Criminal Law Library Blog

In his August 31, 2010 New York Law Journal article, Court Rule Altered to Buttress E-Discovery; I-Filing Advances, Joel Stashenko discusses the amended Uniform Rules of Trial Courts of the State of New York as an effort to insure that lawyers keep "up to speed" regarding their clients' records at the early stages of discovery. The amended rules were published August 18 and went into effect immediately, having been approved beforehand by Chief Judge Jonathan Lippman and the presiding justices of the four appellate division departments.

Much of this activity has been influenced by a New York court system report, Electronic Discovery in the State of New York, published in February 2010. The key recommendations of that Report includes: establishing an e-discovery work group; improving the preliminary conference; more e-discovery programs in Education and Training; more court attorney referees serving as e-discovery specialists, establishing an institutional presence at the Sedona Conference; and working harder to improve the quality of E-Discovery practice.

On the second front mentioned in Mr. Stashenko's article, electronic filing of litigant papers is said to be proceeding in New York at a deliberative pace. While more than10,000 lawyers registered for New York's electronic filing system in 2009, compared to only 300 in 2002, there is , as Chief Administrative Judge Ann Pfau has observed, "there is a long way to go: before e-filing and E-Discovery are required in all New York Courts. After 11 years of experimentation with electronic filing, New York has accorded permanent status to the effort and is now beginning to institute mandatory e-filing in limited areas.

A new study of judicial independence from the Brennan Center for Justice at the New York University Law School

Authored by James Sample, Adam Skaggs, Jonathan Blitzer, Linda Casey
Edited by Charles Hall

Foreword by Retired Justice Sandra Day O'Connor

August 16, 2010.

This Report has been out less than one week and is already receiving wide attention.

From the Executive Summary

State judicial elections have been transformed during the past decade. The story of America’s 2000–2009 high court contests—tens of millions of dollars raised by candidates from parties who may appear before them, millions more poured in by interest groups, nasty and misleading ads, and pressure on judges to signal courtroom rulings on the campaign trail—has become the new normal.

For more than a decade, partisans and special interests of all stripes have been growing more organized in their efforts to use elections to tilt the scales of justice their way. Many Americans have come to fear that justice is for sale. Unlike previous editions, which covered only the most recent election cycle, this fifth edition of the “New Politics of Judicial Elections” looks at the 2000–2009 decade as a whole. By tallying the numbers and “connecting the dots” among key players over the last five election cycles, this report offers a broad portrait of a grave and growing challenge to the impartiality of our nation’s courts. These trends include:

➜➜The explosion in judicial campaign spending, much of it poured in by “super spender” organizations seeking to sway the courts;

➜➜ The parallel surge of nasty and costly TV ads as a prerequisite to gaining a state Supreme Court seat;

➜➜ The emergence of secretive state and national campaigns to tilt state Supreme Court elections;

➜➜ Litigation about judicial campaigns, some of which could boost special-interest pressure on judges;

➜➜ Growing public concern about the threat to fair and impartial justice—and support for meaningful reforms.

Foreword by Retired Justice Sandra Day O'Connor
"This report, the latest in a series begun in 2000, provides a comprehensive review of the threat posed by money and special interest pressure on fair and impartial courts. . . . We all have a stake in ensuring that courts remain fair, impartial, and independent. . . . For 10 years, the New Politics reports have played a leading role in documenting the growing threat to the credibility of our courts. I applaud the authors . . . for working to protect the courts that safeguard our rights."
— Sandra Day O'Connor

Robert Richards, Editor in Chief of the VoxPopuLII Blog at the Legal Information Institute at Cornell has just announced an important and helpful posting "IT and the Access to Justice Crisis" by Judge Dory Reiling, Vice President of the Amsterdam District Court on that blog.

Mr. Richards writes: "Judge Dory Reiling, mag. iur., Ph.D., Vice President of the Amsterdam District Court, has posted 'IT and the Access to Justice Crisis,' http://j.mp/cKmHz5 , on the VoxPopuLII Blog, http://blog.law.cornell.edu/voxpop/ , published by the Legal Information Institute at Cornell University Law School.

In her post -- which is based on a chapter in her recent book entitled Technology for Justice: How Information Technology Can Support Judicial Reform, http://j.mp/cpG7OY -- Judge Reiling discusses what we currently know about citizens' information needs and behavior respecting access to civil justice. Judge Reiling describes the information that citizens need to resolve disputes outside of the legal system -- whether without a third party or via alternative dispute resolution (ADR) -- as well as the information they need in order to proceed pro se via the civil justice system. Judge Reiling then discusses how technology can be used to encourage dispute resolution outside of formal legal proceedings, as well as to improve outcomes for self-represented litigants in the civil justice system.

Judge Reiling's post should be of particular interest to the access to justice / pro bono community, court administrators, alternative dispute resolution professionals, developers of judicial and access-to-justice information systems, and to those who provide or seek to improve legal information services to the public."

-- Robert Richards
Editor in chief, VoxPopuLII

NOTE: This posting includes Professor Little's perspective on City of Ontario v. Quon, the cfase whch includes interesting discussion about whether public employees have a reasonable expectation of privacy regarding text messages went on government owned equipment during working hours.

A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

This summary has been created by Professor Rory K. Little (littler@uchastings.edu), U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. It represents his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

The CJS hopes these summaries will be helpful to you, because they are different from the average news or blog account, in at least three ways: first, a detailed account of the rationale of ALL the opinions issued in a case, including nuances found in separate concurring and dissenting opinions; second, an account of the decision that is essentially “neutral” -- that is, not really a “perspective” in the sense of the author’s personal opinions, but rather a straightforward account that can be relied upon by lawyers of all stripes; and then third, a bit of “inside baseball” analysis of some of the twists or nuances that are not apparent in the opinion.

U.S. Supreme Court Summaries – Criminal Cases

Two decisions: June 18, 2010

Dillon v. United States;

City of Ontario v. Quon

On June 17, the Court issued two decisions related to criminal law. In Dillon, the majority’s opinion presents what would appear to be a straightforward account of federal sentencing statutes and guidelines to affirm an old, 23-year guidelines sentence. But Justice Stevens in dissent raises much larger separation-of-powers questions, post-Booker, to challenge (on very sympathetic facts) “what I have come to view as an exceptionally, and often mindlessly, harsh federal punishment scheme.”

Meanwhile, in Quon the Court addresses, but then avoids deciding, the sensitive issue of expectations of privacy regarding electronic text messaging. In a fact-specific setting of a law enforcement officer using his government-provided pager during work hours to send personal messages, the Court rules that an employer review of the messages for budgetary reasons is “reasonable” under the Fourth Amendment.

1) FEDERAL SENTENCING (upholding mandatory limit on sentence reductions for new, retroactive guidelines).

Dillon v. United States, No. 09-6338, 130 S.Ct. ___ (June 17, 2010), affirming 572 F.3d 146 (3d Cir. 2009).

Holding (7-1, Alito not participating, presumably because it is an old case from his Circuit): The Sentencing Commission policy statement that limits the amount of reduction a defendant can receive, when the Commission later revises a guideline and makes it retroactive, is not made “advisory” by Booker.

Facts: [Ed. Note: There are always more ways than one to present “facts.” One way is to start with the “legal facts” (statutes and such); another is to start with the defendant’s personal facts. The majority takes the former approach, but I’ll try the latter here. Most of the sympathetic facts come from Justice Stevens’ dissent. See if it makes a difference to you.]

Dillon was convicted in 1993, when he was 23, of a crack cocaine offense and a § 924(c) firearms offense, which by statute required a mandatory minimum of 15 years total (10 for the crack, consecutive 5 for the gun). The Sentencing Guidelines, however, recommended a higher 262-327 months for the crack offense, based on the amount of drugs and criminal history (Dillon had two prior misdemeanor convictions). The sentencing judge gave the bottom of the range (22 years), plus 5 years for the gun, for a total of 322 months, and the Third Circuit affirmed. But at Dillon’s original sentencing, the district judge said “I personllay don’t believe that you should be serving 322 months, but I feel I am bound by those Guidelines. ….I don’t think they are fair.” The Guidelines are “entirely too high for the crime committed,” and a five-year sentence would be appropriate, said the judge.

