ABA Pres. Neukom at UW

ABA President Bill Neukom to Speak at Law School Monday, March 3, 4:00.

William H. Neukom, president of the American Bar Association, will speak at the UW law school at 4 p.m. on Monday, March 3 in Room 138 of William H. Gates Hall. Neukom will speak about his ABA presidential initiative, the World Justice Project.

The World Justice Project (WJP) is a multidisciplinary and multinational initiative to foster human well-being by advancing the rule of law. Through its multidisciplinary focus and analytical work, the WJP is filling the nexus between the rule of law and such important global goals as peace, reducing poverty and building economic prosperity, decreasing corruption, improving public health, and strengthening education systems.

Third BAR/BRI suit filed over prices

Third BAR/BRI suit filed over prices, Nat'l L.J. (web-only), Feb. 26, 2008:

Eliot Disner, the lawyer who objected to a $49 million class action settlement last year in an antitrust case he filed against the makers of the BAR/BRI bar review preparatory course, has filed a third suit to break up an alleged monopoly [Thomson West] and reimburse students for the inflated prices they paid.

Clinic for Pro Se Federal Litigants

The Federal Bar Association for the Western District of Washington sponsors a clinic to assist federal pro se litigants. The Federal Civil Rights Legal Clinic, started in March 2006, is affiliated with the King County Bar Association's Neighborhood Legal Clinics. Tracy M. Morris, Filling the Gap: How the Federal Civil Rights Legal Clinic is Making a Difference, Fed. B. Ass'n W.D. Wash. News, Fall 2007, at 5.

Judge Settle Profile

The Federal Bar Association (W.D. Wash.) has a Profile of Judge Benjamin H. Settle in its fall newsletter. Judge Settle took the bench -- Western District of Washington, in Tacoma -- July 2, 2007.

Write about Juries for Dwyer Prize

The Federal Bar Association of the Western District of Washington sponsors the William L. Dwyer Jury Project Award writing competition. Submissions are due April 4, 2008. UW law students, if you've got thoughts about the jury system, write them down -- you can even use a related paper you've already written -- and you might win $2,000.

Last year's winner was John Goldmark (class of '08) for A Better Cross-Section of the Community: Bolstering the Quality, Function, and Legitimacy of the Jury, Fed. B. Ass'n. W. Dist. Wash. News, Fall 2007, at 11.

Second place went to Arleta Young for “Public Perception of the Jury Trial: Cause and Effect.” And the committee gave honorable mention to Woo Koo (Chris) Choi (a visiting student from Korea) for “The Japanese Jury System.” (See newsletter article.)

Schierman Motions - Press Restrictions? Jail Duds?

Attorneys for Conner Schierman -- who is accused of killing four people and burning their house -- moved to have the case dismissed (because prosecutors hadn't provided discovery), to allow Mr. Schierman to way civilian clothes to pre-trial hearings, and to prohibit press photography in public courthouse spaces. Judge Gregory Canova denied the motions. Suspect in slayings of Kirkland family must wear jail uniform in court, Seattle P-I, Feb. 22, 2008; Judge won't restrict media in trial of man accused of killing Kirkland family, Seattle Times, Feb. 22, 2008.

The Seattle Times and several television stations opposed the motion to prohibit press photography. Under the Washington Courts' Bench Bar Press Statement of Principles

Law enforcement and court personnel should not prevent the photographing of defendants when they are in public places outside the courtroom. They should not encourage pictures or televising nor should they pose the defendant. The media should recognize that broadcasting, televising, recording and taking photographs in the courtroom is governed by GR 16. Artist's renditions sketched in the courtroom are not governed by GR 16 and should not be curtailed unless such actions unduly distract participants or impair the dignity of the proceedings.

King County Deputy Prosecutor Scott O'Toole is quoted in the Times article. He is also a UW Trial Ad instructor.

Photo of King County Courthouse from King County website.

O'Connor on Judicial Selection

This morning's Parade has an article by Justice Sandra Day O'Connor expressing concern about partisan pressures in states that elect judges. How to Save Our Courts, Parade, Feb. 24, 2008.

