‘Realising the Potential of Judging’, which was published in 
the special issue of Monash University Law Review on non-adversarial 
justice, is now available on SSRN: 
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2125718

The abstract of the article is:

This article contends that judicial officers should not only have 
knowledge of the interpersonal dimension of judging, but also of the 
techniques required to negotiate the different situations that may 
arise–whether it is a witness with special needs, a victim who breaks 
down in the witness box, an angry litigant, a defendant who is deflated, 
having relapsed into drug use after a long period of abstinence, or a 
person in the public gallery who is upset about what is happening in the 
courtroom. Depending on the situation, judging in these contexts may 
require particular listening and communication skills, the expression of 
empathy, the use of techniques of persuasion or motivational 
interviewing, the use of techniques to settle child witnesses and 
collaborative problem-solving techniques.

Local Courthouse Safety Act of 2012 (H.R. 6185 and S. 2076) 

“Giving local courthouses the resources to enhance their security, and to do so at no cost to the federal taxpayer, is a win-win for everyone,” stated Representative Sandy Adams (R-FL) on August 1, 2012 during the House Judiciary Committee’s markup of the Local Courthouse Safety Act (H.R.  6185).  During the session, Representative Adams spoke movingly of a 1983 courthouse attack in an Orange County, Florida courthouse.  The attack resulted in the deaths of two bailiffs and left another paralyzed. 

Congresswoman Adams is the primary House sponsor of the Local Courthouse Safety Act.  This same bill (S. 2076 ) was approved by the Senate Judiciary Committee in May, which is sponsored by Senator Al Franken (D-MN).  The House Judiciary Committee approved H.R.  6185, as introduced, by a bipartisan voice vote.

The bill would give state courts priority for obtaining surplus security equipment from the federal government via the General Services Administration.  In addition, the bill reinforces the authority of State Justice Institute (SJI) to award grants for court security and would set a $300 threshold of a court security equipment match for applicants when they apply for SJI funds for a court security-related project.  The next step for H.R. 6185/S. 2076 is approval by both the full House and Senate.  (Dimas)

Peter Hardin reported this week on an important decision regarding the deliberative process for judges.

The Massachusetts Supreme Judicial Court has ruled unanimously that judges cannot be required to disclose their thought processes about cases. The court rebuffed a prosecutor’s bid to force Judge Raymond B. Dougan (photo), accused of bias in favor of defendants, to turn over notes and other materials involved in his decision-making.

The decision, citing judicial independence as “one of the cornerstones of our constitutional democracy,” established a “judicial deliberative privilege” in Massachusetts, according to a Boston Globe article.

Although the decision was not the first to establish a “judicial deliberative privilege” in a state, it was notable for multiple reasons, legal analyst Andrew Cohen wrote in The Atlantic online:

“First, it comes at a time when judges all over the country are under political attack by partisans critical of particular rulings — or even of the right of courts to exist at all. Just this spring, remember, Republican presidential candidates were threatening to subpoena federal judges to Capitol Hill.

“The ruling also is significant because it is a rare example of judges explicitly defending the workings of the judiciary against overzealous intrusion by the executive branch. Finally, the ruling is interesting as a reminder that our judicial systems are designed to weed out bad decisions, or even biased ones, primarily by subjecting those rulings to layers of appeal.”

Justice Robert Cordy wrote in the decision, “We conclude that although holding judges accountable for acts of bias in contravention of the Code of Judicial Conduct is essential, it must be accomplished without violating the protection afforded the deliberative processes of judges fundamental to ensuring that they may act without fear or favor in exercising their constitutional responsibility to be both impartial and independent.”

“In so concluding,” he continued, “we formally recognize a judicial deliberative privilege that guards against intrusions into such processes — a protection we have implicitly understood as necessary to the finality, integrity, and quality of judicial decisions.”

Justice Cordy noted, “The judiciary’s independence from the other branches of government and from outside influences and extraneous concerns has been one of the cornerstones of our constitutional democracy, intended to ensure that judges will be free to decide cases on the law and the facts as their best judgment dictates, without fear or favor.’’

Judge Dougan, a municipal court judge, had sought to quash a subpoena from the state’s Commission on Judicial Conduct, according to an Associated Press report

If you have only a limited time each day to see what is new and interesting in the field of criminal law, the Sentencing Law & Policy blog written by Professor Doug Berman is the place to go. It can be found at: http://sentencing.typepad.com/. Here is a sample of what you can find:

Via the ABA Journal, I just saw this new commentary authored by Erwin Chemerinsky discussing the Supreme Court’s work in the Miller case and its potential impact.  Most of the commentary is a pretty standard discussion of the ruling, but some passages from the commentary struck me as interesting and somewhat questionable.  Here is how the piece starts along with the passages that caught my attention as worthy of some blog debate:

In Miller v. Alabama, the U.S. Supreme Court held in June that it is cruel and unusual punishment to have a mandatory sentence of life without the possibility of parole for homicide crimes committed by juveniles. At first glance, the decision seems to follow from other recent Supreme Court decisions that have limited the punishments imposed on juvenile offenders.

