Has the Supreme Court Undermined Civil Rights Enforcement?

Congress is considering legislation to undo the Supreme Court's holdings in Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009). The Washington Independent reports:

Does a House bill about legal civil procedures provide a way to restore the protection of civil rights in America, or is it an unwarranted gift to trial lawyers that could be “paralyzing if not deadly” to the federal government?

* * *

As in the Senate, House lawmakers appear divided along party lines. Democrats and their witnesses say that the Supreme Court’s recent decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal have gutted the civil rights and antitrust laws and imposed an unfair and often insurmountable burden that will doom many valid claims. Republicans and their witnesses, meanwhile, say the court did the right thing to help reduce frivolous lawsuits that destroy small businesses and drag busy government officials into court unnecessarily.

Has the Supreme Court Undermined Civil Rights Enforcement?, Washington Independent, Dec. 17, 2009.

One of the witnesses was Prof. Eric Schnapper of the University of Washington, who argued that Congress should act quickly to overturn Iqbal and Twombly. whose prepared statement is here. The bill being considered in the House is H.R. 4115, the Open Access to Courts Act of 2009.

Jurors in Trial of Baltimore Mayor Friend Each Other on Facebook

Judges confounded by jury's access to cyberspace, Baltimore Sun, Dec. 13, 2009:

On Friday, lawyers for Baltimore Mayor Sheila Dixon asked for a new trial in part because five of the jurors who convicted her of embezzlement Dec. 1 were communicating among themselves on Facebook during the deliberations period - and at least one of them received an outsider's online opinion of what the verdict should be. The "Facebook Friends," as Dixon's lawyers call them in court documents, became a clique that the lawyers argue altered jury dynamics.

The article discusses a number of cases affected by jurors who go online.

Concern has grown so much nationwide that legal experts, including in Maryland, are rewriting model jury instructions to specifically tell jurors that online searches, texting and social media - the things they routinely do on laptops, cell phones and BlackBerrys - are out. Maryland's rules are expected to be published next year, and the ones on that subject are still being drafted.

Forensic Facebook

A New York Times blog reports (Nov. 11, 2009) on a Harlem teenager whose Facebook status update helped confirm an alibi and get burglary charges dropped. The post says that this is the first time Facebook helped the accused, and lists times when Facebook and MySpace posts have been used against defendants.

Comments list different ways that someone could scam the system. Sure, a 19-year-old could call home and say, "Dad! Quick! Log in to my Facebook account and post something. I'm going to need to prove that I was in your apartment right now! Oh, and when the police ask you if I was there, lie for me, OK?" But I think the prosecutor probably made a good call.

Representing Hamdan - Free CLE

The Trial of Salim Ahmed Hamdan:
Constitutional Challenge to Executive Power and the
First War Crimes Trial of a Guantanamo Detainee

Monday, December 7, 2009
Benaroya Hall, 2nd & Union Streets, Downtown Seattle
Nordstrom Recital Hall
4:00 p.m. to 5:30 p.m.

Perkins Coie lawyers Harry Schneider, Joe McMillan and Charles Sipos will provide a behind-the-scenes account of their experience as part of the defense team of lawyers appointed to defend Salim Ahmed Hamdan, widely known as Osama bin Laden's personal driver. The presentation will include a review of the federal court litigation filed in Seattle that eventually led to the United States Supreme Court 2006 landmark Hamdan v. Rumsfeld decision on the limits of presidential power. Messrs. Schneider, McMillan and Sipos will also provide an in-depth analysis of the 2008 trial at Guantanamo Bay in which Mr. Hamdan became the first defendant accused by the United States of committing war crimes in the war on terror and tried before a Military Commission.

To Attend
This is a complimentary seminar offered by Perkins Coie; however, pre-registration is required.
You may register here for this program.
Public parking is available at several parking lots near Benaroya Hall. Parking will not be validated.

CLE
This program has been granted CLE credits in Washington and California. If you are admitted to practice in another state, we will provide information to allow you to apply for credit in your state of admittance.

Questions?
Please contact our Registrar, Linda Gordon, at LGordon [at] perkinscoie.com or 206.359.8420 if you have questions.

