Wearing o' th' Green (on the Ballot)

Illinois has passed a law saying that candidates for office who have changed their names within three years have to disclose it on the ballot ("Marilyn Monroe, formerly known as Norma Jean Mortenson"). The target? Lawyers who adopt Irish-sounding names in order to run for judge -- most recently Frederick S. Rhine, who became Patrick S. O'Brien (NOT the Patrick O'Brian who wrote Master and Commander). "Though the census shows the Irish or part-Irish amount to less than 20 percent of the Cook County electorate, candidates with Irish names -- especially female candidates -- tend to sweep judicial elections." Gov OKs bill targeting wannabe Irish judges, Chicago Sun-Times, Jan. 31, 2007. There's an exception for people who've changed their names due to marriage, divorce, or adoption.

The law was signed by Gov. Rod R. Blagojevich -- probably not someone who shopped around for a name that would be easy to fit onto bumperstickers.

This is an amusing news snippet, but seriously: what does it say about judicial elections? It's not just folks in the Windy City who go into the voting booth, see the list of judicial candidates, and have little else to go on but what name sounds comforting. (Here in Washington, people have speculated that elections were shaped by name more than qualifications. We just haven't had a rash of candidates changing their names to fit voters' preferences -- that I know of.) And maybe we should worry just a little that "Kelly O'Connor" sounds so much more judicial than, say, "Xinh Nguyen," "Ibrahim Mohammed," or "Latonna Robinson."

Thanks: Maureen Howard.

Jury says Seattle violated rights of WTO protesters

Jury says Seattle violated rights of WTO protesters, Seattle Times, Jan. 31, 2007. The jury found a 4th Amendment violation, but not a 1st Amendment violation.

Charges dropped against mother accused of letting children starve to death

Charges dropped against mother accused of letting children starve to death, Seattle Times, Jan. 31, 2007. The woman was judged incompetent to stand trial after a year at Western State Hospital. She has suffered from alcoholism, depression, and psychotic episodes. The state will now seek civil commitment.

"This is a sad, sad case," said King County Superior Court Judge Helen Halpert. "I know the result may be unsatisfactory to the family... but a basic tenet of the justice system is that a defendant must be able to understand the nature of the legal charges against her."

Washington's Death Penalty

Since King County Prosecutor Norm Maleng has announced that the state will seek the death penalty for Conner Schierman (the man accused of stabbing four neighbors and burning their house), the issue of proportionality is on the table again. Natalie Singer, If Ridgway got life, would anyone get death?, Seattle Times, Jan. 31, 2007.

Like other defense attorneys in recent years, [Schierman's attorney, James]Conroy argues that it's unfair for his client, accused of four murders, to face the death penalty when Ridgway, convicted of so many more, did not.

"It defies any rational analysis," he said. "I'm disappointed for my client, [but] I am more troubled by the system we have in place. Permitting any prosecutor to pick and choose is fundamentally flawed."

That basic proportionality argument did not persuade the state Supreme Court, when it was one of a number of arguments made on appeal in State v. Cross (March 30, 2006), Findlaw links: majority (Chambers, J.), concurrence (Alexander, C.J.), dissent (C. Johnson, J.).

Since Cross's trial, the Green River Killer, Gary Ridgway, was caught, prosecuted, and sentenced to life in prison. We cannot begin to calculate the harm his abhorrent murders caused. The fact he will live out his life in prison instead of facing the death penalty has caused many in our community to seriously question whether the death penalty can, in fairness, be proportional when applied to any other defendant.

We do not minimize the importance of this moral question. But it is a question best left to the people and to their elected representatives in the legislature. Under the United States Constitution (the only constitution plead[ed] here), Washington's death penalty is constitutional and nothing about Gary Ridgway changes that.

(By the way, Trial Ad instructor Todd Maybrown was one of Dayva Cross's attorneys on appeal.)

Two bills in the legislature (HB 1518 and SB 5786) would stay death sentences until July 1, 2008, and set up a task force to study the death penalty. Here's part of the bill digest for HB 1518:

Finds that historically most death sentences imposed in Washington have been reversed and rarely imposed. The legislature further finds that it is in the state's interest to determine whether the state's capital punishment system is applied fairly and proportionally, and whether the continued allocation of substantial time, resources, and moneys spent on capital trials and appeals is warranted. * * *
Creates a death penalty task force for the purpose of conducting a review of the existing death penalty statutes and court rules to determine the following:

(1) The uniformity of decision making by prosecuting attorneys in terms of charging defendants with aggravated first degree murder and the criteria used in such decisions;
(2) The impact of race, ethnicity, gender, and economic status on the likelihood of a defendant being charged with aggravated first degree murder;
(3) The administration of Washington's death penalty law since the enactment of chapter 10.95 RCW to determine whether it is applied randomly or arbitrarily;
(4) The costs associated with capital trials and appeals;
and
(5) Whether there are revisions to existing statutes and court rules that, if implemented, would decrease the likelihood of an inappropriate imposition of the death penalty.

Related stories in the Times list four Executions in Washington since 1975 and the Washington state offenders awaiting execution

States Settle with Bayer for $8M

Washington sued Bayer Corp. in King County Superior Court for failing to warn prescribers and consumers of side effects from a cholesterol drug that has since been removed from the market. Washington was joined by 29 other states. Without admitting any wrongdoing, Bayer has now settled for $8 million. McKenna Announces $8 Million Settlement with Bayer Corporation, AG's press release, Jan. 25, 2007. The complaint and consent decree are here.

Direct Testimony Exercise

Robert Boggs advises lawyers to paint a picture with direct testimony. And as a little exercise, he invites you to read a descriptive paragraph (that he provides) and work through the questions that would elicit the facts. Paint a picture with direct testimony, Washington Trial Law, Jan. 17, 2007.

Wash. Construction Law Case

Washington Supreme Court overturns "completion and acceptance" doctrine, according to Robert Boggs at the Washington Trial Law blog (Jan. 20). The doctrine says that a contractor won't be liable to third parties for negligence once the job is completed and the owners have accepted it. Now the court adopts Restatement (2d) of Torts sec. 385, which imposes liability based on foreseeability.

The case is Davis v. Baugh Industrial Contractors, Inc. (Jan. 18, 2007), Washington courts links: majority (Chambers, J.), dissent (J. Johnson, J.).

Retired Federal Judge Blogs

Retired federal judge H. Lee Sarokin (D. N.J., 3d Cir.) has started a blog: X-Judge. His "first entry in to the world of blog" (Dec. 9) was because he was "astonished by the lack of outrage over the case of Jose Padilla---an American citizen who has been held in solitary confinement for 31/2 years, been deprived of the right to counsel for 21 months, all as a result of the unfettered discretion of the President in designating Mr Padilla as an 'enemy combatant'." Subsequent comments have been equally forceful.

Bar News Looks at Public Defense

The February issue of the Washington State Bar News features public defense:

Articles

• Public Defense: Guaranteeing Justice for All by Chief Justice Gerry L. Alexander
  
• Making Gideon Real: Washington Counties and the Duty to Provide Effective Assistance of Counsel by David F. Taylor, Don Scaramastra, and Beth Colgan
  
• The State's Role in Defining the Constitutional Right to Counsel in Gideon by Rob McKenna
  
• Counsel for Poor Criminal Defendants: An American Tradition by Joanne Moore
  
• Right to Counsel Remains Threatened in Washington by Robert C. Boruchowitz
  
• Improving Public Defense in Washington: A Progress Report by Rafael Gonzales
  
• Effective Public Defense — Benefits to the Bottom Line by Mary Jane Ferguson
  
• Maintaining a Healthy Criminal Justice System by Tom McBride

Columns

• President's Corner: Our Constitutional Commitment to Justice by Ellen Conedera Dial 
  
• Executive's Report:Justice in Jeopardy: Where We Started and Where We Have Yet to Go! by M. Janice Michels

Conspirators Testifying Against Each Other

Christine Hurt at the Conglomerate Blog has some reflections on a medieval practice whereby conspirators who testified against their fellows were let off if the fellows were convicted -- but executed if their fellows were acquitted! The Practice of "Approvement", Jan. 26, 2007. She read about this practice in Neal Katyal, Conspiracy Theory, 112 Yale L.J. 1307 (2003).

Lessons from Football

Elliott Wilcox offers A Lesson from the Florida Gators About Winning Cases, Winning Trial Advocacy Techniques, Jan. 15, 2007. Everyone thought the Ohio State Buckeyes were a shoo-in, but the Florida Gators whopped 'em anyway. The lessons? 1. Ignore the hype. 2. Practice, practice, practice. 3. Know your opponent. (Elliott elaborates nicely on each of these.)

This link was sent in by Bill Pryme-Fuld, who says he can't "get enough of sports intertwining with law, especially when it comes to trial work." Any other good sports-and-law items out there?

By the way, Elliott Wilcox had his Trial Theater website for years (longer than I've been blogging anyway). In September, he started this Winning Trial Advocacy Techniques blog. He always has good, sensible advice. Take a look! Or a listen, since he also offers a weekly podcast.

