Loomis v. Wisconsin

In 2016, the Supreme Court of Wisconsin affirmed an order that the use of risk assessment software for sentencing violated a defendant's right to due process. See, State of Wisconsin v. Loomis , 881 N.W.2d 749 (Wis. 2016). The software used the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS). Loomis was convicted for his role as a driver in a drive-by-shooting. He pled guilty. The Wisconsin Department of Corrections prepared a report which included bar charts generated with COMPAS showing the Defendant's risk for pretrial, general, and violent recidivism. The COMPAS assessment was referenced by the lower court at Loomis's sentencing. Loomis was sentenced to six years in prison and five years of extended supervision.

The Defendant's expert contended that because COMPAS was not designed to assist with sentencing, its use would lead a court to overlook a defendant's unique circumstances. COMPAS was designed to determine when individuals could remain in their communities rather than be incarcerated. The software's developer does not disclose how its software evaluates a person's risk for recidivism. The COMPAS training manuals state that it is not be used for sentencing.

The Wisconsin Court of Appeals certified two questions to the Supreme Court of Wisconsin:

1. Did the use of COMPAS at sentencing violate due process because the proprietary nature of the software prevents the Defendant from challenging its scientific validity?

2. Did the use of COMPAS at sentencing violate due process because the software took gender into account?

The Supreme Court of Wisconsin held that COMPAS risk scores could be used in sentencing because they were not the determinative factor in deciding if Loomis could be supervised in a local community and because the defense could challenge the scores. It was also found that Loomis did not meet the burden of showing that the court relied on his gender in issuing its sentence.

The Supreme Court of Wisconsin did however find that a court cannot rely on COMPAS in order to determine whether a defendant is incarcerated or to decide the length of his sentence. A court must explain the other factors in addition to the COMPAS risk assessment that it uses in sentencing. A presentencing investigation report should inform the court that how COMPAS weighs certain factors is proprietary; the scores rely on group data; studies of COMPAS show they may disproportionately classify minorities as having a risk for recidivism; COMPAS uses a national sample, without having a Wisconsin specific study; and COMPAS was not specifically developed for the purpose of sentencing.

The Supreme Court of the United States denied a petition for a writ of certiorari. See, Loomis v. Wisconsin, 137 S.Ct. 2290 (2017)

Massachusetts Superior Court: Possibility of Puzzling Together PII Doesn't Bar Release of Crimin

Last month, Judge Rosemary Connolly issued a decision, Healy v. Cruz, No. SUCV2016-03619, 2018 Mass. Super. LEXIS 485 (Mass. Super. Ct. Nov. 15, 2018), granting the Plaintiff's Motion for Summary Judgment. The Commonwealth Attorney General sought an order to force the Defendants to meet the Boston Globe's request for information from the district attorney offices' DAIMON case management databases. Judge Connolly ruled that there was a false choice between the privacy rights of accused individuals named in the case management system and the public's right to the information.

The Boston Globe requested that data from 22 fields be exported to a spreadsheet. Three different district attorney offices objected on different bases: 1. attorney client privilege 2. the information was exempt from disclosure on the basis of a statute 3. it would be necessary to create a new record by compiling multiple records. 4. complying with the request would divert office resources and disrupt daily operations.

Massachusetts law requires record keepers to make public records available for inspection. The law specifies that there is a presumption that records are public unless an exemption applies. The Defendants claimed that exemptions apply as provided by statute; for intra-agency memoranda discussing policy; and for investigatory materials that if disclosed would impede law enforcement. The Criminal Offender Records Information (CORI) restricts the disclosure of a person's criminal history. The case concerns whether the public records law or CORI should govern. Judge Connolly did not view the laws as being in opposition and instead harmonized them so that the goal of each could be achieved.

The Court found the record requests do not fall under CORI because they apply only to data showing an identifiable individual. "Arguably, given all of the requested categories of information, one might be able to puzzle together a history for a particular individual. But it is also true that all but, perhaps the ADA's case disposition recommendation and defendant's ID number, are the types of information any member of the public could access by attending a court session, or reviewing a docket or court file in the clerk's office. The only difference in this instance is that the requestor is seeking the data from DAMION instead of from various public sources to obtain the same information." Id. at *24. The Defendants' argument that the breadth of the requested information could be used to identify specific individuals was rejected. ". . .the fact that individually identifying information could be discovered by someone requesting the same information does not convert the information requested in this case to CORI" Id. at *32.

