Judge Richard A. Posner has an article titled, “What Is Obviously Wrong With the Federal Judiciary, Yet Eminently Curable, Part I.“   Here is an except:

Law is wedded to the past as no other profession is. You don’t hear doctors bragging about thirteenth-century medicine, but you hear lawyers bragging about the thirteenth-century Magna Carta (without even understanding it – they think it guaranteed the ancient liberties of the English, whereas in fact it guaranteed just the rights of barons, and in any event was soon annulled, later restored, and eventually demoted to the purely symbolic).

Another way to characterize the legal profession in all three of its major branches – the academy, the judiciary, and the bar – is that it is complacent, self-satisfied. Chief Justice Roberts in his annual reports likes to describe the American legal system as the envy of the world. Nonsense. The system has proved itself ineffectual in dealing with a host of problems, ranging from providing useful (as distinct from abstract theoretical) legal training at bearable cost to curbing crime and meting out rational punishment, providing representation for and protection of the vast number of Americans who are impecunious or commercially unsophisticated (so prey to sharpies), incorporating the insights of the social and natural sciences (with the notable exception of economics, however), curbing incompetent regulatory agencies such as the immigration and social security disability agencies, and limiting the role of partisan politics in the appointment of judges. The system is also immensely costly (more than $400 billion a year), with its million lawyers, many overpaid, many deficient in training and experience, some of questionable ethics.” While Judge Posner writes about the federal courts the provocative observations  he writes of should make all judges think about how we can improve our judicial systems. 

Thanks to this post at the Collateral Consequences Resource Center, US District Judge John Gleeson has issued an  opinion concerning the collateral consequences of a federal criminal conviction and what he thinks he can do as a federal judge in response.  Here is how the 33-page opinion in  Doe v. US, No. 15-MC-1174 (EDNY March 7, 2016)(available here) gets started:

On June 23, 2015, Jane Doe moved to expunge a now thirteen-year-old fraud conviction due to its adverse impact on her ability to work.  The conviction has proven troublesome for Doe because it appears in the government’s databases and in the New York City Professional Discipline Summaries.  In other words, the conviction is visible to a prospective employer both as the result of a criminal background check and upon examination of her nursing license.  Numerous employers have denied Doe a job because of her conviction.  On more than one occasion, she was hired by a nursing agency only to have her offer revoked after the employer learned of her record. Despite these obstacles, Doe has found work at a few nursing companies, and she currently runs her own business as a house cleaner.  Doe’s two children help to support her, and during periods of unemployment, her parents have also assisted her financially.

The government opposes Doe’s motion, contending that federal district courts do not have subject matter jurisdiction to expunge a conviction on equitable grounds.  The Second Circuit has ruled, however, that “[t]he application of ancillary jurisdiction in [expungement] case[s] is proper.” U.S. v. Schnitzer, 567 F.2d 536, 538 (1977), cert. denied, 435 U.S. 907 (1978).  Accordingly, I have weighed the equities in this case, which are grounded in my understanding of Doe’s criminal conviction and sentence; I was the judge who presided over her jury trial and imposed punishment.

I conclude that while Doe has struggled considerably as a result of her conviction, her situation does not amount to the “extreme circumstances” that merit expungement.  See id. at 539.  That said, I had no intention to sentence her to the unending hardship she has endured in the job market.  I have reviewed her case in painstaking detail, and I can certify that Doe has been rehabilitated.  Her conviction makes her no different than any other nursing applicant.  In the 12 years since she reentered society after serving her prison sentence, she has not been convicted of any other wrongdoing.  She has worked diligently to obtain stable employment, albeit with only intermittent success. Accordingly, I am issuing Doe a federal certificate of rehabilitation.  As explained below, this court-issued relief aligns with efforts the Justice Department, the President, and Congress are already undertaking to help people in Doe’s position shed the burden imposed by a record of conviction and move forward with their lives.