Of course, two decades later in Booker the Court made the guidelines “advisory, and in 2007 in Kimbrough the Court ruled that disagreement with the crack guidelines could support a “reasonable” below guidelines sentence. If Dillon had received the mandatory minimum 15 years, he would be out of prison today. Meanwhile, in prison Dillon has been a pretty extraordinary “good” prisoner. He has participated in the development of youth outreach programs, with two different universities, to steer youth away from drugs and violence. “Without his insight and advice, our project would not have succeeded and grown,” said one program coordinator. Dillon also completed a GED degree, taken vocational classes, “and has job prospects awaiting him upon release.”

After Kimbrough, the Sentencing Commission amended the Guidelines to reduce the crack offense levels by two points, and ordered that the amendment be retroactive. But the Commission also issued a “policy statement” directing that any reduction must not be “less than the minimum for the amended guideline range.” The amended Guidelines that permit a retroactive reduction for crack offenses are an exception to the normal statutory rule that a federal court “may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c).

Dillon moved for the sentencing reduction, and the district judge reduced his 262 months for crack to 210 months, the bottom of the amended range. But Dillon asked the court to go lower, arguing that the guidelines were now advisory under Booker and that the new sentencing proceeding permitted the court to sentence freely under Kimbrough and § 3553. The district court, however, found no authority permitting it to ignore the mandatory limit on the sentencing reduction found in the policy statement, and the Third Circuit affirmed.

Sotomayor (joined by all Justices except Stevens, who dissents, and Alito who did not participate in the review of his old Circuit’s decisions): The limited sentencing reduction permitted for a retroactive amended Guideline is not a general “resentencing,” so the wide-open, discretionary sentencing authority under § 3553 and Booker does not come into play. Congress has made it clear that an imprisonment sentence may not be modified except in limited circumstances, and the exception for reductions when Guidelines are amended is “only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Section 3582(c) authorizes a reduction only “if such a reduction is consistent with applicable policy statements.” Here, the policy statement limits the reduction to the bottom of the amended guideline range. Booker does not require or permit us to eliminate the mandatory limits on reductions that Congress and the Commission have announced. (“We do not respond” to Justice Stevens’ separation of powers discussion, which was not briefed and is not within the question presented here.) There is no constitutional right to a reduction, and the reduction proceeding itself does not implicate Booker or Apprendi, because the judge in a reduction proceeding only exercises discretion within the statutory range. “None of the confusion or unfairness that led us” to the Booker remedy is present here. The constitutional errors, if any, in Dillon’s original sentencing (i.e., basing the Guidelines sentence on facts not found by the jury such as the amount of drugs, and thinking that the Guidelines were mandatory) “are outside the scope of the [sentencing reduction] proceeding.”

Stevens dissenting: “Neither the interests of justice nor commonsense” support this result. “I thought Booker had dismantled the mandatory Guidelines regime. The Court ought to finish the job.” Moreover, the idea that the Commission can, in a mere “policy statement,” mandatorily order district courts in this instance, despite Booker, is of “dubious” constitutionality -- Justice Scalia’s criticisms of the Commission on separation of powers grounds in Mistretta might well apply here. “I do not think the Commission’s authority encompasses the ability to promulgate binding guidelines via policy statements.” [Ed. Note: However, neither Justice Breyer, who wrote Booker, nor Justice Scalia, who dissented in Mistretta saying the entire Sentencing Commission was unconstitutional on separation of powers grounds, joins or comments on Justice Stevens’ discussion of those two cases here.]

Although I joined the majority in Mistretta, “it became apparent during the next two decades” that the mandatory guidelines “produced a host of excessively severe sentences” and also deprived defendants of “long-settled constitutional protections” (thus leading to Apprendi and Booker). And although I dissented in Booker, the fact that Congress has allowed it to stand “demonstrates not only that Justice Breyer is more clairvoyant than I … but also that Congress has acquiesced to a discretionary Guidelines regime.” We should not leave in place the “narrow sliver” of mandatoriness in the policy statement at issue here. Finally, the Commission makes the “subtle threat” that if we remove its limit on sentencing reductions, it won’t make amended Guidelines retroactive in the future. We ought not be influenced that in our decision here, and it seems unlikely.

2. FOURTH AMENDMENT (reasonableness of searching electronic text messages of public employees sent on government–owned equipment during work hours)

City of Ontario, California, v. Quon, No. 08-1332, 130 S.Ct. ____ (June 17, 2010), reversing 529 F.3d 892 (9th Cir. 2008).

Holding (9 (7-1-1) to 0): Without deciding generally whether public employees have a reasonable expectation of privacy in their text messages sent on government-owned equipment during work hours, the review of Quon’s messages here, for a legitimate work-related purpose and not excessive, was reasonable under the Fourth Amendment.

Facts: Quon’s city police department employer gave him a text-messaging device for use in his work as a member of the SWAT team. The city made it clear that texts could be monitored and that he should have no expectation of privacy regarding them. However, when the city became concerned that it was paying too much for “overages” on its plan, Quon’s supervisor told Quon that, if Quon paid for the overages, then his texts would not be “audited.” Quon then started paying monthly overage charges himself, and says this created a “reasonable expectation of privacy” that his messages would not be reviewed. Later, however, the city became tired of being a “bill-collector” and decided to audit the texts to see whether the level of messages paid for was adequate for the policing job. The city restricted its review to text messages sent during work hours, and only for two months. Still, it found that Quon was sending lots of texts for personal reasons (they revealed his romantic, and sometimes sexually explicit, messages), and he was disciplined. Officer Quon and other people he messaged with sued, alleging their Fourth Amendment rights were violated by this government “search” of their messages. The district court rejected the claim after a jury found that the audit was conducted for a legitimate government purpose, but the Ninth Circuit reversed and remanded, finding that “less intrusive means” could have been used to achieve that purpose.

Kennedy (for all Justices except Scalia in one Part): This case “touches issues of far-reaching significance,” and we “must proceed with care when considering the whole concept of privacy expectations in” modern electronic mechanisms. “It is not so clear that courts are at present on so sure a ground” so as to opine authoritatively on these issues. “Prudence counsels caution before the facts of this case are used to establish far-reaching premises.” (The Court cites to Olmstead, which early on held that wire-tapping was not a constitutional issue, which took some 45 years to reverse in Katz (1967).)

Meanwhile, this Court has disagreed as to the proper analysis for workplace Fourth Amendment concerns. In O’Connor v. Ortega (1987), the Court agreed that a worker in a government office does not necessarily lose all privacy expectations. However, only a plurality said that “operational realities of the workplace” must be examined. Justice Scalia rejected this idea, and said that “reasonable” workplace searches should simply be upheld. We do not resolve this dispute here. Even assuming that Quon had a reasonable expectation of privacy in his text messages here, we think the review of his messages was reasonable. It was for a “legitimate work-related” purpose, and it was not excessive. Quon had only a “limited expectation of privacy” at best, because “a reasonable employee” in a law enforcement job would know that his messages might be reviewed. [Ed note: Here the Court appears to be answering the questions, at least in part, that it said it would not answer, above.] It was error for the Circuit to rule on a “less intrusive means” analysis, because a hindsight court “can almost always imagine some alternative means,” and we have “repeatedly refused to declare that only the least intrusive search practicable can be reasonable under the Fourth Amendment” (Vernonia, 1995).

Stevens, concurring: I want to point out that Justice Blackmun, in dissent in O’Connor, offered a third approach, more protective of workplace privacy, and his approach is not yet “foreclosed.” However, “Quon, as a law enforcement officer who served on a SWAT team, should have understood that all of his work-related actions – including all of his communications on his official pager – were likely to be subject to public and legal scrutiny.”

