Appellate Judges on Remote Arguments

by · Feb 4, 2021 10:30 am

Marcia Coyle has this article in the National Law Journal (free registration required), titled Appellate Judges, Including Justice Breyer, Reflect on Remote Arguments in Virus Era.

In the pandemic era of remote oral arguments, audio is good, but audio-visual is better, although both come with a significant cost of reduced or eliminated eye contact, federal and state appellate judges said in a recent survey.

Twelve jurists, including Justice Stephen Breyer, responded to questions about their experiences with remote arguments in an article in the Journal of Appellate Practice and Process: “Remote Oral Arguments in the Age of Coronavirus: A Blip on the Screen or a Permanent Fixture?” In addition to the U.S. Supreme Court, the judges who participated in the survey sit on the U.S. Court of Appeals for the First Circuit and the Supreme Judicial Courts of Maine and Massachusetts.

Continue reading . . .

Dueling Editorials on LA DA Gascón

by · Feb 3, 2021 11:38 am

The Los Angeles Times printed this editorial last Friday, predictably defending LA DA George Gascón and blasting the Association of Deputy District Attorneys’ lawsuit. The editorial is titled, “Let George Gascón do the job L.A. voters asked him to.” But did they ask him to do what he is now doing?

The Metropolitan News-Enterprise, a much smaller LA paper that focuses on judicial issues, responded yesterday with an editorial titled “Los Angeles Times Defends Gascón With Flawed Arguments.” Continue reading . . .

Sheriff Deputies as Parole Hearing Advocates

by · Feb 3, 2021 10:14 am

“Curiouser and curiouser.” In the wonderland that is Los Angeles County, deputy district attorneys are forbidden by their “woke” boss to attend parole hearings to oppose the release of violent thugs. Now the county sheriff (who has some dubious policies of his own) is going to send sheriff’s deputies to the hearings, so that victims and justice are not entirely unrepresented. Continue reading . . .

Theft by Governments

by · Feb 3, 2021 9:36 am

Generally, one cannot sue a foreign government in American courts. The Foreign Sovereign Immunities Act establishes the basic rule, subject only to specified exceptions.

In Federal Republic of Germany v. Philipp, No. 19-351, the Supreme Court addressed a sale of art allegedly coerced by the government of Nazi Germany in 1935 for only one-third of its value. Can the heirs of the sellers sue the present German government in U.S. courts to get it back? Continue reading . . .

Scheduling Spat on Garland AG Nomination

by · Feb 2, 2021 12:00 pm

Sarah Lynch at U.S. News and World Report reports on a spat between the Senate Judiciary Committee’s top Democrat and Republican over scheduling the confirmation hearing for AG-Nominee Merrick Garland. Incoming Chairman Dick Durbin wants the hearing February 8 for one day, but outgoing Chairman Lindsay Graham says one day is not enough. Continue reading . . .

Jury Nullification Gets Nullified

by · Feb 1, 2021 4:23 pm

The highest court in Maryland, the state Court of Appeals, has outlawed jury nullification in the most forceful terms I can remember seeing.  This is the right result.  Jury nullification is simply inconsistent with any intelligible concept of law.  One of the main functions we want law to do is to let citizens know what the rules are.  If we are to have, on a completely ad hoc basis, different rules depending on which jury you happen to draw (i.e., crack is legal in one jury’s mind but still illegal in the mind of the jury across the hall, or the age of consent is 13 in one jury’s mind but 17 in the mind of the jury across the hall), then whatever you have, it’s not law.

Continue reading . . .

Oregon Decriminalizes Hard Drugs

by · Feb 1, 2021 1:56 pm

It is no longer a misdemeanor to possess heroin, crack, fentanyl or LSD in the state of Oregon.  Paul Best of Fox News reports that the state’s Drug Addiction Treatment and Recovery Act, adopted last November, which takes effect today, essentially makes the possession of small amounts of even the most dangerous drugs an infraction, punishable by referral to treatment.  More than 100 organizations endorsed the measure.  Proponents cite studies of Portugal, the Netherlands and Switzerland, which decriminalized hard drugs years ago without dramatic negative effects other than increased drug use.  If drug use is no longer punishable in Oregon, yet dealing drugs remains illegal, will drug dealing become more and less profitable as drug use increases?   Under the new law, drug users will be connected with the services they need at Addiction Recover Centers.  The new law provides no consequences for addicts who do not show up for evaluation or treatment.

What Caused Last Year’s Huge Spike in Murder?

by · Feb 1, 2021 11:07 am

My longtime friend, former colleague in the USAO, former US District Judge, and now distinguished law professor Paul Cassell takes a look.  He concludes, “While a new report released today by the Council on Criminal Justice downplays the role anti-police protests played in last year’s unprecedented homicide spike, a decline in pro-active policing following the protests remains the most likely cause.”

Full disclosure:  I am a member of the Council on Criminal Justice (as I believe is Paul), but we’re in the small minority favoring the sober Reagan/Bush/Bill Clinton approach to crime.  The Council’s Report is here.

What To Make of Plea Bargaining?

by · Jan 31, 2021 8:53 pm

The Federalist Society student chapter at Arizona State was kind enough to host Clark Neily of Cato and me for a discussion of the modern state of plea bargaining.  Is it a coercive and reckless tool for overbearing prosecutors, and one that all but eliminates the citizen participation the Founders thought essential for the criminal justice system, or a reasonably reliable tool for the government to adjudicate the flood of criminal cases and provide justice to many more crime victims than would otherwise be possible?

Clark  —  a gentleman throughout  —  and I have at it here.