The times that courts operate in demand the best from our court leaders.  Regardless of whether you are a presiding judge or recently sworn in, regardless if you are an experienced court manager or new to the profession, each of us can and need to become more effective court leaders.  We all too often don’t take the time to explore how to be a more effective court leader.  The American Judges Association, thanks to the State of Washington court system, is about to make it a bit easier for judges and court administrators to explore how to be a more effective court leader.

 On January 23, 2012 at 12:15-1:15 Central Standard Time we will be conducting a webinar on court leadership.  The response to the webinar has been quite remarkable, but there are a “few seats” still available.  Thanks to the technology of the State of Washington, participants will be able to participate in polls during the webinar, ask questions and share insights.   Please see below to register and join us.   You need not be a member of the American Judges Association…..but of course we would really like judges to someday join if you are not already a member. If you can’t participate yourself please feel free to share this announcement with judges and administrators you know.

To Register:

Please fax the following information to 757-259-1520

First Name:

Last Name:

Title:

Court:

Phone:

Email Address:

Registration closes on January 20, 2012. Confirmations will be sent to the email address you provide.  Login information will be sent the morning of the Webinar to all registered participants.  For questions regarding registration, please contact Ms. Shelley Rockwell at 757-259-1841 or srockwell@ncsc.org

Peter Hardin of  Justice at Stake,recently wrote a short but interesting piece on what the American people think should be the role of the federal courts. 

A new poll released by Justice at Stake shows that Americans reject a range of proposals by Newt Gingrich and several fellow GOP presidential hopefuls to severely limit the role of federal courts.

Voters solidly oppose permitting Congress to limit types of cases that courts can hear, or letting Congress or the president ignore or overturn a Supreme Court ruling, according to the poll. Voters oppose former House Speaker Newt Gingrich’s idea of using U.S. marshals to arrest judges and compel them to explain their decisions before Congress.

“The court-bashing coming off the campaign trail is way outside the American political mainstream,” said Bert Brandenburg, JAS executive director. “This poll confirms that Americans don’t want their leaders tampering with the courts. They strongly support courts that are accountable to the Constitution, not to elected politicians.”

Almost all of the specific proposals floated by GOP candidates regarding the courts were rejected in the poll of 1,000 voters nationwide:

• 57 percent believe Congress and the president should not be able to ignore Supreme Court rulings, while 19 percent agree with the idea;
• 48 percent say Congress should not be allowed to strip authority from courts to hear cases involving such issues as same-sex marriage and religious freedom. Twenty-nine percent favor letting Congress interfere in this way.
• 50 percent reject Perry’s proposal for a constitutional amendment permitting Congress to overturn a Supreme Court ruling with a two-thirds majority vote. Thirty percent favor the constitutional amendment idea.
• 53 percent of voters reject the proposal that Congress eliminate entire courts in response to unpopular decisions, while 26 percent favor the idea.
• 36 percent oppose the proposal that Congress should be able to ask judges to appear before it and explain their decisions, and 42 percent favor the proposal. By 51 to 38 percent, however, a majority of voters oppose Gingrich’s suggestion that law enforcement officials detain judges for congressional questioning about their decisions.

Texas Gov. Rick Perry’s proposal for nine rotating 18-year terms for Supreme Court justices, instead of lifetime appointments, received support from 48 percent of voters, compared to 31 percent opposed. The proposal has roots in the academic community.

Arguably because of what is at stake, death penalty cases may not be the best way to understand how courts should approach juror misconduct. We quite understandably want near perfection in the conduct of a death penalty case and may well have a less exacting standard for a soft tissue injury auto accident case. But it is in the soft tissue auto accident case that a judge is more likely to find a juror sound asleep, and there maybe all kinds of cases where a juror wants to tweet their friends.

The Arkansas Supreme Court dealt with both issues recently and overturned a death-row inmate’s murder conviction because of jurors who tweeted and slept during his trial. The high court also said that because of changing technology, it is time to consider whether jurors should continue to be allowed access to mobile phones during trials.

The Supreme Court ordered a new trial in Benton County Circuit Court for Erickson Dimas-Martinez in the Dec. 30, 2006, shooting death of 17-year-old Derrick Jefferson in Springdale. Dimas-Martinez had been sentenced to death for capital murder and life in prison for aggravated robbery.

— S.W.3d —- (Ark.)

2011 Ark. 515

2011 WL 6091330

The Freudian slip is named after Sigmund Freud who wrote in his 1901 book The Psychopathology of Everyday Life about his theory that sometimes a verbal mistake reveals a repressed belief, thought, or emotion. Whether a particular utterance is really a Freudian slip or even if the theory is valid can be left for debate another day. Suffice it to say every judge knows there are days when you say something that just did not come out right. One of the most interesting blogs available is How Appealing which is written by Howard Bashman. He had a recent post that illustrates either a judge who just had a slip of the tongue or maybe a judge who proved the validity of Freud’s theory:
“After Ontario Superior Court judge’s slip-up, appeal seeks new trial for ‘Mr. Guilty'”: In today’s edition of The Toronto Globe and Mail, Kirk Makin has an article that begins, “Shortly before a Toronto jury left the courtroom to start deliberations at Prinze Wilson’s cocaine-trafficking trial last spring, Madam Justice Faye McWatt of the Ontario Superior Court stressed the need to respect his presumption of innocence. ‘It is only defeated if, and when, Crown counsel has satisfied you beyond a reasonable doubt that Mr. Guilty — I’m sorry, that Mr. Wilson — is guilty of the crime charged,’ Judge McWatt said.”

