Sunday, September 28, 2008

Evidence tape is blank, so woman’s case tossed

Olympia police made a video of people blocking streets to protest the use of the Port of Olympia to send vehicles and equipment to the Iraq war. Now they're prosecuting the protesters, but it turns out that their DVD is blank. Evidence tape is blank, so woman’s case tossed | | Tacoma, WA, Sept. 27, 2008:

Municipal Court Judge Scott Ahlf ruled Friday that her ability to defend herself at trial would have been “unfairly prejudiced” by the loss of a video recording of the Nov. 10 protests."
The ruling may affect dozens of others being prosecuted. Two of the protesters are suing the city for civil rights violations -- the video might have been handy for them, too.

Tuesday, September 23, 2008


I was tickled to see this on a bus this afternoon:

Convincing the Judge: Practical Advice for Litigators

New in the Library: Convincing the Judge: Practical Advice for Litigators, KF380 .K84 2008 at Classified Stacks. This book is from the ABA's General Practice, Solo and Small Firm Division. Here's the ABA's blurb: "Learn what judges like and do not like and how to deal with the judge throughout the entire litigation process. This book distills the advice of judges to practitioners appearing in their courtrooms and provides practical advice on case management, all phases of trial, and appeals. It also explains the judicial role and suggests tips for dealing with a difficult judge. Each chapter includes valuable practice tips and specific examples for enhancing your litigation skills.

Among the topics covered include:

* Cooperation between judge and counsel

* Getting to know the judge

* What trial judges ultimately want

* Sure-fire ways to alienate the trial judge

* How attorneys can help judges manage cases

* Tips for oral argument

* Achieving success in a settlement conference

* Refreshing your knowledge of basic hearsay objections

* The relationship between judge and jury

* Relating to the jury

* Suggestions for effective voir dire

* How not to make an opening statement

* Helping jurors with important exhibits

* Preparing an effective closing argument

* The art of drafting good jury instructions"

The Litigation Manual: Jury Trials

New in the Library: The Litigation Manual: Jury Trials, KF8972 .L58 2008 at Classified Stacks.

According to the publisher (the ABA Section of Litigation), this book

includes the most useful articles from Litigation journal, taking you through the steps of a jury trial. For those who do not try any jury cases the information will be enlightening. In reading them you will better understand the processes by which cases are tried, decisions made and justice arrived at in American courts. For lawyers who try only a few cases, you will gain from the years of courtroom experience of others. And for courtroom veterans, old trial skills will be re-enforced, bad habits questioned and per force, new lessons learned. Topics include:

* Perspectives on the Future of Jury Trials

* Should You Have a Jury Trial?

* Understanding Today's Jurors

* Finding the Jurors You Want

* Instructing the Jury

* Winning Over the Jury

* Telling the Jury a Story

* Trying the Jury Case: Court Room Techniques

* Opening Statements

* Witnesses

* Complex Cases

* Closing Argument

* After the Jury Trial

The book provides concrete, time-proven techniques and innovative ideas from many of the country's preeminent trial lawyers and judges. And it contains some of the best legal writing available -- clear, informal and never dull. Read it and you will learn how to deal more effectively with the situations you face in preparing for and conducting a jury trial.

Friday, September 19, 2008

Broader Admissibility of History of Sexual Offenses

This year the legislature enacted a law making an exception to ER 404(b). Now it is easier to bring in evidence of past sexual offenses.

Last month the law was used for the first time in the prosecution of a 79-year-old man for allegedly molesting a 7-year-old girl during a family vacation. The jury was able to hear testimony from other relatives about his abuse of them in incidents spanning 40 years. Rape trial lets family share decades of pain, secrets | Seattle Times Newspaper, Aug. 19, 2008; Jury finds California man guilty of molesting young relative | Seattle Times Newspaper, Aug. 21, 2008. The second story says "Defense attorneys . . . expect the new law soon to face challenges in higher state courts."

Here's ER 404(b):

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The new law is Laws of 2008, Chapter 90 (links to the bill reports are here), codified at RCW 10.58.090:
(1) In a criminal action in which the defendant is accused of a sex offense, evidence of the defendant's commission of another sex offense or sex offenses is admissible, notwithstanding Evidence Rule 404(b), if the evidence is not inadmissible pursuant to Evidence Rule 403.

* * *

(5) For purposes of this section, uncharged conduct is included in the definition of "sex offense."

