Thursday, August 31, 2006

Juvenile Crime Up; PERF; Police and Mental Health

The Minneapolis Star Tribune reports: Rise in violent juvenile crime sparks nationwide meeting. Responding to a nationwide increase in juvenile crime, the Police Executives Research Forum hosted a meeting of officials from cities around the country in Washington, DC, this week.

This story led me to look up the Police Executives Research Forum, since I'd never heard of it. This 30-year-old group

is a national membership organization of progressive police executives from the largest city, county and state law enforcement agencies. PERF is dedicated to improving policing and advancing professionalism through research and involvement in public policy debate.
It's funded largely by grants from government and foundations. It has lots of interesting research projects, including such varied topics as law enforcement DNA practices and a study comparing classroom programs for 6th- and 7th-graders to reduce gender violence and harassment.

Currently PERF is working (with the Justice Department) on procedures "to help improve outcomes of police encounters with people with mental illnesses," and is inviting input. The announcement links to the Consensus Project's list of The Essential Elements of a Specialized Police-Based Program, a web forum seeking community comments.

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Wednesday, August 30, 2006

Sources for Sample Motions in Limine

See the Illinois Trial Practice Weblog for links to a couple of sample motions in limine recommended by Evan Schaeffer (Aug. 1, 2006).

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The Effect of the Internet on Class-Action Settlements

Recently proposed class-action settlements in a couple of cases (Netflix and Netgear) were opposed by consumers communicating on the Internet. See Evan Schaeffer's comment -- and advice to lawyers handling class actions: The Effect of the Internet on Class-Action Settlements, Illinois Trial Practice Weblog, Aug. 10, 2006.

Interestingly, a consumer who created about a class action posted a comment. Remember the news that Sony and BMG had put some code in music CDs to prevent their being copied, and the code turned out to expose computers to viruses? Mark Lyon, a law student, found his laptop, that he used for school, was crashing and acting up because of this. Naturally, he followed the lawsuits and proposed settlements. He also filed his own action, in January 2006, in Mississippi, where he bought the CD that infected his computer. His site provides information about his suit (including his demand letter, Sony's response, and his complaint), as well as the national class action and various other litigation.

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Remember When You Weren't Legally Trained?

Evan Schaeffer has some advice for lawyers trying to communicate with jurors: don't condescend, just remember what you were like before you went to law school -- intelligent and thoughtful, just ignorant of legal jargon. Communicating with Juries by Acting Like a Regular Person: Is It Even Possible?, Illinois Trial Practice Weblog, Aug. 15, 2006.

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Demonstrative Evidence in Civil Cases

Nowadays it's common to use demonstrative evidence -- photos, models, computer simulations, and more -- in civil cases, but it wasn't always so. Evan Schaeffer begins a series of posts about the topic with an excerpt from Melvin Belli's autobiography. The Use of Demonstrative Evidence in Civil Cases: A Brief History, Illinois Trial Practice Weblog, Aug. 29, 2006.

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Friday, August 25, 2006

King County District Court Wins Award for Interpreter Web System

The National Association of Court Management (NACM) gave the King County District Court the 2006 Justice Achievement Award in recognition of the King County District Court Interpreter Web (KCIW). Washington Courts press release, Aug. 24, 2006.

This web-based system empowers District Court clerks, court administration staff, and court interpreters to efficiently and conveniently manage scheduling and assignment of interpreter services at all ten District Court locations. This includes civil, criminal, and probation matters, as well as other District Court business requiring an interpreter. A public access feature allows the public to view the system to check whether or not an interpreter is assigned to a case.
The system also handles payments and provide information for budgeting and planning.

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Graphic by mw. (I'm sure the actual trophy or plaque for the Justice Achievement Award looks much better than this!)

Successful Insanity Defense for Senior on Antidepressant

Thurston County Superior Court Judge Chris Pomeroy signed an order finding Eric Attwood, 83, not guilty by reason of insanity in the attempted murder of his wife. Attwood had been taking Wellbutrin, a prescription antidepressant, for 12 days when he stabbed his wife, later saying he'd planned to kill her and then himself.

He was sent to Western State Hospital (Steilacoom) for psychological evaluation. He is taking a different antidepressant and antipsychotics, and has been living in an adult family home since June. One of his lawyers is Jeffery Robinson.

"It's night and day," Robinson said, adding that Attwood is the "same sort of normal, intelligent, reasonable man" that he was up until a couple of days before the attack.
Prosecutors did not oppose the order finding him not guilty by reason of insanity and granting him conditional release. Man, 83, not guilty of stabbing wife - The Olympian - Olympia, Washington, Aug. 15, 2006.

UW note: Robinson is a Trial Ad instructor.

Update: Couple allowed to reunite after yearlong nightmare, Olympian, Sept. 13, 2006.

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Damages for Dog's Wrongful Death

Adam Karp reports:

Arbitrator Tim McGarry (WSBA 8486) served as arbitrator in the case Hane v. James (King Cy. Sup. Ct. 05-2-31242-2KNT/Darvas) on August 16. The matter involved admitted negligence by the owner of two pitbulls, felicitously named "Mafia" and "Menace," who trespassed on my clients' property, broke into a secure kennel, and killed my clients' 4-year-old border collie mix (adopted for free at a few weeks of age) in the kennel. Based on pretrial orders eliminating general damages (emotional distress), we asked for the dog's intrinsic value, loss of his use/companionship, and special damages (kennel and fence repair). Defense attorney Steve Russell with Keolker & Swerk suggested a fair award would be $5000 to $10,000 for the value of the dog plus a few hundred dollars for the kennel/fence repair. We asked for the MAR limits of $50,000.

On August 21, Mr. McGarry awarded $10,000 for "general/utility damages" (ostensibly the value of the dog) and $2750 for "special damages' (ostensibly the fence/kennel repair costs).

I believe this is one of only three arbitrated wrongful animal death cases in the State of Washington (McLeod, Van de Ven, Hane).

