Greenhouse Gas Case in S. Ct.

The Supreme Court heard oral argument yesterday in Massachusetts v. EPA (05-1120), a case brought by states and environmental groups trying to force the federal government to regulate emissions of greenhouse gases. Supreme Court divided on greenhouse gases?, Seattle Times, Nov. 30, 2006.

Massachusetts gets top billing, but there are lots of states involved:
Petitioners include:

• States: MA, CA, CT, IL, ME, NJ, NM, NY, OR, RI, VT, WA.
• Other governments: DC, American
  Samoa, New York City, Baltimore.
• Environmental groups: Ctr. for Biological Diversity, Ctr. for Food Safety, Conservation Law Found., Env't'l Advocates, Environmental Defense, Friends of the Earth, Greenpeace, Int'l Ctr. for Technology
  Assessment, Nat'l Env't'l Trust, Natural Resources Defense Council, Sierra Club, Union of Concerned Scientists, and U.S. Public Interest Research Group.

The respondents are a big group, too:

• EPA
• States: MI, AK, ID, KS, NE, ND, OH, SD, TX, UT (intervenors below).
• Industry and trade groups: Alliance of Automobile Manufacturers, Nat'l Automobile Dealers Ass'n, Engine Mfrs Ass'n, Truck Mfrs Ass'n, CO2 Litigation Group, Utility Air Regulatory Group.

Basic map from Ben's Guide to U.S. Government for Kids. Wanting to avoid the red state/blue state cliche (and rejecting green for environmentalists and gray for polluters), I chose pink for petitioners. Yellow made a nice contrast, so that's the color for respondents. See a pattern?

The merits briefs are available on the web. (They're linked from the Supreme Court's website but maintained by the ABA.) The Massachusetts brief lists counsel for all the petitioners, including, for Washington, Attorney General Rob McKenna, Asst AG Leslie R. Seffern, and Deputy Solicitor General Jay D. Geck.

There's not a "trial" angle to this, since the case began in the Court of Appeals (D.C. Circuit). But it's an interesting case in the news, and at least we have a Washington connection. (Trial Ad Notes doesn't have to be rigid about the scope of its coverage, does it?) Here's the press release from when Washington (under then-Attorney General Gregoire) joined the case: State Challenges EPA Decision on Global Warming, Oct. 23, 2003.

Thanks: Nicole Tadano.

Trial Lawyer Going Downhill

Here's an item in honor of Seattle's snowfall last night and slick roads and sidewalks today...

Evan Schaeffer has posted A Video-Podcast Made While Skiing, Evan Schaeffer's Legal Underground, Nov. 28, 2006.

As Robert Ambrogi observed, "No one is likely to argue with Schaeffer's claim that he is the first-ever lawyer and poor skier to take a blue slope while recording a discussion of the Federal Rules of Civil Procedure." Making Legal History, One Schuss at a Time, Nov. 28, 2006.

The video doesn't actually say much about the Federal Rules of Civil Procedure, but it's amusing that Evan thought to do this at all. His blogs, Legal Underground and the Illinois Trial Practice Weblog, consistently do have good, solid information and helpful tips.

Now let's hope I can get home as gracefully as Evan got down that ski slope. At least no one will be filming it if I take a pratfall on the ice.

Davis Wright Merges

Davis Wright Tremaine, one of Seattle's largest firms, will merge with a smaller DC firm on Jan. 1. The DC firm, Cole, Raywid & Braverman, represents cable and telecommunications companies. Davis Wright to Merge With 35-Attorney Firm, Legal Times, Nov. 28, 2006 (law.com).

The firms' press release (Nov. 28) is on each firm's website, here (CR&B) and here (DWT).

Federal Rules of Civil Procedure: Easier to Read?

Everybody handling a lawsuit needs to work within the court rules -- for instance, the Federal Rules of Civil Procedure. Alas, court rules are sometimes written in a rather dense style. But there's hope! For over a decade a group within the Civil Rules Advisory Committee has been working on a revision of the Federal Rules of Civil Procedure to make them clearer and easier to understand.

A comprehensive revision of the rules was approved by the Judicial Conference of the United States in September. Now the proposal goes to the United States Supreme Court. If the justices approve, then the rules will be slated to take effect Dec. 1, 2007. (Congress gets to review proposed rule changes and can stop them from taking effect. Usually, Congress does nothing and the rules that the Court approves take effect.)

