What you’ll read:
- Vacancies & Elections: Massachusetts’ high court gets another government lawyer with one vacancy to go; of the six Tennessee Supreme Court candidates, one is a former public defender
- New York Update: Rulings That Expand Rights “Signal Sea Change” On High Court
- State Supreme Courts & Progressive Prosecutors: Will State High Courts Stop Republicans From Removing Elected Prosecutors They Do Not Like?
- Florida Supreme Court: Police who kill have no right to anonymity
- Two Reports On How State Courts Fail The Public: A dystopian lack of transparency in New York and a lack of professional diversity in Arizona
Vacancies & Elections
- In Massachusetts, Gov. Maura Healy nominated State Solicitor Elizabeth “Bessie” Dewar to replace Justice Elspeth Cypher on the state’s high court. Dewar, who is 43, is eligible to serve on the Supreme Judicial Court until 2050, and her nomination drew praise from reproductive rights groups. But the pick also reinforces a troubling status quo: The court has four former prosecutors but no public defenders and no public interest lawyers who spent their careers representing people rather than the government. Dewar — whose career has largely been government work and corporate law — continues that trend.
- But there is one more Massachusetts vacancy. Justice David Lowy will also retire early next year, and Healy should “look[] to either a former public defender or someone who has a background in civil rights,” Anthony Benedetti, chief counsel for the state’s Committee for Public Counsel Services, told Bloomberg Law. Applications for Lowy’s seat are due December 31.
- There are six candidates to fill a future vacancy on the Tennessee Supreme Court that will open when Justice Roger Page retires on August 31, 2024. One candidate, Chancellor Tony Childress, is a former public defender, while at least two others are former prosecutors. The Governor’s Council for Judicial Appointments will hold public interviews on January 4th and 5th before sending three names to Republican Gov. Bill Lee. Read The Full Interactive Report
New York Update: Rulings That Expand Rights “Signal Sea Change” On High Court
When New York Gov. Kathy Hochul elevated Court of Appeals Judge Rowan Wilson to be the court’s Chief Judge (a move that came after progressive advocates defeated her initial, far-more conservative nominee), it remained unclear if a new progressive majority would emerge — particularly on criminal justice issues. Wilson brought a solid record protecting individual rights as an Associate Judge, but the judge who took his seat — former state solicitor general Caitlin Halligan — was harder to predict. And as Bolts Magazine explained, “when it comes to the raw math on upcoming rulings, it’s Halligan who matters. Hers will be the new vote with the power to flip outcomes[.]”
Seven months later, Halligan’s rulings show a significant break from the court’s recent history of favoring police and prosecutors. For New York Focus Sam Mellins writes that:
A recent spate of rulings suggests that New York’s top court is headed in a more progressive direction, especially concerning the rights of people accused of crimes. Caitlin Halligan, the court’s newest judge, has sided with the more liberal judges in several closely divided cases, often casting the deciding vote in favor of defendants’ rights. . . . [These] votes shed light on [Halligan’s] liberal leanings as a jurist — something that was unsure upon her ascension in April — and they could herald a dramatic change from the court’s prior makeup.
Halligan has joined the court’s more liberal members in split decisions on search and seizure, the right to counsel, the rules of evidence and due process, police accountability, and the state’s sweeping sex offender registry law. And in most she helped form a slim majority, expanding rights in cases that a year ago would have gone the other way.
In one 4-3 ruling, the court held that police officers violated both the federal and state constitutions when they entered a man’s apartment and arrested him without a warrant. While someone had answered the door and allowed police to enter the common area of a multi-unit building, that fell short of consent to enter a particular apartment, the court explained.
In another case, Halligan wrote the 4-3 opinion that overturned the weapons possession conviction of New York City basketball phenom Sebastian Telfair. The trial judge had allowed prosecutors to argue that Telfair must have known there was a gun in his truck because he had been previously found with firearms a decade earlier. This violated the cardinal rule that evidence of prior “bad acts” cannot be used to show that someone has a propensity to commit certain crimes — i.e., that “if defendant did it once . . . he would do it again.”
Halligan also joined a 4-3 ruling that curtailed New York’s sex offender registry law. In People v. Brown, the court held that it violates due process to order someone to register as a sex offender after they are “convicted of a crime that lacks a sexual act or motive,” and a court finds “that [they are] not a sex offender and … not a sexual threat.” Still, this was a relatively narrow ruling, and Halligan would not go as far as Chief Judge Wilson and Judge Jenny Rivera, who also wanted to overturn precedent that allows courts to compel sex offender registration for non-sex offenders in other circumstances.
While Halligan may not be the court’s most progressive member, “there seems to be much clearer recognition of individual rights and liberties,” law professor Steven Ziedman told New York Focus. “The pro-prosecution bent is no longer in place.”
More on the New York Court of Appeals:
- In a case without Halligan, the court held that cyclists have the same protections against police searches and seizures as car drivers — a crucial ruling in light of rampant racial profiling of cyclists in New York. [StreetsBlog NYC | Full opinion]
- In a unanimous decision on November 20, the court upheld New York City’s ban on police chokeholds, rejecting a constitutional challenge from police unions. NYC passed the ban in 2020 after the police murders of Eric Garner in Staten Island and George Floyd in Minneapolis. [Jurist | Full opinion]
Will State Supreme Courts Stop Republicans From Removing Elected Prosecutors They Do Not Like?