What this shows is that the intrinsic value of a "mutt" is worth at least $10,000. NOTE: You may recall the arb award of $6700 for the wrongful death of an 11-y.o. cat.
(Adam sent this to the email list for WSBA's Animal Law Section and agreed that I could post it here.)

Photo: Candy Sue, a law dog at SIU, courtesy of Diane Murley, one of the bloggers at Law Dawg Blawg.

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Thursday, August 24, 2006

School closures based on color, suit alleges

A new community group filed a suit against the Seattle Public Schools in King County Superior Court, alleging that the school district unfairly targeted for closure schools with high representations of minority and poor children. Christine Frey, School closures based on color, suit alleges, Seattle PI, Aug. 22, 2006.

Save Our Children/Kids Education Defense (SOCKED) is supported by community-based organizations and churches. The oversight committee includes Rev. Patrinell Wright, Rev. Carl Livingston, and Chris B. Bennett. The lead attorney is Brenda J. Little; legal advisers include Lem Howell, Ron Ward (WSBA past president), and Carl Linvingston, Jr. Chris H. Bennett, Save Our Children/Kids Education Defense (S.O.C.K.E.D.) Set Up, Seattle Medium, Aug. 17, 2006.

Ms. Little went into private practice after 14 years representing Seattle Public Schools. Suing the district for the first time required an adjustment, she says.

"I mean I was just sick. Just sick. But, you know I had to readjust, and when I was able to prevail on the behalf of the parent and the child, I went 'oh, this is the same thing I was doing when I was there.'"
Former School Lawyer Files Suit Against Closures, KUOW, Aug. 22, 2006.

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Notorious Batterer Wants to Reunite with Wife

Victor David, who was convicted of assault and given an exceptional sentence because of his years of abuse of his wife, is now out of prison and wants to reunite with his wife, who suffered permanent brain damage from the abuse. Immigration officials have begun deportation proceedings (he is Canadian) and there are three protective orders to prevent him from contacting her. Jennifer Sullivan, Victor David wants to reunite with the wife he abused, Seattle Times, Aug. 24, 2006.

During the years of abuse, Victor David had been receiving money from the state department of Social and Health Services to care for his wife, who he said had MS. The state settled a civil lawsuit for $8.8 million. The Times article, above, has links to older stories and a timeline.

Ms. David's attorney was David P. Moody (also a Trial Ad instructor). See his page about the case.

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Summer Associate Life

This morning's Seattle Times has a story about summer associates in the city's large law firms: Natalie Singer, For law interns, work comes with big perks, Aug. 24, 2006.

Juxtapose this with two of yesterday's posts. In one, critics said that the Legal Services Corporation was wasting money by having its board members meet in hotels and have catered meals. In another, prosecutor's offices reported having trouble recruiting and retaining staff attorneys.

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Wednesday, August 23, 2006

Legal Services Corp Leadership Extravagant?

The AP reported that the Legal Services Corporation's leadership has indulged in luxuries, citing things like having board meetings at hotels around the country instead of in LSC offices. The story listed catering bills (e.g., $14 "Death by Chocolate" for each board member at one meeting) and other apparent luxury items (e.g., a limo ride). Larry Margasak, Legal Aid Program Has Expensive Taste Aug. 15, 2006. See also Legal Defender of Poor Under Scrutiny, CBS News, Aug. 13, 2006.

Of course, there's another side to the story. See Legal Services Corporation (LSC) Response to Issues in CBS and AP News Stories, press release, Aug. 17, 2006.

Thanks to Carolyn Elefant for the links and her own commentary. See her post, Follow-up on LSC Story: The LSC Response (Aug. 23).

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Choice of Law in Insurance Conflicts

Carolyn Elefant at - Inside Opinions: Legal Blogs recommends a detailed post walking readers through the choice of law issues in insurance litigation: Marc Mayerson, Conflict of Laws and Insurance Disputes: Choice of Law or Choice of Outcomes?, Insurance Scrawl, Aug. 22, 2006.

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Bureau of Justice Statistics: Prosecutors in State Courts, 2005

The Bureau of Justice Statistics has a new, 12-page report on Prosecutors in State Courts, 2005.

Presents findings from the 2005 National Survey of Prosecutors, the latest in a series of data collections about the Nation's 2,300 State court prosecutors' offices that tried felony cases in State courts of general jurisdiction. This study provides information on the number of staff, annual budget, and felony cases closed for each office. Information is also available on the use of DNA evidence, computer-related crimes, and terrorism cases prosecuted. Other survey data include special categories of felony offenses prosecuted, types of non-felony cases handled, number of felony convictions, number of juvenile cases proceeded against in criminal court, and work-related threats or assaults against office staff.
Highlights include the following:
  • At least two-thirds of the State court prosecutors had litigated a computer-related crime such as credit card fraud (80%), identity theft (69%), or transmission of child pornography 967%).

  • A quarter (24%) of the offices participated in a State or local task force for homeland security; one-third reported an office member attended training on homeland security.

  • Most prosecutors (95%) relied on State operated forensic laboratories to perform DNA analysis, with about a third (34%) also using privately operated DNA labs.
Thinking about a job in a prosecutor's office? A quarter or more of offices report having trouble recruiting staff attorneys, and most medium and large office have trouble retaining staff attorneys. Here are the numbers:

What the statistics don't tell us is why the offices have the problems.
  • Do they have a hard time recruiting because bright and capable students don't apply? I wouldn't guess that, based on the students I meet who say they'd like to work in a prosecutor's office.

  • Is it about location? Are the offices with trouble recruiting in cities and towns that law students and young attorneys don't consider when they're looking for jobs? Law students and lawyers come here to Seattle from all over -- but is that as true of Duluth, Tulsa, and Norfolk? If the problem is location, can the offices improve recruiting with a little PR? Certainly law students who are having trouble finding their dream jobs in their favorite cities might do well to stretch widen their sights geographically. (I have friends in each of those cities, by the way.)

  • Do prosecutor's offices have trouble offering salaries that are competitive with the private sector? If so, would recruiting be improved by better budgets? By more loan repayment assistance programs?