Here's a taste of the change:

(Current) Rule 6. Time

(a) Computation. In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the district court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule and in Rule 77(c), "legal holiday" includes New Year's Day, Birthday of Martin Luther King, Jr., Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the President or the Congress of the United States, or by the state in which the district court is held.

(Proposed) Rule 6. Computing and Extending Time; Time for Motion Papers

(a) Computing Time. The following rules apply in computing any time period specified in these rules or in any local rule, court order, or statute:

(1) Day of the Event Excluded. Exclude the day of the act, event, or default that begins the period.

(2) Exclusions from Brief Periods. Exclude intermediate Saturdays, Sundays, and legal holidays when the period is less than 11 days.

(3) Last Day. Include the last day of the period unless it is a Saturday, Sunday, legal holiday, or -- if the act to be done is filing a paper in court -- a day on which weather or other conditions make the clerk's office inaccessible. When the last day is excluded, the period runs until the end of the next day that is not a Saturday, Sunday, legal holiday, or day when the clerk's office is accessible.

(4) "Legal Holiday" Defined. As used in these rules, "legal holiday" means:

(A) the day set aside by statute for observing New Year's Day, Martin Luther King Jr.'s Birthday, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Thanksgiving Day, or Christmas Day; and

(B) any other day declared a holiday by the President, Congress, or the state where the district court is located.

The answer's the same, but I think the new rule is significantly easier to work one's way through. This is good news for everyone who has to read, absorb, and abide by court rules. And it should make first-year Civ Pro just a little easier, too!

All of the rules -- along with a cover memo, the advisory committee's official comments, and more -- are here. My example, Rule 6, is from page 25 of the pdf.

(This is adapted from a post at shlep: the Self-Help Law ExPress. I don't think I really need to give credit, since it was my post, but it doesn't hurt to remind readers that shlep is out there.)

Moot Court Stars

Congratulations to the UW students who won the Regional Round of the National Moot Court Competition at the University of Idaho, Nov. 9-11. UW School of Law Sweeps Regional Round of the National Moot Court Competition, UW press release, Nov. 11, 2006. (Obviously I missed the press release when it was first posted.)

The victorious team included Heather Bowman (3L), Dustin Buehler (3L), Adam Franklin (3L), Anna Jackson (2L), Candice Tewell (2L), and Aaron Thomson (3L). Buehler, Tewell, and Thomson will represent the UW at the 57th Annual National Moot Court Competition final rounds in New York in January 2007.

The team is coached by UW alumni Shawn Griggs ('00) (Bauer Moynihan Johnson) and Patrick Hinds ('03) (King Prosecuting Attorney's Office).

Wishbone Lawsuit

Local company Lucky Break Wishbone makes plastic wishbones. Think of all the squabbles with siblings could be avoided if everyone got a wishbone! Now even vegetarians can make wishes!In August 2005, Sears (allegedly) ordered over a million wishbones from the company -- but then decided to have them made offshore. Now the little manufacturer is suing Sears and its advertising company (Young & Rubicam) for breach of contract and copyright infringement. Judge Thomas Zilly (W.D. Wash.) has ordered the two sides to spend 60 days in mediation. West Seattle company is fighting over the wishbone, Seattle Times, Nov. 22, 2006.

Remember Contracts class? When is a contract formed? Does an email exchange satisfy the Statute of Frauds?

Does copying the shape of a bone have enough originality for a copyright?

Attorneys quoted in the article are Mark P. Walters (Christenson O'Connor Johnson Kindness, Seattle) for Lucky Break and Marc J. Rachman (Davis & Gilbert, New York), for the defendants.

