Case in Point 2017-2018 by The National Judicial College

CASE IN POINT 2017– 2018

NOW WHAT?

1963

Years

2018

In 1963… Alabama Gov. George Wallace delivered a speech promising “segregation now, segregation tomorrow, and segregation forever!” while Martin Luther King Jr. said, “I have a dream!” The president was assassinated. The Beatles invaded the U.S. pop charts. The Supreme Court ruled that state courts have to provide attorneys for criminal defendants who can’t afford them. And Supreme Court Justice Tom C. Clark helped found The National Judicial College. Times have changed, but one thing hasn’t: Democracy still depends on an independent judiciary that is skilled, fair and impartial. As the College approaches its 55th anniversary, please consider making a gift to support our continuing mission: to make the world a more just place by educating and inspiring its judiciary. Donate online at judges.org/giving.

For information on 55th anniversary events, visit judges.org/anniversary

2017–2018

THE MAGAZINE OF THE NATIONAL JUDICIAL COLLEGE

CASE IN POINT

Features

TECHNOLOGY COMES TO COURT

The Car That Could Kick Your Court to the Curb By Robert W. Peterson Autonomous vehicles will likely eliminate the need for traffic courts and put the brakes on lawsuits between motorists. Will there still be work for judges?

Departments 2

12 A Better Ear for Evidence

By Dorothy J. Glancy and James L. Wayman

New technology can help identify who’s speaking in audio evidence, but so far the courts aren’t listening.

You’ll Get Out When the Software Says You Should

By Sam Corbett-Davies, Emma Pierson, Avi Feller and Sharad Goel

Algorithms seem like the ideal way to take bias out of bail and sentencing decisions. Here’s why they don’t always work.

Bang.

By Hon. Chuck Weller

The husband in a divorce case I decided shot me with a rifle. This is what I learned.

By Hon. Peggy Fulton Hora (Ret.)

Marijuana may be legal in a growing number of states, but judges face wide gaps in knowledge when it comes to deciding whether a driver is under any influence from weed.

50 Things Judges Wish They Had Known Before They Took the Bench A Far Less Perfect Union By Penny J. White

Judge Polls Who is your favorite U.S. Supreme Court justice? Should judges be appointed or elected? A roundup of this year’s NJC Question of the Month surveys.

41 2018 Courses at a Glance On the cover CASE IN POINT 2017-2018

Pot Holes

Opening Statement

Justices O’Connor and Stevens knew what was likely to come from White and Citizens United. I had already become a casualty of politicized judicial elections.

NOW WHAT?

Widely published illustrator Gary Hovland (The New York Times, The New Yorker, Esquire, Vanity Fair, Time) imagines a courtroom invaded by the topics of four of this issue’s features: liability issues surrounding autonomous vehicles (p. 6); a technology that can help identify who’s speaking in audio evidence (p. 12); the use of algorithms to remove bias from sentencing decisions (p. 15); and the challenge of judging driver intoxication in the era of legalized marijuana (p. 26). What do you think of the new Case in Point? Drop us a line at njc-communications@judges.org.

CASE IN POINT MAGAZINE

THE NATIONAL JUDICIAL COLLEGE

2017–2018

Opening Statement

CASE IN POINT The National Judicial College Judicial College Building/MS 358 Reno, NV 89557 (800) 25-Judge (800-255-8343) www.judges.org/contact info@judges.org

So, what do you think? I’ve been asking that a lot during my first months as president of the NJC. I ask it because I want to know what you, my fellow NJC alumni, think of the College today. I want to know what everybody thinks of the College. The mission of the NJC is to make the world a more just place by educating and inspiring its judiciary. Like any good organization, we are always looking to get better. Make no mistake, you are a critical stakeholder in this enterprise. So thank you for your input, and please keep it coming. Innovation has been fundamental to the NJC, from its founding in the middle of the Civil Rights Era right on through to the courses we offer today to help judges decipher the validity of digital evidence or devise effective sentences for people addicted to opioids. In October, our Board of Trustees, led by new Chair Kim D. Hogrefe, approved a bold new strategic plan for the College. We’ll be sharing more details about it in coming months. But one of its priorities is to raise the profile of the College. The reimagined Case in Point magazine represents a first step in that effort. As alumni of the College, you know how important it is for judges to be lifelong learners. The new Case in Point extends the The NJC Experience with practical information and insights into emerging judicial issues. For example, this issue contains features about the use of algorithms in sentencing and what autonomous vehicles and legalized marijuana mean to the future of traffic courts. We are resolved that everything we do at the College be world class, and that includes our magazine. So we hope you notice and enjoy the new look and feel and more readable content. And not just you. The other purpose of the magazine is to demonstrate the College’s thought leadership. To that end we will be expanding the magazine’s circulation to the news media and decision makers everywhere. The last thing we want is for the College to be a hidden gem. So if you know of someone who could benefit from receiving Case in Point, let us know their name and address, or go ahead and email them a link to the online version. A poster hanging on a wall on the second floor of the College features this quote from Justice Anthony Kennedy: “Judicial independence cannot exist unless you have skilled, educated and principled judges.” I don’t have to tell you that the job of being a judge did not get any easier in 2017. Thank you for all you do and have done to preserve the rule of law and make the world a more just place. Benes Z. Aldana President 2

President Benes Z. Aldana Board of Trustees Chair Kim D. Hogrefe Board of Visitors Chair A. Clifford Edwards Faculty Council Chair Hon. Toni T. Boone (Ret.) MAGAZINE STAFF Editor Ed Cohen Associate Editor Brady Johnson Art Director Kerry Prugh Production Coordination and Messaging Design Sheena Britschgi Concept Contributions Patrick Grimes

Case in Point magazine is published annually by The National Judicial College. Copyright 2017 by The National Judicial College. The College encourages republication and dissemination of articles it publishes but only with permission. The magazine may not have authority to grant permission to republication of certain articles or artwork. Inquiries should be made to Ed Cohen, editor, at egcohen@judges.org. Articles and information that appear in Case in Point do not necessarily reflect the official position of The National Judicial College. Publication does not constitute an endorsement of views expressed.

The National Judicial College is an Equal Opportunity/Affirmative Action, ADA organization and admits participants of any age, race, color, religion, gender, gender identity, sexual orientation and national or ethnic origin.

JOIN THE ABA JUDICIAL DIVISION AND BECOME THE JUDGE YOU WANT TO BE! n

Become part of the largest professional network of judges and lawyers who are supportive and passionate about the same things you are.

Access the most comprehensive source within the ABA for educational programs and resources on current topics affecting the judiciary.

Engage in opportunities to be published, speak, volunteer, and serve in leadership positions. Help develop best practices, standards, and projects to improve the judiciary.

Stay ahead on current issues and latest trends through the Division’s publications, website, social media sites, emails, and newsletters. Membership includes a subscription to the award-winning magazine, The Judges’ Journal.

Shape the future of the judiciary through the Division’s many channels and volunteer events to educate the public and promote diversity in the judiciary.

Join the Judicial Division to be eligible for a $500 scholarship for any in-person National Judicial College course.

Judicial Division membership is only $35. You must be a member of the American Bar Association; discounted ABA dues rates available for judges. Learn more at www.americanbar.org/jd. 3

CASE IN POINT MAGAZINE

THE NATIONAL JUDICIAL COLLEGE

2017–2018

Judge Polls

You said it

Starting in February 2017 we began surveying NJC alumni monthly via email on questions of the day and questions that simply interested us. Question of the Month results are reported in our monthly e-newsletter, Judicial Edge. The content is archived at the NJC website, judges.org, under the News tab. Here are the results from questions asked between February and October 2017. The quotes are from judges who voted in the surveys. Most comments were left anonymously.

83% 17%

DO YOU LIKE WEARING A JUDICIAL ROBE?

Yes:

Votes: 1,288

No:

Month: March

“I like the way it moves like Dracula’s cape as I walk quickly down corridors.” DO YOU CONSIDER YOURSELF ADEQUATELY PREPARED TO HANDLE ISSUES RELATED TO THE OPIOID CRISIS THAT COME INTO YOUR COURT? Yes:

41%

Votes: 411 Month: May

No:

59%

“If anyone says (s)he is adequately prepared to handle these issues, that judge is either blissfully ignorant or unwilling to accept the scope of the problems that exist.”

IN TERMS OF YOUR PROFESSIONAL LIFE, DO YOU FEAR FOR YOUR SAFETY MORE SO THAN IN THE PAST?

Votes: 1,214 Month: April

Yes:

No:

58% 42%

ARE YOU MORALLY OPPOSED TO LEGALIZING RECREATIONAL USE OF MARIJUANA?

38% No: 62% Yes:

Votes: 854 Month: July

“When someone shouts ‘Hey Judge’ in public, I cringe and look for an escape route.”

“When I was a lawyer, I represented a multitude of people charged with committing violent crimes while under the influence of alcohol. As a judge, I have seen the same. I have never seen or represented anyone charged with a violent crime while under the influence of cannabis.”

DO YOU CARRY A GUN? SHOULD JUDGES BE ELECTED OR APPOINTED?

Votes: 1,031 Elected:

“It is a double-edged sword. Obviously we all want the most qualified person, and most times I believe that happens. However, many times elections are a popularity contest, and appointments are a political power contest.”

Month: June

37%

Appointed:

DO YOU THINK THE PUBLIC’S ESTEEM FOR JUDGES HAS RISEN, DECLINED OR STAYED THE SAME OVER THE LAST 10 YEARS?

Votes: 1,431 Month: February

63%

Risen:

“Unfortunately, we are not able to unhear or unsee the things we hear and see in the courtroom. There is no button to turn off the effects of this when you go to bed at night.” Votes: 802 Month: October

No:

Votes: 1,243 Month: September

“The responsibilities and precautions necessary for carrying a gun far outweigh the possibility of the one-ina-million chance someone will shoot you.”

63%

Stayed the same:

29%

“I fear there is a growing perception that the judiciary is just another political institution that is swayed by political considerations rather than the rule of law.”

HAVE YOU SUFFERED SECONDARY TRAUMATIC STRESS FROM BEING A JUDGE?

Yes:

Declined:

26% No: 74% Yes:

45% 55%

WHO IS YOUR FAVORITE U.S. SUPREME COURT JUSTICE?

Ruth Bader Ginsburg: 35% Sonia Sotomayor: 14% Clarence Thomas: 12% Neil Gorsuch: 11% John Roberts: 10% Anthony Kennedy: 8% Samuel Alito: 4% Stephen Breyer: 4% Elena Kagan: 2%

Votes: 551 Month: August

“How could she not be everyone’s favorite?” 5

CASE IN POINT MAGAZINE

TECHNOLOGY COMES TO COURT

THE NATIONAL JUDICIAL COLLEGE

2017â&#x20AC;&#x201C;2018

The Car That Could Kick Your Court to the Curb Autonomous vehicles will likely eliminate the need for traffic courts and put the brakes on lawsuits between motorists. Will there still be work for judges? BY ROBERT W. PETERSON

O brave new world, that has such vehicles in ’t! (With apologies to Shakespeare) —The Tempest, Act V, Scene I

declining for 50 years, the death rate is now increasing due to cheap gas, texting and fuller employment (more commuting by car). The current death rate equates to five Boeing 737 jets crashing every week. he first truly autonomous vehiThat’s more than died worldwide in the cles have yet to appear in showrecent Ebola epidemic. rooms, let alone courtrooms, but We tolerate this carnage because cars the concept of autonomous travel is not bring great utility and freedom. But as new as one might assume. self-driving vehicles will deliver even Keep in mind that horses were auton- greater utility by freeing driving time for omous—they could find their way home other things—be it texting, working or with little or no help from their “drivers.” just relaxing. Self-driving cars will also Indeed the Gospels report that on Palm deliver huge benefits to the disabled and Sunday, Jesus rode into Jerusalem on an those lucky enough to live long enough autonomous vehicle—a donkey. that they lose their licenses because of Not only could horses find their way impaired eyesight or reactions. At the home, but they could use an overhanging same time, self-driving cars will remove branch to rid themselves of their driver. much of the human error that contributes They bit and kicked. The Centers for to the vast majority of highway injuries Disease Control and Prevention estimates and deaths. that horses are more dangerous, per hour Self-driving cars deliver a number of of riding, than motorcycles. broader social utilities. These range from So autonomous travel is not so new. far more efficient use of our present land Autonomous travel in cars is just better. and infrastructure to more overall producAs motor vehicles began to replace tive lives. How much time do we waste horses, their numbers grew rapidly—from looking for a parking space? How much 200,000 in 1909 to 2.25 million in 1916. valuable land is devoted to parking? So did the death rate. In the United States Let’s look at a few other facts. alone, vehicles kill between 35,000 and Young people today are far less enam40,000 people annually. After steadily ored with driving than in the recent past. If they get driver’s licenses at all, many do so much later and drive fewer miles. Robert Peterson is an emeritus professor of Rather than driving to see friends, they law with the University of Santa Clara may opt to text or call. Smart phones may School of Law and past director of the law replace cars as the future’s status symbol, school’s Center for Insurance Law and if they haven’t already. Regulation. Car ownership is a major expense.

