Thursday, May 31, 2007

Maleng Memorial Saturday

Maleng memorial service Saturday, Seattle P-I, May 29, 2007.

Maleng's #2 to Serve as Acting Prosecutor

Maleng's chief of staff will serve as acting prosecutor, Seattle Times, May 29, 2007. Dan Satterberg, the chief of staff, graduated from the University of Washington School of Law in 1985.

Satterberg to be Acting Prosecutor, Seattle P-I, May 29, 2007.

Political parties choose candidates to suceed Maleng as prosecutor, Seattle P-I, May 31, 2007.

County Councilman Bob Ferguson is running as a Democrat and interim prosecutor Dan Satterberg is running as a Republican, both with strong party backing, officials of both parties said Thursday.

Asylum Outcomes Vary Widely

The outcome of asylum cases varies widely depending on the judge and the court handling a case, according to a study of 140,000 decisions by immigration judges. Big Disparities in Judging of Asylum Cases, N.Y. Times, May 31, 2007.

In one of the starker examples cited, Colombians had an 88 percent chance of winning asylum from one judge in the Miami immigration court and a 5 percent chance from another judge in the same court.
The study is: Jaya Ramji-Nogales, Andrew Schoenholtz & Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L. Rev. (forthcoming 2007) (link is to May 15, 2007, draft on SSRN).

Thanks: Michele Storms.

Civil Right to Counsel Argued

Today the Washington Supreme Court hears arguments in King v. King, a case concerning the right to have court-appointed counsel in civil cases. Brenda Leone King was unrepresented in her divorce case and lost almost all custody of her children to her ex-husband, who had an attorney. She asked for a new trial, arguing that she should have had an attorney appointed for her. The superior court denied that request, and now the case is before the state Supreme Court. Should poor be appointed attorneys in civil cases?, Seattle Times, May 31, 2007; Should state pay for divorce lawyer?, Seattle P-I, May 30, 2007.

Amicus briefs have been filed by:

All the briefs are available from the Sargent Shriver National Center for Poverty Law.

Michele Storms is moderating a panel on this topic at the Washington State Access to Justice Conference on Saturday.

Wednesday, May 30, 2007

Experts Criticize Intelligence Interrogations

A panel of experts issued a report saying that the government's intelligence agencies do not yet have a good approach to interrogation. They contrast the intelligence interrogations during World War II, when the interrogators were fluent in the subject's language, knowledgeable about culture, and thoroughly prepared. Interrogation Methods Are Criticized, New York Times, May 30, 2007.

That's interesting and important as a news item. But the report can also be useful for trial advocacy:

The Intelligence Science Board study has a chapter on the long history of police interrogations, which it suggests may contain lessons on eliciting accurate confessions. And Mr. Borum, the psychologist, said modern marketing may be a source of relevant insights into how to influence a prisoner’s willingness to provide information.

“We have a whole social science literature on persuasion,” Mr. Borum said. “It’s mostly on how to get a person to buy a certain brand of toothpaste. But it certainly could be useful in improving interrogation.”
The 372-page report is:
Intelligence Science Board, Educing Information -- Interrogation: Science and Art -- Foundations for the Future (National Defense Intelligence College, Dec. 2006.
Chapters that look good for the domestic context:
    2. Approaching Truth: Behavioral Science Lessons on Educing Information from Human Sources, Randy Borum, p. 17

    3. Research on Detection of Deception: What We Know vs. What We Think We Know, Gary Hazlett, p. 45

    4. Mechanical Detection of Deception: A Short Review, by Kristin E. Heckman and Mark D. Happel, p. 63

    6. Custodial Interrogations: What We Know, What We Do, and What We Can Learn from Law Enforcement Experiences, by Ariel Neuman and Daniel Salinas-Serrano, p. 141

    8. Negotiation Theory and Practice: Exploring Ideas to Aid Information Eduction, by Daniel L. Shapiro, p. 267

    9. Negotiation Theory and Educing Information: Practical Concepts and Tools, by M. P. Rowe, p. 285

Book Honors Loftus, Discusses Psychology in Courtroom

Do Justice and Let the Sky Fall: Elizabeth Loftus and Her Contributions to Science, Law, and Academic Freedom (2006) is a collection of essays related to and honoring the work of Elizabeth Loftus (now of UC Irvine, for many years at the UW and still an affiliate professor in the Law School and the Psychology Department). According to the publisher:

For more than 30 years, renowned psychological scientist Elizabeth F. Loftus has contributed groundbreaking research to the fields of science, law, and academia. * * *

Do Justice and Let the Sky Fall collects research in theoretical and applied areas of human memory, provides an overview of the application of memory research to legal problems, and presents an introduction to the costs of doing controversial research. * * *

This multipurpose volume is intended to serve as a valuable resource for established scientists, emerging scientists, graduate students, lawyers, and health professionals.
The contents:
  • Memory distortions: problems solved and unsolved / Elizabeth F. Loftus
  • Tracking the birth of a star / Gordon H. Bower
  • Elizabeth F. Loftus: the early years / Geoffrey R. Loftus
  • Misinformation effects and the suggestibility of eyewitness memory
  • Maria S. Zaragoza, Robert F. Belli, and Kristie E. Payment
  • Loftus' lineage in developmental forensic research : six scientific misconceptions about children's suggestibility / Stephen J. Ceci and Maggie Bruck
  • Verbal recall of preverbal memories: implications for the clinic and the courtroom / Harlene Hayne
  • Illusory recollection in older adults : testing Mark Twain's conjecture / Henry L. Roediger and Mark A. McDaniel
  • False memories / Deryn Strange, Seema Clifasefi and Maryanne Garry
  • Incorporating Elizabeth Loftus's research on memory into reforms to proect the innocent / Jacqueline McMurtrie
  • Elizabeth F. Loftus: warrior scientist / Mahzarin R. Banaji
  • The cost of courage / Carol Tavris
The book is available in the Law Library: BF109.L64 E45 2006 at Classified Stacks.

Tuesday, May 29, 2007

How Juries Handle Med Mal Cases

Some critics of the tort system say that juries can't handle medical malpractice cases. Now Prof. Philip G. Peters, Jr. (Univ. of Missouri at Columbia) "collects and synthesizes three decades of empirical research on jury decision-making."

It turned out that juries agreed with outside experts evaluating the cases in 80-90% of the cases where evidence of provider negligence is weak.

In about half the cases that the experts think the plaintiffs should win, the juries find for the doctors. Why? Peters suggests that doctors may enjoy an advantage in court because of such factors as

the defendant's superior resources, the social standing of physicians, social norms against "profiting" from an injury, and the jury's willingness to give physicians the benefit of the doubt" when the evidence of negligence is conflicting.
Philip G. Peters, Jr., SSRN-Doctors & Juries, 105 Mich. L. Rev. 1453 (May 2007). (My quotations are from the abstract on SSRN.)

Thanks: Day on Torts.

Monday, May 28, 2007

Gotta Make a Record!

