Saturday, September 30, 2006

Plea Bargain in RI Nightclub Fire

Yesterday a Rhode Island judge accepted a plea agreement in the nightclub fire ignited by a rock band's fireworks in 2003. The two owners of the nightclub, which burned quickly because they had installed flammable foam as a sound buffer, pleaded no contest to 100 counts of involuntary manslaughter.

The one who bought the foam was sentenced to four years in prison; his brother will perform community service but serve no time. Both will have three years' probation. The brothers say that they did not know the foam was flammable and that the band wasn't okayed to set off the pyrotechnics (the band says it was). Victims' families are upset at the light sentences.

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Friday, September 29, 2006

Immigration Prosecutions: Stats

Immigration prosecutions are up 119% from 5 years ago. The number of prosecutions in June 2006 is about 5% higher than in May, but less than 1% higher than in June 2005. These figures are from a report by TRAC (Transactional Records Access Clearinghouse): Immigration Prosecutions for June 2006.

About three-quarters of the prosecutions are before magistrate judges.

Among these top ten lead charges, the one showing the greatest increase in prosecutions—up 57.1 percent—compared to one year ago was 18 U.S.C Section 1028 that involves "Fraud and related activity - id documents ". Compared to five years ago, the largest increase—500 percent—was registered for prosecutions under "Fed Old Age, Survivors + Disab Insur -Penalties " (42 U.S.C Section 408 ).
See the report for more details, such as the busiest district courts and the most common lead charges.

Graphic from the report.

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Thursday, September 28, 2006

Fast Food Strip-Search Hoax

Pretending to be a police officer or corporate manager, a caller convinces a fast food manager to detain and search a particular female employee, sometimes as far as body cavity searches. This has apparently happened dozens of times in the last seven years. And the incidents have led to litigation -- most recently in a tort case that is now on appeal. Bizarre 'Strip-Search Hoax' Case Before 11th Circuit, Fulton County Daily Report (, Sept. 25, 2006.

In that case, from Hinesville, Ga., the young woman who was strip-searched and demeaned sued McDonald's and the franchisee that ran the restaurant where she worked. The district court ruled that McDonald's could not be held liable, but left alive claims against the franchisee.

The plaintiff's brief says that at least 14 incidents had taken place at different McDonald's restaurants before this one, and McDonald's acknowledges 12 of them. So what was the corporation's duty to prevent the next one? McDonald's says it warned the franchisee and its training manuals prohibited strip searches; the franchisee says it never got the warnings or the updated manual.

At least seven other incidents have led to private lawsuits. One plaintiff in Kentucky settled with the franchisee for $250,000. Some employees who conducted searches have been charged criminally. One man in Kentucky is currently being prosecuted for making the call that led to a search.

Why would employees go along with a caller's instructions? Roger W. Hall, the attorney for the Kentucky plaintiff who settled, "said the scenario 'ties right in' with psychological tests in which subjects have inflicted pain on others when told to do so by an authority figure." For an introduction to the psychology studies, see Obeying and Resisting Malevolent Orders, on the American Psychological Association's website. People in general often compliant when told to do things by authority figures. And maybe the fast-food business is particularly ripe for such a hoax, with young shift managers and even younger employees and few sources of protection from abuse (such as a union, ombudsman, trusted senior coworker, etc.).

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Judicial Junkets

The New York Times editorializes that Chief Justice Roberts made a good start in his new rules about federal judges accepting privately-paid trips to resorts for "judicial education" programs. But the Times urges him to do more: Half a Reform for Judges, Sept. 24, 2006.

The editorial is responding to action taken by the Judicial Conference of the United States -- headed up by the Chief Justice. A press release explains the new rules (and includes them in two appendixes. Conference Moves to Enhance Judges' Accountability, Ethical Compliance, Sept. 19, 2006.

Thanks: Maureen Howard.

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Wednesday, September 27, 2006

Kirkpatrick and Preston Gates in Merger Talks

One of Seattle's largest firms is in merger talks with an even larger firm. Kirkpatrick and Preston Gates in Merger Talks. Preston Gates & Ellis is based in Seattle, with offices on the West Coast, in Asia, and in Washington, DC. Kirkpatrick & Lockhart Nicholson Graham is based in Pittsburgh with offices on the East Coast and in Europe. The firms' statement about the merger talks is here.

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Supreme Court to Review Washington Law re Union Political Action

The U.S. Supreme Court granted cert in two cases from the Washington Supreme Court that overturned a state law that restricts unions' use of nonmembers' fees for political purposes. Supreme Court Jumps Into Dispute Over Labor Union Fees Used for Political Causes, (AP), Sept. 27, 2006. Here's the legal context: People who don't belong to a union but are in an "agency shop" may be required to pay fees to the union to support negotiations that affect them, but their fees can't be required to support the union's political action. The question here is whether they have to object to the union's use of their fees for political purposes or if the union can be required to have them opt in.

The cases are:

Davenport v. Washington Education Assocation, No. 05-1589
Washington v. Washington Education Association, No. 05-1657

The opinion below is State ex rel. Public Disclosure Comm'n v. Washington Education Ass'n, 156 Wash. 2d 543, 130 P.3d 352, Westlaw link, Findlaw link (majority), Findlaw link (dissent) (March 16, 2006). The Washington Supreme Court (Ireland, J.) held that RCW 42.17.760 was unconstitutional. Justice Sanders dissented (joined by Chief Justice Alexander and Justice Fairhurst).


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Tuesday, September 26, 2006

Weinstein Certifies Light Cig Class

Judge Jack Weinstein (E.D.N.Y.) granted class-action status to a suit against tobacco makers over the marketing of "light" cigarettes as healthier than other cigarettes, even though the manufacturers knew the risks were similar. Smokers' suit gets class-action status, Seattle Times, Sept. 26, 2006.