ILLUSTRATION BY MARK OLIVER; USED UNDER LICENSE

Fleets of on-call autonomous vehicles could save consumers not only the cost of a depreciating asset that spends 95 percent of its time idle but the other major cost of a car: insurance. When people are polled about self-driving cars, higher safety and lower insurance are the two most persuasive factors motivating those who would purchase them. Indeed, in many respects, self-driving cars are already here. Some of the most recent safety improvements will actually drive the car under some circumstances. Adaptive cruise control, lane keeping, automatic braking, traffic jam and parking assist—these are just the most recent developments in a clear trajectory toward self-driving and driverless cars. At present, however, all still require the driver to continuously monitor and take control in an emergency. WHEN AN ACCIDENT OCCURS

Of course, self-driving cars will not create utopia. There will still be some accidents, although far fewer. When accidents do occur, there will be legal, regulatory and public relations challenges for this new technology. Let’s look at an example. May 7, 2016, was a day like most days in the United States, meaning that about 100 people died in traffic accidents. At least two fatal accidents occurred in Florida on that particular day. A large semitruck failed to yield the right-of-way when it made an unprotected left turn across a divided highway in front of an

CASE IN POINT MAGAZINE

THE NATIONAL JUDICIAL COLLEGE

oncoming car, killing the car’s driver. In the other accident, a car flipped over, killing four people and injuring three. In Chicago one person was killed and six were injured when a driver ran a red light. In Pennsylvania three people were killed by a wrong-way driver. Question: Have you read or heard about any of these accidents? I will wager that you have heard or read about only one—the first. Why? Because the truck turned in front of a Tesla driven in semiautonomous “Autopilot” mode. The accident was covered by countless outlets, from the The New York Times to the Santa Cruz Sentinel (a newspaper about as far from Florida as one may get). Such is our fascination with— or fear of—“robot” cars. The accident

Human error causes or contributes to about 94 percent of the 40,000 or so fatal automobile accidents in the United States each year.

2017–2018

also generated a 500-page report from the National Transportation Safety Board. JUDGES NEED NOT PANIC

When a crash occurs, lawsuits will follow, but judges need not panic. There is a mature body of products liability law that will govern these suits, just as today they govern suits arising from ladders to lawn mowers. In addition, there will be regulations at state and federal levels setting standards for performance. Moreover, unlike many products liability cases, during which expensive experts debate exactly what standard of performance is appropriate for the product, each state’s motor vehicle code clearly sets the standard of performance for the vast majority of situations. And regulators will require that self-driving vehicles obey all traffic laws. Simply put, a self-driving vehicle that runs a red light is a defective vehicle. These vehicles also will make resolving factual disputes much more straightforward. States are beginning to require that vehicles include data recorders that preserve the data from a period of time immediately preceding an accident (perhaps 30 seconds). So swearing contests among drivers, witnesses and accident-reconstruction experts will diminish in importance. Although evaluating bodily injury may remain as difficult as ever, disputes surrounding the accident may largely disappear. SHIFTING LIABILITY

Human error causes or contributes to about 94 percent of the 40,000 or so fatal automobile accidents in the United States each year, according to the National Highway Traffic Safety Administration. In addition to deaths, vehicle accidents send about 2.5 million people to emergency rooms per year. Hence, states require mandatory automobile insurance to help compensate those injured by our poor driving. Only about 2 percent of accidents are what one might think of as products liability cases: exploding Pintos, faulty

ignition keys, delaminating tires, malfunctioning airbags, etc. Despite the press they command, these defects barely show up on the chart when compared to the hundreds of thousands of people killed by human error over the same decades. When autonomous vehicles are common, the balance of responsibility will shift dramatically. If a driverless vehicle causes an injury, it will no longer be the responsibility of the person in the vehicle (assuming there even is a person in the vehicle). The liability will flow up to the original equipment manufacturer (OEM) and perhaps further upstream to those who supplied the faulty hardware or software to the OEM. Witness the travails of automatic safety equipment maker Takata and its recall of millions of faulty airbags starting in 2013. The OEMs currently share a small slice of a large liability pie. In a future dominated by autonomous vehicles, they would likely constitute a much larger slice but of a pie that is smaller because vehicles are much safer. This shift will have some interesting consequences. Although all states except New Hampshire have some form of automobile insurance requirement, over time the minimum liability coverages have become woefully inadequate for serious injuries. California is among the worst offenders, having adopted a single injury minimum of $15,000 in 1967. It has not been raised in the intervening 50 years! While one might have purchased a small home for $15,000 in 1967, today the same amount has the buying power of approximately $2,000. In addition, despite mandatory auto insurance, there are approximately 30 million uninsured vehicles on the roads in the United States. Expect the frequency and severity of bodily injury claims to decrease with the advent of driverless vehicles. Nevertheless, when there is an accident, the assets and insurance of the OEM will be available for compensation. Cases that

would otherwise be abandoned or forced to settle for less than the injuries deserve under our current system might go to trial more frequently. Whether these fewer claims will result in a higher percentage of them going to trial remains to be seen. Although bodily injury claims are likely to decrease, property damage claims— when they occur—may be more expensive. Driverless vehicles include a number of expensive sensors and technology in vulnerable locations. A minor fender bender may escalate property damage well beyond current levels. The Insurance Institute for Highway Safety attempts to track this. The institute reports that repairing the standard halogen headlight on a Cadillac ATS is $867. On a Volvo S60 it is $932. Repairing an adaptive headlight (like on the 1948 Tucker—nothing new) on either jumps to $2,332—an increase of almost three times. And this is just a headlight! CYBER RISK

Vehicles can already be hacked through any number of surfaces: onboard diagnostic systems, radio, antilock brakes, keyless entry, tire-pressure-monitoring system, engine control unit, airbag control unit, HVAC, transmission control unit. As manufacturers collect data from autonomous vehicles, they will also continually improve their performance with over-theair downloads. In addition to updates and downloads from OEMs, future vehicles will begin to communicate with each other, vehicle to vehicle (V2V). For example, vehicles well ahead of you could warn you of sudden braking. Both downloads and V2V communication present cyber challenges. Communications must be validated to avoid hacking or the insertion of malicious code. Government regulators, manufacturers and many others are diligently working on hardening self-driving cars from cyberintrusion. Likewise, because gathering information about driving will pose privacy issues, much of the information will likely

CONSIDER THESE SCENARIOS When vehicles can drive themselves, liability for accidents will shift from humans, who are frequently distracted, intoxicated or otherwise slow to react, to the manufacturers and sellers of the cars and their components. That’s because the machines will be expected to operate accident-free. Anything less would suggest a defective product. That new orientation of blame will change not only who compensates the victims of accidents but how much they could potentially receive. Consider these scenarios: • A parent drives the family car into a tree, injuring both parent and child. There is likely no insured claim. As the party at fault, the parent has no claim. The child has no insured claim against the parent because typical auto liability policies exclude coverage for family members residing in the home. Given these facts, there is likely to be no lawsuit. • The car drives the parent and child into a tree. Now there is a products liability claim against the original equipment manufacturer, and the OEM’s insurance and assets are available to more fully compensate both parties. • A trucker, in the course of employment, drives a truck into a tree. Workers’ compensation is the only remedy, and this is usually compensated at a lower rate than a tort claim. It also moves through an administrative process rather than a court trial.

be anonymized. If information is anonymized, resolving responsibility when a V2V failure causes an accident may present some challenging problems. GOING WHERE NO HUMAN HAS GONE

Although state vehicle codes set basic standards for driverless vehicle behavior, courts and regulators may face more

• The truck drives the trucker into a tree. The trucker has a fully compensable tort claim against the OEM, and the courts will be the forum. • An accident results in serious injury or death, but only $15,000 in car insurance or assets are available. This claim is likely to settle for only $15,000. If the victim is fortunate enough to have carried uninsured or underinsured coverage, there may be a first-party claim (usually subject to arbitration) against the victim’s own insurer. If an autonomous vehicle is involved and this is a products liability claim, the OEM’s insurance and assets are available to pay the claim in full.

sophisticated issues. Products liability law is dynamic. It does not tether product safety to human standards of safety. If, for example, a human driver runs a red light and collides with a vehicle with the right-of-way, there is likely no responsibility on the part of the vehicle with the right-of-way. Assume, however, that technology advances to the point

CASE IN POINT MAGAZINE

THE NATIONAL JUDICIAL COLLEGE

2017–2018

HOW THE LAW ADAPTED TO EARLIER TRANSPORT ADVANCES STEAMBOATS Fast travel over water came at a price; steamboats’ high-pressure boilers were prone to explode. It was only after 14 boiler accidents killed 469 people in 1838 that Congress acted to regulate the industry. Safety didn’t improve much until 14 years later, when lawmakers established standards for boiler construction, and inspectors were required to swear to their safety under oath in court. A defective boiler caused the steamboat New Jersey to catch fire on the night of March 15, 1856. More than 50 people died.

RAILROADS The first railroads began operating in 1830. Within a decade there had been fatal collisions and derailments followed by myriad injuries. In personal injury lawsuits brought by passengers, the onus was on the railroads to prove that they were not negligent. But rail workers injured on the job almost never succeeded in suing for damages. One of the railroads’ most effective defenses: that employees had voluntarily exposed themselves to a known risk of harm. The deaths and injuries suffered by children attracted to railyard turntables or other perceived playthings helped spawn the “attractive nuisance” rule in 1874.

where the vehicle with the right-of-way is a driverless vehicle and its technology could (unlike a human driver) calculate that the oncoming vehicle will run the red light. At what point in the development of the technology will it be reasonable to conclude that a driverless vehicle is defective if it does not include this (or other) extra-human abilities? These will be interesting cases for future judges.

AUTOMOBILES Mass production of automobiles began in the early 1900s. By 1929, car crashes were linked to approximately 30,000 deaths annually. That’s about the same number as today— but with half the population and one-tenth the registered vehicles! In the early years of motoring, different states adopted widely differing rules, including speed limits (8 mph in Alabama in 1903; 25 mph in rural areas of the upper Midwest in 1906). The first national standards for motor vehicle design weren’t established until 1966, with passage of the National Traffic and Motor Vehicle Safety Act. AIRPLANES Courts and government had little regard for the safety of the first airplane passengers. People were assumed to know they were risking life and limb. The greater concern was with aircraft falling out of the sky and damaging persons and property on the ground. A liability precedent had been set 80 years before the Wright brothers’ first flight, when a hot-air balloonist was found liable for damages after he crash-landed in the plaintiff’s yard. In 1926 the federal government established rules for registering and rating aircraft. Three decades later, the collision of two passenger aircraft over the Grand Canyon contributed to the creation of the Federal Aviation Administration. Adapted from “A Look at the Legal Environment for Driverless Vehicles” by Dorothy J. Glancy, Robert W. Peterson and Kyle F. Graham, National Cooperative Highway Research Program Legal Research Digest 69, February 2016

EMPTY COURTROOMS?

As self-driving cars become popular, traffic judges may find their courtrooms increasingly quiet. Likewise, municipalities that bank on traffic and parking fines to fund themselves may face leaner times. These vehicles simply will seldom, if ever, violate the vehicle code, and that includes overstaying their parking. Municipalities like Chicago, which reportedly receives

more than $600 million annually from its red-light-running camera program, will need to find some other resource to mine. Certainly changes are coming for judges presiding over cases related to self-driving and driverless vehicles. But don’t panic; most changes will be manageable and will likely be for the better—unless you are a traffic court judge and your courtroom falls silent.

CASE IN POINT MAGAZINE

THE NATIONAL JUDICIAL COLLEGE

2017–2018

TECHNOLOGY COMES TO COURT

A Better Ear for Evidence New technology can help identify who’s speaking in audio evidence, but so far courts aren’t listening.