John Day (the Tennessee lawyer who writes Day On Torts) uses a Missouri case to remind readers that you have to make a record to prevent reversal on appeal. In this case, there was a settlement agreement that the plaintiffs refused to sign, saying that the attorney didn't have authority to make the settlement offer he did. The trial court, after a hearing with only oral argument (and no transcript), found that he did and entered judgment. But the Court of Appeals reversed. What did it have in front of it to do otherwise? Day on Torts: Failure to Make Record Causes Reversal, May 21, 2007.

Crosscut's Homage to Maleng

O. Casey Corr writes:

If any good comes from recent headlines about U.S. Attorney General Alberto Gonzales and the firings of John McKay and other U.S. attorneys, one benefit here is a deeper appreciation for Norm Maleng, the elected King County prosecutor who died yesterday.

* * *

Gonzales' displays of bad memory, indecision, weakness, misjudgment about subordinates, and tin ear for the distinctions between prosecutorial policy and improper politics stand in contrast to the legacy of integrity and competence left by Maleng.
A man of integrity and decency who saw the best in people, Crosscut, May 25, 2007.

Prosecutor's Office as Stepping Stone

David Brewster comments on offices as political stepping stones, saying that one effect of Norm Maleng serving for so long as King County Prosecutor was that young talent didn't rise from his post to other elected offices. (He says the same thing happens with Jim McDermott serving so long in his congressional seat.) An opportunity for new talent to rise in Washington politics, Crosscut, May 26, 2007.

It's true that no one else was King County Prosecutor and moved from there to statewide office. But Norm Maleng's office did nurture talent in the deputy prosecutor slot, and people moved on from there (e.g., Gary Locke from prosecutor to legislator to county executive to governor).

The office of prosecutor can be a stepping stone politically. Even if that's a consideration for the people who will seek the office, I hope that they also have the ambition to run a competent, fair office, ably prosecuting the crimes in our spread-out, urban, suburban, and rural county.

Pet food class action

About 75 class action suits have been filed against Menu Foods, the company that recalled canned pet food made with contaminated wheat gluten. Seattle pet owners part of class-action suit over tainted food, Seattle P-I, May 27, 2007.

Seattle lawyers Tom Baisch (Myers & Co.) and Steve Berman (Hagens Berman Sobol Shapiro) say they have consulted with more than 500 potential plaintiffs.
About 75 class action suits have been filed against Menu Foods.

Also quoted in the article is Adam Karp, who teaches an animal law class at the UW.

The article says that a panel of judges in Las Vegas will decide on Thursday where the 75 class action cases should be heard. That panel is the Judicial Panel on Multidistrict Litigation. The cases are listed on pp. 19-20 of its hearing list for May 31. There are three motions: one plaintiff moves for the cases (or certain of them) to be centralized in C.D. Cal.; one plaintiff moves for them to be centralized in S.D. Fla.; and five plaintiffs (from five separate suits) move for them to be centralized in W.D. Wash. An introductory brochure about the JPML is here.

Saturday, May 26, 2007

Sentence in Convenience Store Killing

Christopher Bistryski, who pleaded guilty to second-degree murder, was sentenced by King County Superior Court Judge Nicole McInnes yesterday. Deputy's friend gets 24 years in clerk's slaying, Seattle P-I, May 26, 2007.

Senior Deputy Prosecutor Nelson Lee (also a Trial Ad instructor) is quoted as saying at the sentencing hearing that the defendant "executed" the clerk.

Part of the plea agreement was a promise not to prosecute Bistryski for a crime he committed two days before the killing.

See earlier post: Mental Health and Plea Deal.

Today's Stories about Norm Maleng

Maleng leaves a living legacy, Seattle Times, May 26, 2007. Maleng was a mentor to many lawyers, including some who have gone on to be judges (e.g., Ricardo Martinez, Robert Lasnik, Mary Yu) and even governor (Gary Locke).

Martinez said Maleng often told his prosecutors, "Our job is to do justice, and that doesn't necessarily mean a conviction."
Maleng also was influential in a range of legal and institutional developments -- the passage of Sentencing Reform Act, the development of drug court, the creation of a Special Assault unit, the passage of laws requiring registration of sex offenders.

Maleng's legacy remembered, Seattle P-I, May 26, 2007.
Even many of the county's defense attorneys, who often disagreed with many of Maleng's views on prosecuting crimes, were saddened.

"I don't think there is any opponent that I have ever had that I respected more," said Seattle defense attorney Jeff Robinson. "I respect him. I like him as a person. And I am afraid that we will not see his like again."
(Robinson, a partner in Schroeter Goldmark and Bender, is also a Trial Ad instructor.)

Maleng was a class act, with a big heart, Seattle P-I, May 26, 2007. Columnist Robert L. Jamieson Jr. recounts stories of Maleng's kindness to crime victims' families.
A man of faith, Maleng lived out the divine words of Scripture: Learn to do right; seek justice, encourage the oppressed, defend the cause of the fatherless, plead the case of the widow.

Norm Maleng: A man to emulate, Seattle P-I editorial, May 25, 2007.

David Horsey's tribute to Maleng, coming in Sunday's print P-I.

Aide will step in for now; after that, who knows?, Seattle Times, May 26, 2007.
  • On Tuesday, the County Council will appoint one of Maleng's top assistants to serve as interim county prosecutor in the short term.
  • Within 60 days the County Council will appoint an interim prosecutor. Since Maleng was a Republican, the appointment will probably be made from a list of names submitted from the county Republic party.
  • In November, the voters will select a successor to serve the remainder of Maleng's term (till Dec. 2010). Candidates must file by June 8 -- so there will be a lot of people trying to make a big decision.
The article speculates about who might be in the running -- for both the interim appointments and the election.

Scramble on to fill Maleng's job, which has rarely gone vacant, Seattle P-I, May 26, 2007. More about the process of appointing interims and more about possible candidates (some overlap with the Times but also some different names). A couple of tidbits:
  • Our county has only had 3 prosecutors in the last 59 years!
  • Sen. Warren Magnuson began his political career as King County Prosecutor.
See also letters to the editor in the Times, May 26.

Update: See also The loss of an icon, Seattle Times editorial, May 27, 2007.

Friday, May 25, 2007

King County Prosecutor Norm Maleng Dead at 68

King County Prosecutor Norm Maleng died last night after suffering a heart attack. He was attending a Nordic Heritage Museum event at the University of Washington and was rushed to Harborview Medical Center.

It's not surprising that he was at a community event -- especially at the University of Washington -- because he often was, and he loved this university. His final hour was at the county hospital just up the hill from the county courthouse where he served for decades.

Norm Maleng, a Republican, was elected King County Prosecutor in 1978 and re-elected seven times, often by a landslide. (He received 97% of the vote in the last election!) He was unsuccessful in his bids for state-wide office, losing runs for governor and for attorney general.

Maleng was widely respected -- by Democrats and Republicans, by prosecutors and defense attorneys -- for his integrity and compassion.

