Friday, September 30, 2005

District judge in Tacoma

[NEWS] Judge Franklin Burgess, Western District of Washington, has retired to senior status. A bipartisan merit-based screening committee, formed by the White House and Washington's two senators, will assist in the search for his successor. The new judge will join Judge Ronald Leighton as one of two active federal district court judges sitting in Tacoma. Information about the screening committee and the application process is on WSBA's website.

The big national news focuses on the new Chief Justice and the next new Associate Justice, but a lot of the important work of the judicial system is done in the district courts. (That's where trial advocacy takes place!)

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Wednesday, September 28, 2005

Other suspect evidence, reviewability of preliminary ruling, DNA on a "silver platter"

[CASE] When can a defendant present evidence that someone else committed the crime? Division I discussed the issue in State v. Mezquia, 118 P.3d 378 (Wash. App. Aug. 22, 2005) Find Result - 118 P.3d 378

The defendant was convicted of first degree felony murder in connection with a rape. The defense wanted to present evidence that the victim's boyfriend killed her: the night before her death, the victim had been angry at the boyfriend (who was not present) and his relationship with someone else; the victim had said she was looking for the boyfriend; the boyfriend had assaulted the victim in the past. The trial court excluded the evidence because it did not sufficiently link the boyfriend to the killing.

Division I affirmed:

A criminal defendant has a constitutional right to present a defense consisting of relevant, admissible evidence. * * * In order to be relevant, and therefore admissible, the evidence connecting another person with the crime charged must create a trail of facts or circumstances that clearly point to someone other than the defendant as the guilty party. * * *. The evidence must establish a nexus between the other suspect and the crime. * * * The defendant has the burden of showing that the other suspect evidence is admissible.
(citations omitted)

The defendant also sought review of the trial court's preliminary ruling with respect to 404(b) evidence, but the Court of Appeals found the record inadequate for review. Here's the deal: The defense had another "other suspect" for the crime, a cabdriver. The court ruled that there was enough evidence tying this man to the crime to make it admissible. The state had a witness who would have testified on rebuttal that she had been assaulted by the defendant if he raised the issue of identity. The defense asked the judge for an "advisory ruling" about whether that 404(b) evidence could come in. The court said yes. The defense decided not to introduce the evidence about the cabdriver and the prosecution did not use the 404(b) evidence. (Confused yet?) Anyway, the ruling could not be reviewed because it was only preliminary and any harm was only speculative.

The murder-rape took place in 1993. The case was open for many years. A DNA sample of saliva found on the victim was entered into a national database. In 2002, the sample was matched to a sample from the defendant, at that time in Florida. The defendant argued that it was error to admit the DNA evidence because of constitutional errors in the way Florida collected the DNA.
[T]he admissibility of the DNA sample obtained in another jurisdiction is governed by the silver platter doctrine under which evidence that is apparently lawfully and independently obtained in another jurisdiction is admissible in Washington, even if such evidence if obtained in Washington would violate Washington law.

The appellate court found that the imposition of an exceptional sentence violated the defendant's rights under Blakely v. Washington, because the jury did not find the presence of aggravating factors beyond a reasonable doubt. The conviction was affirmed and the case remanded for resentencing.

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Westlaw Pleadings and Motions

I saw an ad for Pleadings and Motions databases on Westlaw. I took a few minutes to play around. It looks interesting. The documents are from a variety of state and federal courts, and include a wide range. Here's a sample:

  • Petitioner's Objections and Responses to Respondent's First Set of Interrogatories
  • Post-Trial Brief of Joint Defendants
  • Memorandum of Law in Support of the Deutsche Bank Defendants' Motion to Exclude the Expert Testimony
  • Defendant's Motion to Compel Independent Psychiatric Examination in Accordance With Federal Rule of Civil Procedure 35(a)
  • Plaintiffs' Brief in Support of Cross Motion for Partial Summary Judgment and a Reply to the Motion for Partial Summary Judgment of the Defendant
  • Brief in Opposition to Petition to Open Non Pros Judgment
The ad suggests that you can use these databases "[t]o see how well-thought-out legal arguments are structured" or "[a]s a starting point for framing your own documents." Sure, but note that there is no quality control -- the motion you find might have been written by an attorney who's not very good or was having a bad day. Cutting and pasting is easy, but it isn't always wise. But, with that caveat, these databases do seem useful.