BY DOROTHY J. GLANCY AND JAMES L. WAYMAN

Dorothy J. Glancy is a professor of law at the Santa Clara University School of Law. James L. Wayman is a biometric research administrator at San Jose State University.

BORN DURING WAR During World War II, the Bell Telephone Laboratory conducted classified research into speech recognition to help the Allies identify enemies speaking on radio transmissions. The Bell Labs method produced “voiceprints” that mapped the intensity and duration of the various frequencies composing the speech sounds. Human technicians could then compare these graphic representations against each other like fingerprints. By the 1960s, researchers had begun working on automating the comparisons of voiceprints using digital computers. In 1969, scientists introduced a new approach. Instead of analyzing the intensity and duration of frequencies, they began measuring the spacing between frequencies, a product of people’s individual vocal tracts. This method, akin to a dynamic vocal fingerprint, remains the fundamental approach used today. Many financial institutions now offer telephone access to banking services through automated systems that recognize both who is speaking and what is said. You can check your balance, transfer funds and pay bills over the telephone using these systems, which recognize who you are by how you speak. Voice-controlled TV remotes can be trained to determine which family member is asking for which television

program—both to personalize viewing choices and prevent access to adult programing by children. Increasingly popular personalized “home assistants,” such as Google Home, not only recognize that the device has been told to order pizza or to turn on a light but which person in the household spoke the command. EAR-WITNESSES Connecting a person with a crime sometimes requires recognizing a person by their voice. “Ear-witnesses” at a crime scene are often asked to recall the voice of a perpetrator. The most famous case involved the testimony of Charles Lindbergh in the 1935 trial of Bruno Richard Hauptmann for the kidnapping and murder of Lindbergh’s son. Lindbergh declared that he recognized Hauptmann by his voice as the person he had heard speaking three years earlier while sitting in a car many yards away. Recognizing people by how they speak became common in criminal prosecutions after the 1973 U.S. Supreme Court decision in United States v. Dionisio, an early grand jury use of wiretap evidence. The court ruled that forcing Dionisio to provide a voice exemplar—reading the same words recorded during a wiretap— did not violate his constitutional rights against compelled self-incrimination or unreasonable searches and seizures. The court held that requiring voice exemplars

ILLUSTRATION BY ANDREI RADU

y 2025, the average home is expected to have at least 500 smart devices, most of them capable of recognizing both what is said and who said it. Roughly 10 million of these devices will be sold in 2017, according to industry estimates. One of the devices, the Amazon Echo, a digital assistant that responds to (and records) voice commands, became part of an Arkansas murder trial earlier this year when prosecutors asked to hear anything it might have recorded the night of the murder. Analysis of the recording didn’t turn up anything conclusive. One might expect law enforcement and the courts to be eager to employ a technology capable of identifying who is speaking on a recording involving threats, murder, blackmail, extortion and many other crimes. Or with disputed oral agreements in business. But that hasn’t been the case. Human memories of voices—often shown to be unreliable—continue to be given preferential consideration over machines that can identify people by their voices. The reasons are complex—and in our view, regrettable.

does not constitute self-incrimination because speech samples are just the “compelled display of identifiable physical characteristics” rather than testimony about the content of what was said. Wrote Justice Potter Stewart: “No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.” Since Dionisio, accused persons have been regularly required to provide examples of speech for comparison by witnesses or by juries. Voice exemplars led to modern voice lineups (the film The Usual Suspects imagines one). At a voice lineup, ear-witnesses are played recordings of people speaking; the samples might or might not include the voice of the accused perpetrator. Increasingly, incarcerated persons provide voice samples (perhaps unknowingly) when using prison or jail telephones. Not only do jailhouse phones typically record all calls, they are often accessed through a system that identifies each phone user by voice. Some court cases involving ear-witness recognition are quite dramatic. Twenty years after a crime involving sexual assault and child

abduction, a victim remembered what one of the masked perpetrators sounded like. When an investigator played a recording of a man talking over a telephone with his wife two decades after the crime, the victim began crying and identified the voice as that of the perpetrator. Over defense objections, the identification was admitted at the trial, Aviles-Barroso v. Texas (2015), and a guilty verdict was returned.

As amply documented in the scientific literature since the Lindbergh case, ear-witness testimony suffers from problems of bias, suggestion and mistaken memory, similar to problems that have cast doubt on some eyewitness testimony. Nonetheless, ear-witness testimony and voice lineups continue to be used widely by law enforcement and are accepted practices for identification testimony in courts. TECHNOLOGY GOES TO COURT The legal community has been slow in accepting voice-identification technologies, technically called “automated speaker recognition.” Early law enforcement experimentation with voiceprints that were primitive by today’s standards reached the courts in the 1970s, but the technology was not uniformly accepted as sufficiently scientific. At present, FBI speaker-recognition experts use automated techniques only to develop leads, not for testimony in court connecting persons to voices. When the Federal Rules of Evidence were drafted in the mid-1970s, the Advisory Committee Notes regarding identification testimony under Rule 901 stated: “voice identification is not

CASE IN POINT MAGAZINE

THE NATIONAL JUDICIAL COLLEGE

2017–2018

Police capture every word, even out in the countryside. If everything you say remains attached to your permanent identity, you may become wary of saying anything at all. The Privacy Act of 1974, which sought to establish rules for the fair collection, maintenance and dissemination of information about individuals, lists voiceprints, along with fingerprints and photographs, a subject of expert testimony.” As a result, packages. The court ultimately decided most courts still admit speaker-recogninot to admit any of the expert testimony. as “identifying particulars” that could tion evidence from several types of lay The court did allow testimony by relatives constitute a personal information “record.” witnesses, under Federal Rule of Evidence and friends of both Martin and Zimmer- The need to be careful about using this 701 (or the state law equivalent), but they man regarding the source of the recorded biometric triad has been echoed in countless privacy statutes in the decades that never consider admitting expert testimo- screaming. Zimmerman was ultimately have followed. ny under Federal Rule of Evidence 702 acquitted on self-defense grounds. Although Congress has not yet enacted (or the state law equivalent) based on legislation restricting biometrics beyond automated speaker identification. WORRIES the provisions in the Privacy Act, state legEven after the 1993 U.S. Supreme Courts raised legitimate concerns about Court’s decision in Daubert v. Merearly voiceprint-type technology being in- islatures have. These statutes do not apply rill-Dow acknowledged the scientific sufficiently scientific. More recently, bio- to law enforcement but to private-sector value of testimony (incidentally, based on metric evidence in general has been called biometric- data collectors. The most influential and controversial the outmoded WWII-era voiceprints), into question because of studies showing statute is one adopted in 2008 by Illinois. courts continued to ignore scientific that some forms, including fingerprints, speaker-recognition evidence. Indeed to are not “error-free” after all. Advocates of It has formed the basis for class actions against both Alphabet Inc. (Google’s this day, federal and state courts in the automated speaker recognition concede United States rarely allow juries to use that the technology does not always pro- parent) and Facebook. In a 2017 case, technology to help them determine if the vide a single definitive answer about who Ramirez v. Google, a federal judge ruled that, under the act, Google Photos needed person on trial is the same one recorded is speaking, but it can definitely narrow consent both to collect a digital photo and saying something incriminating. the field of possibilities. use facial-recognition software to assoIn what is commonly known as the Several aspects of automated speaker ciate it with a specific person. Biometric Trayvon Martin trial (Florida v. Zimmer- recognition raise legal concerns beyond identifiers protected under the act include man, 2013), the court had to identify the general admissibility issues. not just pictures but retina or iris scans, source of recorded screaming. In the case, First, automated speaker recognifingerprints, scans of a hand or face geomeZimmerman, a 28-year-old man who was tion can identify speakers imperceptibly try, and, yes, voice recordings. the neighborhood watch coordinator for (without a speaker’s knowledge, much his gated community, got into a scuffle less consent). Second, it uses artificial with Martin, a17-year-old African-Amer- intelligence technologies in ways that are SUMMATION Speaker-recognition technology has proican high school student who was visiting difficult for the algorithm developers to gressed dramatically from the spy voicerelatives in the community. Zimmerman explain or even fully understand themshot and killed Martin. selves. It is problematic if ordinary people prints of WWII. European courts have The crucial question: If the screams cannot be sufficiently informed to provide begun using the technology in criminal cases, but U.S. courts have been slow to heard on a 911 recording of the altervalid consent to biometric analysis of catch up. Given the advances in biometric cation came from the victim, Martin, their manner of speaking. The validity science, it is long past time to give speakthat would support a first-degree murder of a parent’s consent to collection and charge; if they came from the defendant, biometric identification of a child’s speech er-recognition technology another listen. If that happens, the day is likely Zimmerman, that would support a claim patterns is even more questionable. coming when judges and juries faced with of self-defense. Third, if widely applied, automataudio evidence will turn to technology for Several types of expert testimony were ed speaker recognition could lead to proffered by the prosecution, including ubiquitous surveillance that makes people a better and fairer answer to the question of “Who said that?” experts who were trained listeners and reluctant to speak. In George Orwell’s experts who used automated software Nineteen Eighty-Four, the Thought

In the Trayvon Martin trial, the court had to identify the source of recorded screaming.

PRISONS: IN JAIL, BUT NOT SENTENCED, BY LUBA LUKOVA; USED UNDER LICENSE

You’ll Get Out When the Software Says You Should Algorithms seem like the ideal way to take bias out of bail and sentencing decisions. Here’s why they don’t always work. BY SAM CORBETT-DAVIES, EMMA PIERSON, AVI FELLER AND SHARAD GOEL

CASE IN POINT MAGAZINE

THE NATIONAL JUDICIAL COLLEGE

2017–2018

TECHNOLOGY COMES TO COURT

his past summer, a heated debate broke out about a tool used in courts across the country to help make bail and sentencing decisions. It’s a controversy that touches on some of the big criminal justice questions facing our society. And it all turns on an algorithm. The algorithm, called COMPAS (Correctional Offender Management Profiling for Alternative Sanctions), is used nationwide to decide whether defendants awaiting trial are too dangerous to be released on bail. In May 2016, the investigative news organization ProPublica claimed that COMPAS is biased against black defendants. Northpointe, the Michigan-based company that created the tool, released its own report questioning ProPublica’s analysis. ProPublica rebutted the rebuttal, academic researchers entered the fray, The Washington Post’s Wonkblog

weighed in, and even the Wisconsin Supreme Court cited the controversy in its ruling that upheld the use of COMPAS in sentencing (below). It’s easy to get lost in the often technical back-and-forth between ProPublica and Northpointe, but at the heart of their disagreement is a subtle ethical question: What does it mean for an algorithm to be fair? Surprisingly, there is a mathematical limit to how fair any algorithm—or human decision maker—can ever be. How do you define ‘fair’? The COMPAS tool assigns defendants scores from 1 to 10 that indicate how likely they are to reoffend based on more than 100 factors, including age, sex and criminal history. Notably, race is not used. These scores profoundly affect defendants’ lives: Defendants who are defined as me-

dium or high risk, with scores of 5-10, are more likely to be detained while awaiting trial than are low-risk defendants, with scores of 1-4. We reanalyzed data collected by ProPublica on about 5,000 defendants assigned COMPAS scores in Broward County, Florida. (See the end of this article for more technical details on our analysis.) For these cases, we find that scores are highly predictive of reoffending. Defendants assigned the highest risk score reoffended at almost four times the rate as those assigned the lowest score (81 percent vs. 22 percent). But are the scores fair? Northpointe contends they are indeed fair because scores mean essentially the same thing regardless of the defendant’s race. For example, among defendants

AN ALGORITHM WINS IN WISCONSIN In 2013, when a La Crosse County Circuit Court judge sentenced a man to six years in prison for driving a car used in a drive-by shooting, the length of the sentence came partially on the advice of an algorithm. Eric L. Loomis’ record as a repeat offender (third-degree sexual assault) led a computer program called Correctional Offender Management Profiling for Alternative Sanctions, or COMPAS, to score him as a high risk for reoffending. That contributed to the longer-than-usual sentence. Loomis appealed on the grounds that he had been denied the right to an individualized sentence. His lawyers pointed out that the court had no knowledge of the logic behind the COMPAS algorithm because the program’s inner workings were a trade secret.