To Split or Not to Split

Engage, a journal from the Federalist Society, has a point-counterpoint about the merits of splitting the Ninth Circuit:

• Diarmuid F. O'Scannlain, Ten Reasons Why the Ninth Circuit Should Be Split, Engage, Oct. 2005, at 58-64 (the whole issue is here in pdf).
  • A speech in which Judge O'Scannlain argued for the split (March 16, 2006) is on the Harvard Federalist Society's website.
• A Court United: A Statement of a Number of Ninth Circuit Judges, Engage, March 2006, at 63-66 (the whole issue is here in pdf; the article itself is on Alex Kozinski's website).
  • The judges signing on were: Chief Judge Mary M. Schroeder and Judges James R. Browning, Alfred T. Goodwin, J. Clifford Wallace, Procter Hug, Jr., Otto R. Skopil, Betty B. Fletcher, Jerome Farris, Harry Pregerson, Warren J. Ferguson, Dorothy W. Nelson, William C. Canby, Jr., Robert Boochever, Stephen Reinhardt, Melvin Brunetti, Alex Kozinski, John T. Noonan, Jr., David R. Thompson, Michael D. Hawkins, A. Wallace Tashima, Sidney R. Thomas, Barry G. Silverman, Susan P. Graber, M. Margaret McKeown, Kim M. Wardlaw, William A. Fletcher, Raymond C. Fisher, Richard A. Paez, Marsha S. Berzon, Johnnie B. Rawlinson, Richard R. Clifton, Consuelo M. Callahan & Carlos T. Bea, all of the Ninth Circuit Court of Appeals.
• Judge O'Scannlain will respond in the next issue of Engage. (It was scheduled to be published "in early fall" but it is not yet posted.)

Wikipedia has a good entry about the Ninth Circuit, including the composition of the court, controversy about its rulings, and the history and current state of splitting proposals.

Civilian Oversight of King County Sheriff?

Following a commission's recommendation, King County Executive Ron Sims proposed (and the King County Council approved) a civilian oversight office over discipline in the Sheriff's Office. The Police Officers Guild filed an unfair labor practice charge with the Public Employment Relations Commission. Now the guild is withdrawing its charge and has agreed to negotiate over the issue with Sims. Executive to open police union negotiations for civilian oversight- King County, News Release, Oct. 31, 2006.

2006 Federal Sentencing Guideline Manual

The 2006 Federal Sentencing Guideline Manual is now available online in several formats from the United States Sentencing Commission. You can use it in HTML, download individual chapters or the whole thing in PDF, or even download a special electronic version designed just for Palms and Pocket PCs.

Another item: The Sentencing Commission held a hearing on cocaine and sentencing policy last month.

Thanks: be Spacific.

Looking at Metadata

A word processed document can include information such as the dates it was created and modified, changes made, and comments attached to it. So if opposing counsel sends you a document as an email attachment, is it OK to take a look? You'd love to find a comment like "weak argument - hope the other side doesn't notice" wouldn't you?

Some ethics experts say it's not right to peek, but now there's an ABA ethics opinion that says "Go ahead!" Lawyers Receiving Electronic Documents are Free to Examine 'Hidden' Metadata: ABA Ethics Opinion, ABA News Release, Nov. 9, 2006:

The ABA committee noted metadata is ubiquitous in electronic documents, and includes such information as the last date and time that a document was saved and by whom, data on when it was accessed, the name of the owner of the computer that created the document and the date and time it was created, and a record of any changes made to the document or comments written into it.

“Other types of metadata may or may not be as well known and easily understandable ... Moreover, more thorough or extraordinary investigative measures sometimes might permit the retrieval of embedded information that the provider … either did not know existed, or thought was deleted,” said the opinion. And while the opinion said most metadata “probably is of no import,” it added that the metadata can sometimes reveal such critical information as “who knew what when,” or negotiating strategy and positions.

Thanks: beSpacific.

Settlement Over Geoduck Poaching

Washington State has settled with a Canadian company that allegedly conspired with a convicted poacher to steal more than 65 tons of geoduck from South Puget Sound. AG McKenna Announces Criminal Profiteering Settlement with Clear Bay Fisheries, News Release, Nov. 1, 2006.

Under the settlement agreement, Clear Bay Fisheries agreed to pay $112,500 in restitution to the State and release its liens in a vessel that had been used in the poaching operation. Clear Bay Fisheries and its officers also agreed to be permanently banned from engaging in the shellfish business in Washington. Clear Bay denies all liability and made no admissions of liability in settling with the state.

The market value of the stolen clams was about $1.5 million. (That's a lot of clams!) The man who supplied the geoduck is serving a 14-year sentence for "theft of geoduck, trafficking in poached shellfish and other crimes."