Last fall the ABA Criminal Justice Section honored Maleng:

During the Disaster Preparedness Conference in New Orleans, the Minister of Justice Award was presented to Norman Maleng, King County prosecuting attorney, Seattle, Washington. Maleng served as King County prosecutor since 1978. In that capacity he has embodied the principles enunciated in the ABA Standards for Criminal Justice, Prosecution Function, particularly: “The duty of the prosecutor is to seek justice, not merely to convict.” His impact on the justice system has been statewide and beyond with involvement in victims’ rights, laws involving the civil commitment of sex offenders, and a Juvenile Justice Act that provides an improved framework to intervene in the life of a troubled youth.

Criminal Justice, Winter 2007, at 61. Maleng served at the chair of the Criminal Justice Section in 2003-2004.

His ties to the University of Washington School of Law were long and tight. He served at editor-in-chief of the Washington Law Review as a student, and volunteered in many capacities as an alumnus. The UW law school's Alumni Association honored him with its Distinguished Alumni Award in 1993 and the Henry M. Jackson Distinguished Alumni Public Service Award in 2004. At the time of his death he was president of the Washington Law School Foundation and co-chair of the law school's capital campaign.

Both local dailies have long obituaries:

* Longtime prosecutor Norm Maleng dies, Seattle Times, May 25, 2007.
* Norm Maleng Dead at 68, Seattle P-I, May 25, 2007.

See also this profile excerpted from Washington Law and Politics and Dan Satterberg, Dedicated Prosecutor Keeps Swinging Away, Bar Bull., June 2005.

Update: See May 26 post.

Thursday, May 24, 2007

Cat in Sting of Fake Vet

How do you catch someone who is fraudulently pretending to be a veterinarian? Police in Brooklyn set up a sting with a shelter kitten. Told that the cat needed to be neutered, he took the cat and $135. The "vet" pleaded guilty and was sentenced to probation and mental health treatment. The cat got a tiny badge for his collar and was honored at a couple of events. Fake Veterinarian in New York City 'Undercover Kitten' Sting Sentenced to Probation, AP (, May 24, 2007.

Photo: "Tabby cat with pet license," from Clark County, Wash., Animal Protection and Control.

Supreme Court Rule Changes?

Last week (May 14) the Supreme Court released for comment proposed changes to its rules. One change of note is in the rules governing amicus curiae briefs. Tony Mauro, New Supreme Court Rule Would Force Advocacy Groups to Reveal Membership Rolls, Legal Times (, May 24, 2007.

Currently, an amicus must state in its brief whether counsel for a party drafted all or part of the brief. Under the the proposed rule (R. 37.6), the brief must state that and whether a party or a party's attorney is a member of the organization or made a monetary contribution to the preparation or submission of the brief.

On the one hand, this makes complete sense. Suppose I'm a litigant and wealthy. Would it be fair for me to be able to use my wealth to dummy up fake advocacy organizations (Citizens' Association in Favor of Whatever) to write amicus briefs on my behalf? What if I could co-opt existing organizations and get them to submit briefs to support my side simply by writing enough checks?

On the other hand, many advocacy groups have worked hard to keep private their membership lists. The Supreme Court upheld their right to do so in NAACP v. Alabama, 377 U.S. 288, Findlaw link (1964).

One group that often submits amicus briefs is the U.S. Chamber of Commerce which, according the article, places a high premium on the secrecy of its membership list and promises members that it will never reveal that they're members.

Another change for amici (R. 37.2(a)) would tighten up the time for them to file briefs, with no possibility of extensions.

A change affecting parties is in the way length of briefs (and other documents) is counted -- if it's adopted, the limits will be word counts not pages (R. 33.1(1)(g)).

The proposed changes are available here.

S. Ct.: Parents Can Litigate on Behalf of Child's Educational Needs

Tony Mauro, High Court Rules Parents Can Litigate on Behalf of Child's Educational Needs, Legal Times, May 21, 2007. The case is Winkelman v. Parma City School Dist. (May 21).

What If SCOTUS Goes on TV?

First Impressions, the online publication of the Michigan Law Review has a Symposium on Televising the Supreme Court.

Will 12(b)(6) "b" easier?

In Bell Atlantic Corp. v. Twombly, decided on Monday, the Supreme Court addressed the specificity of pleading necessary to survive a 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.

Twombly and others represented a class of phone and internet subscribers. They alleged that phone companies had conspired not to compete, citing the companies' parallel markets.

The district court granted defendants' 12(b)(6) motion. The Second Circuit reversed, saying the defendants needed to show there was no set of facts that the plaintiffs could prove that would prove the elements of the claim. And the Supreme Court reversed that:

we do not require heightened factpleading of specifics, but only enough facts to state a claimto relief that is plausible on its face. Because the plaintiffshere have not nudged their claims across the line fromconceivable to plausible, their complaint must be dismissed.
majority slip op. at 24.

"The Twombly opinion not surprisingly has caused quite a stir in civil procedure circles." Is Twombly the Death-Knell for Notice Pleading?, SCOTUSblog, May 24, 2007. See that post for a little analysis and links to other commentary.

Thanks: Lea Vaughn, Mary Hotchkiss.

Wednesday, May 23, 2007

Ex-Aide Admits Political Slant in Justice Role - New York Times

Ex-Aide Admits Political Slant in Justice Role, New York Times, May 23, 2007:

A former top Justice Department aide testified on Wednesday that she had “crossed the line” in considering the political beliefs of applicants for nonpartisan legal jobs and suggested that earlier testimony by Attorney General Alberto R. Gonzales and another top official about the dismissals of federal prosecutors may have been flawed.

Monica M. Goodling, the former Justice official, told a House panel that she regretted favoring applicants with Republican credentials for lower level prosecutor jobs or prestigious postings at Justice headquarters, actions that could violate federal employment laws.

U-Haul, Unsecured Load, Blood Alcohol, and Contributory Fault

In today's P-I, Tracy Johnson reports that a court filing shows that Maria Federici had a high blood-alcohol level when she was seriously injured by a piece of particle board that came through her windshield. Federici is suing U-Haul because it did not warn people who rented its trailers that large items could fall out and it did not equip the trailers with tie-downs. U-Haul says that Federici's possible intoxication is relevant because it could show contributory fault: perhaps she was following too closely or reacting too slowly to avert the accident. U-Haul: Federici was drunk at time of accident, Seattle P-I, May 23, 2007.

U-Haul's attorney's say Federici's attorneys delayed turning over the lab results; Federici's attorney's deny that, and also question the reliability of the test.

The accident and Federici's injuries inspired Maria's Law, Wash. Laws ch. 431, codified at RCW 46.61.655 , creating the crimes of failure to secure a load in the first degree (a gross misdemeanor) and failure to secure a load in the second degree (a misdemeanor). (The difference is injury to people versus injury to property.) The next year, the legislature amended RCW 7.60.020 to include that crime in the Washington Crime Victims' Compensation Program. 2006 Wash. Laws ch. 268.

