Washington prison doctor quits over death penalty, Seattle P-I, Dec. 24, 2008:
The top doctor in the Washington Department of Corrections has resigned, saying the use of medical staff to prepare for an execution is unethical.The Department of Corrections says that no employee is required to take part in an execution.
Possible Private Court Hearings in R.I. Raise ACLU’s Hackles, ABA J. online, Dec. 24, 2008.
An almost 25-year-old law in Rhode Island is suddenly controversial, as it looks like it might be implemented for the first time.For more, see Hire-a-judge law may come to life, Providence J., Dec. 24, 2008.
The so-called hire-a-judge law enacted by the state in 1984 is the basis of an apparent plan by the Rhode Island Supreme Court to allow litigants in civil cases to retain retired judges to hold private hearings, reports the Providence Journal.
Under Rhode Island’s Retired Justice Trial Act, litigants decide where the case would be heard and pay all costs—including the fee for the retired judge whose decisions, the law states, would “have the same force and effect as if it had been entered or made by an active judge of the court.”
Kareen Fahim, Weighing Guilt When the Man on Trial Did No Killing, N.Y. Times, Dec. 24, 2008.
In the glare of public scrutiny, juries in Brooklyn and the Bronx started deliberations on separate cases last week, considering the same shocking charge — the murder of a police officer.One defendant was acquitted of felony murder but convicted of attempted burglary. A mistrial was declared in the other defendant's case.
That was not all they had to contend with: Prosecutors in both cases were asking for murder convictions for the defendants who, the authorities acknowledged, were not the men who fired the fatal shots.
In deciding whether to convict, the jurors in Brooklyn repeatedly asked for readings of the law, and explanations, in plain English, for what it meant to be an accessory to murder. In the Bronx, jurors sifted through all of the evidence over and over, to try and divine whether the defendant in their case knew that an acquaintance of his — the man who killed the officer — was carrying a gun.
Jury Issues First Death Sentence in New Hampshire Since the 1950s, N.Y. Times, Dec. 18, 2008. The defendant was convicted of killing a police officer.
Another man was convicted of capital murder in October, but his jury rejected the death penalty. That defendant was white; the one sentenced to death is black and the officer he killed was white.
UW law student finds evidence that frees man convicted of Tacoma robbery, News Tribune (Tacoma), Dec. 23, 2008. Accused of robbing a Safeway in Tacoma, the defendant said he was in L.A. at the time and in fact had met with his probation officer. Nobody came up with the records to show it, and he was convicted. Boris Reznikov, then a student in the Innocence Project Northwest clinic, got the records and the man was exonerated. Severe weather has delayed the processing of the paperwork, but he will be released soon. Clinic director Jacqueline McMurtrie and volunteer attorney Christopher R. Carney also worked on the case.
Thanks: Lisa Kremer.
Update (Dec. 28): Jackie McMurtrie reports that they were able to get Mr. Anderson, the wrongly convicted man, to L.A. on Christmas so he could be with his extended family.
In Seeming First, Aussie Court Says Default Judgment Can Be Served on Facebook, ABA Journal online, Dec. 15, 2008.
Later, the ABA Journal asked readers to send in their oddest stories of process service. One of my favorites involved putting the papers under the paws of a Saint Bernard in the front yard.
Photo is of Orville Wright's dog, Scipio, from Centennialofflight.gov. (I know, the connection to process service is tenuous, but I like a nice dog picture. And Scipio looks like he would have let a law student intern leave papers under his paws, doesn't he?)
Thanks: Maureen Howard.
In Once-Every-Fifty-Years Case, Whole Foods Sues FTC, Am. Lawyer, Dec. 10, 2008 (law.com).
The FTC opposed the merger of Whole Foods Market and Wild Oats Marketplace in the summer of 2007, so it sought a preliminary injunction. The district court denied the motion. The FTC went to the D.C. Circuit to get an injunction pending appeal. Denied. So the deal went ahead. The FTC still appealed the district court's denial of an injunction, and in July the D.C. Circuit reversed and remanded. Federal Trade Comm'n v. Whole Food Market, Inc., No. 07-5276 (D.C. Cir. July 29, 2009, amended and reissued Nov. 21, 2008).
Now, American Lawyer reports:
Now, the Whole Foods legal team from Orrick, Herrington & Sutcliffe, Dechert and new addition Constantine Cannon is trying something it says hasn't been attempted in half a century -- suing the FTC.A press release from Whole Foods (Dec. 8) is here. The FTC has lots of documents related to its investigation and the litigation here.
The Whole Foods team, which says the company has already spent $16.5 million on legal fees and other costs related to winning approval of the deal, says the FTC is so biased against the merger that it should be prohibited from reviewing it.
Additionally, the grocer's lawyers say, new FTC rules that call for an expedited discovery process put Whole Foods at an unfair disadvantage by giving the company just five months to prepare its case (Whole Foods wants an additional ten months).
Justice to go mobile in Karnataka-India-The Times of India, Nov. 20, 2008:
BANGALORE: Karnataka is all set to take justice and legal literacy to the doorsteps of its people across the state, particularly to the poor as they cannot pay for the expensive and time-consuming court battles.Thanks: Michele Storms.
A specially designed bus will serve as a court room to conduct the lok adalat (people's court).
Lok adalat is a mechanism for speedy settlement of disputes through conciliation, compromise or arbitration. It is not a substitute to the courts but supplements their function. For the financially weak, it is a relief as they need not pay any court or lawyer's fees for the lok adalats to take up their case.
Law.com - Panel Upholds $17M Attorney Fee Award, Cites Bad-Faith Patent Litigation by Drug Companies, Dec. 9, 2008.
The generic drug companies had sought approval to produce generic versions of an anti-diabetic drug for which Takeda held the patent. The two companies made certifications that the Takeda patent was invalid for obviousness.
But at trial, both companies changed the focus of their invalidity arguments from what they had filed in their certifications. After an extensive bench trial, the court held that the patent was nonobvious and enforceable.