Judge Connolly also found that the requested records can be obtained under an exemption to CORI for public court proceedings. She rejected the contention that the records fell under the work product exemption to the public records law. Judge Connolly disagreed that the request would require the creation of a new record merely because a query would have to be run for data and exported to a spreadsheet. Finally she rejected the Defendants' argument that the Trial Court Uniform Rules on Public Access to Court Records provision which refers to copying part of the case management databases as being burdensome to court personnel applies. These rules also allow for the bulk export of data to meet the requirements of law.

N.D. Ind.: Inspection of Computer Systems Disproportionate

Last month, Magistrate Judge Michael G. Gotsch, Sr. issued a decision, Gonzalez v. ADT, No. 3:15-CV-290-PPS-MGG, 2018 U.S. Dist. LEXIS 215813 (N.D. Ind. Nov. 15, 2018), denying the Plaintiffs' Motion for Default Judgment Pursuant to Rule 37. The Plaintiffs filed suit against ADT for negligence in the installation and monitoring of an home security system. The Plaintiffs were assaulted and robbed after their home was broken into.

The Plaintiffs alleged that ADT falsely certified that its production was complete; did not produce all discoverable documents available to it by a court imposed deadline; and failed to prepare its 30(b)(6) representatives for depositions.

The Court did not fault ADT for incorrectly asserting at a December 2017 hearing that it had already produced the 'global universe' of information for the Plaintiffs' account and then later producing additional such information in the early months of 2018, because there was nothing to suggest that it willfully lied to the Court. It was reasonable for ADT to re-examine their production after a court order modifying the scope of production. Rule 26(b) requires the production of relevant discovery, proportional to the needs of the case, but "ADT's decision to produce more information does not automatically establish that all the produced information is indeed relevant to the claims and defenses in this case." Id. at *20. Because no bad faith was shown, a motion for sanctions based on misrepresentation was not justified.

Although some of ADT's deposition witnesses were not able to answer all of the questions asked of them, the topics did not relate to the Plaintiff's claims with respect to the installation and monitoring of an alarm system, but to the general training of the employees who did the installation, and so ADT had a right to withhold the information on the basis of relevance and proportionality.

Judge Gotsch held both sides accountable for the contentious manner in which they conducted discovery, noting that the Plaintiffs repeatedly sought discovery beyond the scope defined in court orders.

Although ADT produced notes related to the Plaintiffs' account after the discovery deadline because they were not transferred to MasterMind after a software upgrade, the Court did not find any bad faith even though ADT gave no explanation for its failure to search its old system, because the notes would likely have assisted its defense.

The omission of other information from the production of MasterMind screenshots that the Court acknowledges would have been valuable at depositions was not found to be the result of bad faith. Judge Gotsch noted the difficulty of preparing the information for production. "[T]he record shows that the gathering of the MasterMind screenshots was a tedious process of taking individual screenshots of every record in the system. Thus, it is reasonable that one or more screenshots might be inadvertently truncated in the process just as ADT contends." Id. at *27-28.

The Court denied the Plaintiffs' request to inspect the MasterMind customer database and standard operating procedures database. The cost of the inspection and the failure to show that the databases contained relevant information that was not already produced shows that relevancy and proportionality could not be established under Rule 26(b). Judge Gotsch expressed a strong general skepticism about the wisdom of allowing a review of an opposing party's databases. "[I]nspection of ADT's computer systems is disproportional to the needs of not only this case, but probably any case. Courts are cautioned against allowing a party direct access to electronically stored information and advised to consider more convenient, less burdensome and cheaper alternatives to ESI access to avoid encroachment on a party's privacy interests." Id. at *31-32.

Note that the MasterMind database is question is apparently software specialized designed for security companies. See: http://www.masmonitoring.com/Pages/Home.aspx