Archive for the 'Court' Category

Virginia Legislatures Block Judicial Appointment of Gay Prosecutor

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In a move which I’m sure their children will look back upon with great pride, Virginia lawmakers have blocked the appointment of a well-regarded prosecutor to the state’s bench.

Tracy Thorne-Begland serves as Chief Deputy Commonwealth Attorney in Richmond, and is a former Navy fighter pilot. By all accounts his professional record is impeccable, and his supervising attorney stated that he would have made an “outstanding judge.” Nonetheless, the state legislature voted 33-31 to block his appointment, and all of the votes against him came from Republicans.

So, why did state lawmakers choose to deny a judicial appointment to an extremely well-qualified attorney with an incredibly impressive professional record? Because hes gay.

Most of the people who voted against him didn’t even bother with a pretext. They claimed that the fact that he is gay and the fact that he is an advocate for gay rights causes meant that he couldn’t be an impartial judge.

This argument is, to be frank, completely absurd.

The notion that a person could not be an impartial judge because they served as activists in the past makes absolutely no sense. After all, every judge in the world is a person, and every person has opinions on a wide range of issues. You probably wouldn’t have heard anyone complaining if this judicial candidate had previously advocated for, say, environmental causes, or equal rights for African-Americans (or any other racial group). Nobody would speculate that such a record of advocacy would lead to someone pressing an “activist agenda” from the bench.

While this individual case is certainly unfortunate, and I imagine that the state will, sooner or later, see it for the embarrassment that it is; I think in some ways it’s a sign that the anti-gay rights movement is in its death throes. This reeks of a group of anti-gay forces becoming increasingly isolated and in the minority, and are simply lashing out at progress for LGBT individuals in the only way they know how: keeping them out of public life to the greatest extent possible.

However, recent polls show that public acceptance of LGBT rights, including same-sex marriage, is steadily increasing. Even in relatively conservative states like Virginia, the public probably won’t stand for this type of conduct for much longer.

Unfortunately, however, it appears that Mr. Thorne-Begland has little to no legal recourse. Generally, when it comes to voting to confirm judicial and other appointments, Congress, as well as state legislatures, are free to vote for or against a particular candidate, for any reason they like, and they are under no legal obligation to justify their voting choice (the political consequences of these votes are another issue entirely, however).

Furthermore, no federal law bans discrimination in employment based on sexual orientation, and while many states in the U.S. do ban such discrimination, Virginia does not appear to be one of them, and given the recent actions of its legislature, it’s doubtful that such a law is likely to be enacted in Virginia anytime soon. And I think that’s a shame.

In this relatively conservative state, Thorne-Begland has amassed quite a few supporters, with the likes of the governor and high-ranking judges calling the vote things like “embarrassing” and “disgraceful.” I tend to agree with them.

So, what can be done about this? Unfortunately, not much, at least in the short term. As discussed above, there is no legal recourse. And despite the fact that I think the lawmakers in this story did the wrong thing, and, frankly, should be ashamed of themselves, I think that the current method of appointing federal (and most state) judges, which involves an appointment by the chief executive (the president or governor), and confirmation by a majority of one or both houses of the relevant legislative body (Congress or the state legislature) is a good way to select judges.

Traditionally, the United States is seen as having three branches of government: the legislative, the executive, and the judicial. While the executive and legislative branches (the President and Congress, respectively) are both more or less directly elected, the judiciary is not. Typically, judges are appointed by elected officials, and usually serve for life (or until retirement or removal by impeachment or other legal procedure).

This means that we have judges who are more or less insulated from the political process: to keep their jobs, they don’t have to campaign. In fact, they don’t even need to be popular. I think this is exactly how it should be: judges should be as free as possible to answer hard legal questions according to their good-faith interpretations of what the law and constitution require, and they should be as insulated as possible from the ever-shifting whims of public opinion and politics. In general, having major constitutional issues resolved by “unelected judges” (a term only used when a judge rules in a way the speaker doesn’t like) has served us pretty well.

It does come at an unfortunate cost, however: legislatures can decline to confirm highly-qualified judicial appointees for terrible reasons.

However, everything we value as a society comes at a cost: not living in a police state comes at the cost of a slightly higher risk of being a victim of a crime, and protecting our rights to privacy and due process entails a slightly higher risk that people guilty of crimes will escape.

Likewise, ensuring that we have an independent judiciary that is as free as possible from judicial pressure means that judges will sometimes be appointed by people desperately clinging to an old set of views, out of step with an ever-growing segment of mainstream society.

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Judge Reduces Penalty for Death Row Inmate With Racial Justice Act

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American history has been marked by struggles for racial equality since the nation’s founding.  Slavery, the elimination of indigenous peoples and the long establishment of “separate but equal” institutions have marred the legacy of the United State’s founding ideals of freedom. Today’s story adds another section to this long debate.