The Wisconsin Supreme Court ultimately sided with the state. Writing for the majority, NJC alumna Justice Ann Walsh Bradley noted that COMPAS provides only aggregate data on recidivism risk for groups similar to the offender. She said it is permissible to use a tool like an algorithm to assess risk of recidivism as long as the actual sentence is determined separately. Loomis appealed to the U.S. Supreme Court but was denied certiorari on June 26, 2017. Justice Ann Walsh Bradley

You can’t be fair in both ways at the same time Here’s the problem: It’s actually impossible for a risk score to satisfy both fairness criteria at the same time. The second figure to the right shows the number of black and white defendants in each of two aggregate risk categories—“low” and “medium or high”—along with the number of defendants within each category who went on to commit another crime. The plot illustrates four points: • Within each risk category, the proportion of defendants who reoffend is approximately the same regardless of race; this is Northpointe’s definition of fairness. • The overall recidivism rate for black defendants is higher than for white defendants (52 percent vs. 39 percent). • Black defendants are more likely to be classified as medium or high

Recidivism rates by risk score Recidivism rates by risk score

Chanceofofrecidivism recidivism Chance

100% 100% 75% 75%

Black Black White White

50% 50%

25% 25%

0% 0% 1 1

2 2

3 3

4 4

5 score 6 Risk Risk score

7 7

8 8

9 9

10 10

Recidivism rate by risk score and race. White and black defendants with the same risk score are roughly Recidivism by risk score White and defendants withintervals. the same risk score are roughly equally likelyrate to reoffend. The and palerrace. bands show 95black percent confidence equally likely to reoffend. The paler bands show 95 percent confidence intervals.

Black Black

2,000 2,000

Numberofofdefendands defendands Number

who scored a 7 on the COMPAS scale, 60 percent of white defendants reoffended, which is nearly identical to the 61 percent of black defendants who reoffended. Consequently, Northpointe argues, when judges see a defendant’s risk score, they need not consider the defendant’s race when interpreting it. The plot (right, top) shows this approximate equality between white and black defendants holds for every one of Northpointe’s 10 risk levels. But ProPublica points out that among defendants who ultimately did not reoffend, blacks were nearly twice as likely as whites to be classified as medium or high risk (45 percent vs. 23 percent). Even though these defendants did not go on to commit a crime, they are nonetheless subjected to harsher treatment by the courts. ProPublica argues that a fair algorithm cannot make these serious errors more frequently for one race group than for another.

White White

1,500 1,500 Reoffended Reoffended Did not reoffend Did not reoffend

1,000 1,000 500 500 0 0

Low Low

Medium/High Medium/High

Low Low

Medium/High Medium/High

Risk category Risk category Distribution of defendants across risk categories by race. Black defendants reoffended at a higher rate than whites,

Distribution of defendants across riskofcategories by race.are Black defendants reoffended at aAs higher rateblacks than whites, and accordingly, a higher proportion black defendants deemed medium or high risk. a result, who andnot accordingly, a higher proportion black defendants medium As a result, blacks who do reoffend are also more likely toofbe classified higherare riskdeemed than whites whoordohigh not risk. reoffend. do not reoffend are also more likely to be classified higher risk than whites who do not reoffend.

risk (58 percent vs. 33 percent). While Northpointe’s algorithm does not use race directly, many attributes that predict reoffending nonetheless vary by race. For example, black defendants are more likely to have prior arrests, and since prior arrests predict reoffending, the algorithm flags more black defendants as high risk even though it does not use race in the classification. • Black defendants who don’t reoffend are predicted to be riskier than white defendants who don’t reoffend; this is ProPublica’s criticism of the algorithm.

The key—but often overlooked— point is that the last two disparities in the list above are mathematically guaranteed given the first two observations. If the recidivism rate for white and black defendants is the same within each risk category, and if black defendants have a higher overall recidivism rate, then a greater share of black defendants will be classified as high risk. And if a greater share of black defendants are classified as high risk, then, as the plot illustrates, a greater share of black defendants who do not reoffend will also be classified as high risk.

CASE IN POINT MAGAZINE

THE NATIONAL JUDICIAL COLLEGE

2017–2018

Here’s the problem: It’s actually impossible for a risk score to satisfy both fairness criteria at the same time.

If Northpointe’s definition of fairness holds, and if the recidivism rate for black defendants is higher than for whites, the imbalance ProPublica highlighted will always occur. (Jon Kleinberg, Sendhil Mullainathan and Manish Raghavan explore this idea further in their paper “Inherent Trade-Offs in the Fair Determination of Risk Scores,” Proceedings of Innovations in Theoretical Computer Science, 2017). What should we do? It’s hard to call a rule equitable if it does not meet Northpointe’s notion of fairness. A risk score of 7 for black defendants should mean the same thing as a score of 7 for white defendants. Imagine if that were not so, and we systematically assigned whites higher risk scores than equally risky black defendants with the goal of mitigating ProPublica’s criticism. We would consider that a violation of the fundamental tenet of equal treatment. But we should not disregard ProPublica’s findings as an unfortunate but inevitable outcome. To the contrary, since classification errors here disproportionately affect black defendants, we have an obligation to explore alternative policies. For example, rather than using risk scores to determine which defendants must pay money bail, jurisdictions might consider ending bail requirements altogether—shifting to, say, electronic monitoring so that no one is unnecessarily jailed.

to which it may be unfair, however inadvertently. That’s understandable: Northpointe needs to protect its bottom line. But it raises questions about relying on for-profit companies to develop risk assessment tools. Moreover, rearrest, which the COMPAS algorithm is designed to predict, may be a biased measure of public safety. Because of heavier policing in predominantly black neighborhoods, or bias in the decision to make an arrest, blacks may be arrested more often than whites who commit the same offense.

Sam Corbett-Davies and Emma Pierson are doctoral students in the computer science department at Stanford University. Avi Feller is an assistant professor in the Goldman School of Public Policy at the University of California at Berkeley. Sharad Goel is an assistant professor in the department of management science and engineering at Stanford University. This piece was originally published in The Washington Post’s online forum Monkey Cage, which is edited by a team of political science and government professors.

COMPAS may still be biased, but we can’t tell Northpointe has refused to disclose the details of its proprietary algorithm, making it impossible to fully assess the extent

Note on methods: ProPublica obtained records for nearly 12,000 defendants in Broward County, Florida, who were assigned a COMPAS score in 2013-2014. ProPublica then determined which defendants were charged with new crimes in the subsequent two years and made this data set publicly available. We focused on the 5,278 cases involving defendants who are either white or black and for whom a full two years of recidivism information is available. We excluded Hispanic defendants from our analysis because there are not many in this data set. The COMPAS tool also rates defendants on about two dozen other dimensions of risk, including likelihood to commit a violent crime, but here we consider only the overall recidivism score.

BANG.

THE HUSBAND IN A DIVORCE CASE THAT I DECIDED SHOT ME. THIS IS WHAT I LEARNED.

BY HON. CHUCK WELLER

M Y PERSONAL EXPERIENCE of courthouse violence happened during the adjudication of a divorce case in 2006. The wife was young and beautiful, a talented singer. The husband was a wealthy pawn shop owner. They shared a 9-year-old daughter. Each had excellent legal representation. At some point, he gave up on the idea of terminating the marriage by divorce.

CASE IN POINT MAGAZINE

THE NATIONAL JUDICIAL COLLEGE

PERPETRATORS My attacker did not have the characteristics one might expect to find in a person capable of extreme violence. He was a successful businessman in his mid-40s with a claimed income of $40,000 per month. Perpetrators of

AP IMAGES; USED UNDER LICENSE

On a June morning he stabbed the mother of his child to death during a custody exchange. Shortly thereafter he drove to an upper level of a parking garage 200 yards from my courthouse and shot me, sniper style, with a .243-caliber rifle as I stood in chambers. After three months, I returned to the bench. During the next several years, as a student in the NJC’s Judicial Studies Program, I investigated the phenomenon of court-related violence. Now, several times a year I share my experience and information about courthouse violence with groups of judges or law enforcement officers. I try to leave my audiences with two messages: It can happen to any judge, and violent attacks are both predictable and preventable. *** Between 1970 and 2011 there were 223 court-targeted shootings, bombings and arson attacks in this country. Over the last 20 years the incidence of court-related shootings and bombings has doubled. At the beginning of this decade, such events were occurring an average of once per month. That said, the likelihood that any individual judge or litigant will become the victim of a targeted attack is statistically small. The unplanned, spontaneous outbursts of violence that sometimes occur in courtrooms are not usually targeted violence. Targeted violence is a premeditated attack intended to injure a specific individual or individuals. More than half of the perpetrators of targeted violence intend to kill.

2017–2018

targeted courthouse violence don’t fit any demographic profile. They are mostly men but of all ages, levels of educational attainment, employment histories, criminal backgrounds and experiences with substance abuse. These attackers do share common motivations: They are angry or fearful about specific litigation. They are convinced that they have been or will be treated unfairly. Such beliefs need not be rational. At his criminal trial, my shooter complained that I had ruled against him in child custody matters. In fact, I had granted him every-other-week joint physical custody instead of the every-other-weekend visitation proposed by his wife. Attackers seek justice and sense injustice as they conceptualize it. Cases involving divorce, alimony, child custody, child support and domestic violence account for more than half of targeted court-related violence. It is not much of a leap to infer that a significant portion of courthouse bloodshed is a variant of domestic violence. Intended victims may be anyone—including a judge—perceived by the perpetrator as interfering with control of a partner. The second most common occasion for courthouse shootings—prisoner escape—

accounts for about one-quarter of the violence. Few judicial attackers suffer from mental illness, although narcissism and sociopathy can play a role. Nothing in the literature indicates that perpetrators of court-targeted violence act under the influence of mental imbalance or irresistible impulse. They have not lost their free will or their ability to control their emotions. They act purposefully. It is uncommon for a courthouse attacker to have accomplices. Most act alone. MECHANISMS I was shot with a rifle. Three-quarters of courthouse attacks involve a firearm, most commonly a handgun. In most cases the weapon is carried into the courthouse by the perpetrator. In about 15 percent of cases, the perpetrator is able to gain control of a firearm belonging to a law enforcement officer. After firearms, the most frequently used mechanism of attack is an explosive. Knives and poisons are also used. LOCATION I was shot through a window while I stood in my chambers. More than 90 percent of attacks on state and local judges occur at a courthouse. The same is not true for federal judges. The last three targeted assassinations of federal judges occurred at their homes. Criminologists observe that the location where a crime will be committed can be displaced by the criminal’s perception of where it is most likely to succeed. Federal courthouse buildings dissuade criminal activity because they are designed to be imposing and impregnable. Many state and local courthouses, on the other hand, present Reno, Nevada, Judge Chuck Weller was standing near the window of his third-story chambers when an assailant shot him with a rifle from a parking garage across the street.

less formidable defenses. It is important to recognize that when court buildings are made more obviously secure the need for protection at the homes of judges is increased. At present, constantly monitored home-intrusion alarms are made available to all federal judges. Few state or local jurisdictions provide any home security for judges. VICTIMS Trial-level judges frequently make consequential decisions alone and are seen by perpetrators as personally responsible for any perceived unfairness. Trial judges often live in the same community as the litigants who come before the court and are, accordingly, available for acts of violence. Other public officials, like appellate judges and legislators, act as members of groups with shared, rather than individual, responsibility for decisions. In addition, they often perform their duties in capital cities away from those who might be offended by their actions. These factors make trial judges more visible and vulnerable than many public figures. Forty years of record keeping show that the person most likely to be killed in courthouse violence is the perpetrator. Law enforcement officers are injured almost as often as perpetrators but are much less likely to be killed. Ex-wives and family members of the perpetrators make up the largest group of unarmed victims of courthouse violence, followed by members of the general public. Judges are not the most frequent victims, but when they are attacked, they are twice as likely to be killed as opposed to wounded. Court staff and judges’ families have also been victims, but with lesser frequency. WARNING SIGNS About a third of all judges receive threats of death or physical violence during their careers. Understandably, a threatened judge will be concerned that the likelihood of a physical attack has increased. Empirical evidence shows otherwise. Several studies indicate that death threats and other threats of physical harm to judges are very unlikely to lead to

1 IN 4 JUDGES CARRIES A GUN Following the August 2017 ambush-style shooting of an Ohio judge—who returned fire along with a probation officer and killed the assailant—the NJC asked its alumni simply, “Do you carry a gun?” More than 1,200 judges responded, and 26 percent

actual violence. Indeed, not one successful public-figure attacker in the history of the media age issued a direct threat first. The most likely reason those who intend to strike do not make direct threats is to enhance the likelihood that their attack will succeed. It must be noted, however, that threats that do not lead to violence often have a corrosive effect on the person threatened and the judicial process. Threats disrupt the normal flow of life and work. Magnetic resonance imaging shows that the receipt of a threat triggers reflexive brain responses that interfere with the ability to perform intended tasks as the brain allocates resources to cope with the apprehension of impending danger. More predictive of an imminent attack than a threat is a symbolic action that occurs in close physical proximity to the intended victim. Slashed tires, an automobile that is broken into, a bullet left in the victim’s car—all are examples of suspicious activity that immediately preceded actual attacks. Stalking behavior is another indicator. Encountering a litigant who doesn’t live in your neighborhood at your local grocery store may be a reason for concern. Similarly, inappropriate inquiry by a litigant into your routines and activities may be a warning sign. Those who plan to attack often share their intention with a family member, co-worker, or mental health professional.

answered in the affirmative. In comments included with poll responses, several judges cited the attack as a catalyst to consider carrying. Others mentioned meager courthouse security and credible threats made against them.