(6) When evaluating whether evidence of the defendant's commission of another sexual offense or offenses should be excluded pursuant to Evidence Rule 403, the trial judge shall consider the following factors:

(a) The similarity of the prior acts to the acts charged;

(b) The closeness in time of the prior acts to the acts charged;

(c) The frequency of the prior acts;

(d) The presence or lack of intervening circumstances;

(e) The necessity of the evidence beyond the testimonies already offered at trial;

(f) Whether the prior act was a criminal conviction;

(g) Whether the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence; and

(h) Other facts and circumstances.
Thanks: Jill Mullins.

Thursday, September 18, 2008

American Exception Series in New York Times

The is running "American Exception," a series by Adam Liptak about "commonplace aspects of the American justice system that are almost unique in the world." Today's piece was about the declining influence of the Supreme Court: the courts of other nations used to look to Supreme Court precedents much more than they do now. U.S. Court Is Now Guiding Fewer Nations, N.Y. Times, Sept. 18, 2008.

Several reasons are suggested:

  • Many countries' constitutions and bills of rights were new in the second half of the twentieth century, so their courts used Supreme Court precedents. Now those countries have a larger body of precedents of their own.
  • Those countries are now citing each others' cases now, more, too.
  • The trend in many jurisdictions is toward expanding rights -- and our Supreme Court hasn't been going in that directions in the last 20 years as much as it did in the 1960s and 1970s. The Canadian Supreme Court and the European Court of Human Rights are now more influential.
  • Some foreign judges may be put off by the vocal Americans who say that American courts shouldn't cite foreign precedents.
Earlier articles in the series:

Supreme Court Poised to Enter Pre-Emption Debate -

Supreme Court Poised to Enter Pre-Emption Debate -, Sept. 18, 2008. The Court is reviewing a case from Vermont, in which a jury awarded damages against a drug company for failing to have a label warning against administering the drug through IV push. The company argues that the state law is pre-empted by a federal law requiring drug labels to be approved by the FDA.

The question on which the Supreme Court granted cert in Wyeth v. Levine, No. 06-1249 is:

Whether the prescription drug labeling judgments imposed on manufacturers by the Food and Drug Administration ("FDA") pursuant to FDA's comprehensive safety and efficacy authority under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., preempt state law product liability claims premised on the theory that different labeling judgments were necessary to make drugs reasonably safe for use.
The briefs are available here.

Wednesday, September 17, 2008

Distorting the Law

A few years ago, I wrote a short post about Distorting the Law: Politics, Media, and the Litigation Crisis, by William Haltom and Michael McCann (KF380 .H358 2004 at Good Reads). At that time, I just quoted the publisher's description. Now I've read the book and I'd like to say a little more.

The book provides an interesting analysis -- based on heaps of research -- of the national debate on tort reform and the so-called litigation crisis. Unfortunately for the general reader, it's written in a dense, academic style. I'm a pretty good reader, familiar with law (although not with academic political science), and I found the book pretty challenging. But, as I said, it's interesting. One help, if you want an overview, is the authors' website,, which includes a chapter-by-chapter summary. My own (selective) summary follows.

Chapter One, "The Social Production of Legal Knowledge," discusses how Americans come to "know" things about the civil legal system. It uses the example of one case, showing how the case became a "fable" told by tort reformers with little link to what actually happened. According to the fable, a jury awarded a woman $1 million because her psychic powers were damaged by a CAT scan. In fact, her claim was for headaches, pain, and inability to work stemming from a dye used to prepare for a CAT scan she never had. Although a jury did award her damages, the trial judge set aside the verdict and ordered a new trial and later the case was dismissed and the dismissal was affirmed on appeal. So the fable about runaway juries and windfall damages turns out to be about a plaintiff who didn't get a dime.

Chapter Two, "Pop Torts," goes further into the creation and wide dispersal of anecdotes depicting corporations as the victims of greedy trial lawyers and plaintiffs. The anecdotes build on themes of individual responsibility and distrust of lawyers.

Chapter Three, "In Retort: Narratives versus Numbers," explores the way that academics have responded to the claims of tort reformers -- and why the response hasn't had much impact in the debate. The public has come to believe that there's a litigation explosion, that it's too easy to sue, that juries like to stick it to corporations -- but "the impressive array of data that social scientists have marshaled to discredit the legal lore disseminated by tort reform polemicists" (p. 108) doesn't reach the public.

Our primary point ... is that the studies we have recounted here are, by standards of ordinary discourse, unfamiliar and difficult, and, by standards of opinion leaders, esoteric and tedious. Such sophisticated forms of knowledge simply do not translate into modern mass communication.

[This] is not intended as a critique of social scientific endeavors. ... [W]e realize that our own academic product suffers from many of the same professional liabilities that we identify in the work of others. But that is our point. ...