Photo: Washington Dept. of Fish and Wildlife. Of course I'm not suggesting that the young man in the picture is a poacher: I just wanted people unfamiliar with the world's largest burrowing clam (and Evergreen's mascot) to get an idea of scale.

Lawsuit Settlement Scam

The Washington Attorney General's Office warns consumers of a scam involving a lawsuit settlement. The victim gets a letter purporting to be from a law firm. The letter comes with a check (hard to resist, right?) for the recipient's share in a class action settlement. The bounces after it's deposited, but in the meantime, the recipient has sent the "law firm" personal information that could facilitate identity theft and may have sent money too. Consumer Alert: Beware of Cons that Claim You’ve Received Payment for a Lawsuit Settlement, News Release, Nov. 16, 2006.

Con games generally rely on people's dreams of getting rich, as well as their lack of skepticism. (Not everyone lives by the maxim, "If it seems too good to be true, it probably is.") This scam is interesting as a comment on public perceptions of the legal system. The victims believe that there well could be a lawsuit against a company they don't remember doing business with that would have such a big payout that they'd get a good-sized check.

HGN Admissible without Frye Hearing

In a DUI case in King County District Court, the State sought a pretrial hearing on the admissibility of the Horizontal Gaze Nystagmus (HGN) test to show impairment by alcohol. (The HGN test is what the patrol officer is doing when he or she asks the driver to follow a pen light side to side.) Since the issue was of county-wide significance, it was assigned to a three-judge panel. The panel held:

[T]he State may move to introduce HGN tests without the need for a Frye evidentiary hearing. The testimony of a state toxicologist regarding the results of an HGN test is admissible if the witness and the witness's testimony meet the requirements of ER 702 and ER 703.

Order on Pretrial Motion Regarding the Admissibility of HGN Evidence to Establish Impairment, Washington v. Williams, No. C0518820 (April 7, 2006), at 9. Judges David A. Steiner and Douglas J. Smith were in the majority; Judge Mark Elde dissented.

This development isn't particularly recent -- the decision was six months ago -- but I think it's worth a post.

1. I wasn't aware of the district court procedure that will assign an issue to a three-judge panel. See King County LCrRLJ 8.2(2). That sounds like a good way to improve consistency. (Of course, if there's a clear statement from the Court of Appeals or the Supreme Court, all the better. There is nothing more recent on HGN than this opinion in WA-CS on Westlaw.)

2. I also wasn't aware that some district court opinions were available (e.g., King County District Court decisions). Many relate to traffic infraction and DUI cases.

3. More on HGN:

• For a defense perspective, see Mimi Coffey, DWI -- Modern Day Salem Witch Hunts, Champion (National Ass'n of Criminal Defense Lawyers), Nov. 2004, at 51.
• For a variety of links, see Types of Field Sobriety Tests, a page from DUI: A National Online Resource Library for the Judiciary on Impaired Driving. (The site "was developed by the National Association of State Judicial Educators (NASJE), through the New Mexico Judicial Education Center, under a contract from the National Highway Traffic Safety Administration (NHTSA).")
• The Washington State Patrol's Forensic Laboratory Services has a lot of technical information -- for instance, DWI Detection and Standardized Field Sobriety Testing Student Manual 2004 Edition (from the National Highway Transportation Safety Administration) (HGN test is described in detail at VIII-3 through VIII-8).

Photo of officer and Explorer Scout from Wise County Sheriff's Dept., Decatur, TX. On Tuesday, I sent an email message asking for permission to use this photo, but haven't heard back yet. The use seems innocuous to me, so I'll go ahead and use it; I'll gladly take it down if there's a problem.

Kozinski Chides Tacoma

Affirming a jury verdict against Tacoma in a police misconduct case, Judge Alex Kozinski suggested the case was so strong that the city's appeal was frivolous. Frunz v. City of Tacoma, No. 05-35302 (9th Cir. Nov. 13, 2006).

A man reported to the police that his neighbor had asked him to keep an eye on his house while he was out of town and that now the neighbor's ex-wife appeared to be inside. Two officers stopped by the house and saw no signs of a break-in. The man called again to say that she was still inside and had opened the door to guests. Forty minutes later, at least three officers broke down the back door and handcuffed the woman and her guests on the floor. The two guests were released after the officers checked their IDs and found they had no outstanding warrants. The woman was kept cuffed for about an hour, until the officers reached her divorce lawyer who confirmed that she had received the house in the divorce.

