Vice President Joseph Biden recently spoke to the mid-year meeting of the State Conference of Chief Justices. He  said Americans often take for granted our court system.

“Far more than any other country on the planet, the United States of America upholds basic liberties,” he said, adding this is even true when compared with some of our European allies, noting recent culture clashes in Europe related to immigration. “In my view, the nations that are still in transition are going to come to learn the basic truth we have known for some time,” he said. That until there is a rule of law, “where a business can be sure that their intellectual property will be protected and citizens will be free to speak their minds,” he said, those nations will never fully realize their potential. “Russia is a case in point,” Biden said, noting that more than 20 years after the end of the Soviet Union, that nation is struggling to become a prosperous democracy.

http://www.delawareonline.com/article/20120131/NEWS02/201310332/VP-Biden-Court-system-has-vital-role-liberty

The United States Supreme Court is guilty of a broad “failure to communicate” to the public it serves, constitutional scholar and law dean Erwin Chemerinsky wrote recently. Dean Chemerinisky has been a regular and popular speaker at the American Judges Association annual conferences.  He argues that the United States Supreme Court’s failure extends beyond the Court’s stubborn resistance to allowing camera coverage of its oral arguments. At almost every point of its decision-making process, according to Chemerinsky, the high court should be doing more to inform the public about what it does.

 http://legaltimes.typepad.com/blt/2012/01/supreme-court-fails-to-communicate-effectively-to-public-law-scholar-argues.html
More recently Judge Steve Leben & I coauthored a commentary about this United States Supreme Court oral argument.             

Public attention will focus on the United States Supreme Court this week in a way that’s essentially unprecedented. Sure, there have been many important cases in the Court’s history, but few have had timing like this. It’s a presidential-election year. The health-care issues before the Court divide the country, even if the precise legal issues are not yet well understood by the public. And there are lots of pundits poised to comment, few of whom will actually be objective.

Judge Steve Leben

In this environment, the Court will hold three days of oral arguments, beginning today, on issues surrounding the Patient Protection and Affordable Care Act — the 2,400-page law called Obamacare by its detractors and the Affordable Care Act by its supporters. The nation’s 24-hour news cycle will be focused like a laser beam on the Court, but there will be no television cameras, no live radio broadcast, and no blogging, twitter, or other reporting from the courtroom.

Perceptions may have lasting impact

Even so, what the public perceives about whether the justices gave a fair hearing to both sides may have a lasting impact on public attitudes toward the judicial system at all levels. What will the public be looking for? And is the Court equipped to provide it?

Based on decades of research, the public will be looking for the elements of procedural fairness — voice, neutrality, respect, and trustworthy authorities. For the full commentary see:

http://www.minnpost.com/community-voices/2012/03/supreme-court-itself-will-be-tested-it-hears-health-case-arguments

The United States Supreme Court has always been held in high esteem by the American public. Researchers regularly cite the Bush v. Gore decision as evidence that the American people are willing to believe there is a different standard for decison making by judges. Judges make decisions based upon legal principles, not personal or political views. That belief about the legitamacy of judicial decisions is now being challenged. A new Washington Post/ABC poll shows

  Most believe SCOTUS will make political ruling on Obamacare

byJoan McCarter

New polling from Washington Post-ABC News confirms what previous polls by the Kaiser Family Foundation revealed: Americans think the Supreme Court is a partisan, political institution, and will decide on the Affordable Care Act based on political views.

Kids need champions. I thought you might be interested in this commentary I wrote recently for the Minneapolis Star Tibune. It begins:

The letter was to the point: “Dear Judge, I am 16 and self-reliant. I have been employed in some way for nearly a year. I have been emotionally and psychologically damaged from the events surrounding and the aftermath of my parents’ divorce. Although I believe I am healed (not fully of course) there is an excess of emotional trauma I have to cope with. I have night terrors, anxiety, paranoia, depression, and insomnia and have trouble paying attention in school. These symptoms have all built up on each other since I was in sixth grade. Now I deal with pent-up repressed emotions. I am technically ‘homeless’ at the moment. I have been a pawn in this ridiculous legal battle between my parents for years and I am ready to voice my opinion and wishes. I would like to be emancipated, gaining full rights to myself.”

Over the past two decades, a mass of information has been developed about the effects of stress on children. A certain amount is natural, but extreme and persistent stress can affect brain development in lasting ways. The Center on the Developing Child at Harvard explained, “This condition literally interferes with developing brain circuits, and poses a serious threat to young children, not only because it undermines their emotional well-being, but also because it can impair a wider range of developmental outcomes including early learning, exploration and curiosity, school readiness, and later school achievement.”

The letter from the 16-year-old is not an isolated example of what we put children through. There is an 8-year-old who experienced the recent deaths of a grandparent, a dog and a younger brother. The child now assumes a caretaking role within the family, reporting that it is his “job” to keep his toddler brother safe. He says that he is “strong enough” to do so. He describes a volatile relationship between his parents, including fighting, yelling and lots of swearing. He is adamant that he does not want them to ever reunite and has a detailed escape plan in the event they do that involves taking his younger brother in the night to go stay with his aunt so that they will both be safe.