Takeda moved for an award of attorney fees under a section of the law that permits that award to prevailing parties in "exceptional cases." The district court agreed with Takeda that both companies lacked a good faith basis for their certification filings and had engaged in litigation misconduct.
Local News | Civil-rights trial will pit deputy against deputy | Seattle Times Newspaper:
A flier calling for King County sheriff's deputies to rally around "our brother, Brian Bonnar," who is accused of beating a handcuffed suspect, has federal prosecutors and sheriff's officials concerned that its intent is to intimidate officers prepared to testify against him.This is "the first time a law-enforcement officer in Western Washington has been charged under the criminal civil-rights statute."
A task force convened by the King County Prosecuting Attorney and the Department of Corrections Secretary released a 160 page report on the mental health and criminal justice systems: Examining the Tools in the Toolbox A Review of Community Supervision of Dangerous Mentally Ill Offenders. A news story on the task force report and investigation, and the tragic circumstances that led to its formation, is in today's Seattle Post-Intelligencer. It reports that today "King County Prosecutor Dan Satterberg will present 64 wide-ranging 'concepts for reform' to the Senate Human Services and Corrections Committee."
Thanks: Peggy Jarrett.
Peggy posted this on Gallagher Blogs (our law library blog), and suggested that I tell readers of Trial Ad about it too. Good idea, and done.
If you haven't already, you might want to visit Gallagher Blogs directly -- we post an interesting variety of tips, news, and resources related to law and legal research, and you could find it another good blog to follow.
Ressam sentence reinstated, Seattle P-I, Dec. 4, 2008. Federal prosecutors asked Judge John Coughenour (W.D. Wash.) to increase convicted terrorist Ahmed Ressam's sentence from 22 years to life. His sentence had reflected his early cooperation with investigators but he has stopped cooperating. Judge Coughenour stuck with the original sentence, but U.S. Attorney Jeff Sullivan hopes to appeal that decision.
Former Entellium CEO, finance chief may be near plea deal | Seattle Times Newspaper, Dec. 2, 2008:
Former Entellium executives Paul Johnston and Parrish Jones may be close to reaching a plea agreement with federal prosecutors on charges of falsely inflating company revenue to lure millions of dollars from investors.One of the defendants is represented by Jeffery Robinson, who is also a Trial Ad instructor.
The deal would allow the defendants to avoid trial and possibly obtain a shorter sentence in exchange for pleading guilty to one count of wire fraud, which is punishable by up to 20 years in prison and a $250,000 fine.
Vanity Fair gives an inside look at a very unusual post-trial investigation. Christopher Ketcham on Doreen Giuliano's Quest for Justice: About Us: vanityfair.com, Jan. 2009 (posted Nov. 28, 2008).
After her son, John Giuca, was convicted in a high-profile murder case, Doreen Giuliano wondered what she could do besides sending snacks to him in prison. Eventually the Brooklyn woman determined that she would gather information about jurors, hoping to find something that would get her son a new trial.
She followed her prime target for months, and then ramped up her efforts. She changed her appearance (losing weight, going to a tanning salon, dying her hair) and rented an apartment near him. She made a point to show up on his street and, with some strategic flirting, managed to strike up a friendship with him. After months of shared meals, wine, and marijuana, she finally got the former juror to say that he had lied during voir dire, revealing the fact that he had known some of the witnesses. Ketcham writes:
The law is clear: John Giuca, based on the evidence secretly gathered by his mother—along with other discrepancies in witness testimony—may very well be entitled to a new trial. Even if Allo didn’t understand the questions during voir dire of a connection to Giuca, under his oath as a juror he was obliged, once their intersecting circles became apparent, to inform the court of this conflict.
In addition, according to Doreen’s affidavit, which attorney Epstein has prepared to file in court, Allo also admitted on tape that he used to hang with members of the Ghetto Mafia (the gang prosecutors contend Giuca belonged to), that Allo’s cousin had dated a woman whose family’s house was used for Ghetto Mafia meetings, and that during the trial this cousin and Allo discussed events related to the case, referring to Giuca as a gang big shot named Slim. “It virtually demands a reversal of the conviction,” says Ezra B. Glaser, a legal adviser to Doreen. “There are New York State and U.S. Supreme Court precedents. He [Allo] knew what he did was improper.”
In Emotions and Culpability: How the Law is at Odds With Psychology, Jurors, and Itself Norman J. Finkel and W. Gerrod Parrott investigate
why, when, and how ordinary human beings hold some individuals guilty of crimes, but others less so or not at all. Why, for example, do the emotions of the accused sometimes aggravate a murder, making it a heinous crime, whereas other emotions might mitigate that murder to manslaughter, excuse a killing (“by reason of insanity”), or even justify it (“by reason of self-defense”)? And what emotions on the part of jurors come into play as they arrive at their decisions?Publisher's description. This book, from the American Psychological Association, is available in the Law Library: K5065 .F56 2006 at Classified Stacks.
The authors argue persuasively that U.S. law is out of touch with the way that jurors’ “commonsense justice” works and the way they judge culpability. This disconnect has resulted in some inconsistent verdicts across different types of cases and thus has serious implications for whether the law will be respected and obeyed.
Problems arise because criminal law has no unified theory of emotion and culpability, and legal scholars often seem to misunderstand or ignore what psychologists know about emotion. The authors skillfully show that the law’s culpability theories are (and must be) psychological at heart, and they propose ways in which psychology can help inform and support the law.
The Wisconsin Law Journal profiled several people who were exonerated -- "After the Door Opens":
Do you like to read history? See Fighting For Justice: The History and Origins of Adversary Trial, by John Hostettler. The publisher's description is here. And the book is available in the Law Library: KD8364 .H67 2006 at Classified Stacks.