In a first test case, Judge Weeks utilized a recent 2009 state law, the Racial Justice Act, to overturn a death sentence for Marcus Robinson and handed the defendant life without parole instead.  The Racial Justice Act permits a defendant to overturn his or her death sentence by arguing that race was a determining factor in the trial if the defendant can prove at least one of three factors. The factors are 1) the sentence was imposed because of the defendant’s race 2) the sentence was imposed because of the victim’s race or 3) racial bias influenced jury selection. Robinson’s attorneys successfully convinced Judge Weeks that Robinson’s trial had been tainted by a racially biased jury selection process. Almost all 157 dead row inmates in North Carolina have filed for similar hearings. Other states, such as California, are expected to pass similar laws.

Proponents of capital punishment assert that the objective of this law is not racial justice, but the dismantlement of the death penalty. Although the majority of those on death row are African-American, not all of them are. Moreover, this law overwrites the inmate’s sentence not based on innocence or guilt, but on questions about the fairness of the criminal justice system’s objectivity. Indeed, the fact that Robinson’s sentence is reduced to life without parole is an indication that the man is still proven guilty of kidnapping, burglary and murder of a teenager. Even Judge Weeks, the judge who spared Robinson’s life, committed that Robinson’s crime was “unspeakably horrendous.” Robinson’s guilt was established in his trial and the question of a biased jury has had no impact on that status. In essence, Robinson’s sentence is being overturned because of society’s wrongdoing against Robinson’s ethnicity, NOT because of society’s wrongdoing against Robinson.

The assumption which drives racism, that ethnicity is more important than individual actions, is at work behind the Racial Justice Act. The difference is that while some innocent people are prosecuted because of the misbehavior of other members of their ethnicity, Robinson is not delivered the sentence he deserves because of the upstanding citizenship of fellow African Americans. Make no mistake, either outcome is horrible, but it seems America is becoming too focused on race rather than actual factors which prove innocence or guilt.

When we look at the history of other cases, such as the OJ Simpson Trial or the Trayvon Martin shooting, people are becoming divided over race rather than innocence or guilt. With regards to the Robinson case, this trend towards racial cheerleading does a great disserve to the victim and the victim’s family because Robinson has avoided his sentence on a technicality rooted not in the case, but in history which neither Robinson nor the victim’s family took part in.

For all the ironic pitfalls of this case though, we should remember that the criminal justice system exists to serve society as a whole. Although this particular inmate has already been proven guilty, future defendants whose guilt is actually in question may greatly benefit from the questions raised by this case and by the Racial Justice Act. More importantly, the criminal justice system must preserve its integrity and objectivity where possible. The judiciary may not want to become involved in politics, but that doesn’t mean politics won’t become involved with the judiciary.

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Big Step Towards Use of Cameras in the Courtroom

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The use of cameras in the courtroom has always been a hotly debated topic.  It took a long while before still photography was allowed in the courtroom; now all fifty states in many circumstances allow video recording during court sessions.  On the other hand, federal courts are still very restrictive when it comes to video recordings of hearings.  Recently, a new experimental program is pushing the limits of what is acceptable in terms of digital camera recordings in U.S. courtrooms.

The Administrative Office of the U.S. Courts is pushing a pilot program involving 14 different courtrooms across the country.  The programs will allow the videotaping of selected trials in civil courtrooms.  The recordings are to be digitally uploaded to a government website and made available for the public to view.   Accordingly, many lawyers and judges are enthusiastic about cameras in the courtroom and what this could mean for the judicial branch as a whole.

Advocates of the program usually cite “education” as one of the main benefits of the use of camera recordings during trial.  That is, allowing the public to view recordings of courtroom sessions would serve to educate the average citizen on how courtroom proceedings are actually run.  I agree with this logic, since the average citizen gets their idea of court hearings either from the O.J. Simpson trial or from Lindsay Lohan’s legal woes.  Suffice to say, celebrity trials don’t really provide the public with a well-rounded or even accurate picture of trial proceedings.  So, the idea of cameras in the courtroom can have the effect of curbing some of the sensationalism associated with celebrity trials.

Another argument in support of the pilot program is that the recordings will help with judicial accountability and transparency.  Unlike the other branches of government, the judiciary has been largely resistant to video recordings of sessions.  This is especially true of the federal court system, which has been video camera-shy for ages now.  It could be that the lack of cameras in the courtroom allows lawyers to get away with some questionable behind-the-scenes conduct, and contributes to judges legislating from the bench.  So having the hearings video taped would supposedly expose/reduce some of this.

