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Aug 26, 2015

Appellate Judges Argue Over Online Research

Along with ongoing issues regarding jurors researching cases online, a related question has been how appropriate it is for judges to do the same.

Online research by U.S. Supreme Court justices has been shown empirically and anecdotally, and there have been instances of lower court judges doing online research. Now, the judges of a federal circuit court have entered the controversy.

The issue arose in Rowe v. Gibson, No. 14-3316, 2015 U.S. App. LEXIS 14573 (7th Cir. Aug. 19, 2015), in which an Indiana inmate alleged that prison administrators neglected his medical needs by allowing him to take a particular medicine only at set times each day, rather than as prescribed, with meals.

The trial judge granted summary judgment to the defendants in the case -- the prison doctor and administrators -- and the inmate appealed. All three judges on the appellate panel agreed that the summary judgment should be affirmed on most of the claims, and reversed on others. But they differed on which ones should be reversed, and how one judge apparently came to his conclusions.

The majority opinion by Judge Richard Posner held that the restrictions, and the prison's subsequent decision to refuse to provide the inmate with the drug at all, could constitute "cruel and unusual punishment" under the Eighth Amendment. Thus the majority reversed the trial court's grant of summary judgment for the defendants on these claims. In the opinion, Judge Posner quoted several websites, including WebMD, the National Institutes of Health, and the Mayo Clinic, in describing the inmate's medical condition and the proper use of the medicine to treat it.

Judge Poser -- who for several years had his own blog -- defended his use of the websites in his decision, writing that
In citing even highly reputable medical websites in support of our conclusion that summary judgment was premature we may be thought to be “going outside the record” in an improper sense. It may be said that judges should confine their role to choosing between the evidentiary presentations of the opposing parties, much like referees of athletic events. But judges and their law clerks often conduct research on cases, and it is not always research confined to pure issues of law, without disclosure to the parties. 
...

We are not deeming the Internet evidence cited in this opinion conclusive or even certifying it as being probably correct, though it may well be correct since it is drawn from reputable medical websites. We use it only to underscore the existence of a genuine dispute of material fact created in the district court proceedings by entirely conventional evidence, namely Rowe’s reported pain.

Slip op. at 12-13, 14.

The research, Posner asserted, was necessary because the inmate "has been at a decided litigating disadvantage" after the trial judge refused his requests for appointed counsel and an expert witness to refute the prison doctor. Slip op. at 15. "It is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence," he wrote. Slip op. at 16.

Judge David Hamilton concurred with most the majority's results. But he dissented from its reversal of the summary judgement regarding provision of the drug only at specific times, writing that "[o]n that claim, the reversal is unprecedented, clearly based on 'evidence' this appellate court has found by its own internet research." Slip op. at 29.

"[T]he majority’s decision," he continued, "is an unprecedented departure from the proper role of an appellate court. It runs contrary to long-established law and raises a host of practical problems the majority fails to address. ... The majority’s factual research runs contrary to several lines of well-established case law holding that a decision-maker errs by basing a decision on facts outside the record." Slip op. at 29, 34.
The internet is an extraordinary resource, but it cannot turn judges into competent substitutes for experts or scholars such as historians, engineers, chemists, psychologists, or physicians. The majority’s instruction to the contrary will cause problems in our judicial system more serious than those it is trying to solve in this case.
Slip op. at 43-44. 

Judge Poser responded in an appendix to the majority opinion, responding to specific statements in to Judge Hamilton's opinion. Slip op. at 21-26. And Judge Ilana Rovner, in a concurring opinion, wrote that the majority's result can be justified by an examination of the trial court record alone, without reliance on the websites cited by Judge Posner. Slip op. at 27-28.

The boundaries of judicial use of the internet for "extrinsic" research -- research into non-legal issues beyond what is presented by the parties in a case -- is an ongoing concern, especially with the ease of access provided by the internet. And the issue is particularly thorny when, as in this case, one the parties is at a clear disadvantage because s/he lacks the resources to have adequate counsel and present adequate witnesses.

But our legal system is, at its very heart, an adversary system in which opposing sides present their best cases, with judges and juries making their determinations based on the evidence presented, which is subject to a rigorous vetting process. When one side has clearly inadequate counsel that places a trial court result in question, the role of judges is to remedy that problem by providing -- or ordering the provision of -- resources to that party, not to take on the role of making up for that inadequacy by doing the work themselves.

h/t ABA Journal

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