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Should Witness ‘Flipping’ Be Illegal? — via Timothy T. Brock

FindLaw Blotter - The FindLaw Crime and Criminals Blog

 

Should Witness ‘Flipping’ Be Illegal?

Even if you’re not a criminal defense attorney, watching a couple episodes of “Law and Order” will probably introduce you to the concept of police and prosecutors going after “small fish” in order to get the “big fish,” criminally speaking. This process involves lower level suspects or defendants exchanging testimony against higher level targets for lighter sentences or immunity.

The practice of flipping has become especially prominent in the investigation headed Robert Mueller looking into possible collusion between Russia and the Donald Trump presidential campaign. In fact, in the wake of news that Trump longtime lawyer and “fixer” Michael Cohen would be cooperating with federal prosecutors, the president decried the practice of witness flipping, claimed it encourages criminal defendants to unfairly “make up stories,” and asserted that “it almost ought to be illegal.”

Flipping may have its issues, but should it be outlawed?

The Force of Flipping

Much of the incentive to cooperate with law enforcement comes from the amount of power and discretion prosecutors have in determining both criminal charges and the possible sentences for convictions or guilty pleas. As criminal defense attorney Ken White pointed out at the Washington Post, “Federal prosecutors could flip Cohen because they had broad discretion to charge him with dozens of crimes or none; they alone decided how sweet a deal to offer and how ugly the alternative was.”

When faced with myriad possible criminal charges and years or decades behind bars (not to mention days and nights in jail until their case is resolved), defendants often feel they have little option but to give prosecutors any information they can, even if that information isn’t always accurate.

It doesn’t help that many of those targeted for flipping lack the financial resources to mount an adequate defense, and public defenders, too, are often underfunded and overworked. The choice of whether to flip or stay quiet and fight criminal charges is, more often than not, no choice at all.

Running on Flipping and Reform

“The criminal justice system,” White asserts, “runs on flipping defendants. If we want fairness for both the cooperating defendants and the people they implicate — if we want faith in the results — we need serious reform.”

Reform will almost certainly not include President Trump’s suggestion that flipping be outlawed, better funding for criminal defense and more transparency and consistency in charging and sentencing can be positive steps to, if not eliminating flipping, ensuring fairness for both those offering evidence against other criminal targets and those against whom that evidence will be used.

Related Resources:

via Should Witness ‘Flipping’ Be Illegal? — timothytbrock

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Inspirational Quote of the Day

Wikipedia Pericles (/ˈpɛrɪkliːz/; Greek: Περικλῆς Periklēs, pronounced [pe.ri.klɛ̂ːs] in Classical Attic; c. 495 – 429 BC) was a prominent and influential Greek statesman, orator and general of Athens during the Golden Age—specifically the time between the Persian and Peloponnesian wars. He was descended, through his mother, from the powerful and historically influential Alcmaeonid family. Pericles […]

via Inspirational Quote of the Day: Pericles on the Secret to Happiness — saboteur365

Moira Grigor – How the Legal Profession Can Make a Difference in the Community

Moira Grigor

Moira Grigor is a talented lawyer who has several years’ experience in legal matters. She holds a Master’s Degree in Criminal Law and Criminal Justice from Birmingham Law School, University of Birmingham. After graduating from law school, she worked at one of the most prestigious law firms in the city. Moira Grigor is the founder of MG Law Firm and together with her associates regularly help in community-related events. If you are in the legal profession, you might want to use these tips to make a difference in the local community.

Moira Grigor Moira Grigor

Host a Charity Event

There are several ways you can boost your presence as a legal professional in your local community. Most communities regularly organise fundraising events to raise up much-needed funds to support a project, and as a lawyer you can play and integral part in raising funds for the community. Working with a local community…

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32 of lawyers’ most common fears

Does your law practice make you fearful? You are not alone, according to John Lande, an emeritus professor of law at the University of Missouri. Some of lawyers’ most common fears include: Featured imageconflicto-de-intereses4-250x306

• Feeling that their offices or cases are out of control.

• Changing familiar procedures.

• Looking foolish by asking certain questions.

• Candidly expressing their thoughts and feelings.

• Giving clients “bad news.”

