Last week  New York State Chief Judge Jonathan Lippman called for New York State to raise the age of criminal responsibility from 16 to 18. This would effectively transfer some 45,000 cases involving 16 and 17 year olds from criminal court to family court. 
 The age with which juveniles are presumptively or conclusively treated by the courts as adults is highly controversial in some states. It is likely that if the Chief Justice’s proposal is implemented the Center for Court Innovation will assist in development.

http://www.nytimes.com/2011/09/21/nyregion/new-yorks-chief-judge-seeks-new-system-for-juvenile-defendants.html?_r=2&ref=nyregion

If you want to create trouble a a neighborhood barbeque just casually  throw out some comment  about judicial activism and then watch how your neighbors who used to get along get in a heated argument.  Is the U.S. Supreme Court running roughshod over the other branches of government?  Is it true, as former  Sen. Arlen Specter claimed, that the Court “has been eating Congress’s lunch by invalidating legislation with judicial activism”?  Judges rarely talk about judicial activism other than to express frustration about political pundits who use the term to Bash courts. There are no judicial training programs on how to be an activist judge nor on how to avoid being an activist. There is a lot of thought, debate and discussion among judges on how to fairly rule on the individual cases that we are called to rule upon. So is judicial activism a plague facing our society or a fiction. 

According to a new report from the Institute for Justice’s Center for Judicial Engagement calledGovernment Unchecked: The False Problem of “Judicial Activism” and the Need for Judicial Engagement, the answer is emphatically no. Judicial activism is a myth.  

Read the report:  www.ij.org/GovUnchecked
So here are some statistics to calm down the neighbors at the barbeque:  The report finds:

•    Congress passed 16,015 laws from 1954 to 2003.  The Supreme Court struck down 104—or just two-thirds of one percent.
•    State legislatures passed 1,029,075 laws over the same period but the Court only struck down 455—orless than one twentieth of one percent. 
•    The federal government adopted 21,462 regulations from 1986-2006.  The Court struck down 121—or about a half of a percent.
•    In any given year, the Court strikes down just three out of every 5,000 laws passed by Congress and state legislatures.
•    The Supreme Court overturned precedents in justtwo percent of cases considered from 1954 to 2010.

The ABA Journal has two reports that might be of interest to judges. The first deals with the problem of jurors deciding to do their own research on the Internet. This has been a problem and concern for a lot of judges.  The ABA article  said: The Manhattan federal judge known for her opinions setting out rules for e-discovery has turned to the problem of “Goggle mistrials.”

U.S. District Judge Shira Scheindlin says she is “keenly aware” of convictions set aside because jurors have looked up information on the Internet during trial, the New York Times reports. At a court hearing earlier this month, Scheindlin suggested a way to combat the problem: Require jurors to sign a pledge promising they will not look up case-related information online. Violations of the pledge could bring perjury charges.

Scheindlin said she would draft such a pledge, and she might require jurors in the trial of Viktor Bout to sign it. Bout is a Russian businessman accused of trying to sell weapons to Colombian rebels. Scheindlin said she was seeking a practical way to keep jurors from finding out information that could be prejudicial.

“I can’t seize their computers and their BlackBerrys,” she said. “I can’t lock them up. I can try to intimidate them.”

Tara Trask, president of the American Society of Trial Consultants, told the Times she’s never heard of a judge asking jurors to sign any kind of pledge or written document. She said she liked the “forward-thinking idea.” New York University law professor Stephen Gillers told the newspaper the idea “can help and certainly can’t hurt.”

Scheindlin is known for a series of rulings in 2004 analyzing what kind of electronic evidence is discoverable and who is responsible for the costs.

 When was the last time you personally sent a letter to someone at a General Post Office number? Better yet when did you check to see if someone sent you a letter addressed to General Post Office? There are people who regularly look at the local obituary page….sometime referred to as the Irish sports page but how frequently to you read the legal notices in your local newspaper? Stephanie  Francis Ward has an interesting article in the electronic version of the ABA Journal on service of process through the Internet. You can find the article at:

http://www.abajournal.com/magazine/article/our_pleasure_to_serve_lawyers_social_networking_sites_notify_defendants/. If you are adventuresome enough to allow service through the use of the Internet or social media here are a couple sample orders I’ve written:  

Facebook Publication 09-26-11

Internet SAMS

When I think of successful leaders I turn to the two professions over the 100 years that are most central to American life in the modern era. The are athletic coaching and the practice of medicine. We Americans have made sports our religion and deemed medicine more important than art, philosophy, or even economics. I suggest two of exemplary leaders in these two areas are Knute Rockne in football and the Mayo brothers in medicine. 

