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Category: Judicial Perspective

  • Opioid Task Force Calls for Judicial Training, Provides Resources

    Courts as Leaders in the Crisis of Addiction

    In November, the National Judicial Opioid Task Force released a wide-ranging report examining how courts can best address the ongoing opioid epidemic. The task force was created by the Conference of Chief Justices and the Conference of State Court Administrators.

    Among the task force recommendations was more training for judges and court staff on opioids, the impact of addiction on the brain, and evidence-based treatment for all substance use disorders. The recommendation in the report specifically states, “It is critical that judges understand the basics of addiction, treatment, and recovery and how to best understand and address addiction within the justice system, which currently stands as the primary referral source to get individuals to treatment.”

    To begin to address the educational need, the NJOTF, in partnership with the American Academy of Addiction Psychiatrists and the National Judicial College, assembled a cadre of expert judicial and medical trainers to provide specialized education for judges in every state and U.S. territory. In November 2019, the NJOTF offered a three-day training that featured top faculty and specialists from the judicial and medical communities. Participants included one state court judge from each state and territory, nominated by that jurisdiction’s chief justice. Participants sat in on expert presentations of the materials, and participated in discussions about the subject matter and effective adult learning techniques. Participants committed to making themselves available to serve as judicial faculty members in their own states and regions during 2020, as a way to deliver training on substance use disorders and reach judges in every state.

    NASJE was contracted through the task force to provide follow-up assistance to these judges and to provide a directory to its members of the faculty willing to teach on substance use disorder topics. That directory can be found in the Members Only section of the NASJE website.

    In addition to providing the specialized education for judges, other resources were developed by the NJOTF that are beneficial for judges and staff. The primary resource is the Opioid Resource Center for Courts found at https://www.ncsc.org/opioids. This is a comprehensive tool kit for courts and justice professionals to address the addiction crisis. The website provides publications, current best practices, policies, research, statistics and bench cards related to opioids in the courts.

    Another resource available for educators is the Opioid Response Network funded through a grant by the Substance Abuse and Mental Health Services Administration (SAMSHA). The network was created to provide education and training at a local level free of charge for specific needs. Requests for assistance can be submitted online.

    For more information regarding the NJOTF or its resources, please contact Lee Ann Barnhardt at lbarnhardt@ndcourts.gov.

  • The Role of Research in Judicial Education: Lessons from the Data Collaborative for Justice

    By Cecilia Low-Weiner, Research Analyst at the Data Collaborative for Justice and Ed Spillane, Presiding Judge of College Station Municipal Court, Texas

    With increasing public scrutiny and calls for reform throughout the criminal justice system, a judge’s role as an impartial, fair, and balanced arbiter of the law is more important than ever. Increasingly, the judiciary is asked not only to administer justice but also work with compassion to understand the communities in which they serve. With this powerful role in mind, a judge must strive to always learn new and improved ways of serving the court and the public through continued legal training. In recent years, judicial communities have embraced the need for increased training on the most pressing issues through emerging research.

    The Data Collaborative for Justice (DCJ) at John Jay College of Criminal Justice, funded by Arnold Ventures, seeks to provide practitioners and policymakers with empirical evidence to inform conversations around the criminal justice system’s response to lower-level offenses. In July 2018, the DCJ released a special issue of Criminal Justice Policy Review. This special issue covered topics ranging from police officer use of discretion to pretrial detention and court processing. While each of the articles provide important insights, there are four which are particularly relevant to judges and those that provide continuing education to the judiciary. This article focuses on those four papers and the lessons that can be learned, and shared, to improve the course of justice.

    Revenue Incentives from Fines and Fees
    Many state legislatures have created perverse incentives that run contrary to courts’ goals of proportionate punishment, fairness, and efficiency, by relying on fines and fees from misdemeanor convictions for revenue and State funding. Martin (2018) examined monetary sanctions in Nevada and Iowa, focusing on the differing motivations these two states have to collect fines and fees as well as differences in how the states allocate receipts from such funds. The author suggests that monetary sanctions are being used to generate revenue to the detriment of achieving punishment goals. While originally thought of as an inexpensive alternative to incarceration – good for both punishment and deterrence – monetary sanctions are now understood to have a high social cost that reduces fairness and equity within the system.

    Pretrial Detention and Readmissions
    Judges have a common goal of reducing unnecessary detention of defendants, through diversion programs and successful interventions. Kim et al. (2018) used a pretrial detention admission population in New York City between 2000 and 2002, and assessed their likelihood of pretrial readmission over a 10-year period. About 60 percent of the sample were readmitted at least once within 10 years, and on average, if readmitted, they were readmitted three times. Individuals admitted for property crimes and substance sale were more likely to be readmitted for pretrial, which suggest economic hardship as a possible factor of pretrial readmission. The authors also addressed the point that the likelihood of pretrial detention is higher for non-violent misdemeanor charges and emphasized the need to assess the personal, public safety, and fiscal costs for detaining those individuals pretrial. Focusing on diversion programs and alternatives to incarceration may be better investment to prevent future incarceration.

    Right to Counsel in Misdemeanor Prosecutions
    Two articles examined no-lawyer-courts and the failure to appoint counsel at a defendant’s first appearance and highlighted the detrimental effects of not having counsel present. Harvey et. al. (2018) found that the defendants’ constitutional right to counsel in misdemeanor prosecutions was frequently violated, leading to lengthy confinements, misguided plea bargains, invalid waivers, and unconstitutional sentences in no-lawyer courts in St. Louis. Worden et al. (2018) found that when indigent defense programs adopted measures to ensure that counsel was present at first appearance, judges adapted to the new practice in various ways: some increased their rate of releasing on recognizance, while others set lower bails in misdemeanor cases. Overall, as a result, defendants were less likely to be detained before disposition, and when they were detained, they were likely to be detained for briefer periods.

    Improving the Pace of Criminal Case Processing
    As frameworks for docket management and case processing penetrate judicial education, the question of how to improve efficiency while maintaining quality is at the forefront. Ostrom et al. (2018) finds that caseload composition (i.e. charge types) within misdemeanors and felonies follow similar patterns across courts. Additionally, consistent with the principle of proportional treatment, more serious cases resulted in longer time to disposition than less serious cases. Despite these consistencies, the total time to disposition was longer in some courts than in others.

