By Margo Kirchner
With courthouse closures and postponements of jury trials and other proceedings for weeks and months, at what point does justice delayed become justice denied?
Legal experts brought together telephonically by the American Constitution Society recently discussed the issue in a briefing titled “Pandemic at the Courthouse.”
The experts described effects of coronavirus social-distancing measures on the justice system to date, warned of dangers to constitutional rights, and noted a few bright spots that may lead to system improvement.
The experts’ comments follow court orders around the country bumping jury trials for weeks or months; the U.S. Supreme Court’s postponement of April and May oral arguments; and the Ninth Circuit’s recent decision to suspend federal Speedy Trial Act requirements until April 2021.
Elaine Poon, managing attorney of the Legal Aid Justice Center in Charlottesville, Virginia, noted that on the civil side, courts continue to work on several types of cases, especially cases brought by victims of domestic abuse.
Nevertheless, Poon worries that with court slowdowns comes a decrease in protection of educational requirements for children with disabilities, fewer reviews of the status of children in foster care and conditions in immigration detention centers, and lack of attorney access to detainees. She is seeing juveniles in detention held in cells for too many hours each day due to social-distancing policies. And she worries about hearings being moved online when not everyone owns computers or phones.
She noted, though, a “paradox” in that legal aid attorneys are in some cases celebrating court shutdowns. Many jurisdictions have stayed proceedings regarding eviction, debt collection, deportation, and termination of benefits activity. In her view, because of the lack of a right to counsel in most civil cases, for decades judges heard only one side of the issues in eviction and debt collection cases, and court decisions reflected that one-sidedness. With odds stacked against defendants in those cases, court shutdowns constitute a “ceasefire.”
This ceasefire signals a silver lining of the current crisis, Poon said. The pandemic has caused judges and government officials to think about people’s health and wellbeing, which she considers a welcome change of perspective. Though she anticipates a flood of evictions and debt collection activity when COVID-19 restrictions are lifted, “we are seeing judges, we’re seeing lawmakers look at the law through the lens of public health and safety, and that’s an opportunity for us to continue to bend the system towards humanity,” she said.
She cited as another positive the reconsideration of what constitutes an emergency. As an example, prior to COVID-19 restrictions evictions were considered emergencies for the landlords. The pandemic has changed that; evictions are now nonemergency matters that can be stayed for a tenant’s benefit.
Jonathan Smith, attorney and executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs in Washington, D.C., and Shira Scheindlin, retired federal judge from the Southern District of New York, addressed the immediate and long-term effects of the pandemic on the criminal justice system.
Scheindlin noted that although courthouses have been physically closed, state and federal courts in her home state have worked hard to remain open remotely. Jury trials, however, are on hold. According to Smith, as most courts are operating on a limited basis, many are restricting criminal work to felony arraignments and reviews of custody.
Smith noted the work being done to reduce the flow of individuals into custody. The risk of COVID-19 spreading in jails and prisons is high; physical separation is impossible in such settings, and staff enter and exit the facility every day. And in the event of the spread of coronavirus in a prison, those infected may need to be transported to hospitals for treatment, he said.
One method to reduce custody inflow that Smith is observing is police issuing summonses for future hearings rather than arresting individuals on the spot. For those arrested, Scheindlin opined that judges should be more willing to allow pretrial release if a case will be delayed.
Nevertheless, Smith noted the troubling problem of unequal enforcement of stay-at-home orders in minority and low-income neighborhoods as opposed to white, privileged communities. He questioned whether enforcement strategies are being applied equally.
According to Smith, a major focus of COVID-19 crisis advocacy has been reducing the numbers of those already in prisons and jails.
Most success to date has occurred regarding jail populations. District of Columbia prisoners have been granted extraordinary good-time credits to achieve release, Smith said. The South Carolina Supreme Court permitted release of those in local jails unless release would create an unreasonable danger or extreme risk of flight, while the Massachusetts Supreme Court ruled that all pretrial detainees held on nonviolent offenses have a rebuttable presumption of release. The Kentucky Supreme Court told lower courts to review all cases in which the defendants may be susceptible to virus complications.
