Trial Ad (and other) Notes

Reflections on Jury Duty

2012-01-25T16:55:00.000-08:00

A News Tribune columnist talks about being called for jury duty. Kathleen Merryman, Jury duty a burden to some, a thrill and an honor to others, News Tribune, Jan. 25, 2012.

I was thrilled at the chance to be part of one of the fairest judicial systems on the planet. It has its flaws, and some of them run deep. But it demands that the accused see the faces of the peers who will decide the verdict. It requires that those peers be accountable to each other, and to themselves. It’s a mental stretch for participants, and discussions that stretch us beyond preconceptions are good for the health of democracy.We get to experience all that, even if we don’t serve on a jury.

Voir Dire Tool: iPad App or Post-It Notes?

2012-01-19T22:37:00.000-08:00

Law Technology News reviews iJury, another iPad app for managing voir dire (see earlier post). The review is fairly positive – but the author finds that the Post-It Notes on which a lawyer can scribble quick notes remain good competition. Ted Brooks, Will an iPad Replace Post-it for Voir Dire?, Law Technology News (law.com), Jan. 19, 2012.

Frustrations in Family Court

2012-01-19T22:18:00.000-08:00

This week's cover story in the Seattle Weekly is Ripped Apart: Divorced dads, domestic violence, and the systemic bias against men in King County family court (Jan. 18, 2012). Nina Shapiro reports on courts that are so busy that each side in a divorce often has just minutes to present evidence and arguments. (Very few cases go to trial, so the hearings before commissioners are critical.) She profiles three men whose divorces were complicated by allegations of domestic violence and painful custody disputes. Several attorneys quoted say that the system is biased against men.

It would be interesting to hear more voices related to this story – divorced and divorcing women, more men than the three profiled, commissioners, judges. Would the conclusions be any different?

Updates to Pattern Instructions

2012-01-17T13:53:00.000-08:00

Today the Washington Courts announced:

several criminal pattern jury instructions were recently updated. Changes have been made to WPIC 1.01, 4.61, and 4.69 in order to spell out in greater detail the prohibitions against jurors discussing the case with others, including with regard to their electronic communications. Changes also have been made to several concluding instructions, incorporating State v. Bashaw’s holding that unanimity is not required for jurors to answer “no” on a special verdict form; see WPIC 30.03, 50.60, 50.60.01, 160.00, and 300.51.

These updates have been incorporated into all formats, including the printed pocket parts, Westlaw, and the free public website.

You can sign up for email alerts about court rule changes and pattern instruction changes here.

State v. Bashaw, cited in the announcement, is here: 169 Wash.2d 133, 234 P.3d 195, Google Scholar (2010)

Hiding Tattoos?

2012-01-10T15:10:00.000-08:00

In pretrial motions, lawyers argued over whether the jury should be allowed to see Michael Coombes's tattoos – one on his face with A-F (for Aryan Family) and one on his hip with a gun and a syringe; the gun was the same brand and caliber as the murder weapon. Murder suspect hopes makeup will hide criminal history from jury, KXLY (Spokane), Dec. 12, 2011.

One issue was whether revealing the tattoos would also reveal the fact that the defendant was serving time in prison for the murder when he got them. He was getting a new trial because he had successfully argued that his guilty plea should be invalidated because of a misunderstanding of how time off for good behavior would be calculated. In re Coombes, 159 Wash.App. 1044, 2011 WL 240687 (Wash.App. Div. 3 2011) (unreported).The jury did learn of the hip tattoo (but I'm not sure if they saw it). Closing arguments heard in Coombes murder trial, KLXY, Dec. 16, 2011.

Coombes was convicted and received a sentence about 7 years longer than the sentence under the plea he had withdrawn. Jury convicts man of 2007 slaying, Spokesman-Review (Spokane), Dec. 19, 2011. By the way, the Spokesman-Review blog, Sirens & Gavels, has a number of posts tagged "neck tattoos": Coombes is not the only defendant who risks the jury forming an opinion of him based on his body art.

Inside an Interrogation of a Scared Teen

2012-01-02T18:38:00.001-08:00

After a trial court judge suppressed a teenager's confession in her trial for smothering her infant, David Boeri, a reporter for WBUR, a public radio station in Boston, petitioned to get the DVDs or the interrogation. It took several months, but the judge issued an order in September, and in December, WBUR aired a two-part report, "Anatomy of a Bad Confession." Today, NPR aired a lengthy story (though not as lengthy as what WBUR aired).Here are links:

David Boeri, How a Teen's Coerced Confession Set Her Free, All Things Considered, Jan 2, 2012
David Boeri, Anatomy of a Bad Confession, Part 1, WBUR, Dec. 7, 2011
Anatomy Of A Bad Confession, Part 2, WBUR, Dec. 8, 2011
video – excerpts from the interrogation, plus recent interview with the defendant, Nga Truong, and reflections by the reporter, David Boeri.
Commonwealth v. Truong, Feb. 25, 2011, the opinion suppressing the confession
Boeri's motion seeking the recordings
decision and order granting the motion

Hearing (or viewing) the questioning is much more vivid the reading a discussion of a coercive interrogation in an appellate opinion. This is very valuable reporting.

Hot Coffee -- Documentary about Tort Reform

2011-12-16T16:27:00.000-08:00

A new documentary explores the rhetoric and politics of "tort reform." Hot Coffee: Is Justice Being Served? begins with the the case that has been fodder for comedians and politicians, Liebeck v. McDonald's.

Seinfeld mocked it. Letterman ranked it in his top ten list. And more than fifteen years later, its infamy continues. Everyone knows the McDonald’s coffee case. It has been routinely cited as an example of how citizens have taken advantage of America’s legal system, but is that a fair rendition of the facts? Hot Coffee reveals what really happened to Stella Liebeck, the Albuquerque woman who spilled coffee on herself and sued McDonald’s, while exploring how and why the case garnered so much media attention, who funded the effort and to what end. After seeing this film, you will decide who really profited from spilling hot coffee.

The next segment of the film looks at how a tort-reform damage cap has affected one family with a seriously disabled son.

And the third segment features Oliver Diaz, a justice of the Mississippi Supreme Court who successfully campaigned against a candidate backed by the U.S. Chamber of Commerce, only to be indicted for accepting a bribe and then for tax fraud. Despite his acquittals, the charges kept him off the bench for years and probably cost him his next election.

The filmmaker, Susan Saladoff, is a lawyer who took on this project – her first film – during a sabbatical from her practice. She definitely has a point of view, and in the film and on the website encourages people to take action opposing tort reform. Whether or not you ultimately share her position, the film offers important information, with clips from advocates on both sides of the debate. Check it out: KF1250.H68 2011 at Classified Stacks.

Brain Science and the Law

2011-12-13T22:35:00.000-08:00

Royal Society report

A panel of experts from the Royal Society has issued a report on Neuroscience and the Law (Dec. 13, 2011):

Neuroscientists seek to determine how brain function affects behaviour, and the law is concerned with regulating behaviour. It is therefore likely that developments in neuroscience will increasingly be brought to bear on the law. This report sets out some of the areas where neuroscience might be of relevance, along with some of the limits to its application. Specific issues discussed include risk assessment in probation and parole decisions; detecting deception; assessing memory; understanding pain; and Non-Accidental Head Injury NAHI).

The experts conclude that the science is potentially relevant to the law, but that it's too early to apply neuroscience directly in legal proceedings. They encourage further dialogue between neuroscientists and people in law. See Maria Cheng, UK experts: Too soon to use brain science in court, Olympian (via AP), Dec. 12, 2011.

The 46-page report is available for free download in PDF, Kindle, or E-Reader format.

This is part of a series of reports the Royal Society is putting out on neuroscience and society. The others are: Neuroscience, Society and Policy (Jan. 2011), Neuroscience: Implications for Education and Lifelong Learning (Feb. 2011), and Neuroscience, Conflict and Security(forthcoming).

Last March, the Royal Society and the National Academies co-hosted a two-day forum on neuroscience and the law in Irvine, CA. You can watch videos of most of the panels here.

Intrigued by this area of cross-disciplinary study? You can see posts on a variety of issues in The Law and Neuroscience Blog and the Neuroethics & Law Blog.

News Tribune Investigates Kitsap-Pierce Drug Task Force

2011-12-04T09:47:00.001-08:00

Today's News Tribune has an investigative report on WestNET, the West Sound Narcotics Enforcement Team, a federally funded drug task force based in Kitsap County, with tendrils reaching into Pierce County.A Dirty Little War, News Tribune, Dec. 4, 2011.

While the task force's mission is to go after drug-trafficking organizations, much of its effort was spent on low-level cases. Critics say that the officers often had a "cowboy" mentality, breaking down doors and bursting into homes wearing paramilitary gear.

The newspaper's review of court records indicates that the task force often inflated its success rate.

At least two people allege that one officer (Roy Alloway, who has since pleaded guilty to federal firearms and tax offenses) pressured them to give evidence that was false, or said that they made statements they did not.

In A story like WestNET's takes considerable work, News Tribune, Dec. 4, 2011, the journalists describe the public records they used, from courts (federal and state) and law enforcement agencies.The Tahoma Narcotics Enforcement Team (TNET), based in Pierce County, presents a different picture. All of its cases went to federal court, while most of WestNET's cases went to federal court. TNET has a much higher success rate (although the journalists did not have a record of cases the prosecutors declined. How WestNET compares with Pierce County task force, News Tribune, Dec. 4, 2011.

If you'd like to read about a drug task force gone horribly wrong, I recommend Nate Blakeslee, Tulia: Race, Cocaine, and Corruption in a Small Texas Town, HV8079.N3 B55 2005 at Good Reads. While focusing on one notoriously bad case – with a renegade officer at the center of the action – Blakeslee also discusses the structural factors that make drug task forces susceptible to abuse of power, sloppy police work, and worse. See chapter 11, The Jump Out Boys.

Spokane Judge Won't Approve Plea without Seeing Prosecutor

2011-12-01T17:15:00.001-08:00

Spokane County prosecuting attorney Steve Tucker personally negotiated a plea agreement with a defendant who shot a gun into a neighbor's house. The judge wanted to ask him some questions about it, but he chose not to appear, sending one of his assistants. The judge said she wouldn't approve the plea. Prosecutor Rankles Judge Spokesman Review, Nov. 26, 2011.

Ore. governor bans death penalty for rest of term

2011-11-30T16:03:00.001-08:00

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

Cameras in the Supreme Court

2011-11-30T15:51:00.000-08:00

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.

Second Trial in Civil Sex Abuse Case Because of Juror Misconduct

2011-11-25T23:00:00.000-08:00

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) Legalwa.org link.

Poster Reminds Jurors to Focus on Courtroom

2011-11-23T11:45:00.000-08:00

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

2011-11-23T11:30:00.000-08:00

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.

Skype in Drug Court

2011-11-18T12:06:00.001-08:00

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, KING5.com, Nov. 17, 2011.

Federal Sentencing News

2011-11-01T22:49:00.000-07:00

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.

Study

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.

Judge Wants Attorneys to Behave

2011-10-10T14:01:00.000-07:00

As Jay Mehring's case against Spokane and the city's chief of police for defamation and wrongful termination approaches its trial date, the judge says she is "sick of" the attorneys' behavior:

Spokane County Superior Court Judge Kathleen O'Connor had choice words Thursday for attorneys on both sides of the Jay Mehring civil case.

* * *

She ordered attorneys Bob Dunn and Ellen O'Hara to appear before her this afternoon "no matter what" with an agreed upon statement in the case and a list of issues that are in dispute and issues that aren't.

She threatened to hold the lawyers in contempt if they weren't able to do so "because I am sick of this."

The judge also warned that she would have no time to look at motions for reconsideration, "so assume that they're all going to be denied."

* * *

The judge also picked up a report she said had been submitted that morning in violation of a previous order.

"See this? The one I got today? In the waste basket!" she said, holding up the waste basket.

Judge Calls Mehring Case 'Dysfunctional,' Spokesman Review, Oct. 7, 2011.

Avoiding Tech Meltdowns in Court

2011-10-05T20:46:00.000-07:00

The current issue of Law Technology News features Robyn Weismann, Wrong Way: Preventing (and Recovering From) Courtroom Snafus, Oct. 1, 2011.

Related content:

David Snow, Don't Let Courtroom Crises Beat You, Law Technology News, Oct. 5, 2011
Ltn podcast, Wrong Way: How to Recover from (and Prevent) Courtroom Technology Snafus, October 2011.

Just today I was about to give a presentation in a classroom when I discovered that my PowerPoint file was not in the folder where I thought I'd saved it. Fortunately I found it, and it was just a small classroom talk, not a million-dollar trial, but the two minutes when I wasn't sure where the darn slides had gone gave me a taste of what these articles (and podcast) are talking about.