It appears that Washington federal court documents are included, but not state court filings -- yet.

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Wednesday, September 21, 2005

Div. 1 addresses evidentiary issues

[CASE] Division 1 addressed a variety of interesting evidentiary issues in a recent appeal from a murder conviction. State v. Moses, --- P.3d ---, ( no. 53580-3-I (Sept. 19, 2005) (published in part).

The defendant was convicted of murdering his wife. The defense offered the alternate explanation that she had committed suicide.

  • Was it a violation of the defendant's confrontation rights under Crawford to admit police testimony about the wife's statements made during an interview after a domestic violence incident? Yes.
  • How about admitting testimony from a doctor and a medical social worker? No, the wife's statements were made for purposes of medical diagonosis and treatment. There was not an expectation that they were "testimonial."
  • [From here on is the unpublished part, with no precedential value -- but still some interest as examples of evidence in action.]
  • Was it error to admit evidence about the defendant's past assault of and arguments with his wife? No. It was admissible to prove motive and res gestae.
  • Was it error to exclude testimony of a defense expert who would have testified about the wife's depression and risk of suicide? No. The jury did hear testimony from four medical providers. No abuse of discretion in finding this doctor's testimony would not be helpful to the trier of fact under ER 702.
  • What about the trial court's limiting the defense use of the wife's two journals? No abuse of discretion.
  • What about testimony by the medical examiner and ballistics expert that the death was a "homicide"? OK: not impermissible opinion testimony.
Affirmed, but remanded for resentencing.

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Tuesday, September 20, 2005 - Judicial Conference Supports Citing Unpublished Opinions

[RULES] - Judicial Conference Supports Citing Unpublished Opinions.

The policy-making body of the federal judiciary on Tuesday endorsed a sweeping rule change that will allow lawyers to cite unpublished opinions in federal appeals courts nationwide beginning in 2007.
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Program on using court records in research & teaching

[EVENT] [RESEARCH] UMKC School of Law is hosting an interesting conference Oct. 7-8 on using court records in research and teaching. I couldn't find the program announcement on the web to link to, so I'm sharing excerpts from an email message posted to several listservs by one of the organizers, Paul D. Callister. Registration form here.

Federal Civil Court Records of the National Archives: Opportunities for Empirical, Historical and Legal Research and Curriculum Design

Court Data and Selection Bias
Ahmed E. Taha, Assoc. Prof., Wake Forest Univ. School of Law
-- Prof. Taha will describe how empirical studies of litigation are subject to selection bias due to the lack of detailed data about court cases. * * *

Keynote Address:The Importance of Preserving Historic Information About the Legal System
Theodore Eisenberg, Henry Allen Mark Professor of Law, Cornell Law School
-- Prof. Eisenberg will discuss of the importance of historical knowledge about the legal system's performance in assessing contemporary debate about civil justice, such as the need for historical data about award amounts, class actions, pretrial dispositions and motions to exclude evidence.

The Long Road to Dred Scott: Suing for Freedom in the Shadow of Slavery
David T. Konig, Prof. of History and Law, Washington Univ.
-- Prof. Konig will describe the St. Louis Circuit Court Historical Records Project, * * * He will examine the way in which archival court records of "freedom suits," including that of Dred Scott, have served as the basis for interdisciplinary undergraduate research courses * * *.

Serendipity in the Stacks, Fortuity in the Archives: Preservation, Browsing, and Legal History
Michael Hoeflich, Kane Professor of Law, Univ. of Kansas
-- Prof. Hoeflich will discuss serendipitous discoveries in legal history, and history in general, deriving from unintended discoveries in collections of sources. He will also address the potential detriment to the historians of tomorrow if their historical records-to-be are destroyed today.

Researching Federal Civil Court Records
Lawrence H. Larsen, Prof. Emeritus of History, UMKC
-- * * * Prof. Larsen will speak about his use of archival records in connection with his teaching and scholarship, including the writing and publication of Federal Justice in Western Missouri: The Judges, the Cases, the Times.