Civil Rights Guide for Cops

The International Association of Chiefs of Police has a new handbook, Protecting Civil Rights: A Leadership Guide for State, Local, and Tribal Law Enforcement.

With funding from and collaboration with the Office of Community Oriented Policing Services (COPS), a component of the US Department of Justice, IACP produced this guide as a comprehensive overview of the civil rights issues and challenges that face today’s law enforcement leaders. The guide describes the processes by which agencies with alleged “pattern or practice” civil rights violations are investigated and monitored. It offers lessons learned, resources, and strategies for protecting and promoting civil rights across the varied communities’ police agencies serve.
Topics addressed include:

• Federal “Pattern or Practice” Civil Rights Investigations and Agreements
• The Pivotal Role of Community Policing
• The Benefits of Early Intervention Strategies
• Effective Management of Use of Force
• Fair and Open Investigation of Citizen Complaints
• Bias-free Policing
• Personnel and Data Management Issues Related to Civil Rights

Thanks: Be Spacific.

MethResources.gov

A new federal website brings together lots of resources about methamphetamine: MethResources.gov. Cosponsored by the White House office of National Drug Control Policy, the Department of Justice, and the Department of Health and Human Services, it includes information for law enforcement and public safety; prevention and education; treatment and health; parents and youth; business, retail, farmers, and landlords; and policymakers and legislators.

Meth in Your State lets you find local resources. For example, I found a December 2006 report from the Washington Department of Ecology listing Meth Incidents Responded to by County for Jan.-Nov. I had heard that Pierce County has a lot of meth labs, and now I can see the numbers: out of 390 incidents, 148 were in Pierce County. The next highest county was King, with 63.

Thanks: Be Spacific.

Stanford Securities Class Action Clearinghouse

Interested in tracking what's happening with securities class actions? Then the Stanford Securities Class Action Clearinghouse is for you. It

provides detailed information relating to the prosecution, defense, and settlement of federal class action securities fraud litigation. The Clearinghouse maintains an Index of Filings of 2468 issuers that have been named in federal class action securities fraud lawsuits since passage of the Private Securities Litigation Reform Act of 1995. The Clearinghouse also contains copies of more than 18,800 complaints, briefs, filings, and other litigation-related materials filed in these cases.

It just issued a report reviewing 2006 and finding that securities class action filings were at an all-time low.
Graphic from Securities Class Action Clearinghouse.

Thanks: Be Spacific.

Libby's Lawyers Want to Know Immunity Deal

Scooter Libby's lawyers are trying to find out what sort of a deal special prosecutor Patrick Fitzgerald made with former White House press secretary Ari Fleischer in order to gain his testimony. Lawyers Probe Fleischer's Immunity Deal, Washington Post, Jan. 27, 2007.

Today Fleischer "said he sought the deal after reading about the investigation and worrying, 'Oh my God. Did I somehow play a role in outing a CIA operative?' He insisted he believed throughout that the information was not classified." Fleischer Recalls Discussion About Plame, Washington Post, Jan. 29, 20007.

Documents from the Libby trial are on this AP site. They include Fleischer's immunity order.

Stephanie Knightlinger sent me this, with a note that "the Libby trial is fascinating especially from a procedural standpoint of both the prosecutors and defense counsel."

Defendant Can't Insist on Bench Trial

The trial court granted defendants' motion for a bench trial over the government's objection. The government then went to the Ninth Circuit, seeking -- and getting -- an order of mandamus to compel a jury trial. United States v. United State District Court for the Eastern District of California, 464 F.3d 1065 (9th Cir. Oct. 3, 2006) (per curiam), 9th Cir. link.

The four defendants were charged with acts involving interstate travel and about ten years of ritual sexual abuse of their children. (One couple lived in California, the other in Texas.) They moved for a bench trial because the molestation was so horrific that no jury could fairly consider their argument that the government could not prove knowledge and intent at the time the children were sent from state to state. When the judge granted the motion, he said:

I know I can give both sides a fair trial, if this is a court trial. I do not know that I can rule correctly on every one of the evidentiary objections that might be deemed to deny defendants a fair trial if we have a jury.

The Ninth Circuit panel, though, was "left with 'the definite and firm conviction that a mistake has been committed.'" Id. at 1071. The panel was "confident that the able and experienced trial judge is fully capable of ensuring these defendants an impartial trial" -- and offered suggestions for doing so, including extensive voir dire and limiting "bad acts" evidence, cumulative evidence, and the number of witnesses.

Mr. Harrod has already been convicted of 32 counts of sexual abuse in state court, affirmed on appeal. People v. Harrod, 2006 WL 3366146 (Cal. App. Nov. 21, 2006). For more about him, see The patriarch, polygamy and power, Sacramento News & Review, May 29, 2003.

Lay Witness Can Testify About Pot

A woman was convicted in a bench trial of distributing a controlled substance to a person under 21. The minor was her 18-month-old daughter whom she had smoke marijuana from a waterpipe (bong). But was it marijuana? A lay witness testified that it was, but was that testimony property admitted?

The chief witness was the friend who turned her in. The friend testified that they were smoking residue scraped from the side of the bong. Based on her 20 years of experience smoking marijuana, she said that the residue was marijuana residue and had chunks of marijuana. Moreover, she also smoked from the same bong that the toddler did, and the taste and smell of the substance and the effect it had on her led her to conclude that it was marijuana.

The Ninth Circuit found no error in admitting the testimony. It also found there to be sufficient evidence to convict. It reversed the trial judge's interpretation of a sentencing statute and remanded for a new, shorter sentence. United States v. Durham, 464 F. 3d 976 (9th Cir. Sept. 22, 2006), Findlaw link.

Med Mal Appeal Raises Procedural Issues

Division 1 recently addressed a number of procedural issues in an appeal by Stevens Hospital of a $17 million verdict. Lafferty v. Stevens Memorial Hospital, 2006 WL 3775848 (Wash. App. Dec. 26, 2006)(unpublished), Findlaw link.

Since the opinion is unpublished, it's not of interest as precedent. But the size of the verdict makes it newsworthy (or blogworthy) -- and no doubt affected the decision to appeal (and will affect the decision whether to appeal further).

When Tami Lafferty was about 36 weeks pregnant, she noticed that her fetus was not moving much. Over the next several days, she visited her doctor and the hosptal for various check-ups and tests. It was only after the fetus suffered cardiac arrest that the medical professionals decided to deliver the baby through an emergency caesarean. But by that time, he had been deprived of oxygen so long that he had suffered brain damage, and he is now disabled. The plaintiffs' experts testified that he would not have suffered the brain damage if he had been delivered before the cardiac arrest.

By the time of the appellate decision, the hospital was the only remaining defendant -- individual doctors, a clinic, and an imaging lab had all settled. The hospital argued that the trial court abused its discretion in denying several motions for a mistrial during the course of the trial. Making that case is tough, since trial judges have broad discretion in how they manage trials:

The trial court's decision to deny a motion for mistrial will be overturned only "when nothing the court can say or do would remedy the harm caused by the irregularity[,] or ... when the harmed party has been so prejudiced that only a new trial can remedy the error." In considering a motion for a mistrial based on the misconduct of counsel, the moving party must establish that the conduct "complained of constitutes misconduct (and not mere aggressive advocacy) and that the misconduct is prejudicial in the context of the entire record."

(citations omitted). Here the Court of Appeals was not persuaded that any of the alleged problems below were sufficiently prejudicial to merit reversing the trial court. The issues were:

• Voir dire: Plaintiffs' attorney told the venire that he had won a $13 million verdict against the City of Seattle. Was that impermissibly inviting the jury to return a large verdict? The comment was improper, but the trial court sustained the defense objection and the attorney moved on. The comment was isolated.
• Speaking objections: Both sides sometimes made "improper comments when making evidentiary objections" -- but the trial court dealt with them and they did not deprive the hospital of a fair trial.
• Closing arguments: In context, plaintiffs' attorney's comments were proper. Besides, the hospital didn't object at the time so it "cannot show the remarks were so flagrant and prejudicial that a contemporarneous objection and curative instruction could not have addressed any potential prejudice." (n. 19)
• Shadow jury: The plaintiffs hired a jury consultant who in turn hired three "shadow jurors" to listen to the evidence during the trial (and presumably answer questions from the consultant about what they thought). The consultant did not tell them which side they were working for. At one point during the trial, the three shadow jurors went to the jury lounge to eat their lunch. One of them asked a real juror in the case a question about parking validation. Afterwards, the judge questioned the consultant and the shadow jurors but, contrary to the request of the defense, did not question each real juror individually. The Court of Appeals concluded that the trial court's inquiry was appropriate.
• Evidence that the ultrasound technician was suspended after the incident: The court ruled in limine that the parties would not mention this. But plaintiffs' counsel inadvertently didn't edit out two mentions of it from a videotaped deposition shown to the jury. The court was within its discretion to deal with the problem with a curative instruction.
• Admissibility of personnel file: The hospital argued that it was error to admit certain information from the technician's personnel file because it was allegedly created for a quality improvement committee. Again: no abuse of discretion.
• Spoliation instruction: The hospital didn't like it that the court instructed the jury that "[w]hen a party fails to produce relevant documentary evidence within its control, without satisfactory explanaation, the inference is that such evidence would be unfavorable to the non-producing party." In this case, the missing evidence was a schedule for ultrasounds on the night Ms. Lafferty was supposed to have a special test. The instruction was supported by the evidence -- no error.
• Evidence of future benefits -- OK for the trial court not to let the defense bring in evidence of benefits the child will receive at his state-funded school (in NJ) until he's 21.