Scientific Evidence Manual

2011-10-01T16:35:00.000-07:00

DNA identification, economic estimates of damages, psychiatric evidence of competence to stand trial, engineers' testimony about product defects—there's a lot of scientific testimony in today's courtrooms. How can judges—who are not statisticians, geneticists, economists, epidemiologists, engineers, or psychiatrists—intelligently manage this flood of information?

To address this challenge, the Federal Judicial Center and the National Research Council have published the Reference Manual on Scientific Evidence. The first edition was in 1994, the second in 2000, and the third edition was released this week.

This book would be useful to anyone wanting an introduction to scientific evidence. Chapters include:

The Admissibility of Expert Testimony
How Science Works
Reference Guide on Forensic Identification Expertise
Reference Guide on DNA Identification Evidence
Reference Guide on Statistics
Reference Guide on Multiple Regression
Reference Guide on Survey Research
Reference Guide on Estimation of Economic Damages
Reference Guide on Exposure Science
Reference Guide on Epidemiology
Reference Guide on Toxicology
Reference Guide on Medical Testimony
Reference Guide on Neuroscience
Reference Guide on Mental Health Evidence
Reference Guide on Engineering

The book is available for free reading online; you can also download a PDF of any chapter or of the whole book. And the library will soon order it in paper.

See Science Manual for Judges Updated, Law Technology News, Sept. 29, 2011.

Women on the Federal Bench

2011-09-25T18:15:00.000-07:00

Sandra Day O’Connor sworn in, September 25, 1981.

Today is the 30th anniversary of Sandra Day O'Connor being sworn in as a Supreme Court Justice.

The appointment of the first woman to the Supreme Court was very big news back in 1981, when I was a law student. But most of today's law students have always had at least one woman one the Supreme Court. Today's 1Ls are starting law school with three female justices on the Court. (Beloit's Mindset List annually offers reminders of how a younger generation's experience differs from the last's.)

So I thought this might be a good occasion to offer some stats about the representation of women on the federal bench. I'm using a fascinating database from the Federal Judicial Center, The Biographical Directory of Federal Judges.

First, how many women did Justice O'Connor join when she was sworn in?

51 women had been been commissioned before Sept. 25, 1981. Only 23 were still serving. (That is, their commission date was before that date, but their termination date was after it.)

And what were the corresponding numbers for men?

2023 men had been commissioned, and 619 were still serving.

President Reagan made history by appointing the first woman to the Supreme Court. What was his record throughout the federal courts?

court	women	men
U.S. Supreme Court	1	3
courts of appeal	6	77
all federal courts	30	334

An important part of the historical context is that women were a minority in the legal profession. 1972 was the first year when women were over 10% of law school enrollment nationally, so in the 1980s there'd wasn't as large a pool of experienced female lawyer from whom to select judges as there is today.

Speaking of today, what is the makeup of our federal bench now?

All Sitting Federal Judges (including those on senior status)

Race or Ethnicity	women	men
African American	38	81
American Indian	0	1
Asian American	6	10
Hispanic	23	56
White	208	861
Total	278	1015

Photo credit: National Archives Today's Document blog, Sept. 25, 2011.

Future of Miranda

2011-09-22T15:19:00.000-07:00

The UW School of Law presents The Future of Miranda: A Dialogue
Featuring:

The Hon. Betty B. Fletcher, U.S. Court of Appeals for the Ninth Circuit
Professor Emeritus Yale Kamisar, University of Michigan School of Law
Oregon Attorney General John Kroger

With commentary by Todd Maybrown, Partner, Allen, Hansen & Maybrown, PS
Wednesday, October 19, 2011, 5:00 p.m. to 6:30 p.m. Room 138. Reception to follow inRoom 115

The landmark case of Miranda v. Arizona launched one of the best-known aspects of criminal procedure, the Miranda warnings before custodial police interrogation. The controversial case and the rights it vouchsafed have been under siege for decades. The scope of Miranda and availability of remedies are increasingly constricted. Please join our distinguished panelistsfor a discussion about the past and present of Miranda.

CLE Program: 1.5 credits approved.
This event is free and open to the general public.
The cost of CLE credits is $15.
RSVP here.
Contact Kathy Kline at (206) 543-8881 or email.

How Do Lay People React to Judicial Decision-Making?

2011-09-20T15:07:00.000-07:00

A new study looks at how lay people respond to the judicial reasoning.Dan Simon & Nicholas Scurich, Lay Judgments of Judicial Decision-Making (July 18, 2011), J. Empirical Legal Stud. (forthcoming 2011), available at http://ssrn.com/abstract=1888630

This exploratory study examined lay people’s evaluations of judicial decision-making, specifically of the judicial decision-making process and the judiciary’s legitimacy. Seven hundred participants were presented with three judicial decisions, which were portrayed as following on the heels of solid and appropriate legal procedure.

Each decision was accompanied by one of four types of reasoning. Participants were asked to evaluate the acceptability of the decisions, focusing on the manner in which they were made and the legitimacy of the decision-maker, regardless of their outcomes. The study yielded four findings.
First, lay people’s judgments were highly contingent on the outcome of the judges’ decisions. Consistent with the theory of motivated reasoning, participants found the decisions highly acceptable when they agreed with the judges’ decision, but deemed them relatively unacceptable when they disagreed with them.
Second, participants were indifferent to the modes of reasoning when they agreed with the outcomes of the decisions, but were differentially sensitive to the modes of reasoning when the judges’ decisions frustrated their preferred outcomes.
Third, when participants were sensitive to the modes of reasoning, they gave higher ratings of acceptability to decisions that openly admitted to good reasons on both sides of the case as compared with decisions accompanied by reasons that supported one side of the case exclusively. Giving no reasons at all was found to be more acceptable than giving a single, curt reason.
Fourth, the findings replicated the coherence effect. Implications for the legitimacy of the judiciary are discussed.

Sealing Cases - Federal

2011-09-13T16:03:00.000-07:00

Judicial Conference Urges Restraint In Sealing Civil Cases, BLT: The Blog of Times, Sept. 13, 2011.

The policy-making body of the federal judiciary approved a new standard today that instructs judges to limit sealing entire civil cases to only extraordinary circumstances.The Judicial Conference of the United States said the new policy emphasizes that sealing an entire case should be the last resort.Judges should first explore narrower alternatives, such as blacking out information or sealing particular documents, the panel said.

Federal Rules Go Mobile!

2011-09-06T17:49:00.000-07:00

Wouldn't it be great to have the Federal Rules of Civil Procedure, the Federal Rules of Evidence, or the Federal Rules of Criminal Procedure with you without toting the bound books? Now you can: CALI and the Legal Information Institute have released Federal Rules Ebooks, with the rules and official comments, in a format compatible with iPhone, iPad, and Nook. (Kindle support is coming soon.)

The books are free, but you are encouraged to donate to the Legal Information Institute, a nonprofit based at Cornell that puts a lot of resources into making law accessible.

New California Law Prohibits Jurors' Social Media Use

2011-09-01T20:10:00.000-07:00

New California Law Prohibits Jurors' Social Media UsE, Citizen Media Law Project, Sept. 1, 2011.

California has adopted a new statute which clarifies that jurors may not use social media and the Internet – such as texting, Twitter, Facebook, and Internet searches – to research or disseminate information about cases, and can be held in criminal or civil contempt for violating these restrictions.

The new statute, 2011 Cal. Laws chap. 181, expands the state's existing jury instructions which currently, at the start of trial and prior to any recesses or breaks, admonish jurors not to discuss the case they are sitting on with each other or anyone else before deliberations. The current instructions make no specific mention of electronic research or communications.

Juror Held in Contempt, Gets Community Service for Effort to Friend Defendant on Facebook - News - ABA Journal

2011-09-01T20:01:00.000-07:00

Juror Held in Contempt, Gets Community Service for Effort to Friend Defendant on Facebook - News - ABA Journal, Aug. 29, 2011. The headline summarizes it; I'll just add that it was a civil case, the young juror was male, and the defendant was female.

Good Lawyers Settle

2011-08-31T15:54:00.000-07:00

Jay Shepard writes about the importance to litigation of motions practice and settlement negotiations: Small Lawyers, Big Lawyers: Real Lawyers Settle Cases, Above the Law, Aug. 31, 2011.

I once was at a CLE seminar where one of the deans of our local employment bar said that if you ever have the opportunity to try a case, you should leap at it — they’re a lot of fun.

Fun? Yes, actually they are. But I’m pretty sure that my fun was not one of the guiding factors in my clients’ decision to hire me.

The truth of the matter is that your job as a civil litigator is not to win at all costs. Instead, it is to make your client’s problem go away. And making your client’s problem go away often involves settlement. The deal is to get a good deal.

Batson for GLBT Challenge?

2011-08-08T16:31:00.000-07:00

A ninth circuit appeal, argued Thursday, raises the issue of whether the peremptory challenge of a lesbian should receive Batson-type scrutiny. Potential jurors shouldn't be dismissed for being gay, court told, L.A. Times, Aug. 5, 2011.

Daniel Osazuwa, an inmate serving time for bank fraud, was convicted of assaulting a guard. His defense was that he was only trying to embrace the other man—a common way to greet someone in his home country of Nigeria;mdash;and that the guard reacted badly because the inmate is gay.

The prosecution says that its reason for challenging the juror "because she told the court she had close Nigerian friends when the panel was asked if anyone had positive or negative attitudes toward that nationality." Id. To me this stated reason seems at least as shaky as if the challenge were based on sexual orientation. Should an immigrant should be deprived of a juror who has friends of his nationality?

See also How a Fight over Jury Selection Could Advance Gay Rights, Time, Aug. 8, 2011.

Criminal Case Dismissed for Discovery Abuse (CT)

2011-07-24T20:31:00.000-07:00

Conn. High Court Dismisses Criminal Case for Discovery Abuse, Conn. Law Tribune (via law.com), July 20, 2011. Searching the defendant's computer for child pornography, the prosecutor found a document from defense counsel outlining strategy and key witnesses. On appeal, the Connecticut Supreme Court reversed. State v. Lenarz, No. SC 18561 (July 19, 2011), majority, dissent.

The majority opinion concludes:

This is a case in which the prosecutor clearly invaded privileged communications that contained a detailed, explicit road map of the defendant’s trial strategy. Compounding the problem, the prosecutor not only failed to inform the defendant and the trial court of the invasion immediately, but also continued to handle the case, to meet repeatedly with witnesses and investigators and ultimately to try the case to conclusion more than one year after the invasion occurred. Under these circumstances, any remedy other than the dismissal of the criminal charge of which the defendant was convicted would constitute a miscarriage of justice.

The dissent opens:

Until today, no federal or state court in this country ever has presumed a sixth amendment violation on the basis of a government’s unintentional breach of the attorney-client relationship, and no federal or state court ever has dismissed criminal charges due to such a breach. Indeed, until today, this court never has ordered the dismissal of criminal charges as a remedial
measure.

I haven't read all the pages of argument on each side, but even from this much, it seemed well worth a post.

Implicit Social Cognition

2011-07-18T10:42:00.000-07:00

A forthcoming article explores the role of implicit social cognition in police stops. L. Song Richardson, Arrest Efficiency and the Fourth Amendment, 95 Minn. L. Rev. __ (forthcoming 2011), available at http://ssrn.com/abstract=1625755.

UW law professor Mary Fan discusses the article and offers her own reflections: Mary D. Fan, Subconscious Impact, Jotwell, July 18, 2011.

Skagit County suit claims public defenders too busy to defend

2011-06-22T08:28:00.000-07:00

A class action suit against the cities of Mount Vernon and Burlington claims that the attorney with the contract to handle public defense of misdemeanor cases has such a high caseload that it violates defendants' right to counsel. Skagit County suit claims public defenders too busy to defend | Seattle Times Newspaper, June 20, 2011.

Public defenders suing Seattle

2011-06-22T08:20:00.000-07:00

After 40 years, The Defender Association's contract with the City of Seattle was not renewed, going instead to Northwest Defenders Association. TDA is challenging the decision, because the other group's lower bid was adjusted (at the city's request) to be higher than TDA's. Public defenders suing Seattle | Seattle Times Newspaper, June 21, 2011.

Prosecutor's Comments Questioned

2011-06-20T11:16:00.000-07:00

The Washington State Supreme Court overturned a conviction this month because of the white prosecutor's remarks that black witnesses had not testified against the black defendant because of a purported code that "black folk don't testify against black folk." State v. Monday, No. 82736-2 (June 29, 2011), links to opinions on court's website: majority, concurrence, dissent. See Jennifer Sullivan, Seattle murder conviction tossed out over 'racist' comments, Seattle Times, June 9, 2011.

King County Prosecutor Dan Satterberg wrote a guest editorial apologizing for the comments. 'No-snitch' argument untrue, damaging to trust in law enforcement, June 16, 2011.