  • What about retention? Is the problem burnout? If so, then what could be done to make the job something for the long haul?

  • If the problem is salaries, then we're back to budgets, LRAP, etc.

  • Do some attorneys only plan to work as prosecutors long enough to get enough experience to market themselves elsewhere? Is that really a problem, as long as some core of experienced people sticks around?
If you have ideas you'd like to share about these (or other questions), just click the Comment link at the end of this post. Do you have any advice for students who want to work as prosecutors?

So far, there have been few comments posted on this blog, but they are very welcome! I moderate comments to avoid spam, but if a comment is on topic and reasonable for public consumption, I'll gladly post it.

Thanks: beSpacific.

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Follow the Judge's Ruling on Motion in Limine

Here's a comment on attorneys who allude to evidence that was excluded pursuant to a motion in limine. John Day (of Day on Torts) says: "Lawyers who cheat need to be popped - hard." He expresses frustration about an opposing attorney who rpeatedly violated an order because he knew that Day's side did not want a mistrial.

it is the responsibility of the lawyer to know what the judge has ruled in limine, and if he or she does not understand the ruling to ask for a clarification. It is not appropriate to gamble on what the order means and ask for forgiveness later.
Day on Torts: Sanctions for Misconduct of Counsel, March 30, 2006.

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Sex Offender Charged with Murder

Curtis S. Thompson, who spent 17 years in prison on rape convictions, has been charged with first-degree murder for the 2004 stabbing of a local woman (Deborah S. Byars). Convicted sex offender charged in 2004 slaying, Seattle Times, Aug. 22, 2006.

Thompson was convicted of four rapes in 1985. Before he was due to be released from prison (about 2002), prosecutors tried to have him committed as a sexually violent predator (see RCW 71.09).

They argued that Thompson had a history of sexual sadism, had refused sex-offender treatment in prison and was likely to offend again.

But a King County jury was swayed by his attorney's arguments that he had been a model prisoner and developed good relationships with women who worked for the Department of Corrections during his incarceration.
I imagine that some people are saying that it was wrong to release him from prison or that the jury was wrong not to find that he was a sexually violent predator. But that's hindsight. If the current allegations are true, then he did offend again. But, on the evidence they heard, should jurors have found beyond a reasonable doubt that Thompson had “a mental abnormality or personality disorder” that made him “likely to engage in predatory acts of sexual violence if not confined in a secure facility”? (see RCW 71.09.020(16), 71.09.060(1)) We can’t expect juries to be omniscient. And if we lowered the standard of proof, then we’d risk depriving of their liberty more people who were not risks to the community. I'm not at all saying that Ms. Byars's death was OK -- just that predicting it and preventing it might have been harder than one would think.

UW note: The prosecutor quoted in the article is Trial Ad instructor Scott O’Toole.

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Tuesday, August 22, 2006

Is Fear of Being Sued Why Doctors Don't Admit Mistakes?

Some doctors say that fear of litigation is what prevents them from admitting mistakes an apologizing. But a new study, comparing U.S. and Canadian doctors, questions that.

As debates over medical malpractice raged in Washington and across the country, many doctors have blamed a litigious system in the United States for discouraging doctors from openly admitting mistakes to patients. Those same doctors have held up the Canadian system, which drastically limits liability and discourages lawsuits, as a model.

But it turns out that it's not the risk of lawsuits that zips doctors' lips but rather the 'culture of medicine' itself, say leading researchers on the subject.

Canadian doctors are just as reluctant to fess up to mistakes, said Dr. Thomas Gallagher, a University of Washington internal- medicine physician and co-author of two studies published Monday in the Archives of Internal Medicine. They are the first to compare attitudes about error disclosure among doctors in the two countries.
Carol M. Ostrom, Lawsuit fears aren't reason for docs' silence on errors, Seattle Times, Aug. 17, 2006.

Another researcher mentioned in the article are Dr. Eric Larson (formerly at UW Medical Center and now the head of Group Health's Center for Health Studies).

The published studies are:
  • Thomas H. Gallagher, Amy D. Waterman, Jane M. Garbutt, Julie M. Kapp, David K. Chan, W. Claiborne Dunagan, Victoria J. Fraser, and Wendy Levinson, US and Canadian Physicians' Attitudes and Experiences Regarding Disclosing Errors to Patients, Archives of Internal Medicine. 2006;166:1605-1611. Link to abstract (will work for people at UW and other institutions with subscription).
  • Thomas H. Gallagher; Amy D. Waterman; Jane M. Garbutt; Julie M. Kapp; David K. Chan; W. Claiborne Dunagan; Victoria J. Fraser; Wendy Levinson, US and Canadian Physicians' Attitudes and Experiences Regarding Disclosing Errors to Patients, Archives of Internal Medicine, Aug 14/28, 2006; 166: 1605 - 1611. Link to abstract (will work for people at UW and other institutions with subscription).
The researchers found that the doctors studied were more likely to admit mistakes that would be discovered by the patient. Many doctors would discuss the problem indirectly (as "an adverse event" rather than "an error"). Only a third would apologize.

Is this really about "the culture of medicine"? Or is it equally hard for ordinary people to admit mistakes?

I did a little searching in PsychInfo, hoping to find studies about mistake-admitting generally. I didn't find much,* but I think it's an interesting question. Some percentage of doctors won't admit mistakes. Is it a greater or smaller percentage than bus drivers, police officers, air traffic controllers, firefighters, child care workers, bank tellers? What about whatever occupational group the Fonz was in?

Thanks: Greedy Trial Lawyer.

* Some possible leads for further research:
  • Nazareth, Avertano M; Kanekar, Suresh. Effects of admitting or denying a mistake. Journal of Social Psychology. Vol 126(4) Aug 1986, 531-537.
  • Gollwitzer, Peter M; Wicklund, Robert A; Hilton, James L. Admission of failure and symbolic self-completion: Extending Lewinian theory. [References]. Journal of Personality and Social Psychology. Vol 43(2) Aug 1982, 358-371.
  • Aaron Lazare, On Apology (Oxford University Press - hardback 2004, paperback 2005). Publisher's description.
Photo: Surgeons at work, NIH, from National Library of Medicine. By using this photo here I am not suggesting that these surgeons were making mistakes that they would not admit.

