Judicial Elections: Should Judges Be Allowed to Pass the Hat Themselves?

  The U.S. Supreme Court is taking up the question whether candidates running for judicial office should be permitted to directly solicit campaign contributions. The Court has heard arguments in Williams-Yulee v. The Florida Bar, in which the petitioner was reprimanded by the Florida Supreme Court for having sent out …

Supreme Court Backs Police In Brake Light Mistake Case

The Supreme Court ruled that a police officer’s mistake of law doesn’t necessarily mean the suspect goes free.The justices ruled 8-1 that a North Carolina police officer made a “reasonable” error when he stopped a driver on the basis of one busted brake light — which, as it turned out, …

Facebook Death Threat Case: What Will the Supreme Court Do?

The U.S. Supreme Court is considering a ground-breaking case about threats made on Facebook by Anthony Elonis. The issue is whether death threats posted on the social media are protected free speech under the First Amendment. Judge Eugene Hyman discusses the case and the issues facing the Supreme Court. As …

The Ferguson Grand Jury and How Grand Juries Work

Grand juries play an important role in the criminal process, but they do not determine guilt or innocence. Rather, the grand jury’s role is to decide, with assistance by and guidance from a prosecuting attorney, whether a suspect should be charged with a crime. In St. Louis County, Missouri, a …

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Judicial Elections: Should Judges Be Allowed to Pass the Hat Themselves?

January 30, 2015 Uncategorized No Comments

 

The U.S. Supreme Court is taking up the question whether candidates running for judicial office should be permitted to directly solicit campaign contributions. The Court has heard arguments in Williams-Yulee v. The Florida Bar, in which the petitioner was reprimanded by the Florida Supreme Court for having sent out solicitation letters. She has appealed, and the Court has heard arguments. Retired Judge Eugene Hyman discusses the problems presented in this report.

Judge Hyman

The central question in this case is whether Florida’s restriction on the fund-raising activities of judicial candidates is a lawful infringement on their right to free speech. If the Court strikes down the Florida restriction, it could affect similar provisions in 29 other states. Judge Hyman notes that he has been on both sides of the election issue, having been an appointed judge and later and elected judge who had to stand for reelection.

Judge Hyman agrees with comments by Justice Sotomayor during oral argument that it is very hard for a lawyer to say “no” to a judge, whether it’s a request to serve on a committee or to give money. The Florida regulation allows judges to have committees that perform direct solicitation. Under Florida law, a judge may know who is contributing (and how much) and may write thank you letters to contributors. And, of course, anyone who makes a contribution in virtually any state will be in a database showing names of contributors and names of recipients. A prospective client might decide to seek out a lawyer who made a generous contribution to a judge on the theory that the lawyer would have an inside track with the judge.

Judge Hyman says that it is awkward asking lawyers for campaign contributions. It is reasonable to assume that lawyers will make the bulk of the contributions because they are interested in courts. Judge Hyman, confronting the issue, would recuse himself for two years in cases involving a lawyer who gave $250 or more and, in the case of lawyers who gave $1,000 or more, would recuse himself throughout his time on the bench. It is important for judges to avoid the appearance of evil.

The free speech aspect of this case is important because of previous Supreme Court rulings that giving political contributions is a form of free speech, and strict scrutiny will be applied to any restriction on that freedom. For example, the Court has ruled that limits on the amounts of contributions infringe on free speech. The issue in this case is not on donation limits, but whether candidates can solicit themselves. Judge Hyman is inclined to think that the Court will decide judicial elections are not like most other elections and will uphold the Florida rule.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network. The Legal Broadcast Network is a featured network of the Sequence Media Group.

Supreme Court Backs Police In Brake Light Mistake Case

January 7, 2015 Uncategorized No Comments

The Supreme Court ruled that a police officer’s mistake of law doesn’t necessarily mean the suspect goes free.The justices ruled 8-1 that a North Carolina police officer made a “reasonable” error when he stopped a driver on the basis of one busted brake light — which, as it turned out, isn’t illegal under state law as long as the other light is working. The traffic stop turned up a sandwich bag containing cocaine and resulted in a drug-trafficking conviction. Retired Santa Clara California Superior Court Judge Eugene Hyman said “the court is saying that this is a mistake of fact not a mistake of law” and upheld the lower court rulings.

Facebook Death Threat Case: What Will the Supreme Court Do?

December 3, 2014 Uncategorized No Comments

The U.S. Supreme Court is considering a ground-breaking case about threats made on Facebook by Anthony Elonis. The issue is whether death threats posted on the social media are protected free speech under the First Amendment. Judge Eugene Hyman discusses the case and the issues facing the Supreme Court.

Judge Hyman

As Judge Hyman points out, there first must be someone who feels threatened—the subjective part of the matter. Then there must be an objective part: is it reasonable that someone could have felt threatened? If these tests are met, there is a criminal threat case, which is what a jury found in this case. Another possibility in cases like these is a finding of attempted criminal threat, which the jury did not need to consider. The offense of attempted criminal threat requires a specific intent, which was not required in this case.

