A new 10-minute video is available from the ABA exploring implicit bias and criminal defense.
The Alabama Court of the Judiciary on May 7 filed a complaint against Chief Justice Roy Moore for obstruction of the duty of Probate Judges to comply with the order of a federal court. Moore has been suspended with pay. Moore was previously removed for defiance of an order to remove the Ten Commandments monument from the courthouse. He was reelected.
The Court of the Judiciary complaint relates to a January 6, 2016 Administrative Order by Moore which – after Obergefell v. Hodges – declared “Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act [which]remain[s] in force and effect.”
The Court asserts six counts of violation of the Code of Judicial Conduct, including Canon 2A for failure to respect and comply with the law”.
California’s Second Commission for the Revision of the Rules of Professional Conduct continues its work to update California’s ethics rules (and switch to the ABA Model Rules format). The Commission’s website includes a page where it regularly posts its draft rules for comment. For example, in April 2016 the Commission posted its proposed drafts of Rules 1.2, 1.7, and 7.1-7.5, among other rules. In May 2016 the Commission posted drafts of Rules 3.3-3.6 and a proposed rule dealing with prosecutorial responsibilities. The June 2016 column by State Bar of California President David Pasternak urged California lawyers to submit their comments to the Commission. Given California’s size and influence, this work deserves careful consideration by all lawyers.
Unguided prosecutors – county by county prosecutorial discretion – is at the heart of the arbitrariness of capital punishment in America, as well as state and local cultures which make coherence in our criminal justice system an impossibility.
Who lives and who dies – among those who have committed horrible acts? Historically – men die, and Black men die much more often. But even if – as in New Jersey – that factor was squeezed out (by Black urban political power) – the results are arbitrary. At a symposium I organized at Seton Hall eight years about the state’s repeal – former Chief Justice Deborah Poritz acknowledgedthat despite rigorous “propotionality review” they had failed to eliminate the arbitrariness of who was sentenced to death who to life in prison. – gwc
From NPR News:
The U.S. Supreme Court hears arguments [today] testing whether a Pennsylvania Supreme Court justice violated the U.S. Constitution when he ruled in a death penalty case that he had been involved with as a prosecutor.
At issue is whether then-Chief Justice Ronald Castille, by refusing to recuse himself, denied the defendant, Terrance Williams, a fair hearing.
Bruce Green and Ellen Yaroshefsky recently posted a new article on SSRN, Prosecutorial Accountability 2.0. They identify several rhetorical and regulatory shifts that they claim are leading to an era of new prosecutorial accountability. In their carefully crafted article, they argue that information technology is the main driver behind this shift to hold prosecutors accountable for their actions. They claim that the pendulum long fixed on courts and the media presuming that prosecutors could do no wrong has swung to a more skeptical position. Let’s hope they are right. Anyone interested in the criminal justice system should read this article.
|James Obergefell and Chris Geidner|
Former Scalia clerk and Catholic conservative Kevin Walsh at University of Richmond has acted to support his former mentor by explaining that there is no defiance of law in comparing Obergefell to Dred Scott v. Sanford, that the judiciary is supreme only in its own “department”, leaving other departments of government free to pursue their own visions of the Constitution. Judicial supremacy – the product of Marbury v. Madison as now understood – has long invited celebration and vilification, depending usually on whose oxen have been gored.
Prof. Howard Wasserman who is not in the same ideological camp has embraced the “departmentalism” notion. In my view signing on to Walsh’s label is hazardous. Of course every branch of the government participates in the development of thinking within or about the framework of the constitution. But in practice the current slogan as inspired by George – who denounces Obergefell as illegitimate as was Dred Scott – is a dangerous development.
Those like Chief Justice John Roberts who in dissent denounced Obergefell (“By deciding this question under the Constitution, the Court removes it from the realm of democratic decision”) are playing a risky game. The majority decision giving the 2000 presidential election to George W. Bush is subject to the same attack as Roberts makes now. Judicial humility did not prevent Roberts from striking Section 5 of the Voting Rights Act; nor from striking the voluntary racial integration plans of the Seattle public schools. Such decisions cannot be resolved by neutral principles. They require prudential judgments; judiciousness rather than “constitutional resistance” is the better watchword.
by Howard Wasserman
The ethics complaint filed against Texas Attorney General Ken Paxton last summer will proceed to a State Bar investigation. (H/T: Josh Blackman) The complaint stems from a letter Paxton sent to county clerks in the wake of Obergefell, suggesting clerks and justices of the peace may have a religious exemption from issuing licenses or performing marriages to same-sex couples and that they may be able to assert those requests for exemption.
One of the challenges to the model of departmentalism I have been advocating (what Richmond’s Kevin Walsh calls “judicial departmentalism”) is the many doctrines that reinforce judicial supremacy. State bar regulations appear to be one of them, if this complaint against Paxton goes anywhere. The explicit problem, according to the complaint, is that Paxton ignored Obergefell and the (supposed) supremacy of SCOTUS’s interpretation of the Constitution; his legal advice thereby ran afoul of several rules of professional responsibility. In fact, Paxton expressly acknowledged that any clerk or JOP who did this would almost certainly be sued, held liable in light of SCOTUS (and 5th Circuit) precedent, and subject to an injunction that would bind them. He simply recognized the need for that additional step. But that is not good enough; because it is “emphatically the province and duty,” etc., an attorney, even one for the State, cannot give advice contradicting such judicial declarations. If this is what the regulations mean, they leave no room for departmentalism or for independent constitutional judgment in non-judicial actors; they instantiate judicial supremacy as the sole understanding for all attorneys, public or private.
On one hand, that could be permissible and appropriate. If a state legislature wants to establish judicial supremacy as the guiding principle for its attorneys, (so that, for example, the obligation to not advise a client to disobey a legal obligation includes obligations established in judicial decisions to which the client is not a party), it can do so. On the other hand, the automatic acceptance or presumption of judicial supremacy into the rule, without more, seems difficult to square. And somewhat unfair to impose without further warning or clear statement.