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Access for People with Disabilities

Ensuring Equal Access for People with Disabilities: A Guide for Washington Courts (Aug. 2006) is a new guide from the Impediments to Access to Justice Committee of Washington State's Access to Justice Board.

The whole guide is 79 pages. You can get a good introduction by reading People First: Ensuring Equal Access for People with Disabilities, which excerpts the report. The Bar News also offers a resources page, a Guide to Etiquette, and People-First Language Guidelines.

UW note: the committee that prepared the guide is co-chaired by Judge Catherine Shaffer (King County Superior Court), who is also a Trial Ad instructor.

Photo: Signing of the Americans with Disabilities Act. President George H.W. Bush (center) is flanked by Evan Kemp, Chairman, Equal Employment Opportunity Commission (left) and Justin Dart, Chairman, President's Committee on Employment of People with Disabilities (right). Standing are the Rev. Harold Wilke (left) and Sandra Swift Parrino, Chairperson, National Council on Disability (right). Photo is from EEOC website. (If you follow that link, note that this page is not current. The current page on the Americans with Disabilities Act is here.)

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Friday, August 18, 2006

Big Case Against Payday Lender

Washington's Department of Financial Institutions has filed a Statement of Charges against a payday lender, Check 'N Go of Washington, Inc. The company allegedly made borrowers write multiple checks for individual loans (often resulting in multiple NSF charges -- in violation of state law) and unlawfully collected borrowers' PINs.

This is an administrative proceeding "to revoke Check 'N Go's license, impose fines, order restitution, and charge for the cost of the investigation." With fines that could add up to $333,000, this is the biggest case in the agency's history. DFI press release: State Files Largest Case Against Payday Lender, Aug. 15, 2006.

For more on payday loans, see:

Thanks to Michele Storms for the lead.

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Clearinghouse Review Looks at Civil Gideon

The July-August 2006 issue of Clearinghouse Review: Journal of Poverty Law and Policy looks at "the growing momentum toward establishing a civil right to counsel," often known as "Civil Gideon."

Paul Marvy, a 2003 UW Law School grad now at Northwest Justice Project, wrote two of the articles:Other articles about individual states cover at Wisconsin, Maryland, Ohio, California, and Canada.

One article is actually excerpts from an amicus brief:
Eleven state court judges in Wisconsin filed an amicus brief in Kelly v. Warpinski, a case in which the petitioners asked the Wisconsin Supreme Court to take original jurisdiction and rule on their argument that the state constitution conferred a right to appointed counsel in civil cases. In their brief, the amici explained how pro se litigants burdened the courts; the amici argued that original jurisdiction in the supreme court was warranted under state law.
Judges' Views of Pro Se Litigants' Effect on Courts, 40 Clearinghouse Rev. 228 (2006). The argument addresses not just the problems faced by the pro se litigants themselves, but also the burden they create for the court system and other litigants. Providing counsel would benefit not just the unrepresented but all the players.

Thanks to Michele Storms for the lead.

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Thursday, August 17, 2006

Website Rates Federal Judges

The Robing Room gives lawyers, litigants, and others an opportunity to rate federal district judges and magistrates -- and to view others' ratings. The website is run by North Law Publisher, Inc. (New York).

So far, the sample sizes are far too small to mean much. For instance, in the Western District of Washington, only one judge has been rated at all, and that one has only been rated by one person.

That judge, Ronald B. Leighton did very well: straight 10s for Temperament, Scholarship, Industriousness, Ability to Handle Complex Litigation, Punctuality, Evenhandedness in Civil Litigation, and Flexibility In Scheduling. The one rater, who identified himself or herself as "civil litigation - private," did not rate the judge on the other criteria: Evenhandedness in Criminal Litigation; General Inclination Regarding Bail; General Inclination in Criminal Cases, Pre-Trial; Involvement in Civil Settlement Discussions; General Inclination in Criminal Cases, Trial; General Inclination in Criminal Cases, Sentencing; Typical Discount Off Guidelines for Cooperators.

Some other jurisdictions have had a little more ratings action. But even in the Southern District of New York, some judges have yet to be rated and no one has been rated by more than a handful of people. One judge whose ratings are posted (Judge Constance Baker Motley) died almost a year ago.

So, right now, the site is not a rich source of information. But I think it's worth watching to see if it fills out.

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Wednesday, August 16, 2006

Judicial Voter Pamphlet

A judicial voter pamphlet from the Administrative Office of the Courts will be published in newspapers around the state on Mon. Aug. 28. Washington Courts press release, Aug. 15, 2006. This voter pamphlet was begun in 1996 after a commission reviewed all aspects of our judicial selection system. (See The People Shall Judge: Restoring Citizen Control to Judicial Selection: A Report of the Walsh Commission, 1996 -- KFW525.5 .N6P46 1996 at Reference Area and Classified Stacks.)

The pamphlet will also be on the Washington Courts website. TVW will have a video voters guide with Supreme Court candidates.

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Tuesday, August 15, 2006

Food Additives

BusinessWeek Online has an article about food additives that are often not well explained to consumers -- for instance, an "artificial color" that is made from crushed beetles. (Some people might object because they are vegan or allergic to the substance.) An Insider's Guide to Food Labels, BusinessWeek Online, Aug. 13, 2006.

When I started reading this article, it was only for curiosity, but it turns out to have a trial practice angle: Seattle law firm Smith and Lowney sued three grocery chains for failing to label the artificial coloring in farm-raised salmon. Although the article says the lawsuits were "thrown out of court," the firm's website indicates the litigation is ongoing:

Thomas v. Albertson's Inc.; Dolin, et al., v. Safeway Inc.; Krupp, et al., v. Kroger Co.

