March 8, 2011

Book Review: The Eichmann Trial

TITLE: The Eichmann Trial
AUTHOR: Deborah E. Lipstadt
PUBLICATION DATE: March 2011
PUBLISHER: Schocken Books, a division of Random House, Inc.
PAGE COUNT: 272 pp.
ISBN: 978-0-8052-4260-7
PRICE: $23.95

The author is a professor of Jewish Studies at Emory University and has written extensively about the Holocaust. In her new work, she details the Israeli capture and trial of fugitive Nazi war criminal Adolf Eichmann fifteen years after his escape from U.S. custody at the end of World War II. Lipstadt carefully shows how Attorney General Gideon Hausner called witness after witness who had directly observed the most brutal and murderous aspects of Eichmann's evil objectives and were thus able to bring the tragedy alive. She concludes the verdict was a forgone conclusion, but the sentencing was more complicated, and thus followed a contentious debate about the death penalty in a society that preaches love and compassion. Arguments for and against Eichmann's execution are described in detail, with the author noting the Court's referral of the matter to the Prime Minister and Israeli Cabinet for ultimate resolution. Aimed at an academic audience, the book is replete with references to primary source material and thus constitutes an authoritative analysis of the historical and legal issues involved in a trial of international significance. Highly recommended for students, scholars, and researchers analyzing actions and motives of war crimes perpetrators and their victims during periods of political conflict and courtroom confrontation.

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

October 22, 2010

ABA Report: Recommendations for Improving Judicial Disqualification Practices and Procedures Among the States

ABA Standing Committee on Judicial Independence (SCJI)

In an October 20, 2010 e-mail discussing the Report, William K Weisenberg, Chair, ABA Standing Committee on Judicial Independence writes:

"On behalf of the Standing Committee on Judicial Independence (SCJI), I am pleased to present for your consideration recommendations and a report that address one of the most significant issues impacting the public’s trust and confidence in a fair, impartial and independent judiciary – the disqualification of a judge when the impartiality of the judge might reasonably be questioned either through specific conduct or the appearance of impropriety. In July, 2010, an updated draft of the recommendations and report was distributed widely for review by ABA entities and outside groups. The Committee held a public forum at the 2010 ABA Annual Meeting on Saturday, August 7, 2010, in order to encourage audience comments and suggestions on the revised proposal. Based upon the comments and suggestions received both at the forum and thereafter, SCJI revised the recommendations and report. They will be submitted to the House of Delegates for consideration at the 2011 Midyear Meeting. SCJI feels strongly that it has met its objective of helping states improve their judicial disqualification practices and procedures by providing to state supreme courts a menu of options to be considered as states move forward with adoption of standards and rules, while promoting public confidence in the state courts...."

FROM THE INTRODUCTION:

In recent years, judicial disqualification has emerged as an important policy issue in several states and an important focus of discussion and debate on ways to improve both the reality – and the public perception – of the fairness and impartiality of our court system. That focus has been sharpened because of intense public scrutiny and criticism in several highly publicized cases of refusals by judges to recuse themselves in circumstances where, as the default standard articulated in the Model Code of Judicial Conduct puts it, "the judge‟s impartiality might reasonably be questioned"'

.The ABA has traditionally taken the leading role in providing guidance to the States on matters of judicial ethics and judicial conduct.4 Since 2007, the ABA Standing Committee on Judicial Independence ('SCJI' or the “Committee”) has been working on a project to survey disqualification rules and practices in state courts around the country, to identify problems and uncertainties that arise under existing regimes, and, if and as appropriate, to propose reforms. The Judicial Disqualification Project ('JDP') has conducted research, solicited comments on particular ideas and proposals (primarily within the ABA but also from certain outside entities with a strong interest in the area, such as the Conference of Chief Justices), and gradually refined the thinking of the Committee's membership on these issues.

It bears mention here that the focus of the JDP has been on the State judiciaries and not the federal. Notwithstanding that focus, this Report benefits from the guidance provided by federal case law, some of which is cited herein. Indeed, much of the law on judicial disqualification as it has developed in this country, and the concomitant guidance to the judiciary as a whole and the practicing bar, has been the product of federal decisions. Nevertheless, it should be emphasized that the transformation of the landscape described below has been occasioned by dramatic changes in judicial elections and judicial campaign finance, neither of which has any relevance whatever to the federal judiciary...."

RECOMMENDATIONS FOR IMPROVING JUDICIAL DISQUALIFICATION PRACTICES AND PROCEDURES AMONG THE STATES


October 18, 2010

Are Federal Judges Cutting Corners to Hire Clerks Early?

The system for placing them with federal judges is breaking down.

