The Independent State Legislature Theory

It is stunning that this fringe theory has at least three backers on SCOTUS and could become law soon. The theory is also contrary to past SCOTUS precedents.

This Essay explores historical evidence from the Founding Era underlying Art. 1, Sec. 4 of the US Constitution (and related clauses) that delegate certain powers to state legislatures in making federal election laws. The article shows that far from empowering the state legislatures, the US Constitution was meant to curb state legislative supremacy and confirm the subordination of state legislatures to the checks and balances embedded in the individual state constitutions. It shows that the Independent State Legislature Theory is contrary to both the theory of constitutional government and the practices of state legislatures in making federal election laws.

Rosemarie Zagarri, The Historian's Case Against the Independent State Legislature Theory Boston College Law Review (March 2023) (Forthcoming).

Related:

The federal judiciary is increasingly fragmented into red courts and blue courts. Democratic presidents overwhelmingly appoint judges in blue states, while Republicans mostly appoint judges in red states.

This is a recent phenomenon; it was much less true even a decade ago.

It is accelerating. And it is likely to corrode both the rule of law and the public’s perception of it. In this Essay I document the phenomenon, explain why it is dangerous, and offer some thoughts on how to fix it.

Mark A. Lemley, Red Courts, Blue Courts on SSRN (2022).

From the body text of Leley's article:

Biden may be shying away from appointing judges in red states because of the strong historical norm that home-state senators get a quasi-veto (called a “blue slip”) over at least district court judge nominations. If a state has two Republican Senators, they may simply not be willing to allow a vote on a Biden nominee. And because all the votes today are so close, they depend on at least one judiciary committee Republican vote and generally one or two floor Republican votes. Losing a couple of Republican votes because the home state senators object might doom the nomination and will at the very least make it harder. 

Blue slips have less power over appellate nominations, which don’t come from a single state. That is one important reason appellate courts are less divided than district courts. (Another is that presidents care more about appellate judgeships and so may be willing to fight harder to appoint people to the appellate courts even in hostile jurisdictions).

The blue slip procedure needs to go. It’s not clear it was ever a good idea to give individual senators that much power. 

But at least in the past it was mostly used to object to particular individuals, or perhaps as a delaying tactic, rather than as a way to prevent appointments from the opposite party altogether.

Video Recordings And Crime

Commercial Video and Crime

Someone shot and killed three people, seemingly at random, in a Walmart in Thornton, Colorado yesterday evening.

Because the store and its parking lot are covered with cameras, primarily intended to catch shoplifters, we can say with great confidence that the man arrested, a 47 year old man by the name of Scott Ostrem, is very likely the man who committed the shooting, even though this is one of the very rare cases where a multiple homicide shooter did not die in the act and was not captured at the scene of the crime.

His actions from the time he entered the store, to the shooting in the store, to his departure from the store in his vehicle, were all caught on camera, and the quality of security video has increased greatly from the days when it was introduced.

Whether or not Ostrem is guilty of a homicide crime, and which homicide crime he is guilty of, may depend upon a potential insanity defense and questions of the nature of his intent. But, there will be no reasonable basis upon which to doubt that he was the shooter whose firearm killed the three victims.

Dash Cam Video And Law Enforcement Liability

Video recordings are also significantly increasing the extent to which law enforcement officers are prosecuted and sued for crimes, even when they lie about the facts. For example, as the official synopsis of an opinion in the United States Court of Appeals for the 9th Circuit yesterday explained:

The panel held that in this case, a jury could reasonably conclude that Higgins could have sufficiently protected himself and others after Zion fell by pointing his gun at Zion and pulling the trigger only if Zion attempted to flee or attack. Although Higgins testified that Zion was trying to get up, the panel determined that in light of the video footage to the contrary, the issue of whether Zion attempted to flee or attack involved a dispute of fact that had to be resolved by a jury.

The relevant portion of the opinion itself says (legal citations omitted, emphasis added):

Plaintiff doesn’t challenge Higgins’s initial nine-round volley, but does challenge the second volley (fired at close range while Zion was lying on the ground) and the head stomping. By the time of the second volley, Higgins had shot at Zion nine times at relatively close range and Zion had dropped to the ground. In the video, Zion appears to have been wounded and is making no threatening gestures. Lopez Video 3:04. While Higgins couldn’t be sure that Zion wasn’t bluffing or only temporarily subdued, Zion was lying on the ground and so was not in a position where he could easily harm anyone or flee. A reasonable jury could find that Zion was no longer an immediate threat, and that Higgins should have held his fire unless and until Zion showed signs of danger or flight. Or, a jury could find that the second round of bullets was justified, but not the head-stomping. 

Defendants argue that Higgins’s continued use of deadly force was reasonable because Zion was still moving. They quote Plumhoff v. Rickard: “[I]f police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.” But terminating a threat doesn’t necessarily mean terminating the suspect. If the suspect is on the ground and appears wounded, he may no longer pose a threat; a reasonable officer would reassess the situation rather than continue shooting. This is particularly true when the suspect wields a knife rather than a firearm.2 In our case, a jury could reasonably conclude that Higgins could have sufficiently protected himself and others after Zion fell by pointing his gun at Zion and pulling the trigger only if Zion attempted to flee or attack. 

Higgins testified that Zion was trying to get up. But we “may not simply accept what may be a self-serving account by the police officer.” This is especially so where there is contrary evidence. In the video, Zion shows no signs of getting up. Lopez Video 3:01. This is a dispute of fact that must be resolved by a jury.

[2] It may be that, once on the ground, Zion had dropped the knife. Whether the knife was still in Zion’s hand or within his reach, and whether Higgins thought Zion was still armed, are factual questions that only a jury can resolve.

In the days before video of these incidents was frequently available, this excessive force lawsuit would very likely have been dismissed on the strength of the law enforcement officer's sworn lie in videotapes that the trial court had apparently sealed.

Even with video, the trial court judge granted summary judgment in favor of the police officer in the face of video evidence flatly contradicting the officer's testimony:

What happened next is captured in two videos taken by cameras mounted on the dashboards of the two police cruisers.1 Zion is seen running toward the apartment complex. Lopez Video 2:58. Higgins shoots at him from about fifteen feet away. Higgins Video 3:25. Nine shots are heard and Zion falls to the ground. Lopez Video 2:54. Higgins then runs to where Zion has fallen and fires nine more rounds at Zion’s body from a distance of about four feet, emptying his weapon. Id. at 3:00–03. Zion curls up on his side. Id. Higgins pauses and walks in a circle. Id. at 3:05. Zion is still moving. Id. at 3:00–12. Higgins then takes a running start and stomps on Zion’s head three times. Id. at 3:11–20. 

Zion died at the scene. His mother brought suit under 42 U.S.C. § 1983, claiming Higgins used excessive force. She also claims Higgins deprived her of her child without due process. She raised a separate substantive due process claim on Zion’s behalf, municipal liability claims and various state law claims. The district court granted summary judgment to defendants on all claims.

[1] The videos can be viewed at https://www.ca9.uscourts.gov/media/ 15-56705/evidence/Lopez (Lopez Video) and https://www.ca9.uscourts. gov/media/15-56705/evidence/Higgins (Higgins Video).

The appellate opinion also ordered that: "The videos—Exhibits A and B—shall be unsealed."

