Posts on social media raise risks of mistrial—judges told to spell out rules

By Milton J. Valencia

Globe Staff / May 14, 2012 

• The court said judges need to do more to explain to jurors that refraining from conversations about a case also means not posting anything about it on Facebook or Twitter, common practice in today’s technology-driven world.

“Jurors must separate and insulate their jury service from their digital lives,’’ the court said in a ruling involving a Plymouth Superior Court case in which several jurors made comments on Facebook during a trial. Those posts in turn elicited responding posts from friends.

“Instructions not to talk or chat about the case should expressly extend to electronic communications and social media,’’ the court added in its little-noticed ruling two weeks ago.

The resulting directive for better policing of social media follows a national trend, as such cases are reaching the appellate courts. Last year in Arkansas, for instance, that state’s high court overturned a murder conviction that carried the death penalty after finding that a juror tweeted that a verdict was reached before the court was notified.

Law groups, such as the National Center for State Courts and a federal judicial conference committee, have also drafted advisory jury instructions, to limit the danger social media can pose to a jury’s private deliberations.

The go-to person on issues of self representation is Richard Zorza.   His blog has this post which should be of interest to judges and court administrators struggling with plain English issues:

In all the talk about LEP and plain language, this site has tended to sit under the radar.  This great resource site includes a wide range of model plain language informational sheets, including non-English information.  WriteClearly.org includes informational materials, and ATJ interview screens, as well as a gadget to find non-plain language.

Here, for example, is a Spanish name change information sheet.

The site was developed under an LSC TIG grant.

richardzorza | June 18, 2012 at 7:15 pm | Categories: Forms, LEP | URL: http://wp.me/p1f0mB-UO

Florida Jurors Banned From Facebooking During Trial

The Florida Supreme Court is following the national trend toward more formalized and specific preliminary jury instructions that jurors may not discuss the case on Facebook, “tweet” or blog about it during trial:

http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1336995496187&Fla_Jurors_Banned_From_Blogging_About_Criminal_Cases&slreturn=1

Feedback for judges is important. Like it or not, judges are public servants, and customer feedback can make all of us better at what we do. Many states have public evaluations which not only try to give constructive evaluation of the judge, but to also “rate” the judge for retention. No state prides itself more than Arizona on the commitment to a fair evaluation of its retention process. But a recent story illustrates the challenge for performance evaluation. To be accurate, there needs to be participation. 

Pollster calls evaluation survey of judges ‘dangerous’

By Gary Grado

Published: June 18, 2012 at 9:19 am

Nineteen judges who are up for retention this year went before the Commission on Judicial Performance Review on June 15 to explain themselves for bad marks they got in surveys on their performance.

Those low grades, however, probably won’t translate into the commission deeming a spate of judges — even ones who got low scores on the surveys — on the November ballot as unfit. Historically, the commission has unanimously found nearly all judges meet judicial standards under the merit and retention system in Arizona.

The commission’s findings and the abundance of data it uses in the evaluations are passed on to the voters, who decide on whether the judges stay or go. But critics say the data is based on surveys that produce low responses and are statistically invalid, while backers say the surveys suit their purposes of getting feedback on people who directly interact with the judges.

“Unless the survey is done scientifically, then it has little value,” said Bruce Merrill, a political scientist and pollster. “I would argue that they’re dangerous, because you can get some very wild results that probably are not close to the population you want to generalize.”

This year, there will be 80 judges from Superior Court, the Court of Appeals and the Supreme Court up for retention on ballots in Maricopa, Pima and Pinal counties. The evaluation process began with surveys distributed to attorneys, litigants, witnesses and jurors who appeared before those judges during a four-month span. Judicial staffs also are surveyed. The Behavior Research Center, a Phoenix polling firm, tabulates the responses.

The surveys ask respondents to rate judges on a host of categories such as their integrity, fairness, temperament and legal knowledge.

The data for 2012 won’t be public until after the commission votes next month on whether judges “meet” or “do not meet” standards, a designation that appears in the voter guide. The identity of judges who met with the commission on June 15 is also kept anonymous.

One certainty is there was a 26 percent response rate among lawyers in 2010, and sometimes the results were so low the results were skewed.

For example, only seven attorneys out of 29 who got surveys responded for retired Maricopa County Superior Court Judge Gary Donahoe, but 33 percent of the respondents found his performance to be unsatisfactory when it came to legal ability, communication skills and temperament, which triggered an automatic “letter of concern” to him and a request by the commission to appear before the panel and explain himself.

The 27-member commission unanimously agreed he was fit to be on the bench.

“If you sent out 50 interviews and you got seven back, the only value is you can say is here’s what these seven people say,” Merrill said.

“The question becomes, is that group of seven representative of all lawyers. Obviously, it isn’t.”

Bruce Hernandez, Behavior Research Center’s senior vice president, designed the survey methodology nearly two decades ago. He said lawyers have decent response rates and are well represented in the surveys because they have a vested interest.