Brought nationwide class actions against the nation's largest three grocery store chains for failing to label the artificial coloring in their farmed salmon. These chains operate over 6,000 grocery stores. Suit resulted in a firestorm of media attention across the nation. Within several weeks, Safeway, Kroger, Albertsons and others began labeling the color additives in their farmed salmon. Damages suit on behalf of consumers is still pending.
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Graphic by mw.

Odds of Dying from Injury

The National Safety Council provides a table with the odds of dying from various injuries. One column lists the number of U.S. deaths in 2003; the next lists the odds of dying from that activity in a year; the third lists the lifetime odds.  

[Update (Sept. 16, 2012): That link is broken. A graphic from 2012 is here. The National Safety Council invites you to purchase its book, Injury Facts, in order to get the detailed table. Or you can use the Internet Archive to view the 2004 stats here. And a page from Learn Stuff based on the NSC stats is here. Thanks to Hannah Edwards for pointing out the broken link and offering the Learn Stuff link. Even old blog posts can be interesting and useful, so it doesn't hurt to fix the broken links.]

This is all based on the raw numbers. For example, to compute the odds of dying for "Animal rider or occupant of animal-drawn vehicle," take 101 deaths in 2003 and divide by the 2003 population 290,850,005 -- 1 in 2,879,703 . Of course, most of us don't spend much time riding animals or riding in animal-drawn vehicles. If you were a jockey or rodeo rider, your odds of dying from an injury related to riding an animal would be much greater than the average American's.

There's a cool graphic from National Geographic (Aug. 2006) that presents the lifetime odds in a series of circles, dwindling as the odds get smaller. The graphic includes non-injury causes of death: heart disease (1/5), cancer (1/7), stroke (1/24), motor vehicle accident (1/84) ... fireworks discharge (1/340,733). The largest circle: "Total odds of dying, any cause: 1 in 1." (I'm not copying the graphic here because I'm cautious about copyright, but do take a look. It's a good example of the visual display of information.)

Here are selected lifetime odds of injuries that are often litigated in one way or another:

  • Motor vehicle accidents: 1 in 84
  • "Fall on same level from slipping, tripping, and stumbling": 1 in 6,278
  • Bitten or struck by dog: 1 in 117,127
  • Assault by firearm: 1 in 314
  • Assault by sharp object: 1 in 1,829
  • Complications of medical and surgical care: 1 in 1,313
Graphic from Thanks for the lead to beSpacific.

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ACLU Report Details Horrors Suffered by Orleans Parish Prisoners in Wake of Hurricane Katrina

ACLU Report Details Horrors Suffered by Orleans Parish Prisoners in Wake of Hurricane Katrina (press release Aug. 10, 2006):

As the anniversary of Hurricane Katrina approaches, the American Civil Liberties Union's National Prison Project today released Abandoned & Abused: Orleans Parish Prisoners in the Wake of Hurricane Katrina. The report documents the experiences of thousands of men, women and children who were abandoned at Orleans Parish Prison (OPP) in the days after the storm.

* * *

In conjunction with the report's release, the National Prison Project urged the president to direct the Department of Justice to evaluate OPP's current evacuation plans in an effort to determine whether any meaningful improvements have been made over the past year. The ACLU also asked Congress to audit the jail's emergency preparedness plans. The ACLU is calling for a full and immediate investigation into abuses at Louisiana correctional facilities during and after the storm and is also urging the DOJ to make the findings from such an investigation public and accessible to state and federal prosecutors.
The 145-page report is here (cover at right).

Thanks: beSpacific.

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Monday, August 14, 2006

Recordings of DUI Stops Admissible?

The Washington Supreme Court addresses the admissibility of sound and video recordings made during traffic stops. The case involves four consolidated cases, with drivers who were prosecuted for DUI offenses. Lewis v. State, --- P.3d ---, --- Wash. 2d ---, 2006 WL 2237888 (Aug. 3, 2006).

(There were two court of appeals cases on the way up, each dealing with two drivers: Lewis v. State, 125 Wash. App. 666, 105 P.3d 1029 (2005); City of Auburn v. Kelly, 127 Wash. App. 54, 111 P.3d 1213 (2005).)

First the Court considers whether the conversations were "private" and hence covered by the privacy act, RCW 9.73.030, which requires consent for recording private conversations. Justice Fairhurst, writing for a unanimous court, says no.

Next the Court looks at RCW 9.73.090, which includes:

A law enforcement officer shall inform any person being recorded by sound under this subsection (1)(c) that a sound recording is being made and the statement so informing the person shall be included in the sound recording, except that the law enforcement officer is not required to inform the person being recorded if the person is being recorded under exigent circumstances.
After reviewing the legislative history, the Court finds that the drivers must be notified of the recording.

Next, there's the question of remedy, and the Court holds that the appropriate remedy when a subject is not notified of the recording is to exclude it as evidence. So the cases are remanded. In one the recording will be admissible, because the driver was told the conversation was being "recorded" (even though the officer did not specify it was a "sound recording"). In the other three, the recordings will be excluded.

Photo: Washington State Patrol trooper at Mt. Rainier, from WSP.

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Vehicular Homicide and Separation of Powers

Does the vehicular homicide statute violate the separation of powers doctrine? In a Division II case decided last week, the appellant argued that the legislature improperly delegated definition of a term in RCW 46.61.520, because it made proximate cause an element of the offense without defining it. The court didn't buy the argument, but noted that it was an argument of first impression, and so published the discussion. State v. David, --- P.3d ---, 2006 WL 228587 (Wash. App. Aug. 8, 2006)(published in part), Westlaw, courts.

The unpublished portion of the opinion discusses various evidentiary and trial issues: (1) OK for the jury to see a picture of the victim when she was alive; (2) OK to exclude the victim's toxicology report; (3) jury instructions on proximate cause and DUI were fine; (4) prosecutorial misconduct in remarks during closing argument wasn't shown; (5) exceptional sentence upheld.

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Saturday, August 12, 2006

Start with Jury Instructions

Since jury instructions are the last thing jurors hear before they begin deliberations, David Swanner likes to plan his case around them -- even drafting them before he drafts the complaint. See South Carolina Trial Law Blog: Start Your Case with Jury Instructions (July 23, 2006).