Daniel Givelber & Amy Farrell used data about noncapital felony trials from the National Center for State Courts -- including questionnaires filled out by judge, jurors, prosecutor, and defense attorney -- to explore the differences between jurors' and judges' assessments of guilt. Judges and Juries: The Defense Case and Differences in Acquittal Rates, 33 Law & Soc. Inquiry 31-52 (2008)
Kalven and Zeisel’s (1966) classic study,
The American Jury, concluded that juries were “in revolt” from the law when they acquitted when judges would have convicted. Using data collected by the National Center for State Courts to examine jury decision making in four different communities, this article reexamines the question of the judge and jury’s respective fidelity to the law and evidence by examining the influence on judge and jury of the defendant’s evidence, his criminal record, and his reason for refusing to plead. No data can tell us definitively whether the judge is correct and the jury in error when they disagree, but the data analyzed in the present study can tell us whether the factors that move the jury and fail to move the judge are or are not consistent with the innocence of the accused.
The Trials of Darryl Hunt is the story of a murder, its investigation, the wrongful conviction of an innocent man, and -- after many years -- his eventual exoneration. You can see a trailer on the film's website. And you can check out the DVD from the law library and watch the whole thing: KF9756 .T75 2007 at Classified Stacks
Last month, Chief Judge Dennis G. Jacobs (2d Cir.) questioned whether much "public interest" is in the public interest, criticizing suits against the government (whose elected officials should have a better claim to representing the public interest than unelected lawyers) and impact litigation. Pro Bono for Fun and Profit, Oct. 6, 2008 (speech at Rochester Federalist Society).
My point, in a nutshell, is that much of what we call legal work for the public interest is essentially selfserving: Lawyers use public interest litigation to promote their own agendas, social and political--and (on a wider plane) to promote the power and the role of the legal profession itself. Lawyers and firms use pro bono litigation for training and experience. Big law firms use public interest litigation to assist their recruiting--to confer glamor on their work, and to give solace to overworked law associates. And it has been reported that some firms in New York City pay money to public-interest groups for the opportunity of litigating the cases that public-interest groups conceive on behalf of the clients they recruit.See NY Judge's Remarks Cause Stir Over Goal of Pro Bono Work, N.Y.L.J., Oct. 31, 2008.
There are citizens in every profession, craft and walk of life who are active in promoting their own political views and agendas. When they do this, it is understood that they are advancing their own views and interests. But when lawyers do it, through litigation, it is said to be work for the public interest. . . . Well, sometimes yes, and sometimes no. When we do work of this kind, a lot of people would see it as doing well while doing bono. Prosperous law firms that prevail in pro bono litigation do not hesitate to put in for legal fees where the law allows, and happily collect compensation--often from the taxpayers--for work they have touted as their service to the public. And even if the firms donate all or part to charity, the charities are usually groups that have as their charitable object the promotion of litigation rather than (say) medical research or hurricane relief.
ecause Jacobs' critique flows from the premise that clients merely fulfill a "technical requirement," it is understandable that he fails to consider the value that victims of discriminatory government policies and actions place in having someone speak up for the injustice they face. His indictment of public interest lawyers' motives simply overlooks the struggles of the workers, prisoners, parents and children whose struggles inform the work of public interest lawyers.
The 2d U.S. Circuit Court of Appeals must be a far different place from the 6th Circuit, because I cannot recognize among the cases before us the lawyers that Jacobs accuses of abdicating their responsibilities to clients to advance their own social agendas. Indeed, I am immensely grateful for the efforts of lawyers who represent very real clients in a variety of difficult cases — including in the broader "impact" litigation that Jacobs decries. In my view, the value of such representation cannot be overstated when litigation of an individual's claim exposes systemic violations of the law. Regardless of the legal issue, the presence of experienced and qualified counsel lends stability and order to the proceedings before us.
I got an email announcement from the folks at the www.FederalEvidence.com The www.FederalEvidence.com
The new attorney-client privilege rule, FRE 502, which was recently signed into law, has been a recent topic on the Federal Evidence Blog here and here.
We have learned that law professors are using the Federal Evidence Blog to discuss and share recent topical cases and issues with their law students. Other blog sites are adding the Federal Evidence Blog to their list of other sites. If you or others are also interested in contributing evidence articles, details are available here
The separate Federal Evidence Review is a monthly electronic legal journal that highlights recent federal evidence cases and developments for subscribers. Special recurring features include: Lead Story, Practice Tip, Supreme Court Watch, Circuit Splits, Developing Circuit Consensus, Open Issue Pending, Open Issues Resolved, Proposed Amendments to the FRE, and more. An index highlights the range of topics covered
Lawyers Will Be Lawyers, Dumping More on Juries Than They Can Process - WSJ.com, Nov. 6, 2008.
When the high-profile prosecution of a Texas charity accused of helping Palestinian terrorists collapsed in a chaotic mistrial here a year ago, there were lots of theories about what went wrong, from government overreaching to a new political climate to a rogue juror.The article discusses the temptation lawyers have to put in every darn bit of evidence they've dug up -- and the resultant boredom and confusion juries experience. In white-collar cases, there's often simply too much accounting and paper to hold jurors' attention.
But there was another problem, according to lawyers who followed the trial: Some jurors were bored and bewildered. They were buried under 197 counts and an avalanche of evidence, including hundreds of documents and dozens of wiretap tapes.
Jury consultant Robert Hirschhorn offers this trifecta: "A, you have to make it interesting. B, you have to use simple words. C, you need to come up with analogies or examples."Thanks: Alysha Yagoda.
People like to speculate about what justices a new President would appoint. But the President only gets to appoint when there's a vacancy. Justice Stevens, at 88 the oldest justice, is going strong, and no other justice is talking retirement either. Justice Stevens Shows No Signs of Leaving Supreme Court - washingtonpost.com, Nov. 18, 2008.