The simple truth is that the trial judge in this case (Central District of California District Judge James V. Selna) to whom the case has been remanded, a George W. Bush appointee, has no business serving as a judge in this case after ignoring the fact that two video recordings flatly contradicted the police officer's testimony and nonetheless finding his testimony to be credible. This dishonest and reprehensible conduct by judges in cases involving police officers, is, unfortunately, all too common.

College Football Results Influence Juvenile Sentence Lengths

Judges are human and their discretionary decisions, like sentence lengths, are influenced by their moods. This is an important counterpart to the reasons in favor of giving judges wide discretion.

Employing the universe of juvenile court decisions in a U.S. state between 1996 and 2012, we analyze the effects of emotional shocks associated with unexpected outcomes of football games played by a prominent college team in the state. We investigate the behavior of judges, the conduct of whom should, by law, be free of personal biases and emotions. We find that unexpected losses increase disposition (sentence) lengths assigned by judges during the week following the game. Unexpected wins, or losses that were expected to be close contests ex-ante, have no impact. 

The effects of these emotional shocks are asymmetrically borne by black defendants. We present evidence that the results are not influenced by defendant or attorney behavior or by defendants’ economic background. Importantly, the results are driven by judges who have received their bachelor’s degrees from the university with which the football team is affiliated. Different falsification tests and a number of auxiliary analyses demonstrate the robustness of the findings. 

These results provide evidence for the impact of emotions in one domain on a behavior in a completely unrelated domain among a uniformly highly-educated group of individuals (judges), with decisions involving high stakes (sentence lengths). They also point to the existence of a subtle and previously-unnoticed capricious application of sentencing.

Naci Mocan and Ozkan Eren, "Emotional Judges and Unlucky Juveniles" (February 14, 2017).

What Criminal Court Authority Do Non-Lawyer Judges Have?

Though it may seem surprising that judges in all of America’s courts do not necessarily need to be lawyers, the practice is fairly common. Thirty-one states have some courts where judges do not have to be a lawyer. In nine of these states that allow non-lawyer judges, along with the 19 states and the District of Columbia that require all judges to be a lawyer, the non-lawyer judges are banned from taking a defendant’s liberty in a criminal proceeding.

The remaining 22 states, primarily for reasons of cost efficiency or to facilitate justice in more rural jurisdictions, have non-lawyer judges preside over misdemeanors or ordinances that carry jail time as a possible punishment. But even among those states, 14 of them give the defendant the right to have a trial de novo on appeal – basically a whole new trial – before a judge who is a lawyer. That leaves the eight states — Arizona, Colorado, Montana, Nevada, New York, South Carolina, Texas, and Wyoming — where a defendant can stand trial before a non-lawyer judge on a jailable offense, and if he is convicted and sentenced to jail, his only recourse is to appeal to a higher court with a judge who is a lawyer. But that appeal is based solely on whatever record was made in the non-lawyer court; he does not get a new trial.

As explained in the Montana cert petition, “In North v. Russell, 427 U.S. 328 (1976), the Court held that the Due Process Clause permits a criminal defendant facing the possibility of incarceration to be tried by a non-lawyer judge — so long as the defendant has the right to a de novo trial before a judge who is a lawyer.” But the U.S. Supreme Court has never decided whether it is okay for a defendant to be tried by a non-lawyer judge where a state does not give the defendant a new trial on the appeal to a court whose judge is a lawyer. And that is the issue that the Montana lawyers are seeking to have the U.S. Supreme Court decide.

From here.

The body of the certiorari petition further explains that:

Today, no state allows non-lawyer judges to try felony cases. Of the 22 states that allow non-lawyer judges to try misdemeanors that can result in imprisonment, most give the defendant the right to a de novo trial before a judge who is a lawyer. There are only eight states that still allow non-lawyer judges to try such misdemeanor cases without giving the defendant an opportunity for a de novo trial before a judge who is a lawyer. In five of these eight states (Colorado, Montana, Nevada, New York, and Texas), nonlawyer judges have this power only in certain counties. In two (Arizona and Montana), non-lawyer judges have this power only for misdemeanors punishable by six months imprisonment or less, and in one (South Carolina) they have this power only for 9 misdemeanors punishable by thirty days imprisonment or less.

The scope of the challenge in this case is narrow:

The issue is narrow, however, in two senses. 

First, the practice we are challenging represents only a tiny slice of the work of non-lawyer judges. The Due Process Clause does not bar non-lawyer judges from doing all the other things they do—trying traffic violations and other minor criminal matters that do not entail incarceration, presiding over small civil cases, conducting preliminary hearings, issuing warrants, performing marriages, and so on. Nor does the Due Process Clause bar non-lawyer judges from trying, in the first instance, misdemeanor cases punishable by incarceration, so long as the defendant may obtain a de novo trial before a judge who is a lawyer. Nonlawyer judges still have important roles to play in the states’ legal systems. 

Second, the practice we are challenging survives only in three states and parts of five others. All the other states guarantee defendants facing incarceration a trial before a judge who is a lawyer. So did Montana, for more than a century. In these states, moreover, it is likely that, as in Montana, some of the judicial positions not required by statute to be staffed by lawyers are nevertheless currently occupied by lawyers. If the Court holds that due process in these cases requires a judge who is a lawyer, the Court’s decision would require only a modest change to current practice.  

The impact of the case in Colorado would be pretty minimal. 

There were only four non-lawyer judges in Colorado the last time I checked, each serving in a county court (whose jurisdiction is limited to misdemeanors and arraignments), in rural counties. All of them are selected on a merit basis, are at least college educated and receive meaningful judicial education. And, a slight tweak to the nature of the appeal right in the very small percentage of criminal cases that do not result in a plea bargain before these four judges, to make the arrangement constitutional, would be a straightforward step for the Colorado General Assembly to take.

Notably, municipal court judges in Colorado, while arguably further down the judicial hierarchy than county court judges, must generally be lawyers.

In Montana, the state at issue, there are seven non-lawyer judges in courts of record whose decisions are not appealed with trials de novo out of eleven judges in the eight of 56 Montana counties that have made their "justice courts" into courts of record that are not appealed de novo (something that did not exist from 1895 to 2003 in Montana). As of 2011, city courts were allowed to follow suit in Montana and five cities created city courts of record, each with a single non-lawyer judge.

Both cases brought before the U.S. Supreme Court from Montana that are at issue here were tried before one Park County non-lawyer judge:

The judge in both trials was Park County’s elected Justice of the Peace, Linda Budeski. Justice Budeski is not a lawyer. According to her campaign materials, before becoming a judge she spent 24 years as a cashier and meat wrapper at a grocery store, and six years as a prevention specialist for a chemical dependency program. Re Elect Linda Budeski for Justice of the Peace (http://goo.gl/yz4BX6). 

Montana requires Justice Budeski, like others in her position, to attend two kinds of training sessions. First, every four years, after each election, justices of the peace must complete a four-day “certification” course, where they receive training in some of the fields they will encounter on the bench. These topics range from introductory matters like “The Basics of Law” and “Judicial Demeanor” to more specialized areas like Courts and Jurisdiction, Constitutional Law, Initial Appearances, Evidence, Search and Seizure, Landlord-Tenant Law, Criminal Procedure, Orders of Protection, Civil Procedure, Traffic Law, Legal Research, Court Financial and Docket Management, Small Claims, Youth Offenders, and Contracts. Second, justices of the peace must attend two annual continuing education sessions. Mont. Code § 3-10-203(2). These sessions must provide a total of at least fifteen hours of training per year. Montana Judicial Branch, Judicial Education (http://courts.mt.gov/cao/ct_services/jud_ed). 