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Paperless Law Office

Here's a comment from an attorney whose firm is very happy with handling everything electronically, scanning and using a case management system called TrialWorks: South Carolina Trial Law Blog: Going to a Paperless Law Office (July 27, 2006).

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More on ATLA's Name Change

ATLA Trades "Lawyers" for "Justice," ABA Journal eReport, July 28, 2006. Thanks to David Swanner (of South Carolina Trial Law Blog), who is quoted in the article saying he supports the name change "But I’m very proud of being a trial lawyer and being called a trial lawyer. I wouldn’t change that at all."

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Acquittals in Bench vs. Jury Trials

When should a defendant waive a jury trial in favor of a bench trial? Does it make any difference? Andrew Leipold studied the conviction rates in federal cases:

Andrew D. Leipold, Why Are Federal Judges So Acquittal Prone?, 83 Wash. U. Law Quart.151 (2005).

According to the abstract:

Federal criminal defendants almost always prefer a jury trial to a bench trial, but it is unclear why. Statistically, federal judges are significantly more likely to acquit than a jury is—over a recent 14 year period, for example, the jury trial conviction rate was 84%, while the bench conviction rate was a mere 55%. Moreover, while the conviction rate for juries has remained nearly constant for many years, the judicial rate has fallen steadily since the late 1980s. This Article presents the first systematic attempt to explain this “conviction gap.” Using original compilations of government records on over 75,000 federal criminal trials, this Article explores a variety of possible stories that would explain why judges and juries behave so differently. It concludes that some, but not all, of the gap can be explained by identifiable features of those cases that defendants direct toward judges rather than juries. It also concludes, however, that the recent changes in judicial behavior cannot be fully explained on these grounds; instead, the Article hypothesizes that the federal sentencing scheme, which changed dramatically during the 80s and 90s, may well have affected the way judges evaluate the government’s case in bench trials. The latter conclusions may have significant implications for the changes in federal sentencing that are likely to occur over the next several years.
For discussion by bloggers, see this post from The Volokh Conspiracy (July 24) and follow the links. Thanks to Oregon Legal Research.

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"Civil Gideon"

This week the ABA House of Delegates unanimously apporved a resolution urging governments to make counsel available as a right to low-income parties whose basic human needs are at stake. The full resolution, as adopted:

RESOLVED, That the American Bar Association urges federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody as determined by each jurisdiction.
Michael S. Greco, outgoing president of the ABA, strongly supported the proposal.
“This is historic,” Greco said, “in the realm of an extraordinarily meaningful action by the ABA,” expressing the principle “that every poor American, like every wealthy American, should have access to a lawyer to protect the fundamental needs of human existence.”
A Civil Law Gideon, ABA Journal Annual Meeting Daily Report, Aug. 8, 2006.

As ABA president, Greco encouraged the profession to recommit to its noblest principles, serving the disadvantaged and performing public service. He created the Commission on the Renaissance of Idealism in the Legal Profession, whose final report (Aug. 2006) is here. Recommendations included a set of resolutions:
  • that the ABA encourage lawyers to participate in pro bono work and that employers give lawyers the time to do so (Resolution adopted, Feb. 13, 2006).
  • that the ABA urge lawyers and law firms to adopt a set of Pro Bono Policies and Procedures (Resolution not yet submitted).
  • that the ABA urge law schools to require employers that interview to make their pro bono policies available and disclose their pro bono records AND that law schools have policies of their own encouraging pro bono service by all members of the law school community (Resolution not yet submitted).
  • the the ABA urge courts to develop programs to encourage pro bono representation of indigent parties (Resolution not yet submitted).
Several local attorneys served on the Commission or its Advisory Committee: Coast Guard Commander Benes Z. Andana (SU '91), former WSBA president Ronald R. Ward, Rudy A. Englund (UW '75), Kathleen J. Hopkins (UW '91).

Thanks to Michele Storms for pointing out this week's ABA resolution to me. Storms is the new executive director of the William H. Gates Public Service Law Scholarship Program. Thanks to Mary Hotchkiss for the information about the Commission on the Renaissance of Idealism in the Legal Profession.

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Neukom to be ABA President

Seattle Lawyer William H. Neukom was named president-elect of the ABA. Press release, Aug. 8, 2006. Neukom is currently chair of Preston Gates & Ellis; he worked for 17 years as executive vice president of Law and Corporate Affairs at Microsoft.

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Friday, August 11, 2006

Longtime defender making a case for a new generation of lawyers

After 33 years at The Defender Association, Bob Boruchowitz is leaving to join Seattle University School of Law's faculty. Longtime defender making a case for a new generation of lawyers, Seattle PI, July 28, 2006.

Norm Maleng, who became King County prosecutor the same year Boruchowitz assumed leadership of The Defender Association, said Boruchowitz's efforts have made Seattle's public defenders "the finest in the country."
Boruchowitz is proud to have helped change the public perception of public defense:
Before, he said, people were advised to hire lawyers if they possibly could.

Now they're told, "Don't mortgage your mother's house, because if you have the public defender's office, you'll be fine," he said.
Thanks: Public Defender Stuff.

Update (Nov. 2, 2006): See also Boruchowitz Moving To Seattle U., Bar Bull, Sept. 2006.

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New Orleans judge will start releasing prisoners if trials put off much longer

JURIST - Paper Chase: New Orleans judge will start releasing prisoners if trials put off much longer. There is a backlog of about 6000 cases and a shortage of public defenders.

For more on problems in the justice system post-Katrina, see the National Legal Aid and Defender Association's magazine, Cornerstone, whose Summer 2006 issue (cover at right) is devoted to the topic.

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Prison sexual violence often unreported for fear of reprisal: DOJ

Prison sexual violence often unreported for fear of reprisal: DOJ, Jurist - Paper Chase, July 31, 2006.

The Jurist story links to a report from the Bureau of Justice Statistics and the Prison Rape Elimination Act of 2003.