Culture Clash: City and County Prosecutors Clash over Drug Prosecutions, The Stranger (Seattle), Nov. 11, 2008:
Seattle City Attorney Tom Carr is taking a different approach to closing the half-million-dollar funding gap at his office than his counterparts at King County. While King County Prosecuting Attorney Dan Satterberg is diverting about 2,300 low-level drug cases away from prosecution and jail to help shave roughly $4 million from his budget, Carr is digging in his heels at city council meetings and defending an enforcement-heavy approach to low-level drug-possession charges.One commenter points out an important difference between the county and city:
Satterberg has two levels of court to work with – the Superior Court, which can handle felonies, and the District Court, which cannot. Because of this, he can send his felony drug cases from Superior Court down to the lower court to be treated as gross misdemeanors and misdemeanors.
In contrast, Carr only has one court system – the Seattle Municipal Court. This is the equivalent of King County District Court, in that it too only handles gross misdemeanors and misdemeanors. Carr, unlike Satterberg, has no lower court to “divert” his drug cases to.
In her column, Nicole Brodeur sounds the alarm about proposed cuts to public defense in King County: the County Executive's budget would allow four 1/2-time lawyers for about 2,900 "expedited felonies" a year. Those are cases that are reduced to misdemeanors if the defendant pleads guilty. Short-order justice is served Seattle Times Newspaper, Nov. 18, 2008.
If Sims' cuts go through, each half-time lawyer will be responsible for 725 of the expedited felonies. That's an hour and 20 minutes per client.Graphic from Oregon Board of Cosmetology Safe Salons Public Education Program.
The thought makes Kelly Canary of the Northwest Defenders Association shiver. She got into law to defend the defenseless. But this is crazy.
"An hour and twenty minutes to read the police report, find out if your client was targeted because he is a person of color, talk to witnesses and see whether your client may actually be innocent, meet your client and hold the prosecutor to their burden of proof beyond a reasonable doubt," Canary said, then sighed.
"It's McJustice."
Indeed, I've had nail appointments that lasted longer than that. Shouldn't a decent defense take longer than a manicure and pedicure?
I just got a note from Erik Mart, a registered sex offender who is blogging about his experience at Monster Mart. He is also working on a memoir, Monstermart: How I Joined America's Most Unwanted. The Stranger had an article about him last year; see my post here.
If you're interested in the topic, check out Sex Offender Issues, a blog with lots of content -- news, stats, studies, opinion. The author, ZMan emphasizes:
I want to first start off with saying I am NOT pro-pedophile or pro-sex offender but pro-Constitution. I am totally against any form of abuse to any animal or human being. Anybody who commits any crime should be punished. But, once that person has done the time they were convicted under, via contract, and is off parole and/or probation, they should be able to get on with their lives without all the rules and regulations. No other criminal has to live by such draconian laws, so why sex offenders? If we must do this for sex offenders, then I think, to be fair, all criminals must be under similar rules and regulations.For sentencing generally, you can't beat Prof. Douglas A. Berman's Sentencing Law and Policy (the first blog cited by the U.S. Supreme Court!). Berman's posts about sex offender sentencing are here.
The Washington State Access to Justice Board is looking for three new members. One must be an attorney, one must be a non-attorney, and one can be either. The application deadline is Nov. 30.
A demonstrated commitment to equal justice principles and an enthusiastic commitment to serve in equal justice community leadership are required, as are strong communication skills and an ability to see the "big picture." Courage, compassion, consideration, patience, humility, passion, and humor are all valuable traits in ATJ Board members.More information here.
The ATJ Board strives for a membership that reflects ethnic, racial, gender, geographic, and other diversity. To that end, in seeking candidates to fill the current at-large vacancies, the ATJ Board's Nominating and Leadership Development Committee is specially seeking persons with experience in Washington's pro bono community (as staff, board members, or volunteers), and/or persons who currently live or work in the Northern Olympic Peninsula or Eastern Washington, and/or persons who will otherwise increase the Board's diversity. Candidates for the statewide staffed legal services programs position should have relevant experience with such a program.
Citing Workload, Public Lawyers Reject New Cases, N.Y. Times, Nov. 9, 2008, at A1. Budgets down, caseloads up.
“Right now a lot of public defenders are starting to stand up and say, ‘No more: We can’t ethically handle this many cases,’” said David J. Carroll, director of research for the National Legal Aid and Defender Association.Defendants feel greater pressure to plead guilty -- which can affect their immigration status as well sentences for any future convictions.
PreLaw magazine has an article discussing support for public interest work in law schools. Our town looks good: in the magazine's ranking, the UW is #8 and Seattle U is #16. Best Public Interest Law Schools, preLaw Magazine - Fall 2008, at 28.
Pasado's Safe Haven tried to file a citizen's complaint against employees of an animal testing lab who scalded a monkey to death when they ran its cage through a washer. The Snohomish County prosecutor's office and the Everett City Attorney had declined to file charges, and Everett District Judge Roger Fisher declined to allow the citizen's complaint to go forward. Everett judge won't hear case of lab monkey's death | Seattle Times Newspaper, Oct. 30, 2008.
Pasado's was represented by Adam Karp, a UW grad who teaches animal law at the UW and Seattle U.
The Washington State Bar Association invites you to create a short video (3 minutes max.) showing "your vision of justice for all as citizens of Washington state." Not only do you get to use your creativity and express yourself, but you also will be in the running for two $1000 prizes -- one to be selected by a panel of judges and one People's Choice winner. You might even get both!
Details about the contest are here. The deadline for posting entries on YouTube is June 15, 2009.
The Alliance for Justice held a day-long program, Our Rights, Our Courts, Our Future on Sept. 25. Now you can watch video of most of the speakers (and read a transcript of one speaker's remarks) here.
A couple of weeks after the election, come to the UW for Selecting Judges in Washington -- Looking Back to 2008 and Forward to 2009, sponsored by the Judicial Selection Coalition and the University of Washington School of Law.