    These findings suggest that achieving tighter time frames in courts with faster court processing times comes down to more efficient court practices. The author suggests that effective court management involves creating goals and expectations of time frames and outcomes, and clearly communicating and following up on these expectations to all parties. Further, this study suggests that time standards provide an effective framework for setting goals and expectations, while balancing issues of quality and timeliness.

    Note: Access to the articles requires a subscription. If you would like copies of the papers, please email mjp@jjay.cuny.edu.

  • Independence Corrupted: How America’s Judges Make Their Decisions

    By Charles Benjamin Schudson, Wisconsin Reserve Judge Emeritus

    Spoiler alert – here are the last words of my new book, Independence Corrupted / How America’s Judges Make Their Decisions (University of Wisconsin Press, 2018):

    Independence CorruptedJudges, so strong, so fragile; independence, so vital and threatened. “Life,” Justice Holmes wrote, “is painting a picture, not doing a sum.” I wonder about that. But judicial life? That, I know – reason and compassion … many sums, and paintings, too.

    Independence Corrupted (available at Amazon) goes behind the trial bench and even into appellate chambers to dissect judicial decision-making in actual cases I judged – for ten years, alone, as a trial judge; for twelve years, with colleagues, as an appellate judge. The cases are page-turners, fascinating courtroom conflicts involving abortion protesters, abused children, murderers, sex predators, civil rights, health insurance, the insanity defense, multi-million dollar punitive damages, and more.

    It is a “memoired treatise” intended to be equally valuable for lay readers, college and law students, and judges. It is about law, of course, but also about American constitutional history and evolving concepts of “independence” and “corruption.” And, perhaps most poignantly, it is about the dynamics of judicial decision-making. As Professor Aine Donovan, former director of the Dartmouth College Ethics Institute, wrote, it “shows the difficult and often wrenching decision-making process that every judge must endure.”

    Hopefully, it does so in a candid, respectful, sensitive, and scholarly manner that can be of significant value for America’s judges and judicial educators. Probing and exposing, it is painfully frank, and it explicitly considers judicial ethics codes and the ethical dilemma of offering such analysis.

    In three years of researching and writing, I found Independence Corrupted carrying me back to judicial education experiences – classroom encounters, as both student and teacher. I write about them and organizations including the National Council of Juvenile and Family Court Judges, the National Judicial College, the National Center for State Courts, and NASJE. I conclude one of my chapters with these words:

    During my more than thirty years of judicial service and teaching, I watched America’s judiciary change – from a dedicated but self-satisfied, lily-white group of good ol’ boys to a more diverse, enlightened, and sensitive assemblage. While some old problems persist, and while new ones emerge, America’s judges, now more than ever, constitute an enthusiastic student body, willing to question and ready to learn. Working with them has been among the most gratifying experiences of my life – a few bad apples, of course, but from Gala to Granny Smith, from Akane to Zestar, a delicious group.

    And the lengthy footnote (fair warning: one of 399 footnotes) to that paragraph concludes, “Such superb [judicial education] programs make a difference, challenging America’s judges, improving their practices, and truly transforming some of their most important understandings.”

    Writing this book, I had plenty of help – some of it from some of you. The pre-publication readers’ reactions to Independence Corrupted have been heartening; and the book has been nominated for the Chautauqua Prize, the ABA Silver Gavel Award, and the National Book Award.

    In 1829, Chief Justice John Marshall declared, “[T]he greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent judiciary.” Obviously, he wasn’t promoting my book but his words might do so now. Am I? You betcha – left on the shelves, it does no one any good; but in your hands, and taken to heart by our judges, it may join judicial educators in helping to protect America’s judiciaries against that “greatest scourge.”

    Charles SchudsonCharles Benjamin Schudson, a Wisconsin Reserve Judge Emeritus and long-time NASJE member, served as a state and federal prosecutor, a trial and appellate judge, and as an adjunct professor of law at Marquette University and the University of Wisconsin. For many years, he served on the faculties of the National Council of Juvenile and Family Court Judges and the National Judicial College. He has taught at countless judicial colleges and conferences throughout America, and in recent years, served as a Fulbright Fellow teaching at law schools abroad. He also co-authored On Trial / America’s Courts and Their Treatment of Sexually Abused Children (Beacon Press, 1989; 2d ed., 1991).

  • New professional development resource for judges

    Elements of Judicial EducationA new NCSC report, Elements of Judicial Excellence: A Framework to Support the Professional Development of State Trial Court Judges, is now available. It is a first-of-its-kind resource for judges, mentors, educators, and state court leaders who support and seek to enhance their state systems of judicial professional development.

    The report provides information about the general types of knowledge, skills, abilities, and other characteristics that judges themselves believe are important to judicial excellence, as well as recommended strategies to support professional growth.

    The Elements of Judicial Excellence framework is based on the views of Illinois state Circuit Court and associate judges as shared with project staff through over 100 hours of interviews, 24 hours of focus group discussions, and follow-up surveys with all participants.

    This project was supported with funding from the State Justice Institute and NCSC.

    The framework and complete project final report can be found at the NCSC website.

  • Judicial Forensic Science Education

    By Jennifer Wildeman, Education Projects Specialist, Arizona

    As technology plays an increasingly significant role in our society, it has become commonplace in the courtroom. New technological practices and discoveries bring forensic science topics such as DNA, latent print examinations, and digital evidence to the forefront of our court system. With technology playing a greater and greater role in resolving cases, it became obvious to Arizona judicial educators that many judges lack the educational background needed for a sufficient understanding of the scientific principles behind the forensic evidence they see in court.

    Similarly, the majority of scientists lack an adequate understanding of the legal tenets that guide our criminal justice system and have difficulty presenting scientific information to judges. In short, “lawyers do not understand science, and scientists do not understand the law” (Chezem in Dawson, 2016). As such, the Arizona Judicial Education Services Division identified a need to address judges’ knowledge gap in the area of forensic science. Guided by the strategic agenda set forth by Arizona Chief Justice Scott Bales, judicial educators developed a multi-faceted plan for crafting a judicial forensic science education program.

    First, judicial educators organized a workgroup composed of judges, scientists, and attorneys who worked together to identify ways that forensic science education could be delivered to Arizona judges. Working with the Arizona Supreme Court AOC Education Services Division, this workgroup identified three educational approaches: a multi-day conference focused specifically on forensic science topics, the addition of forensic science sessions in the training program for all new Arizona judges, and the creation of a forensic science resource webpage that judges can refer to on an as-needed basis.
    The workgroup focused initially on the forensic science conference.

