Nancy J. King and Ronald F. Wright (Vanderbilt University – Law School and Wake Forest University – School of Law) have posted The Invisible Revolution in Plea Bargaining: Managerial Judging and Judicial Participation in Negotiations (Texas Law Review, Forthcoming) on SSRN.

Here is the abstract:

This article, the most comprehensive study of judicial participation in plea negotiations since the 1970s, reveals a stunning array of new procedures that involve judges routinely in the settlement of criminal cases. Interviewing nearly 100 judges and attorneys in ten states, we found that what once were informal, disfavored interactions have quietly, without notice, transformed into highly structured, best practices for docket management. We learned of grant-funded, problem-solving sessions complete with risk assessments and real-time information on treatment options; multi-case conferences where other lawyers chime in; settlement courts located at the jail; settlement dockets with retired judges; full-blown felony mediation with defendant and victims; felony court judges serving as lower court judges, and more. We detail the reasons these innovations in managerial judging have developed so recently on the criminal side, why they thrive, and why some judges have not joined in. Contrary to common assumptions, the potential benefits of regulated involvement of the judge include more informed sentencing by judges, as well as less coercion and uncertainty for defendants facing early plea offers. Our qualitative evidence also raises intriguing hypotheses for future research.

The issue of when does a lack of speedy trial is not litigated often, but it does occur. Recently, the Supreme Court of Canada overturned  a defendant’s drug possession and trafficking conviction because he had been made to wait too long for his trial. The defendant  had waited three years before his three day trial was held, leading the Supreme Court  to the conclusion that he was denied the right to be tried within a reasonable time in violation of s.11 of the Canadian Chart of Rights and Freedom.

Justice Michael Moldaver, writing for the court, stated that, in considering a legal case, “courts must be careful not to miss the forest for the trees,” and that “[l]ooking at this forest – that is, the overal delay in a case of moderate complexity – [he is] satisfied that the delay was unreasonable.” Adding to the courts rationale was the fact that the defendant  had taken “proactive steps…to have his case tried as soon as possible.”

African-Americans are incarcerated in state prisons at a rate that is 5.1 times that of whites; in five states (Iowa, Minnesota, New Jersey, Vermont and Wisconsin) the disparity is 10 to 1.

In 12 states, more than half the prison population is black, led by Maryland, whose population is 72 percent black. These statistics come out of a new report (available at The Sentencing Project) chronicling racial disparities in criminal justice. According to The Pew Charitable Trusts, Native American girls “have the highest rates of incarceration of any ethnic group. They are nearly five times more likely than white girls to be confined to a juvenile detention facility.”  

From arstechnica, courtesy of NACDL news scan. In part:

A federal appeals court ruled Wednesday that law enforcement can legally scan or swipe a seized credit card—in fact, it is not a Fourth Amendment search at all, so it doesn’t require a warrant.

In the 8th Circuit Court of Appeals’ 15-page opinion, swiping a card does not constitute a physical search, as the magnetic stripe simply contains the same information obviously visible on the front of the card. Plus, the defendant, Eric-Arnaud Benjamin Briere De L’Isle, couldn’t have had a reasonable privacy interest in the card, the court concluded, because he would have tried to use it when he tried to buy something, thereby giving up privacy interests to a third party (the issuing bank).

The Supreme Court gave federal prosecutors a unanimous win this morning through its opinion in US v. Bryant, No.15-420 (S. Ct. June 13, 2016) (available here). The opinion by Justice Ginsburg for the Court gets started this way:

In response to the high incidence of domestic violence against Native American women, Congress, in 2005, enacted 18 U. S. C. §117(a), which targets serial offenders.  Section 117(a) makes it a federal crime for any person to “commi[t] a domestic assault within . . . Indian country” if the person has at least two prior final convictions for domestic violence rendered “in Federal, State, or Indian tribal court proceedings.”  See Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA Reauthorization Act), Pub. L. 109–162, §§901, 909, 119 Stat. 3077, 3084.1 Respondent Michael Bryant, Jr., has multiple tribal-court convictions for domestic assault. For most of those convictions, he was sentenced to terms of imprisonment, none of them exceeding one year’s duration. His tribal-court convictions do not count for §117(a) purposes, Bryant maintains, because he was uncounseled in those proceedings.

The Sixth Amendment guarantees indigent defendants, in state and federal criminal proceedings, appointed counsel in any case in which a term of imprisonment is imposed.  Scott v. Illinois, 440 U. S. 367, 373–374 (1979).  But the Sixth Amendment does not apply to tribal-court proceedings.  See Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U. S. 316, 337 (2008).  The Indian Civil Rights Act of 1968 (ICRA), Pub. L. 90–284, 82 Stat. 77, 25 U. S. C. §1301 et seq., which governs criminal proceedings in tribal courts, requires appointed counsel only when a sentence of more than one year’s imprisonment is imposed.  §1302(c)(2).  Bryant’s tribal-court convictions, it is undisputed, were valid when entered.  This case presents the question whether those convictions, though uncounseled, rank as predicate offenses within the compass of §117(a).  Our answer is yes.  Bryant’s tribal-court convictions did not violate the Sixth Amendment when obtained, and they retain their validity when invoked in a §117(a) prosecution.  That proceeding generates no Sixth Amendment defect where none previously existed.

