After a study found that Iowa's prisons had the highest racial disparities in the country, the legislature passed a law saying that all new sentencing laws had to have a statement about racial and ethnic impact prior to passage. See Prof. Douglas Berman's post at Sentencing Law & Policy (April 18, 2008) (linking to other materials).
Monday, April 28, 2008
Local News | DSHS sued for $22M over starving of child | Seattle Times Newspaper, April 25, 2008. The suit was brought by David P. Moody (a former Trial Ad instructor), who has made a specialty of suing the state for abuse and neglect.
The child's father and father's girlfriend have already been convicted of criminal charges (in Snohomish County Superior Court). Couple who starved boy get 8 years, harsh talk from judge, Seattle Times, March 15, 2008.
Friday, April 25, 2008
Fircrest woman charged in hit-run of female bicyclist | TheNewsTribune.com | Tacoma, WA, April 25, 2008.
Hit-and-run accident changes University Place bicyclists life | TheNewsTribune.com | Tacoma, WA, April 25, 2008.
Prof. John F. Duffy argues:
Under 35 U.S.C. § 6, administrative patent judges of the Board of Patent Appeals and Interferences (BPAI) are appointed by the Director of the Patent and Trademark Office (PTO). That method of appointment is almost certainly unconstitutional, and the administrative patent judges serving under such appointments are likely to be viewed by the courts as having no constitutionally valid governmental authority.Are Administrative Patent Judges Unconstitutional?, 2007
Patently-O Patent L.J. 21, http://www.patentlyo.com/lawjournal/2007/07/areadministrat.
Now a party is making the argument in a petition for certiorari. Challenge to BPAI Appointments Moves to Supreme Court, Patently-O Patent Law Blog, April 16, 2008.
The National Law Journal reports on it in its upcoming issue: Marcia Coyle, Patent board's rulings in doubt: Appointment of judges questioned, Nat'l L.J., Apr. 28, 2008 (password needed to see whole article).
Thursday, April 24, 2008
Federal agents contend the owners of two garden-supply stores . . . [in Tukwila and Auburn] supplied equipment, advice and trash-disposal services to growers in exchange for a cut of the profits.
Murderer tried to escape, Pierce County Jail officers say | TheNewsTribune.com | Tacoma, WA, April 24, 2008.
Several weeks after his guilty plea but before sentencing, the defendant made a rope out of sheets and broke the window of his cell (which was too small for a person to get through in any event).
Wednesday, April 23, 2008
Arbitrator urges raises for Tacoma police officers, News Tribune (Tacoma), April 23, 2008. The police officers have been working without a contract since 2005; this arbitration is a step toward a new collective bargaining agreement.
The proposed raises (based on a comparison with other cities, such as Spokane and Everett) are interesting, given Tacoma's recently announced goal of cutting the crime rate.
Tuesday, April 22, 2008
The Washington Supreme Court has published some proposed rules for comment. Text and comments are available here.
April 2008 - Proposed Rules Published for Comment
The following Proposed Rules Published for Comment in April 2008 have a comment period which expires on July 7, 2008.
* GR 22 - Access to Family Law and Guardianship Court Records
Rules of Appellate Procedure(RAP)
* RAP 13.5A - Motions for Discretionary Review of Specified Final Decisions
* RAP 18.13 - Accelerated Review of Dispositions in Juvenile Offense Proceedings
* RAP 18.13A - Accelerated Review of Juvenile Dependency Disposition Orders and Orders Terminating Parental Rights
Potential juror arrested for public intoxication, Austin American-Statesman, April 22, 2008. A man in Williamson County, TX, had three beers before reporting for jury duty -- potentially in a DUI case. He wandered around the courthouse to the judge's office and was arrested for public drunkenness.
They never got to voir dire for the DUI case: the defendant pleaded guilty.
The Washington Post is reporting on new developments in forensic DNA.
GENES AND JUSTICE The Second Generation
Rick Weiss, DNA Tests Offer Deeper Examination Of Accused: Biological, Emotional States Scrutinized, Wash. Post, April 20, 2008, at A01
The article discusses applications in both civil and criminal cases. Should a toxic tort defendant be able to show via genetic testing that the plaintiff would have been likely to get cancer even without the pollution? Should prosecutors bring in evidence that a defendant has a propensity to violence? Should the court measure damages in part by genetically-informed estimates of life expectance?