The prison system has been more sluggish, said Smith. Petitions for release have been filed across the country, with little progress.
The federal prison system notably has been slow to act; only a few individuals have been released to home confinement. In the face of the federal Bureau of Prisons’ lack of action, there is a groundswell of support for compassionate release of those over age 60 or with underlying medical conditions.
Under the First Step Act, the BOP no longer controls compassionate release, said Smith. Instead, cases go back to sentencing judges, who are already recognizing the risk of COVID-19 as an extraordinary circumstance meriting release for those over 60 or vulnerable due to medical conditions. According to Smith, hundreds of attorneys are taking these cases to help secure release, though the BOP is opposing with alternate arguments: if COVID-19 is not present in a facility, the BOP argues lack of risk to the individuals in custody; if COVID-19 is present, the BOP argues that it is too dangerous to the community to order release.
On a positive note, said Smith, these pandemic response efforts to reduce prison populations may be a test-run to show that de-carceration can work.
Both Scheindlin and Smith noted complex issues regarding speedy trial rights. Though Scheindlin understands the inability to hold a trial with a panel of potential jurors, parties, and court staff in close proximity during a pandemic crisis, she worries that the pandemic will be used to erode protection of statutory and constitutional guarantees of a speedy trial.
Disasters such as hurricanes or the 9-11 attacks previously closed courts for a short time ─ up to 30 days, for instance. Current court closures and pandemic response policies are lasting much longer, which raises concerns, said Scheindlin. She questioned in particular the lifting of Speedy Trial Act protections for a year. Pretrial detainees, in particular, she said are “presumed to be innocent and they could be stuck for a very long time incarcerated . . . unless we find a way to move the system along more quickly.”
“We have to be careful and vigilant that [the pandemic] doesn’t become an excuse to take away our constitutional rights,” she said.
Scheindlin also noted the need to safeguard the right to counsel in hearings held by telephone or video conference.
“It’s one thing to have a conference with your lawyer before the proceeding . . . but things happen during a proceeding where you need to consult with counsel,” she said. Though some technologies permit a virtual breakout room for attorney and client to confer, not all do. And valuable information is gathered by judge and parties being together in the same physical space, agreed Smith and Sheindlin.
Said Smith: “It makes an enormous difference to have that physical presence” in a courtroom; remote proceedings can be artificial and uncomfortable for defendants.
Scheindlin predicts a post-pandemic push to continue conducting many proceedings remotely. She sees dangers if that occurs. For instance, in criminal cases, judges in virtual hearings may rely heavily on documentation and possibly biased assessment tools rather than the judge’s personal assessment of the defendant in court. In addition, she said, remote proceedings will impact the public’s right to observe what is happening. “There’s nothing like the public being able to be there and participate in the system.”
Smith and Scheindlin, like Poon, expressed concern over how courts will process the backlog of hearings and trials when they reopen. Scheindlin suggested that courts recruit a cadre of volunteer special masters to handle civil pretrial matters like discovery disputes.
A recording of “Pandemic at the Courthouse Doors” is available as a podcast at https://www.acslaw.org/podcast/pandemic-at-the-courthouse-doors/.
By Margo Kirchner
Sentences in criminal cases in excess of plea-bargained terms should cease, says a Wisconsin attorney in an article written for the University of Illinois Law Review.
Kenosha criminal defense lawyer Michael D. Cicchini labels as “deal jumping” the practice by which a judge accepts a defendant’s guilty plea yet hands down a sentence harsher than agreed upon by the defendant and prosecutor. Judges who so act are “deal jumpers,” which is the name of Cicchini’s article.
According to Cicchini, deal jumping is fundamentally unfair to defendants and harmful to the criminal justice system, as more than 95% of cases are resolved by plea bargains. Yet the practice is permitted in several states, including Wisconsin, which is Cicchini’s focus.
