The practice is far more common in some federal courts than in many state courts: the defendant is offered a plea bargain, but the terms also include a provision that probibits any appeal. Some courts have has a matter of policy prohibited this practice. (see for example State v. Spann, 704 N.W.2d 486 (Minn. 2005) where the Minnesota Supreme Court in an opinion written by Justice Alan Page held these provisions are contrary to public policy.)  Professor Douglas Berman’s Sentencing Law & Policy Blog recently highlighted a posting on the issue: The ” New York Times has this new editorial about appeal waivers headlined “Trial Judge to Appeals Court: Review Me.” Here are excerpts:

Earlier this year, an opinion for the Supreme Court by Justice Anthony Kennedy noted a stunning and often overlooked reality of the American legal process: a vast majority of criminal cases — 97 percent of federal cases, 94 percent of state cases — are resolved by guilty pleas. “Criminal justice today,” he observed, “is for the most part a system of pleas, not a system of trials.”

In this context, the recent rejection in a federal district court by Judge John Kane of a plea bargain deal between a defendant and federal prosecutors is truly startling.  Judge Kane rejected the deal in part because the defendant waived his right to appeal to a higher court…

Waivers are a common but largely hidden element of plea bargains — which, in many federal cases, aren’t really bargains because the power of prosecutors is often so much greater than that of the defendants or their lawyers.  The process is closer to coercion. Prosecutors regularly “overcharge” defendants with a more serious crime than what actually occurred. The defendants must then choose between the risk of being found guilty at trial and getting a longer sentence than the alleged crime would warrant or a guilty plea in exchange for a lighter sentence.  All but a tiny minority of defendants take the plea as the price of avoiding the crapshoot of a trial….

Some standard parts of waivers are outrageous, keeping defendants from appealing even if they become convinced that they received inadequate counsel to accept a defective plea agreement where the sentence was not lighter or where the prosecutor wrongly withheld evidence.  Any defense lawyer or prosecutor who asks a defendant to sign a waiver ruling out appeals on those grounds is protecting himself.

An important element of justice is missing even when the defendant and the government believe a plea bargain is fair and when an appeal waiver is narrow so the defendant can appeal about certain specified issues.  Congress gave appeals courts the power to review federal sentences to ensure the government applies the law reasonably and consistently. Without an appeals court’s policing, the odds go up that prosecutors will do neither.  Our system of pleas then looks more like a system of railroading.”

Laying Down The Law On Judicial Bias
NPR
Steven Lubet is a professor of law at Northwestern University, where he focuses on legal ethics, and he’s co-author of the book “Judicial Conduct and Ethics.” He appeared on NPR (well he talked since you don’t actually appear on radio). In case you missed it here in the link.

The week began with a mini strike by some of the San Francisco court employees.

http://blogs.sfweekly.com/thesnitch/2012/07/sf_superior_court_workers_on_s.php.

Even the most casual observer of state court budgets knows about the extreme challenges facing the California court system. Maintaining unity is (to say the least) a big challenge for the California Courts. But a new task force led by former New York Lieutenant Gov. Richard Ravich and former Federal Reserve Chairman Paul Volcker warns of calamity for states if they continue on their financial trajectory and highlights six threats to their stability. If their assessment is accurate lots of courts throughout the nation may face experiences like those the California courts are going through.

The study doesn’t break much new ground. In short, it paints a very dismal future for state finances which in turn could translate into a very bleak future for court funding.  

According to task force, which includes experts on municipal finance, the most significant pitfalls facing states include:

• the growing cost of Medicaid
• underfunded pensions
• a shrinking and volatile tax base
• federal deficit reduction efforts
• fiscal distress among local governments
• state budget laws that mask problems and hinder stability

Those challenges have been well-documented by Governing and many other observers. Officials with the task force hope the report will have an impact beyond those who already recognize those issues. (View the full report here and a summary here)

There is little doubt that the propriety of the  48 hour hold divides a lot of judges and lawyers. Professor Steven Mulory piece may not change your mind but it is worth reading.

Steven J. Mulroy (University of Memphis – Cecil C. Humphreys School of Law) has posted Hold On: The Remarkably Resilient, Constitutionally Dubious ’48-Hour Hold’ on SSRN. Here is the abstract:

For decades, various local jurisdictions used (and in some areas, still use) a constitutionally suspect procedure called a “48-hour hold.” A suspect is detained for up to 48 hours without charge while an investigation continues; after 48 hours, the suspect is either charged or released. The practice continues despite occasional criticism by courts, the bar, and the press. In many cases, this practice unconstitutionally detains persons without probable cause. Even where probable cause exists, the practice improperly circumvents rights to get bail, to get a prompt bail determination, and to be free of interrogation without the presence of counsel. While similar procedures may occur in other countries, it is contrary to American principles of criminal justice. Understanding why may also help in current debates over the proposed use of “investigative holds” of terrorism suspects.