Smokers' attorney Michael Hausfeld said the decision could clear the way for one of the largest class-action cases ever, both in number of plaintiffs and amount of damages. He estimated the class -- consisting of anyone who purchased cigarettes that were labeled 'light' or 'lights' after they were put on the market in the early 1970s -- could number up to 60 million.
Judge Weinstein has been on the bench since 1967 (that's right, he was appointed by President Johnson), and has presided over many high-profile cases, from Agent Orange to John Gotti. He took senior status in 1993, but still hears cases.

Before he became a judge he was a professor at Columbia Law School, and he has taught part-time at Brooklyn Law School since 1987. He was an original author of Weinstein's Federal Evidence, the authoritative work on evidence in the federal courts. (Since many states, including Washington, model their evidence rules on the federal rules, Weinstein's Federal Evidence is useful for many state questions too.) The current edition is edited by Judge Joseph M. McLaughlin (2d Cir.). Here at the UW, this six-volume set is in the Reference Area, KF8935 .W39 1997; it's also available on LexisNexis. Weinstein's coauthor was Prof. Margaret A. Berger of Brooklyn Law School.

For more on Weinstein, seeFiled in: , , , , ,

Bellevue Coffee Co. Sues Starbucks - Antitrust

A small coffee company in Bellevue (Belvi Coffee & Tea Exchange) is suing Starbucks for anti-competitive practices. The chief issue is Starbucks' exclusive lease agreements with 78% of the "Class A" office buildings in downtown Bellevue, under which Starbucks can block other retailers from getting a lease. These agreements are common nation-wide, and the plaintiff is seeking class-action certification. Starbucks sued over "unchecked ambition", Seattle Times, Sept. 26, 2006.

The plaintiff's attorney is Steve Berman, who has handled many complex cases. He was a special assistant attorney general for Washington and a dozen other states in the famous Tobacco Litigation and settlement. The case was filed Monday in federal district court (W.D. Wash.).

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Monday, September 25, 2006

Photos in a Sentencing Memorandum

Edward Tufte, the author of many books on the visual display of information, liked what he saw in the government's sentencing memorandum for Randy "Duke" Cunningham:

The government's sentencing memorandum makes excellent use of visual evidence, including these images (all beautifully integrated into the text): the menu of bribes, copies of bribe checks, handwritten notes fabricating evidence, and color photographs of bribe payments (Persian rugs, real estate, a yacht, and 2 lead glass armoires).

Viewers should click through the pages to see the excellent presentation, which almost looks like a Sotheby's or Christie's auction catalog. I couldn't have done the sentencing memo any better.
Tufte post, March 3, 2006.

The Green Bag quotes Tufte (perhaps from his new book, Beautiful Evidence, but there isn't a citation):
In American courts, the standard format for legal documents yields thin information densities (is productivity measured by the page?) induced by excessively leaded-out type. Here, however, the adroit use of visual evidence intensified the prosecutorial advocacy, reveals the scope of corruption, and mocks the attempts at evidence fabrication, making the Duke's criminality appear ludicrous.
Art & Anecdote, 9 Green Bag 2d 321, 324 (2006).

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In Tiny Courts of N.Y., Abuses of Law and Power - New York Times

The New York Times today began a major three-part series on New York's lowest courts, the 1,250 town and village courts that handle traffic infractions, domestic violence protection orders, small claims, evictions, certain misdemeanors, and preliminary rulings in other criminal cases. William Glaberson, In Tiny Courts of N.Y., Abuses of Law and Power, Sept. 25, 2006.

Broken Bench
"This Is Not America"
A yearlong investigation by The New York Times of the life and history of New York State’s town and village courts found a long trail of judicial abuses and errors — and of governmental failure to curb them.
The article has a companion audio slideshow, narrated by the reporter. It shows some of the courts, tucked into firehouses, garages, and basements.

Some of the stories in the article are appalling -- e.g., the judge who kept a teenager who was arrested for a minor drug violation in jail for months until the court reopened; the judge who remarked that sometimes a woman needed a beating; the judge who jailed people who were unable to pay fines; and so on. Take a look.

Thanks: Maureen Howard.

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Schierman Update

The latest in the Schierman case:

The police department's release of files to KING-TV is still in dispute. Defense attorney James Conroy and prosecutor Scott O'Toole argued before Court of Appeals Commissioner Susan Craighead on Friday. Status of probe in Schierman case argued, Seattle Times, Sept. 23, 2006.

Other recent articles:

Update (Oct. 12):I just found that the King Couny Superior Court website includes the text of Judge Canova's orders concerning the public records issue and press access to the courtroom. A case setting hearing is scheduled for October 27.Filed in: , , , , ,

More on Coe Commitment

Kevin Coe was slated for release from prison after serving twenty years for his rape conviction, but the state has petitions for him to be committed as a sexually violent predator. See earlier post.

Maureen Howard has pointed me to a very useful press release from the AG's office: McKenna files sexually violent predator commitment against Coe, Aug. 30, 2006. In addition to discussing Coe's case, the press release gives background on the sexually violent predator law (RCW 71.09).

The AG's Sexually Violent Predator Unit handles all of the SVP cases for 38 of Washington's counties. (King County handles its own.)

The press release links to the state's pleadings, including a psychologist's evaluation (pp. 10-107 of the pdf). Coe was convicted of one rape, but the psychologist considered "all available legal records, criminal records including arrest reports, records from the Department of Corrections and psychological evaluations for Mr. Coe."