The P-I's website allows readers to comment on articles. So far, this one's had 116 comments! I think they show an interesting sample of public attitudes toward the tort system (among other things). The word "scum" is used a lot -- both for U-Haul and for the plaintiff's lawyers (and lawyers as a class). Some writers say the blame should all be with the U-Haul's driver who should have used "common sense" and secured the load, whether or not U-Haul warned him. Some say that we're a culture of victims, looking for someone to blame. Some say U-Haul is only being sued because it has deep pockets. And so on.

By the way, the contributory fault statute is RCW 4.22.

In an action based on fault seeking to recover damages for injury or death to person or harm to property, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant's contributory fault, but does not bar recovery.
RCW 4.22.050. And if more than one party is liable (say, the driver, U-Haul, and the local U-Haul agent), one or all of them could be held liable:
Except as otherwise provided in RCW 4.22.070, if more than one person is liable to a claimant on an indivisible claim for the same injury, death or harm, the liability of such persons shall be joint and several.
RCW 4.22.030. So -- contrary to what some comment-writers seem to think -- the system doesn't need to seize on just one person to blame for Federici's disabling injuries.

Graphic from King County Solid Waste Division.

NC Med Mal Bill - Wash. Model

In a turnaround from previous years, both doctors and lawyers in North Carolina are supporting a bill that would cap monetary damages at $1 million in some medical malpractice cases.
Doctors, Lawyers Find Themselves in Rare Agreement on Med-Mal Bill, (AP), May 23, 2007.

The bill is modeled on Washington's law that passed in 2006. 2006 Wash. Laws Ch. 6. (See post.)

Monday, May 21, 2007

Animal Law CLE

You don't often see a story about a CLE in a general news source, but Kimberly Marlowe Hartnett, Crosscut's Oregon editor, covered "Codes and Commands: Emerging Law and Religious Traditions in the Treatment of Animals," a CLE cosponsored by the Oregon Law Institute (Lewis & Clark Law School) and the Institute for Judaic Studies of the Pacific Northwest: Pets, food, and fur: Exploring our affinity for animals can get complicated, Crosscut, May 10, 2007. A central issue is valuation -- how do you mention damages for the loss of a life -- a person's, a dog's, a goldfish's? (Another story about the CLE: All God's creatures, Oregonian, April 28, 2007.)

Photo from P. J. Schofield, M. E. Brown and P. L. Fuller, Salinity tolerance of goldfish: a widely-distributed non-native cyprinid in the U.S.A., U.S. Geological Survey (2006).

More on McKay

Chuck Taylor, editor of Crosscut, asks Unasked questions in the U.S. attorney firings, Crosscut, May 11, 2007. His questions: (1) Why is it OK for McKay to accuse the White House of firing him as political payback without proof? (2) If the firing was about McKay's failure to prosecute voter fraud in the 2004 gubernatorial election, then shouldn't there be a closer look at his decision? Many readers clicked on the Comments button and weighed in.

Saturday, May 19, 2007

What Difference Do Attorneys Make?

What difference does it making being represented by an attorney? It's a big question, but two scholars took a stab at it by looking at a particular subset of cases: those filed in U.S. Tax Court, where many taxpayers represent themselves (but the government is always represented by counsel).

Leandra Lederman & Warren B. Hrung, Do Attorneys Do Their Clients Justice? An Empirical Study of Lawyers' Effects on Tax Court Litigation Outcomes, 41 Wake Forest L. Rev. 1235 (2006). The findings (as summarized in the authors' abstract):

Interestingly, the study found that the presence of an attorney for the taxpayer significantly improved the taxpayer's financial outcome in tried cases, an effect that increased with the experience of the attorney. No such effect existed in settled cases. Although the latter result initially is surprising, it highlights the paramount importance of procedural expertise in formal trial proceedings, as opposed to negotiations with the opposing party. The study also found that the presence of an attorney for the taxpayer did not affect time elapsed to trial or settlement. Thus, the study found that taxpayers' attorneys, who generally are paid by the hour, neither prolonged disputes nor expedited their resolution but did significantly improve the financial outcomes of the cases they tried.

Survey Closed

Thanks to all who responded to my survey. There were 74 participants in all -- 18 UW law students, 26 UW faculty and staff, and a good mix of lawyers and members of the public from Washington and elsewhere.

Friday, May 18, 2007

Plea Deal for Abusive Foster Father

Enrique Fabregas, the 53-year-old man accused of sexually abusing girls in his care over a period of years, pleaded guilty on Monday to lesser charges -- one count of sexual exploitation of a minor and one count of communicating with a minor for immoral purposes, when he was charged with three counts of sexual exploitation of a minor. Foster father admits sex crimes, Seattle Times, May 15, 2007.

Prosecutors did not charge Fabregas with child rape (a more serious charge) because of the statute of limitations and issues of proof for some of the incidents.

The article quotes former Trial Ad instructor David P. Moody, who represents three victims in a civil suit against Fabregas. He blames DSHS for the prosecution problems -- if the 25 complaints against Fabregas between 1996 and 2004 had been investigated better, then prosecution would have been possible.

Thursday, May 17, 2007

Chamber Ranks States' Lawsuit Climates

The U.S. Chamber of Commerce's Institute for Legal Reform commissioned a poll of "1,599 senior attorneys"), asking them to grade states on 12 factors affecting states' tort liability systems. Chamber Study Ranks Best, Worst Lawsuit Climates, press release, April 25, 2007.

Washington is #25 among the states (up from #28 in 2006 but down from #15 in 2005). Washington's detailed report card (based on responses of 130 of those "senior attorneys") is here.

The full report has more information about methodology. It was a phone survey, among "a nationally representative sample of senior attorneys, in-house general counsel, senior litigators and senior attorneys who are knowledgeable about litigation matters at companies with annual revenues of at least $100 million." Five persent of respondents were from insurance companies. 2007 U.S. Chamber of Commerce State Liability Systems Ranking Study at 6. "The goal was to explore how reasonable, fair and balanced the tort liability system is perceived to be by U.S. business." Id.

Prosecutor's Meth Novel

Some lawyers fantasize about becoming novelists. Mark Lindquist was a successful screenwriter and novelist who became a lawyer and is now a prosecutor in Pierce County. He didn't leave behind his writing, though, and now has a new novel, The King of Methlehem, that is informed by his experience as a prosecutor:

"We're absolutely swamped. Pierce County was consistently in the top five counties in the nation for meth," says Lindquist. One day, he recalls, "It occurs to me that what I'm reading for work is more dramatic, more interesting, more full of human drama than most novels I'm likely to read nowadays." With a screenwriter's pruning instinct, he pauses and polishes his quote: "Police reports have more pathos and drama than a novel."
Tim Appelo, The Lawyer, writer addicted to work, Seattle Times, May 17, 2007.

