Utah’s independent Judicial Performance Evaluation Commission now sends trained observers to see how well the judges are doing in carrying out the basic tenets of procedural fairness as part of its judicial-performance evaluations. The Utah Legislature’s 2008 statute establishing the commission directed that it consider information obtained from courtroom observation, and last October the commission adopted a formal rule adopting the four generally recognized criteria for procedural fairness as the principles and standards that would be used to evaluate judicial behavior in the courtroom:  neutrality, respect, voice, and trustworthiness. Utah has thus become the first state in the nation to require by law (here, a regulation promulgated under statutory authority) that each of its judges be evaluated for adherence to procedural-fairness principles.

Former AJA President  Steve Leben presented  an educational program on procedural fairness at Utah’s state judicial conference on September 14. He prepared a useful paper for that presentation. It expands upon the AJA’s 2007 white paper on procedural fairness, while also discussing in detail how judicial adherence to procedural-fairness principles might be evaluated at both trial and appellate levels. The forms now being used by courtroom observers in Utah are attached as an appendix.

Another useful item in the paper is an appendix providing the comments a group of six New Hampshire judges made after Steve and I had each of them videotape themselves on the bench for half a day as part of a judicial-training program. We asked each of the judges to review his or her own videotape and to answer questions about what they’d noticed that might be improved. Take a look at their comments and give some thought to whether the same thing might apply to you. Better yet, have one of your staff members videotape you on the bench for half a day and watch the tape yourself. Any camera will do–just have it focused on you at the bench. At the beginning of the session (or each hearing), get permission from those participating for you to film yourself on the bench for training purposes. And if you want even better feedback about your tape, consider getting a local communications professor or graduate student to review both it and the attached paper on procedural fairness, and then to give you some objective feedback.

Leben’s paper is posted here.

There are few people who are more devoted to improving the way the legal system treats self-represented people than Richard Zorza.  If you are interested in better understanding how you or your court can provide access to justice for self-represented people, Richard Zorza’s Access to Justice Blog (http://accesstojustice.net) is a terrific resource.

He had an interesting post regarding the study that judges were more sympathetic early in the morning and right after lunch.  His post said:

Decision Fatigue — It’s Glucose

Posted on September 6, 2011 by richardzorza

A few months ago, I blogged about a disturbing study of Israeli parole decisions that strongly suggested that judges made much more sympathetic decisions early in the session, and that they appeared to reset their sympathy with some food.  There was also speculation about the causes and solutions.

Recently the New York Times Magazine ran an article that suggests that causation, or at least solution, is simple — glucose.  After first reporting a number of studies on decision fatigue and ego depletion, the article went on:

. . . researchers at [Roy] Baumeister’s lab tried refueling the brain in a series of experiments involving lemonade mixed either with sugar or with a diet sweetener. The sugary lemonade provided a burst of glucose, the effects of which could be observed right away in the lab; the sugarless variety tasted quite similar without providing the same burst of glucose. Again and again, the sugar restored willpower, but the artificial sweetener had no effect. The glucose would at least mitigate the ego depletion and sometimes completely reverse it. The restored willpower improved people’s self-control as well as the quality of their decisions: they resisted irrational bias when making choices, and when asked to make financial decisions, they were more likely to choose the better long-term strategy instead of going for a quick payoff.

The article concludes with some thoughts that should be useful to judges — and to innovators:

“Good decision making is not a trait of the person, in the sense that it’s always there,” Baumeister says. “It’s a state that fluctuates.” His studies show that people with the best self-control are the ones who structure their lives so as to conserve willpower. They don’t schedule endless back-to-back meetings. They avoid temptations like all-you-can-eat buffets, and they establish habits that eliminate the mental effort of making choices. Instead of deciding every morning whether or not to force themselves to exercise, they set up regular appointments to work out with a friend. Instead of counting on willpower to remain robust all day, they conserve it so that it’s available for emergencies and important decisions.

“Even the wisest people won’t make good choices when they’re not rested and their glucose is low,” Baumeister points out. That’s why the truly wise don’t restructure the company at 4 p.m. They don’t make major commitments during the cocktail hour. And if a decision must be made late in the day, they know not to do it on an empty stomach. “The best decision makers,” Baumeister says, “are the ones who know when not to trust themselves.”

I am going to repeat that last line:

“The best decision makers,” Baumeister says, “are the ones who know when not to trust themselves.”

Update from Sept 7:  Judge David Ortley from Montana points out the value of this data for assistaing juries in keeping attention and focus.  He reports that he will make sure that jurors get water and snacks “to ensure they don’t suffer ego depletion.”

According to Adam Liptak, every year more than 75,000 eye witnesses identify suspects in criminal investigations.  Those identifications are wrong about one-third of the time.  There are two recent developments that suggest that courts are on the verge of making significant changes in how eyewitness testing is treated in  criminal cases.