But in a key respect this case is different: previous cases prohibited the imposition of certain punishments under any circumstances, whereas Miller holds only that there cannot be a mandatory sentence. This distinction is going to matter enormously and raise important issues that are sure to be litigated….

Miller does not make it unconstitutional in all circumstances for a state to impose a sentence of life without parole for a homicide committed by a juvenile. Rather, it only holds that such a sentence cannot be mandatory.

This is going to require changes in the criminal justice system and pose difficult issues that must be resolved. First, if prosecutors wish to seek a sentence of life without parole for a homicide crime committed by a juvenile, there will need to be a proceeding to determine if this is warranted.

This will necessitate a penalty phase after conviction to make this decision. After the Supreme Court held that there cannot be a mandatory death sentence in homicide cases, the practice of the penalty phase developed for a determination of whether capital punishment is warranted based on the facts in each case. The same type of penalty phase will be required when life without parole is sought for a homicide crime committed by a juvenile.

In Ring v. Arizona, decided in 2002, the Supreme Court held that it is for the jury, not the judge, to decide in the penalty phase whether the aggravating factors sufficiently outweigh the mitigating circumstances to warrant a death sentence. Likewise, it will be for the jury to decide whether to impose a sentence of life without parole for a homicide committed by a juvenile….

[T]here is sure to be litigation over whether Miller applies retroactively. What about those now serving life without parole for homicides committed as juveniles? There is a strong argument that Millershould apply retroactively: It says that it is beyond the authority of the criminal law to impose a mandatory sentence of life without parole. It also would be terribly unfair to have individuals imprisoned for life without any chance of parole based on the accident of the timing of the trial.

On the other hand, if Miller is seen as just requiring a new procedure–a penalty phase before a sentence of life without parole is imposed for a crime committed by a juvenile – then it is unlikely to be applied retroactively. Procedural changes rarely apply retroactively. In fact, the Supreme Court held that Ring did not apply retroactively. In 2004’s Schriro v. Summerlin, the court concluded that Ring was a procedural change and not a “watershed” rule of criminal procedure that warranted retroactive application.

Ultimately, this is a question that will need to be resolved by the Supreme Court. My sense is that the Miller court did more than change procedures; it held that the government cannot constitutionally impose a punishment. As a substantive change in the law which puts matters outside the scope of the government’s power, the holding should apply retroactively.

I see a whole lot I could nitpick about the analysis of Miller here, but for now I just want to get some reactions in the comments to what Chemerinsky seems to be saying Miller says or suggests.

If you have not yet registered, booked your flights, and cleared your docket, now is the time to do it. The American Judges Association Annual Conference in New Orleans is fast approaching. One of the educational programs will focus on how judges can become better decision makers. One of the challenges that we face is for a variety of reasons there is constant pressure to multi-task, but for any occupation and particularly for judges, it is a risk. An excerpt from a recent article highlights the issue with this warning: don’t muti-task on the bench nor smoke marijuana……..or maybe if you have to make a forced choice between multi-tasking and smoking marijuana litigants will get a better judge if you just light up:

challenges to the ethos of multitasking have begun to emerge. Numerous studies have shown the sometimes-fatal danger of using cell phones and other electronic devices while driving, for example, and several states have now made that particular form of multitasking illegal. In the business world, where concerns about time-management are perennial, warnings about workplace distractions spawned by a multitasking culture are on the rise. In 2005, the BBC reported on a research study, funded by Hewlett-Packard and conducted by the Institute of Psychiatry at the University of London, that found, “Workers distracted by e-mail and phone calls suffer a fall in IQ more than twice that found in marijuana smokers.” The psychologist who led the study called this new “infomania” a serious threat to workplace productivity. One of the Harvard Business Review’s “Breakthrough Ideas” for 2007 was Linda Stone’s notion of “continuous partial attention,” which might be understood as a subspecies of multitasking: using mobile computing power and the Internet, we are “constantly scanning for opportunities and staying on top of contacts, events, and activities in an effort to miss nothing.

For the full article see:

http://www.thenewatlantis.com/publications/the-myth-of-multitasking.

Seriously, don’t smoke marijuana on the bench, but do come to New Orleans.