• Being intimidated by superiors in their firm.

• Asking for favors from their counterparts in a case or being asked for favors by their counterparts.

• Seeming “too nice.”

• Being blamed.

• Speaking in public.

• Lacking skill and confidence due to limited trial experience.

• Clients giving false testimony.

• Failing to locate “the smoking gun.”

• Harming their clients’ interests.

• Being attacked or outsmarted by counterparts.

• Being judged unfairly by potential or actual jurors.

• Being intimidated by judges.

• Suffering reprisals from judicial disqualification motions or reporting judicial misconduct.

• Suffering “the pain, humiliation and shame of defeat.”

NEGOTIATION NERVES

It’s not just litigation that can induce fear; negotiation does too. According to John Lande’s research, these are some of lawyers’ top fears about negotiation:

• Insecurity about their negotiation skills or preparation.

• Asking questions.

• Being questioned aggressively by their counterparts.

• Looking foolish.

• Silence.

• Appearing weak.

• Being dominated or exploited by their counterparts.

• Disclosing information that may harm their clients’ position.

• Making tactical errors.

• Incorrectly valuing cases.

• Failing to anticipate possible problems.

• Failing to reach an agreement.

• Not getting a good enough result for clients.

Related article:

ABA Journal: “How lawyers can turn fear into an ally”

via abajournal.com

Judicial Training Updates

TRAINING UPDATE 11-11 via: Hon. Alan F. Pendleton, Anoka County District Court, Anoka, Mn 55303; 763-422-7309

QUESTION: What Are the Most Common Judicial Triggers for Appeals and Remands? Do you ever wonder what your colleagues around the state are doing (or not doing) that tend to statistically trigger appeals and remands? Regardless of merit, certain judicial actions carry a high probability of triggering an appeal, a remand, or both. For Example:

The Most Common Judicial Appeal Triggers Broken Down Into Two Categories: AFFIRMATIVE JUDICIAL ACTS: 2 PRIMARY TRIGGERS:

1) SUMMARY JUDGMENT: Making findings of fact on disputed material issues on Summary Judgment. This also includes resolving credibility questions, drawing inferences, and assessing the weight of the evidence. These are all matters for the trier of fact and should not be addressed by the Court on Summary Judgment. See M.R.Civ.P. 56;

2) PLEA NEGOTIATIONS: Excessive Involvement In Criminal Plea Negotiations. a) Appellate courts recognize that judges have a delicate role in plea negotiations and necessarily play a part in any negotiated guilty plea. However, there are two basic guidelines that control the extent of Court involvement: i) The Court’s role in plea negotiations is not to “usurp the responsibility of counsel or become excessively involved in plea negotiations.” Anytime the Court improperly injects itself into plea negotiations the guilty plea is per se invalid. ii) The Court may not offer or promise the defendant an anticipated sentence that is not part of an existing agreement between the defendant and the prosecutor. State v. Anyanwu, 681 N.W.2d 411 (Minn. App. 2004); State v. Melde, A09-1050, Minn.Ct.App. Feb 22, 201 MINNESOTA JUDICIAL TRAINING UPDATE APPEALS & REMANDS – 10 COMMON TRIGGERS June 9, 2011 TRAINING UPDATE 11-11 Hon. Alan F. Pendleton, Anoka County District Court, Anoka, Mn 55303; 763-422-7309 JUDICIAL OMISSIONS: 8 PRIMARY TRIGGERS:

3) MOTIONS AND ARGUMENTS: FAILURE TO ACKNOWLEDGE AND DECIDE ALL ISSUES RAISED IN MOTIONS AND ARGUMENTS. If you choose NOT to decide an issue you should, at a minimum, provide an explanation (even a brief one) as to why the matter is not being decided, or need not be decided (e.g., some other issue in the case is fully dispositive of the action). For example: a) State v. Jones, 772 N.W.2d 496, 508 (Minn. 2009) Noting that defendant’s application for counsel was denied, but there were neither findings nor any explanation on the record as to the “reasons for denying the application,” which made it “impossible to apply an abuse-of-discretion standard of review of the Court’s denial.” b) In re Estate of Eckley, 780 N.W.2d 407, 414-15 (Minn. App. 2010) Case remanded because Judge failed to consider specific arguments clearly made by the parties. c) State v. Stanke, 764 N.W.2d 824, 828 (Minn. 2009) Failure to address severe aggravating factors in sentencing ordinarily results in a remand to the District Court.