    To identify topics of greatest need among our judiciary, the workgroup conducted a statewide needs assessment. The results obtained from the assessment served as a guide in creating an agenda that included topics such as: forensic biology and DNA, latent print examinations, ballistic comparisons, toxicology, and the role of judge as gatekeeper. At the conference, both local and national experts addressed these topics. For example, a law school professor provided the background for the topic of forensic science in general, a scientist from the National Institute of Standards and Technology (NIST) spoke to the future of forensic sciences, and local law enforcement and crime lab personnel addressed issues local to the state of Arizona.

    Over one-quarter of Arizona judges attended the inaugural judicial forensic science conference. Education Services received overwhelmingly positive feedback. Evaluation comments such as “good legal information…useful and practical” and “interesting and informative” indicate that participants found the topics to be relevant and useful for understanding evidence and testimony in the courtroom. In addition to positive evaluation comments, workgroup members received informal feedback suggesting that judges widely support future forensic science training opportunities.

    Next, the workgroup focused on including forensic science sessions during mandatory training programs for new judges. These sessions provide an overview of the forensic science challenges judges can expect to see in their courtrooms. In addition to providing in-class instruction, we partner with local forensic scientists to provide our judges with an on-site tour of our local crime laboratory, in order to give judges the opportunity to see first-hand what a crime lab looks like, learn about the capabilities of the lab itself, and speak with the scientists who work there.

    During the crime lab tour, judges hear presentations from several different units of the lab, including: crime scene response, forensic biology/DNA, firearms examination, controlled substances, toxicology, and latent print examinations. The tour offers a unique opportunity for experiential learning, since the judges not only view demonstrations, but actually use some of the laboratory equipment themselves. The judges enjoy having the chance to see the lab and speak with scientists. Following our first crime lab tour, one judge commented “I am so grateful for this tour. I think it is a valuable addition to new judge orientation.” Overall, the tour has proven to be a successful way to provide another opportunity for our judges to learn about forensic science.

    Finally, the workgroup tackled the creation of a forensic science reference webpage. The group wanted judges to have access to a single repository of forensic science information including articles, websites, legal opinions, and reports. Given that the field of forensic science is rapidly changing, the group urged the creation of a dynamic webpage that can be updated on a continual basis, instead of a static bench book updated only periodically. The webpage is currently under construction and will be managed by an AOC Education Services staff member, who will work closely with judges to maintain current information and update the webpage as needed.

    While challenges to providing effective judicial forensic science education still exist, this multi-faceted approach provides a foundation for future training opportunities. Utilizing a variety of training methods ensures that judges throughout the state have access to information on these important topics in a timely manner. This combination of in-person and online training provides flexibility to adapt as scientific understanding changes over time.

    REFERENCES
    Dawson, Jim. “Forensic Science: A Time of Transformation.” National Institute of Justice. Issue Number 277. September 2016. https://www.nij.gov/journals/277/pages/forensics.aspx (February 1, 2017).

    Jennifer WildemanJennifer Wildeman has been with the Arizona Supreme Court’s Education Services Division since 2014.  She has worked with Arizona courts since 2007, and has been a NASJE member since 2015. As an Education Projects Specialist, Jennifer works closely with subject matter experts throughout Arizona to help develop timely and relevant trainings for judges and court staff throughout the state. In addition, Jennifer trains court staff on topics ranging from communication to legal authorities.

  • Nevada’s Judicial Outreach in Action

    By David Gordon

    Nevada Chief Justice Michael Cherry, Justice Kristina Pickering, and Justice Mark Gibbons
    L to R: Nevada Chief Justice Michael Cherry, Justice Kristina Pickering, and Justice Mark Gibbons at Lincoln County High School in Panaca, Nevada

    Since 2003, at the urging of Justice Mark Gibbons, the Nevada Supreme Court has been hearing cases at high schools throughout the state. Panels, usually made up of three of the seven Justices, have traveled to a number of rural areas, conducting hearings that usually have a connection to that specific region, in an effort to allow the general population and students to see how the court functions.

    “I talked to my colleagues and said, ‘Wouldn’t it be great for high school students to see how courts work and explain how a Supreme Court is different than a Traffic Court?’,” Justice Gibbons said. “We figure it’s an encouragement to continue on with their education.

    The court is run in a different fashion than it would be in Carson City. The Justices have allowed each attorney to explain their side of the case to the audience before proceeding with their arguments. The Justices also explain how the court functions, the court’s purpose, how they reach a decision, and what they write in their opinions for each case. Justices may also mold their questions to the local area or students, in order to add relevance to the questioning.

    One high school government teacher told a local newspaper that she was excited to see the students actually able to process the curriculum first hand.

    Chief Justice Michael Cherry, Attorney Christopher Arabia, Justice Kristina Pickering, Justice Mark Gibbons, and Attorney John Friel
    L to R: Chief Justice Michael Cherry, Attorney Christopher Arabia, Justice Kristina Pickering, Justice Mark Gibbons, and Attorney John Friel at Tonopah High School in Tonopah, Nevada

    After a hearing at the Churchill County High School in Fallon, NV, the local paper ran an editorial stating, “This courtroom on wheels serves the citizens well by giving students and adults a better insight into the workings of the Nevada Supreme Court. We thank the justices for their contributions to the state and for enlightening our students and community on one aspect of the judicial system. Seeing a proceeding like this is definitely worth more than words in a textbook.”

    Chief Justice Michael Cherry said, “The Nevada Supreme Court holds arguments at Nevada high schools for several reasons: to bring the court process to high school students helping bring civics and constitutional processes to life to allow students to witness their court system in action, to humanize the judiciary and judges by sharing stories of personal experiences and general information on decision making, to provide an opportunity for interaction between legal professionals and students in an educational manner, and to make tangible studied concepts such as judicial impartiality.”

  • FEATURE: Juvenile Justice Model Courts Project Expands

    By Cheri Ely, M.A., LSW, Program Manager, NCJFCJ

    NCJFCJThe National Council of Juvenile and Family Court Judges (NCJFCJ) Juvenile Justice Model Courts Project, managed by the Juvenile and Family Law Department, has expanded the number of courts participating in the project to 12. Four of the recently added sites in the project (Pittsburgh, Pa., State of Minnesota; New Orleans, La.; and Memphis, Tenn.) are developing goals and addressing challenges to achieve the recommendations from the Juvenile Delinquency Guidelines: Improving Court Practice in Juvenile Delinquency Cases. Model courts are asked to select goals in accordance with the 16 Key Principles and various recommendations made in the Guidelines.