The Washington University Civil Rights Litigation Clearinghouse: Using Court Records for Research, Teaching, and Policymaking
Margo Schlanger, Prof. of Law, Washington Univ. in St. Louis
-- Prof. Schlanger will describe the soon-to-be-launched Civil Rights Litigation Clearinghouse, * * *.

Using Missouri State Court Records in Socio-legal Research
Gary Kowaluk, J.D., M.A. in Sociology, Ph.D. ABD, UMKC Department of Sociology
-- Mr. Kowaluk will discuss * * * the death penalty and wrongful convictions in Missouri using data obtained from Missouri Trial Judge Reports. * * *

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Deposition of alleged confidential source in libel case

[CASE] Sports Illustrated reported in 2003 that Alabama football coach Mike Price had two women in his hotel room and had sex. Price (who lost his job) is suing for libel.

Price's attrorneys are trying to find the reporter's confidential source. The 11th Circuit conditioned a disclosure order on their first deposing four women, one of whom is likely to be the source. Price v. Time, Inc., 416 F.3d 1327, 1347 (11th Cir. 2005). If one of the women falsely denied that she was the source, counsel for defendant was to notify the court of her perjury.

Last week, the court addressed the issue on rehearing. In addition to the discovery challenges of a libel case with a confidential source, this case illustrates how an attorney can be bound by a concession made in oral argument:

Through their counsel defendants have steadfastly refused to divulge their confidential source for the article in question; they have attempted to shield her identity by every legal means; they have insisted that the plaintiff depose the four most likely suspects; and they have argued that deposing those women is a way to get at the truth that is less painful to their interests than requiring that they themselves disclose it. Now they say that if the confidential source lies under oath and obstructs the pathway to the truth that their counsel has urged us to take, he has no duty to remove the obstruction by reporting the lie. We have some problems with that position.

We need not resolve those problems in this case. We asked counsel during oral argument if he would inform the district court should the confidential source falsely deny under oath that she is the source. He assured us he would. We took that assurance into account in reaching our decision. That is enough to hold counsel to his word. Even if lawyers cannot be counted upon to inform the court on all occasions when a witness is perjuring herself, we think courts still have the right to hold lawyers to their word. And counsel for the defendants, to be fair, does not suggest to the contrary.
The court accepted a compromise the attorney presented. If the clients revealed the source -- which they would be required to if it wasn't revealed by the depositions -- then it would be unnecessary for the attorney to disclose the perjury because it would be evident.
We amend our prior opinion in only this respect: Insofar as our decision is concerned, if the confidential source falsely denies under oath that she is the confidential source, counsel for the defendants has no obligation to report her perjury to the court if his clients’ disclosure pursuant to our decision reveals her identity as the source. If for any reason his clients’ disclosure does not reveal that the witness lied when she denied being the confidential source, counsel will be obligated to report her perjury to the court. This solution will remove counsel from the difficult situation he is in, unless his clients attempt to defy a court order, and we are confident they will not do that.
Price v. Time, Inc., No. 04-13027 (11th Cir. Sept. 16, 2005).
The Fulton County Daily Report's article about the case is here.

The 11th Circuit is not one of the jurisdictions this blog usually watches. For a local angle, recall that Mike Price had just left his coaching position at Washington State University when this story broke.

(I'm not obsessed with sports -- it just happens that interesting discovery cases involve college sports two days in a row.)

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Monday, September 19, 2005

Newspaper access to litigation documents

[CASE] The San Diego Union-Tribune used California's Public Records Act to seek documents from litigation between former athletic department employees and San Diego State University. The trial court granted the request; on review, the Court of Appeals last week set aside part of the order but left in place the part compelling disclosure of deposition transcripts. Board of Trustees of California State University v. Superior Court, --- Cal. Rptr. 3d ---, 2005 WL 2219693 (Sept. 14, 2005), Find Result - 2005 WL 2219693.

  • Does the Public Records Act's exemption of documents from pending litigation apply to correspondence between opposing counsel? Yes. The lower court's order compelling disclosure of some correspondence is set aside.
  • Does it apply to depositions? No. The depositions are available to the public anyway under another statute (absent a protective order), so the parties have no expectation that they would remain private during litigation.
  • Must trial judge conduct an in camera inspection before ordering disclosure of the document? No.
The most recent article I found in the newspaper (in an admittedly quick search) was from July 3: Trainer says Aztecs dump urine samples taken for drug screens.