Montana’s non-lawyer justices of the peace thus begin their careers after a four-day training course consisting of approximately 28 hours of study. To put that in perspective, one cannot become a manicurist in Montana without at least 400 hours of study. Mont. Admin. R. 24.121.601(3)(e)(ii). To become a barber in Montana requires at least 1,500 hours of study. Mont. Code § 37-31-304(2)(a)(ii). Montanans wishing to practice cosmetology need 2,000 hours of study. Id. § 37-31-304(3)(a). That is 71 times as much training as it takes to become a justice of the peace and sentence defendants to incarceration. 

The situation is much more serious in New York, where non-lawyer judges are elected, rather than selected on a merit basis, there are far more non-lawyer judges, and there is a long history of troubling conduct by non-lawyer judges in criminal cases in the state.

I'm not familiar enough with the situation in the other six states to know what impact it would have.

Of course, the U.S. Supreme Court isn't required to take the case, and the outcome of the case if it did take it to resolve this basis issue of constitutional law is unclear.

A Footnote On The Gentry

The Montana cert petition linked above makes an interesting observation that in English law, Justices of the Peace had to be members of the gentry which Wikipedia explains in the British context as follows:

The British upper classes consist of two sometimes overlapping entities, the peerage and landed gentry; any male member of either may regard himself as a gentleman, in a special sense mutually understood between hereditary members of the class, which will often exclude life peers. In the British peerage, only the senior family member (typically the eldest son) inherits a substantive title (duke, marquess, earl, viscount, baron); these are referred to as peers or lords. The rest of the nobility are referred to as landed gentry (abbreviated "gentry"). Except for the eldest sons of peers, who bear their fathers' inferior titles as 'courtesy titles' but for Parliamentary purposes counted as commoners, they usually bear no titles apart from the qualifications of esquire or gentleman (which are ranks recognised in law, although now without any legal consequence); exceptions include the baronet (a title corresponding to a hereditary knighthood), those that are knighted (for life, called Sir X Y), Scottish barons (who bear the designation Baron of X after their name),[17] and Scottish lairds (whose names include a description of their lands in the form of a territorial designation).[18] 

The term landed gentry, although originally used to mean nobility, came to be used for the lesser nobility in England around 1540. Once identical, these terms eventually became complementary. The term gentry by itself as commonly used by historians, according to Peter Coss, is a construct applied loosely to rather different societies. Any particular model may not fit a specific society, yet a single definition nevertheless remains desirable.[19][20] Titles, while often considered central to the upper class, are not strictly so. Both Captain Mark Phillips and Vice Admiral Sir Timothy Laurence, the respective first and second husbands of HRH Princess Anne, lacked any rank of peerage at the time of their marriage to Princess Anne. However, the backgrounds of both men were considered to be essentially patrician, and they were thus deemed suitable husbands for a princess. 

Landed gentry is a traditional British social class consisting of gentlemen in the original sense; that is, those who owned land in the form of country estates to such an extent that they were not required to actively work, except in an administrative capacity on their own lands. The estates were often (but not always) made up of tenanted farms, in which case the gentleman could live entirely off rent income. 

Esquire (abbreviated Esq.) is a term of British origin, referring only to males, and used to denote a high but indeterminate social status. The most common occurrence of term Esquire today is the conferral as the suffix Esq. in order to pay an informal compliment to a male recipient by way of implying gentle birth. In the post-mediaeval world, the title of esquire came to belong to all men of the higher landed gentry; an esquire ranked socially above a gentleman but below a knight. In the modern world, where all men are assumed to be gentlemen, the term has often been extended (albeit only in very formal writing) to all men without any higher title. It is used post-nominally, usually in abbreviated form (for example, "Thomas Smith, Esq."). 

A knight can be either a mediaeval tenant giving military service as a mounted man-at-arms to a feudal landholder, or a mediaeval gentleman-soldier, usually high-born, raised by a sovereign to privileged military status after training as a page and squire (for a contemporary reference, see British honours system). In formal protocol, Sir is the correct styling for a knight or a baronet, used with (one of) the knight's given name(s) or full name, but not with the surname alone. The equivalent for a woman who holds the title in her own right is Dame; for such women, the title Dame is used as Sir for a man, never before the surname on its own. This usage was devised in 1917, derived from the practice, up to the 17th century (and still also in legal proceedings), for the wife of a knight. The wife of a knight or baronet is now styled "Lady [Surname]".

Membership in the gentry was originally pre-requisite to the honorific "Gentleman", a term that like the honorific "Sir" originally confined to knights, has been inflated to have almost general application. Alexander Hamilton, the claimed grandson of a Scottish laird after whom he was named, would have had a birthright to membership in this class had his birth not been illegitimate (and his paternity not entirely certain, another biological father has been suggested). 

The term "Landlord" derives from this historical class elevation of the gentry, and often when someone owned much of the land somewhere, it was expedient to give that person not just the legal authority of a property owner, but also the sovereign authority of a Justice of the Peace, to handle minor civil disputes and criminal matters.

Trump Still Openly Racist And Justice Moore Still Delusional

Trump's comments about a U.S. born, Mexican-American judge presiding over a lawsuit in which his Trump University is credibly accused of fraud, show that he is such a racist that even Paul Ryan, the Republican speaker of the U.S. House of Representatives felt compelled to call him out for it unprompted, just a day after endorsing him.

In other news, Alabama Supreme Court Chief Justice Moore is on the record as saying that the First Amendment protects only Christians for reasons that are crazy and would earn an automatic "F" on any law school exam.  He was removed from office in 2003 for defying the U.S. Supreme Court, re-elected in 2012, and is currently in the process of being removed from office again for defying the U.S. Supreme Court again.  It is appalling that men live Justice Moore hold any public office or are allowed to remain as members of the bar.

SCOTUS Frees Wrongfully Convicted Man On Death Row

In yet another reminder that prosecutorial misconduct is rampant in much of the nation, the U.S. Supreme Court summarily reversed a Louisiana court that had denied post-conviction relief to a death row inmate.  The prosecutors had withheld a great deal of solid evidence in their control suggesting that the man was innocent, a violation of the U.S. Supreme Court's Brady decision.

They defended the conviction despite other strong evidence that was a product of ineffective assistance of counsel that other witnesses could have strongly established an alibi defense.

Judges Alito and Thomas expressed concern that oral arguments weren't held and that the U.S. Supreme Court should wait until a federal habeas petition was filed despite the fact that the issues were already clear and the fact that this man had been incarcerated for eighteen years or so too long already.

The six member per curium majority strongly rebuked both the entire criminal justice system of Louisiana and the dissent that wanted to put barriers in the way of correcting the injustices associated with the 1998 murder.

Examples of misconduct like this one, which also violate the professional ethical rules for prosecutors (although these attorneys are almost never disciplined for this kind of misconduct), show how eager some prosecutors and courts and conservative justices are for blood, and how inflexible they can be once it is clear that they have made a mistake.

In principle, Louisiana could retry the man, but it is highly unlikely.

Immigration Judges Are Still Nuts

I don't practice immigration law because the system is so unfair that it would drive me crazy. Life changing decisions are frequently made with processes that don't remotely stand up to any fair notion of due process.