Minnesota Gov. Mark Dayton on Monday appointed Court of Appeals Judge Wilhelmina Wright to the Minnesota Supreme Court, reports the Pioneer Press. Justice Wright is the first African-American woman to serve on the state’s highest  bench. The Minneapolis Star Tribune has a short but interesting article about Minnesota’s first African American woman lawyer written by Professor Ann Juergens  http://www.startribune.com/opinion/commentaries/166952126.html

Blume & Helm on Factually Innocent Defendants Who Plead Guilty

John H. Blume and Rebecca K. Helm (Cornell Law School and affiliation not provided to SSRN) have posted The Unexonerated: Factually Innocent Defendants Who Plead Guilty on SSRN. Here is the abstract:

Several recent high profile cases, including the case of the West Memphis Three, have revealed (again), that factually innocent defendants do plead guilty. And, more disturbingly in many of the cases, the defendant’s innocence is known, or at least highly suspected at the time the plea is entered. Innocent defendants plead guilty most often, but not always, in two sets of cases: first, low level offenses where a quick guilty plea provides the key to the cellblock door; and second, cases where defendants have been wrongfully convicted, prevail on appeal, and are then offered a plea bargain which will assure their immediate or imminent release. There are three primary contributing factors leading a criminal justice system where significant numbers of innocent defendants plead guilty to crimes they did not commit. The first is the perceived need that all defendants must plead. The second is the current draconian sentencing regime for criminal offenses. And, the final contributing factor is that plea bargaining is, for the most part, an unregulated industry. This article discusses cases in which innocent defendants plead guilty to obtain their release, thus joining the “unexonerated” and then propose several options the criminal justice system should embrace to avoid, or at least ameliorate the plight of innocent defendants who plead guilty.

“Falsely identifying oneself as a policeman in order to get out of a speeding ticket is simply not the kind of expressive conduct the Framers of our first and one of our greatest amendments had in mind.” So holds the majority on a divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit in a decision issued recently.

State of the First Amendment 2012 Report

The First Amendment Center has released its 2012 State of the First Amendment report. As reported in the First Amendment Law Professors blog   here are what the report identifies as its key findings:

• When asked to name the five specific freedoms in the First Amendment, 65% of respondents could name freedom of speech, followed by 28% who could name the freedom of religion, 13% the freedom of the press, 13% the right to assemble, and 4% the right to petition. Twenty-seven percent of respondents could not list any of the rights guaranteed by the First Amendment.
The percentage of Americans who can name these five First Amendment rights has generally increased over the years since the project began in 1997. In 2012, however, the percentage who could name freedom of the press and the right to assemble decreased.
Awareness of freedom of religion dramatically increased this year to 28%, the highest percentage ever recorded for that right. Also, the 65% naming freedom of speech is the highest recorded since 1997 when the survey began.

• The majority of poll respondents believe that the First Amendment does not go too far in the rights it guarantees. The gap between those who believe it goes too far and not too far has increased over time. In  2012, 81% of respondents said the First Amendment does not go too far and 13% said it does go too far.

• Since 1997, Americans increasingly agree that musicians should be allowed to sing potentially offensive songs. Originally, 51% agreed and 47% disagreed with allowing musicians to sing offensive lyrics. Today, 69% agree and 27% disagree. This is the highest recorded percentage of those who agree that musicians should be allowed to sing songs with lyrics that some people might find offensive.

• Only about one-third of Americans continue to believe that the news media attempt to report on news without bias.

• Over the years, Americans have overwhelmingly agreed that the news media should act as a government watchdog. In 2012, 75% of people agreed with this, while only 20% disagreed.

• The majority of Americans, 57%, continue to believe that public schools should not have the authority to discipline students who use their own computers at home to post material that administrators label as offensive. Thirty-four percent of Americans think that school officials should have this power.

In responses to new questions added to this year’s survey, the Center found:

•The majority of respondents, 59%, do not believe the government should be allowed to take control of the Internet and limit access to social media and Web outlets such as AOL and Yahoo in the event of a national emergency.  Americans feel very strongly about this, with fully 44% “strongly” disagreeing that government should have this power and another 15% “mildly” disagreeing.

• The majority of Americans, 59%, think that the government should be allowed to prosecute Internet users who illegally distribute copyrighted music and movies online.

• Eighty-five percent, an overwhelming majority of respondents, believe that people should be allowed to record or photograph the activities of the police in public as long as they do not interfere with what the police are doing. Those that agree felt very strongly, 66%, that people should have this right.

• The survey asked Americans about their feelings about posting copyrighted material on the Internet and social media. In the case when no money is being made, respondents were divided: 46% said people should be allowed to post copyrighted materials without paying rights fees while 42% disagreed.  However, in the case when money is being made, a majority of Americans, 64%, disagreed that someone should be able to post copyrighted material online or on social media without paying rights fees.

There are many professional associations that have close ties to the American Judges Association. Among the closest is the National Association of Court Managers.   The 2013 NACM Annual Conference Call for Proposals and Concept Paper will be used to assist the Conference Development Committee in identifying sessions for the 2013 Annual Conference.  I would ask that you disseminate this as far and as wide as you can so that we can receive multiple proposals from which to choose.  Thank you.

The response due date is September 15.  Responses should be submitted to nacm@nacmnet.org.