On the other hand, one of the main arguments against recording court sessions is that the presence of cameras might change the courtroom dynamic.  For example, a lawyer might be hesitant to argue a certain legal theory because they become self-conscious about how the public might perceive them.  Jurors and witnesses might also be intimidated knowing that they would be on camera.  Or, on the other end of the spectrum, there is concern that a lawyer (and even a judge) might become overly dramatic if they know that they’re in the spotlight.  Given some of the courtroom dramatics involved in past celebrity lawsuits, there is some basis to this argument.

In my opinion, I like the idea of this new program to record and upload court hearings for public viewing.  As Chief Judge Kozinski of the Ninth Circuit put it, it’s time for courts to get with the times and take advantage of the different technologies available to us.  Critics argue that the written transcripts and courtroom sketches are enough for the public to work with.  But I think it would be a sorely missed opportunity not to be able to watch trials through a full video presentation (though I do agree that camera footage needs to be monitored so that courts don’t reinforce the circus stereotype associated with media trials).

Many of the concerns listed here are minimized by several elements inherent in the pilot program.  First, the cameras are not media cameras, but will be operated and regulated by court staff.  And the equipment will be unobtrusive (like the “eyeball” cameras you often see implanted in the ceilings of some stores- not like the bulky cameras we have fashionably pictured here).  Courts will also limit the recordings to cases that don’t involve sensitive issues like child abuse, sexual assault, or trade secrets.  Lastly, to help with privacy concerns, all participants in the trial should consent to the videotaping before it occurs.

And one aspect that isn’t mentioned in the midst of this debate is the prospective advantage for law students.  I remember during law school, we watched some very limited footage that was supposed to help us students with our litigation skills.  But it would have been nice to be able to independently browse different trials to see how lawyers actually argue in different types of case settings.  Also, having a database of actual trial footage can help those who may be contemplating a law career make a choice of whether to invest in law school or not.

On a final note, I’d like to leave you with bit of legalese that I found very amusing.  The legal phrase “in camera” comes from the Latin word meaning “chambers”.  It refers to a trial that’s conducted in private without the public watching and without coverage by the press.  How ironic!  If this new pilot program catches on nationwide, the definition of “in camera” might well be turned on its head.

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Supreme Court Upholds Strip Searches For Any Crime

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As you’re probably aware, the Supreme Court is soon going to rule on a case that I’ve heard is kind of a big deal.

But this Supreme Court term has been marked by several other important cases that, in any other year, probably would have gotten front billing on the law blogs. For example, a few days ago the Supreme Court upheld a policy implemented by New Jersey jails that requires full strip and body cavity searches of everyone who is arrested and processed at the jail, no matter how minor the crime for which they were arrested.

And remember, at the point where a person has been arrested and booked at the local jail, they usually haven’t yet been convicted of a crime, or even formally charged with one. And, as I’m sure you know, we have a principle in the American legal system that’s often referred to as “innocent until proven guilty.” That generally means that a person can’t be punished or subjected to undue hardship in response to an alleged crime until and unless they’re convicted.

Obviously, there are some commonsense balancing acts that need to be performed: a suspect can be held in jail while they’re on trial if they’re deemed to be a threat to the public, or a flight risk. Also, measures to protect the safety of jail personnel and other inmates can be taken, including searches and confiscation of any items that might be considered dangerous.

However, this ruling appears to shift that balance sharply in favor of law enforcement even more than it already was.

Personally, I think that this decision was probably unnecessary. Jail authorities already have a good deal of discretion to search anyone who’s incarcerated if they have even the slightest reason to believe that they might be smuggling weapons or contraband into the jail. Likewise, any hint that the inmate might pose a safety threat to jail staff or other inmates can be grounds for a complete search.

However, the justices who dissented in this case noted that people arrested for relatively minor crimes, like shoplifting or DUI, are generally perpetrated by people who pose no significant threat to society, and are usually nonviolent. Also, those crimes are almost never premeditated, meaning that the people who commit them don’t wake up in the morning anticipating that they’ll be in jail before the day is out.

All this adds up to the obvious conclusion that someone who’s arrested for a minor crime committed on an impulse has almost certainly not gone to any lengths to conceal weapons or drugs in their body cavities, or anywhere else on their person.

Of course, some people will argue that the fact that a person “almost certainly” doesn’t have a weapon means that “there’s still a chance!

But the liberties that many of us take for granted all come at a cost: for every freedom we enjoy, there’s going to be a few people who will abuse that freedom. For example, we could probably reduce domestic violence and many other types of crime by installing surveillance cameras in every home. But we aren’t going to do that, nor should we. As a society, we’ve decided that the right to privacy is worth the cost that comes with the fact that it’s relatively easy for people to commit crimes in their own homes.

