North Carolina Judges Offer Counseling to Jurors

BY: BRIAN PETERITAS | NORTH CAROLINA | FEBRUARY 27, 2012

Jurors in North Carolina who may have been traumatized during the course of a criminal trial can now get counseling following their service, thanks to a new statewide pilot program. According to the Charlotte Observer, the Jury Assistance Program (managed by the state Administrative Office of the Courts) allows jurors to call or make an appointment with a mental health professional to receive a confidential assessment. Once the initial evaluation is complete, the counselor can provide the juror with additional resources included in their health plan or available at a low cost. Jurors will also receive unlimited access to a mental health website already used by state employees. Due to budgetary constraints, the presiding judge must determine that the testimony given during a trial warrants jury access to these services. Presently, only Alaska and Texas have enacted statewide legislation to provide similar services, though Texas leaves the funding up to individual court systems. A handful of other states report that select counties provide jury counseling, according to a 2007 survey done by the National Center for State Courts

A couple weeks ago, New York Chief Judge Jonathan Lippman delivered his annual State of the Judiciary address in which he promoted new safeguards against wrongful conviction.  In case you missed it, this is an article worth reading.

The International Association of LGBT Judges announces its first writing competition.  This competition coincides with the 2012 Lavendar Law Conference and Career Fair on August 23-25, 2012.  For more information, please click on 2012-Judges-Writing-Competition and email info@LGBTbar.org

There may well be no one as passionate about the plight of self represented litigants as Richard Zorza.  His blog had a recent post that needs to be shared: 

Recently, the  New York Times published an editorial,  A Reform for Fair Courts which praised the Tennessee Supreme Court for  leadership on recusal reform: 

“With rising special-interest spending in state judicial elections, there is an urgent need to protect judicial integrity from the flood of campaign cash. Tennessee is leading the way with a new rule prohibiting judges from hearing cases when campaign spending by lawyers or litigants raises a reasonable question of their impartiality. . . .Tennessee’s good model should help prod court leaders in other jurisdictions to follow suit. Campaign spending problems have plagued judicial races in states like Illinois, Alabama and Pennsylvania. A sensible rule on recusal would significantly increase public confidence in judicial integrity.”  

The issue about recusal reform is a very hot topic among many judges as well as The American Bar Association.  

As it is currently written, the ABA Model Code of Judicial Conduct provides that judges should recuse themselves when they receive campaign contributions over a threshold amount determined by each state that decided to adopt the ABA proposal.  An alternative proposal would eliminate state by state threshold amounts and would instead require recusal when contributions or other support are high enough to be “substantially important to the judge’s most recent campaign.” The proposal would also create a rebuttable presumption that judges know “the amount, source and value of direct and indirect campaign contributions” if they are matters of public record and reasonably available.

No one can reasonably claim that money is a fundamental problem in judicial elections. Money is at times hard to raise, hard to figure out how to effectively spend, and as Caperton held, can create appearances that have the potential to undermine the legitimacy of judicial decisions.  But the solution may well be as complex as the problem itself.  For example, Judge Annette Scieszinski, a trial judge in Iowa, said she initially backed a set contribution amount that would require recusals when the Iowa Supreme Court considered changes to its ethics code. But she changed her mind after she learned of a flaw in that requirement: Litigants who wanted to disqualify a judge would make certain they made contributions exceeding the threshold amount. 

Please post your comments and share your thoughts about how judges can be deal with this issue. 

The Sentencing Law & Policy blog written by Professor Douglas Bergman is among the best legal blogs anywhere. It had a post which should be of interest to both Canadian and United States judges:

Canadian judge resisting mandatory sentencing provisions

The Toronto Globe and Mail has this new article, headlined “In challenge to Ottawa, judge refuses to impose mandatory sentence” which provides a northern perspective on the classic concerns about federal judges forced to impose rigid mandatory sentencing terms. Here are excerpts from the piece:

An Ontario Superior Court judge has refused to impose a mandatory three-year sentence on a man caught with a loaded handgun, putting the courts on a collision course with the federal government’s belief in fixed sentences that provide judges with little discretion.

In a decision Monday, Madam Justice Anne Molloy added fuel to a rising sense of judicial anger over mandatory minimum sentences by striking down the compulsory term as cruel and unusual punishment. Instead, she sentenced the defendant, Leroy Smickle, to a year of house arrest. Judge Molloy concluded that Mr. Smickle, a 30-year-old Toronto man with no criminal record, had merely been showing off by striking a “cool” pose over the Internet when police happened to burst into an apartment on March 9, 2009, in search of another man.

The government has adamantly held to the view that mandatory minimums are a necessary restraint on judges who might impose inappropriately lenient sentences for certain offences. That is part of a larger tough-on-crime agenda that includes everything from harsher prison sentences to restricting parole and pardons.

Several months ago, in another major challenge in Ontario Superior Court, a similar sentencing provision was upheld in a firearms case, Regina v. Nur. That, combined with the Smickle ruling, could well result in a high-profile appeal that goes all the way to the Supreme Court of Canada.

Critics argue that a one-size-fits-all sentencing policy inevitably leads to unfair results. In her ruling Monday, Judge Molloy added her voice to those criticisms by saying there are an endless number of scenarios where a fixed sentence would be so cruel as to violate the Charter of Rights….

“In my opinion, a reasonable person knowing the circumstances of this case and the principles underlying both the Charter and the general sentencing provision of the Criminal Code, would consider a three-year sentence to be fundamentally unfair, outrageous, abhorrent and intolerable,” Judge Molloy said….

The judge noted that bad drafting was partially to blame for the legal straitjacket she found herself in. She took issue with a discrepancy in the firearms law, passed in 2008, which allows a judge to impose a more lenient sentence should the Crown choose to proceed summarily with a charge – an option that includes no jury and swifter resolution. She said that if the Crown instead proceeds by indictment, as it did in Mr. Smickle’s case, the minimum sentence automatically becomes three years.

The discrepancy created by the two sentence ranges is so “irrational and arbitrary” that it would shock the community were she to impose the mandatory sentence on Mr. Smickle, Judge Molloy said.

A Texas school-prayer case that fueled calls by  Newt Gingrich to have judges subpoenaed to testify before Congress on why they ruled in a particular way and calls to curtail the power of federal judges settled last week. 

The case stems from a  lawsuit by two students who asked  that the federal court enjoin  religious displays at their school, including a prayer at the graduation ceremony. U.S. District Judge Fred Biery ruled in their favor, finding that the prayers were likely to violate the First Amendment’s establishment clause.

His original order was was reversed by the the U.S. Court of Appeals for the Fifth Circuit rather promptly. Texas Senator John Cornyn and Governor Perry were highly vocal in their criticism of Judge Biery.  Governor Perry described Judge Biery’s decision as “reprehensible” and an “inappropriate federal encroachment into the lives of Americans.” 

But no one was as fierce in their criticism as former Speaker Gingrich.  Mr. Gingrich lambasted Judge  Biery, a former United States Marine who is currently the Chief Judge, in television interviews and in many speeches, as evidence that the entire federal court  judiciary is out of touch and needs reining in.

Intense public criticism is perhaps expected in any case involving the Establishment Clause. Most times judges only discuss that type of intense criticism in private among their closest judicial colleagues or friends. But in an order approving the settlement, Biery closed, unusually, with a personal statement:  During the course of this litigation, many have played a part:

To the United States Marshal Service and local police who have provided heightened security:

Thank you.

To those Christians who have venomously and vomitously cursed the Court family and threatened bodily harm and assassination: In His name, I forgive you.

To those who have prayed for my death: Your prayers will someday be answered, as inevitably trumps probability.

To those in the executive and legislative branches of government who have demagogued this case for their own political goals: You should be ashamed of yourselves.

To the lawyers who have advocated professionally and respectfully for their clients’ respective positions: Bless you

The complete Settlement Agreement (Appendix I) and historical observations of the Court (Appendix II) may be found at the Court’s website http://www.txwd.uscourts.gov/opinions/cases/schultz/default.asp.

Nearly 100 years ago, a woman was beaten by her husband on the evening of her wedding.  She lived at a time when there was shame at being a victim of domestic abuse and no resources for help.   Domestic abuse was a private family matter.  The young woman soon became pregnant. The abuse continued.  With the help of her family, she left her husband and moved to Grand Rapids, Michigan, with her young son.  The child, Gerald Ford, became the President of the United States. 

Domestic violence is not an issue in which judges should just strive to be politically correct. Lives are sometimes at stake. Children can be damaged by exposure to domestic violence. While courts are far better at understanding how to be more effective in dealing with domestic violence, we have a long way to go. That is in part why the American Judges Association, thanks to the leadership of Judge Libby Hines from Michigan and Judge Mike Cicconetti from Ohio, is developing a distance learning program for judges in how to better understand domestic violence and how to be more effective in dealing with it. Filming of these programs has already begun, and we hope to go “live” next fall.

In the meantime, there was a recent headline in the South Florida Sun-Sentinel which read, “Broward judge sets whimsical conditions in a domestic case where no blows were struck” The story went viral on the Internet and news media nationally. Rather than editorialize whether the bail conditions were appropriate, perhaps a better learning experience for all of us is to take a few minutes and watch the entire proceeding on this link.

My suggestion is you do not read the article and just watch the entire proceeding first.  It is only a few minutes. Learning can be a collective enterprise. Post your comments and we will all benefit.

http://www.sun-sentinel.com/news/local/breakingnews/fl-flowers-food-bowling-20120207,0,947444.story

Last fall, The New York Times ran a story on the closing of the highly successful San Francisco Parole Reentry Court. (see “Parole and Probation Courts in San Francisco are Closing After Budget Cuts” ). The story speaks volumes about two things: (1) budget cuts to courts have real consequences and (2) there are emerging new ways that courts can reduce recidivism.

The San Francisco Parole Reentry Court was part of a pilot program that gave the San Francisco Superior Court authority to determine parole conditions, including rehabilitation and supervision as well as sanctions for parole violations. Reentry courts are not without controversy because of the reluctance of many judicial leaders to take on the supervision of parolees which is an executive function in most of the states. Despite that concern, the San Francisco reentry court had strong ­­­­support until this past summer when drastic reductions in state funding caused many California Courts to reassess their financial ability to do a lot. While all of the California courts were affected by budget cuts, San Francisco was one of the worst hit, with over 6 million dollars of debt and the closing down of 25 of the 63 courtrooms countywide. Many if not most of the court’s commissioners in San Francisco were let go.  The San Francisco Superior Court determined that the Parole Reentry court (as well as two smaller reentry courts; a juvenile reentry court and a probation reentry court) would be closed down because they did not provide a core function of the court. 

While Padilla v. Kentucky is thought to create new obligations for defense counsel, the ultimate responsibility to make sure that the record reflects a knowing and voluntary plea is the judge’s. There is a new and interesting article on this subject: 

Danielle Marie Lang 
Yale University – Law School

Yale Law Journal, Vol. 121, No. 4, p. 944, 2012 

The abstract is:
Abstract:      
In Padilla v. Kentucky, the Supreme Court held that a lawyer’s failure to advise her noncitizen client of the deportation consequences of a guilty plea constitutes deficient performance of counsel in violation of a defendant’s Sixth Amendment rights. In the plea context, defendants are also protected by the Fifth Amendment privilege against self-incrimination and the Due Process Clause, which requires that judges and defendants engage in a conversation regarding the consequences of the plea — the so-called “plea colloquy” — before the defendant can enter a valid guilty plea. 

In many plea colloquies, judges issue general warnings to defendants regarding the immigration consequences of a guilty plea. Since Padilla, a number of lower courts have held that such general court warnings prevent a defendant from proving prejudice and prevailing on an ineffective assistance of counsel claim where there might otherwise be a Padilla Sixth Amendment violation. 

This Note argues that those rulings mistakenly conflate the role of the court in a Fifth Amendment plea colloquy and the role of counsel under the Sixth Amendment and, further, that they misread the clear directives of Padilla. In the plea context, the court and defense counsel serve complementary but distinct functions in our constitutional structure; neither can replace the other, and the failure of either court or counsel constitutes a breakdown in our system. Circumscribing Padilla’s requirements by allowing plea colloquies to “cure” the prejudice created by Sixth Amendment Padilla violations is problematic because the Fifth Amendment plea colloquy provides significantly less protection to criminal defendants. Thus, the substitution of the plea colloquy for advice from counsel will substantially undercut the Padilla decision.

The full article can be found at: 

Padilla v. Kentucky: The Effect of Plea Colloquy Warnings on Defendants’ Ability to Bring Successful Padilla Claims