Tagged: judges

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FAN 19 (First Amendment News) Law Prof. Contests Ban on Note-Taking in Courtroom

This first part of this column is about bans on note-taking in courtrooms, federal and state. To illustrate this point, I want to say a few things about a law professor and the recent hell he went through in his attempt to takes notes in a public courtroom in Cook County, Illinois. Before I get to his story, which is an incredible one, permit me to set the stage with a few bits of history.
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There was a time, in my adult lifetime, when spectators in the Supreme Court were barred from taking notes. Yes, note-taking was not permitted unless one was a member of the press corps. One had to sit and listen in silence. In an August 18, 1997 Washington Post op-ed, Professor David M. O’Brien and I put it this way:

“It is an unwritten rule but a rule nonetheless. No ordinary citizen can take notes in the courtroom of the U.S. Supreme Court, unless granted special prior approval by the officer of the Public Information Office. . . . (For an unknown period before 1988, not even members of the Court’s bar could lift a pen.) . . . . No one really really knows when the rule, which is of contemporary vintage, began. Insofar as there is any reason for the rule, it is to protect the ‘decorum factor.’ Violate the rule and the marshals whisk you away.”

“No one, including the ever-attentive press corps, fusses over the rule, one of the few of its kind enforced in any federal or state court in this land. . . . Back in 1988, however, Justice Harry Blackmun complained about the rule in a memo to his colleagues: ‘I wonder if we go too far in our request for decorum.’ Noting came of the complaint.”

We concluded our op-ed this way: “Imagine courtroom audiences . . . taking notes about what they hear and see, as if the Court were a civic classroom. Imagine citizens exercising their First Amendment rights to further their knowledge of [the Supreme Court] and their Constitution. What is amazing is that such things can only be imagined — for now.”

Ban Silently Lifted 

And then the world changed in November 2002. As Tony Mauro reported in a May 5, 2003 article for Legal Times: The rule’s “demise came without fanfare and without public notice, but Court public information officer Kathy Arberg confirmed last week that sometime last November the policy against note-taking was ‘no longer enforced’ by Court Police officers.” And then this: “One of the weblogs that handicaps Court cases, [SCOTUSblog], first noted the change on April 25th after blogger Ted Metzler attended the arguments in Nike v. Kasky. As he and other spectators went through security, Metzler recalls, ‘The officer told us we could bring in a notebook and pen and we all looked at each other.’ Metzler is currently a law clerk at D.C.’s Goldstein & Howe . . . .”

Professor Samuel V. Jones

Professor Samuel V. Jones

12 Years Later — Enter Professor Jones (the would-be notetaker)

He doesn’t fit the typical profile of a rabble-rouser. He is a former Marine Sargent, a former U.S. judge advocate, and before that senior counsel in the Commercial Law group at AT&T Corp and later as corporate counsel for Labor and Employment for Blockbuster, Inc. He is also a former Special Advisor to the Chair of the Illinois Judicial Council. And now he is a professor at the John Marshall Law School.

He is Samuel V. Jones. This former Marine is not a man to sit on his rights, especially his First Amendment rights. And so when the deputies in a circuit court ordered his to forsake those rights, he refused.

It all happened on May 8th during the course of bail hearings in a Cook County court presided over by Circuit Judge Laura Sullivan. Apparently, the atmosphere was tense as deputies patrolled the courtroom. At one point, according to Professor Jones, a “deputy approached and impolitely inquired, ‘Are you an attorney’? I identified myself as a professor of law doing research. She responded, ‘There is no note-taking in here.’ I wondered if the deputy knew that ‘the right of the press to access court proceedings is derivative of the public’s right,’ and journalists held no greater right than I did. I informed her that the office of the chief judge had advised me that note-taking is permitted. I asked if I had violated any laws or was disruptive. ‘No,’ she replied, and walked away.”

But that was hardly the end of the matter. Shortly thereafter, two different deputies ordered the professor out of the courtroom and confiscated his notes. “One deputy approached Judge Sullivan,” recalls Professor Jones, “and the proceedings immediately stopped. I was ordered to sit on a bench, told not to move or write, and was surrounded by several deputies.”

Judge Laura Sullivan

Judge Laura Sullivan

Here is how it ended: “After roughly 30 minutes, they released me with my notes. As I left, a group of African-Americans approached, wanting to shake hands. A lady enlightened me, ‘We saw what they did to you and figured you must be important.’ ‘Why,’ I asked. She explained, ‘Because they let you go.’”