Public’s Opinion of Supreme Court Drops After Health Care Law Decision

Adam Liptak and Allison Kopicki wrote this article today in the New York Times. They analyze the results of a recent Gallop poll which found that opinions of U.S. Supreme Court Chief Justice John Roberts are now much more negative than they were seven years ago, with the most recent reading coming soon after he joined the four Democratic appointees on the Court to uphold the U.S. healthcare law. Republicans’ favorable rating of Roberts is down 40 percentage points from 2005, while Democrats’ is up 19. 

For the full Gallop Survey go to: http://www.gallup.com/poll/155738/Republicans-Turn-Against-John-Roberts-Supreme-Court.aspx.

Gallop has done polling on public opinion of the United States Supreme Court for a long time. CBS has a story today which reported that, “Most Americans are unfamiliar with Supreme Court Chief Justice John Roberts or have no opinion of him. However, in the wake of Roberts’ decision to side with liberals on the court and uphold President Obama’s health care law, a new CBS News/ New York Times poll shows that the conservative justice is more popular among liberals than conservatives.”

Among Americans overall, 73 percent have no opinion or are undecided about Roberts, according to the poll, conducted July 11-16. Fourteen percent have a favorable view of him while 12 percent have an unfavorable view. 

http://www.cbsnews.com/8301-503544_162-57475106-503544/poll-john-roberts-more-popular-among-liberals-than-conservatives/. 

There are great legal issues that are worthy of vigorous debate and reflection. And then there are those very practical issues that face judges everyday. Miranda warnings at a booking is one of those issues that fits in both categories and the problem is that no one can agree. As first reported in How  Appealing Circuit Split Watch: Miranda at Booking.” Michelle Olsen has this post at her “Appellate Daily” blog.

A New York Times op-ed argued this week that “the longstanding and well-established practice of having law clerks ghostwrite judges’ legal opinions” is a crisis plaguing the federal appellate judiciary. The commentary continues, noting that while using law clerks to draft opinions helps with work-flow, “Judge written opinions require greater intellectual rigor, exhibit more personal style and lend themselves to more honest and transparent conclusions.”

William Domnarski, Judges Should Write Their Own Opinions, New York Times, May 31, 2012.

 The title of this post the title of this new paper available via SSRN authored by Lucian Dervan and Vanessa Edkins. Here is the abstract:

In 1989, Ada JoAnn Taylor was accused of murder and presented with stark options.  If she pleaded guilty, she would be rewarded with a sentence of ten to forty years in prison.  If, however, she proceeded to trial and was convicted, she would likely spend the rest of her life behind bars.  Over a thousand miles away in Florida and more than twenty years later, a college student was accused of cheating and presented with her own incentives to admit wrongdoing and save the university the time and expense of proceeding before a disciplinary review board.  Both women decided the incentives were enticing and pleaded guilty.

That Taylor and the college student both pleaded guilty is not the only similarity between the cases.  Both were also innocent of the offenses for which they had been accused.  After serving nineteen years in prison, Taylor was exonerated after DNA testing proved that neither she nor any of the other five defendants who pleaded guilty in her case were involved in the murder.  As for the college student, her innocence is assured by the fact that, unbeknownst to her, she was actually part of an innovative new study into plea bargaining and innocence.  The study, conducted by the authors, involving dozens of college students, and taking place over several months, not only recreated the innocent defendant’s dilemma experienced by Taylor, but revealed that plea bargaining’s innocence problem is not isolated to an obscure and rare set of cases.

Strikingly, the authors’ study found that over half of the participants were willing to falsely admit guilt in return for a perceived benefit.  This finding not only brings finality to the long-standing debate regarding the possible extent of plea bargaining’s innocence problem, but also ignites a fundamental constitutional question regarding an institution the Supreme Court reluctantly approved of in 1970 in return for an assurance it would not be used to induce innocent defendants to falsely admit guilt.

A publication from the IAALS – Institute for the Advancement of the American Legal System:

 Cornerstones of State Judicial Selection: Laying the Foundation for Quality Court Systems and Judges

The Urban Institute has released a new evaluation that shows that participants in two New York City mental health courts are significantly less likely to re-offend than similar offenders whose cases are handled in the traditional court system.

The Urban Institute compared participants in the Brooklyn Mental Health Court, a demonstration project of the Center for Court Innovation, and the Bronx Mental Health Court with two matched sets of offenders who were identified as having mental health disorders while held at Rikers Island. Among other findings, the study found that re-arrest rates for participants in both the Brooklyn and Bronx Mental Health Courts were significantly lower than for the comparison groups.

Consistent with other research, the study documents that younger offenders re-offended at significantly higher rates than older offenders and that recidivism rates were not affected by the diagnoses of the offenders.

The Center for Court Innovation has extensive experience with mental health courts. In addition to helping to plan, implement, and conduct an earlier process and outcome evaluation of the Brooklyn Mental Health Court, the Center provides technical assistance to mental health courts across the state and the country.

To obtain more information from the Center for Court Innovation click  here.