4) FAILURE TO MAKE SPECIFIC ESSENTIAL FINDINGS OF FACT: a) This problem recurs with the Austin factors in probation revocations, attorneys’ fees, juvenile and TPR cases, civil commitments, marriage dissolution and child custody matters.

5) FAILURE TO RESOLVE CREDIBILITY CONFLICTS IN EVIDENCE AFTER A TRIAL: a) Avoid “findings” that simply describe what the conflicting testimony was without resolving the conflict. b) The Court may make specific credibility findings (although these are not required), or it may simply indicate which version it found persuasive. No special wording is required as long as the Court can get beyond the descriptive and into the evaluative. June 9, 2011 TRAINING UPDATE 11-11 Hon. Alan F. Pendleton, Anoka County District Court, Anoka, Mn 55303; 763-422-7309

6) LOTHENBACH TRIALS AND STIPULATED CRIMINAL COURT TRIALS: Failure to obtain Defendant’s personal waiver of the right to a jury trial and all other trial rights under Minn. R. Crim. P. 26.01, subds. 3 and 4.

7) CRIMINAL TRIALS IN GENERAL: Failure to obtain Defendant’s personal waiver of jury trial (for court trials), the right to counsel (for pro-se defendants), and the right not to testify (for any trial where defendant decides to testify).

8) RULE 15 GUILTY-PLEA ADVISORY: Failure to follow the requirements of guiltyplea advisories under Rule 15.01 (felonies and gross misdemeanors) and Rule 15.02 (misdemeanors).

9) SPREIGL (Bad Acts) AND JONES (Impeachment) FACTORS – FINDINGS: Failure to make specific “findings” to support your ruling. Although there is no absolute requirement that specific “findings” be made on these issues, at least some disclosure that the court has considered and weighed the components of those issues would help obviate appeals. However, making specific “findings” is recommended as a Judicial Best Practice.

10) SENTENCING: Failure to be specific at sentencing and, in the judgment of conviction, as to the disposition of counts in which no sentence is imposed. NOTE: Paying particular attention to the 10 Judicial Triggers identified above could substantially reduce the risk of appeal or remand in your cases. Although avoiding these 10 Judicial Triggers are ultimately the responsibility of the trial judge, you are encouraged to enlist the aid of competent counsel in ensuring that “all bases are covered.” SOURCE: This update is based on and contains excerpts from an article written by Justice Gordon Shumaker, Minnesota Court of Appeals, entitled: “Appeal-Triggers and Remand Issues: A List

via: Hon. Alan F. Pendleton, Anoka County District Court, Anoka, Mn 55303; 763-422-7309

View PDF: https://blogpendleton.files.wordpress.com/2014/06/pendleton11-11-appeals_and_remands.pdf

How Judges can Avoid Decision Fatigue – RELY ON AND LEARN FROM YOUR IN-COURT CLERKS

June 25, 2015 MINNESOTA Update 15-12 Hon. Alan F. Pendleton, Anoka County District Court, Anoka, Mn 55303; 763-422-7309. How to Avoid Decision Fatigue

THE PROBLEM: In a perfect world judges make decisions by applying legal analysis to the facts of a case in a rational, fair and deliberate manner. But in the real world, we know that judges and judicial decision-making, despite their best efforts, are often subject to the same foibles, biases and imperfections that affect everything humans do. We would love to believe that a judge’s rulings are solely based on rational decisions and written laws. In reality, they can be influenced by a variety of non-relevant factors that may be so subtle that they go mostly unnoticed by attorneys, the parties and most importantly, judges themselves. In order to keep this update short and concise, these non-relevant factors are broken down into two main categories: 1) IMPLICIT BIAS; and 2) DECISION FATIGUE.