This conference is for anyone interested in the way we select judges in Washington. Conference speakers will discuss:
- What happened in Washington State judicial elections this year? Who ran, who contributed money, what happened? A panel discussion with:
- Judge William Baker (Ret.), Chair of the Committee for Ethical Judicial Campaigns
- Paul Fjelstad, webmaster for votingforjudges.org
- Brad Shannon, Reporter for The Olympian
- Sandra Driscoll, King County Municipal League
- What do Washington voters think about methods of judicial selection? A professional survey of several thousand randomly selected Washington voters has just been completed
under the supervision of Professor David Brody, WSU. Professor Brody will summarize the results.- Should Washington adopt public financing of judicial elections? A report on proposed legislation from Craig Salins, Executive Director, Washington Public Campaigns.
- Can judicial performance evaluations improve judicial elections? A panel discussion including Jordan Singer of the Institute for the Improvement of the American Legal
System, and representatives of the King and Pierce County courts to comment on judicial performance evaluations conducted in those counties this year.- What is happening in other states? A view from the national perspective by James Sample of the Brennan Center for Justice at NYU School of Law.
Ninth Circuit Judge Diarmuid O'Scannlain discusses competing schools of statutory construction -- textualism and purposivism -- and comes down squarely on the side of textualism. Hon. Diarmuid. E. O'Scannlain, Lawmaking and Interpretation: The Role of a Federal Judge in Our Constitutional Framework, 91 Marq. L. Rev. 895-915 (2008). Download a pdf here; listen to a webcast here.
Man who killed prowler says he aimed for legs, Seattle P-I, Oct. 16, 2008. Prof. John Junker is quoted on the law of self-defense:
"In general, one has to have a reasonable belief that there is going to be a deadly attack by another person," said John Junker, criminal law professor at the University of Washington. "You can't shoot somebody for running away with your stuff."
But there have been a lot of cases, some stemming from police shootings, where the shooter mistakenly thought the other person was armed. Case law says the jury must judge the facts from the shooter's point of view and the information he had, Junker said.
"It's up to the lawyers to try to prove to the jury what really happened and whether it was reasonable for him to believe that," he said.
This week's cover story in The Seattle Weekly is sharply critical of the judicial election process in Washington State: Damon Agnos, The Way We Elect Judges Is a Sham, Seattle Weekly, Oct. 15, 2008.
Hey, there's a new blog in the neighborhood: Gallagher Blogs, from a group of us at the Gallagher Law Library, will have resources, tips, and items of interest to the law school community.
For the last few days as I've been highlighting documentaries in our collection, I've posted both here and there. I'm going to continue highlighting some documentaries on Gallagher Blogs but will stop the series here (unless there's something that cries out "Trial Ad" to me).
Brick by Brick: A Civil Rights Story follows three Yonkers families during a struggle over housing desegregation. It goes back decades to describe how a ghetto was created through public policies, so that people of color mostly lived in segregated neighborhoods with very poor schools. Members of the community organized to fight for change, and the film
tracks the resulting federal US v Yonkers litigation, which challenged neighborhood and educational discrimination. Coming back out of the courtroom into the community, the story describes the bitter local confrontation about race and the very concept of community that follows. From a first person perspective, characters weave a tale of years of work attempting to achieve justice, with a labyrinth of successes and setbacks that the struggle entails.It's in the library: HD7288.76.U5 B75 2007 at Classified Stacks.
At its close, Brick by Brick shows what has happened both to a community and to individual citizens, committed to their city. It also illustrates the difference housing opportunity can make in a single family’s life. The story brings the fiery legal and political crucible of a contemporary city and its larger implications for our nation today onto the screen.
Dates range from 1995 to 2000.
Microsoft and 25 law firms have just launched a project to provide legal representation to immigrant children who are in danger of deportation: KIND - Kids In Need of Defense. Two other corporate law departments are also involved.
Microsoft Corporation and the internationally acclaimed actress and UNHCR Goodwill Ambassador Angelina Jolie ask for your support in building a pro bono movement of law firms, corporate law departments and NGOs committed to providing fair, competent and compassionate legal counsel to unaccompanied immigrant children in the U.S. We're calling this new coalition KIND-but it's about more than compassion, it's about protecting the rights of children.Press:
KIND has an ambitious but achievable agenda. By 2010, we intend to provide legal representation for 100% of unaccompanied children-approximately 2100 children a year-in those areas of the country where the need is greatest: Los Angeles, Seattle, Houston and the Northeastern corridor of the U.S. And we'll expand our operations throughout the country based on the "best practices" developed through this first critical phase of work.
KIND will also provide fellowships to attorneys at legal aid organizations so they can exclusively represent immigrant children. The program will also pay for coordinators in the nine cities.
Kevin Coe -- alleged to be Spokane's "South Hill rapist" but only convicted of four rapes and, after appeals, just one -- was found by jury yesterday to be a "sexually violent prdator" who should be indefinitely committed to a mental facility. SR.com: For some, Coe verdict represents simple justice; for others, it's a travesty, Spokesman Review (Spokane), Oct. 17, 2008.
The Spokesman Review has extensive coverage of the trial in this page with links to stories and videos and in this blog.
My earlier posts about the case are here.
When filmmaker Abby Ginzberg visited the Law School this week, she donated to the library Those Who Know Don't Tell: The Ongoing Battle For Workers' Health. Narrated by Studs Terkel, this film
traces the history of the struggle to rid the workplace of occupational hazards. Using archival footage, union songs and interviews, it tells its story both from the point of view of the labor activists and those within the medical profession who became their advocates.It's being processed, but it will soon be available at HD7654 .T57 1989 in the Classified Stacks.
The fight for occupational health began almost one hundred years ago with Dr. Alice Hamilton's discovery of lead-caused industrial disease. She was followed by others such as Dr. Harriet Hardy of M.I.T., who discovered the dangers of beryllium. More recently, Dr. Irving Selikoff uncovered the danger of asbestos to workers and publicized his findings despite pressure from the asbestos industry to silence him.
Through tragedies such as the Triangle Shirtwaist Fire, unions and workers began effective organizing for occupational safety. This powerful discussion starter should be shown in courses dealing with labor, American history, community medicine and public health.