Scalia, concurring in part and in the judgment: First, Justice Blackmun’s approach is foreclosed, he was the losing dissenter in O’Connor. More importantly, the “operational realities rubric” of the O’Connor plurality is “standardless and unsupported,” so I can’t join that part of the majority’s discussion. And finally, the Court’s “digression” on the general issue is “unnecessary,” “exaggerated,” and “self-defeating” because it “underscores the unworkability of that standard.” [Ed. Note: Justice Scalia is particularly unhappy with the majority’s speculation that electronic “gadgets” might be necessary, even in the workplace, for “self-expression, even self-identification,” which does indeed seems like an unnecessary, and typically Kennedy-ian, poetic description.]

--------------------------------------------------------------------------------

American Bar Association Judicial Division

Can judges give testimony before a legislative body? Is it permissible for
judge to participate in a family business as the company’s lawyer? Can a
judge charge for giving a speech to a civic organization? What role can
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Off the Bench: The Ethics of Engaging in Extrajudicial Activity While Advancing Pro Bono
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CLICK HERE FOR MORE INFORMATION

In an earlier posting on this blog we reported that on February 23, 2010 a divided Panel of the Appellate Division, First Department, New York Supreme Court ruled in People v. Correa (2010 NY Slip Op. 01533) that the 2004 merger of the criminal courts in the Bronx into a single court with jurisdiction to handle both felonies and misdemeanors is unconstitutional. That Appellate Division ruling has now been overturned by the New York Court of Appeals in a single 6-0 opinion on June 3, 2010 that decided three cases--People v. Correa, People v. Fernandez, and People v. Mack, upholding administrative experiments that have New York State Supreme Court judges presiding over misdemeanor cases as well as felonies within a merged Bronx Supreme Court Criminal Division and an Integrated Domestic Violence (IDV) Court in Brooklyn.

The high court's ruling regarding IDV Courts also applies to 44 other IDV Courts throught the State of New York. that centralizes the handling of all aspects of domestic disputes, including criminal charges, in one court. The judges noted that neither the New York Constitution nor its statutes call into question the legality of either court addressed in this opinion.

See also the following articles which discuss this New York Court of Appeals opinion and its implications:

PEOPLE v. CORREA
Leagle.com
Article VI of the New York Constitution — the Judiciary Article — created a "unified court system for the state" (NY Const, art VI, § 1) and vested the ...

High Court Upholds Merged Bronx Criminal Part, IDV Courts
New York Law Journal
The creation of the unified court system "was prompted in part by the uneven ... it usurped the role of the New York Criminal Court under Article VI, §15, ...

State's highest court upholds merger of two Bronx courts
New York Daily News
"The New York Constitution vests Supreme Court with the power to hear any case that any other court in the (Unified Court System) could hear," Judge ...

Ruling Averts Chaos in Bronx Courts - City Room Blog - NYTimes.com
By By SAM DOLNICK
New York's highest court ruled Thursday that a 2004 merger of the Bronx's Criminal Court and Supreme Court was constitutional, overruling a lower court decision that the state's former chief judge had overstepped her bounds. The decision averted the chaos ... “We hold that the administrators of the unified court system were empowered under our State Constitution and the judiciary law to adopt these rules,” the Court of Appeals, the state's highest court, ruled Thursday. ...

Berghuis v. Thompkins June 2, 2010

United States v. Carr

A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

Introduction by ABA Criminal Justice Section:

This summary has been created by Professor Rory K. Little , U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. It represents his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

The CJS hopes these summaries will be helpful to you, because they are different from the average news or blog account, in at least three ways: first, a detailed account of the rationale of ALL the opinions issued in a case, including nuances found in separate concurring and dissenting opinions; second, an account of the decision that is essentially “neutral” -- that is, not really a “perspective” in the sense of the author’s personal opinions, but rather a straightforward account that can be relied upon by lawyers of all stripes; and then third, a bit of “inside baseball” analysis of some of the twists or nuances that are not apparent in the opinion.

Professor Little's Summaries:

June 2, 2010.

Yesterday the Court issued opinions in two criminal cases, summarized below. Perhaps not coincidentally, both had opinions authored by Justice Sotomayor. In Carr, she wrote the majority, while in Thompkins, she wrote a vigorous dissent. The Justices seem to be “courting” the newest Justice, dropping stray compliments for her opinions (a tactic embedded some 35 years ago by Justice Brennan’s early praise of Justice Blackmun’s opinions, including Brennan’s favorable (and usually unnecessary) citation of Justice Blackmun’s Eighth Circuit decisions). Thus Justice Scalia, while not entirely agreeing with Justice Sotomayor’s majority in Carr, mentions “the Court’s thorough discussion,” and Justice Kennedy remains respectful of her dissent in Thompkins, even as Justice Sotomayor (who clearly is not holding back) describes Justice Kennedy’s majority as “a substantial retreat,” one that “flatly contradict[s] our longstanding views.” Only Justice Alito (himself relatively new to the Court) seems not to be showing the newest Justice any deference, saying that Justice Sotomayor’s conclusion in Carr “makes no sense” (twice), is “thoroughly unsound,” and “flies in the face” of accepted statutory drafting principles.

1. FIFTH AMENDMENT (Miranda)

Berghuis v. Thompkins, No. 08-1470, 130 S.Ct. ___ (June 1, 2010), reversing 547 F.3d 572 (6th Cir. 2008) (on habeas), thereby affirming 683 N.W.2d 676 (Mich 2004, table).

Holding: (1) A person in custody must clearly invoke his right to remain silent after Miranda warnings, or police may continue questioning; and (2) after a suspect has been informed of his Miranda rights and indicates understanding, an uncoerced statement by the suspect “establishes … waiver” (even here, where the suspect refused to answer interrogation questions for almost three hours before saying something incriminating).

Facts: Thompkins was arrested on suspicion of murder, and was interrogated by two officers for about three hours. [Can we deny that the fact that there was a lot of other evidence indicating Thompkins guilt, not mentioned until the last page of the Court’s opinion, that inevitably colors our assessment of this case?] He was fully advised of his Miranda rights, and he declined to sign the rights form. However, he also did not say that he wished to remain silent. Instead, Thompkins simply sat “largely silent” for 2¾ hours, offering non-committal one-word responses (and one remark that “the chair he was sitting in was hard”). Finally, an officer asked Thompkins if he believed in and prayed to God, and when Thompkins said “yes” and started to cry, the officer asked “Do you pray to God to forgive you for shooting that boy down?” Thompkins said yes, looked away, and refused to make any written statement. The officers ended the interrogation and used the final remark against Thomkins at trial, where he was convicted for murder and sentenced to life without parole.

A secondary issue was that a compatriot of Thompkins (Mr. Purifoy) was previously tried as an accomplice to the same murder but acquitted. Purifoy then testified at Thompkins’ trial, and the prosecutors asked the jury “did Purifoy’s jury make the right decision?” The defense did not object or request a limiting instruction, and Thompkins now claimed ineffective assistance.

The Michigan appellate court affirmed, the Michigan Supreme Court denied review, and on federal habeas, the district court denied relief. But the Sixth Circuit reversed, finding no valid waiver of Miranda (thus suppressing the “pray to God” response), and finding ineffective assistance on the jury issue.

Kennedy (for five Justices):

The Sixth Circuit was bound to apply the deferential federal habeas standard (“unreasonable application of clearly established federal law”). But because we find that the Circuit was wrong even under de novo review, we don’t examine the habeas standard further. [Ed Note: The dissent says that this procedural dodge makes the rest of the Court’s opinion “unnecessary to the decision,” that is, dicta. Says Justice Sotomayor, if the Circuit was not properly deferential, and the state court’s application of federal law was not “unreasonable,” then the Court should reverse and not rule finally on the substantive questions presented. It is highly unlikely, however, that anyone will view the next 12 pages of Justice Kennedy’s majority opinion as non-binding “dicta.”]