The Washington Post recently reported:

The Justice Department on Monday said it will train its law enforcement agents and prosecutors to recognize and address how their own implicit bias affects their workplace decisions.

The training will involve some 23,000 agents in the department’s four major law enforcement branches plus 5,800 lawyers in the 94 U.S. Attorney’s offices, Deputy Attorney General Sally Q. Yates said in a memo to employees.

She said that implicit bias “presents unique challenges to effective law enforcement, because it can alter where investigators and prosecutors look for evidence and how they analyze it without their awareness or ability to compensate.”

The training will build on prior efforts across the department to raise awareness of implicit bias, putting a special emphasis on those with the most direct involvement with the criminal justice system, she said.

“These trainings, based on the latest scientific research, will be tailored to your agency and the type of work you do, recognizing, for example, that implicit bias can manifest itself differently for a line agent handling drug cases and a supervisory AUSA [assistant U.S. Attorney] involved in hiring and promotion decisions,” the memo said.

An accompanying fact sheet defines implicit bias as “the unconscious and often subtle associations we make between groups of people and stereotypes about those groups.” 

The full story may be found here.

The Lawblog reports:

The Supreme Court of Georgia has rejected the state’s effort to throw out a lawsuit challenging the right of the Ku Klux Klan to participate in its “Adopt-A-Highway” program.

The  Knights of the Ku Klux Klan applied to participate in the state-run program, which enlists “citizen volunteers” to help remove litter from roadsides. Participants  get their names printed on signs posted along the stretch of “adopted” roadway.

The KKK group proposed adopting a one-mile segment of State Route 515 in Union County. In rejecting the group’s bid, Georgia’s transportation department said it was concerned that “erecting a sign naming an organization which has a long-rooted history of civil disturbance would cause a significant public concern.”

The ACLU of Georgia sued Georgia on behalf of the KKK chapter  claiming the state’s denial of the application violated a “fundamental right to free speech.”

The Georgia Supreme Court’s decision was made on procedural grounds and allows the case to proceed to trial.

From The New York Times:

Supreme Court Justice Sonia Sotomayor wrote eight dissents this term, mostly in criminal cases. Taken together, they offer a window into Sotomayor’s skepticism about the justice system, particularly when it comes to warrantless searches. While other members of the court tend to take police at their word, Justice  Sotomayor has shown a propensity to see these cases from the perspective of the powerless.

 

 

NCSC Provides Procedural-Fairness Training Materials

by Steve Leben

The National Center for State Courts has produced four videos that can be used in training programs for judges and court personnel about procedural fairness. The videos are available at proceduralfairnessguide.org.

The videos explore how procedural-fairness principles may best be deployed in situations faced by judges and court staff. Four video scenarios are provided, and each one includes discussion questions and links to additional materials about the topic.

The four video scenarios are:

• The Multitasking Judge (5:18): A judge conducting a hearing on whether to modify a no-contact order in a pending domestic-violence case also signs a stack of routine orders during the hearing.
• The Counter Clerk and the Upset Litigant (2:42): A mother who has just received a court order taking away her children comes to the Clerk’s front counter for information. The clerk may–or may not–be able to help.
• The Criminal First-Appearance Docket (3:04): A judge must process more than 100 defendants making their first court appearance in criminal cases.
• The Computerized Judge (9:15): A judge hearing a proceeding to terminate a mother’s parental rights sits in a modern courtroom where he accesses the court file on one computer, the court calendar on an iPad, and texts about emergency warrants on an iPhone. This leads to a motion for mistrial based on the judge’s inattention.

These video segments can be used as part of a training program on procedural fairness. Kevin Burke and I have tried some of them out in the past year; they help to crystallize for an audience some of the problems that can come up–and the video scenarios set in the courtroom are all based on real court hearings.

For judges or court staff who may be leading a training program in this area, the National Center for State Courts has also produced guide to each scenario for discussion leaders. Those guides provide additional background about each scenario; they can be accessed with a password that can be requested. (Information about that can be found under the “Leader’s Guide Login” tab at proceduralfairnessguide.org.)

This posting is to prove that all of my knowledge about issues of importance to Canadian judges does not come from Judge Wayne Gorman or AJA President-elect Russ Otter.

Hafeez S Amarshi (Public Prosecution Service of Canada) has posted Facial Attacks on Telewarrants: Failure to Define ‘Impracticable’ on SSRN.

Here is the abstract:

The use of telewarrants is a significant tool for law enforcement in Canada. They are guided by the Criminal Code that lays out specific requirements before police can obtain a search warrant by fax, dispensing with the need for personal appearance before a justice. Telewarrants are most often sought when police seek to execute a warrant after court hours or if there is a particular urgency. Although the courts have strictly read the preconditions outlined in section 487.1(1) as mandatory, the failure of the police to follow those conditions is not necessarily fatal to the admission of evidence by trial courts.