What do they have in common? These two sets of leaders spent as much time in the administration of the game and patient care as preparation for the game and actual patient care, respectively. Rockne designed the uniforms and helmets of his players.  The Mayo Brothers chose Dr. Henry Plummer, a scientist and inventor, not just a fine medical doctor to be a partner. Plummer was responsible for introducing administrative innovations in medicine still used today. 

The value of their choices is measurable. Take the Mayo Clinic, for example. The Mayo Clinic is renowned among the patients and their families not just for its diagnoses, surgeries and prescriptions. It excels in how the patients feel about their service and how they are treated.  Patients with ambulatory problems who did not begin their appointment at the Clinic with wheelchair assistance are frequently asked while they are in consultation with their doctors about the results of their medical tests if they would like some help. If so, a doctor requests wheel chair assistance. And no sooner does a patient emerge from the doctor’s office than a Clinic employee is where with a wheelchair.  There are guides and greeters on the main floor of the main building leading to elevators, walkways to the other hospitals, lounges, cafeterias, exists to hotels, and God only knows where else. Every doctor has a great bedside manner. All of this administrative attentions pays off because it reduces the high anxiety of every patient who comes there. No matter how many times I have been there since 1997, probably 20 times: I still have anxiety even for regularly scheduled examinations. What I might find out might literally kill me. 

Entering a court is similar. Anxiety is high even if you know you are going to win. And routine business still confronts the average person with rooms, floors, and people who are unfamiliar and therefore a little intimidating. 

Back to the Clinic. When you’re in the operating room, or the room where you are before they cut you up you notice tons of band aids, tape, and other material. So you see what you get when you throw money at medicine. It doesn’t all go into the pockets of fat cat doctors. And when you find out they are on salary and not paid by number of organs they remove and replace, you actually achieve a comfort level. The staff is working for you. And no patient is any more important than another.   The Clinic’s culture convinces all patients they are worthy of careful treatment because they are come to the Clinic because of medical needs. And they all deserve individual attention.

One way the Clinic creates this sense of equality is by the names of folks who have donated money for auditoriums, sitting areas, and so forth. The names begin with Geffen and Landow. You think ohmagawd I can watch a video in a room built by Geffen  or Landow. It makes everyone feel important. 

I won’t talk about Rockne as much because his administration is not as available to observe. But remember he was from Voss Norway and Norwegians invented the paper clip. And he used George Gipp to the maximum and was an impresario in developing inter-conference competition. 

My point from all of this is that it might be useful to discuss what makes for successful judging when many decisions have to be made either in the heat of battle where there is no option of taking matters under advisement or when confronting new statutes.  To me judges could learn a lot simply from observing an ER facility carefully or watching a NASCAR pit crew prepare. In medicne and sports a lot of work has to be done with no extra time and yet lives are at stake.

My interpretation of the Federalist Paper number 17 is that the reason administration of justice has no equal in positively affecting the minds of citizens is that a court can take away your liberty or your property. The executive and the legislature can make policy but in the end the final decision for INDIVIDUAL citizens is how a court applies that policy. How that decision is reached is nearly of equal importance as the decision itself.

 Roger Hanson is a longtime court consultant and author of numerous article and books about courts.  He recently was an Adjunct Professor of Law and Political Science at the University of Colorado.

This week the Minnesota Supreme Court in a 4-3 decision ruled that a prosecutor may comment to the jury about a defendant’s decision not to respond to a letter asking the then suspect to answer some questions posed by the police as part of their investigation. State of Minnesota v. Borg http://www.mncourts.gov/opinions/sc/current/OPA090243-0921.pdf.   Decisions like this  make it increasingly difficult for busy overworked trial judges to keep up on Miranda decisions and the law surrounding the right to remain silent. Fortunately  a law professor who teaches at  Marquette Law School has a solution which he posted on his blog. Professor Michael  Cicchini wrote: 

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I never thought the Miranda warning was all that useful.  In fact, it actually raises more questions than it answers.  For example, the warning tells a suspect that anything he says can be used against him in court.  But asking for an attorney is saying something, isn’t it?  Could the prosecutor later use such a request against him?  (After all, television teaches us that only guilty people “lawyer-up.”)  And what if the suspect wants to remain silent?  Could his silence be used against him in court?  TheMiranda warning fails to answer these and many other questions.

