Saturday, March 31, 2007

Judicial Pay - Some Data

William Henderson, a law professor at the University of Indiana, has a very interesting analysis of the issue whether federal judges' pay creates a "constitutional crisis," as the Chief Justice suggested in his annual report. C.J. Roberts's "Constitutional Crisis" and the K Street Problem, Empirical Legal Studies, Jan. 27, 2007.

Chief Justice Roberts compared federal judges' salaries with the earnings of partners in the law firms in the Am Law 50 (American Lawyer's list of the biggest firms). Prof. Henderson put together a chart showing that, indeed, the partners' income has grown much faster in the last twenty years than has the judges'.

But are Am Law 50 law firms the right comparison group? Henderson goes on to look at partners in all law firms. And federal judges have done a little better than keep up with the average partner 20-25 years out of law school. Studies of Chicago lawyers in 1975 and 1995 showed solo practitioners' earnings going down dramatically, with many of them working second jobs in the 1990s.

Henderson also points out that federal judges make a lot more than state judges. Does it take that much more talent to think about federal law than state law?

You might be interested in the National Center for State Courts report Henderson cites: Survey of Judicial Salaries (as of July 1, 2006) (revised March 1, 2007). Washington judges are pretty much in the middle:

Henderson concludes by noting that judges with less than kingly salaries have to make decisions like: smaller house or longer commute?

In other words, their problems will be more like 98% of the American electorate, albeit still very much at the high end.

Why is this a "constitutional crisis"? Some of us might call it "sensible policy."
I'm reminded of a comment by a public defender:
Well, tough cookies. It's called public service, Mr. Chief Justice. Many of us do it for much, much less than federal judges do. And we don't have the job security of life tenure. Or people calling us "Your Honor" all the time. Suck it up.
I'm Having a Constitutional Crisis About My Low Salary, Too, Injustice Anywhere ..., Jan. 4, 2007.

Graphics from Survey of Judicial Salaries.

Friday, March 30, 2007

Portrait of Sex Offender

This week's cover story in The Stranger is a portrait of a sex offender living on the Olympic Peninsula. Using his story, it examines issues related to sex offender registration requirements generally. Eli Sanders, The Offender: The Life and Letters of Jefferson County's Only Level 3 Sex Criminal, Stranger, March 27, 2007.

Erik Mart's crimes are not the most alarming sex offenses -- he didn't abuse children, he did not have sex with the complainants [see update below], he didn't kill anyone. In 1991 he was convicted in California after a drunken incident when he went into his female apartement-mate's room and tried to have sex with her (but was thwarted by her kicks and screams). In 1997 he was convicted in Colorado after an incident (he was drunk again -- as he often was) when he used a key (he was an apartment manager) to enter a woman's apartment seeking sex (but was thwarted by her calling the police).

This record means that he is required to register as a sex offender. The sheriff in the county where he lives has classed him as a Level III offender -- that is, the most likely to reoffend. (I had not realized that it is local law enforcement that assigns a level to offenders who are required to register. One county could call someone a I or a II while another considers him a III. There is a rating tool to guide the decisionmaking.) The community notice about a Level III offender is greater than with others, so wherever he is, it is hard for him to keep a job and stable residence.

Sanders, the article's author, approached the profile with a critical eye and did not take Mart's version of events at face value. Thus, he reveals a harsher past than Mart does.

This observation about the effects of harsh sentencing and lifelong registration is striking:

Alisa Klein, spokeswoman for the Association for the Treatment of Sexual Abusers, says some recent studies have shown reports of violent sex offenses declining in the U.S., and that some see that as validation of the punitive approach. But she emphasized that those studies focus only on reported sexual violence. "I think that we actually have not seen a decline at all," Klein told me. "I think that, in fact, the public policy that we've created over the last few decades has created a situation that pushes incidences of sexual violence underground, instead of motivating prevention and motivating reporting."

She believes that people like Mart are increasingly reluctant to register. She also believes that victims of sex offenses are increasingly discouraged from reporting such crimes (and from seeking help) because the punishments are now so swift and harsh. This applies, she says, to the mother who notices her son engaging in potentially offensive behavior but is scared to seek help for fear of tagging him with a lifelong label, the wife who is unsure of whether her husband is abusing her children but fears involving child-welfare authorities because of their obligation to involve police in such situations, and the parents who know their child is engaged in a healthy relationship that crosses the borders of the age of consent (say, a 17-year-old dating a 15-year-old) but become fearful of the relationship's potential legal consequences if it ever goes sour.
(emphasis added).

Update (Nov. 17, 2008)
* In my original post, this phrase was "he didn't succeed in his attempted rapes." Mr. Mart wrote and asked that I change that. Here is his comment, which includes the news that he is working on a book:
My name is Erik Mart. You wrote about my case(s) on your Trial Advocacy site after The Stranger article was published last year (The Offender, March 2007).

While I appreciated your interest in my story, and generally felt your take was fair and accurate, there was one troubling exception. In part of your opening statement you wrote: "…he didn't succeed in his attempted rapes…."

I believe you were not aware of the fact that I was charged with both Attempted Rape and Intent to Rape (Orally) in the first case, and that both these charges were dismissed due to the absence of evidence. I can assure you that had I intended to rape or force my California roommate, this would have been evident in my pretrial examination (where we went over all this) and I would be in prison today. I was not charged with Rape or Attempted Rape in the second trespass. These are important legal points which Mr. Sanders chose not to include in his story, among others.

I would not be concerned about this now, so long after the fact, if this erroneous statement didn't continue to appear on Internet searches associated with my name and legal cases. I feel, therefore, it is not unreasonable to request a small correction to this post. If you are determined the statement should remain (as your opinion) then please make that clear.

For a number of years now I have been committed to living a productive, happy and offense-free life. I am clean and sober, running a landscaping business full-time, building my own home, and I am very active in my community. I have written for and Z Legal Times: and I am now compiling my legal and social odyssey in a memoir called MonsterMart: How I Joined America's Most Unwanted, which has received praise from a former Simon & Schuster editor as well as a recent offer of representation from a literary agent. I also have a new blog which you or your readers may find of interest, where I am posting information about my cases, my status, and news related to sex offender crimes, laws, punishments etc.

Lying Cops?

Cops' alleged lie leaves 17 cases in jeopardy, Seattle Times, March 30, 2007.

Two Seattle bicycle officers arrested a man on a drug charge. After he was released a few hours later, he complained about their conduct. Among other things, he said that they had also handcuffed and detained another man -- a fact not mentioned in their report. The officers denied it, but a store surveillance tape showed that they had done it. So the police department is investigating them.

The department has also taken the unusual step of sending a letter to defense counsel in 17 cases where the officers could be witnesses, alerting them to possible problems with the officers' credibility.

An SPD spokesperson cautions people not to jump to conclusions and the president of the police union says the incident has been blown out of proportion.

One of the officers has been accused by defense attorneys of lying in the past. Two defamation cases he filed in response were dismissed.

Update: Drug suspect released; trial delayed, Seattle Times, March 31, 2007.

  • In one federal case, an alleged drug dealer has been released until the investigation of the officers has been completed.
  • In another federal case, a trial was delayed from April 2 to May 14.
  • 15 cases in King County Superior Court, most involving cocaine possession, may be affected.
Update: NAACP calls for outside probe of Seattle officers, Seattle Times, April 4, 2007.

Thursday, March 29, 2007

National DV Count

The National Network to End Domestic Violence released the results of a national census, having domestic violence programs around the country report the number of people seeking assistance during one 24-hour period in November 2006. Over 1000 programs responded (60% of the programs identified). In that one day, over 47,000 adults and children were served, almost a third in emergency shelters. Over half received non-residential services, such as counseling, legal advocacy, and children's support groups. Executive Summary; full report.

Wednesday, March 28, 2007

Zoning Sex Offender Out of House

After a registered sex offender moved into property owned by his mother, the city of Issaquah passed a zoning ordinance that limited registered sex offenders to non-residential areas, forcing him to move. Judge Linda Lau (King County Superior Court) upheld the ordinance last year. Issaquah sex offender law is upheld, Seattle P-I, 2/24/06.
Now he and his mother are challenging the ordinance as applied to them; the case will be heard on June 4. Challenge to Issaquah sex-offender law to be heard, Seattle Times, 3/29/07.

The ACLU of Washington's website includes a press release from when the case began (August 2005) and its brief in opposition to summary judgment (December 2005).

Programs for Youth in Detention

The Seattle Times describes programs at Snohomish County's Denney Juvenile Justice Center, which are getting national attention. Instead of just locking the young offenders up for a period, the center connects them with drug and alcohol programs, has them take classes run by the Everett School District, and offers art and creative writing programs staffed by volunteers.