Cicchini advocates for state legislative reform to eliminate deal jumping by requiring judges to either (1) approve or reject sentence concessions at the same time they approve or reject plea agreements, or (2) allow defendants to withdraw their pleas if the judge plans to exceed the agreed-upon sentence.
But if legislative change fails to occur, judges should act on their own to end deal jumping and defense attorneys should protect their clients from the practice. Cicchini provides defense lawyers with practical ideas to ensure that defendants receive the benefits of their plea bargains.
To illustrate a deal jump, Cicchini describes a situation in which a defendant charged with multiple counts agrees to plead guilty to one count in exchange for the prosecutor’s dismissal of the other counts (a charge concession) and recommendation of a fine instead of probation or incarceration (a sentence concession). Deal jumping involves sentence concessions.
In some states, says Cicchini, the judge would be required by law to either sentence this defendant to a fine or, if the judge plans to impose a penalty more severe, allow the defendant to withdraw the guilty plea.
However, in other states, such as Wisconsin, regardless of the plea agreement the judge may impose whatever punishment the judge wishes up to the maximum allowed by law, and the defendant has no recourse to withdraw the guilty plea.
Cicchini asserts that Wisconsin “freely permits the most egregious forms of deal jumping when it comes to the sentence.”
By Gretchen Schuldt
Milwaukee County Circuit Judge Kristy Yang will move at the end of this month from presiding over misdemeanors to handling juvenile cases, Milwaukee County Chief Judge Maxine White ordered Friday.
Yang's tenure in misdemeanor court was marked by a large number of substitutions filed against her. For the year ended July 31, for example, 227 substitutions were filed against Yang, while just five were filed against Circuit Judge Jean Kies and 40 were filed against Circuit Judge Hannah Dugan, both of whom also served in misdemeanor court.
New judge Daniel Gabler, meanwhile, will spend just a few weeks in Children's Court before taking over Yang's misdemeanor calendar. His stint in Children's Court begins Monday and ends Jan. 28, when he takes over Yang's misdemeanor calendar.
Paul Dedinsky, a former Children's Court prosecutor, will return as a judge to that same court.
Gabler and Dedinsky were appointed to the bench by Gov. Scott Walker.
Gabler, a former assistant district attorney, ran unsuccessfully for judge as a tough-on-crime candidate in 2009. He won the primary, but lost support when he ran an ad accusing judges of being lazy and portrayed two election opponents – one a career prosecutor – as having records of defending accused criminals.
He also ran into trouble when he failed to show up for court on a case, leading to the dismissal of felony drug charges against the defendant. Gabler said he was busy with another case, but others said he may have been involved in a non work-related matter. There were two other court cases where Gabler-related errors got the DA's office in hot water, according to the MIlwaukee Journal Sentinel.
Gabler lost the general election to J.D. Watts.
Walker appointed Gabler to head the Parole Commission in 2017. Under Gabler's leadership, the commission was best known for its stinginess in granting parole. In 2017, for example, 181 inmates were released on parole, according to the Department of Corrections.
Dedinsky has worked since May 2017 as chief legal counsel for the State Department of Agriculture, Trade and Consumer Protection. He was a Milwaukee County assistant district attorney for 20 years prior to that, a job that included serving as the Milwaukee Public Schools restorative justice coordinator from 2008 to 2014.
White's order Friday follows an earlier shuffling announced in November.
By Gretchen Schuldt
District Attorney John Chisholm says he will push for a statewide initiative that would increase state aid to counties that successfully reduce the number of people they are sending to state prisons.
He also said that the high turnover rate among attorneys and support staff in his office "is the single biggest administrative challenge I face."
On the prison alternative initiative, Chisholm, the Milwaukee County prosecutor, said that other states, such as Minnesota and Oregon, "have engaged in this work and have seen dramatic improvements in their criminal justice systems."
Minnesota had about 10,000 prison inmates as of July 1, 2018; Oregon had about 15,000; and Wisconsin had about 24,000, according to figures from each of those states.