A federal immigration judge believes migrant toddlers can defend themselves in court, according to a deposition in a court case brought by advocates seeking government-appointed attorneys for the youths.

"I've taught immigration law literally to 3-year-olds and 4-year-olds. It takes a lot of time. It takes a lot of patience," Judge Jack Weil said. "They get it. It's not the most efficient, but it can be done."

From the Los Angeles Times.  The Washington Post story from which the L.A. Times story was derived makes clear that this is not just a hypothetical.  The United States really does have children five years of age and younger represent themselves in deportation hearings and three Plaintiffs in the ACLU class action case are under the age of five.

According to Justice Department figures, 42 percent of the more than 20,000 unaccompanied children involved in deportation proceedings completed between July 2014 and late December had no attorney. It is unclear how often children 5 or younger are forced to defend themselves, but attorneys and advocates for immigrants said it does happen.

Senate Minority Leader Harry M. Reid (D-Nev.) and other Democrats this month introduced a bill mandating government-appointed counsel for children in immigration court who had crossed the border alone or are victims of other duress such as abuse, torture or violence. In a Feb. 11 speech on the Senate floor, Reid said he was told about one case in which a 5-year-old girl was brought before an immigration judge.

“This little girl was clutching a doll and was so short she could barely see over the table to the microphone,’’ Reid said. “She was unable to answer any questions that the judge asked her except for the name of her doll: ‘Baby Baby Doll.’ That was the name of her doll.”

At such hearings, children face the same types of immigration charges as adults, ranging from entering the country illegally to overstaying their visas. The children — most of whom cannot speak English and must use government-provided interpreters — are generally asked questions by judges such as when they arrived in the United States and whether they faced persecution in their home countries, according to court documents and immigration attorneys.

But the questions can easily trip up children with no lawyers, the attorneys said. A judge may ask, for example, if the child wants to leave the country voluntarily or would rather be ordered deported. If the child chooses either option, he or she cannot apply for other forms of immigration relief such as asylum in the United States.

Judge Weil claimed in a deposition in an ACLU class action lawsuit, that "I have trained 3-year-olds and 4-year-olds in immigration law. You can do a fair hearing."

Judge Weil did concede that it might be hard for a one year old who can't talk yet to represent himself or herself fairly in an immigration hearing.

Weil is being offered as an expert witness for the federal government on this issue:

The government had offered Weil as an expert witness in the case, and submitted his deposition to the court in January to support its position that attorneys should not be mandatory for youths in immigration court.

A graduate of the University of Maryland and its law school, Weil served first as a law clerk in San Diego immigration court before rising through the ranks as an immigration judge in El Centro, Calif., and finally assistant chief immigration judge responsible for overseeing policies in the country's 58 immigration courts. He also oversees the training of judges, court administrators, interpreters, legal technicians and law clerks.

Anyone with a little common sense and any experience with children 3 or 4 years old, knows that his position is absurd. It destroys his credibility as an expert on anything.

Susan Terrio, an anthropology professor at Georgetown University, interviewed dozens of unaccompanied minors as well as immigration attorneys and judges for her book published last year, "Whose Child Am I? Unaccompanied, Undocumented Children in U.S. Immigration Custody."

All of the attorneys she interviewed received special training in immigration law before representing children in court, Terrio said.

"If a graduate of an American law school needs specialized training in order to provide competent legal representation, it strains credulity for an immigration judge to insist that he can train a young child in complicated legal concepts and procedures," she said, "particularly when that child is from a different culture, does not speak English, does not yet read in her native language, is apprehended and held in custody after an often dangerous and traumatizing journey to the U.S., and has no government-appointed attorney or child advocate."

All 31 of the immigration judges she interviewed supported providing legal representation for youths in immigration court, Terrio said, "because it would be more ethical and efficient."

The ACLU lawyer who deposed Weil said he was "mystified" and "flabbergasted" by the judge's comments — and by the department's backtracking.

The time has come for higher-ups to intervene in this litigation where the United States government is taking positions that President Obama can't possibly agree with himself.

Oklahoma Court To Execute Probably Innocent Man

Richard Glossip is probably innocent. But, it is a travesty even if he is merely possibly innocent. No reasonable jury would have convicted him of murder applying the beyond a reasonable doubt standard, and sentenced him to death (which arguably invokes an even higher standard of proof) if they had had access to the relevant evidence. This was a weak case almost entirely supported by testimony from a confessed killer who actually did the killing, who received a life sentence in order to secure testimony that they fed to the confessors killer to make the case that Glossip put him up, to it in the absence of any other meaningful evidence. There is strong evidence that the confessed killer would have recanted his story if he didn't believe that he could receive the death penalty for doing so. It is a case of clear law enforcement and prosecutorial misconduct.

But, after an extraordinary two week stay issued four hours before his execution, the Oklahoma Court of Criminal Appeals (the highest court in the state in criminal matter) has denied him relief by a 3-2 vote and he is scheduled to be executed on Wednesday at 3 p.m. local time.

Reality Bites

* The public defender's system in one Georgia judicial circuit was so profoundly broken that one man sat in jail for 110 days for a crime for which he had already been convicted and served his sentence. He was pressured to plea guilty to the offense a second time and receive ten years in prison for it.  There is no indication that he has received any compensation for his obviously and patently wrongful incarceration secured through a violation of his constitutional rights as a matter of the official policy and procedure of governmental bodies in question.

The officials in charge of making the system work and operating the local judicial system, including the judges, willfully defy the constitution in myriad way and have worked very hard to prevent it from having any effect in their four countries.  Alas, this situation is Georgia isn't that unusual elsewhere in the country.  Turning court rulings into adequate funding for public defenders isn't something that happens automatically or naturally, although funding for incarceration seems to have no such problem.  Kudos to the Southern Poverty Law Center for its tireless and never ending work to secure justice in a part of the country that isn't interested in it.

This situation comes close to the definition of evil, which is pretty much par for the course in rural Georgia (FWIW, I was born in Atlanta and lived there until I was six).

UPDATED AUGUST 14, 2015: * In a related point, the bail system is deeply broken and coerces the poor. END UPDATE

* Kevin Drum artfully makes the case that the Donald Trump's supporters are most motivated because they are angry white men (and more than a few women cut from the same cloth) sick of political correctness.

[F]or most people their real issue with it is that it forbids them from delivering casual slurs—that everyone knows are true—about blacks or women or Muslims or gays or whatever. They've been doing it all their lives, and they think it's ridiculous that they have to watch themselves in public lest someone think they're racists. Trump appeals to that sentiment. . . . At a gut level . . . they think "normal" American culture is under attack. . . . no one is even allowed to tell the truth about what this really means. Mexicans come pouring across the border but you get in trouble for just plainly saying what everyone knows: most of them are criminals and should be sent back. Muslims blow up the World Trade Center, but woe betide anyone who makes the common sense observation that we should keep a close eye on mosques because most of them are terrorist breeding grounds. Blacks commit violent crimes at higher levels than whites, but we all have to pretend this is only because whites have been keeping them down for so long. And if you make a harmless joke about some woman having a great body? It's a compliment! But the feminazis will be all over you like bees in a hive.

They want carte blanche to act in ways that they think makes common sense, even if that common sense is mostly dead wrong. About a quarter of likely Republican voters support Trump, and Kevin Drum has accurately captured one of the predominant reasons why this is so.  Plenty of Republicans who ultimately support other candidates feel the same way.  The fact that you are reasonably affluent doesn't mean that you are well informed.