First, it is settled under Miranda that custodial questioning must cease once the “right to remain silent” is “invoked.” However [and this is a new ruling], silence alone is not “invocation” of the right not to be questioned. A suspect must “unambiguously” invoke his right to remain silent, just as we have held regarding the right to have an attorney present (Davis 1994).

Second, although Thompkins declined to sign a waiver form or make a written statement, his incriminating response to the police after 2¾ hours of questioning demonstrates an “implied waiver.” When proper Miranda warnings have been given and understood, the right to remain silent has not been invoked, and there is no other “coercion,” a response “establishes [a] waiver.” There is no authority for the claim that an interrogation of under three hours, after full Miranda warnings, is “inherently” coercive, and the “police are not required to rewarn suspects from time to time.” We have not previously answered this question, although Miranda itself did say that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or … the fact that a confession was in fact eventually obtained.” The “heavy burden” to show waiver remains on the prosecution. But Butler (1979) established that a “course of conduct” can show waiver; and there is no rule that a waiver must be obtained before questioning can occur (even though a number of police manuals say this). “After giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived.”

[Editor’s opinionated note: Up to this point, Justice Kennedy’s opinion is straightforward. However, on page 16 he engages in what can only be described as an unrealistic civics lesson (not to mention truly dicta) about police interrogations. “Interrogation provides the suspect with additional information” so that he “has the opportunity to consider the choices he or she faces, and to make a more informed decision.” Given that police are permitted to lie to suspects about the evidence, this is simply silly – “informed” decisions require accurate information, not trickery. It is possible to imagine that Justice Scalia is actually responsible for the ideas in this paragraph, which discusses the perceived benefits of custodial interrogation without telling the suspect any more than the initial Miranda warnings. It sounds like Scalia ideas expressed in Kennedy language.]

On the second question, “it seems doubtful that the failure to request the [limiting] instruction … was deficient representation, but” even if it was, Thompkins cannot show prejudice in the sense of a “reasonable probability that the outcome would have been different.” It would not “have made any difference in light of all the other evidence of guilty,” including a victim ID of Thompkins, a surveillance camera photo, a friend who said Thompkins confessed to him, and other evidence showing consciousness of guilt.

Sotomayor, dissenting (joined by Stevens, Breyer and Ginsburg): The Court’s opinion is a “substantial retreat” from Miranda protections, is “inconsistent with fair-trial principles,” and “bodes poorly for the fundamental principles that Miranda protects.”

First, the Court should not even make the substantive rules it announces today. All it properly should do is reverse because the Circuit was wrong under the deferential principles of AEDPA habeas review. Also, the Sixth Circuit ruled only on the waiver question, and did not answer the invocation question, so we should remand to them rather than rule in the first instance on invocation.

On waiver, there was no express waiver and the police never asked for one. Thompkins “remained almost completely silent and unresponsive” for three hours. This clearly indicated his desire not to talk, and the prosecution did not sustain the “heavy burden” to prove a “voluntary and knowing” waiver. The Court’s ruling contravenes statements in Miranda (such as “a waiver will not be presumed simply from silence”) as well as other such precedents. We said in Miranda that “the fact of lengthy interrogation … is strong evidence that the accused did not validly waive. …[T]he fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of voluntary relinquishment….” For the Michigan courts to conclude otherwise was, in fact, “objectively unreasonable under our clearly established precedents.” And the majority’s contrary rulings (unnecessary to decision as they may be) “flatly contradict” these precedents. The Court “overrules sub silentio” some essential aspects of Miranda.

Regarding invocation, it is true that it might be “difficult to include” that the Michigan court’s decision was “unreasonable,” since we have never answered the question. However, I “cannot agree with the Court’s much broader ruling that a suspect must clearly invoke his right to silence by speaking.” This “invites police to question a suspect at length” without waiver, “in the hopes” of getting something incriminating. Extending Davis, which was about the right to counsel, to this different right under Miranda, is wrong as well as unnecessary. “The Miranda warnings give no hint that a suspect should use … magic words” to invoke. A rule more faithful to Miranda and its fairness rationales would be to require the police to ask for a clear answer to the question whether a suspect wants to talk, and to not allow questioning until a clear response is received.

2. FEDERAL STATUTES (sex offender registration crimes)

Carr v. United States, No. 08-1301, 130 S.Ct. ____ (June 1, 2010), reversing 551 F.3d 578 (7th Cir. 2008).

Holding (6-3), Sotomayor (Scalia not joining the legislative history subsection); Alito dissenting with Thomas and Ginsburg: As a matter of statutory construction, the federal law making it a crime for sex offenders to fail to register after travelling in interstate commerce requires that the interstate travel occur after the date the federal statute was enacted.

Facts: This is purely a case of statutory construction. In 2006, Congress enacted a statute making it a federal crime for person who is (1) required to register as a sex offender and (2) who “travels in interstate or foreign commerce,” to (3) knowingly fail to register in the new State. 18 U.S.C. § 2250(a). These elements undisputedly have to happen in sequence; the only question presented is whether the “travel” has to happen after the date of enactment, or whether a sex offender who moves to another state before the date of enactment, and then fails to register, can also be reached by this federal law. Carr was convicted in 2004 in Alabama and registered there, but then moved to Indiana before 2006 and did not re-register there. The Seventh Circuit created a Circuit split by ruling that the travel did not have to occur before the date of the federal law, so long as the failure to register did (and that this construction also presented no ex post facto problem, a question not reached by the Court today).

Sotomayor (for six Justices, although Scalia does not join the legislative history subsection): The plain language of the statute, using the present tense “travels” as opposed to “has travelled,” settles the issue: the travel must occur after the date of enactment. [Interesting side-note: Justice Sotomayor uses the word “omnitemporality” in footnote 5 to describe the rejected argument that the present tense can also include the past and future tenses.] Statutory context and legislative history confirms this view. The government’s argument that our reading leaves a “gap” unintended by Congress (sex offenders who escape state sex registration requirements by moving out of state before 2006) does not overpower this clear text – moreover, we think it is consistent with Congress’s apparent decision to leave most sex offender registration issues to the States. This is materially different than the federal firearms statute that permits the interstate element of “felon in possession” to occur at any time (Scarborough 1977).

Scalia, concurring in part: I don’t join the subsection that addresses legislative materials, because “the Court’s thorough discussion of text, context, and structure demonstrates that the meaning of [the statute] is plain” and we should examine “only the text Congress voted on.”

Alito, dissenting, joined by Thomas and [surprisingly?] Ginsburg: The Court “misinterprets” the statute and “hobbles” Congress’s clear intention to track down and criminalize sex offenders who move between States to avoid registration requirements. Why would Congress have wanted to criminalize only those offenders who moved after 2006, as opposed to all such persons who knowingly fail to register after that date? The offense that causes the registration requirement can occur before the date of enactment – why not the interstate travel? As for the present tense of the verb “travels,” “modern legislative drafting” manuals recommend drafting this way: the tense refers to the date on which the statute is read (not the date of enactment). [This is not a reach: Justice Alito cites the U.S. Senate Legislative Drafting Manual and two pages of similar authorities that support the proposition.] The Court’s conclusion to limit the reach of the federal statute “makes no sense,” and it is “perverse” to allow offenders like Carr to escape federal prosecution. The legislative history shows that Congress was clearly concerned about all sex offenders who move out of state and then fail to register. “Interstate travel was dangerously undermining the effectiveness of state sex-offender-registration laws.”

Selections from the Fair Courts e-lert May 28, 2010, published by the Brennan Center for Justice at New York University School of Law.