JP Morgan Drops Arbitration Clauses

Parties to a contract often like arbitration clauses because they offer a cheaper and easier resolution to disputes than formal litigation. However, credit-card companies typically dictate the terms of the agreement for consumer debts and hire arbitration companies to handle all of their customer's disputes.

The Wall Street Journal reported last weekend that JP Morgan is removing arbitration clauses from their credit-card agreements. This change comes in the wake of several court cases addressing the close relationship the banks enjoy with arbitration companies.

Businessweek reported this summer that the Minnesota Attorney General filed suit against the industy-leading National Arbitration Forum. As Business week reports, "[The Minnesota suit] follows a bias case brought against NAF last year by the San Francisco city attorney in California state court."

THANKS to Patrick Flanagan for this guest post. -- mw

Defendants Gone Missing

Two current stories about defendants on the loose:

• The Blotter | Seattle man skips bail, costs family $100,000 | Seattle Times Newspaper, Oct. 30, 2009. The man is accused of shooting well-known Black Diamond sound engineer Tom Pfaeffle.


• Seattle 911 | Men skip out on trial; jury says guilty, not goodbye | Seattle P-I, Oct. 30. Two men fled during their trial for conspiracy to distribute ecstasy. The jury convicted them and now they also face penalties for fleeing during trial.

Transcripts Aren't Enough

Surprisingly, in most U.S. jurisdictions, court proceedings, which can dramatically affect people‟s lives or property, are rarely recorded accurately or in their entirety because only a small percentage of courts regularly create a video record of court proceedings. Of those courts that do, most do not preserve the video record but simply turn it into a transcript.

Keith A. Gorgos, Comment, Lost in Transcription: Why the Video Record Is Actually Verbatim, 57 Buff. L. Rev. 1057, 1058 (2009)(footnotes omitted). The author analyzes ways that transcripts can be inadequate records of trials -- for instance because the text does not include all the non-verbal cues a witness can give or because the court reporter simply did not capture the speech accurage -- and argues that video records be kept and made the official.

Pro Bono Practice CLE: Hope & Help In Hard Times

As part of the ABA's National Pro Bono Celebration next week, the University of Washington School of Law and Seattle University School of Law are sponsoring a full-day CLE at Seattle U: Pro Bono Practice Workshops and CLE: Hope & Help In Hard Times on Friday, Oct. 30. Registration is just $25 for new lawyers, young lawyers, and recent graduates, $125 for others.

A reception at the end of the day will honor William H. Gates, Sr., who was awarded the American Bar Association Medal in August. WSBA president Salvador Mungia and Harry Schneider, Jr. (pro bono counsel in Hamdan v. Rumsfeld), will speak.

Lower Awards for Spanish-Speaking Plaintiffs

Lost in Translation | ABA Journal - Law News Now, Jan. 2009:

After compiling 17 years of data from his own practice, Dallas lawyer Angel Reyes had a hunch that Spanish-speaking plaintiffs who required the use of a translator in the courtroom received smaller awards than those who did not.

Last fall Reyes and two professors from Texas Tech University's Rawls College of Business confirmed his suspicion: Spanish speakers who relied on a translator during court testimony were 15 percent less likely to obtain a jury verdict that exceeded their last settlement offer than were English speakers.

The article is: Bradley T. Ewing, Angel L. Reyes, III, & James C. Wetherbe, Estimating the Effect of Non-English Speaking Hispanic on Personal Injury Jury Trial Outcomes, Texas Tech University, Rawls College of Business, ISQS Working Paper (2008); it will appear in Social Science Quarterly.

Thanks: @djillpugh.

Limiting Secret Settlements - the Florida Experience

Parties often agree to keep settlements confidential -- defendants will often pay extra for the secrecy and plaintiffs are willing to promise quiet in exchange for the settlement. But it's a public concern if the confidentiality keeps the public from learning of unsafe products or conduct that could affect them as well as the particular plaintiff who settled.

Florida attempted to limit the number of such settlements with the Sunshine in Litigation Act, that required openness if the information related to a public hazard. But in the decade or more since the act, the courts and parties in Florida have still allowed secret settlements.