There is an interesting and thus far very successful community court in San Francisco.

In 2007, the San Francisco Superior Court, in partnership with the Mayor’s office, undertook a needs assessment in the city’s tenderloin district. Many of the defendants who appear in the Court are homeless, many have substance abuse problems and a myriad of other social service needs. The other day, a fine levied for a minor infraction illustrates the extremes that states have gone to in terms of imposing fees and surcharges onto minor cases involving people with no realistic ability to pay. The judge fined the defendant $100, but then the clerk pointed out to the judge that with the fees and surcharges, the total would be over $400. The problem of fines and surcharges that far surpass the ability of defendants to pay has been an increasing dilemma that courts throughout the country are facing. 

Rebekah Diller is deputy director of the Justice Program at the NYU School of Law’s Brennan Center for Justice. She recently had a thoughtful analysis of this dilemma: “As states struggle to close persistent budget gaps, they are casting about for ways to raise revenue. One of the more penny-wise, pound-foolish schemes is to levy more fees on a group least able to pay: people involved in the criminal justice system. Just this year, Arizona instituted a $25 background check fee for any family member who wants to visit an inmate in state prison, a move made despite significant evidence that involvement with family is key for preventing recidivism.  Arizona is not alone. In Criminal Justice Debt: A Barrier to Reentry, a report published last year by the Brennan Center for Justice, we surveyed recent fee practices in 15 states and found a disturbing uptick in both the dollar amount and the number of fees imposed on criminal defendants. These fees kick in at almost all stages throughout the process: Fees may be charged for one’s public defender and prosecution, for court costs upon conviction, each day in jail or prison, and for each month of parole or probation supervision.  These fees may seem small in isolation—$25 here, $50 there—but as “The Unintended Sentence of Criminal Justice Debt” demonstrates, they can have harmful and lasting consequences. The amounts add up quickly, often totaling hundreds or thousands of dollars. Collections efforts take an added toll, generating additional fees and interest, often leading to driver’s license suspensions and wrecked credit histories. At its worst, inability to pay criminal fees paves the path back to prison by prompting violations of parole or probation, arrests for failure to appear at fee-related hearings, or other new offenses.  As the human costs mount, there is scant information about the repercussions of imposing these financial costs. Jurisdictions have looked at only one side of the ledger—the amount of money they expect to generate—without thinking through what happens when significant numbers of individuals cannot pay.

It is time to rethink the problem. First, states should exempt upfront those who lack the means to pay. This is not only the just thing to do, it’s the smart thing. Jurisdictions would then stop spending scarce resources to chase down debt that is, in many cases, simply not payable.  Second, as “The Unintended Sentence” suggests, evidence-based analysis and programming are desperately needed. For individuals who cannot pay debts such as restitution and fines that are part of their sentence, credit for well-designed community service and other programming could offer a way out of the vicious debt cycle. The rigorous study associated with a demonstration project can help other jurisdictions reform their criminal debt practices too.

I’d like to thank Judge Burke for inviting me to write a post for the AJA blog about my organization, the Institute for Justice, and what we do.  Judge Burke and I connected when he cited a report I co-authored called “Government Unchecked” in his spirited response to Newt Gingrich’s assault on judicial independence.   

The Institute for Justice is a public interest law firm that litigates to secure economic liberty, property rights, free speech, and school choice.  We believe the Constitution imposes important limits on government power that can only be enforced by a properly engaged judiciary.  By “properly engaged,” we mean judges who decide cases based on the neutral application of law to evidence presented in court.  The opposite of judicial engagement is judicial abdication—the failure to properly enforce constitutional limits on government power.

I believe one of the clearest examples of judicial abdication in recent years is the Supreme Court’s 2005 decision in Kelo v. City of New London, a case I helped litigate with my colleagues at the Institute for Justice.  At issue in Kelo was whether the government’s mere hope that using eminent domain to compel the transfer of property from one private owner to another might increase taxes or create jobs constitutes a “public use” within the meaning of the Fifth Amendment.  The Supreme Court, by a 5-4 margin, said yes.  Every state supreme court to consider the question under analogous state constitutional provisions since then has said no.  Polls show that Americans were outraged by Kelo, and for good reason: the idea that the Constitution permits government officials to engage in real estate speculation with people’s homes and businesses is utterly alien to our traditions and our uniquely American values.