State Judicial Elections

1. Retired Justice Sandra Day O'Connor continues to advocate for states to replace contested judicial elections with merit selection systems. In an op-ed appearing in the New York Times, O'Connor urges individuals to pay attention to the selection of state court judges because "In too many states, citizens are being shortchanged by the way [state court judges] are chosen . . . . When you enter one of these courtrooms, the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law."

Sandra Day O'Connor, Take Justice Off the Ballot, New York Times, May 21, 2010.

2. Sandra Day O'Connor is not the only Justice to argue that judicial elections damage public trust in impartial justice. The Wisconsin State Journal cites Justice John Paul Steven's criticism of the practice of electing state judges as evidence that "momentum is growing for reform in which justices are selected for their experience and independence, not for their ability to raise money, court the special interests and charm voters." At a legal conference in Columbus, Ohio, Stevens discussed a case he heard while sitting on the federal appeals court. Stevens told conference attendees that he remembered thinking, "'I have life tenure.' . . . So unlike the Wisconsin justices who originally heard the case, he didn't have to worry about voters punishing him if his decision was unpopular." Steven's position - "to throw out the conviction because [the defendant] had not been given due process" - was indeed extremely unpopular, but ultimately affirmed by the U.S. Supreme Court.

Editorial, Stevens Offers Stark Example, Wisconsin State Journal May 25, 2010.

3. According to the Union Tribune, although incumbent judges rarely face challenges, the San Diego Superior Court has become an unexpected judicial battleground. The Union Tribune reports that a group named Better Courts Now is targeting four sitting judges in San Diego in an attempt to replace them with judges who reflect the group's more conservative stances on gay marriage and abortion. "The challengers 'all say they're running in large part to give voters a voice on who sits on the bench'. . . and they advocate that judges should uphold laws passed by elected legislatures and not 'make the law.' One challenged incumbent decried the challenge, however, stating that "Better Courts Now adds both a partisan and 'values issue' to the race for judge."

Greg Moran, 'Moral Vote' Group Targets Four Judicial Seats, Union-Tribune, May 22, 2010.

4. "'I've never seen this kind of campaigning for appellate judicial office before, never,' said retired Court of Appeals Judge Joseph Alarid," about the fractious primary race between Dennis Montoya and Judge Linda M. Vanzi for Vanzi's seat on the New Mexico Court of Appeals. Two of Vanzi's campaign mailings call attention to Montoya's "documented record of unethical behavior," about which Vanzi claims firsthand knowledge. Before Gov. Bill Richardson appointed Vanzi to the Court of Appeals in October 2008, Vanzi was a state district judge in Albuquerque. Vanzi reported Montoya to the state Supreme Court's disciplinary board in 2008. According to the Albuquerque Journal, "Just last month, the board charged Montoya with a pattern of misconduct in several legal actions. . . The board also says it is investigating nine additional misconduct complaints against Montoya, related to other cases. The disciplinary panel is asking the state Supreme Court to suspend Montoya while the investigations are under way. The high court has scheduled a hearing for June 2, the day after the primary election."

Deborah Baker, Charges Fly In Appeals Court Race; Incumbent Calls Rivalry 'Bizarre,' Albuquerque Journal, May 23, 2010.

5. California Supreme Court Justice Ming Chin testified last week before the Assembly Judiciary Committee at a hearing entitled "Judicial Elections in California: Threats to the Perception of Fairness." According to Legal Pad, Justice Chin, who chairs the Commission for Impartial Courts, remarked that "he was 'getting closer' to opposing judicial elections completely. 'The more that I hear about what's going on across the country, the more concerned I am.'"

Cheryl Miller, Judicial Elections- A Race to the Bottom?, Legal Pad, May 18, 2010.

6. Arkansas Secretary of State Charlie Daniels reported that turnout for the May 18 Preferential Primary and Nonpartisan Judicial General Election was the highest that Arkansas has seen in a party primary since 1994, not counting 2008s presidential primary. KARK 4 News notes that "[p]arty primaries generally garner only about a third of the voter participation seen in general elections, but this year's primary and judicial elections were especially interesting to voters because of the sheer volume of candidates running for a good number of open seats."

Sec. Daniels Reports 29% Preliminary Statewide Turnout for 2010 Preferential Primary and Nonpartisan Judicial Election, KARK 4 News, May 21, 2010.

TITLE: THE SUPREME COURT
SUBTITLE: A C-SPAN Book Featuring the Justices in Their Own Words
EDITORS: Brian Lamb, Susan Swain, and Mark Farkas
PUBLICATION DATE: May 4, 2010
PUBLISHER: Perseus Books
PAGE COUNT: 372 pp.
ISBN: 978-1-38648-835-2
PRICE: $28.95

A team of C-SPAN editors has assembled a selection of interviews with current and former U. S. Supreme Court Justices, as well as Court followers, experts, and participants in the judicial process drawn from the fields of law, government, and journalism. Taken together, the interviews provide a historical overview and policy perspective of the Court which is rarely seen in current literature. The Justices pontificate on the history of the Court, its place in the structure of government, and the role of the Court in shaping modern society. Especially revealing are the discussions centered about its inner workings, such as the manner in which cases come before the Court, how they are heard, and how the Justices discuss, debate, and decide their opinions. At the end of the book are many useful reference resources, including biographies, listings, surveys, statistics, and a summary of important decisions and seminal historical events in Supreme Court history. The book is aimed at a general audience and is thus recommended mainly for public and school libraries.

Philip Y. Blue, New York State Supreme Court Criminal Branch Law Library, First Judicial District, New York, New York

DISCLOSURE STATEMENT:

We are never paid to do a review. We never accept money to review a product or service. We invest our own time to review and test products.

Selections from the Brennan Center Fair Courts E-lert May 21, 2010.

Summarized news articles and editorials related to the independence of judges and the courts....:

1. A recent George Mason University study suggests that certain factors such as "support for diversity in the state's leadership," the "location of a judgeship," and the "history of diversity" have a significant impact on the success of efforts aimed at enhancing diversity on the state bench - this, irrespective of the judicial selection mechanisms used in a given state. In a broad survey of state trial court judges of color, the report's authors observed "that the varying selection mechanisms tend to operate to produce a surprising similarity in the processes, strategies, and experiences of judicial candidates . . . [R]ather than a specific selection mechanism, the judges [interviewed] overwhelmingly point to other factors - such as politics, networking, mentorship, and other resources as determinative of the ability of diverse candidates to become judges." The American Judicature Society has released another important study on judicial diversity, by Malia Reddick, Michael J. Nelson, and Rachel Paine Caufield. The AJS study explores the relationship between judicial diversity and the institutional, political, and legal environment in which judges are selected. Among other conclusions, the study reported that "Merit selection and pure gubernatorial appointment placed more minorities on high courts than did contested elections, while merit selection placed fewer women on intermediate appellate courts."

Linda M. Merola and Jon B. Gould, New Judges Speak about the Process and its Impact on Judicial Diversity, Judicature, March-April 2010; Malia Reddick, Michael J. Nelson, and Rachel Paine Caufield, Examining Diversity on State Courts: How Does the Judicial Selection Environment Advance - and Inhibit - Judicial Diversity, ABA Journal, Spring 2010.

2. According to figures cited by the Associated Press, Asian-Americans make up 5 percent of the population, comprise approximately 15 percent of all doctors, and yet remain underrepresented in the legal arena, comprising just 3 percent of all lawyers nationwide. "When it comes to lawyers becoming federal judges, which requires strong networks and political connections, Asian-American representation is even smaller," writes Jesse Washington at the AP. According to figures compiled by the National Asian Pacific American Bar Association (NAPABA), "ten of 875 active federal judges . . . are Asian-American" and of the 175 judges at the appellate level, only one, Danny Chin (confirmed just last month), is Asian.

Jesse Washington, Asian Judge Shows Community's Progress, Associated Press, May 14, 2010.

A program presented by the state trial judges during the 2010 Annual Meeting of the American Bar Association in San Francisco at the Marriott Marquis On August 5, from 1:30-4:30 p.m..

