Uber-Powerful Justice Kennedy

You could do an elaborate legal analysis of cases headed for the U.S. Supreme Court, or you could just ask, what would Justice Kennedy do? Because, despite the fact that 25% of U.S. Supreme Court cases are resolved by a 5-4 vote, Kennedy has been in the minority just 3 times out of 64 this term, only one of which was decided by a 5-4 vote (Arizona v. Gant, concerning warrantless searches of vehicles, a decision not decided on typical partisan lines with Justices Thomas and Stevens both in the majority).

FWIW, this is post 3850. This blog's fourth anniversary is eighteen days away.

Credit Card Default Rates High

U.S. credit card defaults rose to record highs in May ...

Bank of America—the largest U.S. bank—said its default rate, those loans the company does not expect to be paid back, soared to 12.50 percent . . . American Express . . . said its default rate rose to 10.4 percent ... Capital One said its credit card default rate rose to 9.41 percent . . . while Discover said its charge-off rate increased to 8.91 percent . . . JPMorgan Chase ... said its default rate rose to 8.36 percent[.]

From here.

What does it mean for you?

Credit card lenders are trying to protect themselves by tightening credit limits, raising standards and closing accounts. They have also been slashing rewards, increasing interest rates and boosting fees to cushion against further losses.

Encouraging Criminal Defendant Testimony?

Is there a case for encouraging more testimony from defendants (without crossing the line of compelling self-incrimination)?

Criminal defendants have the constitutional right to choose between testifying and remaining silent at trial. Within that broad constitutional framework, many legal rules affect the defendant’s decision. Some rules burden testimony and encourage silence, while others burden silence and encourage testimony.

There is no way for the state to be fully neutral between silence and testimony. Any legal rule that affects testifying and nontestifying defendants differently will have the consequence of penalizing one right or the other, and it would be impossible to remove all such rules from the system. Moreover, because testimony and silence are substitutes—a defendant must exercise one right at trial but cannot exercise both—any rule that penalizes one right necessarily rewards the other. . . .

American law . . . currently reflects an implicit policy preference for silence over testimony. . . . More testimony by criminal defendants would give the jury access to important additional information, increase defendants’ own sense of the legitimacy of the process, and reduce disparities between rich and poor defendants. Legal rules that raise the relative cost of testimony undermine these critically important goals. . . .

Toward that end, I propose three reforms. First, as a matter of constitutional criminal procedure, the Supreme Court should overrule Griffin v. California, and should thus allow prosecutors to argue adverse inferences from a defendant’s silence. Second, as a matter of evidence law, courts should abandon the Gordon v. United States test for Rule 609, and should admit fewer prior convictions for impeachment. Third, as a matter of sentencing law, courts should not impose perjury enhancements based on a defendant’s trial testimony. These three reforms would help to put American criminal law back on the right course by making more defendants speak.

From here.

Something similar to the latter two proposed reforms are found in the British criminal justice system where criminal defendants do not testify under oath.

Jury Selection Stereotypes

Few aspects of trial practice are more art than science than jury selection. You have little hard information, so you often turn to stereotypes to make the most accurate possible guess about juror's inclinations from what you know. But stereotypes are often wrong:

Women can be harder on rape victims who put themselves in risky situations. Business people could be bitter toward companies because of economic cutbacks. And minorities, who are supposed to favor the defense because they distrust law enforcement, often side with prosecutors, while whites sometimes favor black defendants, even if it's just out of a fear they'll be labeled racist if they do otherwise. . . .

"The best of all possible predictors are attitudes directly related to the case, attitudes and personal experience," said Sean Overland, who published The Juror Factor: Race and Gender in America's Civil Courts in December.

If you're trying a pharmaceutical case, you want to ask about experiences with prescription drugs, he said. If you're trying a violent crime case, you want to ask if jurors have been victims.

Judges often limit what can be asked, though, out of concern for jurors' privacy and getting the trial under way swiftly. The Byers' and Special juries added another wrinkle in that members were kept anonymous for their safety, further restricting what attorneys could ask.

"Sometimes, you're put in the awkward position of this many men, this many women, this many black people, this many whites," Overland said. "When that's all you have to go on, there's an incentive to use that in jury selection, even though it's illegal." . . .

Maryland U.S. Attorney Rod J. Rosenstein said his office is comfortable with all kinds of jurors, as long as they're not biased against the prosecution, because his prosecutors prepare well for cases and bring in solid evidence. More than 90 percent of those charged in Maryland's federal court plead guilty, Rosenstein said, and more than 90 percent of those who go to trial are convicted.

"The demographics of the jurors have at best a very minor effect on the outcome," said Randolph Jonakait, a professor at New York Law School who published the book The American Jury System in 2006.

"Almost always, it's the evidence that wins the case, not the background of the jury."

I'll agree that demographics, per se, aren't a huge effect on the outcome, but the not that evidence is everything, while the background of the jury is unimportant is doubtful. There may be clear cut cases out there, but they usually don't end up going to trial. Particularly in more discretionary decision making, like setting non-economic damages in a personal injury case, the background of the jurors can have an immense impact.

Denver Public Schools Flunk Equity

While hardly remarkable for an inner city public school system, the Denver Public Schools still persistently fail to bridge socio-economic gaps among their students.

Denver student performance is improving, but continues to remain very low on nearly every measure when compared to the district's own goals, to state averages, to demographically similar districts in Colorado and to other urban districts around the nation. . . .

* Persistent and wide gaps in achievement continue to exist between students of different backgrounds.

* Few students perform at grade level, and as they get older, more students fall below grade level.

* While students do show academic growth from year to year, almost none improve fast enough to rise back up to grade level if they ever fall behind.

The news report cites "Denver's Public Schools: Reforms, Challenges and the Future," a report sponsored by the Children's Campaign, A-Plus Denver and Metro Organizations for People.

I have two children who attend DPS and every reason to support improvement in the district. The District is throwing all manner of solutions at its academic performance problems. While other schools in the states have higher per pupil funding, DPS is above average in the funding that it has available to it. It has a myriad of charter schools and special programs. It has experimented with compensation reforms, new performance measures that look at value added, relaxing district and union work rules, overhauling underperforming schools, and tweaking school calendars.

Many factors that make the woes of DPS so visible are a product of demographics and family decisions made about school choices. Demographics are not destiny, but demographic change is a powerful and persistent force that profoundly impacts the kind of challenges that the district faces. About 25,000 out of about 95,000 school aged children in Denver opt out of the Denver Public Schools, and those children are overwhelmingly children who are more academically able than those who stay in the district; often they are middle class, white, native English speakers who do not need special education services. Denver's desegregation plan led to massive white flight (as it did across the nation) and the demographic impact that white flight did not dramatic undo itself when the desegregation order was lifted.

Not surprisingly, the large number of students who are poor, are learning to speak English, or have been identified as needing special education services fair particular well on measures of academic achievement and make up a large share of DPS students.

A high concentration of academically struggling students may simply accentuate problems that would have been there in any case, even without student flight from DPS, which would simply have been statistically masked but still present if a larger share of academically able students stayed in the district.

The report's news isn't new, although it does package a lot of pertinent statistics in one handy package. Clearly, the students who are doing poorly deserve a better education and better opportunities. But, the way to achieve this is elusive.