Justice O'Connor says that she is now involved with two projects:

• Sandra Day O'Connor Project on the State of the Judiciary At Georgetown Law. You can listen to recordings of symposia, e.g., The Debate Over Judicial Elections and State Court Judicial Selection, Oct. 17, 2007.
• Our Courts, a civics education project being developed by the Sandra Day O'Connor College of Law and the College of Teacher Education and Leadership at Arizona State University.

For state-by-state information about judicial selection, Parade links to the American Judicature Society.

Photo: Justice O'Connor, speaking at the FDR Library in a program on presidential and judicial powers last fall. Credit: National Archives.

Lawyer as Detective

The King County Bar Association has an interesting CLE coming up March 7: The Lawyer As Detective: Effective & Ethical Informal Discovery.

Law students, remember that KCBA offers a limited number of spots in its CLEs free to law students. So when you see a CLE you'd like to attend, contact KCBA's CLE Manager, Denise Medlock, DeniseM[at]kcba.org.

Smelter case a big mess in more ways than one

Smelter case a big mess in more ways than one, News Tribune (Tacoma), Feb. 22, 2008. An overview of the complex dispute involving the pollution of Washington's Lake Roosevelt (the lake behind Grand Coulee Dam) by a Canadian Smelter -- EPA (under two presidents), Washington State, the Colville tribe, ...

The article quotes Prof. Michael Robinson-Dorn, the director of the UW's Berman Environmental Law Clinic. For more (lots more!) about the case, see Michael J. Robinson-Dorn, The Trail Smelter: Is What's Past Prologue? EPA Blazes a New Trail for CERCLA, 14 N.Y.U. Envtl. L.J. 233 (2006) , available at SSRN and Prof. Robinson-Dorn's website providing copies of opinions, briefs, pleadings, and other material.

Photo of Lake Roosevelt from the Governor's Salmon Recovery Office. (Beautiful, isn't it? You can't tell how many heavy metals and other pollutants are in a lake just by looking at it.)

Shaming Laws Discussed on Weekday

KUOW's Weekday featured a discussion on Shame and the Law with Martha Nussbaum, Feb. 20, 2008:

A lawmaker in Washington State proposes fluorescent–yellow license plates as a punishment for drunk driving. A judge in Massachusetts forces a college kid to stand in front of a police station wearing a toga. Are these so–called 'shaming laws' making a comeback? What are the origins of these laws? Should an emotion like shaming play a major role in our legal system today? Do shaming laws work? We'll take up these question and more this hour with legal thinkers including Martha Nussbaum of the University of Chicago.

Guests:
Steve Calandrillo is Professor of Law at the University of Washington.
Dan Markel [more here] is assistant professor at Florida State University College of Law.
Martha Nussbaum is Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago. She's the author of articles and books including Hiding from Humanity: Disgust, Shame, and the Law [K346 .N87 2004 at Classified Stacks].

Service of Process in Domestic Violence Cases

Rebecca Griego was killed in her office at the UW by her ex-boyfriend, whom she had been trying unsuccessfully to serve with a protection order. Now her mother and sister are supporting a bill that would provide alternate means of service. Family of UW worker seeks new law, Seattle Times, Feb. 21, 2008.

The bill is ESB 6357. Its companion in the House is HB 2563.

State Court Could Apply Crawford Rule Retroactively

In 1996 Stephen Danforth was convicted of sexual conduct with a minor. His alleged victim, a six-year-old, did not testify, but the jury was shown a videotape interview with her. In 2004, the Supreme Court in Crawford v. Washington, 541 U.S. 36, Findlaw, ruled that testimonial statements -- even in recordings -- must be subject to cross-examination. So Danforth sought post-conviction relief in Minnesota.

The state court declined the relief because it did not think it had the option to extend the rule announced in Crawford retroactively. Today the Supreme Court held otherwise -- the state court isn't required to apply the rule retroactively, but it can do so. And so the case is reversed an remanded. Danforth v. Minnesota, No. 06-8273, Court website.

See Lyle Denniston, Analysis: ‘Creating’ or ‘declaring’ rights, SCOTUSblog, Feb. 20, 2008:

Perhaps it is not enough to gladden the hearts of true “originalists,” but a clear majority of the Supreme Court has newly acknowledged that, when it comes to constitutional rights, they always existed and did not just emerge out of modern judicial creativity. That concept, most closely identified with the jurisprudence of Justice Antonin Scalia, is a basic rationale behind Wednesday’s 7-2 decision in Danforth v. Minnesota (06-8273) . . .