Rick Weiss, Where Genetic Influences Leave off and State of Mind Takes Over, Wash. Post, April 20, 2008, at A17.
Dwuan D. June, You Be the Judge, Wash. Post, April 20, 2008. This sidebar relates two hypothetical situations posed in a survey of federal and state judges asking whether they'd admit the genetic information -- first, a marker for susceptibility to schizophrenia (in a criminal case where the defendant argues insanity) and second, a marker for heightened sensitivity to pain (in a civil case where the plaintiff wants higher damages).
⇒ The original study, by two professors at the University of Maryland, was published in Science: Diane E. Hoffmann and Karen H. Rothenberg, When Should Judges Admit or Compel Genetic Tests?, 310 Science 241 (2005). The six hypos in their survey are here.
GENES AND JUSTICE Mining the Database
Ellen Nakashima, From DNA of Family, a Tool to Make Arrests, Wash. Post, April 21, 2008, at A01. The subtitle -- Privacy Advocates Say the Emerging Practice Turns Relatives Into Genetic Informants -- says a lot.
Law enforcement is often using relatives' DNA to zero in on a suspect. For instance, officers investigating a serial murder suspected one man. They got a court order for his daughter's Pap smear sample, test it, and found that it matched the perpetrator's DNA (consistent with a father-daughter relationship). In a case in England, the DNA of someone arrested for drunk driving led to her brother, who was convicted of serial rapes.
Familial searching of offender databases would be of no use "if close relatives didn't commit crimes," said Frederick Bieber, a medical geneticist at Brigham and Women's Hospital in Boston.
"For reasons we don't understand, there is often a familial clustering in crime," he said. "This could relate to organized crime families, to street gangs, or it could be dysfunctional family units." He pointed to a 1999 Department of Justice study that found 46 percent of prison inmates had at least one close relative who had been incarcerated.
Behind that statistic is another troubling set of numbers, highlighting an issue at the heart of the debate over familial searching: racial justice. The national database, which is made up mostly of state contributions, has a disproportionate number of DNA profiles from non-whites.
Stanford University law professor Henry T. Greely estimates that at least 40 percent of the FBI database is African American, though they make up only 13 percent of the U.S. population. That is because in an average year, more than 40 percent of people convicted of felonies in the United States are African American, he said.
If the national database were used for familial searching, he said, and assuming that on average each person whose profile in the database has five first-degree relatives, authorities would be "putting under surveillance" roughly a third of the African American population, compared with about 7.5 percent of the European American population, he said.
Graphic: DNA model from Genes—What We Knew, Know, and Hope to Learn Fact Sheet, NIH National Institute of General Medical Science
Tacoma sets an ambitious goal of cutting crime in half, News Tribune (Tacoma), April 21, 2008.
Tacoma City Manager Eric Anderson wants to reduce crime in the city by 50 percent in 14 months. Approximately 250 city employees from a cross-section of departments met for two days this week at Tacoma’s convention center to discuss how the city might reach the target, a goal that surprised some City Council members for its sheer ambition.
The same group is charged with developing a plan to clean up the city, an equally lofty aim that’s not as easily measured as the crime rate.
Big plans for the City of Destiny!
The Brennan Center for Justice at NYU issued a report this month recommending reforms in recusal policies around the country. James Sample, David Pozen & and Michael Young, Fair Courts: Setting Recusal Standards (2008). See a press release here.
The authors say that it's more important now because of increasingly contentious elections, with judges accepting big contributions from industries whose disputes they may preside over (whether it's insurance companies, plaintiffs' lawyers, or real estate developers).
Their ten recommendations:
- Peremptory disqualification. Some states let parties decline a judge assignment, just as they can excuse a juror.
- Enhanced disclosure. Judges should disclose campaign statements and campaign contributions that might be seen as affecting their impartiality.
- Per se disqualification for campaign contributors. The ABA also recommends disqualifying a judge from judging a party that has contributed above a certain amount to the campaign.
- Independent adjudication of disqualification motions.
- Transparent and reasoned decision-making. (Don't just say: "Nope, I won't recuse myself." Explain it.)