Prof. Roma Perez reviews Florida's experience and suggests improvements in Two Steps Forward, Two Steps Back: Lessons to Be Learned from How Florida's Initiative to Curtail Confidentiality in Litigation Have Missed Their Mark, 10 Fla. Coastal L. Rev. 163 (2009).

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Another Cautionary Facebook Tale

I got the Davis Law Group's September 2009 newsletter in my email and took a look. Christopher Davis tells about a client who had been injured in a car accident. There was evidence about the young man's injuries and the likelihood that his back would give him trouble from time to time for years to come. The defense, though, found pictures and videos on his Facebook and Myspace pages showing him snowboarding. And that led to a lower settlement, because of how those images would play with the jury. Even if the plaintiff had considerable pain over long stretches and always would, just a few carefree minutes on the slopes would make it look like the accident hadn't had much impact. And that's why Davis says that he always cautions his clients to be careful what they post.

Graphic from Washington State Department of Licensing.

Interesting Wash. Criminal Law Blog

Graham Lawyer Blog is by Steve Graham, a solo criminal defense lawyer in Republic, WA. The posts I looked at were interesting and thoughtful.

Because of his location -- he practices in the courts of the Colville Reservation as well as in Okanogan, Ferry, Stevens, Grant, and Spokane Counties -- he follows Indian law issues as well as general criminal law, e.g.,

• Differences Between Tribal and Federal Court System Evident From First Hearing on Kevin Pakootas
  
• Possible Challenge to Jury Venire for Native-American Defendants in Washington Counties Overlapping Reservations
• Supreme Court Rules Lummi Nation Can Make Arrests Off Reservation
• Native-Americans Protest Treaty Rights Infringements in North Okanogan County

One cool thing about blogs is that sitting at my desk in Seattle I can "meet" a lawyer in Republic.

Would you like to check out other local blogs? See Law-Related Blogs in Washington State.

By the way, if you're not sure where Republic is, see this:

Mass. Town Pays $3.4M to Family of Wrongfully Convicted Man

The town of Ayer and five of its insurers have agreed to pay $3.4 million to settle a civil rights lawsuit filed by the estate of the late Kenneth Waters, who spent more than 18 years in prison for a murder he did not commit before his sister earned a law degree and helped free him through DNA evidence.

* * *

The lawsuit, which was scheduled to go to trial next week, accused Ayer police of coercing false testimony to convict Waters and withholding evidence that could have cleared him.

Ayer to pay $3.4m for unjust conviction, Boston Globe, July 15, 2009.

See also Betty Anne Waters wins $10.7M for brother's wrongful murder conviction, Nat'l L.J., Sept. 17, 2009 (you have to register to view the story).

The story of a sister who gets her GED and puts herself through college and law school in order to help her brother -- and then succeeds! -- is the stuff of Hollywood. And indeed, Betty Anne Waters is due out later this fall. Hillary Swank plays Betty Anne Waters and Minnie Driver plays her law school friend Abra Rice. Rice, now a public defender, is profiled in Courtroom Drama, New Haven Advocate, Aug. 18, 2009.

Here's the real Waters at an Innocence Project event (she appears at 2:58):

Huge Malpractice Verdict Against Firm for Not Telling Client of Dismissal

An employment discrimination plaintiff whose suit was dismissed because of an error in the complain won a huge malpractice verdict against a firm for not telling her of the dismissal until it was too late to refile and fix the error. The 100-lawyer firm says it was all the fault of one lawyer who messed up and has since left the firm and been disbarred. Becker & Poliakoff to Appeal $4.5M Malpractice Loss, Blames ‘Rogue Lawyer’, ABA Journal Law News Now, Sept. 18, 2009.

L.A. judge says he can't afford to remain on federal bench

L.A. judge says he can't afford to remain on federal bench, Nat'l L.J., Sept. 16, 2009:

Fewer than two weeks after U.S. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., introduced a bill that would authorize more federal judgeships nationwide, a federal district judge in Los Angeles announced that he would resign on Nov. 2 because he can no longer afford to remain on the bench.

U.S. District Judge Stephen G. Larson of the Los Angeles-based Central District of California said in a prepared statement on Sept. 15 that the failure by Congress to increase judicial salaries made it impossible to support his seven children, all under age 18.

