A unanimous New Jersey Supreme Court  issued an interesting sentencing opinion today in NJ v. McFarlane, No. 075938 (April 7, 2016) (available here).  Reading the whole opinion is worthwhile, but you will get the drift about why judges should watch what they say:

Defendant chased an unarmed man, whom he was attempting to rob, and shot him in the back with a revolver.  The victim was alive and gasping for air after he fell to the ground, but defendant robbed him and left him to die.  Defendant was convicted of first-degree murder, among other things, and sentenced to sixty years in prison.

We are called upon to determine whether defendant’s sentence should be vacated and the matter remanded for resentencing before a different judge, because the trial judge remarked during a subsequent, unrelated status conference that he always gives sixty-year sentences to a defendant convicted by a jury of first-degree murder.  While we acknowledge the judge’s subsequent explanation for his remarks, preservation of the public’s confidence and trust in our system of criminal sentencing requires that the matter be remanded for resentencing by another judge of the same vicinage.

It is unlikely that Thomas Jefferson – who was quite a visionary – thought very long about the 4th Amendment and cell phone privacy. After all, it was during the latter part of 1800 that the invention of the electric telephone occurred. 

From time-to-time, Charles Bourseul, Antonio Meucci, Johann Philipp Reis, Alexander Graham Bell, and Elisha Gray, amongst others, have all been credited with the telephone’s invention. The early history of the telephone became and still remains a confusing morass of claims and counterclaims, which were not clarified by the huge mass of lawsuits to resolve the patent claims of many individuals and commercial competitors.

But today, the widespread use of cellphones gives the government a way to locate criminal suspects using a device known as a cell-site simulator. The Maryland Court of Special Appeals recently handed down the first appellate decision on whether and when use of a cell-site simulator to identify the location of a target’s phone is a Fourth Amendment “search.”

The opinion, in State v. Andrews, rules that government use of a cell-site simulator is always a Fourth Amendment search and that it ordinarily requires a warrant.

Although it does not happen frequently, there are occasional legal challenges to residency restrictions of sex offenders. Minnesota Lawyer reports that there are “no” experts who find there is a rational basis for them.

As Minnesota lawmakers mull a bill that would authorize local units of government to enact tough new restrictions on where sex offenders can live, its advocates face one major obstacle:  finding a single authority in the field who believes it’s a good idea.

At least, that’s the opinion of Mitchell Hamline law professor Eric Janus, who has written extensively on sex offender laws and policies.

“I don’t think you can find any experts — or a person who actually deals with sex offenders — who thinks residency restrictions are effective,” said Janus. “It’s amazing and quite uniform. That goes from Departments of Corrections to county attorneys and prosecutors to state task forces. Everybody says it’s a bad idea. It inhibits re-entry. It inhibits stability. It inhibits supervision. And most likely it increases recidivism.”

While that’s been the consensus among researchers for years, Janus noted, more courts across the country are finding reasons to strike down residency restrictions.

“It hasn’t been unanimous, but there’s been a bit of a tipping point. Ten years ago, the courts more or less always upheld these laws. Now they look at them much more carefully,” said Janus, who cited a spate of decisions in the last year from courts in California, New York and Massachusetts.”

Read more here.

“We cannot see the sense in just locking people up for their whole life.”

Few nations punish criminals more harshly than America does, but it doesn’t have to be that way. Germany, for example, focuses far more on the rehabilitation of its offenders than on their punishment, and the result there is a stunning contrast to our system of crime and punishment. The Marshall project urges people to watch a group of American politicians, corrections officials and criminal justice advocates get a first-hand view of Germany’s approach to incarceration.

For more:  CBS News/60 Minutes

Rebecca Silbert, John Hollway and Darya Larizadeh (University of California, Berkeley , University of Pennsylvania Law School – Quattrone Center for the Fair Administration of Justice and University of California, Berkeley) have posted Criminal Injustice: A Cost Analysis of Wrongful Convictions, Errors, and Failed Prosecutions in California’s Criminal Justice System (Berkeley, CA: Chief Justice Earl Warren Institute on Law and Social Policy, 2015) on SSRN.

Here is the abstract:

Mistakes, incompetence and malfeasance in our criminal justice system can have serious and lifelong consequences on the person prosecuted, and can compromise the public’s belief in the system. Although much has been examined regarding small sample sets of individuals for whom there is uniform agreement on innocence, thousands of other defendants are subjected to these flawed prosecutions. This report analyzes a dataset of 692 adult felony criminal cases in California, the majority from 2000 – 2012, wherein the defendant was convicted of felony or felonies, the convictions were reversed, and the charges were either dismissed or the defendant subsequently found not guilty on retrial. The individuals in the study endured hundreds of trials, mistrials, appeals, and habeas petitions and served more than two thousand years in prison and jail, at a total cost to California taxpayers of more than $282 million, adjusted for inflation. The document examines the types of cases susceptible to error, the types of error that exist, and the direct costs of incarceration, representation, and compensation attributable to these cases and their ultimate resolution. In the absence of data relating to the taxpayer costs for trial, the report suggest a methodology to estimate taxpayer costs for cases that proceed to trial and cases that settle prior to trial, grouped by type of crime.

Jacob Gershman had an interesting story in The Wall Street Journal‘s Lawblog:

The “mindfulness” movement has made inroads in the legal industry, particularly drawing in lawyers who say the Zen-inspired blend of meditation, breathing exercises and focus techniques helps combat job stress.

But judges, too, could benefit from mindfulness, says U.S. District Judge Jeremy D. Fogel, director of the Federal Judicial Center in Washington, D.C.

The center, the research and education arm of the federal judiciary, has posted online a paper he wrote encouraging fellow jurists to give the practice a shot.