This statement is untrue and offensive. We know from experience that the "no snitch" ethic is not confined to any particular race or background. We see it commonly across a wide range of cases that we handle. On the other hand, we also see witnesses of all races and backgrounds participate fully in the criminal-justice system, fulfilling an important civic duty that keeps us all safe and protects our constitutional rights.

Compounding the error, the statement has the unfortunate and ironic effect of further eroding trust in the criminal-justice system. By decrying the "no snitch" ethic in this manner, the senior deputy prosecutor created yet another reason for some to believe that our justice system is biased and racist.

Now an appeal is arguing that the same deputy prosecutor (James Konat) made inappropriate comments in his closing argument in the trial of Sebastian Burns who was convicted with Atif Rafay of killing Rafay's parents and sister. Konat said that the crime was worse than a Middle East beheading of a U.S. citizen, a comparison the brief argues was an appeal to nationalism and prejudice. Prosecutor's comments cited in call for new Sebastian Burns trial | Seattle Times Newspaper, June 20, 2011.

Gene Anderson, U.S. Atty, Prosecuted White Collar Crime, Neo-Nazis

2011-06-19T13:52:00.000-07:00

Gene S. Anderson, who served as the U.S. Attorney for the Western District of Washington 1981-89, died on March 27, 2011. He was noted for his prosecutions of white collar crime, both in the King County Prosecutor's Office and then on the federal level. He also worked with his counterparts in other jurisdictions to convict 20 members of the Order, a neo-Nazi group. A memorial will be held Friday, June 24, at 4 pm in the U.S. Courthouse, 700 Stewart St. Gene S. Anderson: memorial to honor trailblazing prosecutor, Seattle Times, June 18, 2011.

Churches Against ‘Jim Crow’

2011-06-18T20:27:00.000-07:00

For many black congregations, this weekend’s celebration of Juneteenth will feature a special emphasis on exposing the racial biases of our nation’s criminal justice system.

Since attorney Michelle Alexander wrote The New Jim Crow: Mass Incarceration in the Age of Colorblindness, a network of churches has joined her in the fight against a criminal justice system that targets poor minority communities and locks up a disproportionate percentage of African American men.

The Samuel DeWitt Proctor Conference, a group of thousands of black churches involved in local and global social justice issues, is coming together for Juneteenth to galvanize faith-based action against the new Jim Crow that Alexander writes about in her book.

Catherine Newhouse, Churches Against ‘Jim Crow’ | Urban Faith, June 17, 2011.

See earlier posts on The New Jim Crow. See also the Gallagher Law Library (UW Law) guide, Race in the Criminal Justice System and the website for the state Task Force on Race and the Criminal Justice System.

Juneteenth is a celebration of African American freedom and accomplishment. The Washington State legislature declared:

The legislature recognizes that on June 19, 1865, Union soldiers landed at Galveston, Texas with news that the Civil War had ended and the slaves were now free; that this was two and a half years after President Lincoln signed the Emancipation Proclamation on January 1, 1863; that the end of slavery brought on new challenges and realities in establishing a previously nonexistent status for African-Americans in the United States; that racism and continued inequality is the legacy of slavery and acknowledging it is the first step in its eradication; and that since 1980 June 19th has been celebrated as Juneteenth across the United States as a day for people to come together in the spirit of reconciliation to commemorate the contributions of African-Americans to this country's history and culture.

The legislature declares that an annual day of recognition be observed in remembrance of the day the slaves realized they were free as a reminder that individual rights and freedoms must never be denied.

The legislature declares that an annual day of recognition be observed in remembrance of the day the slaves realized they were free as a reminder that individual rights and freedoms must never be denied.

Laws of 2007 ch. 61 § 1, codified at RCW 1.16.050.

Emotional Testimony in Murder-Rape Trial

2011-06-18T00:29:00.000-07:00

The cover story in The Stranger describes in some detail the painful and moving testimony by a Seattle woman who was raped and stabbed and whose partner was raped, stabbed, and killed. The Bravest Woman in Seattle, June 14, 2011.

The reporter, Eli Sanders, has followed this case since the crime was committed, nearly two years ago. See his earlier feature stories: While South Park Slept: A Gruesome Murder, a Beloved Bar, and a Week on the Edge, The Stranger, July 28, 2009, and The Mind of Kalebu, Sept. 22, 2009. The second article describes incidents showing the mental instability and possible dangerousness of the defendant, Isaiah Kalebu.

Conference on Forensic Inference Statistics in Seattle Next Month

2011-06-17T11:47:00.000-07:00

8th International Conference on Forensic Inference Statistics
Date: July 18-21, 2011.

Location: University of Washington School of Law, William H. Gates Hall, 4293 Memorial Way, Seattle, WA

The area of statistical reasoning applied to forensic science has undergone a rapid growth and development both theoretically but also in applied research, becoming a highly interdisciplinary field. This conference is the only forum where police officers, forensic scientists, jurists, scholars from related disciplines and statisticians meet to discuss the constraints, mechanisms and opportunities to provide statistical and inferential support to the decision making process either at level of the investigation or in court.

The Washington State Bar Association has approved the July 18, 2011 ICFIS program for 7 hours of general CLE credit, and the July 19-21 ICFIS conference for 18 hours of general CLE credit.

More details on the program are here.

Miranda and Kids

2011-06-17T10:46:00.000-07:00

Marcia Coyle, In Miranda Calculus, Age Should Be a Factor, Court Says, Nat'l L.J., June 16, 2011.

Stressing that children are not "miniature adults," a divided U.S. Supreme Court on Thursday held that the police must consider a juvenile suspect's age in deciding whether the child is in custody and must be given Miranda warnings.

"It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave," wrote Justice Sonia Sotomayor for the 5-4 majority. "Seeing no reason for police officers or courts to blind themselves to that commonsense reality, we hold that a child's age properly informs the Miranda custody analysis."

J. D. B. v. North Carolina, No. 09-11121 (June 16, 2011)

For more on the vulnerability of children to coercive interrogation, see this video from the Center on Wrongful Convictions of Youth (Northwestern Law in Chicago).

Jurors Online Discussed in New Journal

2011-06-16T22:14:00.000-07:00

The Reynolds National Center for Courts and Media and Donald W. Reynolds School of Journalism (University of Nevada Reno) launched a new journal in February: the Reynolds Courts and Media Law Journal.

The first issue, Winter 2011, included articles on venue after Enron, guidelines for unmasking in public figure libel cases, and a summary guide on courts and media for judges.

The Spring 2011 issue has four articles on "Modern Media in the Courts":

Judge Dennis M. Sweeney, When Worlds Collide: Digital Natives Enter the Jury Box, p. 121
Genelle I. Belmas, That's What "Friend" Is for?: Judges, Social Networks and Standards for Recusal, p. 147
Gareth S. Lacy,* Untangling the Web: How Courts Should Respond to Juries Using the Internet for Research, p. 169
Stacy Blasiola, Say "Cheese!": Cameras and Bloggers in Wisconsin's Courtrooms, p. 197

*Gareth is a 2011 graduate of the University of Washington School of Law.

Miranda Anniversary

2011-06-13T09:44:00.000-07:00

Miranda v. Arizona, 384 U. S. 436, Justia, was decided 45 years ago today (June 13, 1966). For a quick summary and the oral arguments, see (or hear) the Oyez Project.

Here are some recent books discussing Miranda and its impact:

Lawrence S. Wrightsman & Mary L. Pitman, The Miranda Ruling: Its Past, Present and Future (2010) (publisher's page)
Gary L. Stuart, Miranda: The Story of America's Right to Remain Silent (2004) (publisher's page)
G. Daniel Lassiter, Interrogations, Confessions, and Entrapment (2006) (publisher's page)
Sara Catherine Benesh, The U.S. Court of Appeals and the Law of Confessions: Perspectives on the Hierarchy of Justice (2002)

Cameras in Federal District Courts

2011-06-09T08:50:00.000-07:00

The federal courts are beginning an experiment to have some trial court proceedings videorecorded and made public. The Western District of Washington is one of the fourteen districts in the pilot project. See Courts Selected for Federal Cameras in Court Pilot Study, U.S. Courts, June 8, 2011; Restrictive Rules Announced for Federal Courts Camera Experiment, The BLT: Blog of the Legal Times, June 8, 2011.

Update (June 10): One commentator rues the restrictions in the experiment (e.g., recording of only civil cases, and only cases where the parties consent): Sean Doherty, No Fly-on-the-Wall Effect From Cameras in U.S. District Courts, Law Technology News, June 10, 2011.

High-Level DOJ Mistakes - Recent and Historic

2011-05-24T16:10:00.000-07:00

BLT, the Blog of the Legal Times, today discusses mistakes made at the highest levels of the Justice Department -- the recent politicization of hiring within the department and the historic injustice of defending of the removal of 120,000 Japanese Americans and Japanese residents from their homes during World War II.

Former AG Gonzales 'Disappointed' in His Own Conduct in DOJ Hiring. In a deposition for an employment case against DOJ, Alberto Gonzales "said for the first time that "I am disappointed that I didn't do things differently" to stop the politicization of the system of hiring career Justice Department attorneys through its honors program during his time in office."
In DOJ Speech, Katyal Addresses Japanese Internment Cases. Neal Katyal, Acting Solicitor General, criticized the actions of the solicitor general during World War II who urged the Supreme Court to uphold Japanese American internment, failing to disclose a report from the Office of Naval Intelligence that undercut the rationale for the internment. See also yesterday's post, Katyal Speaks of SG 'Mistakes' in Japanese Internment Cases (linking to a post by Katyal on DOJ's blog).

Personal Jurisdiction Over Foreign Law Firm

2011-05-24T16:02:00.000-07:00

BLT, The Blog of Legal Times reports Judge Rules Swedish Law Firm Can Be Named In Local Malpractice Suit, May 24, 2011 "In a 120-page opinion . . ., a Washington federal judge affirmed that a foreign-based law firm with few physical ties to Washington and limited involvement in an underlying case could still be the target of a legal malpractice suit in Washington based on its communications and visits over the years." The plaintiff is suing both a DC firm and the Swedish firm for malpractice in their handling his his patent infringement cases.

Jury Selection and the Coase Theorem

2011-05-19T21:49:00.000-07:00

The Coase Theorem says that parties will negotiate to an efficient distribution of goods—if they have perfect information and there are no transaction costs. Dru Stevenson takes this basic premise about an idealized economic world and uses it to frame his observations of jury selection, a phase of litigation where negotiation is typically absent: the rules and traditions of voir dire make the transactions costs very high.

Dru Stevenson, Jury Selection and the Coase Theorem (March 4, 2011), available at http://ssrn.com/abstract=1777278.

Not really into law and economics? The article is still worth reading for Stevenson's comments on jury selection. For instance:

the peremptory strike system actually maximizes uncertainty about the jury, rather than neutrality or fairness, by allowing lawyers on each side to deselect jurors who seem favorable to their opponent. In other words, we merely remove those whose biases seem most evident. Given the relationship between predictability and settlement, this means the peremptory strike system has a temporary chilling effect on settlements immediately following the voir dire segment of the litigation.

Id. at 6.

If you'd like to read more about the Coase Theorem—a lot more—see Steven G. Medema & Richard O. Zerbe, Jr., The Coase Theorem (1999), in Encyclopedia of Law and Economics. This huge, scholarly encyclopedia is on the web, free! By the way, Dick Zerbe, from the UW's Evans School of Public Affairs is an adjunct professor in the law school.

If you think that it would be worthwhile to know a little more about economics and you need an introduction (or a refresher), consider Grady Klein & Yoram Bauman, The Cartoon Introduction to Economics. (This excerpt has a little about the Coase Theorem on page 182.) By the way, Yoram Bauman teaches in the UW's Program on the Environment.

Judging in Black and White

2011-05-11T12:15:00.000-07:00

Do judges vary in their treatment of race?

That's the question investigated by three researchers (David S. Abrams, Marianne Bertrand, and Sendhil Mullainathan) who studied thousands of felony cases in Cook County, IL, initiated between 1995 and 2001. Cases were assigned to judges randomly (and the researchers did some statistical checking to confirm that).

Controlling for a wide range of variables, it turned out that race did make a difference across all judges, and, with some judges it made a very big difference. Black defendanats were more likely to be incarcerated than non-Hispanic white defendants. (This paper does not address Hispanic defendants.)

Comparable defendants had different likelihoods of incarceration depending on which judge they were assigned.

With a judge at the lenient end of the spectrum,
a black male defendant had a 45% chance of incarceration
while a white male defendant had at 35% chance of incarceration.

Facing a judge at the harsh end of the spectrum, a black male
defendant had a 68% chance of incarceration, compared with
his white counterpart's 40% chance.

There were also differences in the length of sentences imposed (blacks got longer sentences) but these differences weren't statistically significant.

The researchers did not find significant differences based on race of the judge or whether the judge had experience as a public defender.