The probable cause hearing is set for Oct. 30 in Spokane County Superior Court (Judge Kathleen O'Connor). Until then, Coe will be in the state's Special Commitment Center on McNeil Island. (The Special Commitment Center Program is operated by DSHS, not the Department of Corrections.) Coe to spend 7 weeks at sex-predator jail as he awaits hearing, Seattle Times, Sept. 7, 2006; Hearing delayed as state seeks to keep Spokane rapist in custody, Seattle Times, Sept. 6, 2006.

Coe's attorney, Tim Trageser, requested additional time to prepare for the probable cause hearing. The state had given him about 66,000 pages of documents in discovery! (They were on CD.) You can see the hearing on KNDU. Coe, his attorney, and the state's attorneys (Todd Bowers and Malcolm Ross) appeared in court via a video hook-up from the Spokane County jail. (There's some dead air on the video before the hearing begins.) The same page links to news stories with excerpts from a recent Dateline interview with Coe, who maintains his innocence.

Photo: Special Commitment Center Total Confinement Facility, McNeil Island, from

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Friday, September 22, 2006

New York Supreme Court Docket Info

New York County’s Supreme Court -- that’s the trial level court -- is making available online information about its civil dockets. SCROLL (Supreme Court Records On-Line Library) enables people to look up information such as listed attorneys, scheduled conferences, motions, and decisions. The researcher has to know the index number, the calendar number, or the plaintiff’s or defendant’s name.

I played around for a while, trying my own last name (no hits) and common last names (plenty of hits for “martinez” and “lee”). A number of cases list Macy’s as a defendant. Variants of “Trump Corporation” appear as both plaintiff and defendant.

The decisions are often handwritten notes on a standard form, indicating that a case is dismissed because of the parties didn’t respond or because a settlement was reached. The graphic below lists what's available for a case that is still active –- a slip-and-fall action against Macy’s that survived a summary judgment motion.

The public database does not include “(i) documents in matrimonial and electronically-filed cases and those covered by a sealing order; and (ii) documents, County Clerk data and court activity data in Mental Hygiene Law Cases.”

SCROLL also does not include cases that are e-filed. For those, one can go to the state’s e-courts system. E-courts even has an option for searching the full text of decisions -- e.g., a trial court’s denial of a motion for summary judgment.

Thanks: beSpacific.

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Thursday, September 21, 2006

FBI Crime Stats

The FBI released its annual compilation of crime statistics (Crime in the United States) this week.

In 2005, violent crime was up from 2004 (except forcible rape decreased by 1.2%). On the other hand, property crime was down (except burglary, which was up .5%).

  • Nationwide in 2005, law enforcement agencies cleared 45.5 percent of violent crimes and 16.3 percent of property crimes.
  • The FBI estimated that, in 2005, law enforcement agencies nationwide made about 14.1 million arrests.
  • Collectively, law enforcement agencies made 4,761.6 arrests for each 100,000 in population for the 29 offenses for which the UCR Program collects arrest data.
  • The arrest rate for violent crimes in 2005 was 204.8 arrests per 100,000 inhabitants; the arrest rate for property crimes was 549.1 arrests per 100,000 inhabitants.
  • By violent crime offense, the arrest rate for murder was 4.7; forcible rape, 8.6; robbery, 39.2; and aggravated assault, 152.2 per 100,000 in population.
  • By property crime offense, the arrest rate for burglary was 101.2; larceny-theft, 392.6; and motor vehicle theft, 49.7 per 100,000 in population. The arrest rate for arson was 5.5 per 100,000 inhabitants.
Press release, Sept. 18.

The FBI’s Uniform Crime Reports Program collects data about arrests, but not about what happens next – prosecutions, convictions, plea bargains, acquittals, sentences, etc. For those numbers, see the Bureau of Justice Statistics’ Courts and Sentencing Statistics page.

Thanks: beSpacific

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Proof of citizenship, proof of identity

Jurist reports: Court rules Medicaid plaintiffs lack standing to dispute citizenship proofs, Jurist – Paper Chase, Sept. 19, 2006.

A US District Court judge in Chicago has held that plaintiffs in a class action suit lack standing to challenge a new federal law requiring Medicaid recipients to present passports, birth certificates or other proof of citizenship at the risk of losing benefits. Plaintiffs have announced that they will appeal the preliminary ruling.
Speaking of showing identification: Georgia judge rules voter photo ID law unconstitutional, Jurist – Paper Chase, Sept. 19, 2006.

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California Sues Automakers for Nuisance

Jurist reports: California sues automakers for 'public nuisance' of global warming, Jurist - Paper Chase, Sept. 20, 2006. The suit, filed yesterday (N.D. Cal.), seeks damages under “federal common law or, in the alternative, state law,” against the GM, Ford, Toyota, Honda, Chrysler, and Nissan for manufacturing vehicles whose emissions contribute to greenhouse gases and hence global warming.

California demands a jury trial of this novel claim.

See the complaint.

Photo from:

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S. Ct. Refuses Stay in Lethal Injection Challenge

Clarence Hill sought a stay of his execution on the ground that Florida's method of execution -- lethal injection -- is cruel and unusual punishment. The Supreme Court denied the stay, and Mr. Hill was executed yesterday. Florida death row inmate executed after Supreme Court refuses stay, Jurist: Paper Chase, Sept. 21, 2006.

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Monday, September 18, 2006

Habeas for Death Row Inmate Who Moved to Dismiss His Case

Last week the Ninth Circuit granted habeas to a death row inmate who had moved to withdraw his appeal from the district court's denial of habeas. Comer v. Schriro, --- F.3d ---, 2006 WL 2613669, Westlaw link, 9th Cir. link (9th Cir. Sept. 13, 2006) (Ferguson, J.).