A jury found against the defendant officers on all counts, awarding $27,000 in compensatory damages and $111,000 in punitive damages. On appeal, the officers argued that the verdict was not supported by the evidence and that they were entitled to qualified immunity. Judge Kozinski was not persuaded in the least:

Only the most misguided optimism would cause defendants, and those who are paying for their defense, to appeal the verdict under these circumstances. Surely, the citizens of Tacoma would not want to be treated in their own homes the way the jury found [the] officers . . . treated Frunz and her guests. A prompt payment of the verdict, accompanied by a letter of apology from the city fathers and mothers, might have been a more appropriate response to the jury’s collective wisdom.10

10 Defendants and their counsel shall show cause within 14 days why they should not be assessed double costs and attorney’s fees for filing a frivolous appeal. Fed. R. App. P. 38.

See blog posts: Volokh Conspiracy (with over 100 comments), Nov. 14, 2006; Legal Blog Watch, Nov. 15, 2006.

Update (Nov. 27): News Tribune columnist Peter Callaghan printed excerpts from the oral argument, during which Judge Kozinski questioned Tacoma's attorney pointedly. Kozinski thought that the jury award was very modest:

“You had a jury and to me it sounded like the jury gave your clients a hug and kiss for what they did. Boy was this a parsimonious jury. You should have thanked them.”

Bread and butter get expensive in 9th Circuit, News Tribune, Nov. 21, 2006. The column links to audio of the oral argument.

Thanks: Lisa Kremer.

9th Cir. Reviews Ressam Sentence

Ahmed Ressam was convicted of nine felonies, including conspiracy to commit an act of international terrorism. After he cooperated with the government by giving information about others involved, Judge Coughenour (W.D. Wash.) sentenced him to 22 years in prison. Now the prosecution is challenging the sentence, saying it was too lenient. Oral arguments were Monday. Justice Department argues for tougher sentence for Ressam, Seattle Times, Nov. 14, 2006. See also Lawyers to argue Ressam sentence before appeals court, Seattle Times, Nov. 12, 2006.

Ressam is represented by Tom Hillier, Federal Public Defender (and Trial Ad instructor).

Drunk Driver Extradited from Ireland

Five years after the fatal accident, Fred Russell is being extradited from Ireland to stand trial for vehicular homicide and vehicular assault (three counts of each) in Whitman County. Fugitive en route home after 5 years in Ireland, Seattle Times, Nov. 10, 2006.

In June 2001, Russell was driving to a party in Moscow, ID, after leaving a bar in Pullman. His SUV crossed the center line and hit a car with 7 WSU students who were headed back to Pullman after going to a movie in Moscow. Three of the students were killed and three were injured. In August 2001, he pleaded not guilty to all counts. Before a pretrial hearing, he had a friend drive him to Canada, and eventually landed in Ireland.

He was arrested in Dublin, where he was living under an assumed name, after a tip from someone who recognized him from the U.S. Marshals Most Wanted website. Irish Police Arrest U.S. Marshals' 15 MOST WANTED Fugitive Sought for Vehicular Homicide in Washington State (press release from U.S. Marshals Service), Oct. 24, 2005.

Ireland often denies extradition to the U.S., but in this case, the High Court (which is below the Supreme Court in Ireland) granted it. Attorney General v. Russell, [2006] IEHC 164 (23 May 2006).

The three arguments raised by Russell and rejected by the court were: (1) Despite prosecutor's assurances, he might be prosecuted for bail jumping or interstate flight, which are not extraditable. (2) He feared for his life, since some friends of the victims had threatened him. (3) He might be subjected to "inhuman and degrading treatment" in a Washington prison. After the decision, he was also turned down for political asylum.

Russell's new attorney is Francisco Duarte (a Trial Ad instructor). He says that he will seek a change of venue, since public opinion is very heated in Whitman County. (This remark was in the version of the Seattle Times article on LexisNexis but not in the one on the website.)

Graphic from U.S. Marshals wanted poster.

National Adoption Day

Courts around Washington are celebrating National Adoption Day this week. Washington Courts press release, Nov. 14, 2006.

The King County event will be Friday, Nov. 17, 11-12, Presiding Courtroom E942.