See earlier post for a news story at the time of the verdict.

U.S. Attorney Appointments

Controversy is heating up about the process for naming U.S. attorneys. Formerly, local district judges made an interim appointment when a vacancy came up. Now, under a provision in the USA PATRIOT Act, the Attorney General can make interim appointments for indefinite periods. U.S. attorneys' selection is questioned, Seattle Times, Jan. 28, 2007.

Critics say the change is a move by the Bush administration to avoid the Senate confirmation process and reward its insiders. The administration replies that the change was to avoid a separation of powers issue.

The controversial interim appointments are people who served in Washington, DC, in the White House, the Justice Department, or (in one case) in Sen. Orrin Hatch's office. A criticism is that they have few ties to the communities they are appointed to serve. The interim appointment in the Western District of Washington, Jeffrey Sullivan, is an exception. He has been serving as the head of the Criminal Division here, and before that was for 27 years the prosecutor in Yakima County (just outside the Western District, but MUCH closer than Washington, DC!).

It is not clear how long Sullivan will hold the top job. Rep. Dave Reichert, R-Auburn, has asked a panel of local lawyers and law-enforcement officials to identify potential permanent replacements for McKay.

Democratic lawmakers have proposed bills that would change the system:

• H. R. 580, "To amend chapter 35 of title 28, United States Code, to provide for a 120-day limit to the term of a United States attorney appointed on an interim basis by the Attorney General, and for other purposes." The administration could still appoint the interim USA, but if an appointment expired, then the district court would appoint someone to serve until the vacancy is filled. Sponsors: Berman, Conyers, Scott.
• S. 214, "Preserving United States Attorney Independence Act of 2007." District court would appoint the interim. Sponsors: Feinstein and Leahy.

Complaints about SPD's Use of Force

Minorities filed nearly half of the 268 complaints about use of force by Seattle police in 2003-2005. The police department's investigators found excessive force in only about 10 percent of those cases, but now they are reviewing them to see if there are patterns that need to be addressed. One problem: in many of the cases where people complained of excessive force, the officer had not filed a report on the use of force. Police say no link in racial bias, use of force, Seattle Times, Jan. 27, 2007. In the 2000 census Seattle was 70.1% white. City of Seattle Demographics.

US Attorney to SU; Interim US Atty

John McKay, who just left his post as U.S. Attorney for the Western District of Washington, will be a visiting professor at Seattle University Law School. U.S. Attorney McKay to become professor at Seattle University, Seattle Times, Jan. 25, 2007. McKay's press release is here.

Nationally, a number of U.S. Attorneys have been asked to resign. Attorney General Alberto Gonzales told the Senate Judiciary Committee that it was because of performance issues, not politics. Gonzales says U.S. attorneys didn't lose jobs over politics, Seattle Times, Jan. 19. This article doesn't say that McKay was in the group that was asked to resign -- but the article is reprinted from the Washington Post, so the reporter might not have thought that the Western District of Washington was as newsworthy as we do.

McKay's successor (interim) is Jeffrey C. Sullivan, who has been chief of the office's Criminal Division since 2002. For 27 years he was the Yakima County prosecutor. Interim U.S. Attorney to Be Sworn in Today, Seattle Times, Jan. 27, 2007.

Database of Tort Reforms

People studying tort reform often want to look at different states that have enacted various measures and compare them, perhaps before and after the reform was adopted. But it's complicated -- 50 states, lots of reforms, lots of dates.

Prof. Ronen Avraham, Northwestern Univ. School of Law, makes available his Database of State Tort Law Reforms (DSTLR 2nd) (Nov. 2006) on SSRN. You can even download an Excel spreadsheet so you can do your own datacrunching.

Thanks: Empirical Legal Studies.

Studying Summary Judgment ... and District Courts

A professor at the Empirical Legal Studies blog muses about summary judgment. Jeff Yates, Empirical Legal Studies: Trial courts, judicial politics, and summary judgment ..., Empirical Legal Studies, Jan. 21, 2007.

Yates highly recommends Arthur R. Miller, The Pretrial Rush to Judgment: Are the 'Litigation Explosion,' 'Liability Crisis,' and Efficiency Cliches Eroding Our Day in Court and Jury Trial Commitments? 78 N.Y.U. L. Rev. 982 (2003). Yates observes that in practice he saw cases decided on summary judgment even when the plaintiffs' and defendants' affidavits gave very different views of a situation -- i.e., when there was a substantial issue of material fact. Yates asks whether there have been empirical studies of substantial judgment.

A number of people have commented, often suggesting sources. One (Tracy Lightcap) says that Wolf V. Heydebrand & Carroll Seron, Rationalizing Justice: The Political Economy of Federal District Courts (1990) is "a neglected classic." Lightcap says:

H & S throughly theorize the entire question of what they call "technocratic justice", develop hypotheses about it and testing them using readily available data. The basic idea is that the increasingly rationalized environment of governmental and business decisionmaking have called for a less legalistic, more administrative form of judicial action. It's a good deal more complex - Heydebrand did the theory and he isn't the man for a straightforward exposition - but it's far and away the best explanation for why summary proceedings have come to be more and more the method of judicial choice.

Why this book hasn't had a larger audience is a puzzle. I would suppose part of the reason is that it largely ignores appellate courts; H & S, quite rightly, don't think that's where the action is. It is trial courts that actually respond to social environments; appellate courts are reacting at second hand and are too episodic in control. * * * The analysis also stretches beyond the data occasionally. Still, if you want a fairly well developed theory and a sophisticated empirical analysis of why summary procedures have come to dominate so much of the legal playing field, here's where you start to look.

Yates replied that he went to the library and looked up the book right away. He speculates that one reason it might be underused is that it's a book, and today's researchers often focus on material they can pull up online -- LexisNexis, Westlaw, or the web.

Well, now you're online, but you're hearing about a book. It's in our law library, if you're curious: KF8754 .H45 1990 at Classified Stacks.

Pscyhology of Circumstantial Evidence

Here's a law review article that caught my eye: Kevin Jon HellerThe Cognitive Psychology of Circumstantial Evidence, 105 Mich. L. Rev. 241 (Nov. 2006).

From the abstract:

Empirical research indicates that jurors routinely undervalue circumstantial evidence (DNA, fingerprints, and the like) and overvalue direct evidence (eyewitness identifications and confessions) when making verdict choices, even though false-conviction statistics indicate that the former is normally more probative and more reliable than the latter.

The traditional explanation * * * is that jurors simply do not understand circumstantial
evidence and thus routinely underestimate its effect on the objective probability of the defendant’s guilt. That may be true in some situations, but it fails to account for * * * the puzzling fact that jurors are likely to acquit in a circumstantial case even when they know the objective probability of the defendant’s guilt is sufficient to convict.

This Article attempts to explain why jurors find circumstantial evidence so psychologically troubling.

New Trial After Plea Bargain Breach

Daniel Larson pleaded guilty in 2002 to second-degree murder, confessing to strangling Anastasia King, the 20-year-old wife of his landlord in 2000. He testified against the landlord, Indle King Jr., who was convicted of first-degree murder for ordering the killing. Now Larson is being tried for first-degree murder. How's that again? Didn't he already plead guilty to second-degree murder? It turns out that his plea agreement said that he wouldn't contest his conviction and that the state could file again if he did. He appealed, and the state is prosecuting. And now it has his taped confession, the transcript of his testimony from the first trial, and television interviews. Mail-order bride's killer goes on trial, (Everett) Herald, Jan. 25, 2007.

See State v. Larson, 128 Wash.App. 1071, 2005 WL 1950366 (Div. I 2005) (unpublished), Westlaw link. Here is Judge Appelwick's summary:

Daniel Larson was charged with first degree murder. He entered into a plea agreement with the State wherein he pleaded guilty to second degree murder and agreed to testify against another involved in the murder. The plea agreement stated that Larson agreed not to challenge his conviction. The agreement also provided that the State could file additional or greater charges if Larson violated the agreement, and that in such a case Larson both waived his double jeopardy protections and would remain bound by the agreement. After sentencing, in violation of the terms of the agreement, Larson moved to withdraw his guilty plea and filed a personal restraint petition. The court ruled that the State could reinstate the original first degree murder charge without vacating the second degree murder conviction. Larson argues that this constitutes double jeopardy and that he did not knowingly, intelligently, and voluntarily waive protection from double jeopardy. We affirm.

Libby Jury Chosen

Jury selection for the Scooter Libby trial was completed on Monday. See Libby Jury Is Chosen; Arguments Set to Start, Washington Post, Jan. 23, 2007.