    Judge Tracy Flemings-Davillier

    The model court site in Pittsburgh, Pa., under the leadership of Judge Kim Clark, has completed its first full site visit and assessment and is in the process of completing its model court strategic plan. The model court has selected an overarching goal to treat all youth, families, victims, and witnesses with dignity and respect, and has also chosen additional goals targeting diversion programs for youth, timely decision making, and family/community engagement in the court process.

    Minnesota, the only statewide participant in the model courts project, is working on a statewide implementation of the recommendations from the Juvenile Delinquency Guidelines. The Minnesota JDG Statewide Initiative, led by the Juvenile Justice Coalition of Minnesota, held a one-day training in June 2011 for juvenile court judges and juvenile justice professionals from around the state. The training provided a thorough orientation to the Guidelines and model court practices, including how to use the model court self-assessment tools in local jurisdictions. The Initiative is now hard at work to complete the Minnesota Juvenile Delinquency Courts Guidebook. Law students from the University of Minnesota are assisting to transfer the information from NCJFCJ’s Juvenile Delinquency Guidelines into a manual specific to laws and practices in Minnesota for use by its juvenile courts.

    New Model Court sites in New Orleans, La., under the leadership of Judge Tracey Flemings-Davillier, and in Memphis, Tenn., under the leadership of Judge Curtis S. Person, have also completed their first full site visit and assessment and are moving into the strategic planning phase of the model court process.

    Judge Curtis S. Person

    Veteran model courts in the program are also continuing to move forward with their strategic plans. The model court in San Jose, Calif., under the leadership of Judge Patrick Tondreau, is implementing new practices to address youth in the court system who are both delinquent and dependent, and is working to engage parents and community support systems into juvenile cases. In 2011, the San Jose Model Court visited the model courts in Salt Lake City, Utah, and Tucson, Ariz., to learn about programs and practices in those jurisdictions that may help the San Jose Model Court accomplish its goals.

    The Reno, Nev., Model Court, under the leadership of Judges Frances Doherty and Janet Schmuck, is in its third year as a model court and continues to follow its model court strategic plan. The court is working to streamline practices to improve case flow and timely case processing and is reviewing its data capabilities to improve information sharing with system partners and stakeholders. The Reno Model Court has also prioritized training opportunities for its staff and juvenile justice professionals. Through private funding for scholarships, five participants were able to attend NCJFCJ’s National Conference on Juvenile and Family Law in March 2011.

    All sites in the Juvenile Justice Model Courts Project continue to embrace the model court philosophy of performing ongoing evaluation and system improvement. The project operates an active online discussion group for the model court sites to engage in networking and information sharing. New model court sites are encouraged to join the project anytime during the year.

    Want to Become a Model Court?
    Courts can contract with the NCJFCJ to become a Juvenile Justice Model Court site and receive individualized assessment, planning, training, technical assistance, and evaluation services as they seek to implement the principles and recommendations set forth in the Guidelines and work toward improved practice and outcomes. Each Model Court secures its own funding to underwrite the multi-year process. Funds may be public, private, local, state or federal. Although Model Courts can contract on a yearly basis, we encourage courts to remain involved in the project for at least three years in order to maximize system change/improvement. With multi-year involvement, Model Courts repeat the planning and technical assistance process on an annual basis as court improvement goals are attained. As part of this effort, Model Courts are expected to be “laboratories for change,” meaning that they participate in an ongoing critical assessment of their performance and share their results with other sites in order to inform and sustain a larger system improvement effort.

    Juvenile Justice Model Court Project Focuses on JDG Principles
    The focus of the Juvenile Justice Model Court Project has been to disseminate the Juvenile Delinquency Guidelines and encourage its use by jurisdictions to help guide system reform and improve practice in delinquency cases. The model courts—with support from project staff in the form of training and technical assistance, and a commitment to using the Juvenile Delinquency Guidelines to improve practice from intake to case closure—are leaders in this important system reform effort.

    Active Juvenile Justice Model Courts include

    • Austin, Texas – Lead Judge W. Jeanne Meurer (Ret.)
    • Buffalo, New York – Lead Judge Paul Buchanan
    • Cincinnati, Ohio – new Lead Judge to be determined
    • Howell, Mich. – Lead Judge Carol Hackett Garagiola
    • Memphis, Tenn. – Lead Judge Curtis S. Person
    • Minnesota Statewide JDG Initiative – led by the Juvenile Justice Coalition of Minnesota
    • New Orleans, La. – Lead Judge Tracey Flemings-Davillier
    • Pittsburgh, Pa. – Lead Judge Kim Clark
    • Reno, Nev. – Co-Lead Judges Frances Doherty and Janet Schmuck
    • San Jose, Calif. – Lead Judge Patrick Tondreau
    • Scranton, Pa. – Lead Judge Chester Harhut
    • Tucson, Ariz. – Lead Judge Karen Adam

    Cheryl EliCheri M. Ely is a Licensed Social Worker whose duties at the National Council of Juvenile and Family Court Judges include management of the Delinquency Model Courts Project. She is responsible for the expenditure of funds and completion of deliverables for each model court site, manages the Juvenile Court Users’ Project, and assists courts with implementation of strategies to enhance the engagement of victims of juvenile offenders in the court system.

  • Vision from the Bench to Fulfill the ICWA Promise

    by Gina Jackson, Permanency Planning for Children Department (NCJFCJ)

    Memorial March
    Memorial March to honor native children lost to adoption in Sioux City Iowa

    Working together to provide safety, permanency, and well-being are high priority goals that child welfare systems strive to achieve.  It has been 33 years since the Indian Child Welfare Act (ICWA) was passed, and it is important to take the time to evaluate the impact on the child welfare system since that time. How are we doing as a Nation in following this important law, in spirit and practice?  Recently, there has been a surge in ICWA awareness due to the latest disproportionality reports and media coverage indicating that there is still a significant problem.

    In the preamble of ICWA, 25 U.S.C. §§ 1901, Congress acknowledged that:

    An alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by non-tribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and states, [in] exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities.

    While there has been progress since ICWA was passed, disproportionality rates continue to remain high. A review of the child welfare system data indicates that “across the United States, Native American children are overrepresented in foster care at a rate of 2.2 times their rate in the general population” (Disproportionality Rates for Children of Color in Foster Care, published by the National Council of Juvenile and Family Court Judges, May 2011). It is clear that many, many states continue to struggle with this issue, as 26% of states have a disproportionality index higher than 4.1., including one state that has an index rate of 11.6, which ultimately means that Native children come into foster care 11 times more often in that particular state. To download a complete copy of Disproportionality Rates for Children of Color in Foster Care, visit www.NCJFCJ.org.