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NWIRP awards

[NEWS] At its annual gala Saturday evening, the Northwest Immigrant Rights Project honored:

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Monday, September 12, 2005

Trials vs. non-trial dispositions

[RESEARCH] Beyond the Vanishing Trial: A Look at the Composition of State Court Dispositions presents statistics on trends in state court trials, both civil and criminal.

As documented in “Examining Trial Trends in State Courts: 1976-2002,” the use of trials by the nation’s general jurisdiction courts has been declining over the past two decades.[1] From 1976 to 2002, jury trials decreased by 15 percent for criminal cases and 32 percent for civil cases, while bench trials declined 10 percent and 7 percent, respectively. This decline in trials took place at the same time as dispositions increased by over 100 percent for both case categories.

The phenomenon of the “vanishing trial” has prompted interest in the manner in which court cases are disposed and has led to varying theories as to why the use of trials is declining.[2] In anticipation of these discussions, the NCSC included in its State Court Disposition Trends database information on non-trial dispositions, and this article presents the first findings related to non-trial disposition trends in the state courts.
This is one article from the forthcoming "Trends Report" from the National Center for State Courts.

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Outstanding lawyer awards to two Trial Ad lecturers

The June issue of the KCBA Bar Bulletin profiled recipients of KCBA's annual awards. Note our own Trial Ad lecturers, Felix Gavi Luna (Outstanding Young Lawyer) and Thomas W. Hillier II (Outstanding Lawyer).

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Advice for dealing with the press during litigation

[TIP] This month's issue of the KCBA's Bar Bulletin offers: Steve Boyer, The Proper PR Approach -- When Reporters Call on Litigation, the Riskiest Response is 'No Comment.'

(Note: next month, this September article will have a new link.)

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Tuesday, September 6, 2005

Ethics scholars: recusal on moral grounds inappropriate

As noted yesterday, twelve legal ethics scholars have written a letter to the Tennessee Supreme Court expressing their concerns about the practice of some judges to recuse themselves from all cases of juveniles seeking a judicial bypass of the parental consent requirement for abortions.

One the one hand, judicial recusal is ethically appropriate and perhaps required when a judge is convinced that his or her moral views render the judge unable to decide facts and law impartially in a particular case. Such instances occur rarely. However, the blanket use of recusal to avoid a particular category of unpopular cases is inappropriate, especially when coupled with a public statement or signaling of the reason for recusal by a judge acting individually or in apparent collective action with other judges. Such action is inconsistent with the judicial duty to decide cases assigned to the judge, undermines confidence in the judiciary’s commitment to uphold state law, stamps other judges unfairly with the charge that they approve of all laws that they implement, and puts pressure on other judges to follow suit in order to win reelection to the bench or to gain elevation to a higher court.

Thanks to Prof. Susan P. Koniak, one of the twelve scholars, for providing me with a copy of the letter.

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Monday, September 5, 2005

On Moral Grounds, Some Judges Are Opting Out of Abortion Cases - New York Times

[NEWS] Because they are morally opposed to abortion, some judges in Tennessee are refusing to hear petitions from pregnant teenagers who seek, following statutory provisions, to bypass the parental consent requirement. On Moral Grounds, Some Judges Are Opting Out of Abortion Cases - New York Times

A group of twelve legal ethics scholars sent a letter to the Tennessee Supreme Court last month.

The experts called his action lawless and said they feared that his approach could spread around the nation and to subjects like the death penalty, medical marijuana, flag burning and even divorce.

"Unwillingness to follow the law," the letter said, "is not a legitimate ground for recusal."

A spokesperson for the court system said that the Tennessee Supreme Court would not act on the letter, but invited the professors to file a formal complaint with the Tennessee Court of the Judiciary.

According to the article, only four of the nine circuit judges in Shelby County (Memphis's county) will hear such petitions.

If the voters in one county disagree with the statewide legislature, then they could pressure elected judges not to enforce legislation, creating a situation where citizens in one county have access to safeguards unavailable in another.

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