Friday, February 18, 2011

Race and the Criminal Justice System

People of color are over-represented at every stage of the criminal justice system, from arrest through sentencing and incarceration.

Paula Ditton Henzel, Disproportionality and Disparity in Adult Felony Sentencing 2003 (Wash. State Sentencing Guidelines Comm'n, [2003]).

What are the causes, effects, and possible cures for this serious disproportionality?

A state-wide Task Force on Race and the Criminal Justice System has been meeting for the last few months and will meet with the Washington Supreme Court March 2.

The Law Library has prepared a guide, linking to Washington State studies and other materials. See Race in the Criminal Justice System.

Next Thursday, the UW Minority Law Students Association presents a panel, Racial Disparity & The Criminal Justice System, 3:30-5:

Seattle University School of Law is also having speakers on this and related topics as part of its Diversity Week 2011. Thursday afternoon has a CLE, Advocacy Strategies for Protecting Civil Rights (3:30-5:30), followed by a reception (5:30-7:30):
The reception following the CLE will provide a forum to discuss how lawyers, law students and community members can address racial bias in the criminal justice system. The discussion will be facilitated by the Co-Chairs of the Task Force on Race and the Criminal Justice System, Professor Robert Chang, director of the Fred T. Korematsu Center for Law and Equality, and Judge Steven González, chair of the WA Access to Justice Board.
If you're inspired by the UW panel, you can hop up Capitol Hill for the reception at SU.

Tuesday, February 15, 2011

"Hot Coffee" Documentary Challenges "Tort Reform"

Oregon Attorney's Documentary 'Hot Coffee' Makes the Sundance Cut, ABA Journal, Feb. 1, 2011. Susan Saladoff explains her project here:

The movie's website includes links to resources. And this page gives links to Democracy Now! segments with film clips and interviews. One person interviewed is former Mississippi Justice Oliver Diaz whose election was opposed by the U.S. Chamber of Commerce. After he won, the local U.S. Attorney prosecuted him for campaign finance violations (he was acquitted) and then for tax violations (he was acquitted again).

The film got good press at Sundance. I'm looking forward to when the website includes a list of cities where it's playing -- and Seattle is one of them.

Sunday, February 13, 2011

Documentary on Media, Race, Crime, and Punishment

Juror Number Six (2008) -- a short documentary on the Web -- explores the media, race, and the criminal justice system. Dozens of clips from television news, drama, and reality programs vividly illustrate how media shapes our perceptions (and jurors' perceptions) of crime and criminals. Crime has been going down, and yet crime is portrayed much, much more. Fear sells.

While the news scares viewers, dramas might actually comfort us. On "Law and Order," for instance (and I've happily watched hundreds of hours of it!), we see far more African American judges, prosecutors, and defense attorneys than are present in most communities. Defendants all seem to have counsel right away, and generally very sharp counsel. And so, the film suggests, we are led to believe that the system is much fairer than it actually is.

The documentary's producer lists impressive partners:

More on The New Jim Crow

Real Change has a long interview with Michelle Alexander, the author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness (see earlier post). Rosette Royale, One Nation, Under Lock and Key, Real Change, Feb. 9-15, 2011.

Friday, February 11, 2011

Angry Jurors Hope to Give Acquitted Teen Their Jury Pay

The Cleveland Plain Dealer reports that the county prosecutor has brought cases against hundreds of people with very little evidence. In less than a year, judges acquitted 364 defendants mid-trial. In one recent case, the jury not only acquitted, but some of the jurors wanted to give their jury pay to the defendant if he got his GED. Angry Jurors Hope to Give Acquitted Teen Their Jury Pay - News - ABA Journal, Feb. 10, 2011.

Thanks: Maureen Howard.

Sunday, February 6, 2011

Judges Surveyed About Lawyers

How well do lawyers represent their clients? It's a hard question to answer. One approach would be to ask the judges who observe the lawyers at work, and that's just what Judge Richard A. Posner and Professor Albert H. Yoon have done: What Judges Think of the Quality of Legal Representation, 63 Stan. L. Rev. 317 (2010).

Here's the short version of their findings, from the abstract:

We find that judges perceive significant disparities in the quality of legal representation, both within and across areas of the law. In many instances, the underlying causes of these disparities can be traced to the resources of the litigants. The judges’ responses also suggest that they respond differently than juries to these disparities, and that the effect of these disparities on juries may be more pronounced in civil than in criminal cases.
But don't stop with the abstract! The more detailed findings are very interesting.

Judges' backgrounds.
I was surprised to see the number of judges with experience in criminal defense, since I heard or read somewhere that prosecutors more often became judges. But the patterns vary between trial and appellate courts and between federal and state courts.
expfed appfed trialstate appstate trial
crim defense19%36%29%40%
p. 323.

Disparities in civil cases.
The civil areas where federal trial judges saw the greatest disparity were civil rights and personal injury/malpractice. When there was a disparity, the defendant had better representation. State judges saw the greatest disparities in family law and personal injury/malpractice. Again, when there was a disparity in the tort cases, it was generally the defense that had the advantage.