The court began its recitation of the facts with the comment that they "are deeply disturbing," and they are. Robert Comer and his companion killed a man at a campground, stole his belongings and his dog, then bound and gagged two other campers (a man and a woman) and put them in their own truck, which Comer then drove. Comer sexually assaulted the woman several times. He also shot the dog he had stolen. The man and the woman escaped separately, the crime was reported, and police apprehended Comer and his companion.

The habeas challenge is not to the conviction, but to the death sentence.

The procedural history is complex. Boiled down, it's this: Comer was convicted in Arizona state court. His conviction was affirmed by the Arizona Supreme Court. His petition for post-conviction relief in the state courts was denied (all the way up). He petitioned for habeas corpus in the federal district court. In 1996, the district court ruled that he had procedurally defaulted on some of his claims; in 1997 it denied the remaining claims on the merits. In 1998, Comer filed a timely notice of appeal of the denial of his habeas petition. After that, he wrote to the state AG and the state trial judge, saying he no longer wanted to appeal; he wanted to die. The state moved to dismiss his appeal. He filed a pro se motion to dismiss his appeal, but his appointed counsel opposed dismissal. The Ninth Circuit bounced it back to the district court to determine whether he was competent to make that decision. The district court found that he was competent to make the decision to dismiss his appeal of the denial of habeas and that his decision was voluntary.

The Ninth Circuit affirmed the district court's determinations -- he was competent to waive the appeal and his decision was voluntary. BUT the court found that it must review the case nonetheless.

To allow a defendant to choose his own sentence introduces unconscionable arbitrariness into the capital punishment system. * * * Permitting such waiver allows the defendant, not the justice system with its attendant procedural safeguards, to determine whom the state will execute. Comer seeks death, yet the errors in his sentencing hearing prevent us from knowing if he is a member of that narrow class of individuals that the state is permitted to execute.
* * *
Thus, in spite of Comer's valid waiver, we must review the merits of his habeas claims on appeal. To do otherwise, and allow Comer to be executed despite the infirmities in his sentence, would be to deny him the dignity of being treated fairly and justly by a state that claims the power of life and death over his person.
After the court discussed a number of claims that it did not find persuasive, it agreed that Comer's due process rights were violated "when he was sentenced to death while nearly naked and barely conscious. . . . [H]is treatment during sentencing 'shocks the conscience' and warrants reversal of his sentence."

In the opinions I skimmed, I didn't see why Comer was not present at his trial or why he was sent to the sentencing hearing as he was, although there's a reference to his "compromised mental condition."
Comer was presented to the sentencing court not only in shackles, but nearly naked, with only a blanket covering his genitals, and slumped to one side in a wheelchair with blood oozing from his head wounds. His lack of clothing revealed to the court and the public his numerous and graphic tattoos, which cover most of his body. And the responses he mustered to the court's questions were cursory at best.
"Shocks the conscience"? Seems like it.

Later I found a news story that explains why he was nearly naked in court:
Barnett Lotstein, a special assistant Maricopa County attorney . . . said Comer was brought into the courtroom this was because he refused to get dressed and fought with detention officers.

"If there were any injuries to him it was of his own making," Lotstein said.

That contention is backed by Comer himself: In a letter last month to Assistant Attorney General John Todd, Comer said he was ready for a fight when he was scheduled to go to court. He said when they removed his leg irons, he kicked one officer.

"Of course that ended the dressing process and they got a blanket to wrap around me but I kept pulling it off, so they ended up tossing it in my lap, and into court we went," he wrote.
Appellate court orders new sentencing for death-row inmate, Ariz. Star, Sept. 13, 2006. I'm no psychologist, but this scene seems consistent with some sort of "compromised mental condition," as the court put it.

Judge Rymer dissented. Since Comer was competent to withdraw his appeal and had done so knowingly and voluntarily, "this case is over" and there is "no live controversy remaining between Comer and the State of Arizona."

Howard Bashman discusses the case at How Appealing. Doug Berman writes (and several readers respond) at Sentencing Law and Policy: Do you lose your right to die if sentenced to death row?

The sentencing issue is most important here, but note also the court’s comments about the prosecutor’s closing argument during the guilt phase of the trial:
As all of the other courts before us have done, we condemn the prosecutor’s remarks. At various times throughout closing argument, the prosecutor repeatedly referred to Comer as a “monster” and “filth,” analogized his crimes to a horror movie, and once called Comer a “reincarnation of the devil.” We also agree with the other courts, however, that the prosecutor’s remarks did not render Comer’s trial fundamentally unfair.
(The discussion goes on for a couple of pages.)

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Sunday, September 17, 2006

Debate over policy preferences has no place in judicial elections

Prof. Bill Andersen recently wrote an op-ed piece about the judicial election process: William R. Andersen, Debate over policy preferences has no place in judicial elections, Seattle P-I, Sept. 12, 2006:

The murkiest judicial campaigns are those in which this or that candidate is charged with being an 'activist' judge or is accused of 'legislating from the bench.' Such slogans cannot be meant literally. As to activism, the fact is we want judges to be activist in the sense of being vigilant in the protection of citizens' legal interests. And as to judicial legislating, if it can be done with a plausible interpretation of the text, we want judges to apply the law according to its obvious purpose even if the words chosen by the Legislature do not fully capture that purpose (the ordinance that prohibits 'vehicles' in the park should not be interpreted to bar baby buggies). When examined carefully, charges about activism and legislating usually mean only that the speaker is disappointed by the substantive outcome of a judicial decision -- a complaint that, for the reasons indicated, should be addressed to the Legislature.
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Saturday, September 16, 2006

DNA Used to Reverse Felony Conviction

"For the first time in Washington State history, a criminal conviction has been reversed based on DNA testing not available at the time of conviction. The September 13th ruling by Judge H. Robert Hackett of the Yakima Superior Court was made after the Court of Appeals sent the case to the Superior court for an evidentiary hearing." UW School of Law Press Release, Sept. 14, 2006.