Is it possible to change the hearts and minds of these people?  I'd like to think so, but I'm not sure what means would be most effective or how such a campaign could be financed.  Until we do, however, we are going to be stuck with powerful regressive cultural forces playing a powerful role in our political system.

* In the last couple of days Colorado has had floods that sent cars floating down the streets in Colorado Springs, snow at Eisenhower Tunnel, a tornado in metropolitan Denver, and three million gallons of toxic mine waste loaded with heavy metals flowing down the Animas River into Durango and beyond.  We even had a wildfire triggered by recreational target shooting.  So far, however, we haven't had any major earthquakes or volcanoes, so that's something.

Reforming Absolute Immunity For Prosecutors and Judges

Background on Absolute Immunity

In general, criminal prosecutors and judges have absolute immunity from liability for acts conducted in the furtherance of their judicial system functions.  Normally, if you feel that you have been harmed by the conduct of a prosecutor or judge in the judicial process, you appeal their rulings or collaterally attack their judgment in state or federal court (e.g. habeas corpus petitions in federal court).  Note, however, that a prosecutor who acts in a non-judicial capacity, for example as part of a investigation of a crime, has only qualified immunity from liability just like other law enforcement officers for that conduct.

There is good reason for this immunity.  Both criminal prosecutors and judges are routinely grieved for alleged ethical violations by dissatisfied litigants in complaints that are almost never sustained following an investigation (usually because the complaints are "appellate in nature"), and only 1-2% of so of habeas corpus petitions (and prisoner's petitions generally) are found to have merit.

On the other hand, there are instances in which serious misconduct by prosecutors and judges, in blatant disregard for their legal duties, results in serious harm to litigants that is not easily remedied through appeals of a conviction.

Misconduct by Prosecutors

In the case of prosecutors, the most common issue is that prosecutors fail to disclose exculpatory evidence that they are constitutionally required to turn over to defense attorneys under the U.S. Supreme Court's Brady decision resulting in wrongful convictions (which are defended beyond all reason once the mistake is discovered about half the time).

While this is an ethical violation for prosecutors, in addition to a violation of a clearly established constitutional right, the proportion of cases where a Brady violation is found to have occurred in connection by an effort to vacate a criminal conviction that result in attorney regulation officials commencing cases against the prosecutors who violated the constitution in the case resulting in the wrongful incarceration is only about 1 in 100 in California where a rigorous study was conducted. It is a striking example of the capture of an agency by the people who are supposed to be regulated by it. The rate of adjudicated misconduct by prosecutors in California in that same year was roughly 1 per 500,000 people per year.  About 80% of cases where misconduct by a prosecutor is determined to have occurred, however, are not found to be sufficient grounds to overturn a conviction, under the harmless error doctrine. or on procedural grounds like failure to preserve an issue for appeal. Damages from misconduct by a prosecutor will typically be nominal where a court determining that such a violation took place still finds that the sentence should stand, but will be very substantial in cases where the conviction is overturned.

So, one might expect about 10 such cases a year in Colorado, and one case of attorney discipline for misconduct by a prosecutor per decade in Colorado (which isn't too far from our actual experience), resulting in about 2 overturned convictions per year.  Colorado has about 540 prosecutors employed by federal and state governments in any given year, and entry level positions typically have quite high turnover.  So fewer then 2% of all prosecutors in the state would be exposed to any civil liability if suits were allowed in adjudicated cases of wrongdoing as described below, and less if a significant number of the violations are committed by repeat violators as if often the case in these situations. Only about 0.4% of prosecutors in any given year would face substantial civil liability under the proposed rule.

Probably the next most common type of misconduct by a prosecutor, which is closely related, is to offer evidence from a witness who is known to be lying on the stand and then to fail to correct the harm caused by those lies.

The U.S. Supreme Court took up such a case in 2009 on the question: "May a prosecutor be subject to civil prosecution when he allegedly violated the criminal defendants' substantial due process rights by fabricating evidence and then introducing it at trial against the defendants?", after the 8th Circuit Court of Appeals dismissed the claims of parties who were framed by a prosecutor who offered knowingly false testimony due to a prosecutor's absolute immunity.   But, the U.S. Supreme Court then dismissed the case without an opinion when the parties settled the case, a result that kept the 8th Circuit absolute immunity precedent in place, while presumably resulting in a significant monetary settlement for the wrongfully convicted plaintiffs.

Misconduct By Judges

In the case of judges, the most typical situation (which is much less common) is for a corruption investigation to result in a criminal prosecution of a judge or a judicial ethics investigation of a judge to find wrongdoing.  Not too infrequently, these cases involve improper sexual or financial relationships with prosecutors or other criminal justice system participants.

For example, Pennsylvania judge Mark A. Ciavarella Jr. took bribes totaling $2,600,000 from a juvenile private prison operator, in exchange for inappropriately convict more than 5,000 juveniles of delinquency and/or inappropriately sentence them to the private prison in a scheme that lasted six or seven years.

Many of those juveniles were still serving their sentences when he first pleaded guilty.  The judge refused to accept the plea in light of an unwillingness to admit guilt and a belief that the 87 month incarceration deal was too sweet, after which Ciavarella was convicted of state and federal crimes for which he was sentenced to 28 years in prison, together with co-conspirators including another judge from the county who was sentenced to 17 and a half years.  One of the individuals paying the bribe was sentenced to 18 months in prison (partially in a halfway house) while the other was sentenced to one year in prison.  Both bribe payers also made large donations to charities for children in lieu of restitution or civil liability.  A class action lawsuit brought by the victims of this misconduct has so far not produced a judgment or restitution for them.

While pleading guilty (a plea that was not accepted), Judge Ciavarella denied that he actually meted out inappropriate sentences, but statistically, the evidence is pretty strong:

For years, youth advocacy groups complained that Judge Ciavarella was unusually harsh. He sent a quarter of his juvenile defendants to detention centers from 2002 to 2006, compared with a state rate of 1 in 10. He also routinely ignored requests for leniency made by prosecutors and probation officers.

Thus, probably something like 60% of the people he sent to juvenile detention centers didn't belong there, and many of the rest probably got longer sentences than they deserved.  Several hundred juvenile sentences imposed by this judge were later vacated in a follow up investigation. In addition to excessive sentences, hundreds of juveniles were denied their constitutional right to counsel by Judge Ciavarella.

Or a West Virginia judge, Michael Thornsbury, who was sentenced to 50 months in federal prison for wrongfully incarcerating a man to prevent him from revealing that the county sheriff was illegally using prescription drugs not prescribed to him.

A Compromise Solution

There is a very sensible compromise between absolute immunity under current law, and the qualified immunity standard that applies to police officers, that would minimize litigation of groundless and frivolous cases against prosecutors and judges from their participation in the judicial process, while allowing the most glaring cases of injustice to give rise to civil liability.

Under the compromise solution, actions against judges and prosecutors currently barred by absolute immunity would continue to be barred except in cases where there was a final judicial determination that the official had violated a rule of professional ethics in connection with the Plaintiffs' case, or there was a final judicial determination in an underlying criminal action or collateral appeal of a criminal judgment, or in a separate criminal prosecution, that a constitutional right, ethical rule, or other legal duty of that official was committed by that official.