Among judges and many others, mandatory minimums are anathema. The American justice system traditionally permits judges to weigh all the facts of a case when determining an offender’s sentence.  But in the 1970s and 1980s, the U.S. Congress and many state legislatures passed laws that force judges to give fixed prison terms to those convicted of specific crimes, most often drug offenses. Over the last few years the push back against this approach to sentencing has increased, but apparently not in Iowa.

The DesMoines Register reports: 

A bill passed by the Iowa House Tuesday would set mandatory minimum sentences for repeat domestic abuse offenders.

The bill, House File 2399, would require those convicted three separate times to serve at least 85 percent of their sentence, regardless of good conduct while behind bars, said Rep. Zach Nunn, R-Bondurant.

“(For those convicted three times), a mandatory sentence is not only recommended, but is just,” Nunn said. “And hopefully for those survivors it affords them the ability to start to re-frame their life, to move forward, to recognize that they don’t live in the victimhood of fear. For when they think their offender is going away for three years and is out 10 months later, they are right back in that cycle of violence that has crippled their life.”

That means those convicted on three separate charges of domestic abuse assault would spend at least three years in prison, for example. And those convicted on their third charge of first-degree harassment would spend at least one year in prison.

The legislation also would expand the use of global position monitoring for those convicted of domestic abuse and create rehabilitation options for those in prison.

The bill was opposed by a handful of legislators who said they disagree with using mandatory minimums.

Rep. Mary Wolfe, D-Clinton, noted the bill is opposed by the Iowa Coalition Against Domestic Violence, because they say lengthening prison sentences won’t necessarily help keep women safe.

“We’ve cut funding for these kinds of programs for years and now we’re telling them that we don’t care what you want, we don’t care about your expertise and what you know through research and study, we know what’s best for you and this is the way we’re going to do it,” Wolfe said. “So I find that verging on offensive.”

James J. Duane 

Regent University – School of Law

2015

Stanford Journal of Criminal Law and Policy, Vol. 3, p. 1, 2015

Abstract:      

This year marks the fiftieth anniversary of the Supreme Court’s landmark ruling in Griffin v. California, 380 U.S. 609 (1965), which forbids the drawing of adverse inferences from a criminal defendant’s decision to exercise his Fifth Amendment privilege at trial because that would unfairly penalize the defendant for exercising a constitutional privilege. But the decision did not immediately answer a host of obvious questions as to how far its logic should extend to other arguably analogous situations, such as defendants who exercise the privilege during pretrial interrogation, at a civil trial, or at sentencing. Only seven years later, the Federal Rules of Evidence Advisory Committee drafted and approved a proposed evidence rule that would have extended Griffin essentially without limitation, but the rule was rejected by Congress, which left the matter to be worked out by the courts. 

This Essay examines how the law was taken in one direction by the Supreme Court for the first decade after Griffin, and how those early precedents were severely cut back over the next four decades after conservatives took control of the Court and started limiting those earlier rulings, often by announcing unprincipled distinctions that were the only possible way to get around those precedents. The Essay shows how the Court’s overt hostility toward those precedents has precisely mirrored the sort of judicial reasoning that Justice Scalia once mockingly compared to judges who see themselves and previous members of the Court as contestants in a game of Scrabble or football — and how this process has created a body of legal doctrine that it is utterly chaotic and unprincipled.

For a long time courts throughout the country have taken pride in the amount of fines and fee revenue collected. The National Center for State Courts’ Courtools #7 identified collection of monetary penalties as a core performance measure of trial courts. Yet many have known — and the situation in the Ferguson Missouri court illustrated — that there is a dark side to the fines and fees courts have become increasingly dependent upon.

Constitutional issues were ignored and fairness to poor people was not always paramount.  Now there is a new wave of concern which is illustrated by a story in today’s issue of The New York Times, which begins:

The Justice Department on Monday called on state judges across the country to root out unconstitutional policies that have locked poor people in a cycle of fines, debt and jail. It was the Obama administration’s latest effort to take its civil rights agenda to the states, which have become a frontier in the fight over the rights of the poor and the disabled, the transgender and the homeless. In a letter to chief judges and court administrators, Vanita Gupta, the Justice Department’s top civil rights prosecutor, and Lisa Foster, who leads a program on court access, warned against operating courthouses as for-profit ventures. It chastised judges and court staff members for using arrest warrants as a way to collect fees. Such policies, the letter said, made it more likely that poor people would be arrested, jailed and fined anew — all for being unable to pay in the first place.