[Margie] Holloway, the juvenile-court programs manager, said 90 percent of the kids who pass through Denney will have contributing lives as adults. And the accepting teachers and arts volunteers play a big role in the center's successes, she said.
Young offenders discover the power of poetry and Art, Seattle Times, 3/29/07. The Denney Juvenile Justice Center, built in 1998, was named for a juvenile court judge (Charles Denney). It includes three courtrooms (for criminal offenses, for dependency cases, and for truancy infractions and other proceedings). The average stay for youth in the detention facility is 6-7 days, but they can stay as long as a year and a half. Juvenile justice under one roof, Seattle Times, 3/29/07.

State Legislation Affecting Courts

The National Center for State Courts has launched Gavel to Gavel, a weekly newsletter reporting proposed legislation affecting courts around the country.

Each issue has a special focus, either on a state or a topic -- for instance, eminent domain post-Kelo (1/11/07), judicial election financing (2/1/07), Jail4Judges (2/8/07), and court stripping (legislation to take jurisdiction over hot-button issues away from courts) (2/22/07).

You can read the issues online or subscribe via email.

Most Med Mal Claims Net $0

The Bureau of Justice Statistics released a report on Medical Malpractice Insurance Claims in Seven States, 2000-2004, press release, March 25, 2007.

The states studied have comprehensive databases recording all medical malpractice claims that close.


  • About 1/3 of claims resulted in a payout in ME, MO, and NV. In IL, it was only 12%.
  • When there is a payout, it is often not as large as some people might think. Less than 10% of claims in FL, ME, MO, and NV had payouts over $1 million.
    Among persons receiving compensation, insurance payouts were highest for claimants who suffered lifelong major or grave permanent injuries. In Florida and Missouri, claimants with these types of injuries received median payouts ranging from $278,000 to $350,000. Insurance payouts were lowest for claimants who suffered temporary or emotional injuries. In Florida and Missouri, claimants who suffered these types of injuries received median payouts ranging from $5,000 to $79,000.
  • Payouts get bigger the longer a claim is in the system:
    Medical malpractice insurance payouts increased as the insurance claims advanced through the legal system. Payouts were typically lowest for claims closed prior to the filing of a lawsuit and highest for claims closed after trial. In Florida, Nevada and Texas, claims decided by trial resulted in median payouts that were at least two and a half times larger than claims that were settled. Claims closed after a trial also cost more for insurance firms to defend than claims settled at or prior to a trial. In Florida, Nevada and Texas, 95 percent or more of medical malpractice claims were settled prior to a trial decision before a jury or judge.
The full 12-page report is Thomas H. Cohen & Kristen A. Hughes, Medical Malpractice Insurance Claims in Seven States, 2000-2004 (March 2007).

Tuesday, March 27, 2007

National Criminal Justice Trial Advocacy Competition

Good luck to competitors at the ABA's National Criminal Justice Trial Advocacy Competition in Chicago this Thursday through Saturday. The UW is one of twenty law schools represented (actually, nineteen law schools and one Inn of Court from London).

You can look at the competition files for this year as well as for many past years.

Deposition Rocket Science

I came across an ad for LiveNote, a suite of products to help manage deposition transcripts, exhibits, and so on.

There are some interesting possibilities. For instance, one system feeds the court reporter's transcript into the lawyer's laptop. Even with the laptop's screen folded down (to avoid distraction), the lawyer can mark key passages by pressing the spacebar or a number.

Another system can connect the lawyer taking a deposition with colleagues, even in another office or city. Seeing the real-time transcript and a video image of the deponent, they can then use an instant message system to suggest lines of questioning or comment on what was just said. (This might feel familiar to students who IM during class.)

I'm sure there are other products out there. This one just happens to be one whose ad I saw. (LiveNote is owned by Thomson West, and I'm on West mailing lists.)

Technology certainly makes a lot possible. I wonder how much it's used and in what sorts of practice. Complex cases worth millions of dollars would justify investment in equipment, software, and training, but there are no doubt cases that can be handled just as well with the very simplest of technologies (legal pads, trial notebooks, and so on).

Is this an area with a big firm/small firm split? Or are there some solo practitioners who run high-tech practices and some big firm (or big government) lawyers who are less wired?

How much of trial practice is rocket science?

Photo (liftoff of the Apollo 11 Lunar Landing mission) courtesy NASA.

Saturday, March 24, 2007

Political Meddling in DOJ Tobacco Case?

Prosecutor Says Bush Appointees Interfered With Tobacco Case, Wash. Post, March 22, 2007:

The leader of the Justice Department team that prosecuted a landmark lawsuit against tobacco companies said yesterday that Bush administration political appointees repeatedly ordered her to take steps that weakened the government's racketeering case.

Sharon Y. Eubanks said Bush loyalists in Attorney General Alberto R. Gonzales's office began micromanaging the team's strategy in the final weeks of the 2005 trial, to the detriment of the government's claim that the industry had conspired to lie to U.S. smokers.

* * *

"The political people were pushing the buttons and ordering us to say what we said," Eubanks said. "And because of that, we failed to zealously represent the interests of the American public."

* * *

High-ranking Justice Department officials said there was no political meddling in the case, and the department's Office of Professional Responsibility (OPR) concurred after an investigation.
Thanks: Day on Torts.

"Jurors" in Study Favor Good-Looking Defendants

British psychologist Sandie Taylor gave 96 subjects a transcript of a mock mugging trial, paired with a picture of the "defendant." Good-looking defendants were less likely to be "convicted." Race didn't make a difference at the guilt phase, but the mock jurors gave longer sentences to black defendants. Ugly defendants 'more likely to be found guilty than attractive ones', Evening Standard, March 21, 2007.

The study is: S. Taylor & M. Butcher, Extra-legal Defendant Characteristics and Mock Juror Ethnicity Re-examined. Forthcoming in Proceedings of the British Psychological Society.

Thanks: Above the Law.

Thursday, March 22, 2007

"Abandoned" DNA

Police DNA Collection Sparks Questions, Wash. Post (AP), 3/17/07, discusses cases where the police gather DNA that a suspect has "abandoned" -- for instance, by spitting on the sidewalk or allowing one's plate and flatware to be cleared after eating in a restaurant. The DNA profiles may clear cold cases, but what of the privacy concerns?

The newspaper article quotes UC Davis law professor Elizabeth Joh, the author of Reclaiming 'Abandoned' DNA: The Fourth Amendment and Genetic Privacy, 100 Nw. U. L. Rev. ___ (2006), available at SSRN: The abstract:

We leave traces - skin, saliva, hair, and blood - of our genetic identity nearly everywhere we go. Should the police be permitted, without restriction, to target us and to collect the DNA that we leave behind? In a growing number of instances, the police, unburdened by criminal procedure rules, seek this abandoned DNA from criminal suspects in hopes of resolving otherwise unsolvable cases. Abandoned DNA is any amount of human tissue capable of DNA analysis and separated from an individual's person inadvertently or involuntarily, but not by police coercion. What are the consequences of allowing this investigative method to remain unregulated? In stark distinction to the growing body of commentary on the collection of DNA samples for state and federal DNA databases, little attention has been paid to this backdoor method of DNA collection.

Deciding whether DNA might ever be abandoned is important, because abandoned DNA provides the means to collect genetic information from anyone, at any time. Criminal procedure law poses no restrictions on this kind of evidence collection by the police. Not only does the label of abandonment affect police behavior, it also raises basic questions about the changing nature of legal identity. How should we characterize the relationships between our physical bodies and our identities, now that nearly any body particle can reveal our genetic information? The final part of this Essay proposes first steps towards addressing the problem, but its primary task is to show the need to reframe the debate over covert involuntary DNA sampling and to make the case for genetic exceptionalism.

Standard for Harmless Error Review in Habeas

Supreme Court hears arguments in 'harmless error' case, Jurist, 3/20/07. In Fry v. Pliler the Court will consider whether whether "a court should apply the 'harmless beyond a reasonable doubt' standard of Chapman v. California or the 'substantial and injurious effect' standard of Brecht v. Abrahamson in a federal habeas proceeding for which the lower state courts did not conduct a harmless error analysis."

Inflammatory Death Penalty Argument?

Supreme Court considers 'inflammatory' penalty arguments in capital case, Jurist, 3/21/07. The case is Roper v. Weaver -- the 8th Circuit, below, overturned a death sentence because the prosecutor's argument was "unfairly inflammatory" (as opposed to appropriately inflammatory, I guess).

Early Report on Rule Requiring Fed Judges to Report Junkets

Federal judges slow to report travel expenses as required: court watchdog, Jurist, 3/22/07. The Judicial Conference adopted a rule that requires federal judges to report attendance at privately-funded educational programs within 30 days. The rule became effective Jan. 1, but nobody has reported a trip yet.