- De novo review on interlocutory appeal.
- Mechanisms for replacing disqualified judges.
- Expanded commentary in the canons.
- Judicial education.
- Recusal advisory bodies.
The National Law Journal reports that Judge Richard Posner was sharply critical of the system for adjudicating claims of asylum in a speech sponsored by the Chicago Bar Association on Monday.
Posner . . . said administrative law judges who serve in the immigration courts are ill-trained and insufficient in number. He also said the bar that represents applicants doesn't have enough qualified lawyers, and that the Board of Immigration Appeals, which has 11 members, is too small.Posner blasts immigration courts as 'inadequate' and ill-trained, Nat'l L.J. web only, April 22, 2008. (Alas, you have to have a Nat'l L.J. subscription to see the whole article.)
* * *
Judges should be better trained, especially with respect to the international issues they may be asked to consider; more law schools should offer clinics to help improve the quality of the bar; the Board of Immigration Appeals should add members; and judges should hold a conference to exchange ideas on the state of the system, he said.
The criticisms from federal judges are not new. For a longer article discussing the issue, see Adam Liptak, Courts Criticize Judges' Handling of Asylum Cases, N.Y. Times, Dec. 26, 2005.
And for a moving personal story of the system at work, see David Ngaruri Kenney and Philip G. Schrag, Asylum Denied: A Refugee's Struggle for Safety in America (2008) (see earlier post).
Friday, April 18, 2008
One reform of the civil justice system that's been proposed is taking medical malpractice cases away from courts of general jurisdiction -- and ordinary juries -- and instead having them tried by administrative courts that would specialize in health issues. Philip G. Peters, Jr. says: not so fast. Here's the abstract of his article, Health courts?, 88 B.U. L. Rev. 227 (2008):
This Article provides the first detailed critique of the Common Good/Harvard School of Public Health proposal to replace medical malpractice jury trials with adjudication before specialized health courts. I conclude that the modest benefits likely to be produced by the current health court proposal are more than matched by the risks of bias and overreaching that these courts would also present.Common Good's page on health courts is here. It summarizes the case for health courts like this:
Missing from the plan is the doctrinal change most likely to improve patient safety – hospital enterprise liability. Without enterprise liability, the health court proposal is unlikely to achieve its patient safety goals and, as a result, simply does not offer patients a sufficient quid pro quo to justify their loss of the right to a trial before a jury of their peers.
Why Does America Need Health Courts?
- The current medical liability system fails both patients and providers.
- Patients lose because few patients are compensated and those that do generally endure years of litigation.
- Physicians and other healthcare providers lose because they receive mixed signals on the appropriate standard of care, encouraging defensive medicine and adding to healthcare costs.
- Society loses because patient safety efforts, which require candor about mistakes and near misses, are stymied by legal fear.
Chief Justice Roberts and many other members of the federal judiciary say that federal judges' salaries are far too low. Scott Baker wondered what difference salary makes and put together an empirical study. Scott Baker, Should We Pay Federal Circuit Judges More?, 88 B.U. L. Rev. 63 (2008).
The obvious way to do such a study would be to take a group of high-paid federal judges and compare them with a group of low-paid federal judges. But, gee, they're all on the same pay scale (more or less).
So Prof. Baker instead calculated the opportunity cost for each court of appeals judge, comparing the salary received as a judge with the salary the judge would have received had he or she been a large firm partner in the same region over the same years. (He used law firm partners as the comparison group, even if the judge was in government or academia before appointment to the bench.)
How does that work? For example, a judge who is in Minneapolis and was appointed at age 40 would have a larger opportunity cost than a judge in Minneapolis who was appointed at 50, because he or she would forgo more years of the private sector salary. A judge in New York City would have a higher opportunity cost than a judge the same age in Seattle, because big firm partners in New York make more money than big firm partners here.
So now Baker could sort judges by how much they gave up to take the judicial salary. Now, how did he measure judicial performance? He looked at number of opinions, number of dissents, length of time to produce an opinion. For influence, he looked at number of citations by other circuits. A proxy for ideological bias was the ratio of citations to out-of-circuit opinions (i.e., persuasive precedent) by judges of the same party versus the other.