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Libby lawyers seek to use memory expert in CIA leak trial

Libby lawyers seek to use memory expert in CIA leak trial, Jurist - Paper Chase, Aug. 1, 2006. "In a court filing, Libby's attorneys said that testimony about how human memory works and why it fails will help a jury consider whether Libby lied to federal investigators about his knowledge of the CIA leak scandal. . . ." They hope to call as an expert Dr. Robert A. Bjork, chair of the UCLA's Psychology Department.

The Jurist article links to Libby's indictment and other resources.

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Immigrants file lawsuit against US government over delay in citizenship bids

The Council on American-Islamic Relations and the ACLU have sued the federal government, saying that their naturalization applications have been delayed for years because of the FBI's slowness in "name checks" referred to it by US Citizenship and Immigration Services. Immigrants file lawsuit against US government over delay in citizenship bids, Jurist - Paper Chase, Aug. 2, 2006. The complaint in Aziz v. Gonzales (C.D. Cal.) is here.

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Violent Felons in Large Urban Counties

Bureau of Justice Statistics Press Release: Violent Felons in Large Urban Counties, Aug. 6, 2006.

Fifty-six percent of the violent felons convicted in the nation's 75 most populous counties from 1990 through 2002 had a prior conviction record, 38 percent had a prior felony conviction and 15 percent had been previously convicted for a violent felony.
Links to the 12-page report and downloadable spreadsheets are here.

Thanks again to beSpacific.

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TRACking Federal Enforcement with Statistics: Tax, Immigration, More

Interested in statistics about federal enforcement efforts? Want to know whether tax fraud prosecutions are up, what corporations are most often audited, what the patterns are for prosecutions of federal wildlife laws? TRAC (Transactional Records Access Clearinghouse) is a great source.

TRAC is associated with Syracuse University. Researchers use FOIA to get data sets from the federal government, check them against other sources, analyze the data, and make the results available in different ways. Sometimes the FOIA requests must be backed by litigation -- for instance, Long v. Internal Revenue Service, No. C74-724P (W.D. Wash. April 3, 2006)(Judge Marsha Pechman's order graning TRAC's motion to require the IRS to provide certain statistics). See TRAC's press release (April 4, 2006) and update (May 21, 2006).

Subscribers to the TRACFED service can produce their own detailed reports from TRAC's databases. Various parties -- agencies, public interest groups, journalists, lawyers -- also hire TRAC statisticians to compile reports on different issues.

Some of the information available even without a subscription:

If you explore the site, you'll find much more. You can also sign up for email alerts -- general or immigration -- to learn about new reports as they come out.

I saw a demonstration of this site a few years ago and thought it was great, but I'd forgotten about it until I saw a post in beSpacific about the study of immigration judges today.

Graphic: Federal Tax Prosecutions, from TRAC.

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Computer Forensics

GCN (Government Computer News) offers a special report on computer forensics (July 31, 2006). Components include:

  • Computer forensics: The New DNA, featuring the Department of Defense's Cyber Crime Center ("DC3").
  • Who is accredited to analyze forensic evidence? Three states -- NY, OK, TX -- "have passed legislation requiring forensic evidence presented in court to have been processed by an accredited facility." There are only 12 labs accredited for computer forensics.
  • Darlene Druyun's downfall: e-mail, discussing the investigation of the Air Force employee who steered business to Boeing while negotiating for a job at Boeing -- the employee and Boeing's former chief financial officer both pleaded guilty to conflict-of-interest charges.
Thanks: beSpacific.

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The Legality of Web "Blacklists"

Findlaw columnist Julie Hilden discusses practical and legal implications of web-based lists of med mal claimants, doctors, lawyers, etc. The Legality of Web "Blacklists" (Aug. 1, 2006).

Her example is, which lists medical malpractice plaintiffs who have lost jury trials or settled their cases. The site (it wasn't available when I checked) apparently encourages doctors to avoid treating the plaintiffs -- at least for elective procedures -- and encourages the unsuccessful plaintiffs to sue their attorneys.

Hilden observes that sex offender lists may invite viewers to equate all offenders listed -- e.g., an 18-year-old convicted of statutory rape after having consensual sex with a teen partner with a 54-year-old child molester. She says that the solution is more information, not less. Likewise, she acknowledges the potential for improper use of a list of med mal plaintiffs, but says that, again, more information could address the problem -- e.g., if defendants had a right to post replies.

Thanks: beSpacific.

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Moussaoui Exhibits

The federal court that heard the Zacarias Moussaoui case has posted the trial exhibits from both prosecution and defense. Included are "all 1,202 exhibits admitted into evidence during the trial of U.S. v. Moussaoui, with the exception of seven that are classified or otherwise remain under seal. This is the first criminal case for which a federal court has provided access to all exhibits online."

Photo: Prosecution Exhibit Number MM00756.4: Interior close-up photo of the pilot and co-pilot area of a flight simulator for a Boeing 727 at the Pan Am International Flight Academy.

Thanks: beSpacific.

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Interpreting in Federal Courts

In the last fiscal year, federal court proceedings required interpreters in a total of 111 languages, according to a press release (July 31, 2006) from the Administrative Office for the U.S. Courts.

Spanish is by far the most prevalent language, accounting for 94% of the quarter-million proceedings. (I rounded a little: it was 227,461 events.)

Since 1994, some interpretation for short proceedings (such as pretrial hearings) is handled over the phone, through the Telephone Interpreting Program (TIP). Seven courts provide the service to 80 locations.

Thanks to beSpacific.

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A Blog's Life

I write a column for Law Library Journal. It's generally outside the scope of this blog, since practicing reference is not trial practice, but those interested in blogging might like the latest column, which describes my experience with Trial Ad notes: A Blog's Life, 98 Law Libr. J. 559 (2006).

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Wednesday, August 9, 2006

Voting for

A partnership of about a dozen organizations (including WSBA, KCBA, WSTLA, Washington Defense Trial Lawyers, and the League of Women Voters of Washington) has launched Voting for, a website with information for state voters about judicial candidates. (See Dec. 9 post about the Judicial Selection Coalition.)