David S. Abrams, Marianne Bertrand & Sendhil Mullainathan, Do Judges Vary in Their Treatment of Race? (Univ. of Pa. Law Sch. Inst. for Law & Econ. Research Paper No. 11-07), available at http://ssrn.com/abstract=1800840, J. Legal Studies (forthcoming). The examples about the black and white defendants are drawn from pp. 22-23.

By the way, Cook County gives a very large sample to study. "Cook County is the largest unified court system in the country, with over 2.4 million cases processed per year in both civil and criminal courts." (p. 8). For comparison, consider that all of Washington's superior courts handled a total of 752,082 cases in 2010. Caseloads of the Courts of Washington: Total Proceedings by Type of Case - 2010 Annual Report at 2.

Jury Appreciation Month

2011-05-10T11:31:00.000-07:00

According to the Administrative Office of the U.S. Courts, May is Jury Appreciation Month.

Although many people consider jury service on a par with waiting at the DMV, jurors are essential to our judicial processes. The federal Courts website's Educational Resources includes several items about jury service, including jury service basics and two videos on jury service. One of the videos--aimed at high school students--features two judges from the U.S. District Court for the Western District of Washington, Judge Richard Jones and Chief Judge Robert Lasnik.

If you are looking for books in the Gallagher Law Library on juries and jury service, try these subjects: Jury--United States and Jury selection--United States.

The National Center for State Courts website includes many sources on Jury Selection, Trial & Deliberations, including a link to its Center for Jury Studies.

Whether you have served on a jury, intend to practice law before a jury, or care about our fundamental freedoms, take a minute to appreciate jurors and juries.

This post, by Cheryl Nyberg, originally appeared in Gallagher Blogs. Reposted with permission.

Death Penalty Mitigation Specialist; Death Penalty Stories

2011-05-10T00:18:00.000-07:00

Jeffrey Toobin profiles Danalynn Recer, a lawyer who specializes in death penalty mitigation in Texas: The Mitigator, The New Yorker, May 9, 2011, at 32.

A greater emphasis on mitigation evidence is one factor in the decline of death sentences in recent years:

The expectations for capital defense practice have also changed over the past twenty years, and it has become less common (and less acceptable) for capital defense lawyers to devote their energies primarily or exclusively to the guilt-innocence phase of capital trials. Capital trial lawyers are more aware of the importance of developing and presenting mitigating evidence and of the need to embrace trial strategies that weave the defense mitigation theory into the guilt-innocence phase of the proceedings. The emergence of "mitigation specialists" as a distinct class of capital trial participants, who coordinate the investigation and presentation of a defendant's family, social, psychological and psychiatric history, represents a marked departure from capital litigation in the immediate post-Furman era; during that period, "generalist" criminal defense lawyers would try capital cases without sufficient attention to the distinctive need to focus their energies toward the fundamental moral question of life-or-death rather than merely to challenge the state's burden of proof on the underlying offense. The changes in expectations regarding the duties of capital trial counsel are reflected in the Court's recent decisions finding ineffective assistance of counsel . . ..

John H. Blume & Jordan M. Steiker, Introduction, in Death Penalty Stories 10 (John H. Blume & Jordan M. Steiker eds., 2009).

Death Penalty Stories is a fascinating collection of thoughtful and research-packed essays on landmark cases in U.S. death penalty law. Chapters are:

Deborah Denno, When Willie Francis Died: The "Disturbing" Story Behind One of the Eighth Amendment's Most Enduring Standards of Risk
Carol S. Steiker, Furman v. Georgia: Not an End, but a Beginning
Hugo Adam Bedau, Gregg v. Georgia and Allied Cases: Protecting the Death Penalty from Abolition
Sheri Lynn Johnson, Coker v. Georgia: Of Rape, Race, and Burying the Past
John H. Blume, Gilmore v. Utah: The Persistent Problem of "Volunteers"
David C. Baldus et al., McCleskey v. Kemp: Denial Avoidance, and the Legitimization of Racial Discrimination in the Administration of the Death Penalty
Jordan M. Steiker, Penry v. Lynaugh: The Hazards of Predicting the Future
Austin Sarat, The Story of Payne v. Tennessee: Victims Triumphant
David Bruck, Simmons v. South Carolina and the Myth of Early Release
David R. Dow, Bell v. Cone: The Fatal Consequences of Incomplete Failure
Scott W. Howe, Roper v. Simmons: Abolishing the Death Penalty for Juvenile Offenders in the Wake of International Consensus
Joseph L. Hoffmann, House v. Bell and the Death of Innocence

I recommend it highly.

Growing Nose, Pants on Fire, or What?

2011-04-21T14:28:00.000-07:00

You can easily tell when Pinocchio is lying because his nose grows longer. But it's a lot harder with flesh-and-blood people.

A recent article in a psychology journal reviews the literature and explains why many standard "rules" are basically hooey. People who are lying don't fidget or avert their gaze more than others, for instance.

The authors go on to propose interviewing techniques for spotting lies. They say it's better to use an information-gathering approach than an accusatory approach. Among other things, they encourage asking temporal questions, using evidence strategically, and asking questions to increase the potential liar's cognitive load (i.e., make it harder for the liar to keep his or her story straight).

Aldert Vrij, Pär Anders Granhag & Stephen Porter, Pitfalls and Opportunities in Nonverbal and Verbal Lie Detection, Psychological Science in the Public Interest, vol. 11 no. 3, at 89-121.

Elizabeth F. Loftus has a brief editorial introducing this article: Catching Liars, Psychological Science in the Public Interest, vol. 11 no. 3, at 87-88. One interesting observation, of concern for social justice as well as spotting individual lies:

Using gaze aversion to decide that someone is lying can be dangerous for that someone’s health and happiness. And—what was news to me—some cultural or ethnic groups are more likely to show gaze aversion. For example, Blacks are particularly likely to show gaze aversion. So imagine now the problem that might arise when a White police officer interviews a Black suspect and interprets the gaze aversion as evidence of lying. This material needs to be put in the hands of interviewers to prevent this kind of cross-racial misinterpretation.

It's interesting to me that, steeped in social psychology as she is, Loftus hadn't before focused on cultural differences like this.

(I'm currently reading The Warmth of Other Suns: The Epic Story of America's Great Migration, by Isabel Wilkerson, which piles layer upon layer of incidents when African Americans were slapped down–in small ways and large–for failing to look away and defer to anyone in power, so it's not at all surprising that Blacks would "show gaze aversion." I'm also reminded the passage in David Copperfield, which I just read, where the toadying Uriah Heep explained that his family had been taught "a deal of umbleness--not much else that I know of, from morning to night. We was to be umble to this person, and umble to that; and to pull of our caps here, and to make bows there; and alwasy to knowo our place, and abase ourselves before our betters. And we had such a lot of betters!" It's hard to like Heep, but this passage explained that his damage had causes beyond himself. Heep often was lying, of course, but you couldn't have told that by his "umbleness" alone.)

Defense Attorney Profile

2011-04-17T18:23:00.000-07:00

This morning's Seattle Times has a front-page profile of attorney Eric Lindell. Ken Armstrong, West Seattle attorney takes difficult cases -- and wins | Seattle Times Newspaper, April 17, 2011.

Lindell's career has focused on criminal defense, first with SCRAP and then in private practice. One case discussed is an appeal currently pending in the Washington Supreme Court challenging the statute that allows propensity evidence in sexual abuse cases (RCW 10.58.090). See earlier post about this case in Division I.

The article discusses several other cases in which Lindell represented criminal defendants. And there's one case where his work on behalf of a private client led to a successful prosecution. A child had drowned when in the care of her stepfather. Investigators originally ruled it an accident, but the mother thought her husband had killed the little girl. Lindell's work on a wrongful death suit (that was dropped) led to the prosecution and conviction of the stepfather -- the justice the mother wanted.

How Do People Find Lawyers?

2011-04-17T17:51:00.000-07:00

The ABA's Standing Committee on the Delivery of Legal Services commissioned a survey to learn how people find lawyers and, when they don't use lawyers, how they find legal information: Perspectives on Finding Personal Legal Services: The Results of a Public Opinion Poll, Feb. 2011.

For summaries see How People Find Lawyers: Referrals Are Popular, Blogs Not So Much, Poll Finds, ABA J. online, March 23, 2011; How People Find Lawyers, Gallagher Blogs, March 25, 2011.

People are more likely to use the Internet than the Yellow Pages now, but the dominant way of finding lawyers is still personal referral.

Has the Judge Eaten?

2011-04-11T18:05:00.000-07:00

A caricature of Legal Realism is that it says that outcomes depend on "what the judge had for breakfast." A new study looks not at what judges ate but when they ate.

Shai Danzigera, Jonathan Levavb & Liora Avnaim-Pessoa, Extraneous Factors in Judicial Decisions, Proceedings of the Nat'l Acad. of Sci. Early Ed. (published online before print), April 11, 2011, PDF (UW restricted), abstract (UW restricted). News stories: Facing a judge? Study says go early or after lunch, Physorg.com, April 11, 2011; Hunger Affects Court Rulings?, PRI's The World, April 11, 2011 (radio interview).

The authors examined 1,112 parole rulings by 8 Israeli judges during 50 court days over 10 months. Each day included a late-morning snack break (usually a sandwich and fruit) and a lunch break. The judges did not control the order of the cases that came before them, and they didn't know the content of each case until it was presented. Again and again, it turned out that prisoners whose cases were heard first thing in the morning or shortly after one of the breaks. The stats are striking: The authors didn't ask the judges whether having a snack (or meal) simply put them in a better mood and made them more sympathetic to parole petitions. Perhaps there's an effect due to mental fatigue in doing repeated tasks or low blood glucose levels as the court session wears on.

Graphics: (1) sandwich and fruit by mw; (2) graph, showing jump in favorable decisions after each break, from article.

Empirical Legal Studies

2011-04-05T17:25:00.000-07:00

Empirical legal studies uses social science tools to examine law and legal institutions. These tools can include:

surveys, e.g.:

Attorney Satisfaction with the Federal Rules of Civil Procedure: Report to the Judicial Conference Advisory Committee on Civil Rules (Federal Judicial Center March 2010)

Legal Needs and Civil Justice: A Survey of Americans: Major Findings from the Comprehensive Legal Needs Study (ABA 1994)

Mary R. Rose, Christopher G. Ellison & Shari Seidman Diamond, Preferences for Juries Over Judges Across Racial and Ethnic Groups (2nd Annual Conference on Empirical Legal Studies, 2007), available at http://ssrn.com/abstract=998050.

observation and analysis of legal events, e.g.:

Mary R. Rose, Shari Seidman Diamond & Beth Murphy, Revisiting the Unanimity Requirement: The Behavior of the Non-Unanimous Civil Jury, Northwestern U. L. Rev. (forthcoming), available at http://ssrn.com/abstract=825125

Rafael I. Pardo & Michelle R. Lacey, Undue Hardship in the Bankruptcy Courts: An Empirical Assessment of the Discharge of Educational Debt, 74 U. Cin. L. Rev. 405 (2005), available at http://ssrn.com/abstract=706761.

Peter B. Oh, Veil-Piercing, 89 Texas L. Rev. 81 (2010) (dataset of 2,908 cases, 1658-2006), available at http://ssrn.com/abstract=1557972

simulations, e.g.:

Science in the Jury Box: Jurors' Views and Understanding of Mitochondrial DNA Evidence

economic modeling, e.g.:

John Armour et al., Shareholder Protection and Stock Market Development: An Empirical Test of the Legal Origins Hypothesis, University of Cambridge, CBR Working Paper ECGI - Law Working Paper No. 108/2008, available at http://ssrn.com/abstract=1094355

How can you learn about this diverse field? What are the leading works, what organizations work in the area, where are there standard datasets to use? A librarian at Fordham has prepared an excellent guide: Alissa Black-Dorward, Empirical Research (posted April 1, 2011). Tabs lead you to

General Materials

Statistical Software and Instruction

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Some of the information in the guide is tailored to Fordham, but you can find the equivalent here. For instance, our library has many of the books cited (although perhaps with different call numbers) and the UW has its own Human Subjects Division for ensuring ethical practices. ---------------------------------- This post is copied from Gallagher Blogs, on the assumption that many readers of Trial Ad Notes don't read the law library's blog (although you're welcome to, of course) but would be interested in this topic.

A Visit to the Supreme Court

2011-03-30T09:38:00.000-07:00

Here is a guest post by Maureen Howard: We all know how brilliant our own Professor Eric Schnapper is and realize that among his many, many accomplishments are two USSC "wins" this Term, but I write to report that you haven’t lived until you’ve see him stand and argue before the Court in person. I was fortunate to enjoy this honor yesterday when he argued Borough of Duryea v. Guarnieri, dealing with the protections afforded a government employee under the Petition Clause of the First Amendment. Professor Schnapper’s argument was clear and compelling, and he masterfully fielded questions from the justices. As a teacher of advocacy, I was mightily impressed. As a colleague, I was so very proud. It was also a memorable day in the Court because prior to argument, Justice Breyer read a summary of the Kasten decision handed down [March 22], which was the second of Professor Schnapper’s "wins" of the term. Joining Professor Schnapper at respondent’s counsel table sat the lawyer who had (unsuccessfully) argued the other side of the Kasten case, an alliance I am sure was not lost on the justices. A personal memorable moment for me occurred just prior to argument when Professor Schnapper moved from the floor for my admission to the Court. Chief Justice Roberts granted the motion, welcomed me to the Court, and directed the clerk to administer the oath. Photos: Eric Schnapper from University of Washington School of Law; Supreme Court bench from United States Supreme Court.

Symposium on Prosecutorial Disclosure Duties

2011-03-28T14:16:00.000-07:00

Last June, the Cardozo Law Review had a symposium, New Perspectives on Brady and Other Disclosure Obligations: What Really Works? (vol. 31, no. 6):

Foreword: New Perspectives on Brady and Other Disclosure Obligations: What Really Works?
Ellen Yaroshefsky 1943

New Perspectives on Brady and Other Disclosure Obligations:
Report of the Working Groups on Best Practices 1961

Voices From the Field: An Inter-Professional Approach to Managing Critical Information
Speeches of the Symposium 2037

Organizational Guidelines for the Prosecutor's Office
Rachel E. Barkow 2089

Talking About Prosecutors
Alafair S. Burke 2119

Can an Ethical Person Be an Ethical Prosecutor? A Social Cognitive Approach to Systemic Reform
Lawton P. Cummings 2139

Beyond Training Prosecutors About Their Disclosure Obligations: Can Prosecutors' Offices Learn from Their Lawyers' Mistakes?
Bruce A. Green 2161

Emotionally Charged: The Prosecutorial Charging Decision and the Innocence Revolution
Daniel S. Medwed 2187

Professional and Conviction Integrity Programs: Why We Need Them, Why They Will Work, and Models for Creating Them
Barry Scheck 2215

I learned of the symposium from a Penn State law professor who gives it this endorsement:

The 2010 Cardozo Symposium entitled “New Perspectives on Brady and Other Disclosure Obligations: What Really Works” is important reading for all lawyers – regardless of specialty or country – because we all have an interest in participating in a legal system that has a robust rule of law. Corruption or even misunderstandings about prosecutor conduct, including disclosure duties, can undermine public confidence and also the confidence of the legal profession in our legal system.
. . .
Even if you do not study criminal justice issues, you should read the Foreword in order to develop a better appreciation of issues that are critical to the rule of law and to see additional examples of how systemic, ex-ante approaches . . . can be used when designing legal systems and rules.

Laurel Terry, Academics Making a Difference: Prosecutor Disclosure Obligations in Criminal Cases, Jotwell, March 24, 2011.

Some of these issues were also discussed in the Washington Law Review two years ago:

Judge Robert S. Lasnik and David Boerner, The Legacy of Norm Maleng, 84 Wash. L. Rev. 3 (2009) Full Article
Hon. Patrick Fitzgerald, Thoughts on the Ethical Culture of a Prosecutor's Office, 84 Wash. L. Rev. 11 (2009)
Daniel S. Medwed, The Prosecutor as Minister of Justice: Preaching to the Unconverted from the Post-Conviction Pulpit, 84 Wash. L. Rev. 35 (2009) Full Article

Poor Trial Ad Skills Lead to Suspension

2011-03-28T13:58:00.000-07:00

Calif. Suspends Lawyer Who Botched Gang-Related Shooting Case, Orders Arbitration Over Disputed Fee - ABA Journal, March 18, 2011. The disciplinary proceeding included three counts (with subcounts). The list right out of a Trial Ad syllabus is from Count One:

[R]espondent failed to perform with competence in the criminal case by:
Performing little, if any, pre-trial case development, planning, or investigation on behalf of Rios.
Failing to adequately argue motions in limine.
Failing to make a coherent opening statement.
Repeatedly failing to ask admissible and relevant questions.
Repeatedly failing to assert proper objections.
Repeatedly failing to move to exclude improper testimony.
Failing to advance a defense theory.
Repeatedly failing to adequately cross-examine witnesses.
Failing to properly handle expert witness testimony on gang-related matters.
Repeatedly failing to properly impeach witnesses’ testimony.
Failing to adequately prepare Rios for direct and cross examination.
Repeatedly failing to present evidence or elicit facts on behalf of Rios.
Failing to diligently perform the services for which he was hire

In re Harlan R. Antler, STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING (Sept. 20, 2010).

Senior judges keep 9th Circuit courthouses open

2011-03-28T13:36:00.000-07:00

With vacant judgeships and mounting caseloads, the ninth circuit relies on its senior judges. Carol J. Williams, Senior Judges Keep 9th Circuit Courthouses Open, L.A. Times, March 14, 2011. Featured is 88-year-old Judge Betty Fletcher (UW Law class of 1956) who carries a full caseload.

Mark Twain on Ability to Judge Expressions

2011-03-06T22:05:00.000-08:00

A bit of my leisure reading reminded me of trial ad.

After visiting "The Last Supper"—and a lot of other famous European art—Mark Twain riffed on people's ability (or inability) to judge the meaning behind expressions.

It vexes me to hear people talk so glibly of "feeling," "expression," "tone," and those other easily acquired and inexpensive technicalities of art that make such a fine show in conversations concerning pictures. There is not one man in seventy-five hundred that can tell what a pictured face is intended to express. There is not one man in five hundred that can go into a court-room and be sure that he will not mistake some harmless innocent of a juryman for the black-hearted assassin on trial. Yet such people talk of "character" and presume to interpret "expression" in pictures. There is an old story that Matthews, the actor, was once lauding the ability of the human face to express the passions and emotions hidden in the breast. He said the countenance could disclose what was passing in the hear plainer than the tongue could.

"Now," he said, "observe my face—what does it express?"

"Despair!"

"Bah, it expresses peaceful resignation! What does this express?"

"Rage!"

"Stuff! It means terror! This!"

"Imbecility!"

"Fool! It is smothered ferocity! Now this!"

"Joy!"

"Oh, perdition! Any ass can see it means insanity!"

Expression! People coolly pretend to read it who would think themselves presumptuous if they pretended to interpret the hieroglyphics on the obelisks of Luxor—yet they are fully as competent to do the one thing as the other.

Mark Twain, Innocents Abroad, ch. 19.

What do you think? Did Twain have it right? If most people are this bad at reading faces, why do we put so much faith in a juror deciding that a witness's fidgeting and stammering means lying rather than sincerity or uncertainty rather than shyness?

Graphic: picture of young Mark Twain lifted from America.gov, Mark Twain Abroad.

Cross-Examination Handbook

2011-03-03T14:33:00.000-08:00

The other side puts a witness on the stand, and the jury the hears a selection of facts and impressions—generally the selection that the other side wants it to hear. Now you get the wonderful opportunity to cross-examine the witness. At the end of your cross, you'd like the other side's case to seem weaker and your own to seem stronger, of course, but how do you do that?

A new textbook offers guidance. Cross-Examination Handbook: Persuasion, Strategies and Techniques is by our neighbors Ronald H. Clark (Distinguished Practitioner in residence at Seattle U) and William S. Bailey (partner in Fury Bailey and part-time faculty at Seattle U and the UW) with George R. Dekle (professor at University of Florida).

A book that covers all of trial advocacy can only devote a chapter or two to cross-examination, but this one is all cross, all the time. (Bailey argues for a whole course on cross in this post.) The authors break cross-examination down into understandable pieces. The text is very accessible, even conversational in places.

How do you plan a cross? It might be obvious, but I hadn't really thought about starting with the closing argument: if I want to say ___ in closing, what do I need to get the witness to say on cross now?

The book discusses the difference between cross-examination when you are trying to get the witness to concede facts that will bolster your case and cross when you are trying to discredit the witness. And it offers tips for doing each.

You might use many techniques with one witness -- seeking factual concessions AND impeaching testimony on one point, for instance -- and this book also gives some tips for structuring your cross overall.

There are chapter previews and review lists with text boxes to help you study and retain the information. Several chapters illustrate points with two fictitious cases—a civil wrongful death case and a criminal armed robbery case—so you can see how the different cross techniques can be used with one set of facts and even one witness.

The authors also draw examples from real-life cases. Some are from history (Abraham Lincoln's legendary almanac cross-examination (more on that on the authors' blog) and Clarence Darrow's cross of William Jennings Bryan in the Scopes trial. Others are much more recent. Seattle sports fans might appreciate the examples from the cases involving the Sonics' leaving Seattle and Huskies football coach Rick Neuheisel being fired for gambling (March Madness anyone?). (Maybe these bits of Seattle sports history are still painful to some fans.)

It's been many, many years since I took Evidence. I'd find it very helpful to go over the list of common objections to cross (pp. 344-45) and the summaries of the evidence and ethics rules they stem from (pp. 346-54), as well as the advice about tactics for meeting objections (pp. 354-55).

For classroom use—or even dedicated self-education—there are lots of exercises to try, with supporting documents on a CD-ROM that's included with the book.

I'm a librarian, not a trial lawyer. For a practitioner's perspective, see this warm review on MS Litigation Review and Commentary.

The book has a website and a companion blog (Cross-Examination Blog).

The law library's copy hasn't been cataloged yet—I've had it in my living room so I could write this post—but it will be soon. It will be included in this catalog record.

"Voir Google"?

2011-03-01T10:07:00.000-08:00

Interesting article gives specific examples of attorneys weighing jurors based on online activity -- as well as judges' reactions to the practice. Internet v. Courts: Googling for the perfect juror, Reuters Legal, Feb. 17, 2011.

One 24-year-old was excluded from a jury because of "antibusiness sentiments" in blog posts.

[The excluded juror], for his part, said in an interview that while he understands why ConAgra's lawyers viewed his online activities as evidence of bias, he doesn't believe they should have been taken so seriously. "This is the Internet," he said. "It's a different realm. It's like a playground."

Thanks: Mike Meredith.

Jury Nullification Advocate With Court Pulpit Charged - NYTimes.com

2011-03-01T09:57:00.000-08:00

A former chemistry professor is charged with jury tampering because of his activity handing out brochures outside courthouses, telling potential jurors that they have the right to ignore the law if they disagree with it. Jury Nullification Advocate With Court Pulpit Charged, NYTimes.com, Feb. 25, 2011.

Thanks: Maureen Howard.

Using the Internet as a Tool for Cross-Examination

2011-03-01T09:38:00.000-08:00

An article offers tips for Using the Internet as a Tool for Cross-Examination, Law Technology News (N.Y.L.J.), March 1, 2011. I've seen a number of articles about using information found in, say, Facebook to impeach a witness. This article goes further in offering two sample series of questions, e.g.,

Q: Can we agree your recovery was a good one?

A: I wouldn't say that.

Q: You've certainly participated in some challenging activities, haven't you?

A: What do you mean?

Q: Like skiing, true?

A: I tried, but was unable to ski.

* * *

Eventually, the cross-examiner sets the trap and undoes the witness with a YouTube video, perhaps like this one:

(I have no reason to believe the skier in this video has ever been a plaintiff in a personal injury case or, if so, misled the jury about the extent of his injuries. Looks pretty good, doesn't he?)

Race and the Criminal Justice System

2011-02-18T12:13:00.000-08:00

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:

The Honorable Veronica Alicea-Galvan, Des Moines, Washington Municipal Court
Professor Katherine Beckett, UW Department of Sociology and UW Law, Societies & Justice Program
Officer Jeff Geoghagan, Seattle PD SWAT
Professor Alexes Harris, UW Department of Sociology
Anita Khandelwal, The Defender Association
Mark Larson, Chief Criminal Deputy of the King County Prosecuting Attorney's Office

Mary D. Fan

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.

"Hot Coffee" Documentary Challenges "Tort Reform"

2011-02-15T19:01:00.000-08:00

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.

Documentary on Media, Race, Crime, and Punishment

2011-02-13T21:48:00.000-08:00

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:

The Berkman Center for Internet & Society at Harvard Law School
The Center for Communications and Community at UCLA
The Center for Justice in Capital Cases at DePaul University, College of Law
The Center on the Media, Crime and Justice at the City University of New York’s John Jay College of Criminal Justice
The Center on Race, Crime and Justice at CUNY John Jay College of Criminal Justice
The Charles Hamilton Houston Institute for Race & Justice at Harvard Law School
The Department of Journalism at San Francisco State University
The Division of Cinema-Television at Southern Methodist University
USC Annenberg Institute for Justice and Journalism
The Kirwan Institute for the Study of Race and Ethnicity at Ohio State University
The Media and Culture Program in Bentley College’s English Department

More on The New Jim Crow

2011-02-13T21:42:00.000-08:00

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.

Angry Jurors Hope to Give Acquitted Teen Their Jury Pay

2011-02-11T14:12:00.000-08:00

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.