The government’s position has been that “a threat is a threat.” In this case, Elonis has argued that he didn’t mean what he said. Judge Hyman points out that, in most states, the law does not require that a defendant must have been able to carry out the threat in order for there to be a conviction, but only that the defendant meant what was said. The other thing, notes Judge Hyman, is that Elonis has tried to draw an analogy to comments made by rap stars, comments that are not criminal. This position did not prevail at trial.

Judge Hyman opines that the Supreme Court will sustain the conviction and will find that punishing threats like theses does not run afoul of the Constitution.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network. The Legal Broadcast Network is a featured network of the Sequence Media Group.

The Ferguson Grand Jury and How Grand Juries Work

December 3, 2014 Uncategorized No Comments

Grand juries play an important role in the criminal process, but they do not determine guilt or innocence. Rather, the grand jury’s role is to decide, with assistance by and guidance from a prosecuting attorney, whether a suspect should be charged with a crime. In St. Louis County, Missouri, a grand jury recently decided not to indict Officer Darren Wilson for the fatal shooting of Michael Brown. Retired Judge Eugene Hyman discusses the case.

Judge Hyman

Judge Hyman explains that criminal cases can usually proceed one of two ways: The first way is that, following an arrest, a prosecuting attorney can issue a criminal complaint against the suspect. If the crime is a felony, a probable cause, or preliminary, hearing must be afforded the defendant. The prosecution must call witnesses to show probable cause that a crime was committed, and the defense attorney may cross-examine. The standard is not “beyond a reasonable doubt.”

The other procedure—the only procedure in some jurisdictions—is for a grand jury, selected from the community, to determine if there is probable cause. Under the grand jury procedure, the prosecuting attorney is in charge, presenting as much evidence as the state believes is needed and instructing the grand jury on the law. The grand jury may ask questions of witnesses, but there are no defense attorneys present to cross-examine the witnesses, typically police officers.

Judge Hyman points out that, if a grand jury refuses to indict a defendant—to issue a “true bill”—there is no appeal. That is the end of the process. If a grand jury does indict, however, the defense has some options to challenge the procedure before the case goes to trial. Also, Judge Hyman notes, the fact that a particular grand jury refuses to indict does not preclude the prosecuting attorney from trying again with a new grand jury or from having the suspect arrested and issuing a criminal complaint. Judge Hyman suggests that nothing further will be attempted in the Ferguson case.

In the Darren Wilson case, several things were unusual. First, it is unusual for a grand jury not to indict a suspect. Also, the proceedings in this case went on for months, and that is unusual. Sometimes, Judge Hyman says, grand juries don’t precisely understand their role and look for guilt beyond a reasonable doubt. This case was also unusual, Judge Hyman suggests, because all the evidence was later released to the public, something that is not done in a typical case.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network. The Legal Broadcast Network is a featured network of the Sequence Media Group.

Domestic Violence—Can Abusers Really Reform?

September 23, 2014 Uncategorized No Comments

The video of Ray Rice assaulting the woman who is now his wife has received a lot of attention. It raises the question whether someone like this can be treated and reform so as to have a happy, normal relationship. Retired Judge Eugene Hyman discusses the matter, which is also the subject of a recent Wall Street Journal article.

Judge Hyman

Some offenders need multiple treatment regimens in order to change their behavior. Others never succeed. Judge Hyman believes that the studies showing favorable outcomes in treating people with abusive behavior need to be taken with a grain of salt. “Give me a substance abuser anytime. That person is much easier to treat.” Judge Hyman’s experience suggests that people prone to domestic violence are much harder to treat successfully.

The studies cited in the Wall Street Journal article are based upon people who successfully complete a program. The problem, says Judge Hyman, is that people who enter these domestic violence treatment programs often don’t complete them. Those people are reoffending at a high rate.

The problem seems to be to get people to complete these programs. Judge Hyman says that completion must be court-ordered if there is to be any realistic hope of success. There also needs to be follow-up, the judge says. The problem will surely not go away. The NFL is now struggling to get on top of it, as is the NBA. Domestic violence in the NFL is the subject of another Legal Broadcast Network report.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network. The Legal Broadcast Network is a featured network of the Sequence Media Group.

Arrest Records—They Can Last a Lifetime

August 23, 2014 Uncategorized No Comments

Americans are finding that arrest records can haunt them for their whole lives, even for arrests where no charges were filed. The problem is discussed in a recent Wall Street Journal article. Retired Judge Eugene Hyman discusses the problem in this report.

Judge Hyman

Statistics suggest that one out of three Americans has an arrest record of some kind. The problems can be very serious, especially if a prospective employer turns you down for a job because of a spurious arrest record and does not tell you why you were passed over. Judge Hyman says that is especially the case for job applicants who don’t even get an interview.

Another problem, says Judge Hyman, is that people will sometimes run record checks through one of several websites that offer the service. This can especially be a problem if a state law does not permit a record check for the kind of job someone is applying for, where there is no sensitivity to the job. About 25% of the records are inaccurate, so that merely aggravates the problem.