    Disproportionality
    Disproportionality Rates for Children of Color in Foster Care

    It is time for leadership and vision from the bench to fulfill the ICWA promise. Since no child enters or leaves the child welfare system without a judge’s order, it is imperative for judges to not only have a solid working knowledge of the Indian Child Welfare Act, but an understanding of why we have the Indian Child Welfare Act. It is extremely important to learn from the past in order to build a very different future in working with Native children, families, and tribes.

    The approach to tribal engagement and working with tribes should come from a place of honor, respect, and mutual learning.  During the 2010 White House Tribal Nations Conference, President Obama shared this statement:

    We know that, ultimately, this is not just a matter of legislation, not just a matter of policy. It’s a matter of whether we’re going to live up to our basic values. It’s a matter of upholding an ideal that has always defined who we are as Americans…and I’m confident that if we keep up our efforts, that if we continue to work together…we will achieve a brighter future for the First Americans and for all Americans.

    It was during this conference, the U.S. announced it will sign the United Nations Declaration on the Rights of Indigenous Peoples. While the Obama Administration was meeting with tribal leaders, the National Council of Juvenile and Family Court Judges (NCJFCJ) brought together a group of Tribal Judicial Leaders and other Model Court Lead Judges for an unprecedented gathering. The purpose of this gathering was to listen, gain insight, and ultimately seek guidance through a tribal perspective on effective outreach and inclusion of tribal courts in NCJFCJ’s work.

    In the NCJFCJ’s governance structure, the organization has committed to weave diversity through everything the organization does. As a result of the first gathering, resolutions were developed and passed, including the NCJFCJ’s Resolution in Support of Tribal Courts.  This resolution acknowledges Tribal Courts as “equal and parallel systems of justice”.  The Conference of Chief Justices also passed a resolution in response to the gathering to “encourage greater collaboration between state courts and tribal courts to protect Native American children.” These resolutions reflect a commitment and call to action for state and tribal courts to work together as allies for children and families. Full texts of the resolutions can be found on the NCJFCJ Website.

    Tribal Judicial Leadership Group
    NCJFCJ Tribal Judicial Leadership Gathering 2010

    The energy, ideas, and relationships developed in this group are remarkable. New state court and tribal court collaboratives are emerging. New state/tribal judicially focused ICWA workgroups are forming, integration of tribal judicial presence on state Court Improvement Program advisory groups is increasing, and cross-site court visits between tribal courts and state courts are occurring for mutual learning.

    New ideas for pilot projects such as joint jurisdiction tribal/state courts are being discussed, as well as ideas for utilizing technology to better serve children and families. New judicial tools to improve ICWA performance are currently under development. Judges can make a difference by exercising their leadership and forming collaborative groups to strategically increase ICWA compliance on a local level and by working closely with State Supreme Court Improvement Programs to ultimately make an impact statewide. The following are just some of the things judges can do to provide judicial leadership to improve ICWA performance:

    1. Commit to a vision of 100% ICWA compliance with child welfare system stakeholders, involving tribes working collaboratively to begin a strategic plan of action.
    2. Ensure judicial officers and system stakeholders are effectively trained on historical trauma and institutional bias, as well as the spirit and context of the legislation.
    3. Engage tribes by developing authentic relationships, judge to judge, court to court, and system to system to solve issues.
    4. Invite tribes to participate on current teams, workgroups, projects, initiatives, training opportunities, and as valued partners.

    As judicial educators and judicial leaders, you have an opportunity to bring knowledge, awareness, and to inspire a vision for judicial leaders to fulfill the ICWA promise. This will have a transforming effect on so many lives, not only for the children and families before the court, but for generations to come.

    For more information or to receive resources, tools, and technical assistance, visit the following Websites:

    ABOUT THE AUTHOR
    Gina Jackson, MSW, is a Model Court Liaison for the Victims Act Model Court Project with the Permanency Planning for Children Department of the National Council of Juvenile and Family Court Judges working with several jurisdictions across the country. Ms. Jackson belongs to the Temoke Western Shoshone Tribe. She holds a Masters and Baccalaureate degree in Social Work from the University of Nevada, Reno, with a minor in Early Childhood.

    Ms. Jackson came to the National Council of Juvenile and Family Court Judges from the University of Nevada, Reno School of Social Work, Nevada Training Partnership. She worked as a curriculum developer and statewide child welfare trainer during Nevada’s Program Improvement Plan (PIP) process. She also has experience as a child welfare caseworker and has done investigations, case management, adoptions and foster care licensing. She has been an instructor for the University of Nevada, Reno School of Social Work on and off for the past decade.

    As a Model Court Liaison, Ms. Jackson hopes help improve the outcomes for abused and neglected children and their families across the country in implementing and sustaining systems change and best practices while being mindful of cultural differences and equity in treatment as a standard in our nation’s child welfare system.

  • Stopping the Revolving Door of the Justice Systems: Ten Principles for Sentencing of People With FASD

    by Anthony P. Wartnik, Judge (Retired)

    There are people in your courts who deserve special attention. Some have committed crimes they didn’t understand and some have been convicted of crimes for which they are not fully culpable and both are doomed to getting caught in the juvenile and or adult criminal justice revolving door unless we recommend and or do things differently. They may have Fetal Alcohol Spectrum Disorder (FASD) and need special attention and special approaches to sentencing in order to avoid being continually caught in the revolving door. This paper identifies and discusses ten principles for the sentencing of people with FASD. These ten principles of sentencing for people with FASD were developed through the joint effort of Dr. Ann Streissguth, recently retired as the Director of the Fetal Alcohol Drug Unit (FADU) of the University of Washington School of Medicine, Ms. Kay Kelly, Project Manager of the FASD Legal Issues Resource Center at FADU, Professor Eric Schnapper, University of Washington School of Law liaison to the FADU, and myself.