 In State v. Henderson, the New Jersey Supreme Court issued a 134-page decision changing the rules and procedures for eyewitness identification.  The decision is an interesting read and a bit unusual for a court.  “Study after study revealed a troubling lack of reliability in eyewitness identifications,” New Jersey Chief Justice Stuart J. Ralmer wrote.  The New Jersey Justices came to that conclusion based in part on a study of scientific research led by a special master who held hearings and led a review of the literature on the issue.

 “The decision listed factors that judges should consider in evaluation the reliability of a witness’s identification, including whether a weapon was visible during a crime of short duration, the amount of time the witness had to observe the event, how close the witness was to the suspect, whether the witness was under the influence of alcohol or drugs, whether the witness was identifying someone of a different race and the length of time that elapsed between the crime and the identification.”

The second development is the United States Supreme Court decision to hear Perry v. New Hampshire, No. 10-8974.  The question presented in that case is:

Regardless of the outcome in Perry, there is an interesting amicus brief filed by the American Psychological Association which says in part, “research shows that juries tend to ‘over believe’ eye witness testimony.”

SO WHAT SHOULD A JUDGE PROPERLY THINK ABOUT WHEN SENTENCING DEFENDANTS? 

There is an interesting paper that was just published by   Professor Chad Flanders available via SSRN.  (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1920274) Here is the abstract:

      In sentencing offenders, should judges take into account the different costs of possible punishments?  In 2010, Missouri gave sentencing judges, in addition to information about the nature and severity of the offense and the criminal history of the offender, the price tag of various punishments: prison cost about $17,000 a year, compared to probation, which is much cheaper (about $7000 per year).   Judges were allowed, even encouraged, to base their sentences on how much it each sentence would cost the state. The move was a subject of considerable national and local controversy.  This essay represents the first sustained look at Missouri’s new sentencing reform, and argues against the wisdom of allowing judges to consider costs when sentencing.  Although it is too much to say that judges should be categorically prohibited from considering the costs of possible sentences, there are good arguments why cost should be a strongly disfavored category when it comes to criminal sentences.  Desert should always be the primary consideration in sentencing for judges, and while other factors may make a difference at the margins, when judges base sentences on extrinsic, rather than intrinsic features of offenses and offenders, they risk creating unjust variations in sentences.

 THE VIEW POINT ABOUT SENTENCING IS NOT JUST ACADEMIC

 Judge Michael Manners is a long time member of the American Judges Association.  His observation is

 As a judge who regularly sentences defendants in Missouri, the purpose of the guidelines provided by the Missouri Sentencing Commission is to give us information that may be useful to a judge who is trying to figure out the appropriate disposition of a case.  The guidelines are not mandatory, and judges are free to give them the weight they deserve.  In that context, I believe the fiscal impact of a sentencing decision is one piece of information, among many others, that I may find useful in determining the appropriate sentence.  We have an obligation to be responsible stewards of the public purse, and with the fiscal crisis our state faces, I think it would be irresponsible to never consider the cost to our taxpayers of what we do.  In cases involving violent crimes, I give cost no weight; I am far more concerned about the impact of the crime on the victim and the danger to the community posed by violent criminals.  But what about, say, people convicted of possessing (but not selling) drugs?

If a five-year sentence costs the taxpayers $85,000, versus probation which costs the taxpayers$8,500, should we not at least consider cost, along with all other pertinent factors, in deciding what to do?

 Reasonable minds can and do differ among judges about whether you should consider cost or how much a judge should consider available space in a jail or prison.  Taken to the extreme if judges do not consider cost or capacity you end up in the situation like California where the United States Supreme Court ordered the potential release of thousands of inmates because of overcrowding.  http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf

 PRISON OVERCROWDING IS SOMETHING JUDGES WILL NOW HAVE TO THINK ABOUT

This is the link to the United States Supreme Court decision on California’s prison over-crowding. http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf

For years judges have debated how much should they think about prison or jail capacity when sentencing. The United States Supreme Court decision in the California prison overcrowding case at least suggests that we do need to be very conscious about prison or jail capacity.

MORE ON THE RIGHT TO CONFRONTATION COMING THIS FALL                                       

Williams v. Illinois

It appears that the next case in the Melendez-Diaz line will come very quickly. The Supreme Court granted cert today in Williams v. Illinois, No. 10-8505, seeking review of People v. Williams, 939 N.E.2d 268 (Ill. 2010). : The Illinois Supreme Court held that the absent analyst's report was introduced not for the truth of what it asserted but rather "to show the underlying facts and data [the in-court witness] used before rendering an expert opinion in this case.

http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf