Hidden Bias and Fair Trials

You may serve on a jury one day, and if you do, your thought process will mean a lot to the people involved.

Those people, and the system as a whole, will rely on you to give them a fair trial.

To that end, one court has created a video to help potential jurors understand their hidden biases. These are the mental shortcuts we use to make decisions about people or things. We all have them, and they help us make sense of the world around us. We all have them because we’re all human, and we often don’t even realize it.

The thing is, they’re often wrong. For example, one study looked at scientists who were hiring a laboratory manager. The experiment was that all of them were given the exact same resume to review except some copies bore a man’s name and others a woman’s name. Well, guess what? Both male and female scientists scored the male candidate as more competent and worthy of the job even though the resumes were exactly the same. Without realizing it, these scientists harbored a hidden bias about gender, and it clouded their judgment.

The video is shown during jury selection in the U.S. District Court for the Western District of Washington. It features three people: the top federal prosecutor for the district, a senior trial judge there, and a prominent defense lawyer. The lawyer explains the value of talking about hidden bias this way:

“You have two choices: either talk about it or don’t talk about it, and haven’t we seen what happens when we don’t talk about it?”

The upside is that by taking the time to really think about things, and by taking in more information, we all make better decisions.

A Model Penal Code for the 21st Century

Charging decisions, which we wrote about last week, matter for many reasons. They drive plea bargains, and they affect sentencing. You file a felony, for example, so that the guy will plead to a misdemeanor without giving you much trouble. It happens all the time.

Bad charging decisions, though, don’t just cause wrongful convictions or unjust sentences.

They cause other consequences that continue to torment you after you’ve served your sentence. Your actual sentence may include your jail or prison time, the fines you must pay, or the terms of probation you must follow. You did the crime so you should do the time and pay the fine, right? Okay, but then even after you do, you still may not be able to cast a vote, land a job, rent a home, hold a license, or get a loan. These are the so-called collateral consequences of a conviction.

But the future may be brighter.

Last week, the American Law Institute approved major changes to the Model Penal Code to address these consequences. The ALI is the leading scholarly body that aims to clarify, modernize, and otherwise improve American law. The Model Penal Code is its seminal work in the area of criminal law. It doesn’t have the force of law by itself, but it’s influential. Most states have used it in passing their own laws, and courts cite to it often.

The new provisions would require you to prove, by clear and convincing evidence, that a collateral consequence of your conviction imposes a heavy burden on your ability to rejoin society and that public safety doesn’t need you to suffer it.

If you do that then a court could relieve you from that burden. A court could even issue a certificate of rehabilitation that shields employers, landlords, or others who give you a second chance from civil liability.

Already, state legislatures have been proposing and passing laws to give people a fair shake to prove themselves before dismissing them based on the past.

Hopefully, that momentum keeps building. We should consider what it means to have a record, anyway, when most people either have one, know someone close to them who does, or would have one but for the grace of God. And we should consider how we judge people altogether in a world in which our every action can leave a permanent trace.

The twenty-first century may demand it.

Back to Basics, Again.

Speaking of the U.S. Supreme Court, we shouldn’t have to rely on the country’s highest court to decide some questions correctly. But we do.

This week, the Court issued a friendly reminder about the presumption of innocence.

If you’re convicted of a crime, but your conviction is overturned on appeal, and there won’t be a retrial, the government has to return any money that you paid toward fines, fees, or restitution because you’re presumed innocent again. You’re presumed innocent until you’re proven guilty beyond a reasonable doubt in a fair trial where the verdict holds up. Until then, the government can’t make you prove your innocence to get your money back.

Here’s what happened. In two separate cases, a man and woman were convicted at trial, and they were ordered to pay fines, fees, and restitution as a result. Then both had their convictions reversed on appeal. One was retried but acquitted. The other wasn’t retried because the state dropped the case.

With the charges dismissed, the defendants asked for their money back, but they lost in the state courts because a new state law required them to sue for their money and prove their innocence by clear and convincing evidence.

But that can’t be right, and it wasn’t. Without a conviction, the state had no right to their money, and under the Due Process Clause of the U.S. Constitution, it couldn’t shift the burden of proof to them to prove their innocence.

Good for them that the court of last resort got it right.

But that court hears fewer than two percent of all potential cases each year. And it wouldn’t have heard these cases, either, if it weren’t for a pro bono clinic at the UCLA School of Law.

The New Justice of the U.S. Supreme Court

Now that Neil Gorsuch has been sworn in, we’ll begin to find out how he wields the law as a member of the highest court in the land.

Some say he’s a natural successor to the Justice whose seat he fills, Antonin Scalia. Here is a profile of Mr. Gorsuch that compares his views to those of Mr. Scalia on matters of criminal law, interstate commerce, and more.

Justice Scalia’s legacy may be complicated, but he defended the rights of the accused in important ways. He championed the right of confrontation, for example. It’s in the Sixth Amendment, and it means that if you’re charged with a crime, your accusers must take the witness stand, testify under penalty of perjury, and face cross-examination in open court. They can’t hide behind hearsay and innuendo. Scalia also championed your right to a trial by jury—that dwindling bastion of freedom and democracy—and he looked after the Fourth Amendment in an age of new technologies.

We hope Justice Gorsuch hews to that heritage and builds on it. Justice Scalia, for example, didn’t care much for the Miranda rule, but we may come to appreciate it more in this century than we did in the last. We may feel differently about the meaning of due process when we see that governments can exercise total dominion over their citizens. We may value legal limits on their power more as we realize that no other limits exist.

To that end, some point optimistically to Gorsuch’s views on overcriminalization, the rule of mens rea, and the rule of lenity.

Others are less sanguine about him in general.

But left, right, or center, most would agree, in the end, with this comment: “We think that all judges should look to the text and history of the Constitution. But [we hope] he will follow all parts of the Constitution, in particular those parts that were added in the 19th and 20th centuries that made our Constitution more equal, more just, more free and pushed us further down an arc of progress.”

Saving Basic Civil Justice in America

As you may know, the new administration’s proposed budget aims to eliminate all federal funding for the Legal Services Corporation. As in, no funding at all. Zero. Zilch. Nothing.

Why is that a problem?

The LSC is the single-largest funder of civil legal aid for low-income Americans. In other words, if you’re poor and accused of a crime, you’d have access to a lawyer because we fund a public-defense system for that (albeit poorly); but in civil matters, you’d have nothing to help you deal with a legal problem if it weren’t for the LSC and other agencies like it.

Congress created the LSC in 1974 through a bipartisan vote. At the time, President Nixon said it would address “small claims in the Nation’s eye [that] loom large in the hearts and lives of poor Americans.”

Today, the agency funds over 130 nonprofits that handle more than 750,000 cases each year for low-income clients. Overall, it helps nearly two million people per year for less than $1.20 per taxpayer. It keeps families in their homes, finds affordable housing for veterans, protects seniors from predatory scams, and provides lifelines to victims of natural disasters.

Who qualifies for help?

Households who live at or below 125% of the federal poverty line. That’s about $15,000 for an individual or $30,000 for a family of four.

Already, the legal profession is mobilizing in defense. The American Bar Association immediately issued a statement condemning the plan. Even before the administration unveiled it, the leaders of 157 major law firms wrote to explain why the LSC represented the kind of public-private partnership the government should encourage, not eliminate. That was followed last week by a letter to Congress from the deans of 166 law schools, whose clinical programs work with nonprofits that rely on the LSC. And that was followed this week by a letter to Congress from 185 of corporate America’s chief legal officers. For the latest summary of these developments, see here.

Please lend your voice, too. The ABA has set up an easy way to send a message to your members of Congress, and you can find the campaign on Facebook too. Please call on them to fund the LSC responsibly. The ABA will print these messages and hand-deliver them to each member of Congress between April 25 and 27.

Because there’s no justice without access.

Take the Money and Run?

Kudos to the California Court of Appeal for enforcing due process and the rule of law.

Earlier this month, the Court took another stand on the law of asset forfeiture by siding with people who had sued to get their stuff back.

In three separate cases, the Court ordered the trial court to reinstate lawsuits brought by eight people from whom local police had taken a total of three cars and $28,257 in cash.

In each case, after police seized the property, they didn’t refer the matter to the district attorney’s office like they were supposed to. No one from a prosecutor’s office reviewed the cases beforehand and signed off on them.

Instead, police just issued forfeiture notices themselves and left it to people to file a claim.

But you can’t do that. The law specifically authorizes only a county’s district attorney or the state’s attorney general to file a forfeiture case in court or, for property worth $25,000 or less, to issue a notice of administrative forfeiture like the police did. For more background on California’s forfeiture laws, see here.

None of the people filed claims at first, but they eventually lawyered up and sued.

They lost in the trial court after the government argued that they didn’t file administrative claims before suing in court and that they waited too long to sue when they did.

But they won on appeal. The Court ruled that the government failed to comply with the forfeiture statutes, so the forfeitures were invalid to begin with, and the state had no right to their property. The Court had made this point three years ago in a prior opinion, and apparently, it meant what it said.

Can They Search My Phone at the Border?

Suppose you go to visit your aunt in Italy, and you take your phone and tablet with you.

When you come back through customs, can they just search your devices willy nilly?

Probably. Here’s a good overview of your rights at the border, along with some practical considerations. It’s worth reading ahead of time because the government is stepping up its enforcement at points of entry, and there have been some heavy-handed run-ins lately between agents and travelers, including U.S. citizens.

The general rule is that customs and border agents may conduct routine, reasonable searches of you and your belongings, including your electronic devices, for any reason or no reason at all. They don’t need a warrant, and they don’t need any basis to believe they’ll find evidence of a crime. It’s known as the Fourth Amendment’s border-search exception.

But how far can they go?

Can they conduct full, forensic searches or force you to give up your passwords?

According to this 2009 policy memo, the answer is yes. It says agents can seize your device, copy its contents, and search them. To do so, they can hold a device for up to five days with a supervisor’s approval. For longer periods, they must get further approval at higher levels. Ordinarily, they must conduct the search in the presence of a supervisor, too, but if that’s not feasible, they must inform a supervisor about their search as soon as possible. If they find probable cause to believe your phone contains evidence of a crime, you may not get it back for a while, if at all. If they don’t, you should get your phone back eventually, and they’re supposed to destroy any copied information.

The law is evolving, however, to require at least a reasonable suspicion for a full forensic search. That’s already the case in the federal circuit that covers California and eight other states, and the law should continue to trend in that direction. What is a reasonable suspicion? It’s a particularized and objective basis for suspecting someone of a crime.

Still, reasonable suspicion is not a tough legal standard to meet.

Plus, agents can always just ask you to unlock your phone or give up your passwords, and if you refuse, they have plenty of ways to coerce you. They can take your phone; detain you, too; search your bags more thoroughly; deny you entry if you’re visiting; or scrutinize your green-card status. Most folks just want to be on their way.

So happy trails, traveler. Leave the phone, perhaps, but take the cannoli.

The Right of Refusal in California DUI Cases

If you’re arrested for driving under the influence, and you’re asked to submit to a breath or blood test, remember that you still have a third choice.

You can refuse to submit to such testing and face the consequences. What are those?

  • You may lose your license for one-to-three years depending on your driving history;
  • You’ll have to pay a fine;
  • You’ll serve mandatory jail time if you’re convicted; and
  • Your refusal can be used against you at trial as evidence of your guilt.

You may not like your options, but you’ve still got a right to refuse, and if a police officer wants to deprive you of that right, he or she must get a warrant.

Take this recent case, for example. A woman was stopped on suspicion of driving under the influence. The police officer asked her to blow into a breathalyzer, saying it was optional (which is true). She declined. He then arrested her and asked her to choose between a breath and blood test. He told her that she was required to choose one or the other, but he didn’t explain the consequences of refusing like he was supposed to. That made it seem like she couldn’t refuse (which isn’t true). So she chose the blood test. After she got charged, she moved to suppress the results on the ground that her consent wasn’t free and voluntary because the officer made it seem like she couldn’t refuse. But the trial court denied it.

On appeal, the court ruled that the trial court should have suppressed the test results. Because the officer didn’t have a warrant, the search and seizure was illegal unless it was based on an exception to the warrant requirement (like consent). In this case, however, the woman’s consent wasn’t free and voluntary because the officer didn’t correctly explain the law. He told her that she had to take a test under California’s implied-consent law (which is true). But he didn’t advise her of the consequences for refusing. That made it seem like she couldn’t say no, which meant there was no actual consent.

As the court explained, it’s no different than if the police came to your home and claimed to have a warrant but then argued that you consented to their search by opening your door. That’s not a valid consent because you had no right to resist their authority, anyway. So if it turns out they didn’t actually have a warrant then their whole search would be illegal, and they couldn’t rescue their case by relying on your consent.

Two Sneak Peeks Inside a Grand Jury

It’s not every day that grand jurors write about their experiences, but here are two who did. Both recently served on grand juries in New York, and they offer competing takes on this corner of our justice system.

The first juror emerged from the experience with an awareness of the power of prosecutors, who dominate the process.

The second emerged with an appreciation for a grand jury’s role in checking that power.

But how independent are grand juries, really? Do they always vote to indict? Are they encouraged to do so? Expected, even? Pressured? Are they more than a rubber stamp?

Read on for some answers from two former grand jurors.

New California Criminal Laws: Do-Over

Speaking of new laws, last year we wrote about Senate Bill 227, which changed the Penal Code so that grand juries could no longer criminally indict or investigate a police officer’s deadly use of force. The stated rationale behind the law was that grand juries undermined the public’s trust in such cases because they lacked transparency and accountability. For more on grand-jury secrecy and the overall process, see here.

Well, never mind that new law because the California Court of Appeal just threw it out.

The Court held that the Legislature could not, by statute, restrict the power of grand juries to indict or investigate criminal cases because that power flowed from the state’s Constitution.

“The Legislature is not powerless to remedy the problem it has identified. It may submit a constitutional amendment to the electorate to remove the grand jury’s power to indict in cases involving a peace officer’s use of lethal force. It could also take the less cumbersome route of simply reforming the procedural rules of secrecy in such cases, which are not themselves constitutionally derived or necessary to the grand jury’s functioning….”

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