The cause of action would begin to accrue for statute of limitations purposes when the Plaintiff learned of, or should reasonably have discovered with reasonable diligence, the final judicial determination and all other elements of the cause of action.

Thus, individuals harmed by a judge taking bribes from a private prison operator, or having an affair with the prosecutor in a case where the individual was a party, or a prosecutor who violated someone's Brady rights, could be sued at that point for civil rights violations and any other applicable causes of action related to the misconduct by the public official.

The Argument For The Compromise Solution

Such violations by judges are very rare, and cases of prosecutors being judicially determined to have committed ethical violations, crimes or to have violated Brady in a post-conviction collateral attack on a judgment, are still quite rare, and would surely become more rare if violating these constitutional rights gave rise to any reasonable possibility of civil liability for prosecutors (many of whom would probably suddenly decide that it was a good time to institute an "open file" system for the lion's share of criminal prosecutions, implementing Brady institutionally in the way that most countries protect similar interests).

The earlier judicial determinations would often have collateral estoppel effect in the suit for civil liability, effectively establishing on day one a key element of the claim, which is the existence of wrongdoing in a case involving a Plaintiff.  Not all of these decisions would have collateral estoppel effect (e.g. if the prosecutor who violated constitutional rights didn't participate in the collateral attack on the judgment proceeding), and not all of these claims would prevail.  But, this rule would identify a group of cases in which there is a very high proportion of meritorious cases, for which civil lawsuits would be allowed, while continuing to screen 99.9%+ of all cases (overwhelmingly without merit, on average) in which the absolute immunity rule would continue to apply.

The new rule, would by definition, limit civil liability to pre-established "bad apples", whom defenders of the system constantly claim that they want to remove from the system.

It is also particularly glaring and injust for the legal system to openly and definitively after due process is had acknowledge that criminal laws, ethical rules or constitutional rights or other legal duties were violated, and yet still deny the victim of this wrongdoing any remedy, even then.

Prosecutors who have been proven to have secured wrongful convictions by violating the constitution, and judges whose corruption has been determined to have taken place in courts of law who have harmed litigants, should normatively have civil liability for their wrongdoing.  It isn't even a hard call from a moral perspective, and the systemic and bureaucratic need to screen non-meritorious cases can be easily addressed with this compromise rule.

Immigration Judges Are Still Assholes

Judge Posner, writing in the dissent of a 7th Circuit decision, rightfully explains at length how an unreasonable asshole of an immigration judge inappropriately ordered a man who had lived in the U.S. legally for twenty years should be deported on the basis of a sham marriage that was not, in fact, a sham.

The other two judges on the panel deferred to the arbitrary and unreasonable immigration judge, unfortunately, the norm in this area of law (see also here and here and here).

At Least We Don't Live In New York

There are many problems with the criminal justice system in Colorado and our juvenile justice system, in particular, has flaws.

But, in Colorado, almost without exception we do not subject our sixteen year old juveniles arrested (arguably without probable cause) on suspicion of robbery to 33 months of pre-trial incarceration (including 800 days in solitary confinement) only to have the charges dismissed in a prison like Riker's Island where violent pre-trial assaults by guards and fellow inmates are commonplace.

This pretty much takes the joint efforts of bad cops, bad jail guards, bad prosecutors, bad defense attorneys, and bad judges.  It also takes the indifference of a poor family that in all of that time can't make a $3,000 bond payment (which would probably have required only $300 in cash plus a car as security) to get him out of jail pending trial.  I seriously doubt that a family that was really committed couldn't come up with those resources for three straight years. [Update: It turns out that bail was revoked in full due to his indictment for a felony which constituted a probation violation after about two and a half months by a grand jury. After that, bail was no longer available.]

The case also raises the serious question of whether it is really appropriate to use adult speedy trial standard for juveniles for who have shorter time horizons. As his attorneys' explained:

Kalief was deprived of his right to a fair and speedy trial, his education, and, I would even argue, his entire adolescence. If you took a sixteen-year-old kid and locked him in a room for twenty-three hours, your son or daughter, you’d be arrested for endangering the welfare of a child.

It isn't unreasonable to conclude that pre-trial incarceration for an adolescent is more burdensome than it is for an adult.

Colorado's 2014 Judicial Retention Elections

Once appointed, state judges in Colorado must face periodic retention elections held in general November elections in even numbered years, one after two years in office and again at intervals that vary from court to court.  Voters can vote to retain or not retain a judge.  If there are fewer "not retain" votes than "retain" votes, the judge stays in office for another term,  Most voters always vote to retain, and a minority of voters don't vote at all on these issues, or always vote not to retain.

For those voters who make their decisions on a case by case basis, there is a commission on judicial performance that recommends that a judge be retained, recommends that a judge not be retained, or makes no recommendation.  There is a separate volunteer committee for each judicial district in the state and another for appellate judges.

More than 98% of judges are recommended for retention and are almost always retained by the voters.  About half of those judges not affirmatively recommended for retention, usually only a few each year, are not retained by voters.  When a judge is not retained, a vacancy is created.  A different commission advertises the position and vets applicants.  Three finalists are selected.  Usually, the Governor makes the final pick, but in the case of Denver county court judges, the final choice is made by Denver's mayor since Denver county court judges are simultaneously Denver's municipal court.

This year, 160 judges end their terms and would normally face retention elections.  Of them, 14 can't run because they have reached mandatory retirement act.  Two more judges, upon learning that they would not be recommended for retention, voluntarily stepped down from office effective at the end of their current terms.

Four county court judges have not been recommended affirmatively for retention.  These are judges of the state's limited jurisdiction courts that handles misdemeanor cases, most evictions, most temporary restraining orders, most name changes and most civil cases where less than $15,000 is not in dispute and title to real estate is not at issue.

Three of the judges not receiving an affirmative recommendation to retain, one in Boulder (Karolyn Moore), one in Pueblo (Valerie Haynes) and one in the City and County of Denver (Dianne Briscoe), are rookie judges facing their first retention election.  A fourth, in Grand County which is home to Winter Estes Park (Ben McClelland), is an experienced county court judge [Ed. 10-29-14 corrected claim that Estes Park, which is actually in adjacent Larimer County, is in Grand County, which is home to Winter Park and Granby per comments; my apologies for the error].  In Boulder, Pueblo and Grand Counties, the recommendation to "not retain" was unanimous."  In Denver, where the judge agreed to enter into a supervised improvement plan, the commission was split and there was no recommendation made to retain or not to retain.  For what it is worth, all three of the rookie judges failing to secure retention recommendations are women.

The commission noted with regard to Judge McClelland, in Grand County, that:

Survey results and observation by Commissioners regarding Judge McClelland were mixed. To the positive, it was generally regarded that Judge McClelland is consistent in his rulings, works to learn the law, gives the parties a fair chance to present their cases, and is accommodating when it comes to scheduling. He moves his docket forward, is efficient in court, and is a hard worker. His oral communications in court are clear and direct and he maintains control over his courtroom. 

To the negative, commenters, including some Commissioners, described Judge McClelland as arrogant, defensive, impatient, and lacking appropriate judicial demeanor. His lectures from the bench tend to be grandiose, offensive, and off-putting. It was commented that Judge McClelland has a tendency, or at least the appearance, to rule based on his personal bias or opinion. These characteristics do not meet required judicial criteria of communication and judicial temperament. Among surveyed attorneys, Judge McClelland’s “retain” recommendation of 56% was significantly under the state average for all County Court judges (78%) and his “do not retain” recommendation of 32% was likewise higher than the state average (13%). Among non-attorneys, his “retain” recommendation of 78% was lower than the average (86%) and his “do not retain” recommendation of 14% was higher (8%). Although Judge McClelland received an average grade of 3.0 in the surveys, that score is below the 3.43 average combined grade for all county court judges standing for retention in 2014.