A longer story: U.S. Judges Slow to Disclose Travel, Wash. Post, 3/21/07.

Wednesday, March 21, 2007

Man Sentenced for Enslaving Girl He Met Online

Man gets 10 years for having sex with teen he treated as slave, Seattle P-I, 3/21/07.

With all the talk about federal prosecutors, it's good to be reminded of some work that they do. Here's a case from the Western District of Washington -- William Diehl, a 44-year-old man from Aberdeen, was sentenced in district court in Tacoma. His crime crossed state lines in a big way: he met a teenage girl over the Internet, then drove to Maryland to pick her up, and drove her back to Washington State, calling her by a "slave name" and having her call him "master." Diehl pleaded guilty to traveling to have sex with a minor.

The information presented in the case was so alarming that Judge Ronald Leighton told Diehl that he was someone to be feared.

"You are a parent's worst nightmare," the judge said.

Leighton approved the prison sentence, telling Diehl that "you cannot be allowed to interact with vulnerable people in the misguided belief that (they) were presented for your pleasure."
The U.S. Attorney's Office press release (3/20/07) is here.

U.S. Attorney Update

Say, have you heard that the Administration's handling of U.S. attorneys has been in the news lately?

A few of today's headlines (with some words of two of the fired U.S. attorneys):

  • McKay went from hero to zero with Justice Department, Seattle Times, 3/21/07.
  • Fired McKay being treated unfairly, Reichert says, S. Times, 3/21/07.
  • Timeline | John McKay's fall from favor, S. Times, 3/21/07.
  • Bush fires back, stands by Gonzales, S. Times, 3/21/07.
  • Justice Dept. saw McKay as 'effective' -- yet bristled at his 'insubordination', Seattle P-I, 3/21/07.
  • McKay cites a 'grievous error', Seattle P-I (from N.Y. Times), 3/21/07:
    "What's hard to fathom," [McKay] said, "is that people sworn to support and defend the Constitution of the United States, who are Justice Department officials, didn't tell political people to go pound sand, which is what they should have done and which I expected them to do and which I know all my colleagues expected them to do."
  • House Panel Authorizes Subpoenas for Top Bush Aides, New York Times, 3/21/07.
  • David C. Iglesias [former U.S. Attorney for the District of New Mexico], Why I Was Fired, N.Y. Times, 3/21/07.
    United States attorneys have a long history of being insulated from politics. Although we receive our appointments through the political process (I am a Republican who was recommended by Senator Pete Domenici), we are expected to be apolitical once we are in office. I will never forget John Ashcroft, then the attorney general, telling me during the summer of 2001 that politics should play no role during my tenure. I took that message to heart. Little did I know that I could be fired for not being political.

    * * *

    As this story has unfolded these last few weeks, much has been made of my decision to not prosecute alleged voter fraud in New Mexico. Without the benefit of reviewing evidence gleaned from F.B.I. investigative reports, party officials in my state have said that I should have begun a prosecution. What the critics, who don’t have any experience as prosecutors, have asserted is reprehensible — namely that I should have proceeded without having proof beyond a reasonable doubt. The public has a right to believe that prosecution decisions are made on legal, not political, grounds.

    What’s more, their narrative has largely ignored that I was one of just two United States attorneys in the country to create a voter-fraud task force in 2004. Mine was bipartisan, and it included state and local law enforcement and election officials.

    After reviewing more than 100 complaints of voter fraud, I felt there was one possible case that should be prosecuted federally. I worked with the F.B.I. and the Justice Department’s public integrity section. As much as I wanted to prosecute the case, I could not overcome evidentiary problems. The Justice Department and the F.B.I. did not disagree with my decision in the end not to prosecute.

And one article from Sunday's Week in Review section: Adam Liptak, For Federal Prosecutors, Politics Is Ever-Present, N.Y. Times, 3/18/07.
“U.S. attorneys are the branch offices of the Department of Justice,” said Douglas W. Kmiec, a former Justice Department official in the administrations of Presidents Ronald Reagan and George H. W. Bush. “It’s an employer-employee relationship.”

As a legal matter, at least, that means the Justice Department was within its rights in the recent dismissals, said Rory Little, a former Justice Department official in the Clinton administration who is on an American Bar Association task force on prosecutorial ethics.

“It has always been a patronage position,” Mr. Little said. “Can the president fire a U.S. attorney for any reason at all? The answer is yes.”

At the same time, United States attorneys are by custom insulated from politics and have, except when administrations change, great job security. They are meant to make individual prosecutorial decisions based only on the facts of the cases before them, without regard to political consequences.
The Washington Post has a page linking to a couple of dozen of its stories about the U.S. attorney firings, if you've gotten behind on the controversy.

Tuesday, March 20, 2007

More on McKay, U.S. Attorneys

Justice Department Tried to Help McKay Get Judgeship, The Seattle Times: Postman on Politics (blog), March 20, 2007.

Bush warns Dems to take offer in firings, Seattle P-I (AP), March 20, 2007:

A defiant President Bush warned Democrats Tuesday to accept his offer to have top aides testify about the firings of federal prosecutors only privately and not under oath or risk a constitutional showdown from which he would not back down.
New light on McKay firing, Seattle P-I, March 20, 2007:
Two months before U.S. Attorney John McKay was fired, top Justice Department officials traded e-mails excoriating McKay for commenting in a Seattle P-I story about deep budget cuts and layoffs in his office.

Guilty Plea: Adult Using Internet for Sexual Contact with Teens

Ex-King County official pleads guilty to Internet sexual contacts with teens, Seattle Times, March 20, 2007. The official was the financial director of the King County Prosecutor's Office. The "teens" were actually undercover officers purporting to be 13- and 14-year-old girls.

But wait! There's more! I clicked over to our city's other newspaper and learned that he also faces charges that he stole $72,000 from Prosecutor Norm Maleng's re-election campaign. Longtime King County Prosecutor's Office employee guilty of luring: Larry Corrigan worked on political campaigns, Seattle P-I, March 20, 2007.

Judge Jones Nominated for W.D. Wash.

President Bush has nominated Judge Richard Jones (King County Superior Court since 1994) to fill the vacancy in the Western District of Washington created by Judge Coughenour's taking senior status. Superior Court Judge Jones nominated for federal judgeship, Seattle Times, March 20, 2007.

Judge Jones graduated from the UW School of Law in 1975. He was a deputy prosecutor for King County, an assistant U.S. attorney, and an associate at Bogle & Gates before becoming a judge. For more biographical information, the press release from when he received WSBA's Outstanding Judge Award (2004) and the profile in the King County Bar Bulletin the same year.

Law Reviews Irrelevant to Judges

Benjamin N. Cardozo School of Law "hosted a roundtable discussion between seven judges from the US Court of Appeals for the Second Circuit and the Law School’s faculty. Together they examined the declining influence of law reviews. Guided by Vice Dean Michael Herz, Cardozo students examined citations from the 1960s to present of five prestigious law reviews. Their findings show that courts cite law review articles less today than in the '70s and '80s, content is more theoretical than practical, and there is an increase in citations from specialty journals." Cardozo news release, March 8, 2007.

A New York Times story is getting some buzz: Adam Liptak, Rendering Decisions, Judges Are Finding Law Reviews Irrelevant, N.Y. Times, March 19, 2007. (You need to subscribe to TimesSelect to see the whole thing on the Web; it should also be on LexisNexis.)

"I haven't opened up a law review in years," said Chief Judge Dennis G. Jacobs of the federal appeals court in New York. "No one speaks of them. No one relies on them."
That's overstating it, of course. Law reviews might not be cited with the same frequency they were 20 or 30 years ago, but they are still cited.

Some possible reasons that judges use law reviews less now:
  • There are more research tools available. In 1970, a law review article was an efficient way to get a survey of cases from many jurisdictions. Now judges (and their clerks) can use a law review article or full-text searching on LexisNexis or Westlaw.
  • Fewer law review articles are strictly doctrinal. "The asembled judges pleaded with the law professors to write about actual cases and doctrines, in quick, plain and accessible articles."
  • Judges are too busy -- with heavier caseloads, who can bother reading law reviews?
  • Judges lack intellectual curiosity. "The claim by judges that they have no use for law review articles seems to me an anti-intellectual know-nothingism that is understandable but regrettable, Professor [Michael C.] Dorf said."
  • Law reviews are too slow -- the quickest legal commentary is in blogs.

Monday, March 19, 2007

History Lesson: Segregated Court

Interested in history? Civil rights?