Ted Bradford was convicted in 1996 for rape of a Yakima woman. He confessed, after hours of high-pressure interrogation, but he didn't match the description of the rapist, his account did not match the victim's, and coworkers testified that he was at work at the time of the crime. Years after his conviction, new technology made possible the testing of very small amounts of DNA.

Bradford was represented by Jackie McMurtrie, director of the UW's Innocence Project Northwest Clinic, students in the clinic, and UW alumnus (and Trial Ad instructor) Felix Luna.

For more details, see Rape Conviction Overturned, Yakima Herald-Republic, Sept. 14, 2006.

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NWIRP Awards

I just got home from the Northwest Immigrant Rights Project's annual gala and auction, where the following received awards:

Congratulations, all!

Some words of inspiration:
In her acceptance, Ann Benson quoted Gandhi: "We must be the change we wish to see in the world" and reminded us to work for better lives for all each day.

And one of the attorneys from Gibbs Houston Pauw reminisced about setting up the firm 25 years ago, when the newspapers were full of stories about upwardly mobile attorneys at big firms. He said he and his partners wanted to practice law in such a way that when they retired they could look back and believe that they had made a difference in people's lives and improved their community.

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Friday, September 15, 2006

Unsealed DV File Leads Reporters to Cop's Misconduct

The Seattle Times, as part of its investigative series Your Courts, Their Secrets, found that the Snohomish County Superior Court had sealed over 400 domestic violence cases in their entirety. Cop's "incomprehensible" conduct in murder mystery comes to light, Seattle Times, Sept. 13, 2006.

One of the files involved a police officer named John Padilla. When his wife was divorcing him, she found in a box in their bedroom closet an envelope with DNA evidence from a murder investigation years before. The envelope had been sent from a lab to the sheriff's office. Needless to say, a bedroom closet is not the standard place to keep sensitive evidence. The wife called Internal Affairs in the sheriff's department, which investigated. And, it turns out, he was also investigated for other violations of procedure, such as checking out crime-scene videotapes that he never returned and failing to book another tape into evidence. The murder is now a cold case, but if a suspect is found, there will be big "chain of custody" problems with the evidence.

The Times reporters followed this lead to learn of other investigations of Padilla and his being fired for incompetence. He is now employed as a prison guard -- the Dept of Corrections did not learn of his sloppy (or worse) performance when it checked his criminal record and contacted his references. (It did know about the domestic violence allegations but "viewed that as a personal, off-duty issue." Shouldn't we worry about a prison guard whose anger leads him to assault people he loves?)

Here's a twist: the Everett Herald ran a six-part series about the murder investigation. "The series depicted Padilla as a skilled investigator, 'stalking the truth,' applying hunting skills learned from youth, locking suspects with his 'pale blue eyes' to elicit confessions." If we doubt that an individual officer's incompetence should be splashed across the newspaper, doesn't it make a difference when the officer has already been in the paper as an ace detective in the same case?

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Florida high court to evaluate new proposal banning 'hidden' court cases

Florida high court to evaluate new proposal banning 'hidden' court cases, JURIST - Paper Chase, Sept. 7, 2006.

It looks like the Miami Herald has been doing an investigation similar to the one by the Seattle Times here -- also finding sealed cases involving judges, lawyers, politicians, businesspeople, and police officers.

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Supreme Court to make oral argument transcripts public same-day

JURIST - Paper Chase: Supreme Court to make oral argument transcripts public same-day, Sept. 15, 2006.

It's not about trials, but it's good news!

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Tuesday, September 12, 2006

Clark County Hires Indigent Defense Coordinator

Clark County (that's the county that includes Vancouver, WA) has hired Wenatchee attorney David DeLong for the new position of indigent defense coordinator. Attorney Selected to Run Indigent Defense, Columbian, Sept. 1, 2006.

Clark County's press release is here. The Wenatchee paper has a brief profile of DeLong: Wenatchee Attorney Takes Job in Clark County, Sept. 5, 2006.

The juxtaposition of "criminal defense" and "Wenatchee" led me to look up the PI's series on the abusive prosecutions and weak defenses in the sex abuse cases there in 1994 and 1995: The Power to Harm: A Record of Abuses in Wenatchee, Seattle P-I, Feb. 23-27, 1998.

DeLong is mentioned in this passage:

Limited in what he can spend, [Chief Public Defender Jeff] Barker had to scour the region for attorneys to take on the crush of cases. Local law firms that contract with him to handle spillover cases rejected the sex-abuse trials, saying they were too complex and costly for $90 an hour.

One lawyer willing to take a case was David DeLong, an experienced attorney who gave Miller a strong -- if unsuccessful -- defense. But many defenders were green as grass.
So Mr. DeLong has seen the dangers of a bad public defense system, has done his best on his own cases, and now will move on to Clark County to try to administer a system well. Good luck to him.

Thanks: Public Defender Stuff.