For Judge Moore, in Boulder County, a former deputy district attorney, the commission noted that:

Judge Moore’s survey results raised many concerns for the Commission. Among attorneys surveyed about retention, 45% recommended to retain, 40% not to retain, and 15% made no recommendation. Among non-attorneys, 90% recommended to retain, 5% not to retain, and 4% made no recommendation. When compared to all county judges by non-attorneys (including jurors), she received a slightly higher recommendation for retention (90% versus 86%) and was rated slightly higher than judges overall on a number of measures such as demeanor in court. She also received many positive comments from the non-attorneys particularly regarding demeanor and communication skills. 

On the other hand, she was seen as being biased toward the prosecution and harsh in her sentencing in comparison to other county judges. Judge Moore’s survey ratings by attorneys were very different from the non-attorneys. In all five categories, including all 17 subcategories, attorneys gave Judge Moore lower ratings when compared with all county judges. The categories include case management, application and knowledge of law, communications, demeanor, and diligence. Her overall score among attorneys was much lower than the average for all county judges – 2.51 compared to 3.29. Judge Moore was seen as being very biased in favor of the prosecution by 46% of the attorneys while on average all county judges were so rated by only 10% of attorneys. She was also perceived as being somewhat biased in favor of the prosecution by a higher percentage – 33% compared to 25%. The surveys provided similarly negative results for Judge Moore regarding a recommendation for retention. The same sampling methodology was used to survey attorneys and non-attorneys for all nine judges standing for retention. Judge Moore’s survey results were substantially more concerning than any of the other judges reviewed by this commission. Although she received positive comments from some attorneys, there were many explicit comments detailing concerns attorneys had with Judge Moore. The Commission is not convinced that Judge Moore fully understands the extent of her shortcomings as a judicial officer. 

Judge Karolyn Moore’s Response: I’m honored to serve the people of Boulder County. As a new judge, I’m focused on improving my judicial skills and initiated an improvement plan with my chief judge. Among the attorneys surveyed regarding my performance 93 criminal defense attorneys and 19 civil attorneys responded. I value their comments, however the surveys were not sent to prosecuting attorneys and other important voices were not heard, leading to imbalanced results. 

For Judge Haynes, in Pueblo County, the commission noted that:

Judge Haynes is polite to jurors, is perceived by the public as fair, and generally imposes consistent sentences. 

Judge Haynes does regularly reject plea agreements that the attorneys have worked out, and does so without providing support for her decision. This has contributed to a very heavy jury trial schedule, averaging almost one trial per week. Judge Haynes imposes requirements upon the attorneys practicing in front of her that have no basis in rule or law, and she renders inconsistent rulings on legal objections. The commission heard complaints that there are issues with efficiencies in the courtroom, including not starting her docket in a timely manner. Judge Haynes is not willing to work with others in order to resolve issues and has created a hostile environment in her courtroom. Proper mentoring of attorneys is noticeably lacking. The most significant criticism evidenced throughout this process was Judge Haynes’ lack of judicial temperament. She is described as rude, curt, having little compassion, and inappropriately raising her voice at those who appear in her courtroom. These concerns were evident in her May 2013 evaluation survey results, and no improvement is shown in the current survey. Judge Haynes acknowledges the results of both surveys and has only made recent attempts to improve her communication skills, which she believes are the root of the problem. The Commission believes that Judge Haynes fails to fully understand and acknowledge her contribution to the negative survey results and comments, which leaves little reason to expect improvements to occur.

Judge Briscoe, in the City and County of Denver was described by the commission as follows:

Judge Briscoe’s first two years as a judge were in the juvenile division, for which there are no survey results. Judge Briscoe had prior experience in juvenile law and believes that experience helped her perform well in the juvenile division. However, in her current assignment, in each area of case management, application and knowledge of the law, communications, demeanor and diligence, Judge Briscoe received scores from attorneys significantly below the average of scores for all other county court judges standing for retention. Her scores from non-attorneys in most areas were consistent with the average scores received for other county court judges. 

While the survey sample from lawyers was small (20 respondents), courtroom observations by members of the Commission and review of her oral rulings confirmed many of the concerns raised by the survey results. While Judge Briscoe displayed appropriate judicial demeanor and was patient and respectful to those appearing in her court, the Commission has significant concerns about Judge Briscoe’s application and knowledge of the law. Especially concerning was her apparent lack of familiarity or understanding of relevant law and rules even though she had been in her current assignment in the municipal criminal division for over 15 months at the time of her interview. In her interview, Judge Briscoe acknowledged her deficiencies in application and knowledge of the law. Judge Briscoe’s apparent lack of preparation on some matters and the difficulty she experienced in making sure some defendants without lawyers adequately understood the proceedings also concerned the Commission.

My general attitude towards judicial retention election is not to be lenient.  Very few judges are not recommended for retention at all, and their stand out status deserves attention.  The relevant issue is not whether they did something wrong, but whether there are better than even odds that a replacement would be better.  Given that the consequence for the judge is merely the need to find a new job for someone with a professional degree and considerable professional success, but that the broad discretion a judge has may impact thousands of cases, I generally argue that when in doubt, one should not retain.

But, ultimately each case must be judged individually on its own merits.  Extensive source data for evaluating those hard calls is available at the Commissions on Judicial Performance website.

Military Justice, Isn't.

It is an embarrassment  to be a citizen of a country, like the United States that conducts the kinds of kangaroo court proceedings that the United States military is conducting at Guantanamo Bay.

There, military tribunals issue orders that prosecutors and judges can see, but defense counsel and the defendants are not allowed to see.  This is a fundamental miscarriage of anything remotely resembling due process, and it is fundamentally at odds with the principles upon which our nation was founded.

It is clear that the truth of the matter is that the U.S. is covering up an illegal policy of intentional torture, while seeking to use information obtained through torture in legal proceedings.  The defies all domestic and international standards of justice and deprives proceedings meant to bring terrorists to justice of all legitimacy.

President Obama, as a former constitutional law professor, with whom the buck stops as commander in chief of every members of the United States military involved in these military tribunals, owes our constitution and our nation's reputation for fairness and justice, more respect.

Florida Has Bad Judges Too

Apparently discouraged that Texas was pulling ahead in the race to have the most egregious cases of judicial misconduct, Florida has stepped it up a notch.

Larimer County Judge Is Suspended, Publicly Censured And Resigns

Larimer County, Colorado Judge Robert A. Rand was suspended on July 3, 2013 and then accepted a resolution of his case in which he received a public censure (in case 13SA172) from the Colorado Supreme Court, and resigned on February 10, 2014.  Somehow, I managed to miss the news when it happened.

The censure identifies seven instances when he made inappropriate joking comments about people who encountered in the court, six of which were sexist.  It identifies two instances of inappropriate ex parte communications, one as a result of technological ignorance about how to do a conference call and a more serious case where he talked to a former paralegal related to a married couple coming before him as criminal defendants and failed to recuse himself.  It also identifies numerous inappropriate, off the record discussions with criminal defendants after proceedings ended.