For reasons I hope to develop in subsequent posts, I believe the underlying spirit of Kelo—namely, that courts should defer to legislatures and exercise “restraint” in deciding constitutional cases—may actually be encouraging the kind of attacks on judicial independence that we have been seeing from Newt Gingrich and others.  Simply put, if judges doubt their ability to properly interpret and apply the Constitution in most settings, why shouldn’t legislators?

Professor Wexlex is an internationally known scholar whose career has in recent years focused on therapeutic  jurispudence. When he reports that something is worth reading, both academics and practitioners should take note.  He recently noted that

Carolina Academic Press ( www.cap-press.com<http://www.cap-press.com> ) has just published an excellent volume ,edited by Edna Erez, Michael Kilching, and Jo-Anne Wemmers, entitled Therapeutic Jurisprudence and Victim Participation in Justice: International Perspectives (2011).

The book breaks important (and previously neglected)new ground, turning a TJ lens on the topic of victims; there are diverse views and careful and nuanced discussions of many issues, and the chapter editors come from a number of different countries. It is dedicated to the memory of Bruce Winick.

A lot of lawyers (to their client’s peril) underestimate the problem with unfocused briefs. The issue was highlighted in a recent post by Orin Kerr in The Volokh Conspiracy

From the introduction to United States v. Bansal, a recent Third Circuit decision authored by Judge Aldisert:

We note at the outset that Bansal’s and Mullinix’s briefs raise approximately 75 issues for our consideration. Although the government responds by calling to our attention no fewer than 339 cases drawn from the span of more than 120 years (as well as 49 separate statutes and one book, for good measure), we reject any implication that we should pick up their torch and embark upon a similar adventure ourselves. We address only those issues we deem worthy of discussion, and only to the extent we deem necessary to explain our reasoning.

With that said, Judge Aldisert’s opinion is still 69 pages long

 Reauthorization of the Violence Against Women Act

Kay Farley from the National Center for State Courts reports that, on November 30, 2011, Senator Patrick Leahy (D-VT) introduced the Violence Against Women Act of 2011 (S. 1925).  As introduced, the reauthorization level is 19% lower than the 2005 reauthorization level.  It is unknown, however, whether the reduction will have an impact as the VAWA-related grants have never been funded at the full authorization level.

In addition to the authorization level decrease, the bill includes a number of policy changes.

• Some grant programs are consolidated in an effort to improve and expand the most effective programs.  Of note is the proposed consolidation of two court-related training grants into the Court Training and Supervised Visitation Improvements grant program.  Funds may be used for the following activities:
• Supervised visitation and safe visitation exchange programs;
• Development of legislation, policies, and best practices for improving civil and criminal functions, responses, and practices, and procedures;
• Education for court-based and court-related personnel and child protective service workers;
• Resources in juvenile court matters;
• Enable courts, court-based or court-related programs to develop and enhance court infrastructure, programming, information storage and information sharing, education and outreach programs, and other projects;
• Civil legal assistance;
• Collect data and provide training and technical assistance to improve the capacity of grantees and communities; and
• Training and education for judges, court personnel, attorneys, child welfare personnel, and legal advocates in the civil justice system.
   
• Three changes are made to the STOP grant program – (1) the application process is streamlined by substituting a requirement for the development of an implementation plan for some the documentation currently submitted to the Office on Violence Against Women, (2) coverage under the grant is expanded to include male victims and persons victimized because of their sexual or gender orientation, and (3) a 25% set-aside is established for responding to sexual assault crimes.  
   
• Under the Grants to Encourage Arrest Policies and Enforce Protection Orders grant program, applicants will be required to certify that they do not charge victims for costs associated with the modification, enforcement, or dismissal of a protection order.
• The measure also provides for training to prevent homicide resulting from domestic violence.  The legislation encourages screening of victims for warning signs and providing immediate intervention for those at risk of homicide.

The Senate Judiciary Committee is expected to schedule a mark-up session on S. 1925 in January 2012.  A reauthorization bill has not been introduced in the House yet.

Michael Wolf served for many years on the Missouri Supreme Court, and at one point was that state’s Chief Justice. There are few judges in the United States that are his equal when it comes to writing interesting and thoughtful commentary…he was afterall, at one point a journalist.  Commentary by him should be of interest to a lot of judges, and thankfully, he has a new article:

 Missouri Provides Cost of Sentences and Recidivism Data: What Does Cost Have to Do with Justice? (Federal Sentencing Reporter, Forthcoming) on SSRN. Here is the abstract:

The Missouri Sentencing Advisory Commission in 2010, which has an information-based sentencing information system, added two items of information to its Web-based Automated Sentencing Information feature: (1) the cost of each sentencing option and (2) the recidivism rate for offenders – with similar risk factors – who received sentences for the same offense or category of offenses. Because sentencing decisions in Missouri are discretionary, judges are free to use or to disregard the information. For many offenses, however, it is possible for an advocate to argue or for a judge (or the public) to conclude that a more harsh sentence not only may cost more, but may be followed by a higher rate of re-offending than a less severe punishment.