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Our Theory of Everything

Posted in Administration on Thursday May 17 2012 @ 5:05am

Physicists have come up with a Grand Unified Theory. They have yet to come up with a Theory of Everything. But court-o-rama.org has:

1. Every case is a family case. Bankruptcy, employment, traffic, criminal -- everyone involved in every case has a family somewhere.

2. It's all about access. It almost (almost!) goes without saying that if a person can't get into court, none of our legal system matters. We only say it because there appear to be some slow learners in the crowd. This is why, for example, a person recently had some trouble physically entering a Scottish court. (Remember, only in the US does the ADA exist. Other countries are following suit, but slowly.) But it's not just physical access for individuals with disabilities that counts as access. Access means parking spots, welcoming staff, reasonable hours of operation, language interpreters, indigent defense, civil Gideon, and public trust and confidence, Happy to report that this concept first came up in a conversation with a federal court administrator.

3. The Seventh Amendment is verrrry important!!!! Sure, jury trials are rare, but our right to them is so important that the word inviolate is often used to describe that right in state constitutions, legislation, and court rules. Regrettably, we think about juries more often in a criminal context. Our civil justice system has been demonized and derailed by those it keeps in check.

4. Courts don't work for free; they require funding. Again, this is something almost too basic to announce, yet cuts to basic services have become de rigueur. Moreover, when new ideas are tossed out (more police on the streets, let's build new casinos,, etc.), we need to think strategically about the effects of an idea on the courts. More police means more arrests means less jail space and more court time, for example. The courts involve much hidden work, too -- court administration is barely a blip on the average radar screen. See It's Time to Restore Access to Justice throughout Iowa, Mark Cady, Press-Citizen (April 30, 2012), for a good look at how access (see #2, supra) is being hindered by budget cutbacks.

5. Conflict resolution works. When 1L was winding down, a law professor told us Try to stay out of court. Huh? Wasn't that why we were in school, to learn how to fight for people in court? Well, yes and no. It's better not to go to court at all, if possible. As Doug Van Epps likes to explain, your day in court isn't at all what you imagine it will be. Whether small claims mediation, victim-offender mediation, family and probate mediation, or some other permutation -- these tools are helpful even if parties do end up in court eventually.

6. Facebook has made us a bit lazy. Blogging is great but it's work. Posting items of interest to court-o-rama's facebook page is fun and simple. We regret the dearth of posts since facebook started controlling our lives, but hope everyone is having fun with the facebook page, too.

7. Leave well enough alone. Federal and state constitutions work. Do not amend them unless absolutely necessary. Do not propose silly amendments to propel your political career or cause, or to get the silly voting bloc to show up at the polls. Yes, this is for you, North Carolina, at least today. Corollary: there is only one Bill of Rights, and it has nothing to do with airline travel, credit card users, etc. These others are free to use our civil justice system, while it lasts.
7(a). Civil rights are not a popularity contest. Remember what happened when we left it to the states before?

That's it! Seven (was: six, but we remembered the seventh today) simple truths. There may be more but for now this is our Theory of Everything.

On the Road

Posted in Administration on Wednesday April 18 2012 @ 6:07am

Due to the recent GSA partying and CIA Colombian carousing, we would like to say a few words in defense of allowing government employees to attend conferences.

Full disclosure: My two last full-time positions involved working for places for which conferences were important sources of revenue. Over the last few years, I spent the spring and fall months on the road, bouncing from Memphis to Traverse City to Columbus to Williamsburg to Hershey. But, these experiences have helped me see how helpful (or not, as the case may be) certain aspects of conferences can be.

Networking is the best thing that can happen. And by networking, I mean meeting people who have your same job in a different jurisdiction -- peers. By networking, I mean venting! Face it, most court administrators or presiding judges have few peers in their state, and none in their county. The top people -- state supreme court chief justices and state court administrators -- have no one. The connections, the shared experiences, and the ability to make comparisons and find new ways to think about common issues are invaluable. That is the first and foremost thing anyone should take away from any conference.

Educational sessions are helpful, too, if properly orchestrated. Sometimes I've learned more from sitting around piles of nachos and pitchers of beer with interesting court people than from sitting for what seemed like hours on an uncomfortable chair listening to conference presenters. The best educational sessions promote the networking opportunities of the conference itself -- by allowing the audience to interact and share troubles and successes.

Vendors can be a pain (I was one!) but their presence accomplishes two things: one, they pay for the event. Sponsorship is important, and with several vendors or exhibitors the pot is varied enough that no one company controls the message. Two, they provide a wonderful shopping opportunity. The Ohio Court Technology Conference, for example, brings court technology vendors and exhibitors from around the country to one midwestern conference location on an annual basis. Judges and court employees can witness technology solutions first-hand. Demos are scheduled throughout the conference. This block of time allows courts to focus on technology during the conference, rather than having to focus on an entire tech project during regular busy work days. Courts who are already using a particular product or service can provide face-to-face feedback to the companies. As much as we shy away from corporate closeness, conferences provide good opportunities to meet with exhibitors.