* * *

On Sept. 8, Leahy introduced SB 1653, the Federal Judgeship Act of 2009, which would establish 63 new permanent and temporary judgeships across the country. It would be the first legislation in 19 years to address federal judgeships.

The bill is here.

The new judgeships proposed in our "neighborhood" are:
4 9th circuit judgeships
1 temporary 9th circuit judgeship
1 W.D. Wash. judgeship
1 D. Ore. judgeship

What's this about "temporary" judgeships? Doesn't Article III promise judges life tenure ("during good behaviour")?

Well, yes. The bill provides that the JUDGE would get a permanent appointment, but the court would only have that many slots temporarily: "For each of the judicial districts named in this subsection, the first vacancy arising on the district court 10 years or more after a judge is first confirmed to fill the temporary district judgeship created in that district by this subsection shall not be filled."

Vanity Fair on the Craigslist Murder

Maureen Orth on the Craigslist Murder | vanityfair.com, Oct. 2009.

The "Craigslist Murder" was a crime made possible by the Internet, and the prime suspect was apprehended through online sleuthing. But the killing of Julissa Brisman allegedly by Boston University medical student Philip Markoff is still a very human mystery, with dark sexual overtones and surprising contradictions.

A Legal Battle for Lawyers - Online Attitude vs. Rules of the Bar

A Legal Battle for Lawyers - Online Attitude vs. Rules of the Bar - NYTimes.com, Sept. 13, 2009. Several incidents are reported -- bar discipline for a blog post criticizing a judge, firing for disclosing confidential information, getting called by a judge for asking for a trial delay and then posting a series of Facebook statuses about partying. The moral? Be careful what you say!

A Different Shade of Blue

I just read Adam Eisenberg, A Different Shade of Blue: How Women Changed the Face of Police Work (HV8023 .E57 2009 at Good Reads).

The author (a graduate of the University of Washington School of Law who is now a court commissioner) got the idea for a book about female police officers when he was a prosecutor and met some women working in this field dominated by men. His book takes us back to the 1920s, when the Seattle Police Department hired its first women. It is enlivened by dozens of first-person accounts, starting with some women who were in the old Women's Bureau in the 1940s and 1950s. There are a wide range of vivid stories, starting with some by true-crime writer Ann Rule, who reminisces about her time in the Women's Bureau in the 1950s.

The interviews include a wide range of women -- different times on the force, different races, different sexual orientations.

Many of the stories concern the challenges of being among just a handful of women in a force filled with men. What uniform do you wear? Where do you shower? How do they treat you in the police academy? How do you establish trust with your coworkers? How do you deal with rumors? What do you say if your partner's wife says she doesn't feel safe with him having a female partner?

Sexual harassment has been a problem in the department for many women. And reporting it has often created worse problems, so many women have chosen to remain silent.


For more, check out Eisenberg's blog, Shades of Blue, where he posts news about women in police work, including some from around the world.

Ms. named this book one of its "Great Reads for Summer 2009." Nicely done, Adam!

Renton women use stolen IDs for more than $2 million in student loans

Renton women use stolen IDs for more than $2 million in student loans | The News Tribune, Aug. 20, 2009. One woman took Social Security numbers from medical records at the clinic where she worked, then a group of people applied for student loans and used the money for travel, cars, jewelry, and entertainment. "At sentencing U.S. District Judge John C. Coughenour said, 'these were student loan funds for a very precious, almost sacred purpose.'"

An identity theft case may require a big team: "The case was investigated by Social Security Administration Office of Inspector General (SSA-OIG), the Federal Bureau of Investigation, the Secret Service, the United States Postal Inspection Service, the Seattle Police Department and the King County Sheriff’s Office. The case was prosecuted by Assistant United States Attorneys Norman Barbosa and Aravind Swaminathan as part of the U.S. Attorney’s Office Working Group on Identity Theft."

Judge Betty’s Revenge

The Seattle Weekly's current cover story is a profile of Judge Betty Fletcher (9th Cir.), a 1956 graduate (top of her class) of the University of Washington School of Law. Judge Betty’s Revenge, Seattle Weekly, Aug. 18, 2009.