Attendees registered for the 2010 ABA Annual Meeting are invited to join the National Conference of State Trial Judges for an in-depth look at search and seizure of digital evidence and the Fourth Amendment implications. This program is designed to provide an understanding of the sources and types of digital evidence encountered in modern litigation, including the introduction of meta data; examine the approaches courts take to address the search and seizure of digital evidence; explore cutting-edge issues such as search and seizure considerations with cell phones, e-mails, virtual worlds, and the like; and discuss judicial management of cyber-crime cases.

The program will end with a final segment titled “Technology Tools for Judges,” that focuses on digital tools available for judges to use while dealing with electronic documents and data, and metadata, now so prevalent in the courts. Participants will learn the components of
Knowledge Management systems, how security issues have been treated, and the relative merits of generic search systems vs. legalspecific systems.

Many thanks to Luis Acosta of the Library of Congress for forwarding the following:

Elena Kagan Nominated to the Supreme Court: http://go.usa.gov/ieT

On April 9, 2010 Justice John Paul Stevens announced that he would retire after nearly 35 years on the bench of the U.S. Supreme Court. President Obama announced the nomination of Solicitor General Elena Kagan to replace Stevens on May 10, 2010. This is President Obama's second nomination to the nation's highest court, following his selection of Justice Sonia Sotomayor in May 2009. Notably the first female Solicitor General and first female dean of Harvard Law School, if Kagan is confirmed, she will also be the fourth woman to serve on the Court.

To serve congressional and public requests for resources pertaining to this historic nomination, the Law Library of Congress has developed a web presentation on Kagan on its Supreme Court Nominations site http://www.loc.gov/law/find/kagan.php. Visit this presentation site to find out more about her work and background, including books and articles she has written as well as other related material including Congressional Documents, U.S. Supreme Court Oral Arguments, web resources, video, and related resources at The Law Library of Congress

QUESTION:

On behalf of the California Administrative Office of the Courts, we would like to know if there are any courts in the United States that “sell” delinquent court-ordered fines, fees, penalties, and assessments. In specific, we are looking for criteria, and private vendors used, including pricing structure.

RESPONSES:

1. I asked one of my clients, a pre-eminent collections firm that also specializes in purchasing debt, how many government clients use this technique, and of those how many are courts. They replied that few (but a growing number) of government agencies are beginning to realize that this is a legitimate way to recover otherwise lost revenue, but the number of courts is painfully fewer.

Part of the reason is understandable ... the underlying nature of the debt has to be free of other legal encumbrances, such as terms and conditions of probation, drinking driver treatment program completions, etc., and ideally those debts that are dispositive solely by payment of the fine. This being said, that leaves a siginificant amount of court ordered debt that could or should fall into this category.

Since the street value and therefore the amount paid for old and uncollectable debt is low, it is best that courts exhaust all reasonable efforts to skip trace and otherwise seek compliance before this option is used. Thereafter, merely writing off the debt as a total loss is unwise if there is a way to recover some of the amount due.

2. Selling court debt that arises from a conviction for an offense is an appalling concept.

Generally, most court debt for an offense is discretionary, that is a judge exercised some discretion to establish the fine, etc., in a particular case. Generally, the court that entered the judgment retains the ability to exercise discretion in the interests of justice if the circumstances of the judgment debtor change following the entry of judgment. Typically it is a negative change in circumstances that is brought to the attention of the court in an enforcement action. The court may then adjust the debt to fit the new circumstance as appropriate.

Selling the judgment eliminates that discretion. While courts should vigorously enforce judgments entered for offenses, may even use private collection agencies, courts must also retain the discretion to deal appropriately judgment debtors in the interest of justice, not in the interest of a "bottom line."

3.And my recollection is that there is a [U.S.] Supreme Court decision that says in effect some who is fined must be given the equivalent of an installment plan (in the context of "you may not jail for failure to pay fine").**
__________________________

*In deference to privacy and confidentiality concerns expressed by some readers, all references to personal names in the above responses have been deleted. This however does not detract in any way from our appreciation of the professionalism and generosity of spirit exhibited by those participating in this discussion.

** In part of an exchange resulting from the above discussion, Patrick H. Scott, Court Services Division, Arizona Administrative Office of the Courts sent the following additional material related to the U.S. Supreme Court decision mentioned in the above Q & A discussion. In his e-mail Patrick said he found this information at Dictionary.com:

The U.S. Supreme Court has placed limits on incarceration for nonpayment of fines. In Williams v. Illinois, 399 U.S. 235, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970), the defendant, Willie E. Williams, was convicted of petty theft and sentenced to one year in prison and a $500 fine, the maximum sentence allowed under the applicable statute. When Williams was unable to pay the fine upon completing his year in jail, he was kept incarcerated to "work off" the fine at a rate of $5 a day. Williams appealed, and the U.S. Supreme Court ruled that, under the equal protection clause of the Fourteenth Amendment, no state may increase the sentence of a defendant beyond the maximum period specified by statute for failure to pay a fine.

Shortly after the Williams case, the Supreme Court ruled that a state may not convert a fine into incarceration if the conviction warrants only a fine. In Tate v. Short, 401 U.S. 395, 91 S. Ct. 668, 28 L. Ed. 2d 130 (1971), the defendant, Preston A. Tate, was unable to pay $425 in fines for traffic offenses and was committed to prison to work off his fine at a rate of $5 a day. The Supreme Court ruled that a state may not "impos[e] a fine as a sentence and then automatically conver[t] it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full."

Neither the Williams ruling nor the Tate ruling prevents a court from imprisoning a defendant who is able, but refuses, to pay a fine. The court may do so after finding that the defendant was somehow responsible for the failure to pay and that alternative forms of punishment would be inadequate to meet the state's interest in punishment and deterrence (Beardenv. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 [1983]).

In a case of willful nonpayment, the court may order incarceration for a period of time specified under statute. In Kentucky, a prison term of up to six months may be ordered if the unpaid fine was imposed for the conviction of a felony. Nonpayment of a misdemeanor fine may result in a prison term of up to one-third the maximum authorized term for the offense committed. For a violation, the maximum term is ten days. This amount can be cumulative. For example, if a person refuses to pay the fines for ten violations, that person can be incarcerated for one hundred days (Ky. Rev. Stat. Ann. § 534.060).

Fines are often used to pay for incarceration and other sentencing costs. In 1984, Congress passed the Comprehensive crime control act (codified in scattered sections of 5, 8, 29, 41, 42, and 50 App. U.S.C.A.), which established the U.S. Sentencing Guidelines Commission. According to section 5E1.2 of the act, a federal court shall impose a fine that is at least sufficient to pay the costs of imprisonment, probation, or supervised release order. Many states have followed suit, and fines are increasingly used to defray the costs of punishment.

From: Fair Courts E-lert, May 7, 2010
Published by the Brennan Center for Justice, New York University School of Law.

1. Show Me Better Courts, a Missouri organization seeking to replace the state's merit selection of judges with contested judicial elections, claims to have raised $1.5 million "to gather petition signatures" to put the organization's proposal for a constitutional amendment on the November ballot. In a conference call with reporters, director of the organization James Harris said he expected "another $2 million to $4 million will be spent on the fall campaign if enough signatures are valid." Missourians for Fair and Impartial Courts, "the group leading opposition to the measure," and defending the so-called "Missouri Plan" has thus far raised approximately $268,000.

Dave Helling, The Battle Over Missouri's Courts: A Million Dollar Bash, Kansas City Star, May 3, 2010.

2. "Echoing Justice Ruth Bader Ginsburg and retired Justice Sandra Day O'Connor, [Justice John Paul] Stevens suggested that the federal system of appointed judges who hold life tenure promoted judicial independence better than popular election of judges, the practice in many states." Stevens criticized the practice of electing state judges while at a conference of judges and lawyers in the federal Sixth Circuit, in Columbus, Ohio.