1) IMPLICIT BIAS & The Committee for Equality and Justice (CEJ): Explicit Bias: The problems of overt discrimination have received enormous attention from lawyers, judges, academics, and policymakers. While explicit sexism, racism, and other forms of bias persist, they have become less prominent and public over the past century. However, explicit bias and overt discrimination are only part of the problem – What about “implicit bias”? Implicit Bias: An implicit bias is a positive or negative attitude toward a person or group of people that a person holds at an unconscious level. An implicit bias is formed by a person’s individual developmental history, life experiences, and culture causing it to be so ingrained in a person’s personality that he or she is unaware of its existence. Over the past decade, researchers have provided convincing evidence that implicit biases exist, are pervasive, are large in magnitude, and have real-world effects. Since fairness and unbiased decisions are fundamental to the justice system, several studies and articles have been published that provide guidance and strategies to reduce implicit bias in the courts. Committee for Equality and Justice & “The Implicit Bias Bench Card”: Minnesota Judicial Counsel’s Committee for Equality and Justice (CEJ) is dedicated to eliminating all forms of bias in Minnesota’s judicial branch. The CEJ recognizes that detecting and eliminating implicit bias is difficult and there is no perfect tool to do so. Studies have shown that in order to combat the effects of our implicit biases, it is crucial to be aware that they exist and to actively question whether they are affecting our rationale. The CEJ offers the “Implicit Bias Bench Card” (see attachment) as a reminder that implicit bias exists in all of us and as a tool to help reduce its influence on our decision-making processes when possible. Please copy and distribute the attached bench card to anyone you think may have an interest. JUDICIAL TRAINING & EDUCATION UPDATE Prior training updates (103) can be accessed by clicking on: Judicial Training Blog JUDICIAL DECISION-MAKING Dangers of “Implicit Bias” & “Decision Fatigue” June 25, 2015 MINNESOTA Update 15-12 Hon. Alan F. Pendleton, Anoka County District Court, Anoka, Mn 55303; 763-422-7309

2) DECISION FATIGUE: In Judicial decision-making, decision fatigue refers to the deteriorating quality of decisions made by a judge, after a long session of decision-making. For instance, judges in court have been shown to make less favorable decisions later in the day than early in the day. Why? Judges, being human, were worn down by a day full of mental work. They had, as social psychologist Roy F. Baumeister states, fallen victim to decision fatigue. In other words, if judges don’t learn to manage their reservoir of mental energy, they won’t be able to manage their judicial decisions. That’s a lesson learned from a 2011 study on extraneous factors in judicial decisions, published in the “Proceedings of the National Academy of Sciences” (www.pnas.org/cgi/doi/10.1073/pnas.1018033108). Jonathan Levav of Columbia University and his colleagues analyzed 1,112 parole hearings for inmates of four Israeli prisons, made by eight experienced judges over a ten-month period. Prisoners who appeared early in the day or right after a food break received parole about 70% of the time, while those that came late in the day or long after scheduled food breaks or lunch had less than 10% chance at landing parole. This pattern is readily evident in the following 2011 graph published as part of the study. The graph is dramatic. It shows that the odds that prisoners will be successfully paroled start off fairly high at around 65% and quickly plummet to nothing over a few hours. After the judges have returned from their breaks, the odds abruptly climb back up to 65%, before resuming their downward slide. These rulings were made by eight Jewish-Israeli judges (two females), with an average of 22 years of judging behind them. Their verdicts represented 40% of all parole requests in the country during the ten months. Every day, each judge considered between 14 and 35 cases. They took two food breaks (a morning snack and lunch) that divided their day into three sessions. Judges had no control over the scheduling of cases. The study found that the three prisoners seen at the start of each “session” were more likely to be paroled than the three who are seen at the end. That was true regardless of the length of their sentence, or whether they had been incarcerated before. The following four findings are highly relevant for judges: 1. All repetitive decision-making tasks drain our mental resources. We start suffering from “choice overload” and we start opting for the easiest choice. For example, shoppers who have already made several decisions are more likely to go for the default offer, whether they’re buying a suit or a car. And when it comes to parole hearings, the default choice is to deny the prisoner’s request. The more decisions a judge has made, the more drained they are, and the more likely they are to make the default choice. Taking a break replenishes them