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PDs in LA

What's the day-to-day work of public defenders in a big city like? The Los Angeles Times had a five-part series ("Ground-Level Justice") by staff writer John Balzar about public defenders in Los Angeles Superior Court in Norwalk (a court that handles only felonies):

  • The System: Deals, Deadlines, Few Trials, L.A. Times, Sept. 4, 2006.
    Cisneros embodies one of the oldest tenets of American society: You can be so poor that you have no place to live, so poor that you must wear cast-off clothes and beg for food. But you cannot be so poor that you have to fend for yourself in the face of the law.
  • Defender Works for Fairness, Not Wealth, L.A. Times, Sept. 5, 2006.
    Indeed, anguish permeates every corner of this old courthouse, not just the lockup. It's as if ions in the courthouse air carry a heavy negative charge. Misery crowds onto concrete benches and spectator seats — defendants who are lucky enough to make bail, wives, girlfriends, boyfriends, mothers, aunts, children, babies — so many babies. And there are the victims and the bystander witnesses with subpoenas in their pockets. They are as likely as not to be full of their own dread.
  • When the Defense Wins a Tough Case, It's Sweet, L.A. Times, Sept. 6, 2006.
  • In Court, Players Are Immersed in Issues of Right and Wrong, L.A. Times, Sept. 7, 2006.
  • Wheels Wobble But Justice Rolls On, L.A. Times, Sept. 8, 2006.
Thanks: Public Defender Stuff.

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Attorney General McKenna Sues and Associates for Spyware

Attorney General McKenna Sues and Associates for Spyware, Washington AGO press release, Aug. 14, 2006.

The state’s suit accuses four California-based corporations of installing software that takes control of a consumer’s computer by launching aggressive and persistent pop-ups that demand payment for a movie download service.

“The defendants in our suit promote a movie download service through Web sites including that offer consumers a free three-day trial,” McKenna said. “After the trial period, consumers are inundated with pop-ups that appear at least hourly and subject the consumer to a 40-second payment demand that cannot be closed. These messages are generated by software installed on their computers that cannot be easily removed.

“To stop these aggressive pop-ups, many frustrated consumers ultimately give in to the defendants’ unfair tactics and pay anywhere from $19.95 to nearly $100 for the service,” McKenna said. “Thousands of consumers nationwide have complained to my office, the Federal Trade Commission, the Better Business Bureau and others about the defendants’ unfair practices.”
The press release links to a copy of the complaint, filed in King County Superior Court by the AGO's Consumer Protection Division on Aug. 4.

Thanks: beSpacific, Aug. 16.

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Wednesday, September 6, 2006

Chief Justices Sound Alarm on Judicial Elections

Tony Mauro reports Chief Justices Sound Alarm on Judicial Elections, Legal Times, Aug. 23, 2006:

The nation's state chief justices are launching a campaign to remind voters of what used to be obvious: Judicial elections are different from those for other offices.

Voicing 'grave concern' over increasingly partisan and costly campaigns, the Conference of Chief Justices -- representing the top jurists in all 50 states, the District of Columbia, and U.S. territories -- voted Aug. 2 on measures to emphasize the 'unique nature' of judicial elections. At least some of the judges in 39 states are elected.
Washington's primary is Sept. 19. Three Supreme Court justices face opposition. See

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Litigation Boutiques

An article in a Florida business newspaper looks at litigation boutiques -- lawfirms with, say, one or two dozen lawyers specializing in complex litigation. Some have been quite successful. Some big corporate clients like the level of service. Of course, a couple of people from big law firms are quoted saying that their litigation departments offer great service too. There's some commentary about tort reform in Florida under Gov. Jeb Bush. - Small Litigation Shops Produce Big Results, Daily Bus. Rev., Aug. 24, 2006.

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Plaintiff Who Came to Deposition Stoned Has Case Dismissed and Must Pay Fees - Plaintiff Who Came to Deposition Stoned Has Case Dismissed and Must Pay Fees, N.J.L.J., Aug. 29, 2006.

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New Orleans judge delays prisoner release reviews

JURIST - Paper Chase: New Orleans judge delays prisoner release reviews, Sept. 1, 2006.

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Tuesday, September 5, 2006

Big Legal Malpractice Judgment

Robert Ambrogi discusses a big legal malpractice judgment against a firm in Indianapolis: $18M Verdict Could Cripple Firm, Inside Opinions, Sept. 5, 2006.

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Animal Law Conference Coming Up

A 2 1/2-day Animal Law Conference will be held in Portland next month (Oct. 13-15). Hosts are the Student Animal Legal Defense Fund and the National Center for Animal Law, both at Lewis and Clark Law School.

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Sunday, September 3, 2006

High-Tech Stalking

Seattle Times columnist Nicole Brodeur profiles Sherri Peak, a stalking victim who wants to publicize her experience. The Seattle Times: Nicole Brodeur: Stalking victim uncovers dark use of technology.

The woman "couldn't get people to believe that she was seeing her estranged husband behind her on the road, in parking lots." Finally a Bellevue police detective inspected the vehicle thoroughly and found two devices behind the dashboard cover: a GPS that told the stalker where the car was, and a cell phone that enabled him to listen in to conversations inside the car.

Should this be publicized? What if it gives stalkers ideas? Peak believes that others are probably already using the technique, so it's better to publicize it. That makes sense.

Here are some scary numbers:

More than a million women and 370,000 men are stalked annually in the U.S., according to the National Center for Victims of Crime. Some 80 percent of cases involve women stalked by ex-boyfriends and former husbands.

More than half of female murder victims had reported stalking to police before being killed by their stalkers, according to the center.
The National Center for Victims of Crime's website is here, and its Stalking Resource Center is here.

Robert Peak, the estranged husband, pleaded guilty to felony stalking (RCW 9A.46.110) on August 14. Because of credit for time served, he will be out in a few months.

Thanks to Mary Hotchkiss for the lead.

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Newsworthy Court Record Sealed

The Seattle Times has another example of a newsworthy court record that was sealed at a party's request. In 1992 Stephanie Dorgan, a lawyer and nightclub owner, was sued by her business partners who alleged that she had not kept proper financial records and did not account for cash receipts. She settled the case in less than a month.

Dorgan's lawyer argued that the file should be sealed because she was an attorney and her reputation would be harmed if the allegations were to become known to others.