In a city where most residents are black, 90 percent are Democrats and the local culture is steeped in politics, the jury is not completely representative. Ten of the 12 jurors -- and two of the alternates -- are white. Most said during questioning that they have no political opinions about the administration's handling of Iraq or do not follow the news.

Thanks: Stephanie Knightlinger.

State of the Nation Word Play

The New York Times offers a fun application that compares President Bush's word usages in his several State of the Union addresses. For example, he used the word Afghanistan 13 times in 2002 and 4 times in 2007.

I plugged in "lawyer," and found that it has appeared in two of the addresses. In 2003:

The American system of medicine is a model of skill and innovation - with a pace of discovery that is adding good years to our lives. * * * Instead of bureaucrats, and trial lawyers, and HMOs, we must put doctors, and nurses, and patients back in charge of American medicine.

And in 2005:

Because one of the main sources of our national unity is our belief in equal justice, we need to make sure Americans of all races and backgrounds have confidence in the system that provides justice. In America we must make doubly sure no person is held to account for a crime he or she did not commit -- so we are dramatically expanding the use of DNA evidence to prevent wrongful conviction. Soon I will send to Congress a proposal to fund special training for defense counsel in capital cases, because people on trial for their lives must have competent lawyers by their side.

I also tried "court," and found these these passages:

When it comes to their health, people want to get the medical care they need, not be forced to go to court because they didn't get it. . . . (2001)

Activist judges, however, have begun redefining marriage by court order, without regard for the will of the people and their elected representatives. On an issue of such great consequence, the people's voice must be heard. If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process. Our nation must defend the sanctity of marriage. (2004)

Because courts must always deliver impartial justice, judges have a duty to faithfully interpret the law, not legislate from the bench. . . . (2005)

Yet many Americans, especially parents, still have deep concerns about the direction of our culture, and the health of our most basic institutions. They're concerned about unethical conduct by public officials, and are discouraged by activist courts that try to redefine marriage. They worry about children in our society who need direction and love, and about fellow citizens still displaced by natural disaster, and about suffering caused by treatable diseases. (2006)

(Aside: I know parents who are concerned about the direction of our culture. They are worried about marriage because they don't have access to it simply because they happen to be the same sex. Some of them were even displaced by Katrina and its aftermath.)

A hopeful society depends on courts that deliver equal justice under the law. * * * I will continue to nominate men and women who understand that judges must be servants of the law, and not legislate from the bench. (2006)

A future of hope and opportunity requires a fair, impartial system of justice. The lives of our citizens across our nation are affected by the outcome of cases pending in our federal courts. We have a shared obligation to ensure that the federal courts have enough judges to hear those cases and deliver timely rulings. As President, I have a duty to nominate qualified men and women to vacancies on the federal bench. And the United States Senate has a duty, as well, to give those nominees a fair hearing, and a prompt up-or-down vote on the Senate floor. (2007)

Thanks to John Heywood, who spotted this site and promised "loads of fun for the whole family."

Newspaper Study of Death Penalty Cases

Journalists reviewed death penalty cases in Alabama, Georgia, Mississioopi, and Virginia, finding weak defense. In the penalty phase of trial, "defense lawyers gave jurors little or no evdence to help them decide whether the accused should live or die." Moreover, appeals courts often "ducked ... Supreme Court directives about the importance of good defense counsel." The article points to very low state funding of death penalty defense as the chief cause of the poor representation. Stephen Henderson, Defense often inadequate in 4 death-penalty states, review finds, Seattle Times, Jan. 22, 2007.

The study was a project of McClatchy Newspapers, a group I hadn't heard of. It turns out that the McClatchy Company is the second-larges newspaper company in the U.S. Its purchase of the Knight Ridder chain last summer moved it into that high spot in the rankings. Its newspaper holdings include papers serving small markets (e.g., the Ledger-Enquirer in Columbus, GA) and big cities (e.g., the Miami Herald).

Here in the Northwest, McClatchy papers include the Bellingham Herald, the Idaho Statesman, the News Tribune, the Olympian, and the Tri-City Herald. And McClatchy owns 49.5% of the Seattle Times. The Seattle Times Company publishes the Issaquah Press, Newcastle News, Sammamish Review, the Walla Walla Union-Bulletin, and the Yakima Herald-Republic. So McClatchy has a lot of coverage around here!

The Times prides itself on being family-owned, but Knight Ridder had a minority interest in the paper since 1928 -- and that interest went to McClatchy. Since the Blethen family has a majority of shares and hence of board members, the control is still in the family's hands. The family sometimes made decisions over Knigh Ridder's objections. See article.

Thanks: Mary Hotchkiss.

Arguments Against Eyewitness Experts

A student outlines arguments against admitting expert testimony about the unreliability of eyewitness testimony, addressing both the general factors and those particular to Alabama. Robin Preussel, The Experts Aren't Reliable Either: Why Expert Testimony on the Reliability of Eyewitness Testimony is Unwarranted in Alabama State Courts, Yale Law School Student Scholarship Series, Paper 28 (2006).

Jury Waivers in Big Business Contracts

An empirical study looks at contracts that were reported in companies' 8-K statements filed with the SEC -- that is, statements about contracts that are "big" enough to merit disclosure as material to investors. In the contracts' dispute resolution sections, how many waive jury trial? what factors affect the waiver? Theodore Eisenberg & Geoffrey P. Miller, Do Juries Add Value?: Evidence from an Empirical Study of Jury Trial Waiver Clauses in Large Corporate Contracts, NYU Law & Economics Working Papers, Paper 84 (Draft of 11/26/06).

This paper reports on the first large-scale empirical study of jury trial waivers in large commercial contracts.3 We find that such waivers are far from universal. Explicit jury trial waivers were contained in only about 20 percent of the more than 2,800 contracts in our data set. Another nine percent of contracts contained mandatory arbitration clauses. Such clauses may well be adopted for reasons other than a wish to avoid a jury; indeed, they almost certainly have other motivations because if their only
purpose were to avoid a jury, this goal could be achieved more parsimoniously with a simple jury waiver.4 But even if arbitration clauses are classed as jury waivers, a substantial majority of the contracts in our study—over 70 percent—do not preclude juries.

p. 3. From here, the authors spin out hypotheses and then test them against the data -- type of contract, type of industry, place of business, place of incorporation, etc.

A striking result is the 80 percent rate of jury trial waivers in contracts designating Illinois as a litigation forum. * * * Two factors appear to contribute to this result. First, * * * Illinois has an extremely long difference in time-to-adjudication between jury trials and bench trials. Jury trials take substantially longer to adjudicate in Illinois, relative to bench trials, than the relative time they take in other states. * * * Second, Figure 3 suggests that large corporations perceive Illinois juries to be among the least fair.

p. 55. The authors conclude that overall parties appear to value the availability of jury trials, since they consider waiving them and do not.

State of Washington's Judiciary

Chief Justice Alexander delivered his State of the Judiciary Address to a joint session of the legislature on Wednesday (Jan. 17). In addition to reading the transcript, you can watch and listen to a video of his speech on TVW.

The Chief Justice focused on the Justice in Jeopardy Initiative. Background: In 2002, the Board for Judicial Administration set up a Court Funding Task Force. The task force included lawyers, judges, legislators, and representatives of citizens and professional organizations. Its major report was Justice in Jeopardy: The Court Funding Crisis in Washington State (Dec. 2004). Here's a way our state stands out: at the time of the report, we ranked last among all states in state funding of trial courts, indigent defense, and prosecution. Unlike some well-meaning task forces, this group did not stall out after issuing a report. It's still plugging. See Justice in Jeopardy 2007/2009 Biennium Information & Advocacy Guide.

And so the Chief Justice began by reporting on progress already made in the last two legislative sessions. For instance, state funding of trial courts has improved -- but local governments still pay 80% of the burden. With incremental improvements, he would like the state to pay 50% eventually.

The areas he highlighted for this legislature:

• improved funding of civil legal aid, especially in rural areas.
• progress made in funding trial courts (including a pilot study of increasing the daily fees paid to jurors).
• $8 million to improve interpreter services -- a major access-to-justice issue.
• improving funding for public defense (although progress has been made, we still aren't fulfulling the promise of Gideon, he says).
• increased funding for CASA, a program that trains and places volunteer advocates for abused and neglected children.
• updating court technology -- they're going to upgrade the case management system statewide.

Finally, the Chief Justice remarked that the system of judicial elections is getting attention and there may be bills addressing it. He recommends a publicly funded judicial voters pamphlet. As far as various other proposals, "at this point, the judiciary as a whole has not taken a position in response to any of these specific proposals but I can assure you that we are intensely interested in the subject and we may take a position on all or some of these proposals, provided we can do so without compromising our ethical obligations."

"[T]he provision of justice, on both the criminal and civil side, is a core function of government that should be adequately supported by all taxpayers, not just users of the system." -- Chief Justice Gerry Alexander

Chief Justice Roberts focused his annual report on the need for raises for judges (see earlier post). Chief Justice Alexander asked for funding for public defenders, interpreters, and legal aid. Interesting contrast.

Thanks: Arbitrary & Capricious.