 Making matters even worse for the would-be defendant is Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).  In a confidence inspiring 5-4 split, the Court ruled that a suspect cannot actually exercise the right to remain silent by remaining silent—even if that silence lasts through nearly three hours of interrogation.

 In response to all of this chaos, I’ve drafted a new and improved Mirandawarning.  Granted, this warning would be a bit more cumbersome for police to deliver, and still wouldn’t answer every possible question.  But it would be an improvement.  Here it goes:

“I first have to read you these rights before you tell me your side of the story, okay?  First, you have the right to remain silent.

1.    Actually, you really don’t have the right to remain silent, unless you first speak. Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).

2.    But if you choose to speak so that you can remain silent, you had better not be ambiguous.  If you tell me, for example, “I don’t got nothing to say,” that is ambiguous to me, and not because of the double negative.  Your ambiguity will be construed in my favor, and I am allowed to continue my interrogation. United States v. Banks, 78 F.3d 1190 (7^th Cir. 1996). 

3.    On the other hand, if I am ambiguous when I read you your rights, my ambiguity will also be construed against you.  This is only fair.  Florida v. Powell, 130 S. Ct. 1195 (2010).

4.    If you refused to answer questions posed to you before I began reading you your rights, your pre-Miranda silence can be used against you at trial, should you testify in your own defense.  So, you might want to talk to me now so you don’t look guilty later.  Jenkins v. Anderson, 447 U.S. 231 (1980). 

5.    But, anything you say to me can be used against you in court.  (I’m not sure if this includes the things that you say in order to remain silent.)

6.    You have the right to an attorney. 

7.    But if you choose to exercise your right to an attorney, once again, you had better not be ambiguous about it.  Don’t ask me, for example, “Could I get a lawyer?”  This might seem like a reasonable request to you, since you’re handcuffed and have no other way to actually get the nameless attorney that I just offered you.  However, this statement is also ambiguous and is not sufficient to invoke your rights. United States v. Wesela, 223 F.3d 656 (7th Cir. 2000).

8.    If you can’t afford an attorney, one will be appointed for you, unless your income happens to be above the 1980 poverty line.  Then you might be on your own. 

9.    And don’t say “I can’t afford a lawyer but is there any way I can get one?”  As you might have guessed by now, that is completely ambiguous, and lacks “the clear implication of a present desire to consult with counsel.”  The interrogation, therefore, must go on.Lord v. Duckworth, 29 F.3d 1216 (7^th Cir. 1994).

Now, do you understand these rights as I have read them to you, and would you like to take this opportunity to help yourself, waive your rights and tell your side of the story.

Ohio’s New Child Support Laws Take Effect

SOURCE: CLEVELAND PLAIN DEALER | OHIO | SEPTEMBER 26, 2011

Changes to Ohio’s child support laws mean that parents who pay at least half of their court-ordered support will no longer face suspension of their driver’s or professional licenses. The measure is aimed at encouraging parents to work, rather than cracking down on them when they can’t or don’t make payments.

View Full Story From Cleveland Plain Dealer

Research shows that the number one predictor of organizational excellence is effective leadership.  Research also shows that having fully engaged, competent, motivated, and empowered judges and court employees is necessary to achieve and sustain high performance.  But ensuring effective leadership and achieving a fully engaged workforce is challenging, especially during tough times. What too many courts face is a whirlwind challenge of budget challenges and a political environment that does not always recognize the proper role and importance of the judiciary and our courthouse employees. If you are interested in reading about courthouse leadership focused on morale issues there is  online version of an  article featured in the NCSC Future Trends in State Courts 2011 publication, It Is All About the People Who Work in the Courthouse. Whether you are a judge in a leadership position in your court or not all of us contribute type of place we work in. While courts cannot control budgets unilaterally we have a dominate influence on morale.  Pop quizzes about leadership styles are most of the time about as accurate or useful as the “pop” adjective implies. But there is an interesting one at

http://guides.wsj.com/management/developing-a-leadership-style/how-to-develop-a-leadership-style/  The site is not geared to leadership in a courthouse but spending five minutes with it might give you some insight into your strengths and weakness as a judicial leader.