We do not intend to suggest ... that social scientists cannot contribute effectively to mass cultural knowledge. Sophisticated research can be used in service of mass influence, but to do so it must transcend narrow academic conventions. ... [S]cholars need to connect their powerful debunking efforts to more artful narratives that illustrate the complexities of tort law practice, highlight its implications in experiential terms, link tort law remedies to our nation's deepest values, and yet nurture the aspiration of rendering these legal processes ever more accessible, just, and democratic.
pp. 109-10.

The next chapter discusses the tactics ATLA (now American Association for Justice) has used in response to the tort reform movement -- focusing on lobbying and legal challenges, not public opinion.

Chapter Five examines the media's treatment of tort issues. Journalistic standards -- what makes a story newsworthy -- contribute to distorted views of the legal system. For example, a million-dollar verdict is more newsworthy than a $50,000 verdict or a dismissal, so it's no surprise that big verdicts get a lot of coverage and many people believe that huge verdicts are much more common than they are.

Chapter Six continues this theme using the specific example of the notorious McDonald's "hot coffee" case. I had never read as much detail about the case -- the facts, the claims, the evidence, and so on. Haltom and McCann analyzed coverage of the case in newspapers and found, for instance, that there was a lot more coverage of the initial verdict (with its startling and newsworthy $2.7 million in punitive damages) than there was of the judge's reduction of the punitive damages and the later settlement of the case. And there wasn't much coverage of why the jury awarded punitive damages: because McDonald's hadn't done anything about 700 previous complaints about scalds from coffee; the jury thought that the way to get the attention of the huge corporation was to award punitive damages -- the huge number was about the amount of profit McDonald's made from coffee in two days.

Chapter Seven looks at the coverage of tobacco litigation.

A couple of the authors' observations from their concluding chapter, "Law Through the Looking Glass of Mass Politics":
[N]ews coverage almost entirely overlooks the limits on the practical options available to injured citizens. It obscures the fact that most lawsuits for products liability, medical malpractice, and workplace injuries represent a last (not a first) resort for many citizens lacking sufficient personal resources to purchase adequate private insurance, absorb damages, cover health costs from injuries, survive unemployment, and the like. Indeed, the primary example of plaintiffs in this book -- retirees like Stella Liebeck whose low-wage job provided scant savings, a meager retirement fund, and inadequate health care coverage; widows and widowers of smokers or workers subjected to asbestos; women victimized by unsafe, unethically marketed contraceptives, high absorbency tampons linked to toxic shock syndrome, and products like silicone breast implants promising to enhance esteem or appeal; low-income citizens who cannot buy high-priced products, live in environmentally unsafe areas, and labor in unsafe workplaces -- are hardly atypical of those who turn to legal action for lack of alternatives in addressing injuries, diseases, and disabilities. It is worth noting in this regard that the impersonal, abstract stereotype of the "litigious plaintiff" masks the racial, gendered, and class features of those claimants, claims, and contexts that it commonly targets. Likewise, the stigma of excessive litigation indirectly undermines legal mobilization strategies by broader rights-based movements ... lacking clout in other political arenas. ...

It follows, finally, that the prevailing forms of media-supported knowledge about hyperlexis deflect attention from issues of collective responsibility and the failures of "democratic" government institutions to address adequately the issues of risk and harm in contemporary life.
pp. 288-89 (emphasis in original)

Bonus: Readers interested in this subject will find lots of good leads in the bibliography.

ATF Loses Weapons, Laptops

The Department of Justice's Office of the Inspector General today released the report of an audit: The Bureau of Alcohol, Tobacco, Firearms and Explosives' Controls Over Its Weapons, Laptop Computers, and Other Sensitive Property.

The audit covered almost five years (Oct. 2002 through Aug. 2007). During that time, 76 weapons and 418 laptops were lost, stolen, or missing. On the one hand, that might not be so bad, given that the agency has 4,845 employees, 22,476 weapons, and 7,505 laptops. On the other hand, if anyone should be able to keep track of weapons, wouldn't it be the Bureau of Alcohol, Tobacco, Firearms and Explosives? You kind of don't want the agents misplacing any guns. Or, for that matter, laptops that could have information about investigations. And when things do go missing, you'd like the agents to report them according to the department's internal policies -- which didn't always happen.

A table (p. 20) compares the ATF with the FBI and DEA:

Lost or MissingATF FBI
Weapons 41 66 22
Rate of loss per month per 1,000 agents 0.28 0.12 0.07
Laptops 368 116 206
Rate of loss per month per 1,000 agents 2.53 0.210.63

There's room for improvement.