    The ten principles for sentencing people with FASD were part of the Power Point presentation delivered by this author at the 2nd International Fetal Alcohol Spectrum Disorder Conference on March 10, 2007. The discussion that follows each principle is based on my experiences in dealing with juveniles and adults with FASD or suspected of having FASD during my nearly twenty-five year career as a judge of the King County Superior Court in Seattle Washington, and particularly from 1994 until my retirement in 2005. My reference point throughout the discussion that follows is the sentencing laws of the State of Washington for felonies, frequently referred to as the Sentencing Reform Act or SRA. I will, however, cite a limited amount of case law from other jurisdictions to support a basic legal principle that FASD can constitute mitigation in sentencing. It should be noted that the SRA is a system for determining the presumed sentencing range for each offender based on the seriousness of the crime for which he or she is being sentenced and that person’s prior felony criminal history. The sentencing judge is required to impose a sentence that is within the standard range unless there are substantial and compelling reasons to impose an exceptional sentence outside the range, either below or above it. The judge has much more discretion in sentencing for misdemeanor and gross misdemeanor criminal offenses since the SRA does not apply to this class of crimes.

    The fact that a person has FASD may bear on sentencing in one or more of three ways. (1) The presence of FASD may reduce culpability for the criminal conduct. (2) The presence of FASD may require different measures to reduce the chances of recidivism. (3) The presence of FASD usually means significant difficulties functioning in adult society, problems which a particular sentence may either aggravate or alleviate.

    The first principle for sentencing of people with FASD is to consider whether the disability entails reduced culpability and thus warrants a less severe sentence. Assuming that there is statutory authority for the exercise of discretion or for sentencing outside a standard sentencing range, look at and consider matters that constitute mitigation. In Washington, our statute permits an exceptional (lower) sentence where the defendant’s capacity to appreciate the wrongfulness of his or her conduct, or to conform conduct to the requirements of the law, was significantly impaired. Either or both of these factors may be present when an offender has FASD. There is case law authority supporting the concept that FASD can constitute a basis for a finding of mitigation for sentencing purposes. See, Silva v. Woodford, 279 F.3rd 825 (9th Cir. 2002). See, also, State v. Brett, 126 Wn2d 868 (2001). Both of these cases dealt with ineffective assistance of counsel for not investigating or seeking a diagnosis of FASD for sentencing mitigation. See, also, the case of Castro v. Oklahoma, 71 F3rd 1502 (1995), which held that a criminal defendant was entitled to appointment of an expert to develop evidence regarding FASD provided that there was a substantial showing that his mental state was in dispute and was relevant to the outcome of the case, to either the guilt determination or to the sentence to be imposed.

    It must be kept in mind that individuals with FASD frequently do not fully grasp the standards of conduct reflected in the criminal law. For example, an individual with FASD would usually understand that it was wrong to steal from a store, but might not understand that it was wrong to temporarily take an acquaintance’s car without permission. Second, individuals with FASD at times engage in impulsive behavior, unable to resist the urge to do something they may grasp as wrong. Shoplifting items for personal use or for the use of a “friend” is among the offenses they commit most often. The lack of apparent predisposition to commit a crime, the participation by being induced by others, is also a mitigating circumstance in Washington. Individuals with FASD, often anxious to please others and unsophisticated about whether they are being used, can too easily be persuaded to engage in conduct, which they may or may not fully realize is criminal, by individuals with substantial criminal records and or substantial criminal sophistication.

    The second principle for sentencing is to avoid lengthy (or any) incarceration in favor of longer periods of supervision. Although community safety is of primary or significant concern in any sentencing, do not let it inappropriately control your better judgment. When you are uncomfortable due to concerns about whether leaving a defendant with FASD in the community presents a risk to the community, it is far too easy to use community safety considerations as a justification for incarceration rather than facing the issue head-on in relation to long-term consideration of what the risk to the community will be upon release of the defendant from incarceration. Lengthy incarceration usually does not contribute in any way to preventing further offenses by individuals with FASD; often times it may do the opposite. Remember that this offender normally doesn’t learn from prior experiences and is not able to apply them to new situations. The result may be that you are able to protect the community during the period of incarceration but the offender will be as or more dangerous upon release from custody due to an inability to learn from the incarceration experience and an inability to link the incarceration with the crime that gave rise to it.

    The prospect of a lengthy sentence (or of a longer sentence for a more serious crime) is unlikely to affect an individual with FASD. These individuals have only a limited grasp of cause and effect and have trouble planning for even a single day; they would usually be incapable of weighing the risk of a long prison term against the hoped for gain from a particular offense. Having served a long sentence may have no effect on future conduct. Individuals with FASD at times do not fully understand why they are (or were) in prison. Conversely, prolonged incarceration may severely harm the ability of an already disabled individual with FASD to function when he or she returns to society. Think of the emotional effect of putting a ten-year-old in an adult prison. Additionally, those disabled by FASD are often vulnerable to victimization, both physically and emotionally, by fellow inmates. An introduction of the defendant with FASD into an inmate population may result in continued destructive influences even after release from custody. The social arrangements that earlier assisted an individual with FASD to function in society (housing, jobs, etc.) are likely to disappear when they are incarcerated for an extended period.

    The third principle of sentencing is to use milder but targeted sanctions. Sanctions can work if they are sufficiently limited so as to be non-destructive, are used prospectively and are targeted at affecting very specific conduct. Generalized deterrence is unlikely to be effective because it is directed at a large and complex set of rules (“obey the law or you will go to prison”) which an individual with FASD does not fully understand; in any event, the connection is simply too abstract for an individual with FASD to grasp and understand. People with FASD tend to see things in concrete terms and respond better to concrete presentations. What may work is linking a particular sanction (say, ten hours of community service) to a very specific type of conduct the court wants to prevent (e.g.), getting drunk or shoplifting. These individuals can master the importance and meaning of a particular rule (or a few) tied to known sanctions. The best analogy might be to a rule that a six-year-old would be sent to his room any time he took his sibling’s toys. For such a system to work, the individual with FASD must be repeatedly reminded of the rule (and rule-sanction connection). Repetition is the key to effective learning for those with this disability. And, the sanction should focus on something that is of major significance (e.g.), a sanction for using drugs, but not a sanction for being late to an appointment.