After a bunch of regression analyses, Prof. Baker concluded (as stated in his abstract):
This Article finds that low judicial salaries do not affect the nature of votes in controversial cases, the speed of controversial case disposition, the frequency of citation to outside circuit authority, or the strength of opinions as measured by citation counts. This Article does find, however, that low salaries lead to slightly fewer dissents. This effect, while statistically significant, is nonetheless practically trivial. In short, this Article finds that judicial pay is largely irrelevant to the performance of the circuit courts.
Thursday, April 17, 2008
Hugh Spitzer has a piece in today's Crosscut using constitutional fundamentals -- back to the 18th century. Hugh Spitzer, Power to the people! It's in the constitution, Crosscut, April 17, 2008.
He critiques Justice Sanders's concurrence in Washington Farm Bureau Federation v. State of Washington, 162 Wn.2d 284 (2007) (the case about whether the legislature could change the spending limits defined by Initiative 601). Legalwa.org links: majority (Fairhurst, J.), concurrence (Chambers, J.), concurrence (Alexander, C.J.), concurrence (J.M. Johnson, J.), concurrence (Sanders, J.).
(Hugh Spitzer is an affiliate professor at the UW as well as a partner at Foster Pepper.)
Wednesday, April 16, 2008
I just read about a new book coauthored by an asylum applicant and the law professor whose clinic unsuccessfully represented him through his original application and appeals.
The book is David Ngaruri Kenney and Philip G. Schrag, Asylum Denied: A Refugee's Struggle for Safety in America.
The publisher's information about the book is here. A blog post by Philip Schrag is here. You can watch a webcast of a panel discussion (including both authors) at Georgetown this month here. The law library doesn't have it -- yet. I'm asking for it.
Washington State's pattern jury instructions are published by Thomson West as part of Washington Practice. For years they have been available on Westlaw, but until this week there has never been a free source for them. And now there is!
Washington Pattern Jury Instructions -- both civil and criminal -- are now on the Web for free. "This website is maintained by Thomson West under contract with the Washington Supreme Court Committee on Jury Instructions."
The committee says "This free public access is being provided as part of a one-year pilot project between the WPI Committee and Thomson/West Publishing. We hope to be able to continue the free access beyond the one-year period."
This is great news!
Right now, links to the RCW take you to a Westlaw sign-on screen. I'd like to see links go to a free site -- either the legislature's or legalwa.org's .
(Students note: even if you don't need to draft jury instructions, the pattern instructions offer a nice summary of the law.)
Monday, April 14, 2008
The Washington State Office of Public Defense released on Friday 2007 Status Report on Public Defense in Washington State.
While state and local governments achieved significant improvements in public defense programs in 2007, there remain troubling barriers to ensuring the constitutional and statutory guarantees of counsel. In particular, excessively high caseloads, low compensation for contracted attorneys, and inadequate oversight in the administration and delivery of trial level public defense services require ongoing and focused attention, as well as enhanced state funding. These challenges cut across all types of public defense in all areas of the state, but perhaps are most acute for public defense services for children and teenagers facing criminal charges in juvenile courts.Read the Washington Courts press release here.
Sunday, April 13, 2008
In a concurring opinion in a case about the right of criminal defendants to represent themselves on appeal, [Justice] Breyer noted the lack of data on the subject of pro se defendants.Professor Answers Justice Breyer's Wish for Study on Pro Se, Fulton County Daily Report, April 7, 2008, law.com.
The court had declared 25 years before, in Faretta v. California, 422 U.S. 806 (1975), that defendants had a right to represent themselves at trial. But Breyer noted in his concurrence in Martinez v. Court of Appeals, 528 U.S. 152 (2000), that some judges "closer to the firing line" had expressed some dismay about the practical consequences of allowing defendants to act as their own lawyers.
But Breyer added that the court wasn't in a position to reconsider its opinion -- yet. "I have found no empirical research ... that might help determine whether, in general, the right to represent oneself furthers, or inhibits, the Constitution's basic guarantee of fairness."
Now the Court is considering the issue again and has the benefit of Erica J. Hashimoto, Defending the Right to Self Representation: An Empirical Look at the Pro Se Felony Defendant, 85 N. Car. L. Rev. 423 (2007), available at http://ssrn.com/abstract=901610. In the samples she studied, defendants who represented themselves were acquitted about as often as those represented by attorneys. (See my earlier post.)