We need a goal: Minnesota must be the best place in the nation for a child to live. It won’t be achieved overnight, but failure is unacceptable. For the rest of the article see:

http://www.startribune.com/opinion/commentaries/141250693.html

Mark Sherman of The Associated Press has this report. In it Sherman says, “The precise contours of an eventual ruling were not apparent after arguments Tuesday, but several justices said they were troubled by the way some states try and sentence young people accused of crimes. Justice Antonin Scalia expressed concern that the court would be substituting its judgment for that of state legislators. ‘I’m supposed to impose my judgment on what seems to be a consensus of the American people?’ he asked.”

James Vicini of Reuters reports that Supreme Court weighs if teen murderers must get chance of parole. Vincini’s observation of the argument included this assessment of three of the justices, “Justice Anthony Kennedy, a moderate conservative who cast the decisive vote in the earlier rulings, expressed concern that trial judges have no discretion in states with mandatory sentences. ‘What’s a judge supposed to do?’ he asked.  Justice Elena Kagan asked whether individual factors, such as an offender’s age, should be taken into account in sentencing juveniles to life in prison without parole, a scheme that would be similar to what has been used for adults in death penalty cases.”

For a look at the briefs as well as a recap of the arguement visit the  SCOTUSblog. Lyle Denniston has a post titled “Argument recap: Compromise on youth sentences?” 

The U.S. Supreme Court has posted the transcripts of the  oral argument in Miller v.Alabama, No. 10-9646, at this link and in Jackson v. Hobbs, No. 10-9647, at this link

Tara R. Price has posted ‘Bull’ Coming from the States: Why the Supreme Court Should Use Williams v. Illinois to Close One of Bullcoming’s Confrontation Clause Loopholes (Florida State University Law Review, Forthcoming) on SSRN.  Here is the abstract: 

Numerous juries have convicted defendants based on second-hand (or hearsay) expert witness testimony about laboratory reports performed and certified by other analysts who never appeared at trial. 

On June 23, 2011, however, the Supreme Court put this practice to a stop in Bullcoming v. New Mexico. Or did it? In perhaps the closest majority in recent Confrontation Clause history, the Supreme Court affirmed that the protections of the Sixth Amendment extend to the admission of scientific evidence against a defendant, so long as the evidence consists of a written report admitted at trial. 

Continue reading “Price on Why the Supreme Court Should Use Williams v. Illinois to Close One of Bullcoming’s Confrontation Clause Loopholes”

Kansas Supreme Court Chief Justice said, “The court has looked at a number of available options. Frankly, all of them are lousy.”  http://www.businessweek.com/ap/2012-04/D9TUCGK80.htm

For more information:

http://www.saljournal.com/news/story/court-4-4-12

http://www.dodgeglobe.com/features/x760621708/Supreme-Court-orders-employee-furloughs

http://www.kansascity.com/2012/04/05/3535546/budget-woes-force-kansas-court.html

http://www.kansasreporter.org/91300.aspx

A judges ability to concentrate on one thing to the exclusion of others ought to be the norm on the bench. But for variety of reasons it sometimes is not the practice. There are forms to fill out. There are notes to be taken and occasionally there is just plain multi tasking: a quick e mail to a clerk, a check of the calendar to see what is on for the afternnon.  And then there is Selective attention which  provides a way for us to navigate through the maze of data that comes our way every second of the day.

We can:

• Tune our ears – as  a mother reacting to a baby’s crying in the middle of the night,
• Focus our vision – as parents do to  find your child’s face in a large crowd,

• Latch onto an idea to the exclusion of others – this is the best way to get this done.

By selectively attending we can get a number of things done.

We can also miss a lot of things, too.  Take a look at the following from Christopher Chabris and Daniel J. Simons.

Focus on counting the number of passes between team members with white shirts.  Bounce passes count, too:  http://www.youtube.com/watch?v=IGQmdoK_ZfY

Well, how did you do? What did you attend to and what did you disregard or minimize? What does this tell us about the wisdon of multi tasking on the bench?

PA Supreme Court Considering New Rules for Use of Electronic Devices in Courtroom; Prohibit Tweeting From Courtroom

The amended rules prohibit “tweeting” by members of the press or others in the courtroom (at page 25):

http://www.pacourts.us/NR/rdonlyres/25029F7C-956E-4EA5-9FB1-36CFADE128C6/0/rules626627etalcrim.pdf

Plea bargaining is part of the fabric of the functioning of the criminal justice system. But with a few notable decisions, the United States Supreme Court has issued few decisions regulating the practice. That changed this term.  In the first opinion, Missouri v. Frye, the Court vacated the decision of the Court of Appeals of Missouri and remanded the case for further proceedings. By a vote of five to four, the Court held that the Sixth Amendment right to effective assistance of counsel ex­tends to the consideration of plea offers that lapse or are rejected and that that right applies to “all ‘critical’ stages of the criminal proceedings.”  Justice Scalia filed a dissenting opinion, which was joined by the Chief Justice and Justices Thomas and Alito.

In the second opinion  regarding ineffective assistance of counsel at the plea bargain stage, Lafler v. Cooper the Court vacated the decision of the Sixth Circuit and remanded the case for further proceedings. Also by a vote of five to four, the Court held that where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed. Justice Scalia filed a dissenting opinion, in which Justice Thomas joined and in which Chief Justice Roberts joined as to all but Part IV. Justice Alito also filed a dissenting opinion.