The literature refers to this phenomenon as “leakage.” Telling another of an intent to attack is a serious indicator of potential violence. Another recognized precursor of attack is discussion of assassination. In my case, no threat preceded the violence, but there were pre-incident indicators. I was suddenly being anonymously criticized on the website of an organization that usually argued that family courts are unfair to men. I contacted a member I knew. He named the person responsible for the internet attacks. It was the fellow who eventually shot me. A week before the shooting an ad was placed in a local newspaper falsely announcing that a motorcycle auction would be held at my home early on a Saturday morning. This ad showed that someone had an unusual fixation on me. It is good example of the display of atypical attention that often precedes violence. During the nights immediately preceding the murder and my shooting, my dogs were barking uncharacteristically in my backyard. I suspect my attacker was present. PREVENTION In order to avoid a targeted attack it is critical to report all inappropriate communications, contacts and occurrences to law enforcement, even if there is no specific expression of an intent to cause harm. Investigative authorities are best

CASE IN POINT MAGAZINE

THE NATIONAL JUDICIAL COLLEGE

qualified to conduct threat assessments and to distinguish between those who make threats and those who pose threats. A continuum of possible law enforcement responses ranging from taking no action to arrest can be used to determine and eliminate the risk of violence. It may be appropriate to interview the person of concern in an effort to identify any attack-related behaviors. Perpetrators engage in noticeable conduct such as surveillance of places frequented by a possible target, drawing a map, preparing a “to do” list or acquiring a weapon. Final-act behaviors like the execution of a will or the preparation of a recording describing the justifications for an intended attack may also be uncovered. Many judges reading this article do not have adequate law enforcement assistance. As I have spoken on this subject in many forums, I have been told by several judges in this predicament that the U.S. Marshals Service has been helpful in addressing their safety concerns. There are other things you can do to lower the likelihood that you, your family and your staff will ever be the subject of a targeted attack. Perhaps most powerfully, you can attempt to moderate any perception that a litigant may have of injustice and hopelessness. Surveys show that almost half of the general public believes that court procedures are unfair. After stabbing his wife to death and shooting the judge overseeing his divorce, Reno pawn store owner Darren Mack fled to Mexico and evaded police for 11 days. Mack pleaded guilty and is serving a sentence of 32 years to life. He later tried to recant his plea and has appealed his conviction several times without success.

2017–2018

litigants, the availability of instructive materials and forms, or the appointment of counsel. Judicial practices likely to be considered as unjust can be tempered or eliminated by judicial education that includes instruction on how to convincingly display procedural fairness in the courtroom. In written and oral decisions, responsibility for the outcome should be focused on the law, not on the individual judge who rendered the decision. In contentious cases it may be good practice A litigant’s perception of procedural to mention the right of appeal. Appellate injustice can often be lessened by using courts can help by implementing simple, alternatives to traditional, confrontational quick appeal procedures for family law litigation practices. Mediation and other cases, which account for most courthouse nonadversarial dispute-resolution techviolence. niques give litigants a greater opportunity Court-ordered participation in anger to participate, to be heard and to observe management programs may increase the that an authority figure has justly consid- likelihood that a disgruntled litigant will ered their concerns. select a nonviolent means of adapting to Providing assistance to litigants in disappointment. navigating the judicial process can help It is also advisable to limit the unnecconvince them that they are being treated essary spread of information about yourjustly and can achieve their litigation self. Do not make available knowledge of goals. Such assistance might include your location and interests. Restrict access access to a law library, the operation of to your chambers. Do not publically a self-help center for self-represented display information about your family

DO NOT USE THE TITLE “JUDGE” ON CHECKS, CREDIT CARDS, PASSPORTS, ETC. DON’T TELL STRANGERS YOU ARE A JUDGE.

and memberships. Do not have a license plate or park in a parking space that identifies your name or title. Instruct your staff not to mention your travel plans. It is sufficient to inform callers that you are unavailable. Do not use the title “judge” on checks, credit cards, passports, etc. Don’t tell strangers you are a judge. Instead, identify yourself as a lawyer or government employee. Many states have legislation that allows judges to remove identifying information from the public records maintained by recorders, assessors, registrars and DMV. Check your state’s laws and use them. Ask your local law enforcement agency to perform a security assessment of your home. Own and use a security system. Use lighting and cameras to dissuade criminals and to increase the likelihood that they will be identified and apprehended. Identify available safe havens (police stations, firehouses, businesses with security guards or cameras) along the routes you usually travel. If you have reason for concern, consider changing commuting routes and times. STATE VS. FEDERAL COURTS During the first 200 years of the existence of a federal judiciary (1789-1989), four federal judges were killed. The first was murdered in 1867. The remaining three were assassinated during a single decade between 1979 and 1989. This surge of lethal violence attracted significant attention. Federal judges are protected by a dedicated law enforcement agency, the U.S. Marshals Service. During the 1980s, funding to the Marshals Service increased dramatically. All federal courthouses in the United States were transformed into armed fortresses with specially deputized guards, locks, controlled entrances and exits, alarms, panic buttons, and surveillance cameras. There are approximately 2,500 federal judges, most of whom enjoy lifetime tenure. There are about 30,000 state and local judges with limited terms in office.

Most state and local judges are protected by all-purpose local sheriff or police departments. Few state and local judges will ever have the level of protection afforded to their federal counterparts.

$10 million. Fulton County’s insurance, capped at $5 million per incident, was more than exhausted. In addition, the taxpayers of Georgia paid more than $1.8 million for the state-funded defense of the indigent prisoner responsible for the COSTS OF COURTHOUSE VIOLENCE assassinations. Technological and personnel-intensive Courthouse violence also has a court security measures are expensive. The psychological cost. During a divorce average cost of security enhancements for proceeding at the Clayton Courthouse public buildings was more than $25 per near St. Louis, Missouri, a husband went square foot in 2007. Following the shoot- on a shooting rampage. In less than 10 ing deaths of Fulton County (Georgia) minutes, he killed his wife; shot his own Superior Court Judge Rowland Barnes, lawyer and his wife’s lawyer; shot at, but his court reporter, a law enforcement missed, the judge; and wounded three deputy and a federal customs agent by an other people who happened to be in the escaped prisoner in Atlanta, the Fulton vicinity of the courtroom. A longitudinal County Commission approved spending study was conducted of the consequenc$4.5 million for long-sought security es of the violence for courthouse staff, upgrades at the courthouse. Additionallaw enforcement personnel, attorneys ly, the county settled a suit brought by and others who were present during the the families of the killed for more than attack. Two months after the incident, almost three-quarters were suffering a wide range of psychiatric symptoms including anxiety, difficulty concentrating and substance abuse. Some continued to suffer from post-traumatic stress disorder (PTSD) three years later. Social scientists studied the judges in my judicial district following my shooting and found that my colleagues had responses that could interfere with judicial functioning. Almost one-half expressed recognition that their fear of violence might affect their decision making. Courthouse violence causes continuing emotional effects and substance abuse. It can lower memory capacity, interrupt decision making and increase stereotyping in decision makers. As judges we make decisions that change the trajectory of people’s lives. We are empowered to remove from them their possessions, families and freedom. It After surviving his shooting, Reno, Neis small wonder that some of our rulings vada, Family Court Judge Chuck Weller are deeply resented. A tiny subset of unearned a master’s degree and a doctorhappy litigants will resort to violence. The ate through the NJC’s Judicial Studies danger can be mitigated by using what program with the University of Nevada, is known about the nature of targeted, Reno. He is a frequent speaker and writer court-related attacks. about court-related violence and regularly My assailant is serving a term of 32 teaches on the subject at the NJC and the years to life for his crimes. National Council of Juvenile and Family Court Judges.

CASE IN POINT MAGAZINE

THE NATIONAL JUDICIAL COLLEGE

2017â&#x20AC;&#x201C;2018

ILLUSTRATION BY NATHAN SCHREIBER

BEWARE...

THE NATIONAL JUDICIAL COLLEGE

BY HON. PEGGY FULTON HORA (RET.)

In a perfect example of public opinion surging ahead of science, voters or legislators in 29 states plus Guam, Puerto Rico and the District of Columbia have legalized marijuana for medical purposes, and eight states have legalized it for recreational use. According to the Pew Research Center, at the end of 2016, 57 percent of U.S. adults thought marijuana should be legal, even though the Drug Enforcement Administration has kept it a Schedule 1 drug, defined as those “with no currently accepted medical use and a high potential for abuse.” An NJC survey of alumni earlier this year found that 62 percent of judges had no “moral objection” to legalizing recreational use of marijuana. The vocal minority included many judges who said they had served in drug courts. However people may feel about ingesting intoxicating substances, the increasing use of marijuana poses significant issues for the courts, especially in regard to driving. More drugged than drunk More than 1 in 5 nighttime weekend drivers have drugs other than alcohol or other legal drugs in their system, according to the latest National Highway Traffic Safety Administration roadside survey. For alcohol, the rate is less than 1 in 10. In states where marijuana laws have been loosened, the incidence of driving with marijuana in one’s system has grown exponentially. According to a 2016 report by the AAA Foundation for Traffic Safety, fatal crashes involving recent marijuana use doubled in Washington after that state legalized its use in 2012. The data do not show whether the driver was impaired by marijuana use. It turns out to be very tricky to determine marijuana impairment and darn near impossible to set a Peggy Hora is a retired California Superior Court judge and the president of Justice Speakers Institute, LLC. She received the NJC’s 2017 V. Robert Payant Award for Teaching Excellence.

P O T H O L E S Marijuana may be legal in a growing number of states, but judges face wide gaps in knowledge when it comes to deciding whether a driver was under the influence of weed.

2017–2018

“legal limit” like the widely used 0.08 percent blood alcohol content (BAC). An elusive measurement Differences in alcohol and marijuana impairment and the way each drug is metabolized make determinations about impaired driving very difficult. For instance, research by Marilyn Huestis of the National Institute on Drug Abuse shows that THC, the substance in marijuana that causes the “high,” is fat soluble and easily moves from blood to brain. Thus, there can still be THC affecting the brain when the THC is gone from the blood. Even if the blood level shows zero, a new user can still be high. Heavy smokers of marijuana may ingest THC so often that a moderate level of THC shows up in their blood constantly, but they aren’t necessarily high. There’s also an increased likelihood of false negatives because, unlike a roadside breathalyzer, an average of two hours elapses from the time someone is pulled over until blood can be drawn. Moreover, although alcohol has an absolutely predictable burn-off rate of 0.015 percent per hour, marijuana does not. THC drops rapidly, so the amount that will show up in that blood test two hours later may be nowhere near the amount that was present when the person was driving. “Retrograde extrapolation”—the ability to count back in time and determine blood alcohol content at the time of driving—is not possible with THC. One legal issue that is ripe for adjudication is whether suspicion of driving while impaired by marijuana always presents an exigent circumstance or one so urgent that it would not require police to obtain a warrant before subjecting the driver to a blood test (the impaired-driving standard established in Missouri v. McNeely, 2013). The National Institute on Drug Abuse is readying an easy-to-use roadside saliva test that can show recent marijuana use. One study in Florida is complete; one in California is almost concluded. Sixteen states have statutes permitting oral fluid testing, and in some jurisdictions in other countries

ILLUSTRATION BY ITOSERBA

CASE IN POINT MAGAZINE

THE NATIONAL JUDICIAL COLLEGE

(e.g., Victoria, Australia) oral swabs have been in use for years. However, courts will have to hold in limine hearings (those dealing with motions to limit or exclude the introduction of certain evidence at trial) to determine the admissibility of such tests. Attorneys will need training on how to present and how to defend at such hearings, and judges may want to take a webinar on the subject before having to rule. Just to add an extra twist to the subject, a 2013 study published in the journal PLOS ONE found that chronic marijuana users’ performance on driving-related tasks was affected as long as three weeks after drug use was stopped. What’s more, drivers who use marijuana before driving also frequently drink alcohol, and when it comes to that combination, 1 + 1 = 3, not 2. Research published earlier this year in the Annals of Epidemiology found that when alcohol is present with marijuana, drivers are five times more likely than sober drivers to be responsible for causing fatal two-vehicle crashes.