This morning I listened to a wonderful interview: J.L. Chestnut, Campaigning For Rights In Selma : NPR, Fresh Air, Oct. 3, 2008. After Howard Law School, Chestnut returned home to Selma, the only black lawyer in a town where blacks didn't even serve on juries and the white bar leaders passed a resolution telling the town's banks not to lend him money to open his practice.
The interview was recorded in 1990, but rebroadcast recently because Chestnut just died. Here's an obituary: Bruce Weber, J.L. Chestnut Jr., Early Leader in Civil Rights Movement, Is Dead at 77, N.Y. Times, Sept. 30, 2008.
Chestnut's memoir, Black in Selma: The Uncommon Life of J.L. Chestnut Jr., is available through Summit.
Yesterday I promised to highlight some documentaries in our collection. Today's is The Judge and the Fanatic: Koranic Duels Against Terror, BL65 .T47 J83 2007 at Classified Stacks.
The interpretation of Islamic texts [is] the focus of Yemeni Judge Hamoud al Hitar and his Religious Dialogue Committee, which seeks to rehabilitate the most hardened Islamic radicals through a close reading of the Qur'an and the sunna (traditions from the life and teaching of the Prophet Muhammad). Tom Meffert's richly insightful documentary explains how agents of terrorism have systematically sought to change the meaning of Islam to suit their own ends. Far from being a fiery text full of blood and revenge, many of the Qur'an's 124 verses advocate tolerance, peace and hospitality, and advise that non-Muslims should be treated with charity and respect. It is this that the judge tries to make clear to the disaffected young men of his country turning to extremism. Yemen's war of words with the dark heart of terrorism has enormous implications, not just for that country, but the larger world as well.-- description from Salt Spring Film Festival 2006
King County's Drug Diversion Court is featured in a New York Times story: Courts Give Addicts a Chance to Straighten Out - NYTimes.com, Oct. 14, 2008.
The program is at risk because of the county's dire budget situation.
County Executive Ron Sims office has budget information -- including links to news stories -- here.
Thanks: Alex Fleming Freeburg.
Suit against God thrown out over lack of address | Seattle Times Newspaper, Oct. 15, 2008.
"Given that this court finds that there can never be service effectuated on the named defendant this action will be dismissed with prejudice," Polk wrote.Thanks: Roxanne Eberle.
Chambers, who graduated from law school but never took the bar exam, thinks he's found a hole in the judge's ruling.
"The court itself acknowledges the existence of God," Chambers said Wednesday. "A consequence of that acknowledgment is a recognition of God's omniscience."
This week's Social Justice Tuesday speaker was Abby Ginzberg, a lawyer turned documentary filmmaker.
To follow up on the enthusiasm in the room, I'll feature some of films in our collection in the next several days. Today: Well-Founded Fear, a look at the system for granting asylum. KF4836 .W45 2000 at Classified Stacks.
At 3:30, there will be a showing of her film, Soul of Justice: Thelton Henderson's American Journey.
DNA exonerations led reporters from the Dallas Morning News to look into the use of eyewitness testimony in recent robbery trials. Eyewitness testimony still key to cases when there's no DNA | Dallas Morning News, Oct. 14, 2008.
See also: Wrongfully convicted cases cleared in Dallas County since 2001, Oct. 8, 2008.
This page has profiles of exonerees and links to other stories in the series.
Burien man who killed 3 for money sentenced to 97 years in prison, Seattle P-I, Oct. 10, 2008.
After a two-month trial, the jury began deliberations, but on the second day, one juror asked to be excused because she could no longer abide by the court's instructions. The judge excused her and appointed an alternate.
But the defense attorney, Pete Connick, asked for a new trial. When the judge questioned the first juror, she said that she had felt like a token -- she was the only black on the jury for the trial of a black defendant. The alternate who replaced her was also black.
Other jurors provided statements saying they witnessed no racist remarks or bias. In a written decision, the judge concluded that Brown's difficulties stemmed from a disagreement with the other 11 jurors over how to apply the law.The prosecutor was Senior Deputy Prosecuting Attorney Hugh Barber, who is also a UW Trial Ad instructor.
Vancouver, WA, settled a discrimination case brought by a police officer for $1.65 million. Responding to criticism of the city's handling of the case, the mayor is now asking the U.S. Attorney's office for the Western District of Washington to review it. Vancouver asks for federal probe of police officer's firing - Columbian.com, Oct. 11, 2008.
The mayor wrote to Assistant U.S. Attorney Kelly Harris, who is also a UW Trial Ad instructor.
Check out the profile of Julia Gold, the director of the University of Washington's Mediation Clinic: Jessica Chiu, U.W. Clinic Has Touch of Gold, Bar Bull., Oct. 2008.
King County is facing a huge budget shortfall. Why? "Bottom line: higher costs, flagging revenues." Q&A | Dissecting King County's general-fund shortfall, Seattle Times, Sept. 29, 2008. County shortfall to trigger up to 255 layoff notices, Oct. 13, 2008.
Sheriff Sue Rahr has said she will have to eliminate deputy positions, likely cutting back the Marine Patrol and investigations of narcotics, organized crime, cold cases, domestic violence and thefts and vandalism.Q&A supra.
Prosecutor Dan Satterberg has already reduced his staff and next Monday will begin filing many drug-possession cases and thefts or vandalism with losses below $5,000 as gross misdemeanors rather than felonies.
Their efforts are important not only because they help crime victims heal but because they play a key role in bringing sex offenders to justice.
Without public funding, said Mary Ellen Stone, executive director of the [Sexual Assault Resource Center], many victims of sex crimes are unable to stick with a case through trial. "Some people assume you just make a report. No. This turns your life upside down for a year and a half at least."
Senior Deputy Prosecuting Attorney Lisa Johnson, who heads the prosecutor's special-assault unit, said victim-advocate groups are "absolutely critical and vital" to successful convictions. "We couldn't do our cases without them."