Monday, September 15, 2008

Trailblazing Oregon Judge Fought ‘Shockingly Overt Sexism’--and Won

Former Justice Betty Roberts, the first woman on the Oregon Supreme Court (1982) has written her autobiography, With Grit and Grace. Here's a little piece about it: Trailblazing Oregon Judge Fought ‘Shockingly Overt Sexism’--and Won | ABA Journal - Law News Now, Sept. 15, 2008.

(The Library doesn't have it yet but probably will soon. It is available through Summit.)

Program keeps high-profile juvenile offenders under close watch

Program keeps high-profile juvenile offenders under close watch | Seattle Times Newspaper, Sept. 15, 2008:

King County Prosecutor Dan Satterberg said the High Impact Offender Unit targets juveniles with the greatest number of arrests to ensure their cases are handled aggressively in court. Satterberg said the program is modeled after the agency's highly successful crackdown on car thieves.

"It [the juvenile unit] was created so we could work more closely with the police to identify juveniles who were either engaged in a spree of criminal activity or were worthy of our attention," Satterberg said.

Sunday, September 14, 2008

Chicago's DV Court Facility

In the old courthouse, domestic violence complainants rode the same small elevators and hearings were held in small courtrooms -- fertile ground for further intimidation. So Cook County Chief Judge Timothy C. Evans proposed a new facility, which has been in operation since 2005. Not only does it separate victims and perpetrators, it "also houses women's advocacy groups, offices of the state's attorney, a pro bono legal services office for victims seeking orders of protection, and free child care for parents attending court proceedings." Daily Herald | Judge forms panel to review domestic violence court, Aug. 22, 2008.

Saturday, September 13, 2008

Good Work - NWIRP, Advocate Resource Center


The Northwest Immigrant Justice Project (NWIRP) held its annual Gala and Auction on Saturday evening. It's good to catch up with friends, colleagues, and former students and to hear about the work of this important organization.

Each year NWIRP serves more than 10,000 low-income immigrants and other community members through direct legal services, brief service, intakes and referrals, and community education. Last year, NWIRP staff and volunteers served more than 4,000 people detained at the Northwest Detention Center by giving "Know Your Rights" presentations and in-depth screenings.

Here are some immigration stats, drawn from the event program (crediting the 2000 census and the Pew Hispanic Center):

  • Washington was the fifth-largest refugee-resettlement state in the country in 2000
  • The foreign-born population of Washington increased by 29.2 percent between 2000 and 2006.
  • In 2006, Washington's foreign-born population was the 10th highest in the U.S.
  • In 2006, 12.4 percent of Washington's population was foreign born. (The numbers were 10.6% in 2000 and 6.5% in 1990.)
  • 32.5% of Washington's foreign-born residents moved here during the 1990s; 26.8% came in 2000 or later.
  • 19% of Washington's foreign born live in poverty in 2000.
  • About 200,000 to 250,000 undocumented people were living in Washington in 2005.
This year's awards:

Jana Heyd, of Society of Counsel Representing Accused Persons, received the Golden Door Award for her work on behalf of immigrant children.
In 2001, [Society of Counsel] helped start another innovative program to address the unmet legal needs of indigent non-U.S. citizen children who are victims of abandonment, abuse and/or neglect. Society of Counsel partnered with the Seattle University School of Law’s Access to Justice Institute, Team Child, and the Washington Defender Association to form the Immigrant Child Advocacy Project. The Project’s goal is to provide eligible children with the legal representation and advocacy necessary to obtain lawful immigration status. In May, 2002, after getting this program up and running, the original partner organizations stepped aside and the Northwest Immigrants Rights Project took over the program.
Quoted from Society of Counsel page. In her thank you remarks, Ms. Heyd introduced several of her young clients who were at the dinner -- one or two are still in high school and the rest are now in college. Cool.

Williams Kastner received the Amicus Award.
Williams Kastner has demonstrated its commitment to defending the rights of low-income immigrants in Washington State through a unique and effective approach to pro bono immigrants in Washington State through a unique and effective approach to pro bono assistance. In 2006, with the help of Dana Ferestein, Williams Kastner consolidated its pro bono efforts and chose to focus on asylum cases, enabling a deeper institutional knowledge of asylum law to be developed within the law firm. Thsi approach has greatly benefited individual clients and has also allowed the firm to take a steady flow of pro bono asylum cases over the course of the last two years. Over the last two years, Williams Kastner has successfully secured asylum for individuals from Gambia, Azerbaijan, and Haiti, and has several current matters pending for individuals from Eritrea.
Quoted from NWIRP program. The Microsoft law department also has a special pro bono project focusing on asylum cases. I wonder if other firms are also developing pro bono specialties -- death penalty, family law, landlord-tenant, ...?