Keynotes could use improvement! I have been to a few that knocked my socks off. Most just knock me out cold. Just because you have a captive audience doesn't mean they have to feel like prisoners.

Finally, a few words about awards: ugh ugh and ugh. Self-congratulatory events are nothing more. They are often awkward for the winners and a crushing bore for the rest. Try to make these as short and meaningful as possible; usually they are neither. Instead of an individual award, why not celebrate the profession? Put a history of (family court judges, clerks, county auditors, etc.) together. Have a fun slideshow. Bring in some interesting people who have a unique perspective. Do a fundraiser for a common cause.

So, to the funding folks who think travel out of state is the first thing that should be cut -- please think it over. While some conferences would be better described as golf holidays, most are chock full of positive experiences. And even a golf holiday -- if it involves the opportunity to connect with others in your position and learn from one another -- can be beneficial.

Hug an Activist Judge

Posted in Judges on Sunday April 15 2012 @ 5:52am

We at court-o-rama are fond of saying Hug an activist judge. The saying even appears on the back of our beautiful (but extremely rare) t-shirts. What does it mean?

Activist judges see a problem and are so moved that they find a solution. They bind law and equity in creative ways. They are responsible for much of the good done by courts.

Activist judges invented drug courts. They carved out a niche for veterans when they created veterans courts. Over a century ago, activist judges realized that children are not merely mini-adults, and should be treated differently.

Activist judges are human, and thus provide human solutions to messy human problems. Their opinions are not written by robots. Sentencing is an art, not a science.

So why don't we embrace them? Because they can be too human. They sometimes sit on the other side of our fence. Sometimes they do more harm than good. They don't fit our ideal of blind justice when they see flaws in the system. They have removed the blindfold and the blinders; they wear the robe but walk in the living world.

Full disclosure: court-o-rama.org's PayPal account receives a nickel every time anyone, anywhere utters the phrase activist judge.

Hug and activist judge today!

Juvenile Justice Roundup

Posted in Juvenile on Wednesday April 11 2012 @ 1:10pm

After a scandal involving judges sending juveniles to facilities in exchange for kickbacks, Pennsylvania enacted new rules to protect the rights of its children. The new rules require that juveniles be represented at all hearings, with stricter rules for waiving counsel. Is there funding for this, you might wonder -- the answer, which you probably guessed, is no. See Newly Announced Pennsylvania Juvenile Court Rules Are Major Advancement to Protect Youths' Legal Rights, Juvenile Law Center (January 12, 2012). See also the Juvenile Defenders Association of Pennsylvania. Finally, Pennsylvanians for Modern Courts has long held that judges in their commonwealth should be appointed via merit selection, not elected, to avoid these scandals in the future.

In Texas, they are taking the roundup idea literally. See Misbehaving Pupils Ending Up in Court, Nina Robinson, BBC News (April 10, 2012). It would be interesting to see any statistics regarding how well (or not) the misdemeanants do academically.

For some odd reason, yellow ribbons mean Come home safely, pink ribbons mean I hate breast cancer, and pinwheels have come to signify awareness of child abuse. Courthouses across the country placed pinwheels on their lawns this Child Abuse Prevention Month. This may or may not draw attention to the cause, but it certainly draws attention to the pinwheels themselves. See, e.g., Pinwheels Stolen from Display in Front of Jasper Courthouse, Erin Meyer, 14news.com (April 9, 2012).

This Is Your Brain On A Jury

Posted in Jury on Monday April 09 2012 @ 7:40am

What can we learn about the brains of jurors?

A new study claims to be able to predict the amount of sympathy to expect by looking at a juror's brain scan.

See Brain Scans May Predict Jurors' Decisions, J.D. Velasco, San Gabriel Valley Tribune (April 7, 2012). The article also contains good references to Japan's new-ish jury system, something we haven't heard much about lately. (What ever happened to our poster?)

Meanwhile, over in the Land of Lincoln, jurors will soon be able to ask questions. See Jurors May Be Allowed to Question Some Witnesses, Jennifer Wheeler, Register-Mail (April 5, 2012).

De-fense!

Posted in Criminal on Thursday April 05 2012 @ 5:11am

We've said this already on our facebook page, but we'll say it here, for good measure: self defense is a defense.

Self defense is a defense to a charge that allows the defendant to justifiably use force just great enough to overcome the force used against him. Thus, one who is threatened by someone wielding a spork could not retaliate with an Uzi.

This is true in all cases. It matters not that the defendant is in a jurisdiction honoring the age-old castle doctrine, or Florida, which has expanded that doctrine to include any ground on which the defendant stands -- the stand your ground law. Both of these allow a person to defend oneself using force.

Note, though, that the Florida law (776.032) provides for immunity from criminal prosecution and civil action for justifiable use of force. Justifiable is determined by the law enforcement agency investigating the incident. It is the immunity, not the bulk of the law, that is an issue in the Treyvon Martin death. Self defense is a defense to a charge, not a shield from prosecution.