Judges said that intellectual property and commercial litigation cases seldom had a great disparity between the sides' lawyers. These lawyers were rated between "good" and "excellent" -- i.e., at the top of the scale.

What about criminal cases?
Federal judges exhibited a clear divide, ranking public defenders highest, followed closely by prosecutors. Both federal appellate and district judges deemed court-appointed and privately retained counsel markedly (and statistically significantly) worse, although they disagreed which group was the worst. In contrast, state judges perceived greater parity among criminal lawyers, with both appellate and trial judges giving their highest ratings to retained counsel. Appellate judges generally gave similarly high scores to prosecutors and public defenders, whereas trial judges thought privately retained counsel distinctly better than other criminal lawyers.
pp. 325-26 (footnotes omitted). Judges across all categories said that they observed significant disparities in quality between prosecution and defense 21-40% of the time.

When there is a disparity in representation, many judges conduct additional research. p. 335. (But they aren't happy about this burden -- see p. 346.) The judges thought that many jurors favor litigants with better lawyers, but they thought they themselves could rise above the disparate representation. p. 326. But in many situations, they thought that the representation did not make much difference to the outcomes of the cases. p. 327. The authors discuss this perception -- and related studies about the impact of counsel in criminal cases -- at pp. 341-43.

Change law school?
The survey asked judges what could be done to improve the quality of representation.
About law schools, judges were in general agreement. The most common response in each judge group was that law schools should provide more coursework oriented to instilling practice-oriented skills. The second most popular response was expansion of core curriculum—-that is, courses required of all students—-to ensure a stronger foundation for practice. More than two-thirds of the judges in each group proposed changes in law school curricula, while no more than 10% in any group recommended higher admissions standards. Recommendations to make tuition more affordable drew slightly higher but still modest support (ranging between 5% and 14%).
p. 338 (footnote omitted)

The judges would like to see better trial skills:
Judges expressed concern about the effectiveness of the bar at trial advocacy. One federal district judge remarked that lawyers are “smart, well-prepared and know the law and write great briefs—but if the case goes to trial, their trial skills are nowhere near what their pre-trial skills were.”
p. 346

The whole article is worth a look: there are lots of interesting nuggets, and the footnotes cite other intriguing studies about lawyers' effectiveness.

Saturday, February 5, 2011

Memoirs of Death Penalty Lawyering

Andrea Lyon and David Dow have a lot in common: they both are lawyers, they both represent indigent defendants in criminal cases, they both teach in law school clinics, and they both have written absorbing memoirs about their work. (To protect client confidentiality, both changed names and details of cases but say they are representing real events honestly.)

There are some differences, too. For instance, Dow (in Texas) never had a governor impose a moratorium on the death penalty, but Lyon did (in Illinois). And I assume Dow's ability to handle homicides was never questioned because of his gender.

Andrea Lyon Angel of Death Row is Lyon's memoir, taking the reader from her legal education at a school that emphasized clinical experiences to the Cook County public defender's office, where she eventually rose to the position of chief of the Homicide Task Force. After she left public defense, she founded the Illinois Capital Resource Center and later moved to teaching.

Lyon reports the investigations and trials of many cases. "Winning" a case does not always mean the defendant is acquitted -- it can mean that a defendant who is charged with first degree murder is convicted of manslaughter. And when a defendant is convicted of a capital offense, it is a defense victory if the penalty phase of the trial results in a sentence of life imprisonment. Remarkably, in 19 of the 19 capital cases Lyon has tried through the penalty phase, not one of the defendants was sentenced to death.

David Dow In Autobiography of an Execution, Dow weaves together several capital cases at once. Unlike Lyon, who was generally the trial attorney, Dow and his associates focused on post-conviction relief, and trial counsel had often put up lackluster defenses at best. For instance, two of his clients were represented by a lawyer who fell asleep during trial. Many of the clients' appellate lawyers failed to raise good potential claims. By the time the cases got to Dow, there were limits to what he could do. And so the book describes flurries of research, motions, petitions -- and several executions.

Both writers convey the toll the work can take on lawyers. The main reason Lyon left the defender's office was that she wanted to spend time with her daughter and not work on cases around the clock. Dow often numbed himself with alcohol, but also found comfort in his family life -- wife, son, and dog.

Angel of Death Row is in Good Reads at KF373.L963 A3 2010. (includes information about the book and much more). WorldCat record.

The Autobiography of an Execution is in the Classified Stacks at KF373.D635 A3 2010. Publisher's page. WorldCat record.

Tuesday, February 1, 2011

Diversity Science Research

The UW Alumni Association offers How Diversity Science Research Informs Law and Policy, Wed., Feb. 23, 2011, at 7 pm:

Despite societal efforts to promote equality and harmonious intergroup relationships, policies and practices employed in the service of these goals are not always successful. Drs. Kaiser and Tropp draw upon innovations from psychological science to offer empirical evidence and practical strategies for fostering positive outcomes in diverse settings, such as schools and workplaces.
Any applications to work with colleagues, witnesses, and jurors?

The event is free, but an RSVP is required.