Does requiring jurors to be vaccinated raise due process concerns?

As part of their public safety planning in the wake of the pandemic, a number of courts across the United States are beginning to require that jurors for in-person trials be vaccinated against COVID-19. That is a perfectly sensible policy. But it raises complex ancillary issues about the makeup of the jury pool once unvaccinated — but otherwise eligible — citizens are excluded from jury service.

An editorial in Massachusetts Lawyers Weekly articulates the problem:

Barring unvaccinated individuals could, in some parts of the state, make it more difficult to secure enough prospective jurors. It could also skew the jury pool, leading to more homogenous and less diverse juries. 

Generally speaking, vaccinated Americans are more likely to be older, female, white, college-educated and liberal in their political leanings, while unvaccinated Americans are more likely to be younger, conservative, male or people of color. 

In Massachusetts, statistics show that in cities such as Brockton, Lowell, Springfield and Worcester the percentages of Black and Hispanic individuals who are vaccinated are well under 50 percent, and the percentages of vaccinated individuals in their 20s are significantly lower than is the case for older people. 

As the editorial further notes, there is no constitutional bar to excluding unvaccinated individuals, since they are not being denied the chance to perform jury service on the basis of race, gender, religion, or another protected category. But it could skew the jury pool away from the reasonable cross-section of the community. 

There is also the perverse satisfaction that some might take in knowing that being unvaccinated gets them out of jury service. Perhaps such jurors should still be required to serve on virtual –or even outdoor — trials, if the demand for such proceedings continues.

Supreme Court to resume in-person arguments; live audio here to stay?

The Supreme Court has announced that it will resume in-person arguments starting in October. The number of people in the courtroom will be strictly limited.

The Court will apparently continue to provide live audio of the oral arguments, a welcome bit of transparency. In addition to giving the public immediate access to hearings, the audio feed has been paired with text and photos of the Justices to allow students to more fully appreciate the flow of oral argument. (Click here, then on the “Oral argument” button on the left, for an example from oyez.org.)

The return to in-person arguments raises one other question: will the Justices continue to ask questions one at a time (in order of seniority), as they did during the pandemic-mandated telephonic hearings? Or will they go back to interrupting each other (and counsel) every chance they get? 

A judge faces a reprimand for a five-second phone call

Law360.com reports on an ethics complaint filed against Arthur Bergman, a retired state superior court judge in New Jersey. Judge Bergman allegedly made an independent phone call to a potential witness in a case over which he was presiding. Rule 3.8 of New Jersey’s Code of Judicial Conduct states, “Except as otherwise authorized by law or court rule, a judge shall not initiate or consider ex parte or other communications concerning a pending or impending proceeding.”

Judge Bergman does not contest that he made the call to a potential witness in the family trust dispute, but he maintains that the purpose of the call was simply to check the witness’s availability for a plenary hearing. The judge’s phone message, however, never referenced a hearing, and ultimately no hearing took place. Upon learning about the call, one of the attorneys in the case asked the judge to recuse himself, but Judge Bergman refused.

Complicating the story is the fact that Judge Bergman suffers from Parkinson’s disease, which apparently makes it difficult for him to speak. He maintains that this is why he did not mention the hearing on the message.

The state’s Advisory Committee on Judicial Conduct is seeking a public censure, to send a message to other judges that such behavior is not appropriate.  Judge Bergman’s own lawyer maintains that disciplining a retired judge would do nothing to preserve the integrity of the state judiciary.

What do you think, readers?

Judges from around the world work to evacuate their female colleagues from Afghanistan

The safety of female judges in Afghanistan was precarious even before the botched American pullout left the Afghani people at the mercy of the Taliban and ISIS. Now the situation is far worse. Immeasurably, sickeningly worse.

One small point of light has been the efforts of private individuals and entities to protect Afghanis and, to the degree possible, get them and their families out of the country and on to safer ground. This Washington Post story highlights one such effort, by judges across the globe, to secure safe passage for their female Afghani colleagues. Their limited success in no way eradicates the catastrophe that is unfolding, but it does give one a certain degree of faith in the human spirit.

Should judicial compensation be tied to performance evaluation results?

Several states use judicial performance evaluation (JPE) programs to periodically evaluate state judges. In all states that use JPE, evaluation results are used to promote the development and professional growth of the evaluated judge, and to develop training programs for the judiciary more generally. In many states, JPE is also used to provide information to those charged with determining whether a judge should stay on the bench. In states where judges face retention elections, for example, JPE results are often communicated to voters in the weeks preceding the election. And in states in which the legislature or a commission decided whether the judge should be retained, JPE results are typically times to give valuable information to the decisionmaker about each judge’s strengths and weaknesses.

JPE has never been used to determine judicial salaries or benefits, and with good reason: an independent judiciary should not feel that remuneration is tied to specific outcomes. This has always seemed like such a given that I never found it necessary to mention when discussing JPE programs. But this article about a proposed salary hike for state judges in Arkansas, which felt the need to explain that “There isn’t a performance evaluation process for  judges and prosecutors in Arkansas,” made me realize that perhaps the general public perception of JPE’s purpose is different. Continue reading “Should judicial compensation be tied to performance evaluation results?”