“Nothing is ever a perfect methodology, but what they have done is taken steps to go out there and get a snapshot view of how these various universes feel about the thing,” Hernandez said.

Seth Anderson, executive director of the American Judicature Society, an Iowa research and education group that focuses on the judicial system, said several states use similar survey methods to evaluate judges and they are intentionally designed to be different from a traditional public opinion poll.

“They are trying to obtain more experiential-based information from people who have actually practiced in front of judges or appeared in a case before them or been a witness, etcetera,” Anderson said.

Maricopa County Superior Court Judge Crane McClennen said his gut reaction is that mostly dissatisfied people tend to respond. McClennen is up for retention this year. He said he got good marks and wasn’t called in by the commission, but in 2008, commissioners determined he wasn’t fit to be on the bench, the first time that happened for any judge since 1998. The voters kept him anyway.

McClennen’s temperament was an issue in 2008, but he said he hasn’t done anything dramatically different in the past four years and didn’t go through any additional training, except to get advice from fellow judges.

“I’m trying to be more careful in choosing (my) words in talking to the attorneys,” he said.

In 2010, the commission gave a unanimous favorable recommendation to 58 of the 66 judges on the ballot. Only one, Maricopa County Superior Court Judge Bethany Hicks, spurred any sort of controversy among commissioners, who decided on a 15-12 vote she was fit.

Mike Hellon, the commission chairman, said the commission relies heavily on the data from the surveys, but also relies on comments it gets in public meetings, letters and the face-to-face meetings it has with the judges who got bad marks.

He said those conferences help to put the data in context. For example, judges assigned to family and juvenile courts, where there is a heavy emotional element because of the issues involved, typically generate more negative results.

“For those of us who are not lawyers and not judges, it’s important for us to hear from the judges what really happens and where it’s appropriate to hold to strict standards and where it’s appropriate to be understanding about what these judges have to face,” Hellon said.

Judges do occasionally get ulcers (and occasionally probably give them, too). Stress can affect judges and judicial leaders, so the more we know about stress and the ways to reduce it is good.

Why Zebras Don’t Get Ulcers (1998)

 Why don’t zebras get ulcers–or heart disease, diabetes and other chronic diseases–when people do? In a fascinating look at the science of stress, biologist Robert Sapolsky presents an intriguing case, that people develop such diseases partly because our bodies aren’t designed for the constant stresses of a modern-day life–like sitting in daily traffic jams or growing up in poverty. Rather, they seem more built for the kind of short-term stress faced by a zebra–like outrunning a lion. With wit, graceful writing, and a sprinkling of Far Side cartoons, Why Zebras Don’t Get Ulcers makes understanding the science of stress an adventure in discovery. “This book is a primer about stress, stress-related disease, and the mechanisms of coping with stress. How is it that our bodies can adapt to some stressful emergencies, while other ones make us sick? Why are some of us especially vulnerable to stress-related diseases, and what does that have to do with our personalities?” Sapolsky, a Stanford University neuroscientist, explores stress’s role in heart disease, diabetes, growth retardation, memory loss, and autoimmune diseases such as multiple sclerosis. He cites tantalizing studies of hyenas, baboons, and rodents, as well as of people of different cultures, to vividly make his points. And Sapolsky concludes with a hopeful chapter, titled “Managing Stress.” Although he doesn’t subscribe to the school of thought that hope cures all disease, Sapolsky highlights the studies that suggest we do have some control over stress-related ailments, based on how we perceive the stress and the kinds of social support we have.

The Sentencing Law & Policy blog is a great resource for current stories and discussion. http://sentencing.typepad.com/

 The blog  is authored by Professor Douglas Berman. He has a post that deserves to be spread but more important deserves as wide a response as possible. 

In all likelihood, we still have a few more weeks to wait for Supreme Court rulings in in Jackson v. Hobbs and Miller v. Alabama, the two big pending Eighth Amendment cases concerning the constitutionality of states sentencing 14-year-old killers to life without the possibility of parole.  In part because I hope the coming rulings in Jackson and Miller might spark and provide a foundation for a new round of interesting constitutional litigation over extreme prison sentences (and not just for young offenders), I am interested in gathering information about the most interesting and thoughtful Eighth Amendment rulings coming from state courts in recent years (particularly in the wake of the Graham ruling).

I am aware of some leading recent state court Eighth Amendment rulings in states like California and Florida and Iowa, all of which had to swiftly and directly confront the import and impact of theGraham ruling for a number of juvenile offenders serving very long prison terms for nonhomicide offenses.  But I know I have seen a few interesting and thoughtful post-Graham rulings concerning limits on adult sentences imposed by the Eighth Amendment (and/or similar state constitutional provisions) from state supreme courts in Ohio and South Dakota and others states.  And I suspect there are (lots of?) notable rulings from lower state appellate courts (both affirming and reversing long prison sentences) that I have not seen.