That argument didn't meet the legal standard for sealing a court case, but Dorgan benefited from a system in which judges and court commissioners in King County frequently overlooked the rules, often for attorneys, and improperly sealed hundreds of cases.
The Times argues that the allegations should be available, noting that they could have been relevant to the mayor (who appointed Dorgan to a task force about nightclub regulation), to the Liquor Control Board, and to WSBA. A judge unsealed the file on Aug. 5, at the request of the Times.
Of 420 civil suits sealed in King County Superior Court since 1990, judges and commissioners have sealed at least 58 cases where a fellow lawyer is a party, usually as a defendant. Leading firms, prominent lawyers, judges — all have had files about them hidden from public view.
Steve Miletich, Nightclub suit kept under wraps, Sept. 3, 2006. This article is the latest in the series Your Courts, Their Secrets.

Thanks to Mary Hotchkiss.

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Civil Commitment for Coe?

The state is seeking to commit Kevin Coe as a sexual predator. Although Spokane police believed him to have raped over 40 women and girls from 1978 to 1981, only one conviction stood, and he was due to be released this month. Coe, who maintains his innocence, has refused to meet with counselors or the state's evaluator. State is fighting to keep infamous rapist locked up, Seattle Times, Aug. 31, 2006; Rape victim tells her story: "He's always right there," Seattle Times, Sept. 3, 2006.

Coe's case went to the Washington Supreme Court twice:

  • State v. Coe, 101 Wash.2d 772, 684 P.2d 668 (1984), Westlaw (ordering a new trial because of "accumulated evidentiary errors," including admission of testimony of girlfriend about sexual practices, cross-examination of Coe about fiction he wrote, and admission of certain testimony by victims who had been hypnotized).
  • State v. Coe, 109 Wash.2d 832, 750 P.2d 208 (1988), Westlaw (reversing two convictions because of admission of post-hypnotic identification testimony)(four justices dissented).
Coe's case achieved national fame as the subject of a true-crime book and a TV movie (starring Elzabeth Montgomery):Thanks to Mary Hotchkiss.

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Saturday, September 2, 2006

Federal Prosecutions: The Numbers

The Justice Department's Bureau of Justice Statistics released a report looking at the decade 1994-2003 this week. Numbers are up: federal prosecutors investigated 130,000 suspects in 2003, up from 99,000 in 1994. Immigration offenses were part of the growing caseload, with 14% more immigration arrests and 25% more prison sentences for immigration convictions. The most common offenses in federal district courts were drug offenses. Bureau of Justice Statistics Press Release: Federal Criminal Justice Trends, 2003.

Meanwhile, for the current year, David Burnham and Susan B. Long, co-directors of the Transactional Records Access Clearinghouse, report on beSpacific:

Very timely criminal enforcement data from the Justice Department document that federal criminal prosecutions in May were up from the previous month in all of the following categories: white collar crime (up 8.5%), immigration (up 15.3%), illegal drugs (up 8.9%) and weapons (up 9.7%). However, only immigration is up from a year ago (up 4.8% from May 2005); the other enforcement areas all show declines in prosecutions from the previous year.
Detailed reports are here.

Thanks: beSpacific.

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How Maleng Makes Charging Decisions

How does King County Prosecutor Norm Maleng make charging decisions in high-profile cases? When does he seek an extraordinary sentence or the death penalty? A profile in this morning's Seattle Times takes a look: Natalie Singer, Maleng applies patient method to three tough cases, Sept. 2, 2006.

This summer's cases highlighted are: Mary Jane Rivas, who sped through a stoplight and killed a police officer; Naveed Afzal Haq, the man charged in the shootings at the Jewish Federation offices; Conner Schierman, the man who allegedly stabbed four neighbors to death and then burned their house.

Maleng says he alone will ultimately decide how to prosecute them.

Those who have worked with or watched Maleng for many of the 28 years he's been in office — even defense attorneys — say his approach to these difficult decisions is a solid and practiced one.

"Mr. Maleng has been unbelievably fair as to when to decide and when not to decide on the sentence of death. He's taken that question extremely seriously," said Mark Larranaga, former director of the Washington Death Penalty Assistance Center, which works with defense attorneys.
Prosecutors vary in how often they seek the death penalty. In 1981-2004, the death penalty was sought in 26% of the aggravated murder cases in King County. Here's a comparison with other large counties:
King 26%
Snohomish 26%
Spokane 46%
Pierce 52%

The numbers are from the Washington Death Penalty Assistance Center. Its website ( is not active, but you can read more on the version of the site last archived (March 2005) by the Internet Archive. Washington Coalition to Abolish the Death Penalty has more resources, including a copy of the Washington Death Penalty Assistance Center's study, Washington's Death Penalty System: A Review of the Costs, Length, and Results of Capital Cases in Washington State (2004?).

The article about Norm Maleng reminded me of a profile I read a couple of years ago in Washington Law & Politics. I didn't find it on the magazine's site, but it's excerpted on the National District Attorneys Association site, complete with a picture of Maleng as a teen Future Farmer of America. (By the way, NDAA has an archive of dozens of profiles of prosecutors from around the country.)

UW note: Maleng (class of 1966) is the president of the Washington Law School Foundation.

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No Charges for Assault, Shooting

Working through a set of facts that would provide plenty of grist for an issue-spotting exam on self-defense and use of force, King County prosecutors have decided not to file any charges against people involved in a fight that included men beating an off-duty officer and the officer shooting a man. No charges for men who beat up off-duty policeman, Seattle Times, Sept. 2, 2006.