Judges, even experienced ones, are vulnerable to the same psychological biases as everyone else. They can deliver different rulings in similar cases, under the influence of something as trivial as a food break. Their training, their experience, and the weighty nature of their decisions do not insulate them from the sort of problems that plague our everyday mental abilities. The mental work of ruling on case after case can wear any judge down – even the best ones. This sort of decision fatigue routinely warps the judgment of everyone, executive and nonexecutive, rich and poor. Yet few people are even aware of it, and researchers are only beginning to understand why it happens and how to counteract it.  You can’t make decision after decision without paying a biological price. No matter how rational and high-minded you try to be, you can’t make decision after decision without paying a biological price. It’s different from ordinary physical fatigue — you’re not consciously aware of being tired — but you’re low on mental energy. The more choices you make throughout the day, the harder each one becomes for your brain, and eventually it looks for shortcuts, usually in one of two ways. a. One shortcut is to become reckless: to act impulsively instead of expending the energy to first think through the consequences. (Sure, tweet that photo! What could go wrong?); b. The other shortcut is the ultimate energy saver: do nothing or opt for the easiest choice. Instead of agonizing over decisions, avoid any choice or the more difficult choice. Ducking a decision often creates bigger problems in the long run, but for the moment, it eases the mental strain. You start to resist any change, any potentially risky move — like releasing a prisoner who might commit a crime. So the fatigued judge on a parole board takes the easy way out, and the prisoner keeps doing time. BEST JUDICIAL PRACTICE: One purpose for this update is to promote awareness of the increasing body of research that supports the view that all repetitive decision-making tasks drain our mental resources. Thus, when judges make repeated rulings, they show an increased tendency to rule in favor of the status quo (whatever that may be).  Research suggests that this tendency can be overcome by taking a break to eat a meal, or from other benefits derived from a short break, such as rest, physical movement and increased positive mood, all of which promote mental resource replenishment.  However, because none of these studies are definitive, perhaps the best judicial practice is for each individual judge to develop a sense of how much their decisions have fatigued them and to do whatever works best for them to bolster their mental energy supplies.

Read More: https://blogpendleton.files.wordpress.com/2015/06/judicial-training-update-15-12-implicit-bias-decision-fatigue.pdf

 

MINNESOTA JUDICIAL TRAINING & EDUCATION BLOG

NEWLY APPOINTED JUDGES – WHY THE RISK OF MISTAKES ARE HIGH: Judges have an incredibly difficult job. Most judges were appointed to the bench, in part, based on their training, experience and expertise in usually one or two areas of the law. Many judges come from a prosecution or criminal defense background with no significant civil experience. Many judges with a strong civil background have little or no criminal experience. And a large number of judges come onto the bench with no prior family law experience. And even those judges with a particularly broad background, few can boast of experience in areas such as: conciliation court, civil commitments, juvenile, probate, child support contempt and unlawful detainers, etc. This update answers the question why new judges should rely on and learn from their in-court clerks.

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PendletonUpdate14-14

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Oh noes! Fishy modeling study says ‘Fish and Chips’ to disappear in the UK

fishy-studyFig. 7.  First principal component (PC1) based on the main long-term data sets of small pelagics available in the Eastern Atlantic and Mediterranean between 1945 and 2010. The Atlantic Multidecadal Oscillation (AMO) is superimposed.

 

 

Watts Up With That?

Galleon_Fish_and_Chip_shop,_Conwy._-_geograph.org.uk_-_962443[1] The Galleon Fish and Chips Shop in Conwy, UK – soon to be doomed by climate change. Source: Wikimedia I get this daily newsletter from a paid political pot stirrer called “Climate Nexus”, which is actually a Madison Avenue PR firm. They write today of a new paper, Rutterford et al.:

fishy-studyThe punch line from Climate NEXUS:

From Fish and Chips to Just Chips: Some of the most traditional and cherished staples of the English diet may become scarce as a result of climate change, a new study finds. As North Sea waters continue to warm, haddock, the eponymous fish in “fish and chips,” is expected to decline, as well as plaice and lemon sole. Already, the North Sea has warmed four times faster than the global average over the past 40 years.

They claim (using a modeled fish abundance of course) that Atlantic Cod and other species…

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