Ergo this “bleg” for help from readers:  Can and will folks via the comments to this post (or via an e-mail) suggest examples with cites/links to what they consider the most interesting and thoughtful Eighth Amendment rulings coming from state courts in recent years?

For purposes of this bleg, I am most interested in non-capital cases and especially those rulings involving challenges to adult sentences.  But I am happy to hear about just about any recent significant state court rulings (for or against a defendant) that thoughtfully engage with modern Eighth Amendment doctrines and/or with comparable state constitutional provisions.  Thanks! You can reach Professor Berman at sentencinglaw@gmail.com

Cynicism arguably is an occupational hazzard for all judges. No one can be a good judge if they are perenially naive about the human condition, but cynicism  leads judges to be extra distrustful.  The judge who is appointed or elected (but never anoited) begins to actually think they are so smart.  They think they know it all.  Asking a colleague for advice doesn’t happen because of course they can figure it out for themselves.  That is why judges need to learn from comedians:

“Cynicism masquerades as wisdom, but it is the farthest thing from it. Because cynics don’t learn anything. Because cynicism is a self-imposed blindness, a rejection of the world because we are afraid it will hurt us or disappoint us.”    

                                                                                                         Stephen Colbert

Nothing binds judges  more than the common quest for reasonable compensation. There is a very interesting new study on the issue: 

HOW MUCH SHOULD JUDGES BE PAID? AN EMPIRICAL STUDY ON THE EFFECT OF JUDICIAL PAY ON THE STATE BENCH

James M. Anderson & Eric Helland*

How much should judges be paid? We first survey the considerable history of the debate and identify the implicit causal claims made about the effect of judi- cial pay. We find that claims about the effect of pay on the composition and quali- ty of the judiciary have remained remarkably similar over the past two hundred years. In contrast, claims about the effect of pay on judicial independence have changed as the meaning of judicial independence itself has shifted. We take ad- vantage of the large variation in real salaries and opportunity costs for state ap- pellate court judges across states from 1977 to 2007 to empirically test these claims. We find that judicial salaries have a small but significant effect on the likelihood of exit and thus the length of judicial tenure, and a small effect on the background of judges that join the appellate bench. A more limited analysis of California trial court judges finds far more sensitivity to pay, however, suggest- ing that trial and appellate court judges may behave differently.   To read the entire artcle see: 

http://www.stanfordlawreview.org/sites/default/files/Anderson-Helland-64-Stan-L-Rev-1277.pdf

If there is one significant downside that the Internet has created for judges, it is the temptation to “just go find the facts yourself.”  There is a lot of reason for trial court judges to be very cautious about how frequently you turn to the Internet, but what about appellate courts? Same standard or not? For an interesting analysis of the United States Supreme Court’s practice see:

Confronting Supreme Court Fact Finding 

Alli Orr Larsen
College of William and Mary

February 23, 2012

Virginia Law Review, Forthcoming
William & Mary Law School Research Paper No. 09-206

Abstract:     
Supreme Court justices routinely answer factual questions about the world – such as whether violent video games have a harmful effect on child brain development or whether a partial birth abortion is ever medically necessary. The traditional view is that these findings are informed through the adversary system: by reviewing evidence on the record and briefs on appeal. Routinely, however, the justices also engage in what I call “in house” fact-finding. They independently look beyond the briefs and record to answer general questions of fact, and they rely on their discoveries as authorities. To be sure, judges have always done this, and the Federal Rules of Evidence contain no rule restricting it. But times have changed. The world has recently undergone a massive revolution in the way it receives and evaluates information. No longer do justices need to trek to the library to look up factual questions. Instead they can access virtually infinite amounts of factual information at the click of a mouse.

This article discusses how that change in technology has and will affect the Court’s fact-finding practice. It collects over 100 examples of factual authorities relied on in recent decisions of the U.S. Supreme Court that were found “in house” – i.e. that cannot be found in any of the party briefs, amici briefs, or the joint record. These are not insignificant rarities: almost 60% of the most important Court opinions in the last ten years rely on in house research at least once. The article then examines the potential dangers of in house fact finding in the digital age – specifically the possibility of mistake, the systematic introduction of bias, and notice/legitimacy concerns. It concludes that these concerns require an update to our approach to Supreme Court fact finding. It then offers two independent and contrasting solutions: new procedural rules that restrict reliance on factual authorities found in house, or alterations to the adversary method to allow for more public participation.

Number of Pages in PDF File: 53

Keywords: Supreme Court, Fact, Legislative Fact, Digital Age, Constitutional Fact

Opinion holding that double jeopardy clause does not bar retrial on greater offense after jury announces deadlock on lesser offense:

Chief Justice Roberts wrote the opinion for the Court in Blueford v. Arkansas. Justice Sotomayor dissented, joined by Justices Ginsburg and Kagan.