Judges Surveyed About Lawyers

2011-02-06T22:13:00.000-08:00

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.

exp	fed app	fed trial	state app	state trial
crim defense	19%	36%	29%	40%
prosecution	9%	14%	29%	44%

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.

Memoirs of Death Penalty Lawyering

2011-02-05T18:05:00.000-08:00

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.

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.

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. AndreaLyon.com (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.

Diversity Science Research

2011-02-01T12:10:00.000-08:00

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.

Originalism and the Jury

2011-01-31T19:36:00.000-08:00

Ohio State Law Journal has a symposium on "Originalism and the Jury":

Suja A. Thomas, Foreword, 71 Ohio St. L.J. 883 (2010).

Douglas A. Berman, Making the Framers’ Case, and a Modern Case, For Jury Involvement in Habeas Adjudication, 71 Ohio St. L.J. 887 (2010).

Brian T. Fitzpatrick, Originalism and Summary Judgment, 71 Ohio St. L.J. 919 (2010).

Judge Nancy Gertner, Juries and Originalism: Giving “Intelligible Content” to the Right to a Jury Trial, 71 Ohio St. L.J. 935 (2010).

Joan L. Larsen, Ancient Juries and Modern Judges: Originalism’s Uneasy Relationship with the Jury, 71 Ohio St. L.J. 959 (2010).

William E. Nelson, The Lawfinding Power of Colonial American Juries, 71 Ohio St. L.J. 1003 (2010).

James Oldham, On the Question of a Complexity Exception to the Seventh Amendment Guarantee of Trial by Jury, 71 Ohio St. L.J. 1031 (2010).

Gene Schaerr and Jed Brinton, Business and Jury Trials: The Framers’ Vision Versus Modern Reality, 71 Ohio St. L.J. 1055 (2010).

Suja A. Thomas, A Limitation on Congress: “In Suits at common law”, 71 Ohio St. L.J. 1071 (2010).

Juicy stuff for constitutional law, legal history, and trial practice buffs!

I will never complain about jury instructions again! «

2011-01-24T16:03:00.000-08:00

Justin Walsh, writing on The Amateur Law Professor blog, shares a choice jury instruction from 1869 here: I will never complain about jury instructions again! «

An iPad in Your Trial Briefcase?

2011-01-21T12:59:00.000-08:00

Two new iPad apps are designed to help lawyers keep track of jurors during selection and trial. A reviewer says they seem quite promising -- much better than moving sticky notes around a legal pad! Each app is just $9.99, so they're pretty cheap to try out (if you already have an iPad, of course). Ted Brooks, Selecting and Monitoring a Jury on an iPad, Legal Technology News, Jan. 21, 2011.

The reviewer was much more cautious about a couple of iPad apps for managing and displaying trial exhibits. Ted Brooks, Two iPad Apps Make Their Cases for Trial, Legal Technology News, Jan. 11, 2011. One of those apps is also $9.99; the other is $89.99.

Graphic: screen shot of Jury Tracker app from Legal Technology News review.

Loans for Lawsuits: High Price, Little Regulation

2011-01-17T13:19:00.000-08:00

The New York Times and the Center for Public Integrity (a nonprofit for investigative journalism in DC) took a look at the industry that lends money to plaintiffs until their settlements or awards come in. The interest rates are very high -- a $10,000 loan can become a $30,000 debt very quickly -- but the industry says they are justified because of the risk that the plaintiffs lose their cases. Others say the practice is abusive. See Benjamin Appelbaum, Lawsuit Loans Add New Risk for the Injured, Jan. 16, 2011.

Articles on E-Discovery Sanctions, Federal District Courts, and More

2011-01-16T18:40:00.000-08:00

A recent study finds increasing sanctions of lawyers and their clients for e-discovery violations. Dan H. Willoughby, Jr., Rose Hunter Jones & Gregory R. Antine, Sanctions for E-Discovery Violations: By the Numbers, 60 Duke L.J. 789 (2010). You can find a brief discussion of this 76-page article here: Study: Lawyer Sanctions Over Electronic Discovery on the Rise - Law Blog - WSJ, Jan. 13, 2011.

That article caught the eye of the Wall Street Journal's blogger, but it's just one in a special symposium issue: the 2010 Civil Litigation Review Conference. Here are the rest of the articles in that issue:

John G. Koeltl, Introduction, Progress in the Spirit of Rule 1 ... 537

John H. Beisner, Discovering a Better Way: The Need for Effective Civil Litigation Reform ... 547

Paul D. Carrington, Politics and Civil Procedure Rulemaking: Reflections on Experience ... 597

Steven S. Gensler, Judicial Case Management: Caught in the Crossfire ... 669

Patrick E. Higginbotham,The Present Plight of the United States District Courts ... 745

Emery G. Lee III & Thomas E. Willging, Defining the Problem of Cost in Federal Civil Litigation ... 765

For even more scholarship on civil litigation, see the shorter e-only articles on Duke Law Journal's Workshop site.

Patrick E. Higginbotham has been a federal judge for 35 years (N.D. Tex. 1975-82, 5th Cir. 1982-present), so I was curious about what he thinks the plight of federal district courts is. He observes that conducting trials has become a very small part of the work of federal trial court judges -- the average district judge has almost 300 days a year with no trials. While some see this as a good thing, Judge Higginbotham says it is "a manifestation of the illness" he discusses.

He argues "that federal trial courts are now more like administrative agencies than trial courts in their present efforts to discharge their duty to decide cases or controversies, and that we are witnessing the death of an institution whose structure is as old as the Republic."

The changes Judge Higginbotham examines are the rise of arbitration and other ADR, the decline of attorneys with trial experience, the loss of the 12-person jury, and "the drift of the federal courts to the civil law model and their capture by the administrative model." He urges a return to the trial model.

Thanks: Aaron McElhose

Judy Clarke: Loughner's Lawyer Defended the Unabomber - TIME

2011-01-15T18:54:00.000-08:00

Judy Clarke has been appointed to represent a number of unpopular defendants: Ted Kaczynski (the Unabomber), Susan Smith, Zacarias Moussaoui, Timothy McVeigh, Eric Robert Rudolph. And now she has been appointed to represent Jared Loughner. See Judy Clarke: Loughner's Lawyer Defended the Unabomber - TIMEJan. 12, 2011; Loughner’s Lawyer Is Called a Master Strategist, N.Y. Times, Jan. 10, 2011.

For a very interesting account of the representation of Kaczynski, see Michael Mello, United States v. Kaczynski: Representing the Unabomber, in Legal Ethics Stories (Deborah L. Rhode & David Luban eds., 2006), KF306.A4 L43 2006 at Reference Area.

Is There Such a Thing as Social Network Privilege? « Law, Technology & Arts Blog

2011-01-15T15:28:00.000-08:00

In Is There Such a Thing as Social Network Privilege? « Law, Technology & Arts Blog, Nov. 4, 2010, Susuk Lim discusses a personal injury case in which "a Pennsylvania court not only concluded that information posted on one’s profile lacked protection, but that login credentials to the profiles themselves are not confidential." I've seen lots of articles about litigators using Facebook and other sites, but I hadn't seen discovery of the other party's passwords in order to read them. Interesting.

When Jurors Discriminate

2011-01-12T09:18:00.001-08:00

When Jurors Discriminate is the jury tip of the month from jury consultant Harry Plotkin.

The best and only way to shift your jurors' focus away from your client and onto your case is to make your case, from opening statement to closing, about the jurors themselves, not your individual client. Only by persuading your jurors that this could have happened to anyone -- even the jurors themselves -- will you convince them to ignore how they feel about your client. Your jurors may not want to give your client justice, but no juror wants to deny themselves justice, even by proxy.

Law and the Brain

2011-01-10T19:06:00.000-08:00

An intriguing conference, Law & the Brain: How Recent Advances in Neuroscience Impact the Law, will look at a number of topics in New York in March. Keynote presentations relevant to trial practice include:

Implications of Neuroscience for the Courtroom - Hon. Jed Rakoff, JD, United States District Judge for the Southern District of New York
False Memories and Witness Reliability - Elizabeth Loftus, PhD, Distinguished Professor; Professor, Psychology & Social Behavior; Professor Criminology, Law & Society; Professor, Cognitive Sciences; Professor, School of Law, Director, Center for Psychology & Law; Fellow, Center for the Neurobiology of Learning and Memory and Professor of Law, University of California, Irvine
Emotions, Memory and Bias: Implications for the Courts - Elizabeth Phelps, PhD, Professor of Psychology, New York University

Perfect storm hits legal aid

2011-01-04T09:30:00.000-08:00

The National Law Journal reports on the funding crisis in legal aid around the country. Karen Sloan, Perfect storm hits legal aid, Nat'l L.J., Jan. 3, 2011. State and local government funding is down (often by a lot) and IOLTA funds are down. Federal funding is up a little, but not enough to make up for the losses.

Defending Gary Ridgway

2010-12-30T10:14:00.001-08:00

"The Green River Killer" killed dozens of women in South King County in the early 1980s. Despite intensive work by the King County Sheriff's Office, no one had been arrested. Until November 2001, when officers announced that they had him.

Defending Gary* picks up there, as Mark Prothero, a public defender away from his office, hears the rumor that someone has been arrested. One friend says that there's DNA evidence and speculates that Prothero will get the case, since he's "the DNA guy" in his office (Associated Counsel for the Accused).

Prothero became co-lead counsel, along with Tony Savage, a private lawyer whom the family hired. (Once Ridgway's house was sold to pay Savage's retainer, he was indigent and eligible for public defense.) The team eventually included eight lawyers, plus investigators and consultants.

With his client's permission to use confidential communications, Prothero tells a compelling story -- not just about a serial killer, but about how the legal team worked on his defense. Prothero was aided in his writing by Carlton Smith, an experienced journalist who had already written best-selling books about the Jon-Benet Ramsay case and even, years before, the Green River Killer case (The Search for the Green River Killer, 1991). And so the book has that page-turning, hard-to-put-down style of the best true crime writing.

What we don't have is a great courtroom drama. Why? Because this case never went to trial.

The prosecution has such good physical evidence on seven charged murders that the defense thought that the best way to save Ridgway's life would be to plea bargain to avoid the death penalty. And the prosecution had so little evidence on forty-some other murders that solving those crimes with Ridgway's confession would be worth the plea bargain.

And so defense and prosecution spent months observing detectives questioning Ridgway -- and the book gives a lot of detail about those interviews using official transcripts. Unlike the diabolically brilliant serial killers you sometimes see in movies, Ridgway was generally muddle-headed and inarticulate, but the detectives eventually got the details they needed to close a lot of cases and bring some closure to the families of the young women Ridgway had killed.

The handling of this mammoth case -- by prosecution, defense, and presiding judge -- was so good that the King County Bar Association honored all: Outstanding Lawyer: Prosecution and Defense Teams in the Gary Ridgway Trial, Bar Bull., June 2004; Outstanding Judge: Honorable Richard A. Jones, King County Superior Court, Bar Bull., June 2004.

Ridgway was in the news again last week: Auburn skull, bones ID'd as likely Green River victim, Seattle Times, Dec. 23, 2010. The newly discovered victim, Rebecca Marrero, was not among the 48 murders covered by Ridgway's guilty plea.

This book is in our Good Reads collection. As should be obvious, "Good Reads" doesn't mean "happy topics." It does mean interesting, compelling books, often on important issues, and this one fits the bill.

* Defending Gary: Unraveling the Mind of the Green River Killer, by Mark Prothero with Carlton Smith (2006), HV6533.W2 P76 2006 at Good Reads.
The publisher's page for the book includes a free excerpt.

The New Jim Crow: Mass Incarceration in the Age of Colorblindness

2010-12-16T11:21:00.000-08:00

If this important and powerful book were a car, it would have the bumpersticker that says "IF YOU'RE NOT OUTRAGED, YOU'RE NOT PAYING ATTENTION."

In The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2009), Michelle Alexander describes War on Drugs juggernaut that has filled our prisons, mostly with people of color.

The statistics are staggering. In the last 30 years, the U.S. prison population went from about 300,000 to more than 2 million. Although President Reagan was the President who declared the War on Drugs (with the concomitant political and media rhetoric about the "scourge of crack"), the greatest increase in incarceration rates was during the Clinton Administration.

Is this a racial problem just because African Americans are more involved in drugs? No. Alexander cites study after study indicating that the percentage of people who use illegal drugs is about the same in all racial groups. Since drug users tend to get their drugs from dealers of the same race, there are plenty of white dealers. White teenagers are even a little more likely than black teenagers to deal drugs. Emergency room statistics show more whites than blacks with overdoses.

So why are most of the people in prison for drug use black? Alexander exposes the myriad ways the system works against them -- for example, law enforcement stopping people based on race, raiding black neighborhoods, and relying on informants who only know people of their own race; prosecutors exercising their discretion to "load up" charges to get plea bargains; inadequate public defender services; and mandatory minimum sentences and three strikes rules creating incredibly long sentences.