Turns out that this is a old story in Cook County courts. According to recent a Chicago Tribune editorial, “in 2004, a different Cook County judge threw a different law professor out of her courtroom for taking notes. [Now retired] Judge Gloria Coco  forbade . . . writing in her courtroom . . . . That time, it ended up in federal court. A judge said the First Amendment protects public access to the courts so that citizens can observe and critique their government, and note-taking helps ensure an informed discussion.” (Here is the case: Goldschmidt v. Coco (2006).)

Thanks to Professor Jones, the problem may now have been solved for good insofar as Chief Judge Timothy Evans has since signed an “administrative order spelling out that note-taking is permitted in court.”

→ For an earlier discussion of the same problem, see Eugene Volokh, “Ban on Note-Taking by Spectators in Court,” Volokh Conspiracy, May 24, 2013

→ The American Judicature Society has conducted a federal court and 50-state court survey of “Note-Taking Laws,” this in connection with juror note-taking.

Third Circuit to Hear Challenge to Delaware’s Voter Guide Rules Read More

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Science, Technology, Judges, and Juries

A study recently published in Science—one of the top scientific journals—terrifyingly explains that “[g]laciers along the Amundsen Coast of Antarctica are thinning” and suggests that the “full-scale collapse” of the Thwaites glacier “may be inevitable.” I don’t want to delve into a debate about whether our Earth is undergoing climate change, or whether any such climate changed is being caused by human activities. However, I do want to talk about the relevance of science to law, and the fact that science, as well as its partner technology, are moving at an incredibly rapid pace.

Questions about the relevance and meaning of science and technology to law can be found in matters ranging from the use of neuroscience to assess criminal culpability or physical injuries, to the use of epidemiological studies to establish causation in toxic tort cases, to the novel liability risks associated with the use of unmanned vehicles. One of the difficulties of employing scientific and technological knowledge in legal matters is that many judges and lawyers are not trained in the nuances of scientific reasoning or the details of understanding modern technology.

I occasionally teach Law & Science courses to judges, and several judges have expressed to me their difficulties in wrestling with science in their cases. This problem of judges trying to understand science is exacerbated when judges are tasked with determining the reliability of scientific evidence under the Daubert standard, which a majority of jurisdictions now use. Some judges try to better understand the science at issue, but they might do this by independently researching the issue. (Perhaps the judicial independent research that has received the most attention is Judge Posner’s “experiment with a novel approach” that he conducted pursuant to deciding Mitchell v. JCG Industries, Inc., where he had the court’s staff don and doff specialized clothing and equipment to determine how long the process took.) This practice may be suspect under the applicable code of judicial conduct, but some judges engage in it nonetheless.

A commonly cited example of judges struggling with technology can be seen in the somewhat embarrassing exchange among the Supreme Court Justices in Ontario v. Quon. In that case a police officer had sued the city, claiming that the police department’s review of his text messages violated the Fourth Amendment. In oral argument, Chief Justice Roberts inquired: “Maybe—maybe everybody else knows this, but what is the difference between a pager and e-mail?” And Justice Kennedy asked what would happen if someone were to text an individual while he was texting with someone else: Does the individual have “a voice mail saying that your call is very important to us; we’ll get back to you?” At least the judges were doing their best to understand the technology at issue, though, before handing down an important opinion on the matter.

On some science- and technology-related subjects that judges decide, there may be other, possibly more qualified decisionmakers available. On some such questions—especially when the science and technology is intermingled with moral determinations—juries are possible decisionmakers. Now juries have a bad reputation with many lawyers. Yes, I’ve seen jurors fall asleep during trial, and I’m all too familiar with some jurors’ focus on details like what kind of shoes a female lawyer wears to court. But juries can offer something that judges cannot. They are ordinarily more representative of their communities than a single judge could be. They serve as a bulwark between the government and the people. They serve to legitimate the law. Through their process of deliberate democratic decisionmaking they can make excellent determinations. Most relevant to decisions involving science and technology, though, juries—by virtue of including more than a single deliberator—can draw on a wide variety of knowledge and experiences. On a jury of twelve, there may be a mother, father, school teacher, engineer, recent college graduate, veteran, victim of assault, retired person, social worker, devout Catholic, plumber, and truck driver. And of course each juror would bring many more characteristics to the table. As a group, then, this deciding body can draw on a broad range of knowledge and experiences. Additionally, jurors often include decisionmakers who are younger than the judges presiding over the case and may be more on the pulse of cutting-edge science and technology. In a case in which a court faces a question such as whether continuous drone surveillance constitutes a Fourth Amendment search because it violates reasonable expectations of privacy, then, a diverse jury might prove to be a better decisionmaker than a judge.