Sheriff arrests parents in horrific child abuse case, Seattle P-I, Oct. 13, 2008. The facts as reported are very upsetting (a teenage girl starved and denied water over a period of years). Of interest for people thinking about trial work are the documents that the P-I has posted:
Washington Law Help now has an online "interview" to walk people through the process of filling out divorce forms. It only applies if the couple does not have minor children and if domestic violence is not an issue. It could be really helpful to someone overwhelmed by the standard forms.
Washington LawHelp
is a guide to free civil legal services for low-income persons and seniors in Washington. This site provides legal education materials and tools that give you basic information on a number of legal problems, and in some cases, detailed instructions and forms to help you represent yourself in court. You can also locate information on free legal aid programs in Washington, including basic eligibility and contact information.Most materials on the site were prepared by the Northwest Justice Project, but many are from other organizations, including Columbia Legal Services, the Northwest Women's Law Center, Washington Protection & Advocacy System, Child Advocacy Central, the ACLU of Washington, Washington Department of Social and Health Services, Northwest Immigrant Rights Project, Seattle Public Library, the Washington State Office of the Attorney General, the Tenants Union of Washington State, and more.
This guide is a free service which is made possible through a grant from the Legal Services Corporation. The web site template was created by Pro Bono Net and is maintained by staff at the Northwest Justice Project in Seattle.
The Northern Illinois Law Review recently (Summer 2008) had a symposium, The Modern American Jury:
On October 1, the State Supreme Court honored Judge James M. Phillips of Grays Harbor Superior Court, who is believed to be Washington's first Native American judge. He was on the bench from 1929 to 1950. Washington Courts press release, Sept. 23, 2008.
Anne Reed, the lawyer and jury consultant who writes the Deliberations blog, has some great ideas for improving your voir dire skills. CNN posted the completed juror questionnaires from O.J. Simpson's robbery trial, and Anne suggests that you can, first, use the questionnaires to think about drafting your own, since some of the questions are "particularly well designed to get direct information about jurors' specific experiences and conduct." Deliberations: Learning Voir Dire From The O.J. Trial, Oct. 8, 2008.
Second, for as good a voir dire training exercise as you're ever likely to find, print the twelve questionnaires out and practice with them, with a group if possible. What if these twelve people were the venire instead of the final group, and you had to pick a jury of six?
If you're like most lawyers, this project will be harder than you expected.
An artist named Notorious B.O.A.L.T. has rapped the Federal Rules of Civil Procedure:
I haven't listened to the whole thing. I'm told that it, like many raps, contains strong language and references that some people might find offensive. But it's art. About the Federal Rules of Civil Procedure. Wow.
Thanks: Pablo Sandoval.
Irate Judge Blasts Typos and Errors in Filing, Slashes Fees by $154K | ABA Journal - Law News Now, Oct. 8, 2008. Sloppy work has a cost!
For a similar example (from the same federal district court but a different judge), see this post. And for a a lot of examples (and tips on how to research them), see When Judges Scold Lawyers, 96 Law Libr. J. 557 (2004).
Thanks: Maureen Howard.
Interested in judges' lives and work? Here are some recent books (and one set of DVDs) for you:
G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges, KF8744 .W5 2007 at Classified Stacks.
Publisher's note:
... G. Edward White updates his series of portraits of the most famous appellate judges in American history from John Marshall to Oliver W. Holmes to Warren E. Burger, with a new chapter on the Rehnquist Court. White traces the development of the American judicial tradition through biographical sketches of the careers and contributions of these renowned judges. [H]e argues that the Rehnquist Court's approach to constitutional interpretation may have ushered in a new stage in the American judicial tradition.
Thurgood Marshall became a living icon of civil rights when he argued Brown v. Board of Education before the Supreme Court in 1954. ... When in 1960 Kenyan independence leaders asked him to help write their constitution, Marshall threw himself into their cause. ...
... Mary Dudziak recounts with poignancy and power the untold story of Marshall's journey to Africa. African Americans were enslaved when the U.S. constitution was written. ...
Tinsley E. Yarbrough, Harry A. Blackmun: The Outsider Justice, KF8745.B555 Y37 2008 at Classified Stacks. Publisher's description:Thoroughly researched, engagingly written, Harry A. Blackmun: The Outsider Justice offers an in-depth, revelatory portrait of one of the most intriguing jurists ever to sit on the Supreme Court. Relying on in-depth archival material, in addition to numerous interviews with Blackmun's former clerks, Yarbrough here presents the definitive biography of the great justice, ultimately providing an illuminating window into the inner-workings of the modern Supreme Court.
A distinguished and experienced appellate court judge, Richard A. Posner offers in this new book a unique and, to orthodox legal thinkers, a startling perspective on how judges and justices decide cases.
Clarence Thomas, My Grandfather's Son, KF8745.T48 A3 2007 at Classified Stacks. Publisher's description:Provocative, inspiring, and unflinchingly honest, My Grandfather's Son is the story of one of America's most remarkable and controversial leaders, Supreme Court justice Clarence Thomas, told in his own words.
...
Jeffrey Rosen, The Supreme Court: The Personalities and Rivalries That Defined America, KF8744 .R67 2007 at Good Reads, Classified Stacks. The publisher's description is here.
Matthew J. Streb, ed., Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections, KF8785.A7 R86 2007 at Classified Stacks. The publisher's description is here.
Federal Way police want stiffer penalties for fake-gun users | TheNewsTribune.com | Tacoma, WA, Sept. 15, 2008. "Federal Way Police Chief Brian J. Wilson wants the Legislature to change second-degree assault so it includes the use of Airsoft-type pistols." On the one hand, someone brandishing a toy gun or paintball gun that looks like a real gun can create a dangerous situation: the police are more likely to fire, endangering the gun holder and bystanders.
But on the other hand,
[A] local defense attorney, Brett Purtzer of Tacoma, said the proposed change in the law isn’t a good idea.I didn't find out how the city council voted.
“I think the statute is pretty clear it has to be a deadly weapon,” Purtzer said. “If you start adding things in there, where do you draw the line?”