The disciplinary counsel has identified problems created by the excessive confidentiality requirements involved in the formal judicial disciplinary process that is rarely invoked.

On the whole, it is reassuring that Colorado's judicial disciplinary process manage to bring about the resignation of a judge who engaged in repeated, albeit minor, judicial ethics violations, without the intense political tussle of a legislative impeachment proceeding or cumbersome and not always well informed process of a retention election.

Sometimes A Statute Of Limitations Is A Bad Idea

An Ohio man who has been legally dead since 1994 will remain so in the eyes of the law after losing his complaint to overturn his death filing, according to authorities.

Donald Miller, 61, testified Monday that he disappeared in 1986 after losing his job, leaving behind a wife, two children and thousands of dollars of unpaid child support, according to James Hammer, the attorney for Miller's ex-wife, Robin Miller. He was declared legally dead eight years later.

Donald Miller said he returned to Ohio "around 2005" with no knowledge of his legal death, and that he had hoped to re-establish his Social Security number.

A legal statute in Ohio prevents changes to death rulings once three years have passed, Hammer told CNN, and Judge Allan Davis ruled accordingly in Hancock County Probate Court. . . .

Hammer recounts that at the time of Donald Miller's legal death in 1994, he owed Robin Miller around $25,000 in child support, a matter which could have been complicated had the judge ruled in Donald Miller's favor on Monday. Following the 1994 ruling, Hammer said, Robin Miller began receiving Social Security death benefits to support her two children.

"There could have been the possibility that my client would have to pay back what she received from Social Security," Hammer said.

"We certainly did not want to open that door, so we're satisfied with the outcome."

Despite her relief at the court's ruling, Hammer says his client has no ill will toward her ex-husband.

Donald Miller's attorney was not immediately available for comment Wednesday. He still has 30 days to appeal the court's ruling, according Judge Davis.

From here.

As far as I can see, this ruling creates far more problems than it solves. If someone kills Donald Miller, can he be guilty of murder, given that Donald Miller is already legally dead? Is it constitutional to deny someone legal life, when they are actually alive, in a proceeding in which that person received no notice pertaining to their personal status. Shouldn't Social Security have a say in the proceedings as an interested party (surely it is not bound by the determination if it was not a party)?

Simply put, the decision reaches an absurd conclusion, and it is hard to imagine any case in which a person declared to be legally dead is definitively found to actually be alive where this conclusion would not be absurd.

Choking Your Boss So Badly It Leaves Marks Never A Good Idea

Peter Boyles, a well-known and sometimes-controversial radio host in Denver for 630 KHOW, will be off the air Friday after a heated physical exchange with one of his producers, multiple sources connected to the station confirm to 9NEWS.

Employees observed red marks on producer Greg Hollenback's neck within the minutes of the argument, which happened during Thursday morning's broadcast of the Peter Boyles Show.

From here.

On the upside, we don't necessarily expect the same level of temperance from talk radio hosts as we do from a Wisconsin Supreme Court justice who not so long ago engaged in similar conduct with a fellow justice.  But, still, we are talking seasoned, middle aged or older, chair jockeys in either case, not twenty-something hockey players, and we really ought to be able to expect better behavior in both cases.  There are some kinds of conduct that are just not O.K. and are far beyond the pale.  This fits that description.

Wisconsin Still Screwed Up

Above The Law nicely sums up the unsatisfactory character of Wisconsin Supreme Court Justice David Prosser. Also, a quarter of the circuit court judges in Milwaukee and dozens statewide signed a petition to recall the Governor.

Overkill In Drug Sentencing

As a liberal, I generally like to think that there isn't evil in the world, just misguided individuals. Then people like Former Kingfisher County, Oklahoma Judge Susie Pritchett come along and make me think that there really is evil in the world in the persons of people like her abusing the trust that has been placed in them to use their discretion appropriately.

On Dec. 31, 2009, [25-year-old Patricia Marilyn] Spottedcrow and her mother, Delita Starr, 50, sold a “dime bag” of marijuana to a police informant at Starr's home in Kingfisher, court records state. Starr handled the transaction and asked her 9-year-old grandson — Spottedcrow's son — for some dollar bills to make change for the $11 sale. Two weeks later, the same informant returned and bought $20 of marijuana from Spottedcrow.

The two women were arrested for drug distribution and because Spottedcrow's children were in the home, an additional charge of possession of a dangerous substance in the presence of a minor was added. “It just seemed like easy money,” said Spottedcrow, who says she is not a drug user but has smoked marijuana. “I thought we could get some extra money. I've lost everything because of it.”

The women were each offered plea deals of two years in prison. But because neither had prior convictions and the drug amounts were low, they gambled and entered a guilty plea before a judge with no prior sentencing agreement.

Starr received a 30-year suspended sentence with no incarceration, but five years of drug and alcohol assessments. Spottedcrow was sentenced to 10 years in prison for distribution and two years for possession, to run concurrently. She will be up for parole in 2014.... In addition, Starr was fined $8,600 and Spottedcrow $2,740.

From here via the Sentencing Law and Policy blog.

This Oklahoma case illustrates very clearly the insanity of this approach to non-violent drug cases. The case also screams racism in the exercise of discretion in the criminal justice system. Here is how the judge justified this to herself:

Former Kingfisher County Judge Susie Pritchett, who retired in December, said "the women were conducting an extensive operationand included children in the business."

"It was a way of life for them," Pritchett said.

"Considering these circumstances, I thought it was lenient. By not putting the grandmother in prison, she is able to help take care of the children."

A presentencing investigative report prepared by the Department of Corrections rated Spottedcrow's risk of re-offending as "high"and recommended substance abuse treatment while incarcerated.

"It does not appear the defendant is aware that a problem exists or that she needs to make changes in her current behavior."

Spottedcrow was unemployed and without a stable residence when arrested, the report states. The family lost their Oklahoma City home for not paying bills.

"When she needed money this is the avenue she chose rather than finding legitimate employment," the report states. "The defendant does not appear remorseful and she makes justifications for her actions."

Pritchett said on first drug offenses, sentences are usually suspended and may require treatment or random drug tests.

Only if there are other more serious circumstances is a first-time drug offender sent to prison, she said.

"When kids are involved, it's different," Pritchett said.

"This was a drug sale. When I look at someone in front of me, I'm thinking, 'What is it going to take to rehabilitate this person?' We look at their attitude and other factors."

When Spottedcrow was taken to jail after her sentencing, she had marijuana in her jacket. She pleaded guilty to that additional charge Jan. 24 and was sentenced to two years in prison and fined nearly $1,300. That sentence also will run concurrent with her other conviction.

Does the judge actually seriously believe that she's done these kids a favor?

Who is Spottedcrow?

Spottedcrow has four children ages 9, 4, 3 and 1 and is determined to keep her 8-year, common-law marriage intact. "It's been really hard on my husband,"she said. "I know a lot of things can happen, but he'll always have my back and be there."

Her son is aware of what has happened, but the girls have been told their mother is away at college.

"I missed my daughter's fourth birthday, and I'll miss her fifth one too. My other daughter just started talking, and I'm not there to hear her,"Spottedcrow said.

"My baby woke up and doesn't know where her mommy is. This is the hardest thing to do, and know I can't do anything about it. I just have to focus on myself and take it day-to-day and plan for going home. I will want to see my kids at some point. I'm trying to take this slow. I can't get depressed about it."