I just finished reading a student piece about a little-known trial court, Miami's Negro Municipal Court (1950-1963), a municipal court that handled only cases against black defendants arrested by black patrolmen. Ernesto Longa, Lawson Edward Thomas and Miami's Negro Municipal Court, 18 St. Thomas L. Rev. 125-38 (2005).

Who could support a Jim Crow court? Interestingly, many of the leaders of the black community. In a city with no black judges and blatant unfairness to black defendants, the Negro Municipal Court -- presided over for many years by Miami's first black judge -- gave defendants a fair deal. (It also protected black victims, treating crimes against them more seriously than the white courts did.)

Longa concludes his piece:

The proponents of an all-black court did not see the court as a panacea but simply as a tool to make "the Negro a little larger citizen" within the bounds of segregation. Within the court, many black defendants experienced due process and equal protection under the law for the first time. Black defendants were presumed innocent until proven guilty, given an opportunity to be heard, and, most importantly, treated with humanity and dignity. Ironically, Judge Thomas's resolve to combat the disparate treatment black defendants experienced in the white dominated courts solely based on the race of the victim resulted in tougher sentences for black violent offenders. Further, court proponents contended that it was Thomas's toughness toward violent offenders that exemplified the court's service to the black community. While the court was accurately criticized as second rate because of the jurisdictional limitations imposed by the white establishment, the justice rendered to individual black defendants by the all-black court was first-class. The historical importance of the court is not what it was incapable of doing, but rather how court proponents used the court to both serve the best interest of the black community and advance the cause of individual civil rights.
Id. at 138.

Gonzales Is Sorry for Saying Performance Was the Problem

JURIST - Paper Chase: Gonzales apologizes to prosecutors for mishandling US Attorney firings, March 18, 2007:

US Attorney General Alberto Gonzales apologized in a conference call with federal prosecutors Friday for mishandling the dismissal of eight US Attorneys. Gonzales has been heavily criticized since he fired the attorneys in 2006 amid speculation the moves were politically motivated. During the phone call, Gonzales regretted suggesting the firings were reflective of the prosecutors' job performance but was clear in his refusal to apologize for the firings themselves.

Facts Can’t Speak for Themselves

Facts Can’t Speak for Themselves: Reveal the Stories that Give Facts Their Meaning, a book from NITA, offers trial attorneys help in framing persuasive narratives for juries.

Dave Swanner (South Carolina Trial Law Blog) says it's "a fascinating book on how to present information to help jurors learn and how the decision making process works."

Every decision maker is influenced by far more than his or her background and beliefs. Every decision maker has an imagination and they use it to create many more than one version of your client’s case story. Then, each judge, negotiator, mediator and juror settles on one private version of your story and decides your case from that version. Facts Can’t Speak for Themselves offers trial attorneys proven ways to uncover the full range of those "rewritten" stories in focus groups, and how to take their best elements into court and other venues to deliver a story more likely to persuade than the one you thought you had.
-- publisher's info. Facts Can't Speak for Themselves is available in the library: K181 .O44 2005 at Classified Stacks.

2007 Criminal Justice Summit

Washington's biennial Criminal Justice Summit -- coming up March 28-30, in Gig Harbor -- brings together "Washington state's justice partners ... law enforcement, government officials and courts and non-profit advocay groups." Featured speakers include "the Honorable Monica Benton, United States District Court Magistrate Judge; Brian Moran, Washington Chief Deputy Attorney General; Bob Welden, General Council, Washington State Bar Association; and Robin Hunt, Washington Court of Appeals." Washington Courts press release, March 16, 2007

Community Court: From Retribution to Rehabilitation

The Seattle Channel as a segment (about 10 minutes) on Seattle's Community Court. The community court approach emphasizes community service and social service treatment over jail time for minor crimes -- prostitution, petty theft, drug possession -- often by people who are homeless. The video includes clips of court administrators, Presiding Judge Fred Bonner, City Attorney Tom Carr, defense attorney Dave Chapman (Associated Counsel for the Accused), and a defendant who was helped by the program. Seattle Channel -- CityStream, Dec. 21, 2006.

Judge Bonner says that the program has changed him -- not just the defendants:

I used to be considered somewhat of a hardass, and now I don't look at things the same as I did before.I look at the individual who appears before me as a person who's crying out for help. I am in a help mode rather than a punishment mode. ... My original indoctrination into the system was one of retribution. I've come all the way from retribution to rehabilitation.

Friday, March 16, 2007

Federal Judges Want More Federal Judges; Court Stats

The Judicial Conference of the United States voted to recommend that Congress create 67 new judgeships (15 appeals court, 52 district court). Why? Consider that the number of appellate judges has remained constant since 1990, while the number of appeals filed has gone up 55%. Congress has increased the number of district judgeships 4%, but the caseload has gone up 29%. Federal Judiciary News Release, March 15, 2007.

The local angle:

  • The Ninth Circuit currently has 28 judgeships. The Conference recommends 5 permanent and 2 temporary judgeship be added.
  • The Western District of Washington currently has 7 judgeships; the conference recommends one more.
The Judicial Conference also:
  • Gave the go-ahead for a pilot project adding digital audio recordings to PACER.
  • "Strongly urged" courts to make it more clear when cases have been sealed. When you search electronic dockets currently, you can sometimes get a notice that "case does not exist"; the Conference says the message should be "case under seal."
  • Told the Committee on Judicial Conduct and Disability to work up guidelines on judicial disability that could be applied nationwide.
This week, the U.S. Courts also released its annual statistical report (covering the year ending Sept. 30, 2006), Judicial Business of the United States Courts 2006. For an overview, see the press release (March 13, 2007).

The local angle:
  • Civil Cases Filed (Table C-3, p. 172)
    • total civil cases: E.D. Wash. 701; W.D. Wash. 2,772
    • "U.S. Civil": E.D. Wash. 288; W.D. Wash. 677
    • Social Security: E.D. 175, W.D. 254
    • Civil Rights: E.D. 7, W.D. 47
    • Prisoner Petitions
      • Motions to Vacate Sentence: E.D. 27; W.D. 35
      • Habeas Corpus General E.D. 5; W.D. 91
Case Dispositions (Table C-5, p. 194).
  • How many case dispositions in each of our districts? How long did they take (median time)? E.D. Wash. 533 dispositions, 8.1 months; W.D. Wash. 2,815 dispositions, 9.1 months.
  • How about different types of disposition?
    • No court action: E.D. 170 cases, 5.7 months; W.D. 885 cases, 6.2 months
    • Dispositions before pre-trial -- E.D. 319 cases, 9.5 months; W.D. 1,879 cases, 11.1 months
    • During or after pretrial -- E.D. 30 cases, 15.5 months; W.D. 20 cases, 16.0 months
    • Trial -- E.D. 14 cases, 17.5 months; W.D. 31 cases, 19.4 months.

9th Cir Upholds Waiver of Death Challenge

The Ninth Circuit en banc reversed a panel decision granting habeas and requiring the state to begin new sentencing proceedings, because when the petitioner was sentenced he was slumped over in a wheelchair, shackled, bleeding, and nearly naked -- a violation of his due process rights. The en banc court finds valid the habeas petitioner's waiver further proceedings, including challenging the death penalty. Comer v. Schriro, No. 98-99003, 9899003withgraphic.pdf 9th Cir. link (9th Cir. March 15, 2007)(en banc)(per curiam, with Judge Paez concurring and Judge Pregerson dissenting).

In his dissent, Judge Pregerson quotes all of the original panel decision (Ferguson, J.)(see earlier post). He concludes with a picture of Comer at his sentencing hearing and writes:

Nothing in this opinion requires the Arizona court to conduct a new penalty phase. The due process violation occurred after the guilt phase of the trial. The due process violation occurred after the penalty phase of the trial. The due process violation occurred at the sentencing hearing held by the Arizona
trial judge who imposed the penalty of death on a man
who was naked, bleeding, shackled, exhausted and semiconscious.

Comer wants to die. Arizona wants to execute him. There is little question that this will happen. Judge Ferguson’s opinion only requires that the sentence of death be pronounced to an understanding human, not to a discarded piece of flesh.
Id. at 3181.

Jury Selection for the Very Rich

At Deliberations (a new blog about juries), Milwaukee lawyer Anne Reed comments on jury selection in the trial of Conrad Black ("former media baron"). Black is famous for his wealth and lavish lifestyle -- as well as for giving up his Canadian citizenship in order to accept a British title (Lord Black of Crossharbour). Lord Black is an extreme example of the rich, but it is certainly common enough for rich people to be involved in litigation, and Reed's comments about jurors' views of the rich are well worth reading. How To Pick A Jury For A Lord, Deliberations, March 16, 2007.