Wednesday, May 16, 2007

President Bans Contingency Fees to Outside Firms Who Represent Feds

Today President Bush issued an executive directing agencies who use outside counsel not to use contingent fee agreements. Executive Order: Protecting American Taxpayers From Payment of Contingency Fees, May 16, 2007:

Section 1. Policy. To help ensure the integrity and effective supervision of the legal and expert witness services provided to or on behalf of the United States, it is the policy of the United States that organizations or individuals that provide such services to or on behalf of the United States shall be compensated in amounts that are reasonable, not contingent upon the outcome of litigation or other proceedings, and established according to criteria set in advance of performance of the services, except when otherwise required by law.
The U.S. Chamber of Commerce (speaking through its affiliate, the Institute for Legal Reform) is very pleased with the order. It has been urging similar measures on the state level. U.S. Chamber Applauds White House Ban on Trial Lawyer Contingency Fees, press release, May 16, 2007.

I wonder how often the federal government contracts with outside counsel. Is this executive order's impact supposed to be practical, rhetorical, or both?

(The Institute for Legal Reform is doing its best to publicize it. I learned of it not through my regular news sources but from an email message from the Managing Editor of the Institute for Legal Reform. That's OK -- I'm glad to learn of legal developments. But I wonder how widely he's spreading the word. What email list was I on that led to this mailing?)

The Institute for Legal Reform's page on Washington State says that the state AG is the only official authorized to hire outside counsel and that state law is silent on contingent fees.

I'm sure the multi-state tobacco litigation prompted or fueled the antipathy to contingent fee agreements for government work. For information about the different fee agreements the states had with their counsel, see Congressional Research Service, Attorneys' Fees in the State Tobacco Litigation Cases, Sept. 23, 1997 (Washington is on p. 19).

Some articles, if this issue grabs you:
  • Meredith A. Capps, "Gouging the government": why a federal contingency fee lobbying prohibition is consistent with First Amendment freedoms, 58 Vanderbilt L. Rev. 1885-1923 (2005).
  • Kris W. Kobach, Contingency fees may be hazardous to your health: a constitutional analysis of Congressional interference with tobacco litigation contracts, 49 S. Car. L. Rev. 215-245 (1998)
  • Charles Silver and Lester Brickman, Contingency fees: should plaintiffs lawyers in the tobacco settlement receive billions of dollars?, ABA J., Sept. 1997, at 74 (includes both a pro and con position).
  • David Edward Dahlquist, Inherent conflict: a case against the use of contingency fees by special assistants in quasi-governmental prosecutorial roles, 50 DePaul L. Rev. 743-98 (2000).

Tuesday, May 15, 2007

Gonzales Under Fire

I try to leave coverage of national politics to others, but the controversy around Attorney General Alberto Gonzales is about the administration of justice, not just politics, so I'll mention a few developments:

  • Today former Deputy Attorney General James B. Comey testified to a Senate committee about conflicts between the White House and the Justice Department in 2004. He refused to approve a sensitive program -- probably the NSA warrantless wiretap program. Then-White House Counsel Alberto Gonzales called on Attorney General John Ashcroft in the hospital to try to get around his decision. Ashcroft also declined to approve the program. White House Pushed Ashcroft on Wiretappings, Wash. Post, May 15, 2007.

  • Yesterday Deputy Attorney General Paul J. McNulty announced his resignation, effective in late summer. He says the publicity about the U.S. attorney firings was not a factor, and people close to him say he was planning to serve only two years all along. Still, there has been a lot of heat.
    McNulty became a central figure in the furor after he told the Senate Judiciary Committee in February that the White House played only a marginal role in the dismissals -- a characterization that conflicted with documents later released by Justice and with subsequent testimony.

    He also said most of the prosecutors were fired for "performance-related" reasons. That statement angered many of the former U.S. attorneys, most of whom had sterling evaluations and had remained largely silent about their departures.

    The fallout has led to a deepening rift between Gonzales, who was upset by the testimony about former U.S. attorney Bud Cummins, and McNulty, whose supporters believe he has been tarred by missteps and possible wrongdoing by former Gonzales aides, according to numerous Justice officials.
    Justice Dept.'s No. 2 to Resign, Wash. Post, May 15, 2007.

  • Today
    Attorney General Alberto Gonzales said Tuesday he relied heavily on his deputy [McNulty] to oversee the firings of U.S. attorneys, appearing to distance himself from his departing second-in-command.
    Gonzales: Deputy Was Pointman on Firings, Wash. Post, May 15, 2007.
    Sen. Arlen Specter, top Republican on the Senate Judiciary Committee, called McNulty a "professional" and then added: "It's embarrassing for a professional to work for the Department of Justice today."

  • This morning, a group of Gonzales's law school classmates ran an ad in the Washington Post with an open letter to him.
    As members of the post-Watergate generation who chose careers in law, we understood the strong connection between our liberties as Americans and the adherence by public officials to the law of the land. We knew that the choice to abide by the law was even more critical when public officials were tempted to take legal shortcuts. Nowhere were we taught that the ends justifies the means, or that freedoms for which Americans had fought and died should be set aside when inconvenient or challenging. To the contrary: our most precious freedoms, we learned, need defending most in times of crisis.
    The letter takes what should be uncontroversial positions -- against torture, for habeas corpus, against warrantless surveillance, for separation of powers, against firing able U.S. attorneys solely because of partisan politics -- and urges respect for the rule of law.

    I would not have paid much attention to this ad, except I'm also a member of the Harvard Law School class of '82. (I didn't know the future AG: it's a big class!) I missed our 25th reunion week before last, but Mr. Gonzales did not (see AP story, CNN, April 29, 2007). I'm proud of my classmates who decided to write the letter after his visit (and I was happy to add my name to it).

    To see a (teeny) copy of the letter, go to And, Yes, I DO Take It Personally. The letter also got coverage in a New York Times blog: Law School Classmates Criticize Gonzales, The Caucus, May 14, 2007.

Monday, May 14, 2007

CourTopics from NCSC

The National Center for State Courts has a database of information -- various fact sheets and reports -- on a range of topics, from Administrative Law Judges to Workload and Resource Assessments. See CourTopics Index. NCSC also has state-specific pages. Its links for Washington State are here. And if you want to compare one topic across all the states, go to the list of topics here.

Thanks: beSpacific.

Kids Need Lawyers in Abuse & Neglect Cases

Prof. Kimberly Ambrose (with 3L Luke Wickham) wrote an op-ed in the P-I arguing that children should be represented in abuse and neglect cases. Washington is in the minority of states that do not provide legal counsel to all children in abuse and neglect proceedings, Seattle P-I, May 11, 2007.

By the way, May 15 is the 40th anniversary of In re Gault, 387 U.S. 1, Findlaw (1967), the landmark case that gave juveniles accused of crimes the same right to counsel enjoyed by adults. (Prof. Ambrose summarizes the case in her op-ed piece.)

Tech in Courtrooms: Haves and Have Nots?

Yesterday the News Tribune had a story describing the trend toward more high-tech aids in courtroom presentations. Focusing on criminal trials, the reporter contrasts the new equipment the Pierce County Prosecutor's office has invested in with the low-tech options available to small criminal defense firms and public defenders and identifies the equity issue:

[S]ome people worry that the pursuit of justice – truth and equity – could be hindered if one side is armed with the latest technology and the other relies on butcher paper to diagram crime scenes.
Adam Lynn, Fancy gadgets replace oratory in courtrooms, News Tribune, May 13, 2007.