The site includes a campaign financy summary and links to media stories.

Eventually the site will include links to endorsements and ratings by various newspapers and organizations.

I've been thinking about the endorsement process since I read a piece in the Stranger about Justice Madsen (Josh Feit, Dishonor Role, Stranger, Aug. 3, 2006), who was endorsed by SEAMEC (a gay and lesbian rights group) two years ago and yet wrote the majority opinion upholding the Defense of Marriage Act last month (Andersen v. King County, links to majority, two concurrences, and three dissents).

During the endorsement process Justice Madsen said that she did not believe that the purpose of marriage is for the nurturing of children or that same-sex marriage is a threat to the institution of marriage and the social fabric of the nation. The questionnaire and interviewers did not ask: "Applying a rational-basis standard to a statute such as DOMA, do you believe that the legislature could rationally believe those things?" And of course her assessment that the legislature's belief was rational was the hook for her decision, not her own belief. Yet can one blame the interviewers for being surprised by her decision? How could interviewers -- including laypeople untrained in the subtleties of constitutional analysis* -- be able to differentiate between what the candidate believes and what the candidate would later say it would be rational for the legislature to believe?

Canon 7(B)(1) of the Code of Judicial Conduct provides:

(1) Candidates, including an incumbent judge, for a judicial office:
* * *
(c) should not
(i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; [or]
(ii) make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court; * * *
How can an advocacy group assess a candidate's likely approach to cases without expecting the candidate to violate that rule?
* This is not to slight laypeople or any other interviewers. I've studied constitutional law a bit and my crystal ball would have missed this one too.

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Photo: Temple of Justice, Olympia, from Washington Courts website.

The 'Jewish' Con (Seattle Weekly)

Here's one I missed when it appeared: George Howland Jr., The 'Jewish' Con, Seattle Weekly, March 1, 2006. It discusses issues about religion in prison. Some prisoners who are not Jewish say that they are so that they can get kosher meals. That seems harmless enough if they just like the food -- but what about the gangs who arrange to have the special meals so they can meet in the dining hall? Or the White Supremacists who go to Jewish services to intimidate the Jews? What about the prisoners who sincerely believe in a faith, even without formal training in it?

According to the Weekly Sen. Ken Jacobsen (D. - 43rd Dist.) hopes to find a way to address the problem of gangs using religion as a pretext in prisons.

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Judges Disciplined

Washington's Commission on Judicial Conduct has given admonishments to two Pierce County judges. Judge Beverly Grant (superior court) was sanctioned for leading the courtroom in a cheer for the Seahawks during a sentencing proceeding; Judge David Ladenburg (Tacoma municipal court) for ordering a Muslim woman to leave his courtroom when she would not remove her head covering. Each judge agreed not to repeat the conduct and to study the Code of Judicial Conduct. Judge Ladenburg will also complete a course on cultural competence at his own expense. The Seattle Times: Local News: State penalizes judges; 1 ordered courtroom Seahawks cheer.

The Commission's orders are here: In re Beverly G. Grant (Aug. 4, 2006); In re David B. Ladenburg (Aug. 4, 2006). Both incidents had received media attention, and in both cases the judges had apologized for their missteps. In fact, Judge Grant filed the formal complaint with the Judicial Conduct Commission herself. The orders are interesting to read for the factual context. For instance, one reason Judge Grant's cheering for the Seahawks was seen as insensitive was that the case before her was a homicide that had taken place on the previous Super Bowl Sunday.

Well now, since the Times article led me to look at the Judicial Conduct Commission's orders, I'll also share a couple of others not mentioned by the paper:

  • Judge Robert D. Austin (Spokane County Superior Court) was admonished (Aug. 4, 2006) for disagreeing with a jury's verdict. After a jury rendered a guilty verdict, the judge met with the jurors in the jury room and told them that he was surprised. He explained that he had earlier denied a motion to dismiss for lack of evidence because he felt confident the jury would not convict, and now he expected further motions as a result of the verdict. He later said that he did not intend for his comments to be interpreted as a criticism of the verdict, but in agreed that his comments could have created the impression among the jurors that they had reached the wrong verdict or disappointed him.
  • A judge who is no longer sitting (because he lost the Nov. 2005 election) was censured. He contested many of the allegations -- from ethnic slurs to failure to maintain courtroom decorum -- but conceded some (e.g., that referring to a victim as a "heifer" was insensitive, even outside the presence of the parties) and agreed that it is likely that the Commission would be able to prove some or all of the facts and misconduct alleged if the matter proceeded to a public hearing. He accepted the censure and promised not to repeat the conduct should he hold judicial office again. In re Jonathan Martin (June 2, 2006)(Yakima Municipal Court).
  • Judge Mary Ann Ottinger (King County District Court) was censured and suspended for thirty days for failing to protect the rights of unrepresented defendants (especially during the entry of guilty pleas). Washington Supreme Court order (July 20, 2006); Commission decision (May 5, 2006). The Commission decision recounted that the judge's violations continued despite an order in 2004, but stopped in 2005. Because of Judge Ottinger's efforts to learn of standard practices, the Presiding District Judge for King County is reforming practices generally. One member of the Commission dissented because he would have imposed a harsher sanction: removal from office.
  • A municipal court judge was admonished for "impatient, undignified and/or discourteous demeanor," including "inappropriate humor." In re Stephen E. Moore, April 7, 2006 (Lynnwood Municipal Court).
  • Remember the two attorneys who pleaded guilty to federal charges related to accepting drug money? They were also censured by the Judicial Conduct Commission: In re James L. White, Oct. 28, 2005 (former Edmonds Municipal Court Judge); In re A. Mark Vanderveen (Dec. 9, 2005)(former Edmonds Municipal Court Judge Pro Tem). White was also disbarred (Feb. 3, 2006). (The WSBA directory shows that Vanderveen's license has been suspended but it does not link to the disciplinary notice.)
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