There can still be THC affecting the brain when the THC is gone from the blood.

2017–2018

Terms of probation May a judge prohibit marijuana use by a probationer in a drug case? In any criminal case? May the judge prohibit only recreational use, or may the judge also prohibit “medical” marijuana? Might there be a difference between courts that are abstinence focused, such as drug-treatment courts, and regular criminal courts? “No alcohol” clauses in probation orders have generally been upheld when alcohol was the basis for the criminal offense (e.g., DWI) or when other drugs caused the criminal behavior. Generally, it is recognized that alcohol can affect reasoning, judgment and self-control, which can lead to prohibited criminal behaviors. Even in cases involving other drugs, some courts have recognized that drinking may loosen a person’s inhibitions, allowing them to revert to their first drug of choice, an illicit one. The issue of “medical” marijuana has brought about a conflict in two states’ Supreme Courts. continued on p. 30

THIS IS YOUR BRAIN ON MARIJUANA BY CARL M. DAWSON

RAFAEL CASTILLO

To understand how marijuana’s 483 known compounds affect the brain, one must first understand how the brain works. Brains weigh approximately three pounds and possess an average of 100 billion neurons. Neurons do not fully mature until around age 25, when a fat-like substance known as myelin surrounds them. Myelin is designed to protect and insulate the individual nerve fibers that make up many of the different structures of our brains. This insulating process allows the brain to regulate the speed and normal flow of the electrical-chemical activity that is constantly occurring. All drug compounds that are attracted to high-fat-containing organs, including the brain, will alter the proper structure and function of that organ. Approximately 84 of marijuana’s 483 known compounds do just that. These 84 compounds are typically referred to as cannabinoids, of which only two—delta 8 and delta 9 THC—are known to be psychoactive or intoxicating. Our brains produce their own natural cannabinoids, which have nothing to do with intoxication or feeling “high.”

Researchers have discovered that these compounds help police and assist the brain by eliminating useless and fragmented memory information that may have accumulated over time. Like the defragmenting of a computer’s hard drive, these natural brain cannabinoids create more storage space for useful memory. Two of the 84 cannabinoids found in marijuana are very powerful and highly attracted to receptors found in two important memory centers in our brain: the amygdala and the hippocampus. Both centers are responsible for downloading and storing past and present motivational, emotional, short-term memory information. These centers also exert a direct influence on the important decision-making regions located in the frontal cortex. The presence of either of these marijuana cannabinoids in the brain has been found to significantly impair the brain’s ability to store, retrieve and consolidate memory. That, in turn, directly impairs the vital reasoning and decision-making centers of our brain. Researchers contend that by nonselectively deleting information from our memories, these two compounds cause memory impairment, forgetfulness, poor

focus, confusion and attention-concentration problems. Even a limited presence of either of the compounds has been shown to impair moral and ethical decision-making, problem-solving and intellectual functioning. These same compounds have been shown to limit emotional- and physical-impulse-control capabilities in adolescents as well as muscle coordination and reaction times in emergency situations. Although our society is becoming increasingly permissive with regard to the recreational and medicinal use of marijuana, permissiveness should not imply safety. The strength of this drug has increased over time. According to a study of marijuana seized from all 50 states, average potency (based on the amount of THC, the drug’s principal psychoactive ingredient) rose from 1.37 percent in 1978 to 8.49 percent in 2008. THC is not addictive in the same way as nicotine, but as the study, by the University of Mississippi’s Potency Monitoring Program, suggests, THC concentrations in marijuana can be manipulated in the same way tobacco companies manipulated the nicotine content of cigarettes to boost sales. THC content varies widely across the range of cannabis-based products available for purchase today. Health care and law enforcement professionals are witnessing an increase in marijuana-specific psychiatric concerns, abuse-dependency disorders and legal problems. Marijuana is and will always be a powerful drug with potentially dangerous and unpredictable consequences.

Carl Dawson is a licensed professional counselor who has worked and lectured in the field of substance-related disorders, treatment and recovery for nearly 40 years. He joined the faculty of the NJC in 2016.

CASE IN POINT MAGAZINE

THE NATIONAL JUDICIAL COLLEGE

Colorado’s high court says a judge can prohibit a probationer’s medicinal use of marijuana—even though medical marijuana is legal under Colorado law—because medicinal use is still illegal federally. But California’s Supreme Court says federal law is not the business of a state court judge, so medical use may not be prohibited. It is assumed that a prohibition on recreational marijuana, now legal in both states, would have similar results. Other headaches • Judges may have to modify their voir dire in drugged-driving cases to probe potential jurors’ feelings about drugs other than alcohol adequately. At least one court in Montana has already had to dismiss a case against a defendant charged with simple possession of marijuana because the court could not find 12 jurors willing to consider a guilty verdict. • Courts will have to decide how to regard drug recognition evaluators, specially trained officers who are experts in recognizing drugged driving. Should they be considered expert witnesses? Lay witnesses with “special knowledge”? Regular

2017–2018

lay witnesses? Although there have been many attempts to exclude DREs’ testimony, none have been upheld. • How Standardized Field Sobriety Tests apply to marijuana and other drugs has not been adequately studied. How will a court rule if there is a motion in limine to exclude sobriety tests from the investigating officer’s testimony as irrelevant? New marijuana-specific tests are being developed, but this is a very real issue with which courts must grapple in the meanwhile.

LEARN MORE ABOUT IT: NJC COURSES Properly and Effectively Adjudicating Drugged Drivers Oct. 30 – Dec. 8, 2017, web, tuition-free Drugged Driving Essentials for the Judiciary May 22–24, 2018, Reno

Courtroom Audiovisual Technology ExhibitOne designs, engineers, integrates and supports courtroom AV solutions throughout the country, including the NJC Model Courtroom. What can we do for your court? www.ExhibitOne.com info@ExhibitOne.com 888.572.3265

ExhibitOne

AUDIOVISUAL TECHNOLOGIES

NO DEFENSE NEEDED FOR LEGALIZATION BY ROBERT GROESBECK I am often asked to defend the legalization of marijuana in my home state of Nevada. My defense is wholly irrelevant. The reality is that marijuana use is, in fact, now legal. Nevadans have made it clear on two occasions that they support legalization—in 2000, when medical marijuana was approved, and in 2016, when a ballot initiative to legalize recreational use won by a 54.4 to 45.5 percent margin. Yet many continue to insist that legalization is inherently bad. One of the fallacies most often heard involves the “predicted” increase in impaired drivers. But it is only that, a prediction. Little data exists to support the contention. What we do know is that laws alone do not deter people from making bad decisions. A perfect example is drunk driving. Driving while under the influence of alcohol has long been illegal in every state. Yet the Centers for Disease Control and Prevention reports that, in 2014, 28 people died every day in the United States in motor vehicle crashes involving an alcohol-impaired driver. That equates to one death every 51 minutes. Let me make this clear: I do not condone impaired driving, no matter what substance causes the impairment. As a father of two daughters, nothing scares me more than a person under the influence getting behind the wheel. Impaired drivers should be prosecuted to the fullest extent of the law. It is an important deterrence. But the current federal laws against marijuana are outdated. As was the case with alcohol during Prohibition, the bans have succeeded only in creating a robust black market. As for safety, critics assume that people who currently behave responsibly and don’t drive drunk will suddenly choose to drive drugged because marijuana is legal. That argument is, at best, dubious. Full disclosure: I co-own and operate five licensed marijuana facilities in Nevada

The author at his Las Vegas marijuana dispensary that have been operational the past 2 1/2 years. For me, the medicinal and recreational marijuana markets represented a once-in-a-lifetime business opportunity. The constitutional rights that Americans enjoy are guaranteed so long as they do not unreasonably infringe upon the rights of others. When people choose to use drugs or alcohol, and they do so in the safety and privacy of their own homes, they are acting within their rights. When they get behind the wheel while impaired and become a threat to the safety of others, they are infringing on others’ rights. The solution, in the case of both alcohol and marijuana, is not prohibition but to teach people not to engage in behaviors that put themselves and others at risk. And, of course, to hold them accountable when they do. Few people think of this today, but marijuana was legal for far longer than it has been illegal. The cannabis plant has been used by many cultures for thousands of years. A number of our founding fathers grew marijuana; several are said to have used it. Marijuana was first crim-

inalized nationally in 1937; that law was later ruled unconstitutional. It wasn’t categorized as a Schedule 1 narcotic (those deemed to have high abuse potential and no medical use) until 1970. The most pertinent defense of marijuana legalization is that it represents the will of the people. Although marijuana remains illegal at the federal level, it is imperative that Congress and the executive branch take action to alter and/or repeal the arcane and out-of-date laws that are currently creating unnecessary tension between the state and federal governments. Hopefully, we can move away from the hysteria and ignorance associated with marijuana and get the federal government to acknowledge that legalization and regulation are issues best left to the states.

Attorney Robert Groesbeck is the president and co-founder of Medizin, a medical marijuana company, and Planet 13, which serves the recreational market. He lives and works in southern Nevada.

CASE IN POINT MAGAZINE

THE NATIONAL JUDICIAL COLLEGE

2017–2018

THINGS 50 JUDGES WISH THEY HAD KNOWN BEFORE THEY TOOK THE BENCH

BEFORE I BECAME A JUDGE, I WISH I HAD KNOWN … “To keep my words soft and sweet—you never know when you may have to eat them.” Hon. Allen G. Swan, District Court Department, Essex County, Ipswich Division, Massachusetts

“Show utmost respect to clerks, attorneys and parties. Try to ‘out-respect’ them. This engenders respect for your court.”

Hon. Joseph Castlen, 6th Circuit Court, Kentucky

“That I was giving up my individual identity. Your personal opinions and views are restricted in context at all times. Pretty soon you can begin to forget who you are.”

Hon. Beckie Palomo, 341st Judicial District Court, Texas

“How much of my criminal docket would be mental health cases in disguise.” Hon. David L. Shakes, 4th Judicial District Court, Colorado

“Many of the people who work in restaurants have criminal records. I no longer want to eat out.” Hon. Tammy F. Marple, Harrison County Magistrate Court, West Virginia

Hon. Jan Satterfield, 13th District Court, Kansas

“That some people will think their Google search is the same as your law degree.” Hon. Meredith D. Drent, Puyallup Tribal Court, Washington

ILLUSTRATIONS BY DOAN TRANG

We asked NJC alumni what they wish they had known before they became judges and received hundreds of submissions. Many judges said they wish they’d known how isolating the job would be, or how much paperwork would be involved, or about the difficulties of going out in public. Here are 50 of the answers we received.

“The phrase ‘to whom much is given, much is expected’ applies to the 10th power.”

“The job doesn’t pay enough to be a jerk! Mistakes in applying law or reviewing facts are expected. Arrogance from the bench is inexcusable. Litigants will often decide how all judges act from their contact with you. Don’t get us a bad review.” Hon. Gregory D. Smith, Pleasant View Municipal Court, Tennessee

“Your jokes become funnier, you can jump higher, and you are more interesting after you become a judge. But they aren’t, you can’t, and you aren’t. So don’t believe anything otherwise.”

“Have a plan to deal with stress! Weight gain, depression, frustration and drinking are all hazards of the job, and we owe it to our families to protect ourselves and them from danger.”

“That it would be incredibly isolating. Professionally and socially there are so many situations that require me to withdraw to avoid an ex parte contact or avoid what might be construed as an appearance of impropriety. … So much of my work is sitting alone with a file and a computer writing opinions, and during hearings you sit alone listening, not talking. It is lonely work.”

“You really shouldn’t talk about your work on Facebook—duh.”

Hon. Samuel A. Thumma, Arizona Court of Appeals, Division One

Hon. Cheryl D. Luke, Utah Labor Commission

“How many times litigants, whether pro se or represented by counsel, fail to provide basic facts needed to make a proper decision.”