The initiative, if it is to work, would require more equitable state revenue sharing and commitments from counties to develop alternatives to incarceration, Chisholm said.
Under the plan, the state would absorb the cost of a certain number of new inmates from each county.
"If they (the counties) send more than their share, then they have to pay the costs associated with it," he said. A state-county cost share already exists in the juvenile corrections area.
By Margo Kirchner
Defense attorneys are failing their clients if they neglect to understand, investigate, and present evidence of childhood trauma in criminal cases, says a legal and neuroscience expert.
Deborah W. Denno, a professor and founding director of the Neuroscience and Law Center at Fordham University School of Law, spoke last week at Marquette University Law School.
Denno obtained her law degree and a Ph.D. in sociology from the University of Pennsylvania and has taught at Fordham Law, the London School of Economics, Columbia Law School, and Princeton University.
She visited Marquette Law to give the annual Barrock Lecture on Criminal Law, presenting her research and conclusions about the use of childhood-trauma evidence in adult criminal cases.
Denno studied criminal cases reported nationwide, investigating how defense attorneys introduced and how courts assessed the mitigating and aggravating impacts of neuroscience evidence. Neuroscience is the branch of life science focusing on the brain and nervous system.
Denno researched written court decisions reported in the online legal databases Westlaw and Lexis from 1992 to 2012. She found 800 criminal cases involving neuroscience evidence. She reviewed those and then narrowed her focus to the 266 cases involving childhood trauma.
Denno acknowledged that written opinions reported in Westlaw and Lexis are predominantly from appellate courts, so her research similarly involved mostly appellate court decisions. Further, almost all of the 266 cases she reviewed in depth were homicide cases, and most involved the death penalty.
She looked particularly at the types of childhood trauma defendants had suffered, conditions caused by or related to the trauma, how evidence of the trauma or conditions was presented to courts, and the courts’ responses. From the 266 cases she identified 20 types of trauma, which she grouped as either family, developmental, or external trauma. On average, each defendant in the 266 cases had suffered five different types.
By Margo Kirchner
President Trump's next U.S. Supreme Court appointment likely would make Chief Justice John Roberts the ideological middle of the court, according to the dean of the University of California, Berkeley, Law School.
Dean Erwin Chemerinsky noted that Justices Ruth Bader Ginsburg, Anthony Kennedy, and Stephen Breyer are all older than the average age at which past Supreme Court justices have retired.
Roberts becoming the "center" would show the Court's continued movement toward the conservative viewpoint, he said.
Chemerinsky, a well-known scholar on constitutional law, spoke as part of a panel hosted by the American Constitution Society. He discussed the progression of the median or swing justice from Justice Lewis Powell to Justice Sandra Day O’Connor to Justice Anthony Kennedy.
He said another Trump appointment would most likely have an effect on affirmative action laws, criminal penalties, and the exclusionary rule (which generally prohibits the admission of illegally obtained evidence).
In addition, he sees five votes to overrule Roe v. Wade should another Trump appointee make it to the Court.
He also expects, however, that if Democrats take the Senate in November 2018 they would sit on any Trump Supreme Court nominee until after the 2020 elections, as pushback after President Barack Obama’s failed Merrick Garland nomination. Senate Republicans refused to vote on Garland's nomination for 10 months, until Obama's term expired.
Law professors Melissa Murray and Pamela Karlan joined Chemerinsky on the panel, moderated by Caroline Frederickson, president of the American Constitution Society. Murray, a professor and faculty director of the Center on Reproductive Rights and Justice at Berkeley Law School, discussed a second Trump appointee’s potential effect on reproductive rights and the frequent chipping-away of Roe. Karlan, a professor at Stanford Law School, speculated on the status of LGBTQ rights if another Trump nominee joins the Court.
Karlan noted the importance of getting the public to understand how court decisions affect their lives.
By Gretchen Schuldt
While State Sen. Leah Vukmir expressed outrage that John Doe investigators cataloged some of her personal emails and Attorney General Brad Schimel said he did not understand why they would do that, the Doe investigators were just following good protocol, according to publications on digital investigations.