Karen Sloan National Law Journal

October 18, 2010

Are the Wild West days of federal clerk hiring back? That's what some law school administrators and judges fear. They worry that the voluntary system whereby federal judges wait until September of the 3L year to hire clerks is teetering. Judges are choosing clerks earlier in the year and are being inundated with applications as the legal job market narrows. And a trend toward hiring the already graduated means fewer positions are available for fresh law graduates.

Complete National Law Journal article.

See also: U.S. Federal Judges Law Clerk Hiring Plan 2010

October 18, 2010

U.S. Supreme Court - Recusal

From the Brennan Center for Justice, Fair Courts E-Lert October 15, 2010:

Justice Elena Kagan's decision to recuse herself in 25 of the cases the U.S. Supreme Court has agreed to hear continues to inspire discussion about judicial disqualification. A New York Times editorial praises Justice Kagan's decision, but questions the credibility of a judicial system that relies on voluntary recusal. The editorial recounts two recent examples - Justice Antonin Scalia's decision not to disqualify himself from a case involving then-Vice President Cheney, with whom the Justice socialized, and Caperton v. Massey, the 2009 landmark recusal case - in which unclear recusal guidelines cast doubt on judicial impartiality. Senator Patrick Leahy, the chairman of the Senate Judiciary Committee, is currently pushing legislation to allow retired Supreme Court justices to return to the bench if a current justice must recuse, but the Times editorial contends a more vigorous disqualification process is necessary. Meanwhile, another Times editorial argues that Justice Clarence Thomas' wife should be required to disclose donors to the conservative nonprofit organization she leads so that Justice Thomas can "comply with a fundamental ethical and legal requirement to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." A separate Times article reports that Mrs. Thomas - who recently appeared at a large Tea Party convention - is playing "the most partisan role ever for a spouse of a justice on the nation's highest court."

Justice Thomas and His Wife, New York Times, October 12, 2010; Activism of Thomas's Wife Could Raise Judicial Issues, New York Times, Jackie Calmes, October 8, 2010; Recusals and the Court, New York Times, October 7, 2010.

October 15, 2010

Chief Judge Lippman Announces Creation of Permanent Sentencing Commission for New York State

Chief Judge Jonathan Lippman on October 13, 2010 announced the establishment of the New York State Permanent Sentencing Commission, charged with conducting a comprehensive and ongoing evaluation of sentencing laws and practices and recommending reforms to improve the quality and effectiveness of statewide sentencing policy. A very important aspect of this Commission is that has been designated as permanent. There have been previous commissions created to look into these matters in New York State but they were designated as temporary. Hopefully the permant designation of this Commission will increase its influnce and help ensure that it's recommendations and ongoing guidance will have significant impact over many years.

For official Unified Court System Press Release announcing establishment of New York State Sentencing Commission visit:

http://www.nycourts.gov/press/pr2010_11.shtml:

Related Stories include:

Michael Jacobson named to New York State sentencing commission ...
Vera's director, Michael Jacobson, has been named to the new New York State Permanent ... announced today by the New York State Unified Court System. ...
www.vera.org/node/4498

News for lippman "sentencing commission" new york
Sentencing Law and Policy: New York gets a permanant commission to ... Oct 14, 2010 ... As reported in this New York Daily News article, ... "The present sentencing laws are a mess," Chief Judge Jonathan Lippman told the Daily News. ... in charge of the Permanent Sentencing Commission for New York State. ...
sentencing.typepad.com/.../new-york-gets-a-permanant-commission-to-help-with-sentencing-mess.html

The Crime Report » Archive » Blue-Ribbon Panel To Study New York ... Oct 14, 2010 ... A blue-ribbon panel aims to clean up New York state's ... will head the Permanent Sentencing Commission for New York State. ... ¿We don't know whether the offenders are prepared to live useful lives,¿ Lippman said. ...
thecrimereport.org/.../blue-ribbon-panel-to-study-new-york-sentencing-mess/

Permanent Sentencing Commission for New York State New York State Chief Judge Jonathan Lippman says 'the present sentencing ...
www.nydailynews.com/.../Permanent+Sentencing+Commission+for+New+York+State



October 14, 2010

Ethics and Social Media Use By Court Staff

Real world examples needed.I

am posting the following request for real-world examples of issues and problems regarding ethics and social media that have occurred in our courts as a service to all of us who really need access to this information. Please contact Norman Meyer directly if you have any helpful information. Congratulations to Mr. Meyer for taking on this project.

David Badertscher


Hello, everyone. I am beginning to draft an article for the National Association for Court Management's (NACM) "Court Manager" journal on the topic of ethics and the use of social media by court staff, and I would appreciate your help. In particular, I'm looking for real-world examples of issues and problems that have happened in our courts in this area. If you have anything to share in this regard, I'd appreciate it -- I intend to sanitize any examples to not reveal which court or person(s) may be involved, so don't worry about that. And, if you have any insights in general about social media use and how that relates to court ethics/Codes of Conduct, that would be useful to me, as well. Thanks in advance for any help you may provide me.