Thursday, March 15, 2007

More Brain Info

Since it is still Brain Awareness Week, I thought I'd highlight some recent articles about neuroscience and the law from SSRN (free if you register):

  • Chorvat, Terrence R. and McCabe, Kevin, "The Brain and the Law" . George Mason Law & Economics Research Paper No. 04-33 Available at SSRN: Abstract:
    Much has been written about how law as an institution has developed to solve many problems that human societies face. Inherent in all of these explanations are models of how humans make decisions. This article discusses what current neuroscience research tells us about the mechanisms of human decision-making of particular relevance to law. This research indicates that humans are both more capable of solving many problems than standard economic models predict, but also limited in ways those models ignore. This article discusses how law is both shaped by our cognitive processes and also shapes them. The article considers some of the implications of this research for improving our understanding of how our current legal regimes operate and how the law can be structured to take advantage of our neural mechanisms to improve social welfare.
  • Robinson, Paul H., Kurzban, Robert and Jones, Owen D., "The Origins of Shared Intuitions of Justice" (December 18, 2006). University of Pennsylvania Law School, Public Law Working Paper No. 06-47 Available at SSRN: Abstract:
    Contrary to the common wisdom among criminal law scholars, the empirical evidence reveals that people's intuitions of justice are often specific, nuanced, and widely shared. Indeed, with regard to the core harms to which criminal law addresses itself - physical aggression, takings without consent, and deception in transactions - the shared intuitions are stunningly consistent across cultures and demographics. What could explain the fact that judgments of moral blameworthiness, which seem so complex and subjective, show such remarkable consensus? Here we theorize that there may be an evolved predisposition toward these shared intuitions of justice arising from the advantages that they provided, including stability, predictability, and the facilitation of beneficial exchange - the cornerstones of cooperative action. Data from animal behavior, brain science, and developmental psychology are reviewed and broadly support this hypothesis. Alternative explanations - such as general social learning and efficient norms - are also considered, but face substantial theoretical and empirical difficulties. Whatever the correct explanation for the observed consensus, intuitions of justice seem to be an inherent part of being human, which carries important implications for criminal law and criminal justice policy.
  • Morse, Stephen J., "Brain Overclaim Syndrome and Criminal Responsibility: A Diagnostic Note" . Ohio State Journal of Criminal Law, Vol. 3, p. 397, 2006 Available at SSRN: Abstract:
    This brief diagnostic note identifies a cognitive pathology, Brain Overclaim Syndrome [BOS], that often afflicts those inflamed by the fascinating new discoveries in the neurosciences. It begins by suggesting how one should think about the relation of neuroscience (or any other material explanation of human behavior) to criminal responsibility, distinguishing between internal and external critiques based on neuroscience. It then describes the signs and symptoms of BOS, the essential feature of which is to make claims about the implications of neuroscience for criminal responsibility that cannot be conceptually or empirically sustained. It then applies the diagnostic lens of BOS to the claims in Roper v. Simmons. Finally, the article recommends Cognitive Jurotherapy [CJ] as the therapy of choice for BOS.
  • Saunders, Kevin W., "A Disconnect Between Law and Neuroscience: Modern Brain Science, Media Influences, and Juvenile Justice" . Utah Law Review, Vol. 2005, pp. 695-741, 2005 Available at SSRN: Abstract:
    Modern brain science has discovered a second period of physical development of the brain in the adolescent years. Paralleling the cognitive development of infancy and early childhood, the judgmental and inhibitory regions of the brain go through a process of synaptic overblooming and later paring in this later period of life. Just as environment affects cognitive development, it appears it also has an effect on judgment and inhibition. This has consequences that should influence the development of the law. First, if environment affects which synapses remain in the developed brain and later influence judgment, there is greater reason to be concerned about the media environment children face. Second, if children are unable to make adult judgments and inhibit their actions, rather than simply being unwilling to do so, that should speak in favor of a juvenile justice system that recognizes that juvenile offenders may be more amendable to rehabilitation than adults.
  • Keckler, Charles N.W., "Cross-Examining the Brain: A Legal Analysis of Neural Imaging for Credibility Impeachment" (February 15, 2005). George Mason Law & Economics Research Paper No. 05-02 Available at SSRN: or DOI: 10.2139/ssrn.667601. Abstract:
    The last decade has seen remarkable process in understanding ongoing psychological processes at the neurobiological level, progress that has been driven technologically by the spread of functional neuroimaging devices, especially magnetic resonance imaging, that have become the research tools of a theoretically sophisticated cognitive neuroscience. As this research turns to specification of the mental processes involved in interpersonal deception, the potential evidentiary use of material produced by devices for detecting deception, long stymied by the conceptual and legal limitations of the polygraph, must be re-examined. Although studies in this area are preliminary, and I conclude they have not yet satisfied the foundational requirements for the admissibility of scientific evidence, the potential for use - particularly as a devastating impeachment threat to encourage factual veracity - is a real one that the legal profession should seek to foster through structuring the correct incentives and rules for admissibility. In particular, neuroscience has articulated basic memory processes to a sufficient degree that contemporaneously neuroimaged witnesses would be unable to feign ignorance of a familiar item (or to claim knowledge of something unfamiliar). The brain implementation of actual lies and deceit more generally, is of greater complexity and variability. Nevertheless, the research project to elucidate them is conceptually sound, and the law cannot afford to stand apart from what may ultimately constitute profound progress in a fundamental problem of adjudication.
  • Redding, Richard E., "The Brain-Disordered Defendant: Neuroscience and Legal Insanity in the Twenty-First Century" . American University Law Review, Vol. 56, p. 51, 2006 Available at SSRN: Abstract:
    Brain-damaged defendants are seen everyday in American courtrooms, and in many cases, their criminal behavior appears to be the product of extremely poor judgment and self-control. Some have a disorder in the frontal lobes, the area of the brain responsible for judgment and impulse control. Yet because defendants suffering from frontal lobe dysfunction usually understand the difference between right and wrong, they are unable to avail themselves of the only insanity defense available in many states, a defense based on the narrow McNaghten test. "Irresistible impulse" (or "control") tests, on the other hand, provide an insanity defense to those who committed a crime due to their inability to exercise behavioral control. Control tests have fallen into disfavor, however. Opponents of control tests offer three rationales for their abandonment: (1) that cognitive tests for insanity are sufficient, since those with impaired impulse control will also be cognitively impaired; (2) that mental health professionals are incapable of reliably assessing the capacity for impulse control, particularly in relation to criminal behavior, or of differentiating between a truly irresistible impulse and an impulse that is merely difficult to resist; and, therefore, that control tests lead to erroneous insanity acquittals; and, (3) that because "they directly pose the question of whether a person could control his or her behavior," control tests run counter to the law's assumption that people have free will and bear responsibility for their actions. Current neuroscience research presents a challenge to these claims. In the Article, I argue for a return to control tests for insanity, but with important doctrinal modifications.
Because my own brain and time are limited, I've done little more than scan the abstracts -- but even that much is interesting.

Graphic from

How Can Juries Process the Information Blakely Requires?

Under Blakely v. Washington, 542 U.S. 296, LII link (2004), a fact that enhances a defendant's sentence must be found by a jury beyond a reasonable doubt (not found by a judge by the preponderance of the evidence). So juries will need to make many factual determinations that used to be out of their hands. How should the system respond? The issues are explored in:

J.J. Prescott & Sonja Starr, Improving Criminal Jury Decision Making After the Blakely Revolution, 2006 Ill. L. Rev. 301-356.

Here is the abstract:

The shift in sentencing fact-finding responsibility triggered in many states by Blakely v. Washington may dramatically change the complexity and type of questions that juries will be required to answer. Among the most important challenges confronting legislatures now debating the future of their sentencing regimes is whether juries are prepared to handle this new responsibility effectively - and, if not, what can be done about it. Yet neither scholars addressing the impact of Blakely nor advocates of jury reform have seriously explored these questions. Nonetheless, a number of limitations on juror decision making seriously threaten the accuracy of verdicts in systems where juries are given a more prominent role in finding sentencing facts.

In this article, we assess the capacity of juries to analyze and deliberate on sentencing-related facts. We consider, inter alia, problems of cognitive overload, frustration and loss of motivation due to complex structures, difficulties evaluating evidence that juries do not ordinarily consider, distortions due to the framing of nonbinary questions, and deliberation-related biases. We also propose a model for sentencing-stage jury proceedings that would minimize these problems. Its components include bifurcation of proceedings, partial application of the rules of evidence, special verdict forms that are carefully designed to minimize framing effects, structural simplification of sentencing tasks, a more active jury, and guidance for jurors on bias-reducing deliberation structures.