Indian state rolls out mobile “e-court” vans to service rural areas

Uttarakhand, a state in northern India, is planning to introduce wifi-equipped “e-court” vans in five remote hill communities. The vans will have videoconferencing capability and will be administered by the district judges of the state.

The initial story provides few specifics about how the mobile courts will operate, what types of cases will be eligible, and exactly how the vans will be able to accommodate the presentation of evidence and the opportunity for transparent proceedings. What seems clear is that the effort is designed to chip away at a shocking large — and growing — backlog of cases in the state. 

India has an unfortunate history of extensive case backlogs, and this creative effort to improve that circumstance should be applauded. I hope it is successful.

Two ways of pursuing justice

This week, Jews around the world will read the Torah portion known as Shoftim (Judges). This particular section of Deuteronomy instructs the Israelites to establish judges and officers in their communities, and includes the famous injunction, “Justice, justice shall you pursue.”

Like many, I have long been fascinated and perplexed by this command. Why is “justice” repeated twice? And why are the people instructed to pursue justice rather than to achieve it? The answers that immediately spring to mind — the second “justice” is for emphasis, and the command to “pursue” a nod to the idealism of the rule — do not fit comfortably with the larger text of the Torah. The direct repetition of a word, for example, is not common in Biblical text, and traditional exegesis demands that the second use carry a separate and independent meaning. Over the years, I have heard and read many thoughtful takes on the issue. Perhaps, for example, the repetition of “justice” captures substantive and procedural justice, or justice for the individual and for the community, or social justice and justice under the law.

The term “pursue” is equally difficult. Granted, it is impossible for any society to actually achieve perfect justice; perhaps dogged pursuit is all that can be expected of us. But the Torah includes other commands that are equally inconsistent with human nature. “Do not covet,” for example, is an impossible task for mere humans to adhere to, yet it comes with no qualifying language. So why say “pursue” here?

These questions pop into my mind every year around this time, a natural consequence of reading Shoftim around the start of the new law school year. But this time, there was another reason to take a close look at the Biblical injunction to pursue justice. It came in the form of an extraordinary recent episode of Bari Weiss’s new podcast, Honestly. In this episode, Weiss and guest podcaster Kmele Foster examine the “Central Park Karen” story from last summer. They reveal that the simple, straightforward story that was presented to the public is in fact complex, nuanced, and oftentimes messy. And it raises all sort of difficult questions about how our society metes out justice, both in and out of court.

Continue reading “Two ways of pursuing justice”

Ohio Democrats to Democratic judge: Don’t run for chief justice; you could win!

The perverse nature of choosing judges through partisan elections is currently on display in Ohio, where some Democrats see no benefit to a highly qualified member of their own party running for chief justice.

The state’s current chief justice, Maureen O’Connor, is retiring in 2022, and two associate justices of the state supreme court, Patrick DeWine and Jennifer Brunner, are considering running for the open seat. In Ohio, where judges must run in partisan primaries, their party affiliation is well-known. DeWine is a Republican and Brunner is a Democrat. The retiring O’Connor is also a Republican.

Justice Brunner may well make an excellent chief, and she is certainly saying all the right things about serving the people of Ohio. But to some Democratic bean-counters, a Brunner victory only has potential downside.

Here’s why: If Brunner becomes chief justice, her current seat in the state supreme court could be filled by Governor Mike DeWine.* DeWine, a Republican, would presumably appoint a Republican judge to that seat, meaning no net gain on the court for the Democrats. Moreover, if Brunner becomes chief justice, she will only be able to serve one full six-year term before hitting the mandatory retirement age, meaning that she would have to step down from the court after the 2028 election. If she remained in her current position, however, she could in theory stay on the court until 2032.

If you subscribe to the view that judges are simply legislators in robes, maintaining a certain number of (D)s and (R)s on the court is more important than each judge’s skill, integrity, experience, and temperament. But if you view judges as actual people with professional pride and commitments to excellence, treating them as fungible back-benchers is both inaccurate and insulting.

I have no view about who would make the best chief justice for Ohio. But I do know that it has little to do with a forced party affiliation, and much more to do with people skills, administrative capacity, ambition, effort, intelligence, and drive. I hope that Ohioans agree.

* Yes, Mike DeWine is related to Justice Brunner’s opponent, Patrick DeWine. They are father and son, respectively.

The disconnect between what Americans want in their judges and how they choose them

Professor Herbert Kritzer has a very interesting new article in Judicature, exploring the qualities Americans say they want in their state judges. It turns out that professional qualities like reputation for integrity and respect from leaders of the legal community are heavily desired, while political qualities like running for holding office or respect from party leaders is much less desired.

So then why do so many states still choose their judges through partisan, or at least politically influenced, elections? I offer a few thoughts at the IAALS Blog.

India develops rules for live-streaming court proceedings

The E-Committee of the Supreme Court of India has developed a set of draft rules for live-streaming and recording court proceedings. The draft rules are open for public comment through June 30.

The draft rules exclude a number of case types, including many related to family law, gender-based violence, and cases which “in the opinion of the Bench may provoke enmity amongst communities likely to result in a breach of law and order.” Parties will also have a chance to object to livestreaming in advance.