Jess Bravin, Justice Stevens: To Life, To Life, L'Chaim, Wall Street Journal, May 5, 2010.

Jonathan Stock who along with others has been working tirelessly to save six threatened law libraries in Connecticut from closure due to financial constraints. Here is Jonathan's latest report, received as an e-mail on May 6, 2010.:

The Connecticut General Assembly closed down last night. We now know that the bill, its substance merged with the 2011 Budget, passed. You will find herein as an attachment [ see download link below] the latest bulletin from the Judicial Office of External Affairs. We have saved at least three of the six threatened law libraries: Bridgeport, Litchfield, and Hartford. Depending on the Branch's negotiations with the Department of Public Works, we may also get back the Willimantic Law Library as well as the Willimantic Courthouse.

The good news Jonathan writes about would not have occurred without his continuing, tireless efforts along with those of many other people and organizations such as the American Association of Law Libraries (AALL), Southern New England Law libraries Association (SNELLA).
You may also want to review other postings on this blog regarding efforts to save law libraries in Connecticut:

Separation of Powers Regarding Judicial Funding in the State of Connecticut
http://www.criminallawlibraryblog.com/2010/02/separation_of_powers_regarding_1.html

Help Save Connecticut Courthouse Libraries By Spreading the Word
http://www.criminallawlibraryblog.com/2010/01/help_save_connecticut_courthou.html

Click on the below link to download the document referenced in Jonathan Stock's e-mail:

Connecticut Judicial Branch - External Affairs Division - 2010 Legislative Session Update Number 5 May 5, 2010

David Badertscher

The New York State Commission on Judicial Conduct has released its 2010 Annual Report which " recommends [a] greater role for state high court, and public disciplinary proceedings, in conduct cases" The 2010 Report documents the Commission’s work in 2009.

The Commission is the state agency responsible for investigating complaints of misconduct against judges of the state unified court system and, where appropriate, disciplining such judges for violations of the Rules Governing Judicial Conduct.

The News Release announcing the release of the 2010 Annual Report is available here.

Jonathan Lippman, Chief Judge of the State of New York

INTRODUCTION

This is my first State of the Judiciary message as the Chief Judge of the State of
New York. Months ago, I was expecting to give a live address at Court of Appeals
Hall in Albany, similar to those given by some of my predecessor Chief Judges—and
next year, maybe I will. But 2010 is very different from earlier years, and this will not
be a typical State of the Judiciary message.

In our country and in our State, we have entered a particularly difficult financial
period. The sad truth is that the same economic forces that are placing fiscal constraints
upon government are also spurring tremendous growth in our already monumental
caseloads. As the economy has soured, families are unable to pay their mortgages, consumers
default on credit card debt, business deals go bad, and incidents of violence
occur in families torn apart by lost jobs and homes in jeopardy. Inevitably, the courts
are called upon to sort things out.

Given these hard realities, this State of the Judiciary report will not address broad
reform programs and strategic planning efforts that have characterized previous reports
(although certainly we are actively pursuing important systemic reforms on our own
and in concert with the Legislative and Executive Branches). Nor does it attempt to
offer a comprehensive description of everything we are doing in the Judicial Branch.
Instead, the 2010 State of the Judiciary report will focus on how current caseload pressures
are increasing the burdens and challenges our judges face on a daily basis; the steps
we are taking to continue to meet our constitutional responsibility to deliver justice in
each and every case; the efforts we are making to respond to the State’s financial crisis;
and the critical need for a judicial pay adjustment if the Judiciary is to remain a strong
and vibrant co-equal and independent branch of government.

Finally, this is not a typical State of the Judiciary report in its timing. The Chief
Judge ordinarily reports on the State of the Judiciary by early February, but I decided
to delay it this year because of the ongoing judicial salary crisis and resulting litigation.
The last time New York State judges were granted any kind of salary increase was in
1998, effective January 1, 1999. This decade-long pay freeze led to the filing of three
lawsuits, and on taking office as Chief Judge, I became the plaintiff in one of the cases,
The Chief Judge of the State of New York vs. The Governor of the State of New York. As
a litigant, of course, I took no part in hearing or deciding these cases. The Court of
Appeals heard oral argument in January 2010, and I, along with the entire Judiciary,
awaited the Court’s decision, which was rendered on February 23, after which I decided
to issue this report. In deference to my Court of Appeals colleagues, I will not address
the legal issues in the case, although I very much feel it appropriate and necessary to
include commentary on judicial compensation.

Published by: Brennan Center for Justice at the New York University School of Law.

The Brennan Center Fair Courts E-lert summarizes news stories and editorials related to the independence of judges and the courts, including material attacking, defending, and concerning the judiciary.

-------------------------------------------------------------------------------------------------

Fair Courts E-lert, April 23, 2010

State Judicial Elections

1. "The recent charges against state Senator Jane Orie stemming from the 2009 Supreme Court race, combined with the 'explosive' growth in funds spent to elect appellate judges, are strong reasons why Pennsylvania should move to a merit selection system for judges, Governor Ed Rendell said [Wednesday]," according to a report by the Pittsburgh Post-Gazette. While the governor was careful not to insinuate any wrongdoing on the part of Justice Joan Orie Melvin, he maintained that the controversy involving Orie Melvin's sisters, who were charged with "using the senator's political staff last year to help elect another sister . . . to the Supreme Court," would not have arisen if Pennsylvania did not elect its high court justices. The election in which Orie Melvin defeated her Democratic opponent was also among the most costly in the country, with spending totals eclipsing past totals in the state. "A total of $4.7 million was spent last year in the hard-fought . . . race . . . twice as much [as that] spent on Supreme Court races just 10 years ago." Rendell advised the House and Senate to "quickly vote on one of two bills . . . [that] would create a 14-member panel, [comprising] some members chosen by the governor and legislators and some citizens picked by lottery." The panel would recommend qualified nominees to the governor, who, in turn, would choose one candidate subject to Senate confirmation."

Tom Barnes, Rendell Pushes for Merit Selection of Judges, Pittsburgh Post-Gazette, April 21, 2010.

2. At Think Progress, Matthew Yglesias flags a CalTech study finding that "justices that are shielded from voters' influence on average (i) have better information, (ii) are more likely to change their preconceived opinions about a case, and (iii) are more effective (make less mistakes) than their elected counterparts."

Matthew Yglesias, Politically Insulated Judges are Better Judges, Think Progress, April 19, 2010.

3. The Wisconsin Supreme Court heard arguments last week in an ethics case involving Justice Michael Gableman, who the state Judicial Commission alleged violated the judicial ethics code by lying in a 2008 campaign ad about his opponent, Louis Butler. In November 2009, a "three judge panel recommended dismissing the case," Patrick Marley recounts at the Milwaukee Journal Sentinel, after it "agreed with Gableman that the ad did not contain an objectively false statement." If the state Supreme Court finds that Gableman lied, possible punishments include reprimand, censure, suspension without pay, or outright removal from the bench. According to Chief Justice Shirley Abrahamson, however, drastic action is unlikely. Nonetheless, the court is currently split on whether or not it should even be hearing the case against Gableman. Justices David Prosser, Annette Ziegler, and Patience Roggensack believe the court should not rule on one of its own; their colleagues - Abrahamson and Justices N. Patrick Crooks and Ann Walsh Bradley - want the issue fully briefed. Last month, Gableman, who has recused himself from the case, claimed that comments made by Justice Crooks "showed he was biased and asked him to step aside in [the] ethics case." (Justice Crooks disagreed, and refused.) Crook's comments followed a remark made by Gableman's attorney, James Bopp Jr., who said - in response to several petitions by defense attorneys to have Gableman taken off criminal cases due his alleged bias - that defense attorneys show "a willingness to subvert our system of . . . bringing criminals into account." Those remarks sparked instant controversy.

Patrick Marley, Supreme Court Justices Hear Arguments in a Case Against One of their Own, Milwaukee Journal Sentinel, April 16, 2010.