Although accounts vary, the outline seems to be: off-duty police officer rides his own motorcycle in an alley crowded with pedestrians; woman confronts him, either knocks over motorcycle or clings to it as he tries to shake her; woman falls or is knocked to the ground; four to six men go to her aid; the men beat the officer severely; officer sees a man approach and shoots him with his service revolver. Prosecutors say that many of the actions were justified. The beating went well beyond the force necessary to protect the woman from the perceived danger -- but the identity of the men who beat the officer so badly is unclear. The shooting was in self-defense.

For more on this factually complex and controversial case, see

Depending on the facts emphasized, one could have at least two very different stories: (a) well-liked officer (with commendations), almost walking his motorcycle through the alley, asking people to clear the way, announcing himself as an officer, shooting only when he feared for his life from an assailant; or (b) obnoxious motorcyclist (a cop with multiple complaints against him), revving his engine and bullying pedestrians, rashly shooting a gentle bystander who was trying to break up the fight.

Some twists involving the legal profession: the man who was shot is a criminal defense attorney; the woman who confronted the officer is a paralegal from the attorney's office; the officer's sister, who stood up for him, was found by the bar association to have lied in a friend's divorce proceeding (she is appealing the recommendation of suspension).

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UW Med Ctr Settles Suit Over Billing

Settlement is reached in lawsuit over UW billing, Seattle Times, Sept. 2, 2006:

Patients who undergo minor surgery at the University of Washington Medical Center will receive a discount -- and will be able to get an estimate of their out-of-pocket costs ahead of time -- under a class-action lawsuit settlement announced Friday.

About 20,000 patients a year have such procedures, said John Phillips, a Seattle attorney who brought the lawsuit on behalf of Heidi Rothmeyer of Seattle. Rothmeyer challenged the medical center when it tacked onto her bill a hospital 'facility' fee for a dermatology procedure done at an outpatient clinic.
The article mentions a similar class action (still pending) against Virginia Mason Medical Center.

Mr. Phillips's firm, Phillips Law Group PLLC, also represented a class of uninsured patients in a class action against Providence Health System of Oregon. A settlement approved in June established fair pricing and charity care policies. See firm's statement.

The small firm (only four attorneys) often handles complex civil litigation. In addition to representing the classes of consumers in the cases above, it has also represented some very big corporate clients, including Philip Morris USA Inc., McDonald's Corp., and Home Depot U.S.A., Inc.

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Friday, September 1, 2006

ABA Youth At Risk Initiative

ABA President Karen Mathis has launched a Youth At Risk Initiative. Issues to be addressed include:

  • Promoting "meaningful involvement of teenagers in all hearings affecting them."
  • "Reforming the juvenile 'status offender' process."
  • "Improving how the law addresses system 'cross-over' youth" -- that is, teenagers who move from "dependency" (the foster care system) to "delinquency."
Thanks for the lead to Michele Storms.

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What Should Be Taught In Torts?

What should be taught in Torts? William G. Childs, the author of TortsProf Blog, asked a number of professors, lawyers, and others to offer their views. See Childs's index here: Updated - What Should Be Taught In Torts? A Series of Guest Posts, Aug. 31, 2006. The commenters include professors, practicing lawyers, a judge, and a law student who used to teach med school.

Since much civil litigation involves torts, I thought that made enough of a connection to trial advocacy to mention the series here. Some interesting comments:

  • A lawyer for Pfizer writes about proximate cause, saying it needs to be discussed beyond its roots in personal injury (think Mrs. Palsgraf, the scales, and so on) -- for instance in the context of statutory torts such as pharmaceutical consumer fraud.
  • Prof. Andrew McClurg discusses Three Things We Should Be Teaching in Torts (But Aren't):
    • "The common law tradition is at risk in the 'tort reform' era" (he criticizes the rhetorical excesses on both sides of the debate).
    • "The parties in tort cases are real people" (he links to a law review with very personal reflections on the impact of wrongful deaths on the survivors).
    • Other countries' tort systems can provide important lessons for US torts students.
  • A former professor of surgery and current law student urges more balance in class, sometimes taking the defendant's point of view.
  • John Day would like students to be exposed to The Economics of Case Acceptance.
  • Prof. Jennifer Wriggins gives some examples of discussing race in Torts.
There's more, too!

Thanks: Robert J. Ambrogi, Legal Blog Watch.

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Few Women Clerking for Supreme Court

Women Suddenly Scarce Among Justices' Clerks reports Linda Greenhouse (New York Times, Aug. 29). Statisticians will tell us that it's tricky making generalizations from very small samples, but the number of women is down -- just 7 out of 37 of this fall's new clerks. Racial and ethnic minorities remain scarce, as always.

See also Dahlia Lithwick, Clerked Around: Is There a Major Girl Crisis in Supreme Court Hiring?, Slate, Aug. 30, 2006.

UW note: The first woman to clerk for a Supreme Court Justice (William O. Douglas, in 1944) was a UW grad. See David J. Danelski, Lucile Lomen: The First Woman to Clerk at the Supreme Court, 23 J. Sup. Ct. Hist. 1 (1999).

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Ruling on Schierman Police Reports

Judge Gregory Canova (King County Superior Court) ruled that some of the police reports in the Conner Schierman case that were accidentally released to KING-TV will be made public. Ruling: Some police reports on killings to be made public, Aug. 30, 2006.

Defense attorneys oppose the release and hope to delay it until after another hearing, scheduled for Sept. 7. Attorney James Conroy says that the release "should just not happen, period," and might have tainted potential jurors.

Senior deputy prosecuting attorney Scott O'Toole says that publicity is inevitable in a case that is of so much interest to the public. "[Schierman] is accused of killing four people and torching their home. There is a certain amount of negative light he's going to have to endure." (This quotation is in the LexisNexis version of the article, but not in the web version.)

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