"If the case ever comes to trial, the investigator presenting the case must be able to prove ... the data was not modified during acquisition or analysis (chain of custody)," forensic analyst Michael Graves wrote in The Anatomy of a Digital Investigation.
Vukrmir (R-Brookfield), a candidate for U.S. Senate, said in a statement that “The upsetting news that my privacy was violated as personal emails between my daughter and I were obtained, read and kept by those who ran the John Doe investigation is absolutely appalling. This criminal behavior is inexcusable, and the individuals involved in this belong in prison."
Vukmir's emails were seized during the John Doe investigation into Gov. Scott Walker's campaign, according to Schimel's report, which indicated investigators had a warrant.
Attorney General Brad Schimel, in his new report on his Justice Department's investigation into the Doe investigation, said that Doe seized emails included "private medical information and other highly personal information. DOJ was unable to determine why investigators ever obtained, let alone saved and labeled, over 150 very private and very personal emails between a Senator and her child. ... ”
But Adam Stone, writing for Govtech Works, said, "One final word of advice from the FBI: Keep it all."
"Without the right protections, digital files can be easily deleted, edited, even fabricated," he wrote. "So documenting a digital chain of custody is all the more important. A compromised chain can undo a legal proceeding and lay waste to years of investigation. And all a defense attorney has to do is successfully raise concerns about potential tainting of evidence – that alone is enough, let alone demonstrating actual taint."
"One final word of advice from the FBI: Keep it all."
Keith Chval, in the article How to Preserve Digital Evidence in Case of Legal Investigation, says that each item seized in an investigation should be catalogued.
He quotes Patrick Zeller, a former high-tech prosecutor and litigator: "Because digital evidence is more susceptible to intentional or inadvertent alteration or destruction than many forms of evidence, it is critical that a witness be able to offer evidence upon which the judge can conclude that the data is in substantially the same condition as when it was seized."
By Margo Kirchner
The automatic aftereffects of a criminal conviction – exclusive of the sentence – can hit someone like “a ton of bricks,” according to Gabriel “Jack” Chin, a law professor at the University of California-Davis.
Chin delivered the Marquette University Law School’s annual Barrock Lecture on Criminal Law last week.
Chin noted that about 60% of felons are sentenced to probation instead of prison, not warranting severe punishment as part of the sentence. But the collateral consequences of a felony conviction hit hard across the board. Collateral consequences differ from state to state but, according to Chin, can include:
Significantly, such collateral consequences last a lifetime, except for the rare pardon or expungement.
And the number of consequences a person faces can grow, as new ones can be imposed on old convictions. A felon’s move to another state can mean additional restrictions.
Modern courts generally view collateral consequences as civil regulatory measures rather than as punishment. As a result, except as to deportation, neither defense counsel nor a judge accepting a plea deal is required to inform a defendant of any of the myriad collateral consequences the conviction will bring.
The scattering of collateral consequences throughout federal and state statutes and regulations adds to a defendant’s or attorney’s difficulty in grasping their full scope, in Chin’s view, and efforts are underway in many states to compile them. (In Wisconsin, the State Public Defender, in partnership with the Collateral Consequences Resource Center, maintains a compilation at http://wisconsin.ccresourcecenter.org/.)
Chin estimated that about 75 million adults in America have criminal records, so these consequences affect a substantial portion of the country’s population. He noted the cost to society when a person who could make a living and contribute cannot due to collateral consequences. He noted as well the cost to society in denying forgiveness and redemption to felons, citing President George W. Bush’s 2004 speech stating that America is the land of the second chance.
Chin said that he is not a “prison abolitionist”; he prosecutes sex offenders in addition to his job in academia. But he believes that at some point people should be allowed to move on. He noted some of the common reforms suggested in recent projects and studies: that attorneys and judges during criminal cases advise defendants about collateral consequences; that each state maintain a compilation of all collateral consequences; that a judge consider collateral consequences at sentencing and have the power to waive some of those consequences; and that after a number of years felons be allowed to request and obtain an end to those consequences.