Profile of Boise Plaintiff's Attorney

Here's an interesting profile of a sole practitioner who sees himself as a champion of "lots and lots of little guys": Once a self-described hippie, Phil Gordon takes on class-action suits, Idaho Statesman, Jan. 18, 2007.

Gordon's cases include cases:

• against Micron Technology on behalf of buyers of memory chips alleging price fixing and securities fraud.
• against Morrison Knudsen on behalf of shareholders of Raytheon.
• against Louisiana Pacific for defective siding material.
• against four realty companies for antitrust violations.
• against the state insurance fund for paying dividends only to large businesses.
• against Lube 'N Tune for allegedly violating the state consumer protection act when it charged consumers an oil disposal fee when in fact the company makes money by selling the used oil (Jiffy Lube has settled a similar suit elsewhere).

Thanks: Arbitrary and Capricious.

9th Cir. Reverses One Ressam Count

The Ninth Circuit reversed one of Ahmed Ressam's nine convictions related to the attempted bombing of LAX. The case is remanded to District Judge John Coughenour "to arrive at an appropriate sentence on the remaining counts of the conviction." The prosecution had appealed the sentence (22 years) as being too light. Appeals court throws out 1 Ressam felony conviction, Seattle Times, Jan. 17, 2007.

Ressam is represented by federal public defender Tom Hillier (also a Trial Ad instructor).

The case is here: United States v. Ressam, No. 05-30422 (9th Cir. Jan. 16, 2007). Judge Alarcon dissented.

Voir Dire in Scooter Libby Case

The trial of Vice President Cheney's former chief of staff, I. Lewis "Scooter" Libby got started Tuesday, with the just conducting voir dire of potential jurors by reading questions the prosecution and defense had agreed on. Four of the questions concerned beliefs about memory -- is it like a tape recorder? Can anyone honestly say something and be mistaken? 38 Questions Used To Screen Potential Jurors in Libby Case, Washington Post, Jan. 17, 2007, at A17. Other questions concerned politics, e.g.,

"Do any of you have feelings or opinions about the Bush administration or any of its policies or actions, whether positive or negative, that might affect your ability to give a former member of the Bush administration a fair trial?"

Jurors Questioned About War, Memory as Libby Trial Opens, Washington Post, Jan. 17, 2007, at A3.

Thanks to Stephanie Knightlinger, who says this is a timely topic for Trial Ad II students, who cover jury selection next week.

Update (Jan. 19): Mindy Ater wrote, "Here' an interesting article related to voir dire, which was posted on the Evidence webpage... " She included an article: Lying Juror and Prison Movie May Reverse Death Row Conviction, New York Lawyer (reprinted from The Recorder), Nov. 21, 2006. I'm just going to summarize it because I'm cautious about reprinting entire articles without permission.

The jury foreman in a capital case allegedly lied during voir dire, saying that neither he nor anyone in his family had committed crimes when in fact he had two felony convictions.

Moreover, he urged fellow jurors to watch a movie about prison gangs, implying that the defendant, if given a life sentence, would kill someone in prison and therefore ought to be sentenced to death.

On habeas review, the California Supreme Court ordered the director of corrections to show why the conviction should not be reversed because of these improprieties.

The case is Boyette on habeas corpus, S092356. I didn't find a published opinion on the California courts website -- just a one-sentence summary of the disposition.

If you want to read the whole article, it's on Westlaw, with the title "Prison Movie May Undo Case.")

Thanks for the lead, Mindy!

Children's Justice Conf. Coming in March

DSHS is sponsoring its 15th Annual Children's Justice Conference in Seattle, Monday-Tuesday, March 26-27. The conference is "an assembly of multi-disciplinary professionals committed to keeping children safe from abuse and neglect." An indication of the the multi-disciplinarity is that the conference has been approved for CLE credit (by the bar association) and CME credit (by the medical association) -- as well as continuing education for judges and social workers.

I noticed that Trial Ad instructor Craig Sims (King County Prosecutor's Office) was on the faculty, so I looked up his two-part workshop:

"Tortured Children, Brutal Acts: A Complete Investigation of Child Victims and Child Witnesses" - This interdisciplinary workshop examines components of a complete investigation of those horrific cases where pain and agony has been intentionally inflicted upon children, as well as cases in which children have witnessed horrible acts. Panel members representing law enforcement, specialized child interviewers, prosecution, and mental health will discuss their specific roles and how these roles come together to protect children from further harm as well as to successfully prosecute the abusers.

Panel: Kerry Todd, MSW, Craig Sims JD, Mari Murstig, MSW, Detective Michael Hartnett
Level: Advanced

Other sessions with a strongly legal focus (although lawyers could benefit from the other programs as well!) are:

• Prosecuting Child Fatalities and Serious Physical Abuse Cases In Washington
• Prosecuting Cases with Developmentally Delayed Victims and Witnesses
• Ethical Challenges for Judges, Lawyers, and Other Professionals in Juvenile Law
• Child Sexual Abuse 101: Medical Findings for Non-medical Professionals (includes advice for working with medical professionals during investigation and in court)
• Juvenile Sex Offenders
• Service Dogs, Our New Partners in Criminal Prosecutions (panel includes Ellen O'Neal Stephenson, Ellie, and Jeeter, who work at the King County Prosecutor's Office. See earlier post.)
• Child Neglect Cases in the Courtroom
• Historical Trauma Leading Up To the Enactment of the Indian Child Welfare Act
• Psychological Evaluations in Dependency and Termination Cases: What they can and cannot do for you
• Case Analysis and Ethical Considerations for the Child Abuse Prosecutor
• Tips for Testifying and Preparing your Expert Witness

This field involves a lot of trauma and stress, so the program includes a couple of workshops about how the professional caregivers can avoid burnout and "compassion fatigue."

Public Defender Hiring

In his memoir, Charles Ogletree talks about the hiring process when he worked for the District of Columbia's Public Defender Service in the 1970s:

The interview process at PDS was rigorous, with ten applicants for every position. * * * The committee of at least six public defenders asked applicants about the extent of their clinical or public-interest work in law school, their summer jobs while there, their capacity to empathize with the poor, their commitment to work seven days a week, their loyalty to defense work, and their ability to handle the pressures of hard cases and difficult clients.

An applicant was scrutinized for his or her fitness not to join a firm but to join a struggle. * * * We were looking for people willing to talk to a mother whose son had allegedly been murdered by a PDS client, and see what disparaging things she might offer about her deceased son. We were looking for people willing to seek witnesses, int he middle of the night if necessary, and find them in drug dens, poolhalls, homeless shelters, jails and prisons, or wherever else they might hide. We wanted individuals committed enough to go to the medical examiner's office, view an autopsy, if possible, and review the findings, looking for errors, omissions, or exaggerations in the evidence. We wanted bold, courageous people, willing to stand up to judges and face the real risk of being held in contempt. In short, zealous defense of our clients knew no bounds, except lawlessness.

Charles J. Ogletree, Jr., All Deliberate Speed: Reflections on the First Half-Century of Brown v. Board of Education, at 86-87 (2005).

Hiring public defenders reminds me of a post I saw recently at Injustice Anywhere ... The author had seen a blog post that suggested that PDs won't hire people who have worked for prosecutors:

That's just nuts. In my old office in Texas, we had a number of former prosecutors in our office. * * * Trust me when I say that having volunteered or worked at a prosecutor's office was NOT a black mark. It was a plus. Anything that illustrated an interest in criminal law was a plus. * * * [O]ne of the best, if not THE best way to get criminal trial experience right out of the gate is to go work for a prosecutor's office. That kind of experience, even if it's on the side of the prosecution, is incredibly valuable to a public defender. * * * [T]he idea that working for a prosecutor should disqualify you from being a public defender is simply ludicrous. A good lawyer is a good lawyer. And if that good lawyer can bring the passion and professionalism to representing the indigent accused that she brought to representing the state, then the indigent accused are better off. That's the way I see it.

Switching Sides, Jan. 2, 2007.

Ogletree's book is available in the library (KF4757 .O35 2004 at Classified Stacks) (well, it's not available right now because it's checked out, but you know what I mean) -- and you can bid on an autographed copy if you come to the PILA Auction on February 2.

Graphic from www.alldeliberatespeed.com.

9th Cir. Sanctions Tacoma

The Ninth Circuit has sanctioned Tacoma for a frivolous appeal in Frunz v. City of Tacoma, a case involving police misconduct. (See earlier post.) The Appeals court sanctions city, News Tribune, Jan. 16, 2007. The city must pay the plaintiff's attorney's fees and twice the costs of the appeal. The city will appoint outside counsel to determine whether the lawyers who handled the case acted properly.

The court has designated its order, which goes into detail about the facts ofo the case, for publication. Frunz v. City of Tacoma, No. 05-35302 (9th Cir. Jan. 16, 2007).

Thanks: Lisa Kremer.