Hells Angels Case - Spokane Angle, Seattle Trial

The Spokesman Review (Spokane) had a long article on Sunday: Angels on trial; The Hells Angels chapter in Spokane - home to the notorious club's West Coast president - is at the center of a high-stakes federal trial set to begin Monday in Seattle, Spokesman Review, March 11, 2007.

The extraordinary step of identifying jurors only by number was taken, authorities say, to reduce intimidation - a hallmark of so-called outlaw motorcycle clubs that boast their members are so tough they are the "1 percenters" of society.

The trial is expected to last 10 weeks and involve up to 200 witnesses, many of them from Spokane and Eastern Washington. The case involves alleged acts of witness intimidation in Spokane and elsewhere, according to court documents.
Prosecutors are seeking forfeiture of the group's clubhouse in Spokane. In a ruling to limit prejudice, prosecutors are forbidden from referring to the group as a "gang," and will instead used its preferred name, "club."
Tom Hillier, a former Spokane County assistant public defender who is now the federal defender for the Western District of Washington, said prosecutors are up against some of the best criminal defense attorneys in Seattle. Hillier is not directly involved in the case.

"They're all really good lawyers, excellent criminal defense lawyers," Hillier said. "None are flamboyant -- just hard-working, skilled, creative trial attorneys. It's a great defense team."

Robert S. Lasnik, the chief judge for the Western District, will preside over the trial. The federal judge is a former King County deputy prosecutor with a reputation for being a "bright, capable, experienced jurist," Hillier said.

"He's not going to be controversial in the least," Hillier said. "He's not the sort of judge who's the center of attention. He's going to preside over the case with skill and dignity."
(I can't link to the whole article because full access on the paper's website is limited to subscribers. I read the article on LexisNexis.)

Students: Anyone care to spend a day of spring break watching excellent trial lawyers at work in a high-profile trial? It's an easy bus ride from here. Judge Lasnik's calendars are here. They post one week at a time -- so today you can see that the trial started at 8:45 this morning and is scheduled to go all day, but is in recess tomorrow (Friday). Tomorrow there are two sentencing proceedings in other cases -- one scheduled for 2 hours in the morning, and one scheduled for 30 minutes in the afternoon. I imagine that the Hells Angel trial (U.S. v. Fabel et al.) will start up again Monday morning, but it's a good idea to check the calendar.

Wednesday, March 14, 2007

Are Fast Food Lawsuits Likely to Be the Next 'Big Tobacco'?

Are Fast Food Lawsuits Likely to Be the Next 'Big Tobacco'?, Nat'l L.J. (, Feb. 28, 2007.

Good question.

Appoint New Counsel After Client Stabs One

A rape defendant in Mass. stabbed his attorney in the face and chest with a weapon made out of a piece of Plexiglas. The judge asked the lawyer to withdraw from representation so he could appoint another lawyer. And they're beefing up security for this defendant -- when he attacked his lawyer, he was wearing leg irons. Judge Wants New Counsel for Man Accused of Stabbing Lawyer, AP (, March 1, 2007.

Judge Doesn't Recuse: Spouse's Firm

N.Y. Federal Judge Rebuffs Recusal Motion Citing Clients of Husband's Firm, N.Y. L.J. (, March 5, 2007:

A federal judge has rejected a request that she recuse herself from a high-profile litigation involving the music industry on the ground that her attorney husband and his firm have represented some of the defendants in other matters.

Big Bucks IP Jury Verdicts

Intellectual Property Verdicts Exceed $1.3 Billion in 2006, Nat'l L.J. (, March 5, 2007.

Who says jury work is all about personal injury and criminal law?

Here's another story that's more than coincidental, I reckon: LA Piper Singles Out Patent Litigators for Higher Pay, Recorder (, March 2, 2007.

2nd Circuit Upholds Attorney's Conviction for Forgery

2nd Circuit Upholds Attorney's Conviction for Forgery, N.Y. L.J. (, March 5, 2007. The forgery? A magistrate's signature on an order. Prosecutors said that the lawyer wanted to discredit his adversaries by making it look like they were responsible for the forgery. (The order purported to rule against Reich's side in a dispute and have the magistrate judge recuse herself.)

United States v. Reich, 06-1445 (2d Cir. March 2, 2007).

The Attorney-Client Privilege and the 'Complete Lawyer': More than Mere Legal Advice

In a recent decision, Pritchard v. Erie County, No. 06-2459-op (Jan. 3, 2007), the 2nd U.S. Circuit Court of Appeals held that a client does not forfeit the protection of the attorney-client privilege merely because that client has the good sense or good fortune to have hired a lawyer who is able not only to tell the client what the law is, but can also make recommendations and advise the client on how the client should proceed given the status of the law.
Kevin Allen, The Attorney-Client Privilege and the 'Complete Lawyer': More than Mere Legal Advice,, March 6, 2007. The case concerns strip searches of arrestees in Erie County, PA. During discovery, the county withheld from plaintiffs a series of emails in which a county attorney not only discussed the law but also assessed the county's current policies, recommended changes, and monitored the changes.

Ethiopia Versus Starbucks

Ethiopia wants to trademark and license coffee names based on its coffee-growing regions in order to increase the value in the market and to get a bigger share of the coffee pie (so to speak). Starbucks doesn't want to sign the license offered. Both sides have used videos they've posted on YouTube to try to sway public opinion. Ethiopian Coffee Trademark Dispute With Starbucks Runs Hot and Cold, Legal Times (, March 8, 2007.

Exonerees' Attorneys Fight Over Fees

Kathleen Zellner successfully used DNA to get two men exonerated and released from prison. Then she represented them in a civil suit against the City of Chicago (and others) for violating their rights. After nearly a year, they switched attorneys. Now the new lawyers say they are close to settling that case, and she wants a cut of the fees. They say they shouldn't have to share, since she said that she was representing the men pro bono. Her reply: she was pro bono on the DNA motion, but the plaintiffs signed a contingency fee agreement with her for the civil suit. Fee Dispute Erupts in Pro Bono Exoneration Case, Nat'l L.J. (, March 8, 2007.

Equal, Splenda Go to Trial

A federal district judge denied summary judgment to the manufacturer of Splenda, which is being sued by the manufacturer of Equal and Nutra Sweet. The plaintiff says that Splenda's slogan -- "made from sugar so it tastes like sugar" -- is misleading because the sugar molecules are chemically altered. How Sweet It Isn't: Equal, Splenda to Clash in Trial, Legal Times (, March 8, 2007.

"[Judge Gene] Pratter's opinion sets the stage for a two-week trial scheduled to begin in April that promises to be a battle of the experts, including a neurobiologist who will testify about the biology of sweet tastes." (Remember, it's Brain Awareness Week! See yesterday's post.)

The memorandum and order is Merisant Co. v. McNeil Nutritionals, No. 04-5504 (E.D. Pa. March 2, 2007).

Graphic: mw.

Family Reaches Unusual Settlement Over Reporter's Death

Family Reaches Unusual Settlement Over Death of Retired Times Reporter, Legal Times (, March 9, 2007:

The settlement, which includes no money for the Rosenbaum family or their lawyer Patrick Regan, will create a task force that will make recommendations within six months on ways of improving emergency medical services in the District. In return, the family agrees to dismiss the District from the suit but retains the right to refile their claims within one year if they are not satisfied by the District's efforts.
Other cases stemming from the incident: One man pleaded guilty to second-degree murder and testified against another, who was convicted of first-degree murder. The family is suing Howard University Hospital "because the hospital provided 'third-world care in the nation's capital.'"

Judges Recusing Themselves Over Pay Dispute

New York judges and legislators disagree about the importance and urgency of a pay raise for judges. In December the legislature failed to enact a proposed measure, and "judicial morale sagged." Three judges brought a suit seeking to compel a salary increase. Some judges have recused themselves in cases handled by legislators or legislators' firms. Is that cricket? The court system's Advisory Committee on Judicial Ethics says it isn't -- the judges shouldn't recuse themselves. N.Y. Judges Advised Not to Link Recusals to Pay Dispute, N.Y. L.J. (, March 9, 2007.

Supreme Court (trial court) judges make $136,700/year. Meanwhile, first-year associates at some big Wall Street firms make $160,000. Boston Firms Split on How to Respond to N.Y. Pay Hikes, Nat'l L.J. (, March 9, 2007.

Big Punitive Damages Against Truck Maker

DaimlerChrysler Hit With $50M Punitive Verdict, The Recorder (, March 12, 2007. The plaintiff's attorney said he asked the judge to craft jury instructions that took into account the Supreme Court's recent ruling in Philip Morris USA v. Williams (see earlier post).