Hon. Thomas E. Merrick, Southeast Judicial District Court, North Dakota

“Snaps or zipper? I wish I had known the answer to that question before I ordered. The correct answer, by the way, is snaps. If it gets hot in the courtroom, you can undo snaps from the bottom. You can’t unzip from the top—that looks bad.” Hon. Robert J. Schuit, Superior Court of Los Angeles County, California

“Temper any anger. They who anger you conquer you. They also file conduct complaints.” Hon. Keith Myers, Ballard County District Court, Kentucky

“There is a direct correlation between the lack of education and criminality.” Hon. J. Blaine Akers, Superior Court of Clay County, Indiana

Hon. David J. Certo, Superior Court of Marion County, Indiana

Hon. David A. Holtzman, administrative law judge, South Coast Air Quality Management District, Los Angeles

“I wish I’d known that the black robe makes some people forget that it’s ok to say ‘I don’t know’ when another judge, officer or defendant asks for information or advice. I have met so many judges who would rather make something up than admit they don’t know something.” Hon. Deborah Culler, Clemson University Municipal Court, South Carolina

“How dangerous it is to walk down stairs in a robe!”

Hon. Stephen D. Hill, Kansas Court of Appeals

“That managing staff, budgets and grants would add an extra 20 hours a week to an already busy caseload.” Hon. Allie Greenleaf Maldonado, Little Traverse Bay Bands of Odawa Indians Tribal Court

“That folks would really believe that my court would be just like Judge Judy’s show.”

Hon. Cynthia L. Brewer, Chancery Court of Madison County, Mississippi

“How isolating the job would be. In a small town, the isolation is devastating.” Hon. Jane Eakin, Circuit Court of the 2nd Judicial District, Wyoming

“Remember that when most parties leave your proceedings, they will probably not remember what you did or what you said—they will remember how you made them feel. Treat every party with courtesy and respect.” Hon. Benjamin J. Myers, administrative law judge, Pennsylvania Public Utility Commission

CASE IN POINT MAGAZINE

THE NATIONAL JUDICIAL COLLEGE

“An older and wise judge gave me some advice when I first went on the bench. He said, ‘Most litigants will be in court only one time in their life. You should ensure that they remember it as one where they felt they were treated fairly.’”

Hon. James H. Reid, 28th Judicial District Circuit Court, Alabama

2017–2018

“Even judges make mistakes. If you are wrong, go back on the bench, own the mistake, and correct the record.” Hon. Cathy Vitale, Anne Arundel County Circuit Court, 5th Judicial District, Maryland

“Be careful using humor in the courtroom. You may think your particular quip or observation is funny, but even people you know well sometimes do not realize when you are trying to be humorous. Judicial humor can easily be seen by attorneys and litigants as sarcasm.” Hon. Janet E. Garrow, King County District Court, Washington

“Three things: Never be afraid to ask questions until you have an understanding of what the witness is saying; your health is vitally important; and take vacations and breaks throughout the year.” Hon. Jacqueline Jones, Department of Industrial Relations, California

“That the better the lawyers’ performance in the courtroom, the better the judge’s rulings. Professionalism and competency are crucial to a fair and judicious system. Yet when I first sat on the bench, I gave the advocates too much credit. Now I know better. And now I rule better.” Lt. Col. Patricia A. Gruen, United States Air Force Pacific Circuit

“Although I didn’t know it at the time, being a mother of three sons was the best training I had for being a judge. I often hear some of the same excuses from defendants: He did it; it wasn’t me; it was her fault; he did it, too; I didn’t mean to do that; can I have one more chance?” Hon. Tammy F. Marple, Harrison County Magistrate Court, West Virginia

“How hard it is to be firm and uphold the values and rules when the person in front of you has been so beaten down by life that it makes it feel like you are kicking a poor wounded animal. … Somewhere in the middle you have to find justice.” Hon. Jeanette L. Umphress, Municipal Court of Yuma County, Arizona

“Use your robe in the community. Involve yourself in community issues that affect or are affected by the court. Get involved in programs that benefit children, law enforcement, rehabilitation and the like. This comes with one caveat: Do not engage in an activity or make comments that would call your impartiality into question.” Hon. Joseph Castlen, 6th Circuit Court, Kentucky

“Never assume that an appellate judge knows anything, and write your decisions as if you’re certain they don’t know anything.” Hon. Toni T. Boone (Ret.), Office of Administrative Hearings of the Nevada Department of Motor Vehicles

“Part of a judge’s developed skill, especially a rural judge, is having a feel for whether or not a particular case will actually go to trial. This helps immensely with case scheduling, jury summoning and with the possibility of a judge getting a good night’s sleep almost every night. I finally concluded that a lesson could be learned from the occupation of circus ringmaster.” Hon. Jess B. Clanton, Jr. (Ret.), 12th Judicial District, Oklahoma

“Judging involves an element of performance art. It’s not enough that you are impartial—you must also let the litigants know that you understand their arguments and positions, and that you have considered them.” Hon. James D. Garbolino, Placer County Superior Court, California

“I wish I had known (in my earlier life as an attorney) how I sounded to the judge when making an argument. I’d have said less.”

Hon. John Herke, Division of Administrative Law, Louisiana

“That I would always be ‘on the clock’ to the public. In other words, everyone wants to tell you about their cases or legal issues while you might be at the grocery store or even church.” Hon. Cynthia L. Brewer, Chancery Court of Madison County, Mississippi

“You are only as good as your worst hearing.” Hon. Samuel A. Thumma, Arizona Court of Appeals, Division One

“Even if germane and on point, never— ever—use the term nudum pactum in a full courtroom.” Hon. Keith Myers, Ballard County District Court, Kentucky

“About all the administrative duties I would have to deal with. Then I could have gone to business school first!” Hon. Ernie L. Glenn, Bexar County Felony Drug Court, Texas

“If you think you’ll not be spit on, you’re wrong. If you think that you’ll never have someone urinate in your courtroom, you’re wrong. If you think you won’t see people pick their ferret over custody of their own kids, you’re wrong. If you think you won’t get stories that secondhand smoke caused them to test positive for methamphetamine, you’re wrong. The list goes on and on.”

“Fear of your own authority should always precede your exercise thereof.” Hon. Keith Myers, Ballard County District Court, Kentucky

“Rule and run; do not ‘take it under advisement.’” Hon. James R. Clayton, 7th Judicial Circuit, Florida

“[…] how much this job would change how I view the world. I had spent 30 years as a police officer prior to being appointed, and I thought I had a good “Remember to play the long game and view of the world. This job made me pace yourself. If you say yes to every step back and really look at everyspeaking engagement, every pilot thing—everything I did, everything I project, every specialty court, every posted, everything I said to friends, administrative position, and the many and how I acted in public and around other opportunities to contribute my family. I really wanted people to beyond your work from the bench, you look at me and respect me for the job may soon become overburdened and I was doing. In doing so, I had to step worn down. Happy people make better up and make sure I was worthy.” Hon. Kevin L. Wilson, Justice of the judges!” Hon. Brandy O. Brown, 25th Judicial District Court, Kentucky

Peace Court, Kent County, Delaware

“Good intentions always come with a critic.”

Hon. George M. Gasparovic, Pendleton Town Court, Indiana

“At least 85 percent of judges’ problems are self-inflicted. When in doubt, keep your mouth shut.”

Hon. Renee Goldenberg, 17th Judicial Circuit, Florida

Anonymous judge

Hon. Peter H. Wolf, Superior Court, District of Columbia

Hon. Brendon J. Boone, 23rd Judicial District Court, Kansas

“That you are a judge 24/7. For some reason, everything you do or say, on and off the bench, is of interest. Think about whether you would want it to appear on the front page of the local newspaper.”

“I wish I’d known that certain legal terms and phrases like ‘co-equal’ and ‘shall be adequately funded’ seem to be used more as punch lines by many members of the other two branches of government.”

“Never, NEVER go on the bench with a full bladder!”

“It’s better to go ahead and do good than to fear the lack of authority.”

Hon. William W. Haury Jr., 17th Judicial Circuit Court, Florida

Hon. James M. Redwine, Posey County Circuit Court, Indiana

“Compassion fatigue and vicarious trauma are real. You are not a horrible, cynical person. Don’t ignore your own mental health.” Hon. Meredith D. Drent, Puyallup Tribal Court, Washington

CASE IN POINT MAGAZINE

THE NATIONAL JUDICIAL COLLEGE

2017–2018

BY PENNY J. WHITE

W A Far Less Perfect Union JUSTICES O’CONNOR AND STEVENS KNEW WHAT WAS LIKELY TO COME FROM WHITE AND CITIZENS UNITED. I HAD ALREADY BECOME A CASUALTY OF POLITICIZED JUDICIAL ELECTIONS.

hen the U.S. Supreme Court struck down a provision of the Model Code of Judicial Conduct in 2002, the ruling set off a chain reaction that continues to undermine the independence and impartiality of the third branch of government. The court’s decision in Republican Party of Minnesota v. White swept away the prohibition on candidates for judicial office announcing their views on political and legal issues ahead of the election. Before White, candidates running for judicial office could rightly claim that they were prevented from announcing their stance on issues that might come before them. After White, that shield disappeared. Special interest groups can now demand that a judicial candidate fill out a questionnaire, and then they could publicize the candidate’s responses to either encourage or discourage support from voters. A major aftereffect of the White decision was to inject into judicial races so-called “issue advertising,” long popular and appropriate in executive and legislative races. In doing so, White facilitated the impression that judges, like candidates for other political offices, identify their views as a means of attracting campaign funds and securing votes. Why else would they announce their personally held political beliefs if not to signal their likely position, and ruling, on legal issues? This linking of a candidate’s personal point of view on a social or political issue with that of a special interest group blurred the distinction between judicial candidates and candidates for other political offices and exacerbated the quid pro quo expectations that flow from political campaigns. Once the decision in White had opened the door to issue advertising in judicial races, the only remaining hurdle was to find sufficient funds to tell the voters which judges shared their political points of view. That hurdle was impressively scaled eight years after

White in Citizen’s United v. Federal Election Commission. The upshot of that Supreme Court decision was that corporations and labor unions, like individuals, have constitutionally protected free speech rights. Thus, their independent expenditures in elections cannot be limited. It was the White decision that enabled special interest groups to identify judicial candidates’ views on political and social issues. But it was Citizens United that gave special interest groups, labor unions and corporations the ability to funnel their resources strategically and without limitation. Together the two decisions changed the landscape of judicial elections permanently. If any member of the court may have anticipated the consequences of White, it was Justice Sandra Day O’Connor. That’s because she was familiar with election campaigns. Formerly a skilled politician in Arizona, she had won election to the state senate, served as the first woman majority leader in any state and was elected a state court judge. She likely understood that without the shield of an ethics rule, judges in states that elected judges (there were 39 at the time) would be tempted to begin campaigning “on the issues,” the same as any other politician. She seems to acknowledge this depressing prospect in her concurring opinion in White, where she writes: “We of course want judges to be impartial ... [b]ut if judges are subject to regular elections they are likely to feel that they have at least some personal stake in the outcome of every publicized case.... If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.” ***

y the time Citizens United reached the Supreme Court, O’Connor’s retirement had taken away the only perspective informed by the experience of campaigning for a state judicial office. But another justice—John Paul Stevens— brought an equally rich and informed point of view. Unlike many jurists who reach the position of Supreme Court justice, Stevens had been a trial lawyer. Following his work as a judicial clerk and short stints with a large firm, in Penny White is the Edwin E. Overton Distinguished Professor of Law and interim director of the University of Tennessee Legal Clinic at the UT College of Law. She has served as faculty for The National Judicial College since 1993 and received the College’s V. Robert Payant Award for Teaching Excellence in 2009.

government, and in academia, he formed his own law firm specializing in antitrust cases. He quickly rose to acclaim and was widely respected as a trial lawyer. Undoubtedly, Justice Stevens had been taught as a law student that knowledge of the law and polished trial skills would benefit his clients. But he also knew—as all lawyers know—that neither the soundness of a case nor the intelligence and ability of a lawyer is any match for a corrupt or unduly influenced judge. No level of preparedness can compete with a judge whose impartiality is compromised by politics. Forty years before Justice Stevens penned his opinion in Citizens United, he gained an additional unique perspective that would inform his position in the case. As a result of his experience and success as a trial lawyer, he was appointed to serve as special prosecutor for the Greenberg Commission, a group appointed by the Illinois Supreme Court to investigate corruption allegations against a current and former chief justice. This experience enabled him to observe firsthand the impact that impropriety—actual or perceived—had on the institution of justice. Because the commission was appointed by some of the very individuals it was expected to investigate, there were legitimate concerns about its potential to conduct a fair and thorough investigation. Ultimately, the commission’s work was regarded as exemplary—primarily because of the courage, independence and vigor Justice Stevens brought to the prosecution. Just as Justice O’Connor’s concurrence in White emanated from her prior professional experiences, Justice Stevens’ separate opinion was fueled by his. Four other justices penned thousands of words defending the free speech rights of corporations as “persons” and emphasizing the significance of elections in America. Stevens alone observed the devastating impact of the decision on the institution and administration of justice in the states: At a time when concerns about the conduct of judicial elections have reached a fever pitch, the Court today unleashes the floodgates of corporate and union general treasury spending in [state judicial] races. Perhaps [recusal motions based on campaign contributions] will catch some of the worst abuses. This will be small comfort to those States that, after today, may no longer have the ability to place modest limits on corporate electioneering even if they believe such limits to be critical to maintaining the integrity of their judicial systems.