Cases discussed include ones on NEPA, affirmative action, and the death penalty.

Photo by Steven Miller, Seattle Weekly.

Florida blogger finds fame digging up dirt on slayings | Seattle Times Newspaper

Florida blogger finds fame digging up dirt on slayings | Seattle Times Newspaper, Aug. 17, 2009.

The local prosecutor said that a couple was murdered in the course of a robbery. But a local blogger got tips that it was a murder for hire. He posted and the case changed shape. The sheriff says the blogger had helped the investigation and his anonymous sources were largely right. A newspaper publisher says that the blogger benefited from his support of the sheriff's election campaign and has looser journalistic standards than the newspaper.

Police ultimatum to drug dealers: Quit, or go to prison | Seattle Times Newspaper

Local News | Police ultimatum to drug dealers: Quit, or go to prison | Seattle Times Newspaper, Aug. 7, 2009:

Confronted with photos, video clips and binders full of evidence gathered in a yearlong operation along Seattle's 23rd Avenue corridor, from Madison to Jackson streets, the dealers were promised they wouldn't be arrested, prosecuted or sent to jail for 20 months or more if they embraced the job training, educational opportunities, housing assistance and chemical-dependency treatment being offered them.

This story was picked up by the ABA Journal's Law News Now.

The Legal Rebels Project

The ABA Journal is going to begin profiling -- in print and online -- lawyers who are "remaking their corners of the profession. . . ., finding new ways to practice law, represent their clients, adjudicate cases and train the next generation of lawyers." You can nominate "legal rebels" to be profiled, and you can participate in a wiki to draft the Legal Rebels Manifesto. See Legal Rebels - Who's a Legal Rebel?

Tweets, Texts, and Other Messaging in the Courtroom

Gadgets can gum up trials. Examples: jurors going online to research facts not presented in evidence, a witness texting another company official for advice about testimony, a spectator's phone ringing with a rousing chorus of "Louie, Louie," someone recording proceedings, jurors tweeting about deliberations.

But gadgets aren't all bad. Sometimes a lawyer needs to contact someone back at the office, or get a message that a witness is stuck in traffic.

Katherine A. Helm suggests reforms:

The best way to manage this problem is one that only a handful of courts across the country have adopted: Allow preauthorized counsel to bring electronic devices into the courtroom and make all other courtroom attendees (jurors, witnesses, observers) check their devices in the lobby. The Southern District of New York is testing out such an interim rule now, where authorization can be given only by specific court order — although being forced to specify each device for each named attorney each day might be overkill.

Katherine A. Helm, Courtrooms all atwitter, Nat'l L.J., Aug. 10, 2009.

Petition to Improve PACER

A group of law librarians are urging the Administrative Office of the United States Courts to improve access to PACER, the online system for federal dockets and related documents. They urge free access at depository libraries, decreased costs to all users, and an improved interface. Check out the petition: Improve PACER - The Petition Site.

Lawyer Leads Local Fight Against Illegal Immigration

Lawyer Leads Local Fight Against Illegal Immigration - NYTimes.com, July 21, 2009. Interesting profile of Kris W. Kobach, who moved from the Justice Department to law teaching (UMKC) and now litigates on behalf of communities' restrictions on illegal immigration around the country.

Iqbal in Everyday Practice

In Ashcroft v. Iqbal, No. 07-1015 (May 18, 2009), the Supreme Court ruled that the district court should have dismissed plaintiff Iqbal's claims against government officials for his arrest and conviction. Why? Because his complaint "fail[ed] to plead suffi­cient facts to state a claim for purposeful and unlawful discrimination."

You might have thought that the case would only interest those following issues of national security, terrorism, and discrimination against Muslims. But the case also has applicability for all plaintiffs who make general allegations in their complaints so they can use discovery to get the evidence they need to flesh out their cases.

“Iqbal is the most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts,” said Thomas C. Goldstein, an appellate lawyer with Akin Gump Strauss Hauer & Feld in Washington.

Adam Liptak, Sidebar - 9/11 Case Could Bring Broad Shift on Civil Suits - Series - NYTimes.com, July 20, 2009. Lower courts have cited Iqbal more than 500 times already!