    The fourth principle of sentencing is to impose, recommend or arrange for a longer term of supervision. Individuals with FASD have a life-long need for guidance from a non-disabled individual and for a variety of social services. These are not defendants who merely need to (or can) straighten their lives out, or who (as in the case of juvenile offenders) are going to mature with time. Supervision by a Department of Corrections (or other) probation official who understands FASD is of ongoing importance for as long as it can be arranged, both to avoid recidivism and to improve functioning. The court should attempt to impress the importance of this on both the prosecution (which may focus primarily on the amount of prison or jail time) and the defense (which usually seeks to have the defendant on the street and off supervision as soon as possible). The extended supervision sentence is one that, generally, neither side will ask for. It may be necessary to seek legislation that mandates longer periods of supervision for people with FASD just as legislatures have done in other problem areas such as with sex offenders, violent and persistent offenders, etc. Judges should be creative in finding ways to prolong Department of Corrections or other supervision, through the consent of the parties, by postponing final sentencing, or other means.

    The fifth principle of sentencing is to use the judge’s position of authority (stature) with the defendant. Individuals with FASD often have great respect for authority figures and are anxious to please. The particular authority and stature of a judge and the trappings of a courtroom (or chambers) can be important tools in shaping their behavior. Where practicable, a defendant with FASD should be asked (over and above any Department of Corrections supervision) to return on a regular basis to report to the judge on how he or she is doing. Positive behavior should be greeted with much praise and support (as we have already learned to do with defendants in the drug treatment court and mental health court settings). Recognition of success (certificates, tokens memorializing periods of sobriety, courtroom applause) may be helpful. This approach has certainly become part of the culture in drug treatment and mental health courts. Failures should be the occasion to review the sentencing plan, call together the interested agencies, implement other services, and discuss with the defendant and the sponsor or advocate the defendant’s plan for improvement.

    It may be possible to persuade the defendant, after formal supervision has ended, to continue to come to the courtroom or chambers on a regular basis to report to the judge. While that might have to be voluntary, and most defendants would have no interest, individuals with FASD might be pleased to continue their connection with the judge. I was a local district court judge from 1971 to 1980 where I handled misdemeanor and gross misdemeanor cases. The post-sentence case load was more than the local probation department could supervise effectively. I met anywhere from monthly to every 90 days with many of the people that I had ordered onto probation. This was one of the most enjoyable and satisfying parts of my judicial work. I also believe, based on the responses received from the probationers that they appreciated the personal effort taken by me as “my” judge.

    The sixth principle of sentencing is to obtain a sponsor or advocate for the defendant. Individuals with FASD need guidance and assistance from a non-disabled individual. Department of Corrections officials or probation officers will only be available for so long and can devote only a limited amount of time to any one probationer.

    Whenever possible, someone else should be found who will agree to help the defendant on an ongoing basis. This might be a family member (such as a responsible parent or sibling), a family friend, a relative, or someone in a local organization (e.g.), a church group, retired citizens group, etc.. Defense counsel or probation officials could be asked to look for someone who would function in this capacity. When found, this individual should be asked to come into court with the defendant to discuss his or her participation. Ideally, such a person would be found before sentencing, and at the hearing, would assure the court and the defendant of his or her willingness to play a supportive role.

    The seventh principle of sentencing is to create a structure in the defendant’s life. These individuals often lack the basic skills needed to organize a day. At best, needed tasks (shopping for, and preparing meals, getting to work, laundry, personal hygiene, etc.) may go undone; at worst the individual will drift into destructive conduct for want of any sense of how to better utilize his or her time. Structure could include linkage with vocational rehabilitation services, a sheltered workshop (particularly one that provides job coaches and will help the client find a job that he or she is capable of being successful at and who is also skilled in training the client in maximizing the application of his or her strengths to the requirements of the job). This may include the use of alternative approaches for performing the required work, use of alternative types of tools, equipment, etc. which is a very common practice in training persons with developmental disabilities.

    External structure (like an “external brain”) can help greatly. This might include (a) living in a group home or facility with an established regiment (when to get up, eat, etc.), (b) a very structured (even part time) job (indeed one of the values of even part time employment is that it gives someone with FASD something regularized that he or she needs to do every day, (c) a daily schedule created in collaboration with the defendant and overseen by a parent, advocate, sponsor, or other party, (d) involvement in frequently scheduled treatment programs such as classes in anger management , sexual deviancy treatment, drug testing, drug treatment, Alcoholics Anonymous (AA) meetings, family counseling, group therapy and recreational groups.

    The eighth principle of sentencing is to write out, simplify and repeat rules/conditions of supervision. Individuals with FASD will not readily assimilate rules or admonitions from the court or probation. The steps they are to take need to be put in writing and framed in simple, non-legalistic terminology. The Judgment and Sentence or the Conditions of Supervision Appendix should set out all of the conditions in short and concise statements using simple and understandable (to the defendant) language. Repetition is the key to the manner in which these individuals learn. Once is not enough. Probation officials and, in certain instances the court, need to go over the rules (what to do, what not to do) again and again and again, and in very simple and concise statements. Even requiring the defendant to comply with repetitive tasks is a helpful activity in the learning process (e.g.), require the defendant to call the employer to say, “I am leaving home for work now” and to call the parent or other support person every day to say, “I have finished work and am leaving for home.”

    The ninth principle of sentencing is to make sure the probation officer understands FASD. Once sentencing is over, the probation officer ultimately assigned to the defendant will have far more contact with the defendant than will the court. For that reason, the court needs to make sure that the probation officer knows that the defendant has FASD and understands the disability, as well as the communication, expectations, and performance issues and how to address them. The sentencing order should include (in its body or appendix) a statement that the defendant has FASD and an explanation of the disability. Once a probation officer is assigned to the defendant, where possible, that officer should be directed to accompany the defendant to court to discuss his or her case with the judge.

    If the defendant is going to be incarcerated, the court should take appropriate steps to assure that prison or jail officials know that the inmate is disabled and that they receive information about the disability.

    One of the things you might want to have the probation officer do, or that the court might want to do at the time of sentencing is to give the defendant a card with instructions to keep it on his or her person at all times and to show it immediately to any law enforcement officer who contacts the defendant that says, “I have FASD. I want to talk to an attorney. I want my mother or father/guardian/advocate called immediately and want one of them present before I will talk.”

    The tenth and final principle for sentencing of people with FASD is not to overreact to probation violations – particularly status offenses. Those disabled by FASD will often engage in behaviors for which a non-disabled probationer would be punished. Individuals with FASD have difficulty remembering and keeping appointments; whether it is the required meeting with the probation officer or AA attendance, their failure to do so is usually not an act of defiance, but a symptom of the disability. The court could suggest to the probation officer that the problem of missed appointments be dealt with prospectively by setting up a system of prompts and by drawing on the support of the sponsor or advocate.