U.S. Supreme Court

4. In his Supreme Court memo at The New York Times, Adam Liptak discusses the phenomenon of justices who, once on the bench, drift away from the ideological profile assumed by the presidents who nominate them. "These sorts of surprises," though, "are much less likely these days" in large part, Liptak argues, because the "contemporary nominee's resume yields so much valuable information" that a judge's proclivities can be more carefully tracked and anticipated. What's more, "[n]ominees' backgrounds these days often include work for the executive branch in Washington and substantial service on a federal appeals court."

Adam Liptak, Why Newer Appointees Offer Fewer Surprises, The New York Times, April 18, 2010.

5. At The New Republic, Barry Friedman and Jeffrey Rosen reinforce their recent claims about the relationship between the Supreme Court and public opinion, which, they argue in the piece, have come under dubious attack from the left and right.

Barry Friedman and Jeffrey Rosen, The Battle Over the Court, The New Republic, April 14, 2010.

Special Mention

6. To fill the seat of Chief Justice Thomas Moyer, who passed away unexpectedly earlier this month, Ohio Governor Ted Strickland named Franklin County probate judge Eric Brown, who will "serve the remainder of the term of Chief Justice [Moyer]" before he competes in November's election against current state Supreme Court justice Maureen O'Connor. Poised to be the only Democrat on the all Republican court, Brown will be the first Democrat to serve as chief justice since 1986. Of the appointment, Governor Strickland remarked that "I think it was logical and reasonable and, quite frankly, what should have been expected of me, having already indicated that I thought he was the best person to lead that court." The governor was referring to his past endorsement of Brown's candidacy in the November contest against O'Connor.

James Nash, New Chief Justice Will Stick Out on Court, Columbus Dispatch, April 15, 2010.

In his provocative Opinion piece Our Fill-in-the-Blank Constitution in the April 13 New York Times, Geoffrey Stone examines this question and more. He emphasizes that contitutional law is not a mechanical exercise in just applying the law, a fact that needs always to be considered in the selection and evaluation of judges and justices.. Here are two excerpts from the article:

"AS the Senate awaits the nomination of a new Supreme Court justice, a frank discussion is needed on the proper role of judges in our constitutional system. For 30 years, conservative commentators have persuaded the public that conservative judges apply the law, whereas liberal judges make up the law...."

"So, how should judges interpret the Constitution? To answer that question, we need to consider why we give courts the power of judicial review — the power to hold laws unconstitutional — in the first place. Although the framers thought democracy to be the best system of government, they recognized that it was imperfect. One flaw that troubled them was the risk that prejudice or intolerance on the part of the majority might threaten the liberties of a minority. As James Madison observed, ( http://www.constitution.org/jm/17881017_bor.htm ) in a democratic society “the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended ... from acts in which the government is the mere instrument of the major number of the constituents.” It was therefore essential, Madison concluded, for judges, whose life tenure insulates them from the demands of the majority, to serve as the guardians of our liberties and as “an impenetrable bulwark” ( http://press-pubs.uchicago.edu/founders/documents/v1ch14s50.html ) against every encroachment upon our most cherished freedoms."

To see the complete article go to:

http://www.nytimes.com/2010/04/14/opinion/14stone.html

Those interested in this topic may also want to see Suzannah Linton's paper, The Role of Judges in Dealing With the Legacies of the Past, published on the Social Science Research Network.. This author discusses the role of judges from an international, human rights perspective.

Abstract:
This paper examines the role that judges can play in dealing with legacies of the past in countries emerging from armed conflict, repression and situations where serious human rights violations have occurred. Criminal justice has, in some quarters, come to be denigrated for being “retributive”, and therefore unhelpful in the process of taking a country forward after the dust has settled. The author sees a serious imbalance in the sidelining of the rule of law in the current paradigm. Without wishing to romanticize the role of law or the courts, this work seeks to rebalance the discussion by bringing to light the considerable role for judges in the recalibration of a society. The author does not suggest a legal approach on its own will suffice; in fact, a purely legalistic approach to dealing with such situations is wholly inadequate. But as the international and comparative research conducted for this paper demonstrates, there is a critical role for judges in times of political change and this needs to be better utilized in order to maximize the chances of successful social change and structural reform.

Download: The Role of Judges in Dealing With the Legacies of the Past

@ the Center is the flagship e-newsletter of the National Center for State Courts (NCSC). It highlights major projects, publications and conferences related to the work of NCSC.. Even though this newsletter is of redcent vintage (still Volume 1) it has already caught the attention of many in the judiciary. If you are interested in more information click here. Below are highlights of the March 2010 issue.

Volume 1, Issue 6
March 2010

Budget resource center expanded
Interactive maps show extent of cost cutting across the country

Fiscal problems continue to plague state court systems across the country. Cost-cutting measures vary from state to state, and a set of new interactive maps on the National Center for State Courts' Web site helps show which jurisdictions are being forced to make which cuts. This new addition to the Budget Resource Center (BRC) includes information on eight specific strategies adopted by the states, including furloughs, court closures, and hiking filing fees. The BRC is updated regularly with new reports and breaking news. Check back frequently to stay up to date on the latest.

Election experts give online guidance
NCSC adds Web resource center for judicial campaign oversight committees

Just in time for the 2010 elections, the National Ad Hoc Committee on Judicial Campaign Oversight - staffed by the National Center - has launched a new set of Web-based resources to aid those contemplating the establishment of such a committee. Oversight committees encourage fair play and honesty in judicial election campaigns - and also can highlight unfair campaign practices or misleading advertising when campaign rhetoric soars over the top. The new resource center includes video excerpts from presentations and panel discussions; interviews with leaders of judicial campaign oversight committees across the country; and other updated materials and resources, such as sample documents and planning tools based on common and effective practices for oversight committees.

California court leader receives Distinguished Service Award
Thirty-year career marked by service, commitment to quality of justice

Ronald G. Overholt, chief deputy director of the California Administrative Office of the Courts, has received a 2009 Distinguished Service Award, one of the premiere recognitions given by the National Center. During his tenure with the California AOC, Overholt has played a key role in achieving greater financial stability for the California Judicial Branch and has helped build an administrative, technological, and physical infrastructure that will enable the judicial branch to continue providing fair and equal justice despite future fiscal concerns. He also has worked with the Conference of Chief Justices, Conference of State Court Administrators, and National Association for Court Management to provide training sessions on the most recent innovations in court management.

NCSC officials join Lebanese judiciary at courthouse opening
Project includes administration reforms, training for court staff

Less than a year after a project aimed at modernizing the Beirut Judgment Enforcement Court began, the renovated court building was inaugurated during a March 2 ceremony in Beirut, Lebanon. NCSC President Mary C. McQueen and William G. Kaschak, vice president of the National Center's International Programs Division, traveled to Beirut for the ribbon cutting, which was hosted by Lebanese Minister of Justice Ibrahim Najjar. The courthouse renovation is part of a three-year, $8.2 million United States Agency for International Development project that is being implemented by the National Center and includes court administration reform and personnel training.

Free curriculum helps judges reduce number of repeat offenders
Program materials available online

With recidivism rates of felony offenders at unprecedented levels - nearly 60 percent according to a 2009 NCSC and Pew Center on the States report - the National Center has created a curriculum designed to help trial judges develop sentencing practices to reduce the risk of repeat offenders. Recidivism contributes to the escalating cost of state corrections, however, evidence-based sentencing has become a proven method to counter high recidivism levels. Some examples of evidence-based sentencing include focusing corrections resources on medium- and high-risk offenders rather than low-risk offenders who are not likely to reoffend; targeting services to offender characteristics that have been proven to best predict future criminality; and using swift, certain, and graduated sanctions for probation violations. The free model curriculum, titled "Evidence-Based Sentencing to Improve Public Safety and Reduce Recidivism," is available online.

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