Norman Meyer
Clerk of Court
U.S. Bankruptcy Court
District of New Mexico
505-348-2449

p.s. I am familiar with, and am using, the wonderful recent publication from the federal court AO's Office of the General Counsel, "Resource Packet for Developing Guidelines on Use of Social Media by Judicial Employees," so I do not need duplication of information contained there.

p.p.s. If you are not a member of NACM, I urge you to consider joining it as well. NACM is a great organization, with really good publications, educational opportunities, and networking with our peers. As a Past President of NACM, I know that it has been a tremendous help to me in my career. To find out for yourself, take a look at the NACM website: http://nacmnet.org/ (in particular, the "about us" page gives a nice summary of what NACM offers: http://www.nacmnet.org/about/index.html ), or I'd be happy to respond to any questions.

September 28, 2010

From the Brennan Center: The Federal Judiciary

.Following up on our postiing about U.S. Supreme Court Associate Justice Stephen Bryer, we wanted to share with you the following excerpts from news and commentary sent to us by the Brennan Center for Justice at the New York University Law School

September 24, 2010.

1.. On Thursday, the Senate Judiciary Committee again voted to approve four of President Obama's nominees for federal judgeships. Goodwin Liu, a Berkeley law professor for the Ninth U.S. Circuit Court of Appeals, Louis Butler Jr., a former Wisconsin Supreme Court Justice, U.S. Magistrate Judge Edward Chen of California, and lawyer John McConnell Jr. of Rhode Island - all of whom had been previously approved by the Senate panel but never received a final vote on the Senate floor - were approved along party lines. The Blog of Legal Times says the vote indicates a partisan showdown in the weeks before the heated mid-term elections. Two opposing editorials illustrate how divisive the issue is: a New York Times editorial recently blasted "An Extreme Judicial Blockade" by Senate Republicans while a Washington Times editorial stated that a "GOP Senate [is] needed to block bad judges."

David Ingram, Democrats Push Forward On Goodwin Liu, Other Judge Nominees, The Blog Of Legal Times, September 23, 2010; An Extreme Judicial Blockade, The New York Times, September 22, 2010; Editorial: GOP Senate Needed To Block Bad Judges, Washington Times, September 15, 2010.


2.. "These delays are excessive . . . . The timeliness of information enhances its value. If un-elected administrators can impose an arbitrary 10-day waiting period, what's to stop them from deciding 30 days or three years might be even better?" So says an editorial in the Las Vegas Review-Journal, which decries the difficult and slow process of obtaining judicial disclosure statements. The topic of judges' disclosures of their financial holdings - and whether those holdings should disqualify judges from ruling on specific cases - received national attention earlier this year after the public discovered that the federal judge tasked with ruling on the Obama administration's deepwater drilling moratorium held shares of Exxon Mobil. According to the Associated Press, a routine disclosure statement from the judge, Martin Feldman, revealing his oil industry stock ownership, would have signaled a potential conflict of interest in the drilling case - but wasn't available because "Judges' disclosures [are] hard to get." The article juxtaposes judicial disclosure statements with those filed by legislators and concludes that while the public can read Senators' and House members' statements from a computer, concerned citizens should "be prepared to wait" to see a federal judge's disclosure statement because it can take two weeks for such a report to be provided, the reports are not posted on the judiciary's website, and judges are notified when someone asks for a copy.

Mark Sherman, Inside Washington: Judges' Disclosures Hard To Get, Associated Press, September 20, 2010; Editorial: Waiting Period, Las Vegas Review-Journal, September 22, 2010.


September 20, 2010

Book Review: Making Our Democracy Work, By Justice Stephen Breyer*

I often find there is little time to read all of the books I would like, or even need, to and therefore find myself resorting to book reviews. Last Sunday I read a review that to me seemd exceptional and would like to share it with you.

David Badertscher

REVIEW::

Evolving Circumstances, Enduring Values
By JEFF SHESOL
Published: September 17, 2010
A Supreme Court justice sees judges not as indifferent observers, but as partners in preserving American democracy.

An excerpt from the Review:

"...Breyer embraces, indeed relishes, complexity. Like a law professor, he proceeds mostly by inductive reasoning, offering specific examples — including some of the most contentious Supreme Court cases of recent years — to show how judges can patrol constitutional boundaries while, at the same time, giving people room to govern themselves. Here, as in his previous book, 'Active Liberty,' Breyer places emphasis on the purposes of statutes and of constitutional provisions, the real-world consequences of judicial decisions and the need to apply the Constitution’s basic values to changing circumstances."
----------------------------------------------
*As a bonus for those who are interested, here is a link to an video/audio of Supreme Court Associate Justice Stephen Breyer in conversation with Jeffrey Rosen and Pul Holdengraber on September 20, 2010 at the New York Public Library.