Thanks: Lisa Kremer.

McKenna at UW

Washington Attorney General Rob McKenna speaks at the UW School of Law tomorrow at 4:00 -- the last in this year's speaker series sponsored by the Gates Public Service Law Scholarship Program.

Reality TV Suits

This morning's Seattle Times has three stories about suits by reality TV participants against the shows:

All three stories are reprinted from the Los Angeles Times.

Sunday, May 13, 2007

Basics of DNA Forensics

DNA Forensics: Expanding Uses and Information Sharing is a brief report from SEARCH (The National Consortium for Justice Information and Statistics). It's a good intro for people not familiar with the area, and it includes a glossary at the beginning.

Thanks: beSpacific.

Saturday, May 12, 2007

Seventh Circuit Wiki

beSpacific reports:

The Wiki of The United States Court of Appeals for the Seventh Circuit provides Electronic Access to Seventh Circuit Case Information, Rules, Procedures and Opinions. This is the first public wiki launched by the federal judiciary. According to Chief Judge Frank Easterbrook, who spearheaded the wiki project, and reported by the National Law Journal, "The wiki will welcome comments from lawyers across the nation because issues of federal practice, especially in the appellate courts, are common ones..."
beSpacific: Seventh Circuit Practitioner's Handbook Posted on Judicary Wiki, May 10, 2007.

How to Keep up with Blogs

One of the people who responded to the survey about this blog wrote:

I like the blog, but I don't have a system for checking blogs regularly. So, I am an intermittent reader and check the blog only if I need something at that moment related specifically to trial ad. Do folks have a system -- besides bookmarks -- for keeping up to date reading several blogs?

Good news -- there's help!

One easy technique is to subscribe via email. Most blogs offer this as an option. For this blog, look in the sidebar to the right -- all you have to do is enter your email address in the box. You'll receive an email message each day that I write new posts; the message will include that day's posts.

One of my friends subscribes to several blogs this way. She tends to stay on top of her email and builds her blog-reading into her daily routine.

I have found that it works better for my workstyle to subscribe using a feed reader (also known as an aggregator).

There are a bunch of readers out there. I use Bloglines, and I've been very happy with it. It allows you to list blogs that you want to follow (and organize them if you want). Then when you are ready to catch up with the news, you log in to Bloglines and see the stories from the different blogs. (You can see just the latest or, say, all the stories from the last month.) When you see a story you want to save, you just check a box. When you see a story you want to share with someone, emailing just just a click away.

Bloglines also lets you share your list of blogs (and other feeds). Take a look at mine. You'll see I've organized my feeds into categories -- e.g., Trial Practice, Public Interest Law, and Washington Government. That makes it easy for me to scan a lot of blogs in one place. (Feel free to bookmark my Bloglines page and browse anytime.)

(Bloglines lets you decide how much to share. If I didn't want you to see that I have a feed for the Daily Puppy, for instance, I could hide it.)

To subscribe to Trial Ad Notes via Bloglines, click on the Bloglines icon in the sidebar at right.

For more on Bloglines and feed readers, let my friend Diane Murley from SIU (Law Dawg Blawg) explain it to you:Thanks for responding to the survey! I hope this answer helps you -- and maybe some other readers too.

Computer School Case Settles

An insurance company for Business Computer Training Institute in Gig Harbor (now defunct) have reached a settlement with students who sued for fraud, saying the school took advantage of low-income students, charging high tuition (taking the students' federal and state financial aid money) and saying the students could get good jobs, but offering poor training that resulted only in minimum-wage jobs. Ex-BCTI students will collect, News Tribune, May 12, 2007.

The class includes over 600 students. Many of the students defaulted on their student loans and have had significant financial problems because of their BCTI experience The settlement amount is $9 million and must still be approved by Pierce County Superior Court Judge Thomas Larkin. The plaintiffs have not settled with a second insurance company.

Problems related to BCTI and similar schools led to new legislation. For-profit vocational schools will have tighter financial standards; there will also be minimum standards for instructors and administrators.

The new legislation is SB 5402. Governor Gregoire is scheduled to sign the bill into law on Monday.

Earlier coverage (most by Dave Wickert):

Update (May 25): Catching up on some new books lists, I noticed that our library recently got a new edition of a book from the National Consumer Law Center: Student Loan Law: Collections, Intercepts, Deferments, Discharges, Repayment Plans, and Trade School Abuses (3d ed. 2006), KF4235 .L66 2006 at Reference Area. 562 pages plus a CD-ROM -- that's a lot of student loan law!

Patient trapped in middle of nasty dispute

The Seattle Times reports a messy dispute among: the family of a man paralyzed and unable to speak; his court-appointed guardian; and various health care providers. Patient trapped in middle of nasty dispute, Seattle Times, May 12, 2007. The case is before King County Superior Court Commissioner Carlos Velategui.

L&I on Crane Collapse

The Washington State Dept. of Labor and Industries issued a report yesterday on the crane collapse in Bellevue last November that damaged three buildings and killed a man in his apartment. L&I found that the cause of the collapse was a faulty base for the tower crane -- it was attached to steel I-beams welded together and attached to four concrete pillars, rather than to a cement foundation. L&I fined the engineering firm that created the base $5600 for failing to ensure the design met the recommendations of the crane manufacturer and fined the general contractor $5600 for failing to conduct regular inspections and $3600 for attaching oversize signs to the crane. Blame for crane collapse affirmed, Seattle Times, May 12, 2007.

The collapse of the crane prompted the Legislature this year to enact new laws establishing a construction-crane-certification program and a crane-operator-certification program, which will be administered by L&I.

* * *

[Steve] Cant [assistant director for L&I’s Division of Occupational Safety and Health] said L&I specifically asked that the new construction-crane legislation include a provision that, in any non-standard tower crane base, an independent professional engineer must review and approve the plans.
L&I investigation: Flawed engineering design caused tower-crane collapse, L&I press release, May 11, 2007.

The new legislation is 2007 Wash. Laws Ch. 27, effective Jan. 1, 2010. It will be codified in RCW 49.17.

The administrative fines will not be the end of the story. The Seattle Times story mentioned two attorneys who represent the family of Matthew Ammon, the man who was killed in his apartment. (They are Matthew Knopp and Michael Wampold, both of Peterson Young Putra. Mike Wampold is also a Trial Ad instructor.) Since the family has retained counsel, it is probably planning to sue. I would also expect suits from the owners of the three buildings that were damaged by the crane collapse -- and maybe the owners of the original project, which must have been held up for some time by the collapse and the investigation.

Photo: Tower crane in Hood Canal Bridge project, WSDOT. (This is not the crane that collapsed.)

Friday, May 11, 2007

Take My Survey ... Please!

So far, 58 people have responded to the survey about this blog, including 18 UW law students, 19 UW law school faculty and staff, and a number of readers from the legal community and the public. If you're in that group, THANKS!