This Term's case is Indiana v. Edwards, No. 07-208, argued March 26. The question presented is
May a criminal defendant who, despite being legally competent, is schizophrenic, delusional, and mentally decompensatory int he course of a simple conversation, be denied the right to represent himself at trial when the trial court reasonably concludes that permitting self-representation would deny the defendant a fair trial?
Friday, April 11, 2008
Seattle Times writer Scott Barry writes about his first jury duty:
"I love working with juries," said King County Superior Court Judge Catherine Shaffer. She was presiding over the case for which I was a potential juror and talked about the process a few days after I'd been eliminated from consideration.Scott Barry, Jury summons a chance at civic duty, Seattle Times, April 9, 2008.
* * *
What determines who winds up on a jury and who doesn't?
"It depends on the case. It depends on the prosecutor and the defense," Shaffer said, including their gut reaction to a juror.
"If you sense a juror doesn't like you, doesn't trust you, if you're not establishing a rapport with a juror — that's a lot of what's going on with jury selection."
So why wasn't I picked?
"I don't know," she said. "It could be any one of a number of reasons. But if you [meaning the populace in general] weren't here and weren't a part of this, it wouldn't work."
I'm looking forward to the next time I'm summoned — even if it takes another 40 years.
There's a nice warm, fuzzy feeling that comes with being part of this process. Participatory democracy is a pretty cool thing.
Judge Shaffer is a UW Trial Ad instructor.
I came across an interesting piece by a researcher who set out to study some high-profile cases from the 1980s and discovered that transcripts -- even in high-profile cases -- are not always easy to find. Ross E. Cheit, The Elusive Record: On Researching High-Profile 1980s Sexual Abuse Cases, 28 Just. Sys. J. 79 (2007), available on HeinOnline (UW restricted).
Washington is one of the states whose records retention policy provides for keeping all felony transcripts, but even such a policy does not guarantee ready access. In the cases the author researched, some were sealed, some were missing volumes or boxes, some were available only at great cost, and some had been destroyed despite their state's retention policy. In many cases, a transcript isn't prepared in the first place (e.g., if the defendant is acquitted or, if convicted, chooses not to appeal).
Thursday, April 10, 2008
Interested in following employment law issues? Check out these blogs:
- Employment Advisory ("employment law observations for employers and employees in Washington State" by Rod Stephens, a solo practitioner in Sumner)
- Employment Law Blog ("a general discussion of the laws affecting the workplace from both the perspective of the small business owner and that of the individual employee," by D. Jill Pugh, a solo practitioner in Seattle) (Jill has been taking a break from blogging but says she'll be writing again soon. In the meantime, you can browse the archives.)
- Washington Labor, Employment & Employee Benefits Blog ("current events in labor, employment, and employee benefits law in Seattle, Washington, and across the United States," by Donald W. Heyrich, a solo practitioner in Seattle)
The forthcoming (April 14) issue of National Law Journal has an article about out-of-town firms coming to Seattle. Seattle's boom attracts law firms: "A thriving tech sector and a wave of construction in Seattle have lured about a half-dozen law firms to the Emerald City, most of them within the past few months."
(Unfortunately if you're curious about the full article, the link requires a password. UW readers, you can ask a reference librarian to pull it up. Our print copy will get here in a week or two. Westlaw will probably have the April 14 issue loaded sooner.)
The firms with new Seattle offices mentioned in the article are:
Wednesday, April 9, 2008
Obituaries | Justice Keith Callow, 82, worked for State Department, Seattle Times, April 8, 2008.
Justice Callow (UW School of Law, '52) served on the King County Superior Court 1969-72, the Washington Court of Appeals 1972-84, and the Washington Supreme Court 1985-91. He was defeated by Justice Charles W. Johnson in the November 1990 election.
After his career on the bench, Justice Callow advised former Soviet republics reforming their legal systems. See Callow's Job Is Exporting U.S. Law to Ex-Soviets, Seattle Times, March 31, 1997; Jean Godden, State Judge Puts Mark On Estonia, Seattle Times, June 25, 1993; Seattleite Helps Disconnect Estonia's `Telephone Justice', Seattle Times, April 11, 1993.