See also:

• Ashby Jones, Why Defense Lawyers Are Lovin' the Iqbal Decision, Wall Street Journal's Law Blog, May 19, 2009.
• Howard Wasserman, Iqbal and the death of notice pleading: Part II, PrawfsBlawg, May 18, 2009.
• Howard Wasserman, Iqbal and the Death of Notice Pleading: Part I, PrawfsBlawg, May 18, 2009.
• Jim Beck & Mark Herrmann, In Praise of "Short and Plain" Pleadings After Twombly and Iqbal, Drug and Device Law, May 28, 2009.
  
• Howard Wasserman, Discovery, Burdens, Risks, and Iqbal, PrawfsBlawg, June 2, 2009.
• Scott Dodson, Against Twombly & Iqbal -- A Reply to Drug & Device Law Post, June 5, 2009.

For discussion of one of those lower court cases -- Tooley v. Napolitano, in which the DC Circuit has granted rehearing on the issue of whether to let a man's suit against Homeland Security proceed -- see Lyle Denniston, Analysis: New Obstacles to Wartime Challenges, SCOTUS Blog, July 4, 2009.

Washington Briefs on the Web

The Washington State Courts are posting briefs on the web. The project began with Division II, but now includes Supreme Court and Division I briefs as well. Supreme Court and Court of Appeals - Briefs has

• Supreme Court briefs, June 2006-
• Division I, June 2009-
• Division II, June 2006-

Coverage is not complete, especially in the early months. For example, in one case, there might be a respondent's brief but not the appellant's brief.

For more, see Court Briefs & Oral Arguments.

What Can a Trial Lawyer Learn from Michael Jackson?

Jury consultant Anne Reed admits that she was never a Michael Jackson fan -- didn't spend time glued to MTV, didn't go nuts for "Thriller." Me too (although, unlike Anne, I'd at least heard the songs and seen a video or two). Anne asks us all to reflect on what we've missed in popular culture:

it might be, like Michael Jackson, something that a lot of jurors would list among their greatest inspirations and influences. It's worth pausing at moments like this to consider what you're missing, and whether you could open a little further to the experience of people who are not you.

Deliberations: What Have You Missed?, July 1, 2009.

A Different Shade of Blue

A new book about women in police work will be released July 15.

A Different Shade of Blue tells the history of female cops in America through the candid voices of 50 women on the Seattle Police Department. As one of the first cities to hire policewomen in 1912, Seattle provides the perfect backdrop to tell an amazing story – women’s ongoing struggle nationwide to fit into the male-dominated police profession.

A Different Shade of Blue features three generations of women – black, white, Asian, Latina, gay, straight – speaking 'on the record' about their experiences on the streets and in the precincts. Hired between the 1940s and the 2000s, the women share stories of great heroism, from battling an armed assailant inside a patrol car to going undercover to catch an illegal abortionist in the days before Roe v. Wade. They also offer surprising views on affirmative action, and tell tales of discrimination and harassment that reveal how even today men continue to treat their female co-workers as second-class citizens.

As the women recount their lives and experiences, they prove that female cops are a different shade of blue. And that difference has forever changed the face of police work.

The author is UW School of Law graduate Adam Eisenberg, who says that he got the idea for the book when he was working as a prosecutor. He is now the commissioner of Seattle Municipal Court.

Adam's blog will be a forum for more stories of female police officers.

Supreme Court Super Nerd in 3 Easy Steps

A lawyer offers tips on how to follow the Supreme Court. Lawffice Space: Supreme Court Super Nerd in 3 Easy Steps, June 28, 2009.

One tip: subscribe to Willamette Law Online's US Supreme Court service:

This service provides same-day summaries of certiorari granted, oral arguments, and decisions published by the United States Supreme Court. The certiorari summaries focus on the facts and decision from the lower court. The week prior to oral arguments we provide an outline of the issues presented to the Court as argued in the briefs. The decision summaries provide the holding from the United States Supreme Court and a brief overview of the Court's reasoning.

Willamette also offers updates for Ninth Circuit Court of Appeals, Oregon Courts, Intellectual Property, Conflict of Laws, and Dispute Resolution.