Continue reading here.

The cost of injustice. Flawed convictions cost California taxpayers more than $282 million from 1989 to 2012, and cost nearly 700 people hundreds of years in prison for crimes they either did not commit or that could not be proven beyond a reasonable doubt. Failed homicide prosecutions, by far, accounted for most of the money. Read The Huffington Post’s detailed piece on this issue.

And for a related piece, read the report  from the Berkeley School of Law that uses a new methodology to track wrongful convictions. 

Much has been written about the vanishing jury trial in civil cases, but now there is a concern about what the effect of the vanishing jury trial means for the criminal justice system.

William T. Pizzi has posted The Effects of the ‘Vanishing Trial’ on Our Incarceration Rate on SSRN.

Here is the abstract:

This article focuses on the relationship between two troubling features of the American criminal justice system over the last forty years: the steep rise in our incarceration rate and the sharp decline in the number of criminal trials. The article contends that the lack of a strong trial system for routine cases pushes the incarceration rate higher.

To provide perspective on our problems, the article looks at the criminal trial systems in Canada and England and shows how the availability of a nonjury trial model for misdemeanors and most felonies encourages prosecutors to keep charges low by offering advantages to both prosecutors and defendants if they opt for the nonjury trial model. There is thus not the need for the extreme pressures one sees exerted on defendants in the United States to force them to plead guilty.

This article argues that it was a mistake for the Supreme Court to insist that trials for misdemeanors and most felonies must be jury trials. The result is a worse world for defendants as plea bargaining has come to dominate so completely that trials no longer serve their function as a check on the quality and quantity of cases being filed.

The article concludes that we will struggle to lower our incarceration rate significantly until we face up to the problems inherent in identifying fair trials with jury trials. It is a mistake other common law countries have not made and they are better for it.

Increasingly, the court community is coming to realize that relying on fines and fees is not good for the system of justice – and as illustrated by the situation in Ferguson Missouri, can even be destructive.

This is further illustrated in South Carolina, where the Chief Justice “asked legislators . . . to reduce the courts’ dependence on fines and increase judges’ salaries.”

“I remain deeply concerned by the heavy dependences on fines and fees” to pay for court operations, Chief Justice Costa Pleicones said during his first and only State of the Judiciary address to the Legislature.

Pleicones was sworn in as chief justice last month, becoming the high court’s first new leader since 2000. But he turns 72 next week and therefore must retire at year’s end.

He told legislators he realizes they aren’t going to overhaul court funding anytime soon. “But I suggest you begin the dialogue,” he said. The court system rests on an “unstable method of funding.”

Last year, fines and fees collected by the courts totaled $96 million, of which the judicial branch received $14.5 million, Pleicones said. The Legislature provided the courts an additional $50 million through state taxes.

Pleicones also asked the Legislature for $5.5 million to fund a 20 percent salary increase for more than 100 judges. Current salaries risk discouraging the state’s most qualified lawyers from seeking a judicial seat, he said.

“The evidence is irrefutable that time for a readjustment is merited and long overdue,” he said. “Think of it as deferred maintenance.”

By law, judges’ salaries are downward adjustments of the chief justice’s salary. Pleicones’ salary is $151,300, and associate justices on the state Supreme Court make $144,100.

Pleicones said the chief justice should earn $199,000, according to recommendations of an inflation-adjusted study of judicial salaries. But the judicial branch is instead seeking a $181,000 salary for his job, which would raise associate justices’ salaries to $173,000 and circuit judges’ salaries to $166,000, he said after his speech. 

Keep reading here.