Whether you're a regular reader or this is your first visit, whether you're in the University of Washington Trial Ad program or you've never even been in Seattle, I'd be very interested in your thoughts. Please take the survey!

There's only one week left to take the survey and offer your feedback on Trial Ad Notes!

The survey results will be used -- most importantly in deciding whether to maintain the blog or pull the plug.

If you haven't taken the survey yet, please do. If you have, remind your friends.


Larry Bobo on Race and Punishment

Next Tuesday, author and professor Larry Bobo will deliver the UW's Walker-Ames Lecture Of Punitiveness and Prejudice: Racial Attitudes and the Popular Demand for Harsh Crime Policies. Tues., May 15, Kane Hall, Rm. 120, 6:30-8:00.

Lawrence D. Bobo is Martin Luther King Jr. Centennial Professor and Director, Center for Comparative Studies in Race and Ethnicity and Program in African and African American Studies, Stanford University.

The program announcement says:

Tough anti-crime policies now enjoy deep wells of popular support. This taste for punishment coincides with a law and order policy regime that has resulted in the heavily disproportionate incarceration of minorities, especially of African Americans.

This research poses the question of whether anti-black racial prejudice is a significant component of the public demand for tough law and order policies. Using data from the 2001 Race, Crime and Public Opinion Study, the research assesses the connection of three different measures of racial prejudice­stereotypes (trait ratings), affect, and racial resentment­on support for the death penalty, three strikes laws, and trying juveniles as adults.

The prejudice hypothesis is pitted against several rival hypotheses about the sources of public opinion on crime including: (1) actual levels of violent crime, (2) fear of crime, (3) group threat (percent black), (3) social disorder (percent black in poverty), (4) political and religious conservatism, and (5) common sense or lay attributions for crime.

The results show a large and consistent impact of racial resentment on support for punitive crime policies. A small part of this effect reflects an overlap with individualistic lay attributions about the causes of criminal behavior. However, none of the other rival hypotheses weaken the impact of prejudice on punitive crime response attitudes. We discuss the theoretical and practical implications of the results.

What are the demographics of the prison population in Washington? What are the national averages?
  • White -- WA 62.6% ... USA 48.3%
  • Black -- WA 19.6% ... USA 48.3%
  • Hispanic -- WA 10.2% ... USA 9.8%
  • North American Indian -- WA 4.1% ... USA 3.3%
  • Asian -- WA 3.1% ... USA 1.8%
  • Unknown/Other -- WA 0.4% ... USA 0.7%
  • Male -- WA 91.1% ... USA 92.9%
  • Female -- WA 8.9% ... USA 7.1%
Source: Washington State Department of Corrections, April 2007.

Photo from FBI Law Enforcement Bulletin, Dec. 2004.

Lying Cops Issue Heats Up

Last month, a couple of police officers were caught in a lie -- they didn't report that they had handcuffed and questioned a suspect other than the one they booked, but a store's security tape showed that they had. The prosecutor's office thought it was serious enough that it sent a letter to defense attorneys for other defendants arrested by the pair of officers (Greg Neubert and Michael Tietjen). (See earlier posts.)

New developments:

  • Expert takes issue with cops' reports, Seattle Times, May 10, 2007. Expert's review of videotape shows many inconsistencies between the officers' report and what happened.
  • Judge may give access to cop video, Seattle Times, May 8, 2007.
    [D]uring a hearing Monday, King County Superior Court Judge Catherine Shaffer said that she probably will let defense attorneys in at least nine cases involving the two officers to have access to the video and other information from the internal investigation.

    * * *

    "I'm inclined to find that, based on the officer accounts and the videotape taken together, that there is a sufficient showing" that the information is relevant for the defense in the other cases, the judge said.

    Shaffer pointed out that this is an unusual — if not unique — instance because of the existence of a video that can be used to test the officers' statements.
    According to the article, Judge Shaffer will issue a formal ruling today. (Judge Shaffer is also a UW Trial Ad instructor.)
Update (May 12): Judge Shaffer did issue her ruling: 2 officers' reports on arrest questioned, Seattle Times, May 12, 2007.
On Friday, Shaffer said she closely reviewed the tape, read the officers' arrest reports and statements to the department's Office of Professional Conduct, "and they really don't square in any significant way."

The judge said she found a scathing report by a defense-hired forensic analyst who reviewed the videotape to be credible. The expert, Grant Fredericks, a former police officer and FBI lecturer, challenged the officers' version of the arrest from start to finish.

"I don't see trivial discrepancies," Shaffer said. "I think that there are a lot of discrepancies. I find it concerning."

Saliva Case Decided

The Washington Supreme Court upheld the use of evidence obtained by the police in a controversial ruse. Investigating a cold case, the police focused on a suspect in another state. To get a sample of his DNA, they sent him a letter purporting to be from a law firm representing plaintiffs in a class action. He replied, sealing the envelope with his saliva, and sealing his fate with his DNA. Yesterday the Court upheld his conviction under the state and federal constitutions. State v. Athan, No. 75312-1, Washington Courts website links: majority (C. Johnson, J.), concurrence (Alexander, C.J.), dissent (Chambers, J.)(joined by Sanders), dissent (Fairhurst, J.).

One difference between the majority and the dissents was how they characterized the privacy interest -- is it in one's identity? The majority said DNA reveals identity the way a thumbprint does; the dissent said it's different, deeper. Another difference was how the justices viewed the ruse used -- does it interfere with the attorney-client relationship? The majority said that licking an envelope is not an attorney-client communication. Justice Chambers was concerned that the police got the evidence by posing as attorneys. This was the issue on which WSBA filed an amicus brief -- see earlier posts. (Justice Chambers was the president of WSBA, by the way, so perhaps he has a special sensitivity to the role of lawyers.)

See Natalie Singer, Court upholds murder conviction based on DNA from envelope, Seattle Times, May 10, 2007.

Visit "Deliberations"

Catching up on some reading, I recently looked at a few weeks of posts from Deliberations. Subtitled "Law, news, and thoughts on juries and jury trials," this blog also reports some interesting empirical studies.

There are two many good posts to link to here, so I'll just recommend the whole blog. Recent posts discuss how to improve voir dire, how jurors perceive lawyers' speaking styles, the effect of fatigue on moral judgment, a Ninth Circuit case about a trial in which the defense agreed to have the court dismiss a juror who was a holdout and proceed with eleven jurors, a DC Circuit case saying it's OK to strike blind jurors, lessons on storytelling from Ira Glass, and more.

The author (Anne Reed, a trial lawyer and jury consultant) writes well and finds lots of interesting material. Take a look!

Annals of Law: The CSI Effect:

In last week's New Yorker Jeffrey Toobin takes a look at forensic evidence: Annals of Law: The CSI Effect, New Yorker, May 7, 2007. (The link is only to an abstract, not the full article.)

Wednesday, May 9, 2007

Basic Trial Advocacy

Professor James A. Tanford (Indiana University) offers "Everything You Ever Wanted to Know About Trial Procedure and Tactics" in his brief guide, Basic Trial Advocacy.