For further insight, from a retired prosecutor no less, please see Minnesota's Proposed Castle Doctrine Expansion Worse Than Florida's Shoot First, Thomas Weyandt, Minnesota Post (March 29, 2012).

What We're Reading

Posted in Hype on Saturday March 24 2012 @ 11:01am

OK, yes, still Goodnight, Moon. But, in addition ---

A Struggle with the Police and the Law, John Paul Stevens, NYR (April 5, 2012).

The Gay Path Through the Courts, David Cole, NYR (April 5, 2012). It is rare enough for conduct long considered criminal, indeed worse than rape, to be transformed into a constitutional right. But for it to happen in a mere seventeen years, the equivalent of a nanosecond [...] is nothing short of extraordinary.

Dear 16-Year-Old Me, Don't Go To law School, David Lat, Above the Law (February 29, 2012).

Benefits to Being a Career Butterfly, Emily Guy Birken, MoneyNing (September 2011).

Court Technology Bulletin. The post about best court websites is particularly thought-provoking.

Cake Wrecks. Hey, it's Friday.

Saturday update: Convicted Combat Vets Watch Each Other's Backs to Stay Out of Prison, Michael M. Phillips, Wall Street Journal (March 23, 2012). Of the dozen or so articles about veterans courts we've read, this is by far the best. It goes beyond explaining the basic concept and feel-good outcomes (as most do) to show some of the underlying controversies, conflicts, and more difficult cases. Note: link is subscription-only.

Plea Plea Me

Posted in Criminal on Friday March 23 2012 @ 6:50am

Kudos to the SCOTUS for using statistics in thinking about plea bargaining. While the numbers are probably not as pointy as one would like, it is abundantly clear that most criminal cases do not go to trial. While some statistics are fuzzy and ill-gotten, subject to morphing over time, this number has been firm and unbending for decades.

Because the pretrial may be all there is, the SCOTUS has determined that the right to effective counsel applies. Doug Berman of Sentencing Law & Policy asks: Are SCOTUS rulings in Lafler and Frye as revolutionary as Gideon? Could be.

Justice Scalia may be right when he says that plea-bargaining law may be the next trendy trend. But -- thank goodness! Plea bargaining, prolific as it is, has usually been practiced in the shadows, more art than science, more serendipitous than procedural. It was rarely written about, almost never studied (exception: Alaska, which did away with plea bargaining for a time and thus provided ripe ground for comparison). The bible of plea bargaining was written in 1981 -- the year MTV was born. Frye (though, we wish people with the last name of Frye would stop making important caselaw -- we will get all mixed up) and Lafler are welcome updates to the murky, yet prolific, practice of plea bargaining. That the Justices relied, in part, on established statistics, makes our day.

p.s. Apologies to Simple Justice for not reading the title of Scott's post before we wrote ours. Great minds, ya know?

Growing Pains

Posted in Juvenile on Friday March 16 2012 @ 2:20pm

It wakes us up in the middle of the night weeping from the pain. We rub behind its knees, give it a small dose of ibuprofen, and hope the growing pains go away. Juvenile justice as we know it is growing up. Like real growing up, juvenile justice's growth is a painful and seemingly slow process.

The first juvenile court was started over a hundred years ago in Chicago, pushed in part by Jane Addams. Other jurisdictions quickly followed (see, e.g., A Century of Service Highlights: 1902-2002, from the Cuyahoga County Juvenile Court). The National Council of Juvenile and Family Court Judges (NCJFCJ) turns 75 this year.

In recent decades, the court community struggled with the issue of juvenile transfer -- transferring juveniles out of juvenile court and into criminal court by judicial waiver or other means. This theory was the opposite of the basic tenets of juvenile justice. In the 90s, when we still feared super-predators, states expanded their transfer laws. States rushed to enact transfer rules, but transfer was (and is) rare. See Juvenile Justice Reform Initiatives in the States, 1994-1996, OJJDP.

Where are we now? Jill Miller Zimon, of Writes Like She Talks (doesn't everybody?! We certainly do!) exhibits interesting and multiple perspectives on the recent school shooting in northern Ohio: The Chardon, Ohio School Shootings: A Neighbor's View, BlogHer (March 2, 2012). Social worker, advocate, parent, neighbor -- do our little dose of painkiller and wishful healing hands really help anyone? Maybe, slowly, we will outgrow these pains.

Swimming in a Jury Pool

Posted in Jury on Thursday March 01 2012 @ 8:10am

by Jeremy Flannery

Part 9: Check's in the Mail

The employees of the Hamilton County Courthouse (which houses both municipal and common pleas courts) were very accommodating to the people serving on the jury. I cannot think of any suggestion that would improve the courthouse's services and treatment of jurors.

Jury duty pays $19 per day that a juror or potential juror serves. Checks are mailed out on Friday. I received both checks in Saturday's mail.

It was an honor and humbling experience for me to serve as a juror. As a U.S. citizen, I am thankful for this life experience. I would also like to thank my fellow jurors for using logic, rational thinking, and discussion, and for respecting each other's statements and views about the case in order to reach the verdict.

[p.s. court-o-rama.org thanks JF!!!]

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