In a twist on a familiar theme, Republicans in several states have tried to nullify election results by removing reform-minded elected prosecutors with whom they disagree, and who implement the very reforms — such as not prosecuting abortion, refusing to seek the death penalty, and prioritizing the most serious cases — that they promised to voters. Recently, the state supreme courts in Florida and Pennsylvania heard arguments in cases to stop these efforts.
In Florida, the court — stacked with Ron DeSantis allies — will decide whether to reinstate Orlando-area prosecutor Monique Worrell, whom DeSantis unilaterally suspended along with Tampa prosecutor Andrew Warren. As The Intercept reports:
Worrell won election in 2020 with an overwhelming victory against a “law-and-order” opponent. She ran on addressing mass incarceration, restoring public trust in the office, and serving victims. DeSantis suspended Worrell in August, making her the second prosecutor he removed from office over political disagreements.
Urging the court to rebuff DeSantis, the Orlando Sentinel editorial board put the stakes this way:
This is a fight that implicates the integrity of Florida’s criminal justice system. This is a fight that — if lost — could spur copycat actions in jurisdictions across the nation. This is a fight over whose voice actually matters: One vengeful and ambitious man, or the will of countless voters — not just the nearly half-million souls in Orange and Osceola counties who cast their ballots for Worrell, but of voters across the nation who see major problems in their government and deserve the right to demand changes.
Meanwhile, Philadelphia District Attorney Larry Krasner — who was reelected in a landslide — asked the Pennsylvania Supreme Court to toss articles of impeachment that were drafted by Republican lawmakers [Pennsylvania Capital Star], while the Georgia Supreme Court refused to approve a Republican-backed commission that would have the power to discipline and remove prosecutors. Without court approval, the commission dies. [Jurist]
Florida Supreme Court Limits Reach Of State Constitution’s Victims’ Rights Amendment
Billionaire Henry Nicholas III is famous for his lavish, tech-fortune lifestyle and for receiving extraordinary leniency in a drug trafficking case. But he has also “used his fortune to bankroll another pet project: changing state constitutions across the country in the name of victims’ rights.” [The Marshall Project]. Nine states have adopted some version of “Marsy’s Law,” named for Nicholas’s murdered sister, which grants crime victims a sweeping array of rights. The measure has faced criticism not just for threatening the constitutional rights of people charged with crimes, but also for hindering law enforcement investigations, diluting resources for the victims who need them most, and for its extraordinary breadth, which makes it nearly impossible to follow.
Eventually, and perhaps predictably, another problem emerged: police claimed Marsy’s Law as a shield, and refused to release the names of officers who use force, citing a provision that protects crime victims from harassment. The officers, they said, were the “victims” of whoever it was they ultimately beat or shot or pepper sprayed, and therefore entitled to the law’s privacy protections. In Florida, at least half of the state’s “30 largest police agencies said they apply it to shield the names of on-duty officers,” a USA TODAY and ProPublica investigation found. And it doesn’t take much. “Sometimes, the injuries officers cited when they invoked the victim status were as minor as a scraped knee, soreness or a twisted wrist. In one case, a Hernando County sheriff’s deputy photographed and noted a ‘minor, blunt-forced injury to my left index finger, causing a bone bruise on the lower joint of the same finger.’”
But on November 30, the Florida Supreme Court ended the practice, ruling unanimously that Marsy’s Law does not give crime victims — police officers or otherwise — a right to anonymity. The opinion noted the lack of textual support for the claim, and that such privacy would interfere both with the right of people to confront witnesses against them and the public’s right to access public records. [Fresh Take Florida | Full Opinion]
ICYMI: Two Reports On How State Courts Fail The Public
- A new report from Scrutinize highlights the disturbing lack of transparency in New York’s criminal courts. In New York, criminal court judges can decide whether to publish their decisions, and they do so rarely. Only 6% of all written decisions are published, and of the 600 judges who published at least one opinion (the system is so opaque it’s impossible to know how many published zero), 20 judges were responsible for 28% of all published decisions, according to the report. That so much secrecy shrouds life-and-death decisions of democratically-accountable state officials is a dystopian reality of America’s trial courts, though there is proposed legislation in New York to correct it.
- In Arizona, the People’s Parity Project analyzed the professional background of superior and appellate court judges, finding that “judges in Arizona, like so many other states,” previously spent “years fighting for powerful institutions, including the state and big corporations.” Statewide, the report finds, 44% of former judges are ex-prosecutors, and more than a third worked as corporate lawyers; meanwhile, “Legal Aid lawyers constitute only 3% of Arizona’s bench, and around 11% of judges worked as public defenders.” The result, we noted in a similar report on every state’s supreme court, “is a judicial system constructed of former lawyers for the wealthy and powerful who bring with them a narrow perspective that inevitably influences decisionmaking and legal outcomes, including the scope of constitutional rights.”