Justice Callow's family asks that memorial gifts in his honor be given to the UW Law School Scholarship Fund.
Monday, April 7, 2008
Natalie Singer reports on jury selection in the Naveed Haq trial, including the defense's use of a jury consultant: Jury selection especially tricky in Jewish Federation shootings trial, Seattle Times, April 6, 2008.
"You can lose a case in jury selection," said Lisa Marchese, a former King County prosecutor. "One mistake, one wrong choice, and it can affect the entire outcome."(Lisa Marchese is a UW Trial Ad instructor as well as a partner at Dorsey and Whitney.)
I'd missed this story about Miranda issues in the case: Natalie Singer, Police ignored Haq's 6 requests for lawyer, Seattle Times, April 1, 2008.
A King County prosecutor acknowledged Monday that much of a taped statement by accused Jewish Federation assailant Naveed Haq is inadmissible at his murder trial because Seattle police detectives repeatedly ignored Haq's requests to talk to a lawyer after the July 28, 2006, rampage.
Sunday, April 6, 2008
Tort laws out of whack, costing the Evergreen State, says AG McKenna, LegalNewsLine, March 20, 2008. McKenna would like to see changes in joint and several liability, so that a party that has only minor responsibility could not be made to pay full damages. He'd also like to see limits on awards against the state.
Friday, April 4, 2008
Tracy Johnson has a long article describing jury selection in the case against Naveed Haq for the Jewish Federation shootings: 'This guy must pay,' potential juror wrote, Seattle P-I, April 2, 2008:
One man thought that whoever opened fire at the Jewish Federation offices was "an anti-Semitic, Islamic coward" and was fuming because the chaotic episode stranded him in downtown Seattle for hours.Judge Paris Kallas has ruled that the burden will be on the defense to prove Mr. Haq's insanity at the time of the shootings.
Another believed that the insanity defense was just something "put up by defense lawyers to get their client off the hook."
Both men were kindly thanked for their time Wednesday -- and then sent on their way -- as attorneys began questioning potential jurors for the trial of Naveed Haq, a 32-year-old Tri-Cities man who is charged in the deadly July 2006 shooting.
Thursday, April 3, 2008
Trial Stories, edited by Michael E. Tigar and Angela J. Davis, uses the stories nine trials to illustrate and reflect on trial advocacy. The authors are ten law professors who offer different perspectives on a wide range of cases illustrating different aspects of trial advocacy. The writing is non-technical and lively.
History buffs will enjoy several of the essays, including Robert A. Ferguson's on the trial of Aaron Burr. Carol S. Steiker's chapter on Clarence Darrow’s famous advocacy on behalf of Leopold and Loeb brings it up to date by exploring themes in current capital punishment debates. Barbara Bergman recounts Darrow's stirring (and successful) defense of Dr. Ossian Sweet and his ten codefendants, blacks prosecuted in 1925 after one of them fired shots into an angry white crowd that surrounded their house. Paul Bergman and Marianne Wesson tell the story of an alleged insurance fraud in Kansas in 1879, imaginatively having counsel explain their trial strategies to us.
Michael Tigar, who was appointed to represent Terry Nichols -- Timothy McVeigh’s alleged coconspirator in the Oklahoma City bombing -- writes about that case, as well as contrasting two recent cases concerning the painkiller Vioxx. Other recent trial stories are those of the O.J. Simpson murder trial (told by Angela Davis) and the Pennzoil v. Texaco case (told by Robert Lloyd). (My favorite line in the Pennzoil chapter came 32 pages into it: "the facts of the case were, as the reader is undoubtedly painfully aware, complex. For the jurors, already numbed by seven days of voir dire and opening statements, the story was hard to follow.")
The first essay in the book has local interest. It concerns the defense of a Pierce County woman who killed her husband in 1980 and asserted self defense based on his abuse of her. The case went to the Washington Supreme Court, which held that testimony on battered woman syndrome was admissible and that the trial court should have given an instruction that she had no duty to retreat in her own home. State v. Allery, 101 Wash. 2d 591, 682 P.2d 312 (1984). The author, Ellen Yaroshefsky, was Allery’s attorney and is now a professor at Cardozo.
Trial Stories is available in the law library: KF226.T76 2008 at Reference Area.