Michele and Jack Storms were given special recognition for their support of NWIRP, through Jack's photography and graphic design (assisted by Michele) and Michele's work on the gala dinner committee.

Advocate Resource Center

The Advocate Resource Center supports "legal services and pro bono advocates representing low-income people in Washington state." Attorneys and others can register to have access. Even without registering, you can use:
  • The Pro Bono Resource Guide - a database for finding organizations and projects that need volunteers. You can search by county, subject area, and type of client. Clicking around on the site, I actually found two pro bono guides. The other one is in the Civil Law section of the site and seems to have more search options. In this one you can search by "Projects for" -- i.e., projects for law students, lawyers, mentors, paralegals, senior lawyers, or people wanting "nonlitigation projects." (There's no category for photographers and graphic designers but, as Jack and Michele Storms's work illustrates, public interest groups need people with all sorts of skills.)
  • The list of Washington Public Interest Jobs on the front page.

Volatile offender faces 1st of 3 trials

Volatile offender faces 1st of 3 trials | Seattle Times Newspaper, Sept. 12, 2008:

The first of three trials for a sexually violent felon accused of a crime spree of killing, rape and assault is set to begin next week though it's still unclear whether Curtis Thompson — a volatile defendant who has threatened to kill attorneys and the judge, and has scuffled with jail guards — will be in the courtroom and how much physical restraint he will require.

* * *

A motion filed by Senior Deputy Prosecuting Attorney Scott O'Toole lists more than a dozen instances during the past three years when Thompson exhibited "contemptuous, threatening and menacing" behavior at or on his way to and from court hearings. Thompson "has obstructed the orderly administration of justice," O'Toole wrote.
The defendant will begin his trial in a restraint chair. If he is disruptive and does not stop after a warning, he will be moved to a separate room to watch his trial by video.
If he still disrupts the courthouse from the private room, or threatens anyone, [King County Superior Court Judge Palmer] Robinson said he would consider a motion to suspend Thompson's access to the video — and his trial — entirely.
Scott O'Toole is a Trial Ad instructor at the University of Washington.

Angry judge forced to free man who killed wife in 2003

Angry judge forced to free man who killed wife in 2003 | Seattle Times Newspaper, Sept. 13, 2008.

A man who killed his wife five years ago in a psychotic rage must be set free, a judge ordered Friday, because prosecutors presented no proof he is a danger to the community.

* * *

While the state said it opposed his release, Senior Deputy Prosecuting Attorney Ethan Rogers did not present any evidence or witnesses as prosecutors had in past hearings where Gergen was ordered held.

"It is the burden of the prosecutor to provide substantial evidence that Mr. Gergen presents a substantial risk to the community. What evidence have you given me? ... You presented no proof," Hayden said.

"I'm not the one who makes the rules on psychiatric issues, it's the Legislature," [Pierce King County Superior Court Judge Michael Hayden said.
Rogers explained the failure to present evidence by saying that it is difficult to find independing forensic psychologists to testify.

When I read the judge's remark about the legislature making the rules, I naturally wondered what the statute provides. It's RCW 10.77.150:
(1) Persons examined pursuant to RCW 10.77.140 may make application to the secretary [of DSHS] for conditional release. The secretary shall, after considering the reports of experts or professional persons conducting the examination pursuant to RCW 10.77.140, forward to the court of the county which ordered the person's commitment the person's application for conditional release as well as the secretary's recommendations concerning the application and any proposed terms and conditions upon which the secretary reasonably believes the person can be conditionally released. Conditional release may also contemplate partial release for work, training, or educational purposes.

(2) The court of the county which ordered the person's commitment, upon receipt of an application for conditional release with the secretary's recommendation for conditional release, shall within thirty days schedule a hearing. The court may schedule a hearing on applications recommended for disapproval by the secretary. The prosecuting attorney shall represent the state at such hearings and shall have the right to have the patient examined by an expert or professional person of the prosecuting attorney's choice. * * * The issue to be determined at such a hearing is whether or not the person may be released conditionally without substantial danger to other persons, or substantial likelihood of committing criminal acts jeopardizing public safety or security. The court, after the hearing, shall rule on the secretary's recommendations, and if it disapproves of conditional release, may do so only on the basis of substantial evidence. * * *
(Thanks to Anonymous for correcting the county!)