September 20, 2010

Should Cost be a Significant Factor in Sentencing Convicted Criminals?

Apparently the court system in Missouri thinks so. In her article, Missouri Tells Judges Cost of Sentences, publsihed in the September 18 New York Times, Monica Davey reports that "When judges here [Missouri] sentence convicted criminals, a new and unusual variable is available for them to consider: what a given punishment will cost the State of Missouri". According to the article "legal experts say no other state systematically provides such information to judges, a practice put into effect here last month by the state’s sentencing advisory commission, an appointed board that offers guidance on criminal sentencing." Smart Sentenciing Volume 2 Number 5 August 17, 2010 A Bulletin of the Missouri Sentencing Commission includes a discussion of cost of sentencing as a variable when determining sentences. According to the Bulletin the Missouri Sentencing Commission has added data about the risk of being reincarcerated and the costs of sentences to its online application as a variable to enhance the availability of objective inform I found it somwhat surprising that "....no other state systematically provides such information to judges". On alternative for those interested in pursuing this subjct further would be to start by following a search I conducted on the National Center for State Courts website using the terms cost and incarceration. David Badertscher
September 17, 2010

About Justce John Paul Stevens

Justice John Paul Stevens’ career offers many lessons for those interested in learning about the attributes of a good judge, maintains an editorial in the July-August issue of Judicature, the journal of the American Judicature Society. As the editorial explains, Justice Stevens is someone who sets high personal standards, demanding much of himself. He personifies traits such as candor, civility, integrity, courtesy, and responsibility. In short, he is the embodiment of what has come to be known as professionalism.

The editorial also notes that he is characterized by virtually everybody as open-minded, and a
good listener, as genial and humorous, as warm and welcoming and kind, as gentle and
possessing a generousness of spirit. He is a modest, humble, and unpretentious person,
notwithstanding all that he has accomplished in life, and a man possessing empathy for those
who are less fortunate. Former clerks all portray him as a wonderful teacher and role model.

The July-August issue also contains reminiscences of Justice Stevens by three former law
clerks from different time periods, and a review of John Paul Stevens: An Independent Life.

Summary

September 17, 2010

At Age 103, A Judge Has One Caveat: No Lengthly Cases

Judge Wesley E. Brown, is a spry, active 103 year old Federal District Court judge in Kansas. He still hears a full complement of criminal cases, but warns lawyers preparing for lengthly court cases that "he may not live to see cases to completion...." adding "At this age I'm not even buying green bananas."

For more, see the September 16 New York times article: At 103, a Judge Has One Caveat, No Lengthly Trials by A. G. Sulzberger

For more information about Judge Brown go to Wesley E. Brown Inn of Court. This source includes both biographical information and a videw, made when Judge Brown was just 22 years old!

August 31, 2010

New York is Moving Forward on E-Discovery and E-Filing

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.

August 20, 2010

New Politics of Judicial Elections, 2000-2009: Decade of Change

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


August 3, 2010

Judge Reiling on IT and the Access to Justice Crisis

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

June 18, 2010

U.S. Supreme Court Case Briefs: The Perspective of Professor Roy Little

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.]


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

June 18, 2010

The Ethics of Engaging in Extrajudical Activity While Advancing Pro Bono

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
judges play in supporting and participating in activities that promote a culture
of pro bono and access to justice within the legal profession?

Off the Bench: The Ethics of Engaging in Extrajudicial Activity While Advancing Pro Bono
A Two Part Workshop

Join the ABA, for this two part, highly interactive workshop, as we discuss important restrictions and provide guidance on particular situations while addressing the role of judges in the context of the Model Code.

9:00 a.m. — 10:30 a.m.
Part I: Judges Advancing Pro Bono as Champions of Justice

10:30 a.m. — 12:00 p.m.
Part II: Off the Bench: The Ethics of Extrajudicial Activity

Sponsored by:
The ABA Judicial Division Committee on Ethics and Professionalism
The ABA Judicial Division Lawyers Conference
The ABA Standing Committee on Pro Bono and Public Service

CLICK HERE FOR MORE INFORMATION


June 4, 2010

New York State's Highest Court Upholds Merger of Two Bronx Courts, IDV Courts

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. ...

June 3, 2010

U.S. Supreme Court Case Briefs (Berghuis, Carr): Professor Rory Little's Perspective

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.”

May 28, 2010

State Judicial Elections

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.

May 26, 2010

Book Review: The Supreme Court: A C-SPAN Book Featuring the Justices in Their Own Words

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.