It is conventional wisdom that appellate courts read the briefs, hear oral arguments and then deliberate in secret. Although there is criticism of some trial judges about the degree with which they have been conferences or chamber discussions with lawyers it is an accepted practice.  Just like every other appellate court the justices of the Wisconsin Supreme Court will continue to deliberate  in private.  The Wisconsin Supreme Court  — in an  administrative conference that was open to the public — rejected Chief Justice  Abrahamson’s proposal by a 6 to 1 vote, AP reports.

If you want to know more about the press coverage of the Wisconsin proposal see:

Todd Richmond, Wis. Justices Kill Plan to Open Deliberations, Associated Press, September 15, 2011; Ed Treleven, Justices Decide Against Opening Deliberations to Public, Madison.Com, September 16, 2011; Adam Cohen, Justice on Display: Should Judges Deliberate in Public?, September 12, 2011; Nathan Koppel, Feuding Mires Wisconsin Court, Wall Street Journal, September 14, 2011.

Chief Justice Shirley Abrahamson  proposed that the Supreme Court open up all of their court conferences to the public in an effort to promote greater civility between the justices.  The Wisconsin Chief Justice said,

“[t]ransparency will help assure the public that we are working in a collegial fashion[.]”

Justice Annette Ziegler questioned whether public deliberations would turn the court into a reality television show, with camera crews following her into her office. Wisconsin has for decades allowed television cameras in virtually all of its trial courts.

Justice David Prosser raised the concern that remarks by justices during open deliberations could hand attorneys ammunition to challenge court rulings. “Clearly, this could influence what we say,” Prosser said. “It could stifle candor.”

So just how transparent should courts be?

Spreading the word about the American Judges Association blog is integral to making this experiment a success. If you like what you read there are two things that will help. First, if you see items of interest to share let us know. Second regardless of whether you are an American Judges association member of not, let other people know about the blog. By far the most clever email spreading the word about the blog was authored by Minnesota District Judge Joseph Klein. He wrote to his colleagues: As many of you already know, Judge Kevin Burke is currently serving as President of the AJA (American Judge’s Association). As a member of that organization, I receive its periodic journal Court Review. I have found that Court Review frequently contains articles that are not only relevant, but highly useful to me on many of the issues that come up—with regularity—in my court room.

AJA is launching a new blog, which will contain the same type of content as is contained in its Journal.

Here’s the great part: You do not have to be an AJA member to subscribe to this blog. (which is totally awesome, as used in the altruistic sense).

I am not telling you that you cannot join AJA, because Kevin would probably hurt me if I did. The point is: You can have access to a lot of great discussion on timely and relevant issues to the bench—and you can have it at your fingertips, merely by adding this site to your favorites:

https://blog.amjudges.org/
Some of you may be skeptical, because you have heard rumors that Klein might be prone to practical jokes, and whimsical comments meant to provoke laughter.

I assure you, nothing could be further from the truth in this case.

But don’t believe me. Simply click on the link and see for yourselves. If you are not completely satisfied with the content, then DON’T add this site to your favorites, and your money will be cheerfully exchanged.

If, however, you do add https://blog.amjudges.org/ to your favorites, I have another offer for you:

If you keep this site on your favorites, and promise to check its content every once in a while AND, after ten years, are not fully satisfied with the blog, I WILL PERSONALLY PAINT YOUR HOUSE!*

That is not a misprint.

Thank you for your kind consideration.

*”House” must be your primary residence. Offer not valid in Hennepin County.

Or any other county. I will travel to Hawaii and appraise your condo for painting by a professional painter, at your cost.

According to Wikipedia, as of February 2011 there were 156 million public blogs in existence.  What every judge knows (sometimes painfully) is we have far more to read than time.  A blog from the American Judges Association may be seen in this context as just more clutter on the internet or one more thing not to read.  So this blog is an experiment.  The American Judges Association claims to be the “voice of the judiciary.”  As a result, we need to speak frequently and about the issues confronting the judges of the United States and Canada.  If you like what happens here in the next few months, let us know.  If it is in your pile of things you do not have time or interest in reading, let us know that, too.

Judge Kevin S. Burke