The statewide celebration is sponsored by the Washington Supreme Court's Commission on Children in Foster Care, co-chaired by Justice Bobbe Bridge and DSHS Assistant Secretary Cheryl Stephani.

Ecosabotage Guilty Pleas

Four people pleaded guilty to arson charges last week in federal court in Eugene, OR. 4 more plead guilty in ecosabotage cases: trial may be avoided, Nov. 10, 2006. One remaining defendant has not entered a plea.

According to the Seattle Times article:

The guilty pleas reflect the strength of the government's evidence, which was bolstered by extensive informants' testimony. The pleas also reflect the harsh consequences should defendants risk a trial and end up being convicted.

Sentenced might have been 30 years or life, but with the pleas, the government is recommending 8 years for three defendants and 5 years for the fourth.

Trial Ad instructor Amanda Lee represented defendant Daniel McGowan:

"I hope you will see that my actions were not those of a terrorist, but of a concerned young person who was deeply troubled by the destruction of Oregon's beautiful old-growth forests and the dangers of genetically modified trees," McGowan, 32, of New York City, said in a tearful statement in court. "... I realized that burning things down did not fit with my visions or belief about how to create a better world. So I stopped committing these crimes."

Defense attorneys had asked that the court order the prosecution to say whether NSA warrantless wiretaps had been used. The prosecutors said surveillance was not a factor but Lee "said the timing of the plea agreement led her to believe it was."

Rule Proposed for Tracking Capital Filings

The Superior Court Special Proceedings Rules - Criminal apply whenever the death penalty may be (or has been) imposed. For instance, instead of one appointed counsel, the defendant must have two, each with at least five years of experience. SPRC 2.

To improve the tracking of which proceedings are covered, the Supreme Court is proposing that prosecutors be required to notify the Washington State Office of Public Defense whenever they file a notice of special sentencing in aggravated murder cases (RCW 10.95.040) and then when they decide whether or not they will seek the death penalty or the time for filing expires. Proposed New Rule SPRC 8. Comments on the proposed rule are due by April 30.

Summary Judgment in Courts of Limited Jurisdiction

Proposed Changes to CRLJ 56 would affect the timing of summary judgment motions and responses in the courts of limited jurisdiction. So that people without lawyers aren't blindsided and hit by default judgments, a party filing a motion for summary judgment would be required to send a copy of the rule to any unrepresented parties. Comments are due by April 30 (there's one posted so far).

You Say “Aggressive” - I Say “Self-Confident”

Words are the tools of our trade; effective attorneys know how to verbally paint the picture they want others to see. Advocacy Words: A Thesaurus, by William Drennan, is a little book (from the ABA's GP/Solo Section) which will help you find just the right word. It has two separate word lists, “Favorable-Critical” and “Critical-Favorable”, which suggest alternative words that “spin” your original word into your side of the argument. So why let the prosecution call your client “cowardly” when you can say she’s “prudent”? Where can you find this gem? K50 .D74 2005 at Reference Area.

Reprinted with permission from Stacy Etheredge's post at Cocky Law Blawg, the Coleman Karesh Law Library's blog. (The University of South Carolina's mascot is the Gamecock.)

Thanks: Melissa Fung.

SD Judicial Accountability Measure Defeated

Amendment E, a measure that would have created a private cause of action against judges for their decisions, appears to have failed in South Dakota, 89% to 11% according to early returns. Judicial accountability amendment crushed, Rapid City Journal, Nov. 8, 2006. Here is the state attorney general's summary from the 2006 Ballot Questions booklet (p. 4):

Citizens serving on juries, school boards, city councils, county commissions, or in similar capacities, and prosecutors and judges, are all required to make judicial decisions. Their decisions may be reversed on appeal, or they may be removed from office for misconduct or by election. However, they cannot be made to pay money damages for making such decisions. This allows them to do their job without fear of threat or reprisal from either side.

The proposed amendment to the State Constitution would allow thirteen special grand jurors to expose these decision makers to fines and jail, and strip them of public insurance coverage and up to one-half of their retirement benefits, for making decisions which break rules defined by the special grand jurors. Special grand jurors are drawn from those who submit their names and registered voters.

The proposed amendment is retroactive. The special grand jurors may penalize any decision-maker still alive for decisions made many years ago.