The damage lasts well beyond the prison term. Alexander devotes a chapter to all the ways that a felony record (even for possession of a few ounces of marijuana) can constrain a person's life: employment, housing, voting.

Alexander was at the law school last spring. In the law school's multimedia gallery, you can find a transcript of her presentation, as well as video and audio recordings.

The publisher's page about the book is here. The library's copy is at HV9950 .A437 2010 at Classified Stacks. (It's checked out as of this writing, but won't always be -- and it's available in other libraries, too.)

Should Jurors Use the Internet?

2010-12-07T15:25:00.000-08:00

In Should Jurors Use the Internet? (National Law Review, Dec. 6, 2010), Gareth Lacy observes that stronger admonishments might be counterproductive: An instruction that "fails to explain why the 'system of justice' requires restricting access to outside information . . . will likely continue to feed jury -- and public -- mistrust for the legal system."

Responding to the assumption that any outside information would bias jurors, Lacy takes a look at some of the studies.

Researchers have also found that when juries learn substantial and contrary information from evidence and judicial instructions during trial, they are capable of displacing information received before trial. In other words, prior beliefs are diluted by new, relevant information. When trial evidence is strong, this can reduce the effect of bias and external information: "the effect of irrelevant, inadmissible, or biasing information is reduced in its effect to the degree that relevant, probative evidence is available for the jurors’ consideration." Again, this suggests that courts should manage the flow of information rather than make unrealistic efforts to weed out all juror exposure to the Internet.

(citations omitted). Lacy recommends some alternatives to finger-wagging admonishments:

Jurors are not going to stop looking at outside information. The best way to keep jurors away from Wikipedia would be to sequester them. But sequestration is rarely practical on a large scale because it is prohibitively expensive and tends to promote mistrust for the jury system. A more realistic response would be for attorneys and courts to conduct advance Internet research to identify what information about their case is available online, analyze that information, and then deal with it during trial. Another realistic response would be to give jurors the tools they need to make informed decisions in court so they do not need to conduct outside research.

(citations omitted).

Gareth Lacy is a UW 3L. This article was a winner of the National Law Review's law student writing competition. Congrats, Gareth!

Washington's 3 Law Schools Launch Race & Crim Justice Task Force

2010-12-07T09:45:00.000-08:00

The law schools at Gonzaga University, Seattle University, and the University of Washington are forming a Race and the Criminal Justice System Task Force in partnership with King County Superior Court Judge Steven C. González, the chair of the Washington State Access to Justice Board. An op ed piece by the schools' deans explains: George Critchlow, Mark Niles & Kellye Y. Testy, Ensuring the promise of "Equal Justice Under Law", Seattle Times Newspaper, Dec. 6, 2010.

Snitching: Criminal Informants and the Erosion of American Justice

2010-11-19T10:06:00.001-08:00

Informants are an important part of criminal investigations and prosecutions. In exchange for leniency or other benefits, one criminal can provide information that helps to convict others. But the use of informants bears risks for the integrity of the system and the safety of the community. Alexandra Natapoff, a professor at Loyola L.A., explores the practice and recommends reforms in Snitching: Criminal Informants and the Erosion of American Justice (KF9665 .N38 2009 at Classified Stacks).

Rather than summarize, let me refer you to the detailed table of contents, the publisher's summary, and the introduction.
(In Snitching, Natapoff discusses only criminal informants. "Snitching" does not apply to the testimony of victims, bystanders, or other witnesses.)

Some of the problems discussed are familiar: snitches are unreliable; many wrongful convictions were based on testimony from informants; not all defendants have the same access to the benefits available to some informants. Natapoff also looks beyond criminal justice to look at the effect on poor, urban communities where a significant number of people are informing or being pressured to inform. Criminal justice may be the residents' dominant experience of government, and they see crimes that go unpunished (because the perpetrators cut deals); moreover, violence escalates.

I enjoyed the whole book, but if you have limited time, just read the recommendations in Chapter 8.

For more, see Natapoff's blog, Snitching.

One thing I appreciated in the book was the treasure trove of endnotes. Here are some of the intriguing sources Natapoff cites:

Laurence A. Benner, Racial Disparity in Narcotics Search Warrants, 6 J. Gender, Race & Just. 183 (2002)

Stephanos Bibas, Transparency and Praticipation in Criminal Procedure, 81 N.Y.U. L. Rev. 911 (2006)

Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463 (2004)

Darryl Brown, The Decline of Defense Counsel and the Rise of Accuracy in Criminal Adjudicaation, 93 Cal. L. Rev. 1585 (2005)

I. Bennett Capers, Policing, Race, and Place, 44 Harv. Civ. Rts.-Civ. Lib. L. Rev. 43 (2009)

Steven M. Cohen, What Is True? Perspectives of a Former Prosecutor, 23 Cardozo L. Rev. 817 (2002)

David Cole, No Equal Justice: Race and Class in the American Criminal Justice System (1999), HV9950 .C58 1999 at Classified Stacks

Stanley Z. Fisher, Just the Facts, Ma'am: Lying and the Omission of the Exculpatory Evidence in the Police Reports, 28 New England L. Rev. 1 (1993)

Stepehn J. Fortunato, Jr., Judges, Racism, and the Problem of Actual Innocence, 57 Maine L. Rev. 481 (2005)

Joseph Goldstein, Police Discretion Not to Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Justice, 69 Yale L.J. 543 (1960)

Samuel R. Gross & Barbara O'Brien, Frequency and Predictors of False Conviction: Why We Know So Little, and New Data on Capital Cases, U. Mich. Law Sch. Public Research Paper no. 93, Oct. 2007

George C. Harris, Testimony for Sale: The Law and Ethics of Snitches and Experts, 28 Pepp. L. Rev. 1 (2000)

Randall Kennedy, Race, Crime, and the Law (1997), KF9223 .K43 1997 at Classified Stacks

Susan S. Kuo: Official Indiscretions: Considering Sex Bargains with Government Informants, 38 U.C. Davis L. Rev. 1643 (2005)

Abner J. Mikva, The Treadmill of Criminal Justice Reform, 43 Cleveland St. L. Rev. 5 (1995)

Caren Myers Morrison, Privacy, Accountability, and the Cooperating Defendant: Towards a New Role for Internet Access to Court Records, 62 Vanderbilt L. Rev. 921 (2009).

Jeffrey S. Neuschatz et al., The Effects of Accomplice Witnesses and Jail-house Informants on Jury Decision Making, 32 Law & Hum. Behav. 137 (2008)

Daniel Richman, Prosecutors and Their Agents, Agents and Their Prosecutors, 103 Columbia L. Rev. 749 (2003)

Daniel Richman & William J. Stuntz, Al Capone's Revenge: An Essay on the Political Economy of Pretextual Prosecutions, 105 Colum. L. Rev. 583 (2005)

Amanda J. Schreiber, Dealing with the Devil: An Examination of the FBI's Troubled Reslationship with Its Confidential Informants, 34 Colum. J.L. & Soc. Probs. 301 (2001)

Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (2007) (available from UW and Summit Libraries)

David Alan Sklansky, Police and Democracy, 103 Mich. L. Rev. 1699 (2005)

Christopher Slobogin, Testifying: Police Perjury and What to Do About It, 67 U. Colo. L. Rev. 1037 (1996)

William J. Stuntz, Plea Bargaining and Criminal Law's Disappearing Shadow, 117 Harv. L. Rev. 2548 (2004)

William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev.505 (2001)

Andrew E. Taslitz, Wrongly Accused Redux: How Race Contributes to Convicting the Innocent: The Informants Example, 37 Sw. U. L. Rev. 101 (2008)

George C. Thomas & Richard A. Leo, The Effect of Miranda v. Arizona: "Embedded" in Our National Culture?, 29 Crime & Justice 203 (2002)

Sandra Guerra Thompson, Beyond a Reasonable Doubt? Reconsidering Uncorroborated Eyewitness Identification Testimony, 41 U.C. Davis L. Rev. 1487 (2008).

Stephen S. Trott, Words of Warning for Prosecutors Using Criminals as Witnesses, 47 Hastings L.J. 1381 (1986)

Tom R. Tyler, Why People Obey the Law (1990), K250 .T95 1990 at Classified Stacks

Tom Tyler & Jeffrey Fagan, Legitimacy and Cooperation: Why Do People Help the Police Fight Crime in Their Communities?, Columbia Public Law Research Paper No. 06-99 (April 1, 2008)

Ellen Yaroshefsky, Cooperation with Federal Prosecutors: Experiences of Truth Telling and Embellishment, 68 Fordham L. Rev. 917 (1999)

Do I have time to read all of these law review articles and books? Heck, no. But I might look some of them up sometime, and even knowing about them is worthwhile on some level. And since I've listed them here, maybe someone who reads this post will have a head start on some interesting and important research.

Holder reverses Bush policy on DNA waivers

2010-11-19T08:30:00.000-08:00

Since 2004, the Justice Dept has had a policy encouraging prosecutors to have defendants who entered into plea bargains to waive their right to have DNA testing, even of new evidence. Now that policy has been reversed. Jerry Markon Attorney General Eric Holder reverses Bush policy on DNA waivers, Wash. Post. Nov. 18, 2010.

The Bush Administration opposed the Innocence Protection Act of 2004, Pub. L. 108-405, title IV, codified at 18 U.S.C. § § 3600, 3600A. And so after the law was passed, this policy was put in place.

Holder's memorandum is here.

Appellate Lawyer of the Week: Eric Schnapper, University of Washington Law School

2010-10-27T13:23:00.000-07:00

The National Law Journal's website features Appellate Lawyer of the Week: Eric Schnapper, University of Washington Law School, Oct. 27, 2010. Prof. Schnapper, a veteran of Supreme Court practice, has three oral arguments coming up.

Free CLE on Wrongful Convictions

2010-10-26T12:39:00.001-07:00

Friday Oct. 29, the UW School of Law presents a free CLE, Justice for Washington's Wrongly Convicted? The registration page says that the deadline for signing up was yesterday, but I'm told that there's still room. I'll be there -- will you?

Boys accused of violent robbery on bus may not be tried

2010-10-25T07:22:00.000-07:00

Boys accused of violent robbery on bus may not be tried, Seattle Times, Oct. 25, 2010.

Two young boys accused of a violent robbery aboard a Metro Transit bus two months ago remain jailed — although it's still unclear whether either will face prosecution.

Because the boys are 10 and 11, King County prosecutors have to prove in court that they have the intellectual, moral and psychological development to fully understand the crime they're accused of committing. Before that determination can be made, their defense attorneys are collecting evidence, including having the boys meet with mental-health professionals, aimed at proving they are too young to be prosecuted.

County official pulled thousands of elderly residents from jury summons pool

2010-10-25T07:09:00.000-07:00

County official pulled thousands of elderly residents from jury summons pool, The Daily News (Longview), Oct. 23, 2010.

An employee in the Cowlitz County Superior Court Clerk's office has been purging the names of people 80 and older from the local jury pool, raising questions about the fairness of recent trials, county officials said Friday.

The news has prompted the delay of several trials — including a murder trial - until authorities are sure that the jury pool has been restored to a full list of eligible jurors, the officials said.

Begining in July, the jury management clerk, Sue Anderson, removed the names from a master list of potential jurors in an effort to save money, officials said. But in doing so, she violated a key [tenet] of the justice system: that defendants are entitled to a trial by jury of their peers.

Justice for Washington's Wrongly Convicted?

2010-10-18T11:23:00.000-07:00

The University of Washington School of Law is presenting a half-day program on wrongful convictions and the prospect of compensation for the exonerated. Justice for Washington's Wrongly Accused? will take place Fri., Oct. 29, 2010, 1:30-5:00 p.m.

Jack Hamann, author of On American Soil: How Justice Became a Casualty of World War II, is the keynote speaker, followed by Lara Zarowsky, policy staff attorney, Innocence Project Northwest, and a panel of three Washington who were exonerated after being imprisoned for crimes they did not commit.

The program has been approved for 2.75 CLE credits. It is free, but registration is required.

Judge and Parties OK with the Juror's Blog

2010-10-18T10:13:00.000-07:00

A juror in Queens blogged about his experience, from waiting in the jury room, through the trial. Prof. John Clark, who teaches criminal justice at the Univ. of Texas at Tyler, came across the blog and alerted the court.A Juror’s Blog Chronicle Stirs an Age-Old Question, N.Y. Times, Oct. 17, 2010.

To Professor Clark, Mr. Slutsky’s blog posts clearly "crossed the line."

Jurors are not allowed to talk to one another about the case, "much less go on the World Wide Web and discuss it with everybody," he said.

No one involved in the case — the judge, the lawyers, the parties or Mr. Slutsky himself — found Mr. Slutsky’s blog entries troubling.