Likewise, I don’t think there’s anything inherently wrong with accepting the much, much smaller risk that a person arrested for shoplifting has a weapon hidden in a body cavity, in exchange for the right to not be subjected to such indignity as a matter of course, even before you’re convicted, or even charged, with no particular suspicion that you’re even trying to smuggle something into the jail.

So, although the Supreme Court has said that this practice is permitted under the Constitution, I hope that authorities in other parts of the country refrain from adopting it. Again, this is not to say that intrusive searches are never justified. Obviously, any reasonable suspicion that a person might be smuggling something into the jail would be grounds for that type of search.

I think this whole case illustrates a serious problem that’s come up in recent years: if you come out in favor of civil liberties, you’re accused of being “soft on crime.” And no politician or judge wants to give that impression. And once a measure like this is implemented, it’s very unlikely to be discontinued. For example, even though there’s ample evidence that most of the “security” measures taken by TSA are extremely costly, and do little to nothing to make flying any safer, there’s virtually no chance that any of them will be discontinued. Why? Because somebody would actually have to make the decision to do so.

And the next time there’s a significant security breach, whoever chose to “loosen” security would probably get the blame for it, regardless of the actual cause.

I don’t pretend to have an answer to this problem. I’m not disputing that we sometimes need to balance freedom and security. But maybe, just maybe, we could use a little more common sense when doing that balancing act.

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Mississippi Supreme Court Upholds Outgoing Governor’s Controversial Pardons

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Shortly before leaving office, the outgoing governor of Mississippi, Haley Barbour, issued several pardons of convicted criminals, including four convicted murderers who, as part of a prison work-release program, had worked at the governor’s mansion. The vast majority of states allow their governors to pardon convicted criminals, just like the U.S. Constitution allows the President to pardon people who are convicted of federal crimes (but the President cannot pardon people convicted in state courts of state crimes, where the vast majority of criminal prosecutions take place).

The U.S. Constitution says that the President can pardon anyone convicted of a federal crime. This power exists to give convicted criminals one final avenue of appeal when they have exhausted all the remedies afforded to them by the court system. Because the President does not need to give any reason for his decision to grant or deny a pardon, this theoretically allows the president to act based on his sense of fairness and justice, acting independently of the legal and factual findings of the courts.

Most states follow a similar model. This means that the state governor can pardon any convicted criminal, for any reason whatsoever, or for no reason at all.

Mississippi’s constitution gives its governor this authority, though there are a few minor procedural hurdles that a convict must jump through when submitting a request for a presidential pardon. But the attorney general of Mississippi decided to challenge these pardons in court. And the Mississippi Supreme Court has just upheld the former governor’s pardons.

The attorney general argued that the former governor had not followed a provision in the state constitution which requires any convict applying for a pardon to have a notice published in the county in which their crime took place, at least 30 days before the pardon is effective.

However, the Supreme Court ruled, citing the basic doctrine of separation of powers, that because the power to grant pardons rests entirely with the governor, it is also up to the governor to decide whether or not this constitutional requirement had been satisfied.

In its opinion (PDF), the court’s 6-3 majority took pains to note that they were not ruling on the wisdom or tactfulness of the governor’s decision. Nor were they deciding whether or not the governor is above the law, taking it as a given that he is not.

The court was essentially ruling on its own authority: the question was whether or not it the state’s judicial branch has the authority to intervene in an area that the constitution explicitly assigns to the governor.

I’ll be the first to admit that the former governor’s judgment in issuing some of these pardons was questionable, at best. However, without being an expert on Mississippi state constitutional law, I think I can still say with some confidence that the court made the right decision in this case. Our government is divided into three distinct branches, each of which performs functions essential for governing a free society. By dividing power among three branches of government, no single one can become too powerful, and each acts as a check on the power of the other two. This court in this case found that it did not have the authority to intervene in a matter that’s exclusively reserved to the executive branch of the state government.

Some people are certain to be angered by the court’s decision, and that is perfectly understandable. I can’t imagine the pain that the loved ones of a murder victim must go through. And this controversy almost certainly re-opened those old wounds. Despite the fact that I think the court made the right legal decision, I am not in any way trying to disparage their objections to the actions of the governor, or the anger they must be feeling over the court’s decision.

However, I hope that pundits avoid engaging in knee-jerk accusations of “judicial activism.” Because this is, in fact, the exact opposite of judicial activism – the court declined too intervene in a matter reserved to another branch of government. This court’s decision was actually a textbook example of judicial restraint.

While the criticisms of the governor’s actions may be perfectly valid, and we have every right to express them, I’m glad that the court followed the state constitution in this case. And if the voters and state legislature in Mississippi decide to ensure that this never happens again, they can amend the state constitution to limit the governor’s pardon power.

That’s the beauty of our constitutional system: if enough people are dissatisfied enough with the actions of one branch of government, chances are good that they can fix it.

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