held its first meeting on November 6 in Sacramento.

Governor Brown proposed establishing the working group to conduct a comprehensive evaluation of the state’s progress in achieving the goals outlined in the Lockyer-Isenberg Trial Court Funding Act of 1997. That legislation provided that the state assume primary responsibility for funding trial court operations.

The new Trial Court Funding Workgroup consists of 10 members, 6 selected by the Chief Justice Cantil-Sakauye and 4 selected by Governor Brown.