    These individuals may have annoying personal mannerisms that in a non-disabled individual would be a sign of recalcitrance or defiant disrespect. Their characteristic impulsivity can yield inappropriate expressions of anger which in the non-disabled would call for sanctions. However, understanding the nature of the cognitive deficits, probation officials can look past this, evaluating a probationer’s conduct in the context of his or her disability. The focus should be on bringing about compliance with rules of substantial inherent importance (e.g.), not using drugs, rather than rules that the Department of Corrections or probation department would ordinarily enforce in order to encourage the non-disabled probationer to assume responsibility for fulfilling his or her supervision responsibilities.

    In conclusion, if individuals with FASD are to be successful on probation or parole, and if they are to take their place in the community as productive and contributing members of society, then all of us who play a role in the system need to provide them with the special attention and special approaches to sentencing and supervision that maximizes their opportunity for success. If we do not address the special needs of those with FASD, and if we do not strive to develop and utilize the special approaches that are unique to their needs, we doom them to a recidivistic life style and continual re-entry into the revolving doors of the justice system, whether it be juvenile court system or the adult criminal justice system.

    Anthony P. Wartnik, Judge (Retired)
    APW Consultants
    8811 SE 55th Pl.
    Mercer Island, WA 98040
    Phone: 206-232-2970
    Cell Phone: 206-290-0451
    Email: TheAdjudicator@comcast.net

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    Judge Anthony (Tony) Wartnik (Retired) has a long and distinguished career in law and has been recognized by his peers for his outstanding contribution to his field. His 34 year career as a trial judge started in 1971 as a District Court (Limited Jurisdiction) Judge, and he retired in 2005 as the Senior Judge of the King County Superior Court (General Jurisdiction) of the State of Washington where he served from 1980 to 2005. During his Superior Court career, Judge Wartnik served as Presiding Judge for the Juvenile Court, Chief Judge for the Family Law Court, and chair of the Family Law Department and the Family and Juvenile Law committees. Tony also was the Dean Emeritus of the Washington Judicial College, Chair of the Judicial College Board of Trustees, and Chair of the Washington Supreme Court Education Committee. Judge Wartnik chaired a multi-disciplinary task force to establish protocols for the determination of competency for youth with organic brain damage and chaired Governor Mike Lowry’s Advisory Panel on FAS/FAE.

    Judge Wartnik is currently the Legal Director for FASD Experts and a consultant to the University of Washington Medical School’s Fetal Alcohol and Drug Unit (FADU). In his role with FASD Experts, Judge Wartnik provides general legal review of the Team’s functioning and protocol development and also serves as a liaison between the Team and the client’s legal counsel as well as being available as a consultant to legal counsel, providing legal expertise regarding specific issues of relevance. He has been a presenter at numerous local, state, interstate, national and international conferences and workshops on issues related to FASD and the juvenile and adult justice systems. He is a graduate of the SAMSHA sponsored FASD workshop “Training the Trainers.”

  • Judicial Use of Social Media

    by Daniel J. Crothers, Justice, North Dakota Supreme Court

    A Georgia judge recently resigned after that State’s Judicial Qualifications Commission investigated the judge’s Facebook messaging with a defendant appearing in a pending matter before him.

    Late last year, a New York judge was reassigned after allegations surfaced that he was updating his Facebook status from the bench and that he once took a picture of his crowded courtroom, posting it on his active, public, Facebook page.

    In late 2009, Florida authorities issued a judicial ethics advisory opinion concluding judges cannot “friend” lawyers on social network websites like Facebook or MySpace. But South Carolina’s judicial ethics advisory committee concluded a judge could “friend” law enforcement officers and court employees if they were not discussing anything related to the judge’s position.

    The North Carolina Judicial Standards Commission concluded in 2009 that a judge should not utilize a listserv to obtain advice on a legal topic that was applicable to a proceeding before that judge.

    These stories and others like them are appearing in newspapers and legal periodicals nationwide, leading us to ask: Can judges and court personnel have Facebook or MySpace pages? Can judges and court personnel make blog postings or participate in listservs?

    The general answer to each of these questions is “yes,” but….

    A judge’s actions are constrained by the American Bar Association Model Code of Judicial Conduct, derivations of which are in place in most United States jurisdictions. The Code requires, in some instances pertinent to use of social media, that the judge exercise reasonable direction and control over attorneys and staff who report to the judge.

    The Code generally allows judges to engage in extra-judicial activities that do not demean the judicial office, that do not cast reasonable doubt on the judge’s impartiality and that do not interfere with the performance of judicial duties. Therefore, judges and court staff, like most other people, can use the internet for lawful purposes, including maintaining and using social networking tools and sites like Twitter, Facebook and MySpace as long as those uses stay clear of courts, court business and matters that frequently appear in the courts.

    But the Florida Committee noted, “While judges cannot isolate themselves entirely from the real world and cannot be expected to avoid all friendships outside of their judicial responsibilities, some restrictions upon a judge’s conduct are inherent in the office.”

    For example, judges have an obligation under the Code not to lend the prestige of judicial office to advance the private interest of the judge or others, nor to convey or to permit others to convey the impression they are in a special position to influence the judge. On this basis a majority of the Florida Ethics Advisory Committee concluded that a judge would act unethically by “friending” a lawyer on a Facebook page. Florida’s conclusion was based on the Facebook feature that mutual “friends” appear on each other’s page, even with the highest privacy settings invoked. At a minimum, these mutual “friends” are visible to other “friends” of the respective subscriber. Absent use of the highest privacy settings, the judge-lawyer “friend” status is viewable by all internet users.

    So too are judges and staff prohibited from participating in improper ex parte communications in a pending or impending matter. This was one of the reasons for the disciplinary investigation of the Georgia judge.

    Ex parte communications should always be a concern when a judge or a member of the judge’s staff make posts or read posts about a court case or a likely court case while using Twitter, Facebook, MySpace, a blog, a listserv or any other social network. That concern is justified because use of these social networks means we are communicating (even as passive readers) with an unknown segment of the public, including those who may appear as parties or advocates before us.

    The status of law in this area is quickly developing. Until the law in your state is clarified or until you request a judicial ethics advisory opinion (if you are able), all judges and court staff using social media websites would do well to remember the advice given in the 1980s television show Hill Street Blues by dispatch Sergeant Phil Esterhaus:“Hey, let’s be careful out there…”

    Justice Crothers regularly conducts training for judges and lawyers on ethics and technology, and on judicial disqualification. He can be reached at dcrothers@ndcourts.gov