Chin also suggests that courts reform ex post facto clause legal doctrine to stop the addition of new consequences years after a sentence was imposed and served. The U.S. Constitution’s ex post facto clause prohibits prosecution for action that was legal when taken, but later made illegal. It also prohibits laws that increase the punishment for crimes already committed.
According to Chin, the modern U.S. Supreme Court has misinterpreted long-standing precedent to view collateral consequences as civil forfeitures rather than as punishment. As a result, under current U.S. Supreme Court case law, Chin said, new consequences can be added at any time (until the death of the offender). He advocates instead for a return to principles discussed by the Supreme Court in the late 18th and early 19th centuries, which allowed for application of the ex post facto clause to any law that adds a collateral consequence to an offense after the offense is committed.
In his 2004 State of the Union address, President George W. Bush stated:
Tonight I ask you to consider another group of Americans in need of help. This year, some 600,000 inmates will be released from prison back into society. We know from long experience that if they can't find work or a home or help, they are much more likely to commit crime and return to prison.
So tonight, I propose a four-year, $300 million Prisoner Re-Entry Initiative to expand job training and placement services, to provide transitional housing and to help newly released prisoners get mentoring, including from faith-based groups.
America is the land of second chance, and when the gates of the prison open, the path ahead should lead to a better life.
WJI is reposting reporting from the old storyhill.net website and affidavits from County Jail inmates unfortunate enough to be booked during Sheriff David Clarke's tenure to show just what kind of malfeasance the public can expect if President-elect Donald Trump gives Clarke a federal job.
The affidavits were part of a court case alleging thousands of men and women were improperly detained in the jail under excessive lengths of time, in violation of a 2001 consent decree.
Milwaukee County Circuit Judge Clare Fiorenza eventually found the county in contempt of court for the violations.
County says 16,000 consent decree violations shouldn't count
Sept. 2, 2005 -- The Sheriff's Department substantially complied with a legally-binding consent decree governing jail conditions despite more than 16,000 violations of one of the decree's provisions, lawyers for the county say.
Meanwhile, a lawyer for the Legal Aid Society of Milwaukee Inc. said a key apect of the county's effort to control the jail population -- moving pre-trial inmates to the House of Correction -- "is not a solution...in the short run or the long run."
"Of immediate concern is whether jail inmates transferred to the HOC are at risk of being held in overcrowded and unsafe conditions at the House of Correction," attorney Peter Koneazny wrote.
The Sheriff's Department, over a two-year period, held more than 16,000 inmates more than 30 hours in the jail’s booking room in violation of the consent decree. The practice ended in April 2004, shortly after the Legal Aid Society of Milwaukee Inc. and the American Civil Liberties Union of Wisconsin Foundation Inc. uncovered it.
Legal Aid and the ACLU are seeking to have the Sheriff's Department held in contempt for the violations.
The county argues since it ended the violations, it cannot be ordered to pay damages for the violations that did occur.
"While this Court certainly has inherent contempt powers, the Legislature has reasonably regulated the use of those powers to preclude the imposition of a remedial sanction such as money damages in a situation such as the case at bar, where the allegedly comtemptuous conduct ended at least some 15 months ago," the county said in Circuit Court filings.
The county also said it did not believe the Sheriff's Department was in contempt, as the ACLU and Legal Aid allege.
The Sheriff's Department did what it could to control overall inmate population, the county said. Crowding throughout the jail contributed to the long booking room stays because there was no place available to assign people in booking.
Sheriff David Clarke, for example, tried to control crowding by agreeing in March 2004 to hold at the jail a maximum of 125 state inmates accused of violating probation or parole, the county lawyers say.
Clarke, however, was not required to accept any of those inmates, and the county was silent on why housing 125 inmates at the jail that didn't have to be there helped control the facility's population.
Clarke also agreed, in January 2004, to lease to the state up to 64 beds for state inmates nearing the end of their prison sentences. The county did not even mention that agreement in its response.
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