Race and the Death Penalty

A variety of scholars take a look at race and the death penalty in From Lynch Mobs to the Killing State: Race and the Death Penalty in America, edited by Charles J. Ogletree, Jr., and Austin Sarat (KF9227 .C2 F76 2006 at Classified Stacks). You can get a sense of the range of perspectives from three chapters:

A chapter by Stuart Banner ("Traces of Slavery: Race and the Death Penalty in Historical Perspective") chronicles how capital crimes were defined by race up through the Civil War. For instance, in Virginia slaves could be executed for any offense for which whites could be sentenced to three years or more, while free blacks (but not whites) could get the death penalty for rape, attempted rape, kidnapping a woman, and aggravated assault (if the victim was white). (p. 99) After the Civil War, the explicit distinctions were gone, but having all-white juries meant that penalties were imposed unequally.

A chapter by two social scientists (Michael L. Radelet and Glenn L. Pierce, "The Role of Victim's Race and Geography on Death Sentencing: Some Recent Data from llinois") explains the study they did that contibuted to Gov. Ryan's decision to commute the death sentences of 167 prisoners in Illinois. People were much more likely to receive a death sentence if the victim was white -- or if the crime was in a rural county.

Another sociologist offers a more theoretical look: Benjamin Fleury-Steiner, "Death in 'Whiteface': Modern Race Minstrels, Official Lynching, and the Culture of American Apartheid."

UW note: if you come to the PILA auction on February 2, you'll be able to bid on a copy of this book signed by Charles Ogletree when he was here last month. Also up for auction will be Ogletree's memoir and analysis of civil rights, All Deliberate Speed: Reflections on the First Half Century of Brown v. Board of Education.

Judging: A Book for Student Clerks

Judging: A Book for Student Clerks (KF8807 .J94 2002 at Reference) is a slender book of readings, edited by Louis J. Sirico, Jr. It's aimed at law students doing judicial externships (perhaps to be used as a text in an externship seminar), but it could be interesting to leaf through for others interested in the judging process. The readings are excerpted from law reviews and newspapers -- even a "60 Minutes" transcript.

Topics are:

• The Decision Making Process
• Effect of Public Opinion on the Decision Making Process
• The Criminal Process
• Ethics and the Judiciary
• The Judge's Role in Pre-Trial Settlement and Alternative Dispute Resolution
• Collegiality Between Judges
• Judges and Juries
• Judges and Lawyers
• Judges Are Human, Too
• Law Clerks and Writing

WSBA's Juvenile Law Section

Prof. Kim Ambrose (UW's Child and Youth Advocacy Clinic) wrote The New WSBA Juvenile Law Section: What Is Juvenile Law?, Wash. St. B. News, Oct. 2006. Short answer: it can include child welfare law, juvenile justice, status offenses (such as truancy), and a range of other civil issues.

Practicing on the Yakama Reservation

In last month's Bar News, a lawyer described his practice on the Yakama Reservation. Jack Fiander, True Confessions of a Reservation Attorney, Dec. 2006.

The type of federal Indian law many of us practice down here in the trenches of the district, municipal, and superior courts in the outlands of this state is often not pretty. Your knuckles and your spirit can get a little dirty. I am no longer user-friendly and cannot say that I apologize for it.

Disaster Lawyers

People who need legal help as a result of the floods last month and who cannot afford it can use the services of volunteer lawyers from the Washington State Bar Association. Flood-related problems can include insurance disputes, landlord-tenant issues, and dealing with contractors for repairs. There is a national network of lawyers who volunteer in the wake of disasters, coordinated by FEMA and the Young Lawyers Division of the ABA. WSBA Press Release, Dec. 21, 2006.

WSBA Honors Judge Stilz

On Friday the Washington State Bar Association gave its Local Hero award to Thurston County District Court Judge Clifford L. Stilz Jr.Press release, Jan. 10, 2007. Among other things,

Judge Stilz has taken on the project of designing, establishing, and implementing a mental health court. As a result of his work, the county commissioners have approved the program, and Stilz continues to advocate for mentally ill offenders.
"Through his efforts, many mentally ill people are afforded the opportunity for treatment, as opposed to being locked up in jail," said James J. Dixon of Ditlevson Rodgers Dixon, P.S., in his nomination letter. "Mental Health Court helps these people stay on their medications and maintain treatment regimens, with the added goal of keeping them crime-free. A lot of people talk about doing something to benefit the mentally ill offender; Judge Stilz has done something about it."

Judge Stilz is a UW alumnus, class of 1970.

Wash. to Have Poet Laureate?

I visited the Washington State Legislature's page to scan for bills related to trial practice. There are some I'll be checking out, but first I thought I'd let you know about Senate Concurrent Resolution 8401, which would establish a state poet laureate, in recognition of "the value of poetry and the contribution Washington poets make to the culture of our state." The poet laureate will receive a salary of "one firkin of Washington beer per year donated by representatives of the Washington Brewers Guild." (A firkin is a small barrel.)

It's generally illegal to give away alcoholic beverages, but there's an exception for the Liquor Control Board (for purpose of negotiating the sale of liquor to the board), RCW 66.28.040, and the resolution says that the poet laureate would be a representative of the board for the purpose of receiving the firkin. I'm not quite sure it fits, but what the heck.

The proposed salary is in keeping with a part of our state's poetic tradition, as when "poets Theodore Roethke (1901-1963), Richard Hugo (1924-1982), Carolyn Kizer (b. 1925), Stanley Kunitz (1905-2006), and David Wagoner could often be found at the bar [of the Blue Moon Tavern], along with famous visitors such as Dylan Thomas (1914-1953) and Allen Ginsberg (1926-1997)." Walt Crowley, Blue Moon Tavern, An Unofficial Cultural Landmark, HistoryLink.org (1999). But I wonder if some potential poets laureate might prefer Washington wine or even something non-alcoholic, like a bushel of Washington apples, locally roasted coffee, or hand-crafted chocolates.

Unpatriotic to Represent Accused Terrorists?

Charles D. Stimson, the deputy assistant secretary of state for detainee affairs, riled lawyers and ethics experts by suggesting in an interview on Thursday that law firms shouldn't represent Guantanamo detainees -- and that clients should drop firms that do. Official Attacks Top Law Firms Over Detainees, New York Times, Jan. 13, 2007.

Monica Crowley, a syndicated talk show host, used a FOIA request to get a 14-page list of lawyers representing detainees. Mr. Stimson said it was "shocking" that the list included the country's "major law firms."

He said, "I think, quite honestly, when corporate C.E.O.'s see that those firms are representing the very terrorists who hit their bottom line back in 2001, those C.E.O.'s are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out."

Karen J. Mathis, a Denver lawyer who is president of the American Bar Association, said: "Lawyers represent people in criminal cases to fulfill a core American value: the treatment of all people equally before the law. To impugn those who are doing this critical work — and doing it on a volunteer basis — is deeply offensive to members of the legal profession, and we hope to all Americans."

Others in the administration have distanced themselves from Mr. Stimson's comments.

In an interview on Friday, Attorney General Alberto R. Gonzales said he had no problem with the current system of representation. “Good lawyers representing the detainees is the best way to ensure that justice is done in these cases,” he said.

The article said that Mr. Stimson was a lawyer (so you'd think he'd have picked up a little about the importance of representation in our adversary system). I was curious, so I looked up his background. He was appointed to his post a year ago, when he was 42. He went to law school at George Mason, and worked as a homicide prosecutor in Frederick County, MD, before becoming an assistant U.S. Attorney in DC. He was a Lieutenant Commander in the Navy JAG Corps. National Briefing Washington: Adviser On Detainees Is Named, N.Y. Times, Jan. 24, 2006, at A16.

With his background as a prosecutor, he really should have known that people accused of crimes, even horrible crimes, deserve to have good lawyers and that the lawyers who represent even guilty people are doing a good thing, not something treasonous.

Update (Jan. 14): See Carolyn Elefant's post and readers' comments at Legal Blog Watch: Should Law Firm Clients Control Law Firms' Pro Bono Work?, Jan. 12, 2007. And for much more -- news sources and over 100 comments, go to the Volokh Conspiracy.

NC AG Takes Case

Michael Nifong, the DA in Durham, NC, who has been charged with ethics violations because of his handling of the sexual assault case against three former lacrosse players from Duke, stepped down from the case yesterday. The state's attorney general, Roy Cooper, today announced that his office would take it over, giving it "careful review." Attorney General in N.C. Agrees to Take Duke Case - New York Times, N.Y. Times, Jan. 13, 2008.

3 Strikes Book

New in the library: Unjust Sentencing and the California Three Strikes Law, by Douglas W. Kieso (KFC1172 .K54 2005 at Classified Stacks). The publisher's page about the book is here.

Public Citizen Med Mal Study

Public Citizen today released a study showing that medical malpractice litigation is not the cause of the health care "crisis."

Despite claims by business and medical lobbying interests and the Bush administration, there is no medical malpractice lawsuit crisis in America, according to analysis released today by Public Citizen. The new report, “The Great Medical Malpractice Hoax,” dispels oft-repeated myths of dwindling doctors and spiraling insurance premiums used to support limits on the ability of injured patients to seek redress in the courts.