Commission Releases Report on Combating Prison Rape

The National Prison Rape Elimination Commission -- created by Congress in 2003 -- today released its final report and proposed standards. The standards include a supplement for immigration detention facilities.

The BLT: The Blog of Legal Times reports:

Part of the commission’s goal was to create standards “so that when you hear about a prison rape, the warden doesn’t just wink and nod and say take care of it, but that it’s investigated,” said commissioner Jamie Fellner, senior counsel to the U.S. Program of Human Rights Watch.

* * *

[Commission chairman, Judge Reggie] Walton also said he hoped that its guidelines would become a legal standard of care, which prisoners could use as the basis of lawsuits if they were raped.

Congress Should Free Legal Aid Lawyers From Federal Restrictions

The Washington Post opines that Congress Should Free Legal Aid Lawyers From Federal Restrictions, June 22, 2009:

THE HOUSE was right last week to call for a substantial increase in funding for the Legal Services Corp. (LSC), the nonprofit organization that provides legal assistance to poor people in civil matters. But House members left in place unwise and unwarranted restrictions on how the LSC could use that money; . . .

The Senate, which is scheduled to take up the funding measure this week, should go even further in freeing legal aid lawyers from federal restrictions. The LSC has long been prohibited from using public funds to lodge class-action suits, represent undocumented workers or participate in any abortion-related litigation. While some limitations on the use of tax dollars may be warranted, there is no legitimate reason for federal restrictions on how local legal aid groups use privately raised funds or money they receive from state or local governments. The Obama administration, which supports the lifting of these restrictions, estimates that roughly $490 million in private and non-federal funds that find their way to local legal aid providers are 'tied up' and subject to these federal limitations.

9th Circuit Finds No First Amendment Violation in Teacher's Demotion Over Blog Comments

Law.com - 9th Circuit Finds No First Amendment Violation in Teacher's Demotion Over Blog Comments, Nat'l L.J., June 22, 2009. The (unpublished) case, from Kitsap County, is Richerson v. Beckon, No. 08-35310, 2009 U.S. App. LEXIS 12870 (9th Cir. June 16, 2009)(mem.), available on the court's website.

Rosenberg Reenactment

The radio program Studio 360 had a great story about Judge Denny Chin (S.D.N.Y.) -- soon to be sentencing Bernard Madoff -- who participates in reenactments of famous trials. Recently he went through thousands of pages of the transcripts from the trial of Julius and Ethel Rosenberg to create a 60-minute script, focusing on Ethel Rosenberg. He draws lessons about the importance of detached judging even during -- especially during -- emotionally and politically charged cases.

AG Holder: DNA Evidence Can Exonerate the Wrongfully Charged

day after the Supreme Court ruled defendants have no constitutional right to a review of DNA evidence in post-conviction proceedings, Attorney General Eric Holder Jr. underscored the Justice Department position that seeks to expand access to DNA evidence in the courts.

The BLT: The Blog of Legal Times : AG Holder: DNA Evidence Can Exonerate the Wrongfully Charged, June 19, 2009. The prepared text of Holder's speech is here. The BLT goes on:

Holder issued a statement in response to the Supreme Court 5-4 decision in District Attorney's Office for the Third Judicial District v. Osborne that said, in part: “Constitutional rights are only one part of a fair and full system of justice. Simply because a course of action is constitutional does not make it wise.” Holder said in the statement that the Court “merely spoke about what is constitutional, not what is good policy.”

See Tony Mauro, High Court Rejects Post-Conviction DNA Access, Nat'l L.J., June 19, 2009.

The Solicitor General's amicus brief in Osborne argued against a constitutional right to DNA testing, urging a reversal of the 9th Circuit -- that is, arguing for the result the Court reached. The brief was filed in December 2008 -- that is, during the last Administration.

Juror misconduct alleged in civil rights trial stemming from police shooting

In a civil rights case against a Kent police officer for shooting the passenger in a stolen car, the defense is asking for a judgment notwithstanding the verdict or a new trial because of the influence of a juror who is married to a King County Sheriff's deputy. Judge Coughenour (W.D. Wash.) invited the motion. Juror misconduct alleged in civil rights trial stemming from police shooting | Seattle Times Newspaper, June 18, 2009.