CASE IN POINT MAGAZINE

THE NATIONAL JUDICIAL COLLEGE

To the extent that the decision in White began the sea change in the landscape of judicial elections, the decision in Citizens United completed it. Judicial elections are now on equal footing with other political elections in terms of tone, tenor, costs and negative impact. Studies and surveys consistently confirm the negative impact, while scholars suggest reform and lament the presence of undisclosed “dark money” in judicial elections. Yet, for the most part, states have not budged on their allegiance to an elected judiciary. ***

ike Justice Stevens, I spent a large portion of my law life as a trial lawyer. I practiced in a rural community where it was commonplace for some lawyers to “pre-try” their cases at the local coffee shop in the early morning hours before court was in session. These morning “pretrials” were openly discussed among senior members of the bar, often in jest when one arrived earlier than the other and got the advantage of the judge’s ear. Although I never attempted to attend, these morning sessions seemed to exclude younger, and female, members of the bar. Before I learned about these sessions, I often questioned my abilities as a lawyer when a judge’s decision ran counter to clearly established law. On one occasion when I respectfully asked the judge to allow me to present an appellate decision that clearly established my point, the caffeine-primed judge warned that any further disrespect of his authority would be the basis for a finding of contempt. It soon became apparent that even the most talented lawyer, after countless hours of meticulous preparation, would disserve her client when the

2017–2018

judge had been improperly influenced by friendship or these ex parte pretrial sessions. After several years of practice, including in states without elected judges, I decided to challenge the status quo and seek judicial office. I believed that an ill-conceived selection system could be ameliorated by an integrous judge. As I campaigned across a largely rural 1,200-mile judicial district, I repeatedly was asked the same question: “Are you going to be the kind of judge we can talk to?” In light of their experiences with prior judges, my efforts to explain the prohibition on ex parte communications made me sound aloof and academic. Finally, I devised this answer: “Sure, you can talk to me about a case, but then I won’t be able to hear the case.” My stint as an elected state official and a judge was miniscule in comparison to Justice O’Connor’s and Justice Stevens’, but it was long enough for me to embrace and share some of their perspectives and concerns. The state judicial system is suffering from the influx of what Justice Stevens termed “corporate and union general treasury spending” in judicial races, and states largely are unable to thwart the abuses that occur. For our justice system to fulfill its purpose, judges must be impartial, free from improper influence, independent of political pressure. As Justice O’Connor wrote in White, judges who must campaign are “likely to feel that they have at least some personal stake in the outcome of every publicized case.” Note that she added: “[They] cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their reelection prospects.” Even the most upright judge may be perceived as biased and the public’s confidence in the judiciary undermined simply because the public does not believe an elected judge can ignore political realities.

ELECT OR APPOINT? NEITHER WAY PLEASES ALL JUDGES A majority of judges think appointing judges is a better idea than electing them, but many feel there are problems with either method, a 2017 NJC survey found. More than a thousand judges voted in the survey, which was emailed to NJC alumni in June. Sixty-three percent indicated that they prefer appointments (they had to choose one method or the other). More than 330 judges added comments. Many who favored appointments complained of election campaigning and fundraising, of being forced to announce their opinions on issues publicly, and of being

at the mercy of an ill-informed voting public—all threats to judicial independence, they said. But many who favored elections had similar complaints about appointments. They worried about being as beholden to a governor or other appointer as elected judges are to the electorate. Some judges said they prefer a combination of the two methods, such as initial appointment by an independent and qualified committee followed by a retention vote after a set period of time.

“Some judges profess that their goal is to avoid, at all costs, a ‘Penny White’ experience.” Penny White

In the last 20 years, I have gained an additional perspective on the impact of judicial elections influenced by my distinction of being the only appellate judge to not be retained in office in my home state of Tennessee. Although campaign expenditures did not lead to my defeat, politics did. Six weeks before the election in which voters would decide whether to retain me as a member of the Supreme Court, the court on which I sat rendered a divided opinion in a capital case. While all five members of the court agreed that the defendant’s first-degree murder conviction should be affirmed, three of us reversed the death sentence and remanded the case for a new sentencing. We did so because the trial judge committed a fundamental error by not allowing the defendant to offer mitigating evidence at sentencing. We also questioned whether the state had offered sufficient evidence of an aggravating circumstance on which it relied, given the legislature’s definition of that aggravating circumstance. The case, State v. Odom, was the first direct appeal of a capital case I had ever heard. Despite that, I was targeted as an anti-death-penalty judge. The campaign against me used the slogan “If you are for capital punishment, vote against Penny White.” Direct mail encouraged voters to hold me responsible for the death of Odom’s victim. The governor and both U.S. senators asked the public to vote against me. The opposition expertly framed the campaign as me vs. capital punishment, and capital punishment resoundingly won. My history serves as a cautionary tale for many judges, some of whom were barely lawyers in 1996 when I experienced the defeat. Their reaction to—and intimidation in light of—my experience is of great concern. Many fear that they, too, might suffer the consequences of an electorate angered about a single decision. Some profess that their goal is to avoid, at all costs, a “Penny White experience.” For the most part, they are excellent judges with unquestionable integrity,

but their nagging concern about their future as judges causes me a great deal of discomfort. During that same 20 years, I have been privileged to serve as a law professor in some of the finest law schools in the country. I teach those trial skills that Justice Stevens mastered, along with substantive courses in doctrinal law. I tell my students that hardworking, prepared, ethical lawyers will better serve their clients. I tell my students that if they know and understand the law, that if they apply the skills of analytical thinking and persuasive argument, they can succeed. But in all candor, I sometimes question whether I am doing them a disservice by not preparing them for the possibility that neither their intellect nor their ability may determine the outcome; that they can have the law and the facts on their side and lose their case if they have the misfortune of appearing before an influenced, biased or corrupt judge. There is much diversity of opinion on the topic of judicial selection. Some argue that judicial selection will always be political and that it is, therefore, best placed in the hands of the voters, not elected politicians. Others tout judicial elections as the only means of true judicial accountability. Regardless of the divergent points of view, there is consensus at the core: The public must have confidence in the judiciary for the judiciary to fulfill its role in a democratic society. For the judiciary to uphold the rule of law, it must maintain its legitimacy. The decisions in White and Citizens United make that goal difficult but not impossible. Public confidence and the legitimacy of our courts can be attained—judge by judge, case by case—as the women and men engaged in the enormous, complex, and daunting task of judging have the opportunity to stand above the political fray and provide the “true backbone of the rule of law.”

CASE IN POINT MAGAZINE

THE NATIONAL JUDICIAL COLLEGE

2017â&#x20AC;&#x201C;2018

2018 Courses at a Glance

SCHEDULE SUBJECT TO CHANGE.

COURSE NAME

DATES

TUITION / CONF. FEE

JAN/FEB

Advanced Bench Skills Miami, FL Evidence Challenges for Administrative Law Judges Web Course Selected Criminal Evidence Issues Web Course

Jan 25–26 Feb 19–Apr 6 Feb 19–Apr 6

$679/ $249 $639 $639

MAR

Essential Skills for Tribal Court Judges Tucson, AZ Advanced Evidence (JS 617) Monterey, CA Fundamentals of Evidence Web Course Leadership for Judges Probate Courts: Contemporary Issues (JS 638 ) Advanced Judicial Writing (JS 626) Washington, DC

Mar 5–8 Mar 12–15 Mar 12–Apr 27 Mar 19–22 Mar 19–22 Mar 26–29

$1,399 / $399 $1,399 / $399 $639 $1,099 / $299

Handling Small Claims Cases Effectively Web Course National Judicial Institute and Conclave Chicago, IL Judicial Writing (JS 615) Court Management for Tribal Judges and Personnel (JM 690) General Jurisdiction (JS 610)

Apr 9–May 25 Apr 18–20 Apr 23–26 Apr 23–26 Apr 23–May 3

$639

MAY

Conducting the Trial (JS 632) Civil Mediation Ethics and Judging: Reaching Higher Ground Web Course Management Skills for Presiding Judges Drugged Driving Essentials Writing for Tribal Judges

May 7–10 May 7–11 May 14–Jun 29 May 21–25 May 22–24 May 22–24

$1,099 / $299 $1,299 / $369 $639 $1,299 / $369 $819 / $219 $819 / $219

JUN/JUL

Appellate Skills for Tribal Judges Drugs in America Today: What Every Judge Needs to Know Las Vegas, NV Effective Caseflow Management (JS 627) (JM 690) Administrative Law: Advanced (JS 649) Wilmington, DE Evidence in a Courtroom Setting (JS 633) Jackson Hole, WY Today’s Justice: The Historic Bases (JS 642) New Orleans, LA Advanced Skills for Appellate Judges New Orleans, LA Enhancing Judicial Bench Skills (JS 624) Orlando, FL

Jun 4–7 Jun 4–6 Jun 4–7 Jun 11–14 Jun 11–14 Jun 18–21 Jun 18–21 Jul 9–12

$1,099 / $299 $1,019 / $349 $1,099 / $299 $1,399 / $399 $1,399 / $399 $1,399 / $399 $1,399 / $399 $1,399 / $399

AUG

Decision Making (JS 618) San Diego, CA Advanced Tribal Court Management Leadership for Judges Administrative Law: Fair Hearing (JS 612) Scientific Evidence & Expert Testimony (JS 622)

Aug 6–9 Aug 13–16 Aug 13–16 Aug 13–23 Aug 20–23

$1,399 / $399 $1,099 / $299 $1,099 / $299 $1,729 / $579 $1,099 / $299

SEP

Ethical Issues and the Law: A Novel Approach (JS 619) Ashland, OR Special Consideration for the Rural Court Judge Web Course Impaired Driving in Indian Country Advanced Bench Skills: Procedural Fairness Anchorage, AK Evidence Challenges for Administrative Law Judges Web Course Fourth Amendment: Comprehensive Search & Seizure (JS 645) Denver, CO Ethics for the Administrative Law Judge Web Course

Sep TBD Sep 10–Oct 26 Sep 11–13 Sep 12–14 Sep 17–Nov 2 Sep 24–27 Sep 24–Nov 9

$1,399 / $399 $639

Advanced Evidence (JS 617) Civil Mediation Best Practices in Handling Cases with Self-Represented Litigants Managing Challenging Family Law Cases (JS 634) Traffic Issues in the 21st Century Ethics, Fairness & Security in Your Court and Community Las Vegas, NV General Jurisdiction (JS 610) Special Court Jurisdiction: Advanced (JS 611) Mindfulness for Judges Santa Fe, NM Designing and Presenting: A Faculty Development Workshop Logic & Opinion Writing (JS 621) Santa Fe, NM

Oct 1–4 Oct 1–5 Oct 8–11 Oct 8–11 Oct 8–11 Oct 15–18 Oct 15–25 Oct 15–25 Oct 29–Nov 1 Nov 5–8 Nov 5–8

$1,099 / $299 $1,299 / $369 $1,099 / $299 $1,099 / $299 $1,099 / $299 $1,399 / $399 $1,729 / $579 $1,729 / $579 $1,399 / $399 $1,099 / $299 $1,399 / $399

APR

OCT/NOV

Unless noted, courses are held at the College, located on the University of Nevada, Reno campus.

Call for eligibility

$1,399 / $399

Call for information

$1,099 / $299 $1,099 / $299 $1,729 / $579

Call for eligibility

$679 / $249 $639 $1,399 / $399 $639

Learn more at judges.org/2018courses.

gender identity, sexual orientation, and national or ethnic origin.

CASE IN POINT

EDUCATION | INNOVATION | ADVANCING JUSTICE Judicial College Building, MS 358 | Reno, Nevada 89557