D.C. Circuit Strikes Down Gun-Control Law, Priming Issue for High Court

D.C. Circuit Strikes Down Gun-Control Law, Priming Issue for High Court, Legal Times (, March 12, 2007. The panel held that the DC ordinance violated individuals' second amendment rights.

(Not really a trial practice news item, but worth sharing.)

Antitrust Action Against Barbers

After a number of barbershop owners in Tillicum (near Fort Lewis and McChord Air Force Base) all raised their prices for military haircuts from $6 to $7, the state began an antitrust investigation. Some barbers interviewed by the News Tribune say they planned their rate increase on their own. Said one, "My rent was going up on January 1. I thought it wouldn't hurt." State looks into price hikes of military haircuts, News Tribune, March 9, 2007.

Janelle Guthrie, a spokeswoman for the Attorney General’s Office, said these types of investigations are started by consumer complaints and "are not an attempt to bully anyone."

The AG’s office will accept antitrust complaints by telephone or online, she said.

While a barbershop investigation might seem unusual, Guthrie likened it to a consumer complaint that a group of gas stations raised their price four cents a gallon – all at the same time.
Lisa Kremer sent me this story, noting:
I took antitrust last quarter, so when I saw the story I thought, wow, that must have been a fun change of pace for the lawyers. But it's turned into a public relations nightmare. The paper has been full of letters every day criticizing the attorney general's office for wasting money on investigating $7 haircuts. My guess is the antitrust lawyers are not feeling too good right now.
Many consumer-oriented cases involve small amounts multiplied by many consumers -- for instance, when Netflix allegedly slowed the turnaround on its DVD mailings for heavy users (see settlement website), when Epson allegedly marketed ink cartridges that indicated they were empty and prevented printing even when there was ink in them (see settlement website), or when Microsoft allegedly violated California and federal laws in its volume license programs between 1995 and 2001 (see settlement website). But it's easier to sympathize with the hard-working barbers (often immigrants), trying to make a living 6 or 7 bucks at a time, than with the large corporations who are often defendants in such cases.

For more about antitrust investigations in Washington, see the Antitrust Division's website.

Update: The investigation stemmed from a couple of consumer complaints. Attorneys met with each of the barbers, along with an interpreter and Elliott Kim, a member of the state Commission on Asian Pacific American Affairs. The AG's office gave the barbers a warning but no penalties. It was clear that they did not know that agreeing to raise prices was illegal. Mr. Kim plans to translate antitrust information into Korean for use in the local Korean American press. No charges for barbers who fixed their prices, News Tribune, March 24, 2007. (Lisa sent me this update the day the article appeared, but that was during spring break and her message got lost in my email backlog.)

Photo: U.S. Army Museum of Hawai'i (Japanese-American soldiers during World War II).

Tuesday, March 13, 2007

McKay "stunned" by report on Bush

More on the U.S. attorney controversy:

Viacom Sues YouTube Over Copyright

Viacom Sues YouTube Over Copyright, Washington Post, March 14, 2007. One BILLION dollars!

The complaint is on Findlaw.

Hells Angels Trial Opens

Attorneys made opening statements in the big RICO trial against members of the Washington Nomads chapter of the Hells Angels. A big issue will be witness credibility -- will the jury believe the witnesses who struck deals in exchange for their testimony? The trial is projected to last ten weeks. Hells Angels' defense: Witnesses are "rats,", Seattle Times, March 13, 2007.

In his statement Todd Maybrown, representing Rodney Rollness, said that one of the witnesses against Rollness has changed his story, since he earlier said his attackers were members of a different gang. (Maybrown was a Trial Ad instructor fall quarter.)


Stephanie Knightlinger told me about a fascinating article in Sunday's New York Times Magazine about applications -- and potential applications -- of neuroscience in the law. Take a look: Jeffrey Rosen, The Brain on the Stand, NY Times Mag., March 11, 2007.

The article discusses many scientists' and scholars' work. Here are a few links if you want to look further:

  • O. Carter Snead, a law professor at Notre Dame, has written in the area and serves on the President's Council on Bioethics. See O. Carter Snead, Neuroimaging and the 'Complexity' of Capital Punishment (February 27, 2007). Notre Dame Legal Studies Paper No. 07-03 (avail. at SSRN).
  • The President's Council on Bioethics discussed neuroscience and law at its Sept. 2004 meeting:
  • Vanderbilt Law School is setting up a law and neuroscience program, led by Prof. Owen D. Jones, who has appointments in the med school and the law school.
  • The University of Pennsylvania also had a number of people working in the field, including Stephen J. Morse (Prof. of Law and Prof. of Psychology and Law in Psychiatry) and Prof. Ruben G. Gur (Psychiatry).
  • A group of professional associations -- including the American Medical Association -- filed an amicus brief in Roper v. Simmons (juvenile death penalty) discussing what science says about adolescent brains. Although the Court didn't cite the brief, observers believe it was influential in the decision.
  • The Center for Cognitive Liberty and Ethics "is a network of scholars elaborating the law, policy and ethics of freedom of thought. [Its] mission is to develop public polices that will preserve and enhance freedom of thought into the 21st Century."
Are you stumped when you hear or read "amygdala," "cerebellum," or "medulla oblongata"? Would you like an accessible introduction to neuroscience? See Neuroscience for Kids, a website developed by a team led by Dr. Eric H. Chudler, Director of Education and Outreach, UW Bioengineered Materials.

By the way, this week (March 12-18, 2007) is Brain Awareness Week, observed by more than 2000 organizations in 69 countries. Did you know that there's an International Brain Bee? It's this week at the University of Maryland in Baltimore.

Graphic from the Dana Foundation's collection of graphics for Brain Awareness Week.

Toobin on Libby Verdict

On CNN, Jeffrey Toobin discussed Lewis "Scooter" Libby's prospects:

In a way, the fact that the jury did not convict Libby of all the counts will make the verdict that much harder to overturn on appeal. Because the appellate court will obviously see that this is a jury that looked very carefully at the evidence, that didn't just walk in there and convict him because they didn't like Republicans or they didn't like President Bush. They meticulously went through the evidence. And those kind of verdicts are harder to overturn on appeal than simply an across-the-board set of convictions.
He suggested that Libby's best bet might be to delay prison until after the 2008 election, since a pardon is most likely after the President is a lame duck. Toobin: Presidential pardon may be on Libby agenda,, March 6, 2007.

While I was looking for that story, I came across: Libby jury asked to explain 'reasonable doubt' question,, March 5, 2007. "The jurors asked whether it would have to be "not humanly possible for someone not to recall an event" for them to find guilt beyond a reasonable doubt."

( Aside: I suspect juror uncertainty over "reasonable doubt" is common. I was on a jury in municipal court once that deadlocked because of it. A man accused of possessing stolen property said that he bought a brand new Eddie Bauer down coat from a stranger on the street for some ridiculously low amount, but he didn't know it was stolen. He was arrested after he went to the store to exchange it the next day. The prosecution presented strong evidence that the coat had been stolen the afternoon that he said he bought it. Four jurors were willing to convict, but two said they had reasonable doubt, because you can never truly know what is in someone else's mind, so we couldn't know that he knew the coat was stolen.)

This week Toobin in The New Yorker addresses the question: why did it take the jury 10 days to convict Lewis "Scooter" Libby when the evidence was so clear? Comment: Verdicts, New Yorker, March 19, 2007.
No one except Libby was proved to be lying to investigators. And Libby has not said that anyone told him to perjure himself. Still, in a moral sense, if not a legal one, it was clear that the business of discrediting the Wilsons was a group undertaking, and it’s therefore easy to see why the jury struggled with laying blame for the whole operation on Libby. One juror, Denis Collins, said after the trial that he agreed with the defense claim that Libby was a "fall guy" for Cheney, among others, but Collins also thought that Libby was guilty; under the circumstances, both conclusions made sense.
Thanks: Pamela Gregory

Questionnaires in Voir Dire

Jury consultant Susan E. Jones (Jury Research Institute) discusses using questionnaires during voir dire: The prospective juror questionnaire.

Thanks: Bill Pryme-Fuld.

Monday, March 12, 2007

Fund Judicial Elections?

Prof. William R. Andersen writes in the Seattle Times's op-ed section: Ensure an impartial judiciary with public funding of elections, March 12, 2007.

U.S. Attorney Firing

Controversy continues to swirl around the Administration's firing of eight U.S. attorneys. The headlines tell the story: Rove funneled Justice complaints, Seattle Times, March 12, 2007. Outrage, questions persist on firing of U.S. attorneys, Seattle Times (reprinting a long story from the L.A. Times), March 12, 2007. Justice Official 'Horrified' Phone Call Was Seen as Threat, Washington Post, March 12, 2007. Gonzales Should Quit, Senator Says, New York Times, March 12, 2007.