After the retirement of Justice Lewis Powell, President Ronald Reagan nominated Justice Anthony Kennedy on Nov. 30, 1987. Reagan had 14 months left in office and a Democratic Senate, which confirmed Kennedy in early February 1988. President Barack Obama has 11 months left in his term and a Republican-controlled Senate. Justice Kennedy was confirmed even though President Reagan had only three months more left in his lame-duck term than Obama. So does less than three months make that much difference?

Not much thought was given to this history given the rapid reaction to Justice Antonin Scalia’s death. Before his body reached the funeral home, the chorus was saying that Obama need not submit a nominee. Sen. Mitch McConnell and others expressed their determination not to give Obama the opportunity to nominate anyone. It would have been perfectly understandable for McConnell to have said, “Finding someone who is acceptable to both political parties is paramount. It can be done as illustrated by the fact that Justice Scalia was confirmed by the United States Senate unanimously. It will be hard, but we owe it to the nation and the Supreme Court to try.” But that is not what he said.

President ‘shall nominate’

The U.S. Constitution states that the President “shall nominate, and by and with the Advice and Consent of the Senate (appoint) … Judges of the Supreme Court.” Justice Scalia believed that the U.S. Constitution is not a document that is living and breathing. For conservatives, Scalia is an icon. And so perhaps reflecting on what he may have said about the process of finding a replacement for him is worthwhile. He explained how he looks at the Constitution:

The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. … I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.

Before those who admire Scalia join the stampede to just put off the decision on his replacement for the rest of this Supreme Court term and most if not all of the next term perhaps they should answer the question of how Justice Scalia would rule on the obligation under the Constitution of a president to nominate a justice and the Senate to give its advice and consent? “I would rather do it later” is not in the text of the Constitution.

For the rest of the article, go here.

When to declare a mistrial is not always a clear cut decision.

Mistrials inevitably raise the prospect that double jeopardy may prevent a second trial.  If the motion for a mistrial is made by the defense, many appellate courts find the defense waived a double jeopardy claim.  When the motion is made for a mistrial by the prosecution, there is real risk that double jeopardy will prevent a second trial.

There are two important caveats:  first, the double jeopardy clause of the United States Constitution is not a mere technicality.  It is a fundamental feature of the American legal system.  Second, being consciously aware that manifest necessity is the current standard for finding a mistrial can permissively allow a second trial.  The judge died during trial….one of the lawyers had a heart attack….are pretty easy to understand.  The ABA Journal’s recent report illustrates the stakes in these decisions:

The Georgia Supreme Court on Monday ruled that an accused killer can’t be retried because the trial judge mistakenly declared a mistrial after the defense gave its opening statement.

The court said that requiring the defendant, Geary Otis, to be retried would violate the ban on double jeopardy, reported the Associated Press, the Fulton County Daily Report (sub. req.) and AJC.com.

At a news conference on Tuesday, family members of the murder victim joined with Atlanta’s mayor and the Fulton County district attorney to urge the supreme court to reconsider its opinion, according to the Fulton County Daily Report.

“We can’t let Geary Otis get away with this,” said Atlanta Mayor Kasim Reed, who practiced law before taking office. “Would you want a technical error to allow someone who stabbed your loved one to walk away without consequences?”

Otis was accused of attacking two residents of an independent living facility with a knife in June 2013, killing a 75-year-old woman and injuring a 71-year-old man. Police had to use a stun gun to subdue Otis, who was 64 at the time.

During opening arguments in Otis’ April 2014 trial, his defense lawyer argued her client had “just snapped” and asked jurors to consider that mental illness comes in many forms. Prosecutors objected because the defense had not given notice of an insanity defense. The defense lawyer said no notice was required because she intended to rely on the testimony of lay witnesses rather than independent experts.

Judge Ural Glanville declared a mistrial over the defense lawyer’s objections and rescheduled a new trial to begin in two weeks.

The Georgia Supreme Court said the defense lawyer was right. Notice of an insanity defense is required only when expert testimony will be offered, the court said.

When a mistrial is improperly declared over the protest of the defense, the accused cannot be retried, the court said.