The measure was backed by J.A.I.L. 4 Judges (Judicial Accountability Initiative Law), whose founder, Ron Branson, drafted a similar measure for California.

Defending the Green River Killer

Seattle attorney Mark Prothero, one of Gary Ridgway's attorney's has written (with Carlton Smith) Defending Gary: Unraveling the Mind of the Green River Killer.

The publisher's information about the book is here.

See the review by Gene Barton in the September 2006 Bar Bulletin. Here's a taste:

Prothero, who along with the other members of the defense team and Norm Maleng's prosecution team, was one of KCBA's Attorneys of the Year for 2003, saves his most biting - and delightful - criticisms for the FBI and its serial killer "science." The mousy, often tearful, unassuming man, with the big glasses and the doughy face, befuddled and confounded an FBI profiler sent to interview him because he could not be made to fit the mold. The serial killer profile "is what it is," the FBI tells us, and cannot, will not be circumscribed by the protestations of a killer who, for example, insists that he did not collect "trophies" from his victims. Ridgway, who by all accounts actually told the truth about this, took jewelry from his victims, but often left it scattered around his workplace to be found by female employees. They often wore it - rather than turning it in - much to Ridgway's delight.

The one true insight comes very early on and that is into Prothero's motivation, not Ridgway's. In my days as a reporter on the crime and courthouse beat, I once asked a public defender how he could defend people who he knew were guilty of the crimes with which they were charged. His response was simple, yet profound: "Even the guilty have constitutional rights." Prothero follows the same credo and it is an admirable one.

The book is available in the law library (HV6533.W2 P76 2006 at Good Reads) and through Summit.

Prothero's website has two domain names, by the way: www.markprothero.com and www.washingtoncriminaldefenselawyer.com.

Filed in: books, Prothero, Ridgway, Barton, Smith, KCBA, FBI, criminal-defense, serial-killers

Holly Hill Profile

Curious about the career of Trial Ad instructor Hollis (Holly) Hill? See Patty Rose, Profile/Holly Hill Fighting Inequality Blazes Trail to the Top, Bar Bull., Sept. 2006. Hill's Trial Ad profile is here.

Filed in: Hill, UW, practice-of-law

King County Judges' Reversal Rates

Statewide, 69% of the cases appealed to the Washington Court of Appeals in 2003 were affirmed. Is that rate the same here in King County? Is there any variation among the judges? Are some superior court judges reversed more often than others?

Frederick P. Corbit, a shareholder at Heller Ehrman, studied all the 2005 Washington Court of Appeals cases reviewing King County cases. Study Reveals Judges' Reversal Rates, Bar Bull, Oct. 2006. (Note: as soon as the November issue is loaded, the URL will change to this.) The affirmance rate was similar to the statewide rate in the earlier study: 67% affirmed. Of the 18 judges who had 10 or more cases appealed, not one was affirmed all the time -- but two were affirmed at least 90% of the time and four were affirmed on all issues in 50% or fewer cases.

Did those four judges just have a bad year? Were their low success rates just an aberration, attributable to the small sample size? Corbit took the four judges with the lowest affirmance rates and looked at all their appeals. One's rate went up from 30% to 62% -- a tremendous change, but still below average. Another stayed low (moving only from 50% to 51%). But the other two judges who had low affirmance rates in 2005 actually had above average rates when the sample was increased -- 72% and 88%.

Corbit also looked at how the judges were rated in the 2003 KCBA Judicial Evaluation Survey. Judges who were most often affirmed tended to get higher ratings, and judges who were most often reversed tended to get lower ratings.

Corbit concludes:

the sample of cases reviewed was not large enough by itself to be a useful tool in fairly evaluating King County Superior Court judges, but it shows enough disparity in the reversal rates between the highest-regarded trial judges and other judges to warrant a more exhaustive analysis of the reversal rates. The correlation observed between reversal rates and judicial evaluations suggests that reversal rates could be an appropriate factor to consider when evaluating Superior Court judges.

Tables with detailed data are here.

Filed in: judges, appeals, King-County, empirical-studies, Corbit

Family Law Sample Interrogatories

Family Law Sample Interrogatories from the King County Bar Assocation are now available for download.

Filed in: interrogatories, family-law, KCBA