Thanks again to Elliott Wilcox at Winning Trial Advocacy Techniques.

Trial Ad at the Movies

Prof. James Tanford, who teaches Trial Advocacy at Indiana University, presents on his website a collection of transcripts of movie trial scenes "for entertainment and pedagogical purposes."

He also offers "the entirely subjective Tanford list of the top 100 trial movies of all time" here. You'll see the movies you'd expect ("A Few Good Men," "To Kill a Mockingbird") and some surprises (a Tarzan movie and a Three Stooges movie, for instance). Many happy hours of viewing -- and educational too!

UW students, remember that you can borrow many videos and DVDs through Summit -- free!

Thanks: Winning Trial Advocacy Techniques.

Prosecution rests case in Hells Angels trial

I was in the federal courthouse for a meeting today. A sign in the elevator the Hells Angels trial (restricting cell phones in the courtroom) reminded me to check on its status. The prosecution rested its case on Tuesday, and now the defense is presenting testimony, including some challenging forensic evidence the prosecution relies on. Prosecution rests case in Hells Angels trial, Seattle P-I, May 8, 2007.

McKay and 2 Other USAs Speak at Seattle U

Fired U.S. Attorney John McKay and two of his peers (fired U.S. Attorneys Paul Charlton (AZ) and David Iglesias (NM)) spoke on a panel at Seattle University Law School this afternoon. Five months later, 3 prosecutors still want truth about firings, Seattle P-I, May 9, 2007.

Attorney General Alberto Gonzales returns to Capitol Hill (the original Capitol Hill, not Seattle's) tomorrow to continue his testimony about the firings tomorrow.

Tuesday, May 8, 2007

Baseball, Race, and Juries

This week, ABC News and ESPN announced the results of a poll showing dramatic differences in opinion on Barry Bonds depending on the race of the person polled. ABC News: Poll: Bonds' Quest Gets Scant Support, May 7, 2007.

  • Who's rooting for Bonds to break Hank Aaron's home run record? Only 28% of whites, but 75% of blacks.
  • Who thinks Bonds knowingly took steroids? About 75% of whites, just over a third of blacks.
It appears that blacks are much more likely than whites to take an outstanding black athlete's word, and that whites are much more likely than blacks to "convict" him of the offense. These striking differences in the court of public opinion make me think about juries. How much can you predict a person's response to evidence based on race -- or age or sex or any other characteristic?

In Courtroom 302 (see earlier post), the author reports that race is often the unspoken reason for peremptory challenges, despite Batson v. Kentucky, 476 U.S. 79, Findlaw (1986).
[Judge] Locallo perfunctorily does his duty under Batson, asking one side for race-neutral reasons when the other complains of a racial strike and immediately accepting whatever justification is offered. The judge says later he realized the reasons cited may be contrived. "But I don't think it's my prerogative to say, 'You've given a race-neutral reason; I think it's full of shit.'" . . . Locallo closes the final Batson discussion in nearly one breath, with the court reporter straining to keep up: "Pursuant to Batson versus Kentucky and its progeny the court is required to see if the reaons are race-related or race-neutral and I've considered each of the reasons given by both the state and also defense and I've found race-neutral reasons for the exclusion of those individuals."
Steve Bogira, Courtroom 302, at 262 (2005).

But Bogira also discusses the trial of a black man accused of killing someone with a shank in prison. The jury foreperson was a 44-year-old black man:
McGee . . . says he was stunned to learn, when deliberations began, that not everyone was convinced of [the defendant's] guilt. In fact, the first vote had been nine to three for acquittal, with McGee and two white men comprising the minority, and all six women voting not guilty. "I thought it was gonna be the blacks against the whites," McGee says, "But most of the whites were saying not guilty!"
Id. at 148. So it's much more complex than a simple "blacks support black defendants." In this case, McGee, a postal worker, said "I don't care nothin' for no gangbangers," and apparently did not want to cut this felon any slack.

Graphic: mw.

Sunday, May 6, 2007

Nonverbal Communication

I've been on vacation (aha, that's why no posts for so long!), but I keep my eyes open for interesting trial-related material. Yesterday I read an article about nonverbal communication in US Airways Magazine: "Body of Evidence" by Maryann Karinch (May 2007).

It offers tips from I Can Read You Like a Book: How to Spot the Messages and Emotions People Are Really Sending with Their Body Language, by Gregory Hartley and Maryann Karinch (Career Press, 2007).

Greg Hartley is a former Army interrogator who now applies his skills in the private sector as a consultant and author. He and Karinch also wrote How to Spot a Liar (Career Press 2005).

The first tip in the article is that the common wisdom that people who break eye contact are lying isn't wisdom at all. Hartley says that people commonly look up with a person is using visual memory -- breaking eye contact is normal, not a sign of deceipt.

Another observation: "When people recognize each other, their eyebrows flash. It's an involuntary and universal piece of body language."

The book has two customer reviews on Amazon: one person loved it, the other hated it. Since I've only seen the airline magazine article, I can't vouch for the book -- but I mention it here as something that might be helpful to trial lawyers who are trying to read witnesses and jurors, and also trying to communicate well themselves.

Note to readers: If you aren't one of the 48 people who have responded to the survey about this blog, please take a minute to offer your feedback. It will be very helpful! Thanks!

Inside Look at Criminal Court

In Courtroom 302, journalist Steve Bogira chronicles, as the subtitle indicates, "A Year Behind the Scenes in an American Criminal Courthouse." The courthouse is not any courthouse, but the one that handles all the criminal cases in Cook County, Illinois.

The book opens on a morning in early January 1998 as police wagons unload prisoners picked up the night before to make their first appearances in court. The author describes the prisoners -- mostly people picked up for possession of drugs, but some arrested for assault and other offenses -- and the deputies who process them and guard them. Through the year, we see all the actors in the courthouse -- or rather, the ones connected with one particular courtroom, which stands in for the system. Public defenders, prosecutors, private defense attorneys, defendants, defendants' family members, victims' family members all have a voice, if only briefly. We even hear a sketch artist for a TV station grumble when asked to draw the gallery because it's a heck of a lot of work to draw the crowd and it will only be shown for 15 seconds.

In addition to his countless hours of observation and hundreds of interviews, Bogira also uses outside sources, illuminating his subject by citing articles and reports about the criminal justice system -- particularly Chicago's -- going back decades.

It's a very interesting book, and well worth reading for anyone planning to work in criminal law. I believe that Cook County is extreme in some regards (certainly other systems haven't had huge corruption cases like the ones stemming from the FBI's Operation Greylord), but I fear that many of the problems -- systems clogged by minor drug cases, defendants agreeing to plea despite their belief that they are innocent, police who cut corners -- are all too common.

To read more about the book, see the publisher's page, which includes reviews and an excerpt. To read the whole thing, check it out: it's at KFX1247 .B64 2005 in the Good Reads section (the shelves just east of the lounge).