Wednesday, November 30, 2011

Ore. governor bans death penalty for rest of term

Ore. governor bans death penalty for rest of term, Seattle Times (via AP), Nov. 22, 2011.

Cameras in the Supreme Court

C-SPAN has asked to broadcast the arguments in the case testing the constitutionality of the Affordable Care Act. Adam Liptak, a leading legal reporter, writes: Supreme Court TV? Nice Idea, but Still Not Likely (N.Y. Times, Nov. 28, 2011).

Liptak suggests that the Justices are leary of being reduced to sound bites, but he notes that "newspaper reporters use the text equivalent of sound bites all the time. We call them quotations."

TVW has broadcast (on cable, on DVD, and online) Washington Supreme Court oral arguments for many years with no apparent ill effects. You can watch arguments 1997-present here.

Graphic: screen capture from oral argument on TVW, dressed up a little in Paint, by mw.

Friday, November 25, 2011

Second Trial in Civil Sex Abuse Case Because of Juror Misconduct

A Shoreline pediatrician will have a second trial in a civil case brought by young men who allege he engaged in improper sexual conduct with them when they were minors. The doctor admits to much of the conduct but says it was a legitimate part of his mentoring the boys.

Originally there were thee cases filed by four young men and their families. The cases were consolidated. The jury ordered the doctor to pay damages to three young men and their families, but the sum was much lower than the plaintiffs had sought. Now two of the plaintiffs have withdrawn from the suit.

The retrial follows juror misconduct in the first trial:

  • a juror failed to disclose that she and her husband had been sued for medical malpractice;
  • a juror told other jurors about her experience of sexual abuse but had not disclosed it during voir dire;
  • jurors shared newspaper stories and watched television news about the case.
Noted Pediatrician Accused of Preying on Patients Faces Jury ‐ Again, Seattle PI, Nov. 22, 2011.

The Court of Appeals opinion upholding the trial court's declaration of a mistrial is Kuhn v. Schnall, 155 Wn. App. 560 (2010) link.

Wednesday, November 23, 2011

Poster Reminds Jurors to Focus on Courtroom

In an effort to keep jurors from going online to discuss cases or look up information outside the trial, the Washington State Courts are introducing a new poster with a picture of a smart phone and the headline "Focus on the Courtroom."

Focus on the Courtroom poster

The Courts' press release (Nov. 22, 2011) is here

New Trial Ad Texts from Seattle U Faculty

Marilyn J. Berger, John B. Mitchell, and Ronald H. Clark, our neighbors at Seattle University's Trial Ad Program have been hard at work, creating multimedia teaching materials for their students – and for students and lawyers around the country who want to develop their skills.

cover of Trial Advocacy text
Trial Advocacy: Planning, Analysis, and Strategy (3d ed. 2011) is the basic text that covers all aspects of the trial, from developing a case theory all the way through closing arguments.  It comes with a DVD showing a simulated trial that is discussed throughout the book ("the Freck Point Trial") and a "scene of the crime" video that walks the viewer through a tavern where a crime that's the subject of another mock trial took place.

A companion book, Trial Advocacy: Assignments and Case Files, has (you won't be surprised) assignments and case files.

(My post about the second edition (2009) is here.)

The publisher's page lists the 13 chapters. The catalog record is here.

The publisher's website also has a page of bonus features, such a booklet on voir dire by Karen Koehler (who also teaches in the UW's Trial Ad program), a sample juror questionnaire, and transcripts from the trial in which the City of Seattle tried to keep the Sonics in town.

cover of Evidence text

Evidence: Skills, Strategies, and Assignments for Pretrial and Trial (2012) focuses on the nitty-gritty of handling evidence – objecting to it if you don't want it in, or introducing it and meeting objections if you do. 

Evidence is designed for use in different contexts: as a supplement in a Trial Ad course, as a supplement for an Evidence class, as a text for a stand-alone class, or as a text for a lawyer who wants to improve his or her skills. (I could imagine it being used by college mock trial teams, too.)

Like Trial Advocacy, it includes a DVD with the Freck Point trial. It also has a CD with case files to go with exercises. The publisher's page is here. The catalog record is here. So far, only one document is listed on the Bonus Materials page: a motion in limine in the Seattle Sonics case.

When I went to law school 30 years ago, I think it was typical for Evidence to be taught about the same way as other classes – in a large lecture hall, with a professor at the front and 100 students flipping through casebooks and statutory/rules supplements as they sat at long tables. I'm pretty sure we were never asked to rise and object to or defend proffered testimony. At the end of the semester, we scrawled exam answers in bluebooks, just as we did for all our classes.

This was good preparation for my first post-law-school job, clerking for an appellate judge. But actually handling evidence in a trial? No way.

I think that Evidence pedagogy has advanced considerably. For instance, the text by Peter Nicolas (a UW professor), Evidence: A Problem-Based and Comparative Approach, includes over 100 problems. Publisher's page. Catalog record. Still, though, the problems are meant for class discussion, not for trial simulations.

Berger, Mitchell, and Clark's book devotes all of Chapter 5 to exercises, and they aren't the sort that can be done from the back row of a lecture hall. There are roles for witnesses, prosecutors (or plaintiff's counsel), and defense counsel. (The instructor gets a CD with instructions for the actors who play witnesses.) Students are asked to address evidentiary issues either in motions in limine or as objections during trial.

Evidence goes into more detail about evidence than does Trial Advocacy – but the difference isn't night and day. Chapter 4 in Evidence, "Exhibits: Introducing and Displaying Them," tracks Chapter 7 in Trial Advocacy, "Introducing Exhibits," very closely. In fact, I was surprised when I compared the two chapters that the Trial Advocacy chapter went on longer, discussing evidence issues not in the Evidence chapter. Further examination found that the content was just elsewhere in the book.