“While much of the discussion of mindfulness in relation to judges so far has focused on health and wellness, mindfulness also has obvious implications for the actual work that judges do,” writes Judge Fogel, a Clinton appointee who heard case in San Jose before joining the center.

For example, he says, it can help trial-level judges summon more attention to the duller, more routine parts of their job, like hearing guilty pleas. He writes:

Mindfully taking a plea involves approaching each plea as a new and unique situation. The judge notices consciously things that otherwise might tend to be noticed only in passing, if at all: the defendant’s tone of voice and body language, the way the defendant and counsel appear to be communicating (or not communicating) with each other, the defendant’s physical appearance, whether friends or family members of the defendant (or victims) appear to be in the courtroom, and so on. None of these things necessarily changes the outcome of the process, yet taken as a whole they can help the judge learn more about the defendant and assess more fully whether the defendant is entering a knowing and voluntary plea. And perhaps just as importantly, the attentiveness shown by the judge is communicated to the defendant and everyone else who is present.     

The American Judges Association has historically had a strong Kansas membership. Two of our past AJA Presidents are sitting judges in Kansas. So, this story in The New York Times about Kansas courts ought to trouble not just American Judges Association members, but everyone.

The story begins:

TOPEKA, Kan. — Washington is locked in partisan warfare over control of the Supreme Court. But it is hardly the only place. Look at the states, where political attacks on judicial decisions are common and well-financed attack ads are starting to jar the once-sleepy elections for State Supreme Court seats.

Nowhere is the battle more fiery than here in Kansas. Gov. Sam Brownback and other conservative Republicans have expressed outrage over State Supreme Court decisions that overturned death penalty verdicts, blocked anti-abortion laws and hampered Mr. Brownback’s efforts to slash taxes and spending, and they are seeking to reshape a body they call unaccountable to the right-tilting public.

The full story can be found here.  

It is not easy to be in public life in any of the branches of government. We serve at a time when appreciation for public service is not particularly widespread. For judges, this is a particular challenge. For the most part, judges are not political people. They listen, think, reflect, rule, and don’t seek limelight. Things like what is happening in Kansas are not peculiar to that state, as the New York Times article points out, but frankly “misery loves company” is hardly effective. So, is there something an AJA member can do? Send an e mail to judges you know in Kansas…and judges you don’t know…and simply say this, “Hang In There, from a fellow judge.” 

A 10-minute training video for judges (available here) is the centerpiece of an upcoming toolkit designed to increase awareness of implicit bias and provide positive steps to bias-proof the justice system. Featuring noted judges, law professors and implicit bias experts, the video is part of ABA President Paulette Brown’s Diversity and Inclusion 360 Commission’s effort to bring together the finest minds to ensure a just system for all Americans.

Achieving excellence as a judge is not easy.  What is easy is to get so consumed in the need to get the cases done, get the orders issued, and deal with all the tasks we have, that we put off self-reflection.

Take ten minutes today to watch the video. It may be the best 10 minutes you will spend.

When the judge, prosecution and defense all agree that a sentence is too harsh or that they made a mistake, one might think that the conditions are ripe to just fix it. The legal profession has at its core a lot of lawyers who are great problem solvers.  But, as a story in The Washington Post illustrates, perhaps it is not so simple:

The judge who sentenced Raymond Surratt Jr. to life in prison didn’t think he deserved that tough a penalty. His attorneys said it was based on bad math. Even the government lawyers who prosecuted him say the sentence was a mistake.

Yet they all also agree Surratt might stay locked up forever.

How that came to be is at the heart of arguments to be heard Wednesday when the U.S. Court of Appeals for the 4th Circuit takes up Surratt’s case, which turns on how many times inmates can appeal a sentence, particularly if the law becomes more lenient after they are sent to prison.

“Raymond Surratt will die in prison because of a sentence that the government and the district court agree is undeserved and unjust,” a judge wrote last summer, siding with Surratt in a divided panel decision from the same court.

The judges who ruled against him in the 2-to-1 decision are also sympathetic. They just don’t think the courts have the power to do anything about it.

The full story is here. 

Almost all of the discussion about police body cameras has occurred among the broader police community (so far no one is suggesting judges have body cameras on them while in court).  The use of police body cameras will inevitably come up in court, and so this article by Professor Bryce Clayton Newell (Tilburg University – Tilburg Institute for Law, Technology, and Society (TILT)) Collateral Visibility: Police Body Cameras, Public Disclosure, and Privacy (Indiana Law Journal, Forthcoming) on SSRN seems interesting.

Here is the abstract:

Law enforcement use of body-worn cameras has recently become a subject of significant public and scholarly debate. This article presents the findings from an empirical examination of the legal and social implications of body-worn camera adoption by two police departments in Washington State. In particular, this study focuses on the public disclosure of body-worn camera footage under Washington State’s Public Records Act (PRA), provides an analysis of state privacy and access to information law, and presents empirical findings related to officer attitudes towards — and perceptions of — the impact of these laws on their work, their own personal privacy, and the privacy of the citizens they serve. The law in Washington State requires law enforcement agencies to disclose substantial amounts of footage, and options for withholding footage based on privacy grounds are very limited under the PRA and recent Washington State Supreme Court case law. Additionally, broad public records requests for body-worn camera footage have posed significant problems for civilian privacy. Police officers report strong concerns about public disclosure of their footage, largely because of the potential for such footage to impact civilian privacy interests, and officers also report high levels of disagreement with the current requirements to disclose most footage to any member of the public. However, officers are supportive of limited access policies that would allow individuals connected to an incident to obtain footage. This article concludes by making a normative argument for restricting public access to some body-worn camera footage on privacy grounds while still preserving adequate space for robust civilian oversight and police accountability.