Judge Hyman points out that errors occur because human beings are in charge of preparing and handling the records. Also, he says, people who complete their probation often assume that their records are sealed and will not be discovered. But in a number of states, affirmative action is required to get a conviction expunged from a person’s record.

Mug shot websites are another problem. These sites can hurt people with inaccurate information. Judge Hyman opines that such a site might be liable to a class action lawsuit.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network. The Legal Broadcast Network is a featured network of the Sequence Media Group.

Cyberbullying—Albany County, NY Law Appealed

August 13, 2014 Uncategorized No Comments

Cyberbullying—Albany County, NY Law Appealed from Sequence Media on Vimeo.

Albany County, New York enacted a “cyberbullying” law, under which a juvenile was convicted. He entered a guilty plea, reserving the right to appeal. As this report was produced, the case was pending before the New York Court of Appeals. Retired Judge Eugene Hyman discusses the case and the issues involved.
Judge Hyman points out that the law is similar to a California law banning what a reasonable person would deem a threat and have fear for personal safety. Judge Hyman notes that the California law has been held constitutional and suggests that this could be a guideline for drafting cyberbullying laws. Annoyance or harassment may not be conduct that can be forbidden.
The defendant in this case was charged under county law, as New York has no statute on the subject that would have preempted a county law. The defendant here, a juvenile at the time, created a Facebook page on which he posted offensive material about other teen-agers.
Judge Hyman opines that the NY Court of Appeals could hold that the county statute was overly broad for several reasons. Subsequent to this report, on July 1, 2014, the NY Court of Appeals overturned the law, holding that the statute was overly broad based on U.S. Supreme Court decisions and that judicially rewriting the law to make it acceptable would “[encroach] on the authority of the legislative body that crafted the provision.” People v. Marquan M., 2014 NY Slip Op 04881 (NY Ct. App. 7/1/14).
Since the decision of the Court of Appeals, the Albany County legislature has made another try at writing an acceptable cyberbullying law. As of December, 2013, more than half the states have laws against cyberbullying or cyberstalking.
Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network. The Legal Broadcast Network is a featured network of the Sequence Media Group.

No-Fly List A Constitutional Rights Violation?

August 13, 2014 Uncategorized No Comments

No-Fly List A Constitutional Rights Violation? from Sequence Media on Vimeo.

A federal district court judge ruled on June 24 that the use of the no-fly list by the federal government is a violation of constitutional rights. Retired judge Eugene Hyman discusses the ruling. The origin of the no-fly list dates back to 2003.

First, judge Hyman notes, the ruling is not binding on any other judge because it is only a trial court’s ruling. A different district in Oregon might follow it, or not. Because the list involves travel, it is purely a federal matter, so the only way a passenger can contest being “blacklisted” is in federal court. Prior to this particular case, judge Hyman notes, there was no testing of the list.

The list contains about 20,000 names at this time. Before this case, there was no recourse for a passenger who was on the list and was barred from boarding flights. Every review is “on a case-by-case basis.” As judge Hyman notes, the Supreme Court does not have to accept cases, and unless there are appeals from district court decisions, there will never be a definitive ruling on the review of blacklisting. Judge Hyman points out that the no-fly list even includes U.S. military personnel.

Note: About a month after the Oregon decision that is the subject of this report, were made public by an online magazine and were the subject of a story in the New York Times.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network. The Legal Broadcast Network is a featured network of the Sequence Media Group.

Ninth Circuit Extends Batson to Sexual Orientation

August 13, 2014 Uncategorized No Comments

Ninth Circuit Extends Batson to Sexual Orientation from Sequence Media on Vimeo.

The Ninth Circuit Court of Appeals has recently extended Batson v. Kentucky, which forbade the striking of jurors for racial reasons, to include striking prospective jurors because of their sexual orientation. In Smithkline Beecham Corp. v. Abbott Laboratories, a panel of the court held that prospective jurors could no longer be struck on account of their sexual orientation. The full court recently declined to review the ruling. The Batson ruling has been expanded to include jury strikes because of gender.

Former judge Eugene Hyman comments on the decision, noting that the decision in this case will apply throughout the courts in the Ninth Circuit, the largest of the federal circuits. Judge Hyman does not believe that the losing party will seek certiorari in this case. This case is very important because it extends constitutional rights to gays and lesbians for the first time. This could conceivably extend to marriage cases.

Judge Hyman notes that California already had this level of constitutional protection (from the case of People v. Garcia). However, most states have not taken this step. Judge Garcia opines that conservatives “are concerned that this is going to heighten these kinds of reviews.” The concern is that courts are legislating by decision rather than letting state legislatures consider this issue.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network. The Legal Broadcast Network is a featured network of the Sequence Media Group.

The Scarlet Letter and Other Roadblocks to Redemption for Female Offenders

July 1, 2014 Uncategorized No Comments

 

Does redemption exist in today’s criminal justice system? Conceptually, redemption stems from the Judeo-Christian belief that forgiveness shall be given for past misdeeds or sins.  In the context of law—once one has atoned for their sins,  misdeed, paid their debt to society, served time, moreover, has turned the corner and is living crime free—is a crime ever really forgiven, much less forgotten?

Read more at the Santa Clara Law Review