So that classes can use Evidence without having to research rules and caselaw, the authors insert a text within a text. Morgan's Evidence Handbook is an 83-page chapter (itself divided into chapters) summarizing the law of evidence in the fictional state of Major. (Major's evidence rules, like Washington's and many other states', are modelled on the Federal Rules of Evidence.) 

I'm ambivalent about this. I like the idea of giving the students enough law so they can focus on the skills of submitting evidence, objecting, and so on. But as a librarian, I would like more classes to encourage students to look things up. Research is a skill they'll need too, even as trial lawyers. Of course, an instructor could choose to have the students do their exercises in a real jurisdiction or a hybrid of Major and a real jurisdiction. Students could be told to use Morgan's Evidence Handbook and to deepen their knowledge of evidence with works from their own state, such as The Law of Evidence in Washington by Robert H. Aronson and the Washington Practice volumes Evidence Law and Practice and Courtroom Handbook on Washington Evidence and by Karl B. Tegland.

Both books are very accessible. The font is a little larger than is typical in lawbooks. Checklists, pointers, and practice notes abound, indicated with consistent icons (e.g., a painter at an easel for illustrations, a bewigged judge or barrister pointing at the text for pointers).

Chapters are introduced with quotations drawn from a wide range of sources, from Shakespeare's Julius Caesar to the recent classic, My Cousin Vinny.

The books are practical, giving them impression that the authors are sharing wisdom they have accumulated through years of experience. There are some citations to the Federal Rules of Evidence and cases, but these books are guides, not treatises. You won't find footnotes, bibliographies, tables of authorities, or recommendations for further reading.

This is part of what makes the books accessible: they can be read easily, without wading through dense citations. I'm curious, though, so when I read "Studies show that we retain less than 15 percent of what we hear, but we remember over 80 percent of what we see and hear" (Evidence at 118; Trial Advocacy at 26), I wonder: what studies? where?

I think the publisher probably could have done a better job with the photographs: they should be sharper.

The Freck Point case is set up to be either a criminal case (murder) or a civil case (wrongful death). Within one class, students could be working on criminal or civil examples, using the same fact pattern, exhibits, and witnesses. The case is adapted from a story that was sensational enough to merit a true crime reporting by Ann Rule (see A Rose for Her Grave and Other True Cases) – a choice that must be intended to hold students' interest for a semester.

Thanks to Ron Clark's giving me review copies, these two books will soon be available in the library.

And for current commentary on trial advocacy issues, see Ron Clark's blogs, Pretrial, Trial, Appellate & Evidence Blog and Cross-Examination Blog.

Friday, November 18, 2011

Skype in Drug Court

Judge Thomas Larkin (Pierce County) has started using Skype in drug court. Some drug offenders make their appearances from in-patient clinics using the online tool. Judge gets money saving idea from grandkids,, Nov. 17, 2011.

Tuesday, November 1, 2011

Federal Sentencing News

There's a big new study of federal sentencing AND the federal government has begun reviewing the sentences of people serving time for crack cocaine offenses.


Yesterday the United States Sentencing Commission submitted to Congress a huge (645 pages!) assessing the impact of statutory minimum mandatory sentences. Here are a few excerpts from the press release:

"While there is a spectrum of views on the Commission regarding mandatory minimum penalties, the Commission unanimously believes that certain mandatory minimum penalties apply too broadly, are excessively severe, and are applied inconsistently across the country. The Commission continues to believe that a strong and effective guideline system best serves the purposes of sentencing established by the Sentencing Reform Act of 1984.”
. . .
The Commission also addresses the overcrowding in the federal Bureau of Prisons, which is over-capacity by 37 percent.
. . .
The report was undertaken pursuant to a directive from Congress to examine mandatory minimum penalties, particularly in light of the Supreme Court’s 2005 decision in Booker v. United States, which rendered the federal sentencing guidelines advisory.
. . .
  • More than 75 percent of those offenders convicted of an offense carrying a mandatory minimum penalty were convicted of a drug trafficking offense.
  • Hispanic offenders accounted for the largest group (38.3%) of offenders convicted of an offense carrying a mandatory minimum penalty, followed by Black offenders (31.5%), White offenders (27.4%), and Other Race offenders (2.7%).
  • Almost half (46.7%) of all offenders convicted of an offense carrying a mandatory minimum penalty were relieved from the application of such penalty at sentencing for assisting the government, qualifying for "safety valve" relief, or both.
  • Black offenders received relief from a mandatory minimum penalty least often (in 34.9% of their cases), compared to White (46.5%), Hispanic (55.7%) and Other Race (58.9%) offenders. In particular, Black offenders qualified for relief under the safety valve at the lowest rate of any other racial group (11.1%), compared to White (26.7%), Hispanic (42.8%) and Other Race (36.6%), either because of their criminal history or the involvement of a dangerous weapon in connection with the offense.
  • Receiving relief from a mandatory minimum penalty made a significant difference in the sentence ultimately imposed. . . .
The report is here. The executive summary is here.

Crack Sentences

Crack Cocaine Case Review May Free Inmates, All Things Considered, NPR, Nov. 1, 2011.

Across the country on Tuesday, federal judges began reviewing the prison sentences of thousands of men and women jailed on crack cocaine charges. Many inmates could be released or see their sentences sharply reduced.

Congress voted last year to ease federal sentencing guidelines for crack cocaine. But a decision this summer to revisit old drug cases has sparked new controversy.