Justices Make It Tougher to Sue Medical Device Makers - New York Times

Justices Make It Tougher to Sue Medical Device Makers, N.Y. Times, Feb. 20, 2008:

In a case with huge implications for the health care-technology industry, the Supreme Court ruled on Wednesday that the manufacturer of a federally approved medical device cannot be sued under state law if the device causes an injury.

The case is Riegel v. Medtronic, Inc., no. 06-179, Court website (Feb. 20, 2008).

Oregon inmate loses sex-change lawsuit

A transgendered prisoner, who is anatomically male but identifies as a woman, lost his suit seeking to have Oregon pay for sex-change surgery and transfer her to a women's prison. Oregon inmate loses sex-change lawsuit, Seattle Times, Feb. 19, 2008.

I found the following in a blog opposing mandatory minimum sentencing laws, Oregonians Against Measure 11:

A lawsuit by an Oregon inmate demanding a sex-change operation spotlights the increasing complexity and cost of providing health services to the state’s 13,500 prisoners.

Anny May Stevens, a Portland man serving an 18-year sentence for manslaughter, contends in court papers that prison officials denied him medical treatment for transsexualism.

“I didn’t ask to be born this way,” Stevens, 45, said in an interview from Snake River Correctional Institution in Ontario. “But I sure don’t want to die this way.”

Prison officials don’t dispute Stevens’ diagnosis, but they rejected his request, arguing in court papers that neither hormone treatment nor surgery is medically necessary.

Though transsexual inmates are rare, prison officials report a surging demand from inmates for a wide array of conditions, diseases and mental illnesses.

Care needs of prisoners put Oregon in a bind, Oregonians Against Measure 11, Nov. 12, 2007.

Global Justice at SU

The Center for the Study of Justice in Society at Seattle University and the Center for Global Justice at Seattle University School of Law present Globalization & Justice: Interdisciplinary Dialogues, Feb. 21-22, 2008. The program is open to the public and it's free.

Food Safety CLE

Bill Marler sent me a link about a CLE Seattle University is presenting April 11-12,Who's Minding the Store? The Current State of Food Safety and How It Can Be Improved. Looks interesting!

Want to Write about Changes Affecting Judges?

Do you want to write an article about changes that have affected judges in the last fifty years -- or that are on the horizon? Consider responding to this call for papers:

The Widener Law Journal is commemorating the fiftieth anniversary of the founding of the National Conference of State Trial Judges by publishing essays and articles discussing the changes that have affected trial judges over the last fifty years. Pieces will be published in the Spring 2009 issue of the Journal, in time for the August 2009 (July 30 - Aug. 4) American Bar Association meeting in Chicago, where the Conference and its members will be honored and the Journal’s work would be recognized.

Writings may discuss any aspect of the evolution of the trial judge, including, but not limited to, the following:

• the impact of changes in evidence relating to technological advancement;
• the increasing popularity of specialized courts such as drug and business courts;
• the role of the judiciary in formulating public policy;
• the erosion or importance of judicial independence at the trial level;
• the perennial conflict over methods of judicial selection; and
• the potential evolution of the trial courts over the next several decades

Accordingly, the Widener Law Journal welcomes pieces from all disciplines including, but not limited to, political science, history, and traditional legal analyses. Interested scholars, judges, and members of the practicing bar are asked to submit proposals to the Law Journal by September 1, 2008, and to submit completed works by December 1, 2008. Questions may be directed to Michael Dimino, faculty advisor to the Journal, at 717-541-3941 or mrdimino[at]mail.widener.edu.

Ninth Cir. Senior Judge Joseph T. Sneed Dies

Court of Appeals Mourns Loss of Senior Circuit Judge Joseph T. Sneed, Feb. 13, 2008.

Stay Denied in Pharmacy Plan B Case

Druggists can deny Plan B, judge rules:

Pharmacies and pharmacists with religious or moral objections to 'Plan B' emergency contraception may continue to refuse to dispense it until a lawsuit is settled, a federal judge ruled Friday.

The state had asked Judge Ronald Leighton of the U.S. District Court to reinstate rules requiring pharmacists and pharmacies to dispense all legal medications, pending outcome of an appeal. Last year, Leighton suspended the rules as they pertain to Plan B, the so-called 'morning-after pill,' by granting an injunction.