The real problems are a lack of attention to patient safety, the high incidence of preventable medical error and the lack of accountability for a small set of doctors who account for a majority of medical malpractice payments, the report reveals. The report also presents several recommendations for Congress, state governments and hospitals to reduce health care costs and save lives.

Press release, Jan. 10, 2007. The study was based on an analysis of medical malpractice awards from the federal National Practitioner Data Bank (NPDB), 1990-2005.

The Great Medical Malpractice Hoax: NPDB Data Continue to Show Medical Liability System Produces Rational Outcomes (Jan. 2007) (25 pp.) is here.

Drum Major Institute and Its Blogs

I just came across the Drum Major Institute, which has some policy papers on legal issues (immigration, tort system, etc.).

The Drum Major Institute for Public Policy is a non-partisan, non-profit organization dedicated to challenging the tired orthodoxies of both the right and the left. The goal: progressive public policy for social and economic fairness. DMI's approach is unwavering: We do not issue reports to see our name in print or hold forums for the sake of mere talk. We seek to change policy by conducting research into overlooked, but important social and economic issues, by leveraging our strategic relationships to engage policymakers and opinion leaders in our work, and by offering platforms to amplify the ideas of those who are working for social and economic fairness.

The DMI Blog , subtitled "Politics, Policy, and the American Dream," is about politics and policy broadly.

Tort Deform: The Civil Justice Defense Blog "confronts and transcends the arguments put forth by the tort 'reform' movement, working to ensure that all Americans can access the courts." It includes commentary from many authors. (Several whose biographies I clicked on are connected with Public Citizen.)

Tons of Tips for New Lawyers!

Los Angeles Lawyer and the Los Angeles County Bar Association Barristers put out a special issue of Los Angeles Lawyer in the fall to welcome new bar members. Called "Survival Guide for New Attorneys in California," it is full of great, practical information and advice. Here's the Fall 2006 table of contents:

• Practice Basics
• Be a Dog, Patric M. Verrone
• Building a Good Mentoring Relationship, Michael A. Geibelson
• Seven Myths of California Legal Ethics, John W. Amberg
• Sharpening Your Legal Writing Skills, Scott Wood
Getting the Most out of Support Staff, David A. Schnider
• Building a Profitable Practice with an LRIS, Sheldon J. Warren
• Establishing Your Own Practice, Laine T. Wagenseller
• The Importance of Professional Liability Insurance, Thomas L. Browne and Thomas P. Sukowicz
• The Benefits of a Tax Controversy Practice, Jennifer Kowal
• Yes, You Can Take a Vacation...and Should, R. J. Comer
• Case Strategies
• Demystifying Filing, Debora Sanfelippo
• Answers about Answering a Complaint, Lauren Sudar
• Practice That Takes You out of State, Hassan A. Allen
• Discovery Sanctions in Federal and State Court, Casey L. Morris and Kevin A. Shaw
• Corporate Depositions in State and Federal Court, Jerry Abeles
• Preparing a Witness for a Deposition, Robert C. O'Brien
• Defending Depositions, Valerie D. Rojas
• How to Succeed with Expert Witnesses, David Nolte
• The Dangers of the "Usual Stipulation" in Deposition Practice, Steven D. Archer
• Consolidation, Coordination, and MDL, Malini Nangia
• Preparing for Contractual Arbitration, Judge Lawrence C. Waddington (Ret.)
• Fact and Fiction of Structured Settlements, James J. Brady
• At Trial
• Choosing Venue in California Courts, Mark E. Millard
• Understanding Federal Civil Tax Controversies, Sharyn M. Fisk
• What to Expect When You Go to Court, Nancy A. Kaiser
• Practicing in Federal Court, Judge Margaret M. Morrow
• Pet Peeves from the Bench and Your Peers, Judge Anthony J. Mohr
• The Art of Direct Examination, Michael D. Schwartz and Phillip R. Maltin
• Preserving Issues for Appeal, Benjamin G. Shatz

I looked up Fall 2005 as well. There's some overlap, but not much. Here's the list of trial-practice articles:

• Preparing a Case
• Assuming Ownership of Your Cases, David A. Schnider
• Choosing Venue in California Courts, Mark E. Millard
• Consolidation, Coordination, and MDL, Malini Nangia
• How to Succeed with Expert Witnesses, David Nolte
• Avoiding the Worst Mistakes of Deponents, Carole Lieberman
• The Dangers of the "Usual Stipulation" in Deposition Practice, Steven D. Archer
• The Latest in Discovery Technology, Marsha J. Naegeli and Troy S. Moody
• Court-Ordered Arbitration, Karen Smith
• Appeals and Writs, Wendy Marantz Levine
• At the Courthouse
• Walking through the Los Angeles Superior Court, Judge Aurelio Muñoz
• Pet Peeves from the Bench, Judge Victoria Gerrard Chaney
• What to Expect When You Go to Court, Nancy A. Kaiser
• Practicing in Federal Court, Judge Margaret M. Morrow
• Developing Court Calendaring Skills, Joseph C. Scott
• Maintaining Successful Relationships with Courtroom Staff, Maria Perez
• Preserving Issues for Appeal, Benjamin G. Shatz

This is a great service to the bar -- thanks to the LA County Bar Association for putting it on the web where we can all read it!

KCBA Trial Practice CLE

The King County Bar Association has an interesting CLE coming up: 7 Keys to Winning Performance in the Courtroom.

Friday, February 2, 2007
Rainier Square Conference Center, 1301 Fifth Avenue, 3rd Floor Atrium, Seattle, Washington

Registration 8:30am - 9:00am
Seminar 9:00am - 4:30pm

Keynote Presenters:
Nathan Goldberg, Allred Maroko & Goldberg
Lish Whitson, Lish Whitson Law Offices

In an age of “New Media,” where everything is highly visual and fast paced – where our eyes, more that our ears govern our decisions, where attention spans are short, where many external pressures and influences create distraction – this program addresses the changing nature of today’s juries and the jury process.

This fresh, new seminar will offer incredibly useful insights into achieving more consistent and reliable results through the use of new presentation strategies and methodologies. You will enjoy a better understanding of information architecture in the litigation process. And you will leave with tools and techniques proven to engage the jury and keep them engaged throughout trial.

Program Chair: R. Craig Smith, Lead Trial Consultant, Trial Design Group, Seattle

Lish Whitson is a Trial Ad instructor.

UW Law Students NOTE: There are two free registrations for you - first come, first served. Email Denise Medlock, CLE Manager, KCBA, DeniseM @kcba.org. Thanks to KCBA for this contribution to law students' education!

Japan Trying Juries

An op ed piece -- Robert Precht, Japan, the Jury, N.Y. Times, Dec. 1, 2006 -- discusses Japan's reintroduction of the jury system. (It had American-style juries for 15 years, up to 1943.) Here's the article in the International Herald Tribune, which doesn't require you to log in.

Mr. Precht is the codirector of the Japanese Juries and Democracy Program of the Maureen & Mike Mansfield Center at the University of Montana.

Thanks: Ethan Leib at PrawfsBlawg. Prof. Leib says that he is looking at world jury systems to explore different decision systems (majority vs. supermajority, for instance).

Winter Fun Is Going Downhill

If the lawyers had their way, Charles Foster Kane might never have uttered the word "Rosebud." That is the implication of news from Nebraska, reported by Walter Olson at PointofLaw.com. In the wake of a Nebraska Supreme Court decision that municipalities can be held liable for users' injuries in public recreation areas, towns in the state are closing or restricting skate parks and sledding areas.

Robert J. Ambrogi, Sledding's Slippery Slope, Law.com Inside Opinions, Dec. 22, 2006.

This would mess up not just the plot of "Citizen Kane," but also that of "It's a Wonderful Life." On the other hand, there must be more to the story. Some sledding areas might indeed be horribly dangerous. (If George Bailey hadn't been there, his younger brother would have died, after all, and then wouldn't have been able to be a war hero!)

Coast to Coast

Coast to Coast is a regular podcast, hosted by J. Craig Williams and Robert Ambrogi, interviewing lawyers on a variety of topics. This morning while I was watching our dog cavort at the off-leash park, I listened to their program from Jan. 4 in which they and two guests (Carolyn Elefant and Stephen L. Kaplan) reviewed predictions they'd made for 2006 and looked ahead for 2007.

Much of their discussion was about the economy and politics -- oil prices, the war in Iraq, the new Congress, presidential candidates. In technology, will Microsoft bring out a new operating system and Office suite for small and medium customers (in addition to Vista for the big outfits)? Will Apple bring out an iPhone? And, speaking of Apple, will Steve Jobs be indicted for Apple's backdating stock options?

I was interested in Carolyn Elefant's prediction that the recent spate of big firm mergers might lead to more work for small and medium firms, as the big firms are conflicted out of representing some clients.

What do you think the new year will bring?

