Maine Appeals

Seeing double (jeopardy) & apportioning water

I have just returned from the latest conference of the American Academy of Appellate Lawyers, and will provide a full report anon.  Info includes technology use, ethical issues for appellate practitioners, and lots of other tips.

But first, ex-PA member, now First Circuit Judge Kayatta has struck again with another dissent, this time involving a double jeopardy issue.  U.S. v. Szpyt, Docket No. 13-1543 (say that 5 times fast)

http://www.ca1.uscourts.gov/opinions/main.php

This decision relates to indicting a conspiracy, and when that case is over, indicting on another, and deciding when the latter is distinct enough so that the defendant can get tried again.  The majority (Judges Torruella and Howard, with Judge Howard concurring) thought yes; Judge Kayatta, no. Judge Howard said he disagreed with an earlier decision relating to the first trial but felt bound by it, noting that Judge Kayatta "nicely capture[d] the reasons why" that the earlier decision was wrong.  Judge Howard also said, however, that Judge Kayatta misapprehended an aspect of that previous decision that led him astray, resulting in a dissent with a "rhetorically powerful though ultimately fictive parade of horribles."   

As Judge Howard's concurrence indicates, per usual, Judge Kayatta's dissent has some nifty phrasing.  The question ultimately resulting from the decision is whether it be viewed narrowly a one-off "mulligan" in Judge Kayatta's words, read only within the unique confines surrounding the first trial, or whether courts will give it a broader precedential import.  

Also on the Judge Kayatta front, last month the Supreme Court, in a split decision, accepted his special master report in Kansas v. Nebraska.  The Scotus blog has a link and a nice summary. 

http://www.scotusblog.com/2015/03/opinion-analysis-bargaining-in-the-shadow-of-equitable-apportionment/ 

This was a water fight, and basically, the majority (Justice Kagan) accepts an equitable approach that gives the Court (and special master) flexibility in determining remedies to water compact breaches.  Read her decision for some water puns. 

 

 

 

It's not what the judge had for breakfast, but when

Here's a couple links to stories describing studies about decision fatigue: 

http://www.abajournal.com/news/article/a_judges_full_belly_is_good_news_for_criminals_study_finds/

http://www.cognitionandculture.net/home/blog/9-dan/790-what-the-judge-ate-for-breakfast

The gist is, judges are more likely to be receptive to an argument early in the day or right after a food break.  The theory is that we wear down and get grumpier over time, and that it's just harder to keep making decision after decision over time.  The impact of this problem manifests in lots of ways, notably with diets.  Because you have to make many, many decisions over the day not to stuff yourself, as the day wears on, the ability to exercise your will power erodes.  Hence the frequency of the diet-buster midnight snack.

So what do we do about this phenomenon?  We can't control where we are in the order of an argument list, so when we find ourselves last in the string before the First Circuit, we can't very well hand the panel snicker bars and tell them to take a break before they hear our appeal.

With diets, they say the key is to minimize having to exercise will power.  Take all the bad food out of the house, walk to work on the street without the donut shop, etc.  But judges have a set of decisions to make and they can't really make fewer of them.

One thing we can all do is be more aware and sensitive to this pressure.  So whenever you are making a decision, whether a lawyer crafting a brief or the judge deciding which way to go, sleep on it.  You can write that brief into the wee hours, but schedule yourself so you aren't having to hit the ECF button that night.  Make sure you have the time to re-visit and ponder the next day, when you are fresh.

Similarly, pace yourself.  Judges, it appears from these studies, should avoid having to make too many decisions in a day.  If they have to hear a cluster of arguments at once, they should take lots of breaks, nibbling away on healthy things and do jumping jacks during those breaks.

When I was grading masses of bar exams, I took a number of steps to try to strip out unconscious influences - I graded everything with someone else, so I had another perspective; I didn't try to do it in marathon sessions; and I reviewed every answer multiple times, mixing up the order of my review (you will be affected by the quality of the answer you read before the next answer).  And throughout this process, I used a key for identifying the elements of the proper answer.     

The truth is that you aren't going to have any idea what sort of outside influences are moving on your judge.  The judge may not be aware of some of them.  We do the best job we can and hope for the best.  I suppose the most we can say is if we see we are last on the list, we have to do whatever we can to try to bring some energy into the court room, to wake everybody up.  While it's always a good idea to be snappy, if it's been a long day for the judge, it's especially important to CUT TO THE CHASE, and do whatever you can to invite questions and make the judge engage.

Humans are not computers.  That's a good thing.  But it also means we have to recognize and do what we can to keep the upside of human decision-making without the down side.