Former state Supreme Court Justices Faith Ireland and Robert Utter are the plaintiffs in a lawsuit challenging campaign activities of the Building Industry Association of Washington. They allege that governor candidate Dino Rossi improperly participated in BIAW's actions. Ex-judges sue Rossi, builders, challenge fundraising | Seattle Times Newspaper, Oct. 7, 2008.
The Washington Outsiders blog reprints a press release from Ireland and Utter.
For more analysis of this case -- and cases brought by Attorney General Rob McKenna -- see David Brewster, The Screws of Buildergate Tighten on Dino Rossi, Crosscut, Oct. 6, 2008.
Olympia police made a video of people blocking streets to protest the use of the Port of Olympia to send vehicles and equipment to the Iraq war. Now they're prosecuting the protesters, but it turns out that their DVD is blank. Evidence tape is blank, so woman’s case tossed | TheNewsTribune.com | Tacoma, WA, Sept. 27, 2008:
Municipal Court Judge Scott Ahlf ruled Friday that her ability to defend herself at trial would have been “unfairly prejudiced” by the loss of a video recording of the Nov. 10 protests."The ruling may affect dozens of others being prosecuted. Two of the protesters are suing the city for civil rights violations -- the video might have been handy for them, too.
New in the Library: Convincing the Judge: Practical Advice for Litigators, KF380 .K84 2008 at Classified Stacks. This book is from the ABA's General Practice, Solo and Small Firm Division. Here's the ABA's blurb: "Learn what judges like and do not like and how to deal with the judge throughout the entire litigation process. This book distills the advice of judges to practitioners appearing in their courtrooms and provides practical advice on case management, all phases of trial, and appeals. It also explains the judicial role and suggests tips for dealing with a difficult judge. Each chapter includes valuable practice tips and specific examples for enhancing your litigation skills.
Among the topics covered include:
* Cooperation between judge and counsel
* Getting to know the judge
* What trial judges ultimately want
* Sure-fire ways to alienate the trial judge
* How attorneys can help judges manage cases
* Tips for oral argument
* Achieving success in a settlement conference
* Refreshing your knowledge of basic hearsay objections
* The relationship between judge and jury
* Relating to the jury
* Suggestions for effective voir dire
* How not to make an opening statement
* Helping jurors with important exhibits
* Preparing an effective closing argument
* The art of drafting good jury instructions"
New in the Library: The Litigation Manual: Jury Trials, KF8972 .L58 2008 at Classified Stacks.
According to the publisher (the ABA Section of Litigation), this book
includes the most useful articles from Litigation journal, taking you through the steps of a jury trial. For those who do not try any jury cases the information will be enlightening. In reading them you will better understand the processes by which cases are tried, decisions made and justice arrived at in American courts. For lawyers who try only a few cases, you will gain from the years of courtroom experience of others. And for courtroom veterans, old trial skills will be re-enforced, bad habits questioned and per force, new lessons learned. Topics include:
* Perspectives on the Future of Jury Trials
* Should You Have a Jury Trial?
* Understanding Today's Jurors
* Finding the Jurors You Want
* Instructing the Jury
* Winning Over the Jury
* Telling the Jury a Story
* Trying the Jury Case: Court Room Techniques
* Opening Statements
* Witnesses
* Complex Cases
* Closing Argument
* After the Jury Trial
The book provides concrete, time-proven techniques and innovative ideas from many of the country's preeminent trial lawyers and judges. And it contains some of the best legal writing available -- clear, informal and never dull. Read it and you will learn how to deal more effectively with the situations you face in preparing for and conducting a jury trial.
This year the legislature enacted a law making an exception to ER 404(b). Now it is easier to bring in evidence of past sexual offenses.
Last month the law was used for the first time in the prosecution of a 79-year-old man for allegedly molesting a 7-year-old girl during a family vacation. The jury was able to hear testimony from other relatives about his abuse of them in incidents spanning 40 years. Rape trial lets family share decades of pain, secrets | Seattle Times Newspaper, Aug. 19, 2008; Jury finds California man guilty of molesting young relative | Seattle Times Newspaper, Aug. 21, 2008. The second story says "Defense attorneys . . . expect the new law soon to face challenges in higher state courts."
Here's ER 404(b):
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.The new law is Laws of 2008, Chapter 90 (links to the bill reports are here), codified at RCW 10.58.090:
(1) In a criminal action in which the defendant is accused of a sex offense, evidence of the defendant's commission of another sex offense or sex offenses is admissible, notwithstanding Evidence Rule 404(b), if the evidence is not inadmissible pursuant to Evidence Rule 403.Thanks: Jill Mullins.
* * *
(5) For purposes of this section, uncharged conduct is included in the definition of "sex offense."
(6) When evaluating whether evidence of the defendant's commission of another sexual offense or offenses should be excluded pursuant to Evidence Rule 403, the trial judge shall consider the following factors:
(a) The similarity of the prior acts to the acts charged;
(b) The closeness in time of the prior acts to the acts charged;
(c) The frequency of the prior acts;
(d) The presence or lack of intervening circumstances;
(e) The necessity of the evidence beyond the testimonies already offered at trial;
(f) Whether the prior act was a criminal conviction;
(g) Whether the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence; and
(h) Other facts and circumstances.
The
Several reasons are suggested:
Supreme Court Poised to Enter Pre-Emption Debate - NYTimes.com, Sept. 18, 2008. The Court is reviewing a case from Vermont, in which a jury awarded damages against a drug company for failing to have a label warning against administering the drug through IV push. The company argues that the state law is pre-empted by a federal law requiring drug labels to be approved by the FDA.
The question on which the Supreme Court granted cert in Wyeth v. Levine, No. 06-1249 is:
Whether the prescription drug labeling judgments imposed on manufacturers by the Food and Drug Administration ("FDA") pursuant to FDA's comprehensive safety and efficacy authority under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., preempt state law product liability claims premised on the theory that different labeling judgments were necessary to make drugs reasonably safe for use.The briefs are available here.