Seattle Profiles Innocence Project, Names Top Lawyers

This month's issue of Seattle Magazine has a long profile of the UW's Innocence Project Northwest. Todd Matthews, Finding Innocence, Seattle, Jan. 2007, at 90-95. (Sorry, the article isn't online, so you'll have to watch for a copy in print.) The article features the case of Ted Bradford, who was exonerated of rape by DNA technology that was not available at the time of his original trial. (See post.) Mr. Bradford was represented by project director Jackie McMurtrie and attorney (and Trial Ad instructor) Felix Luna who was working pro bono, as well as by Matt Ficcaglia and Theresa Connor (both UW '06). The article is about more than that one case. It tells how Prof. McMurtrie came to found the project -- something I hadn't known, even though I was working here at the time. And it describes how the issue of wrongful convictions inspired Kelly Canary, now a 3L, to finish college and apply to law school.

In Seattle's list of 155 top lawyers in town, I spotted several Trial Ad instructors and other UW faculty:

• Lourdes Fuentes (Immigration Law), who recently left private practice and is the new director of the UW's Immigration Law Clinic.
• Tom Hillier (Public Defender), Trial Ad Instructor. (He gets a full-page picture and a profile, pp. 82-83.)
• Todd Maybrown(Criminal Defense), Trial Ad Instructor.
• Jeffery Robinson (Criminal Defense), Trial Ad Instructor.
• Hugh D. Spitzer (Constitutional Law), who teaches Washington Constitutional Law, Local Government Law, and Roman Law.

Congratulations, all!

Animators at Law Study of Communication Style

Animators at Law, a company that creates animations and graphics for trials, has released the results of a study of communication styles. Press release: Animators at Law Releases 3-Year Study Revealing That Attorneys and the General Public (e.g., Juries) Learn and Communicate Very Differently, Jan. 2, 2007.

Animators at Law, a consulting firm that helps litigators maximize the effectiveness of their communications with judges and juries, releases a first-of-its-kind study today. The study has wide-ranging implications for the legal profession and for those who interact with it. Using a survey designed by communication and learning experts, 387 attorneys and 1657 non-attorneys were surveyed over a three year period to determine how they fit into one of three learning/ communication styles: visual (seeing/showing), auditory (hearing/ speaking) or kinesthetic (feeling).

Results of the study show a marked difference between how attorneys and non-attorneys prefer to communicate. For example, only 18% of the non-attorney population learns best by hearing information, as compared to nearly 29% of attorneys. Further, 61% of the general population prefers to learn from visual information, while fewer than half of attorneys prefer to communicate with visual information. Since people tend to communicate the same way they learn, the everyday implications for the courtroom are especially significant.

I wrote to Kenneth Lopez, the CEO of Animators at Law and the person who sent me the press release, and I asked him more about the study. They are still working on the narrative that will give greater detail about methodology. So far, the study strikes me as suggestive, but not rigorous: the survey instrument was a quiz they offer on their website, and the sample of lawyers and nonlawyers studied was drawn from visitors to the website. Still, it's interesting to think about the general theme. And this suggests more research to undertake.

It makes perfect sense that attorneys would have different communication styles and preferences from others. A professional ice skater should be very good at kinesthetic learning and probably doesn't need to be able to absorb, say, an appellate brief. Someone who is very good at spatial reasoning might choose to become an architect or a dentist and not a lawyer. And so on.

I suspect that the fuller report will give more information about overlapping preferences. Any one person can use any or all communication styles. For instance, if I want to learn a new dance step, I'll prefer kinesthetic learning, supported by the visual learning of watching the instructor (but don't bother showing me dance step diagrams!) If I want to learn the locations of a few landmarks in Manhattan, I'd like a map (supported by the kinesthetic learning of walking from, say, Penn Station to the New York Public Library, so I have a "foot" sense of how far it is). If I want to learn about today's news, I like to listen to NPR or skim headlines in a newspaper. So my preferences vary depending on task and context.

(I'm never sure where reading falls. Does it count as visual, because I'm using my eyes? Or is it auditory, because I sometimes have a voice in my head? It certainly doesn't have a lot of pictures and graphics -- at least, not most of my reading.)(Another question: if so many people are visual communicators, why won't anyone play Pictionary with me?)

I suspect a lot of jurors have a range of preferences as well. When they want to find out the latest about the bum that cousin Eileen is dating, maybe they'd prefer a nice hour of gossip (auditory learning). If they want to put together a bookcase from Ikea, good diagrams are great (visual learning). And if they want to learn how to knit, they'll do best if they try it themselves and feel the yarn and the needles in their hands (kinesthetic learning).

A lot of ordinary people spend a lot of time engaged in auditory communication. Just look at them! They're talking on the bus, they're talking on cell phones when they're walking their dogs (even when they're driving), they're talking at bars, they're talking during movies, they're talking, talking, talking. Of course, a lot of this talking is not about learning. Instead it's about establishing and renegotiating relationships, connecting emotionally, transacting business, flirting, making jokes, and more.

So when we think about communicating in trials, it probably pays to think about what we're doing. If you want the jurors to learn something (e.g., to learn that it's very, very likely that this DNA from the crime scene was the defendant's), then you might use one approach (animation, perhaps). But if you want the jurors to feel something (e.g., to feel that you are a trustworthy advocate, that your client is a likable, honest guy, that your client's doctor is an arrogant jerk), then you might use another approach (auditory, perhaps, because people connect emotionally via language).

Within any one style, there are undoubtedly substyles. One visual learner might do well with graphs and charts, while another, non-quantitative, visual learner prefers something else. Within auditory communication, there are important differences between lawyers and many other people. Lawyers cut their teeth on 1600-page casebooks. They are much more comfortable with polysyllabic latinate words and complex sentence and paragraph structures. But all that is often not easy to understand (even for those of us who can handle it if we concentrate). So not only do lawyers need to learn not to communicate only by speaking, but some of them also may need to learn to speak more directly and clearly.

Animators at Law is an interesting company. Ken Lopez founded it in 1995 when he was fresh out of law school. Now its customer list includes many of the largest, most successful law firms in America. A selling point is that the owners and many of the employees are lawyers, so they understand evidence, trial strategy, and so on, as well as making the pictures look good. There are interesting profiles of Lopez and the company linked from the Press page.

Prosecutor and School Board Recall

Yesterday the King County Prosecutor's Office rejected a petition by the Committee to Stop All School Closures to have a recall vote for five members of the Seattle School Board. The person who filed has now refiled, fixing the procedural technicalities Maleng's letter outlined. Parent fixes, resubmits School Board recall papers, Seattle P-I, Jan. 5, 2007.

Now what's the prosecutor's role in a school board recall? Prosecutors prosecute, right? What's that got to do with the school board dispute?

The King County Prosecutor is also the county's lawyer, and handles a lot more than criminal prosecutions. The Criminal Division of the office is the largest; the other divisions are Fraud (a special class of crimes), Family Support, and Civil.

So, what's the recall procedure? Step 1:

Whenever any legal voter of [in this case, Seattle] * * * desires to demand the recall and discharge of any elective public officer of [Seattle], under the provisions of sections 33 and 34 of Article 1 of the Constitution, the voter shall prepare a typewritten charge, reciting that such officer, naming him or her and giving the title of the office, has committed an act or acts of malfeasance, or an act or acts of misfeasance while in office, or has violated the oath of office, or has been guilty of any two or more of the acts specified in the Constitution as grounds for recall. The charge shall state the act or acts complained of in concise language, give a detailed description including the approximate date, location, and nature of each act complained of, be signed by the person or persons making the charge, give their respective post office addresses, and be verified under oath that the person or persons believe the charge or charges to be true and have knowledge of the alleged facts upon which the stated grounds for recall are based.

RCW 29A.56.110 (emphasis added). Step 2. The petition is filed with "the elections officer whose duty it is to receive and file a declaration of candidacy for the office" (RCW 29A.56.120) -- in this case, the King County REALS Division. Step 3. If the political jurisdiction is all within one county (the Seattle School District is), the the county prosecutor has 15 days to prepare a ballot synopsis of the charge and (a) send it to the person who filed the charge and (b) send it to the superior court and ask the court to approve it and determine the sufficience of the charges. RCW 29A.56.130. Step 4. The court gets 15 days to have a hearing and rule on whether the acts are sufficient for a recall and whether the ballot synopsis is OK. RCW 29A.56.140. Step 5 (optional). The decision about the sufficiency of the charges can be appealed to the Supreme Court. Id. Step 6. The court transmits the ballot synopsis to the person asking for the recall, the officer in the hotseat, and the county auditor. Id. Step 7. The recall sponsors go out and try to get signatures in the next 180 days. RCW 29A.56.150. If they get at least 35% of the total number of votes cast for all candidates for the office (school board), then they file the petitions with REALS. RCW 29A.56.180. More Steps. It goes on. The signatures have to be verified (by statistical sampling) and then there can be a special election. And so on.

In this case, the prosecutor rejected the petition at Step 1 because there was one petition for five school board members, it wasn't notarized, and the petitioner didn't give his address. See letter from Janine Joly, Senior Deputy Prosecuting Attorney. (Why didn't the prosecutor give the guy a break? A Supreme Court case says that the statutory requirements for recall petitions have to be interpreted strictly. In re Recall of Wasson, 149 Wn.2d 787, 792-93 (2003).) The petitioner went back to the drawing board and resubmitted.