Friday, March 9, 2007

Medical Errors and Neglect in King County Jail

The Seattle Times has a long article describing problems with the medical care provided in the King County Jail (and the Regional Justice Center in Kent). There are some appalling stories -- for instance, the one about the man with sickle cell anemia who complained of joint pain. The health care providers thought he was going through withdrawal from heroin. Although he said it wasn't the right drug, they gave him methadone, and he died of an overdose. More typical are the tales of unaddressed complaints, slow responses to requests to see a doctor, and poor records of narcotics and other drugs. Mike Carter, Mistakes, some deadly, haunt county jails, Seattle Times, March 9, 2007.

Rangers and Robbers

Two former Army Rangers who were stationed at Ft. Lewis are pleading guilty today to charges stemming from their involvement in a bank robbery in Tacoma in August. Altogether, seven men have been charged, five of them Rangers. The non-Rangers are Canadians; one of the Rangers has dual citizenship and is currently under house arrest in his mother's house in BC, fighting extradition. Two Rangers already pleaded guilty. 2 ex-Rangers to admit guilt in bank heist, Seattle Times, March 8, 2007. Trial Ad instructor Amanda Lee represents one of the Rangers who is scheduled to enter a plea today. The details of his plea agreement were still confidential at the time of the newspaper story.

Other stories (all Seattle Times, all by David Bowermaster):

I think the Army recruiting slogan, "Be all you can be," was not really intended to apply to young men with ambitions to use their weapons training for bank robbery.

Thursday, March 8, 2007

Fudging a Filing Date Miffs Utah Judge

In Utah, state and federal courthouses give last-minute lawyers a break: they have date stamp machines outside the building so you can datestamp a document after closing on the date that it's due, plop it in a drop box, and still have met the deadline.

Some attorneys in a big federal case tried to scam the system: they datestamped the first page of their document and did not plop it in the drop box, instead going back to the office to work on it for three or four more days. The filing was due the Friday before Presidents Day weekend (Feb. 16), and it wasn't found in the drop box until the Wednesday morning (Feb. 21) pickup, sandwiched between documents that were datestamped Feb. 20.

Judge Dale A. Kimball (D. Utah) was steamed and issued a sizzling order:

This deceitful conduct will not be tolerated. The conduct is particularly egregious when counsel has been previously notified that the court is liberal in granting extensions of time when additional time is needed. Moreover, counsel in this case have been admonished before about the gamesmanship that has been taking place in this lawsuit.
Judge Kimball vs. naughty Salt Lake lawyers, Voice of Utah, March 5, 2007.

Thanks: Jessica Van Buren.

Court voids drive-by shooting conviction

Court voids drive-by shooting conviction, Seattle P-I, March 7, 2007.

Cesar Sarausad drove the car from which a Ballard High School student was shot. He admitted that he was driving, but said he didn't know that his passenger had a gun. The jury instructions were unclear as to whether he needed to know that his passenger intended to kill someone -- so unclear that the jury asked three times for clarification, only to be told to reread them.

Judge Coughenour (W.D. Wash.) granted habeas based on the erroneous jury instructions and insufficiency of the evidence. The 9th Circuit affirmed the grant of habeas relief, but only on the jury instruction issue. The state hasn't indicated whether it will appeal or seek a rehearing.

The opinion is Sarausad v. Porter, 05-35062 (9th Cir. March 7, 2007).

The panel was split: Judge William Fletcher wrote the first opinion, Judge Reinhardt concurred in part (jury instruction issue) and dissented in part (sufficiency of the evidence issue), and Judge Bybee dissented. This case has been through the system -- trial court, appeal in state court, personal restraint petition in state court, federal district court, federal court of appeals -- 13 years!

This morning I've been procrastinating on a less interesting task, but I really have to get to that task, so I'll resist the temptation to sift through the 80 pages of 9th Circuit opinions further. (If you read the opinions and would like to explain, please click on Comment!)

Part-time lecturer Patricia Novotny has represented Mr. Sarausad throughout his appeals.

UW Brain Prof Dumps HazMat

A UW Pharmacology professor who studies the brain used the save-a-buck region of his own brain when he should have used the follow-the-law area. The Environmental Health and Safety Department told Prof. Daniel R. Storm that it would cost $15,000 to dispose properly of a highly flammable solvent in his lab. Seeking to preserve his budget, he took an ax to the containers holding the solvent and poured it down the drain, followed by another solution to dilute the bad stuff. On Wednesday, he pleaded guilty in federal court to knowingly disposing of a hazardous waste without a permit. Prosecutors are recommending probation. Professor pleads guilty to dumping chemical, Seattle P-I, March 8, 2007.

Storm's lawyer, John Wolfe, said that Storm acknowledged that he acted improperly and is trying to rectify the matter by pleading guilty to the dumping charge and working with the university.

UW considers tuition waivers for veterans in grad school

UW considers tuition waivers for veterans in grad school, Seattle Times, March 5, 2007.

State law enables public universities to waive tuition for veterans and National Guard members. The UW gives a 50% waiver for undergraduate studies, but currently does nothing for graduate and professional students. Daniel Bugbee, 1L and Iraq veteran, proposed to the Regents that they expand the policy to cover law students and others. They'll vote on the proposal later this month.

Public Service at the UW

Last month's KCBA Bar Bulletin has an article about public service at the UW -- from the graduation requirement that all students do 60 hours of it, to PILA, which raises money to fund students' summer jobs with public interest groups, to the Gates Public Service Law Scholarship Program. Shari Ireton, Service Commitment Pays Dividends at UW, B. Bull., Feb. 2007.

Products Liability Symposium

The Review of Litigation is hosting a symposium in a couple of weeks: Products Liability: Litigation Trends on the 10th Anniversary of the Third Restatement, March 22-23, 2007, at the University of Texas.

"Nationally renowned scholars, as well as judges and practitioners will speak" on a variety of topics, including post-sale duties, the bulk supplier doctrine, prescription drugs in the US and the EU, ethics rules in group litigation (are they biased against plaintiffs?), multi-district litigation, public nuisance law in lead paint and gun litigation, jury selection in high-stakes productions liability cases, mass tort litigation.

Continuing Effects of Andress

In 2002, the Washington Supreme Court held that assault could not be the predicate felony for second-degree felony murder. In Re Andress, 147 Wn. 2d 602, Legalwa link (2002). In the wake of this case, many convictions were vacated and prosecutors around the state needed to figure out how to respond.

A year ago, one local case (Jerell Thomas, in the "Mardi Gras riot" case) was resolved by the defendant pleading guilty to second-degree manslaughter and getting a sentence five years shorter. Earlier post. In another case, Chayce A. Hanson, sentenced to 25 years for killing a small child he was babysitting, pleaded guilty to lesser charges and got 10-year sentence. Natalie Singer, Ruling overturns conviction in girl's death; man gets reduced sentence, Seattle Times, Sept. 30, 2006.

Now another defendant who was prominent in the local news faces new charges. Natalie Singer, New charges in officer's fatal shooting, Seattle Times, March 7, 2007. Quentin Ervin, one of the men convicted of killing off-duty police officer Antonio Terry in 1994, was charged with aggravated first-degree murder and the lesser included offenses of first-degree murder and second-degree felony murder. The jury convicted him of the least serious offense, second-degree felony murder. After Andress, the felony murder conviction was vacated.

The state wanted to retry him on the first two charges, but could it? Wouldn't that be double jeopardy? The Supreme Court unanimously held that it could, because the non-convictions on the first two offenses (for which the jury left the verdict forms blank) were not implied acquittals (that would have resulted in jeopardy attaching) -- they could have represented the jury's failure to agree. State v. Ervin, --- Wn.2d ---, Findlaw (Nov. 30, 2006) (Bridge, J.). And so King County prosecutors filed new charges on Tuesday. Deputy prosecutor (and Trial Ad instructor) Scott O'Toole says that the state plans to go to trial, but a plea agreement is still possible.

(If there were a prize for Trial Ad Instructor Most Often Mentioned in Newspapers, Scott would win it, hands down. I have a LexisNexis Eclipse search for all of their names, not just his.)

The legislature was unhappy with Andress and quickly (chapter 3 of the next legislative session) amended the felony murder statute (RCW 9A.32.050(b)) to make it clear that assault can be a predicate felony:

(1) A person is guilty of murder in the second degree when:
* * *
(b) He or she commits or attempts to commit any felony, including assault, * * * and, in the course of and in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants; * * *
Id. (emphasis added). The legislature also included a statement of findings and intent indicating that it believed the statute had been clear all along and the Supreme Court was mistaken -- but, since the court had ruled as it had, a curative amendment was necessary.