"I didn’t do anything wrong," said Mr. Slutsky, 61, of Flushing. "I didn’t blog about the actual case, just about the jury process. I specifically said in my blog that I’m not allowed to talk about the case."

Trial Tip from History (Lady Chatterly's Lover Trial, 1960)

2010-10-11T18:34:00.000-07:00

We're coming up on the 50th anniversary of the trial of Penguin Books for publishing Lady Chatterly's Lover.

The prosecutor was Mervyn Griffith-Jones.

In his opening statement, he tried to defuse the antiquated impression he must have realized he made [in his wig and gown], assuring the jury they were not being asked to "approach this matter in any priggish, high-minded, super-correct, mid-Victorian manner."

He went on to pose a series of rhetorical questions, the last of which, in the judgment of many commentators, doomed his case. Supporting this judgment is a document the defense had prepared, now in the Penguin archives. It is a list of the members of the jury and alternates, including their occupations. Among them were driver, cabinet fitter, dock laborer, teacher, dress machinist, none, housewife, butcher, and timber salesman. It is amusing to imagine the reaction of, say, Robert F. Bowman, the driver, as Griffith-Jones asked his questions:

"Would you approve of your young sons, young daughters -- because girls can read as well as boys -- reading this book? Is it a book you would have lying around in your own house? Is it a book you would even wish your wife or your servants to read?"

There was a titter in the courtroom, immediately silenced by the judge.

Tip: If you're trying to seem like a regular bloke, it's best not to assume that everyone has servants.

The trial, in late October and early November 1960, included testimony by writers, professors, ministers, and others. On November 4, the jury took just three hours to return a verdict of not guilty and the book sold briskly. This victory for the publisher "did not mark an immediate end of literary censorship in Britain" - but the climate changed soon after. Ben Yagoda recounts this historic trial in Trial and Eros, Am. Scholar, Autumn 2010.

Litigation Not Just About Winning

2010-10-05T09:14:00.000-07:00

Jules Lobel (Univ. of Pittsburgh and Center for Constitutional Rights) spoke yesterday afternoon on "Success Without Victory: Progressive Lawyering in an Era of Judicial Conservatism." He discussed not only his own career as a public interest lawyer but also the longer reach of history. Salmon P. Chase lost his cases on behalf of fugitive slaves before the Civil War, but the cases drew attention to the unjust situation and his arguments were published and circulated widely by abolitionists. Susan B. Anthony lost her case arguing for women's right to vote, but publicized her cause. Lobel says public interest lawyers should certainly try to win cases, but invites us to think beyond the outcome of any one case.

For more, see Jules Lobel, Success Without Victory Lost Legal Battles and the Long Road to Justice in America, K184 .L63 2003 at Classified Stacks. The publisher's description is here.

You might also be interested in this book Lobel edited: A Less Than Perfect Union: Alternative Perspectives on the U.S. Constitution, KF4550.A2 L47 1988 at Classified Stacks.

Social Media in Court

2010-10-02T10:01:00.000-07:00

The Conference of Court Information Officers conducted a nationwide study of how social media affects the administration of justice: New Media and the Courts: The Current Status and a Look at the Future (Aug. 26, 2010). It discusses these media:

social media profile sites (Facebook, Myspace, et al.)
microblogging (e.g., Twitter)
smart phones, tablets, and notebooks
monitoring and metrics
news sharing (blogs, RSS feeds, etc.)
visual media sharing (YouTube, Flickr, etc.)
wikis

Some of the findings (lifted from the executive summary, pp. 9-10):

About 40 percent of responding judges reported they are on social media profile sites, the majority of these on Facebook. This is almost identical to the percentage of the adult U.S. population using these sites.

Judges who are appointed and do not stand for re-election were much less likely to be on social media profile sites. About 9 percent from non-elected jurisdictions reported they were on these sites.

Nearly half of judges (47.8 percent) disagreed or strongly disagreed with the statement "Judges can use social media profile sites, such as Facebook, in their professional lives without compromising professional conduct codes of ethics."

Judges appear to be more comfortable with using these sites in their personal lives, . . .

More than half (56 percent) of judges report routine juror instructions that include some component about new media use during the trial.

A very small fraction of courts (6.7 percent) currently have social media profile sites like Facebook; 7 percent use microblogging sites like Twitter; and 3.2 percent use visual media sharing sites like YouTube.

A smaller proportion of judges than might be expected (9.8 percent) reported
witnessing jurors using social media profile sites, microblogging sites, or smart
phones, tablets or notebooks in the courtroom.

Almost all (97.6 percent) respondents agree that judges and court employees should be educated about appropriate new media use and practices.

Prof. Anita Ramasastry has written commentaries on Findlaw about many aspects of social media in the courts:

Facebook and MySpace Postings in Court: In a Lawsuit, Privacy Settings May Not Matter, Sept. 29, 2010 (discovery),

Googling Potential Jurors: The Legal and Ethical Issues Arising from the Use of the Internet in Voir Dire, July 30, 2010,

Why the Judge in the Casey Anthony Trial Was Right to Recuse Himself Due to His Remarks to a Blogger, May 6, 2010.

A D.A. Puts Drunk Drivers on Twitter: Why The Policy Probably Won't Deter Future Offenders, Jan. 12, 2010.

Should Courtroom Proceedings Be Covered Via Twitter? Why the Better Answer is "Yes", Dec. 29, 2009.

Why Florida's Ban on Judges' "Friending" Lawyers on Facebook Is the Right Call, Dec. 15, 2009.

Why Courts Need to Ban Jurors' Electronic Communications Devices, Aug. 11, 2009.

Irving Younger -- Still Teaching

2010-09-07T11:51:00.000-07:00

Irving Younger was a giant of trial advocacy -- professor (NYU, Cornell, Minnesota), practitioner, judge (City of New York, 1969-74). He was a masterful teacher and was famous for his lectures on evidence, discovery, and other topics.

Even though Younger died in 1988, he is still teaching, via recordings. See (and hear!) Trial Evidence Series (14 videotapes), KF8935 .Y68 1982 at Reference Area; The Ten Commandments for Cross-Examination (DVD), KF8920 T46 2000 at Reference Area.

Now the ABA Section of Litigation has published a book collecting a number of his speeches: The Irving Younger Collection: Wisdom & Wit from the Master of Trial Advocacy (Stephen D. Easton ed., 2010), KF213.Y68 E17 2010 at Classified Stacks. You can read his observations and tips on discovery, expert witnesses, scientific evidence, hearsay, jury selection, and cross-examination. You can also read his speeches on historic cases: Ulysses, Alger Hiss, and Erie.

The tone is casual, conveying messages through war stories, quips, and examples. Here's a passage I flipped to:

Lewis on cross-examination: "When this man jumped up on the running board, was he disguised in any way?"

"No."

"What was he wearing?"

"What I've told you -- khaki pants and a T-shirt."

"By a T-shirt, do you mean man's underwear, cut pretty short at the arms?"

"Yes."

"Did you get a good look at those arms?"

"I sure did. One of those arms was holding a gun to my head."

"Was there anything unusual about that man's arms?"

"No."

And at that point, Lewis turned to DeSisto and said,"DeSisto, stand up. Take off your jacket." He took it off. "Roll up your sleeves." He rolled up his sleeves and there was an audible gasp in the courtroom because from wrist to shoulder, both arms were tattooed like the tattooed man in the circus. The government stipulated that DeSisto had been tattooed in that fashion at the age of 20 some odd; he was now well into his forties. And Lews sat down. That's it. What more can you do on cross-examination? You have raised a serious question not as to whether there was a hijacking, not as to whether somebody didn't jump up on the running board, but as to whether Wimpy has identified the man who did it correctly.

p. 258.

If you want to be a trial lawyer or if, like me, you're just interested in trials, The Irving Younger Collection is worth checking out.

Magistrate Scolds Lawyers for Deposition Bickering

2010-08-05T10:24:00.000-07:00

United States Magistrate Peggy A. Leen was faced with a 185 pages in which lawyers accused one another of behaving badly at depositions. They had behaved badly so she admonished them for it. But she also made it clear that she had better things to do than wade through hundreds of pages of tattling and whining. Mazzeo v. Gibbons, LV Police: Lawyers dressed down, Las Vegas Review-Journal, Aug. 3, 2010.

Judge Leen's order is here. Its conclusion:
The exchanges related in excruciating, repetitive detail in the moving and responsive papers and their attachments were painful to read. If I was an elementary school teacher instead of a judge I would require both counsel to write the following clearly established legal rules on a blackboard 500 times:

I will not make speaking, coaching, suggestive objections which violate Rule 30(c)(2). I am an experienced lawyer and know that objections must be concise, non-argumentative and non-suggestive. I understand that the purpose of a deposition is to find out what the witness thinks, saw, heard or did. I know that lawyers are not supposed to coach or change the witness’s own words to form a legally convenient record. I know I am prohibited from frustrating or impeding the fair examination of a deponent during the deposition. I know that constant objections and unnecessary remarks are unwarranted and frustrate opposing counsel’s right to fair examination. I know that speaking objections such as "if you remember," "if you know," "don’t guess," "you’ve answered the question," and "do you understand the question" are designed to coach the witness and are improper. I also know that counsel’s interjection that he or she does not understand the question is not a proper objection, and that if a witness needs clarification of a question, the witness may ask for the clarification.
Although these papers, and the conduct they relate, make me feel like a school marm scolding little boys, I am the judge whose duty it is to decide this motion. Accordingly, Mr. Kossack and Mr. Cannon are admonished for engaging in conduct which I know you know violates Rule 30(c)(2). You are better men and better lawyers than the conduct in which you have engaged illustrates.
Judge Leen very clearly was fed up with these lawyers, but that last sentence is classy.

Recusal Because of Remarks at Conference?

2010-08-05T10:10:00.000-07:00

In a biotech case -- about the patentability of two breast cancer genes -- plaintiffs are asking the chief judge of the Federal Circuit to recuse himself, even before the panel is selected, because of remarks he made at a conference about the issue. Citing Possible Bias, ACLU Asks Rader to Recuse Himself in Myriad Case, Corporate Counsel (law.com), Aug. 5, 2010.

Howard on Prosecutors' Peremptory Challenges

2010-06-28T15:01:00.000-07:00

Professor Maureen A. Howard tackles the use of peremptory challenges in criminal cases. Taking the High Road: Why Prosecutors Should Voluntarily Waive Peremptory Challenges, 23 Geo. J. Legal Ethics 369 (2010), available on LexisNexis, Westlaw.

Using published studies and her own trial experience, Professor Howard questions the usefulness of peremptory challenges.

She moves on to explore the costs of their use: limiting the breadth of community participation and increasing the public's perception that lawyers are manipulating the system. She argues that prosecutors should voluntarily waive their right to use peremptory challenges.

Responding to potential concerns that giving up peremptory challenges would allow biased jurors to serve, Professor Howard says that the solution would be "a broader definition and application of a challenge for cause, not necessarily retention of the current peremptory challenge practice." (p. 415)

She concludes:

The use of peremptory challneges has questionable value and risks violating the constitutional rights of both defendants and prospective jurors. . . . Instead of waiting for judges and legislators to respond to the decades of criticism levied at the use of peremptory challenges and the narrow definition and application of for-cause challenges, the prosecutor should 'take the high road' and waive peremptories.

Can We Improve Judicial Selection in Washington?

2010-06-28T14:35:00.000-07:00

Unlike federal judges, who are appointed by the President with the advice and consent of the Senate, our state judges are elected by the people. But in practice, most of them are first appointed by the governor to fill mid-term vacancies and only face election if they are opposed at the end of their terms. There is very little public scrutiny of the appointment process, and when elections roll around, many voters don't have good tools for evaluating candidates. Professor William R. Andersen turns his attention to these issues in Judicial Selection in Washington -- Taking Elections Seriously, 33 Seattle U. L. Rev. 605 (2010), available on HeinOnline, LexisNexis, Westlaw.

Professor Andersen suggests that some problems cannot be fixed within the framework of our election system, but some can.

Some may decry big-money campaigns for judgeships, but Supreme Court precedent limits what can be done. And if there are to be elections, then judges will have to participate in campaigning -- raising money, giving speeches, and so on. To address problems resulting from this aspect of electing judges, Professor Andersen recommends revising the rules for recusal, and he says that "serious work is going on in professional bodies to make necessary revisions." (p. 609)

To make selection of judges more informed and transparent, Andersen urges "a borad-based and intentionally diverse citizen's commission charged with evaluating judicial candidates." (p. 614)

He also suggests regular, objective performance evaluations of judges, and he reports that systems for evaluating judges are being tried around the country (p. 612), citing the National Center for State Courts page on Judicial Performance Evaluation, which links to information from 18 states, including Washington. (By the way, the NCSC link is broken for Washington State's Walsh Commission Report, The People Shall Judge: Restoring Citizen Control to Judicial Selection (1996), but this link works. Prof. Andersen was a member of the Walsh Commission.)