See also Judge again rules druggists can deny morning-after pill, Seattle P-I, Feb. 15, 2008.

A little chronology:

• June 2006. The state Board of Pharmacy announced it would issue a rule allowing pharmacists to refuse to dispense Plan B, an emergency contraceptive, when it was prescribed. Northwest Women's Law Center press release (links to proposed rules). Many people opposed the draft rules, including the governor. See Statement from Governor Gregoire on Pharmacy Board Rules, June 1, 2006, and Governor Gregoire Proposes New Rule to Washington Pharmacy Board, Aug. 29, 2006. and the Board adopted new draft rules Aug. 31.

• July 2007. The state Board of Pharmacy issues rules saying that pharmacists have to fill all lawfully prescribed drugs and devices. See WAC 246-869-010, Pharmacies' Responsibilites, and WAC 246-863-095, Pharmacist's professional responsibilities. A letter sent from the Board of Pharmacy is here.


• Nov. 2007. Judge Ronald B. Leighton grants an injunction to pharmacists who challenged the rule. The pharmacists said it forced them to violate their religious principles. Judge: Druggists may withhold "morning-after" pill, Seattle Times, Nov. 9, 2007. The opinion, Stormans Inc. v. Selecky, No. C07-5374RBL (W.D. Wash. Nov. 8, 2007), is here. ACLU release, Nov. 8.


• Dec. 2007. Intervenors -- 7 citizens represented by the Northwest Women's Law Center, the ACLU of Washington, and Planned Parenthood of Western Washington -- announced they were appealing the injunction. Press release, Dec. 10, 2007.


• Feb. 2008. Judge Leighton denies the request by the State Board of Health and the Board of Pharmacy to stay the injunction -- that is, let the regulation stand -- while the appeal to the Ninth Circuit is pending.


• Feb. 29 is deadline for filing the appeal.


• Oct. 2008 is when trial is scheduled.

Photo: Dr. R.V. Toker prepares prescription in U.S. Coal and Coke Co. clinic, Gary Mines, McDowell County, WV, 08/16/1946. National Archives, ARC Identifier: 540833.

Crime Lab Chief Resigns

State crime-lab chief to resign, Seattle Times, Feb. 15, 2008:

[Barry Logan,] The embattled director of the State Patrol crime labs has resigned, accepting responsibility for allegations of sloppy work and fraud that jeopardized more than 100 DUI breath-test results in the past year.

Guardianship: AARP/ABA Report; Washington Office

When people cannot handle their own affairs, courts often appoint guardians -- but not all guardians are competent, careful, diligent, and honorable. A report from AARP and the ABA looks at successful practices by courts.

Despite a dramatic strengthening of statutory standards in recent years, judicial monitoring practices vary substantially by jurisdiction. This AARP Public Policy Institute (PPI) Research Report by Naomi Karp (PPI) and Erica Wood (American Bar Association Commission on Law and Aging) describes methods for helping courts protect some of our society's most vulnerable people. Through site visits to exemplary courts, the authors have identified promising approaches that can be replicated by courts around the country.

Press release, Dec. 2007.

The report is Guarding the Guardians: Promising Practices for Court Monitoring
Research Report, by Naomi Karp, J.D., AARP Public Policy Institute, and Erica F. Wood, American Bar Association, December 2007.

See this post (Dec. 6, 2006) about the Seattle Times's investigation of guardianship practices in this state.

Last year the legislature passed SSB 5320, 2007 Laws of Washington chapter 364, "Creating an office of public guardianship within the administrative office of the courts."

Washington's Office of Public Guardianship is just getting rolling.

The initial implementation of public guardianship services shall be on a pilot basis in a minimum of two geographical areas that include one urban area and one rural area. The Office of Public Guardianship plans to release a Request for Proposal (RFP) January 2008. The pilot programs will be selected from submitted proposals which satisfy the RFP critieria.

The RFP is here, with an addendum here. Proposals were due Feb. 8.

Special License Plates for DUI Offenders?

SSB 6402 would require people convicted of DUIs to have a special flourescent yellow license plate on their cars for the year after they regain their driving privileges (after a suspension, say). Search Bill proposes "scarlet letter" for DUIs: bright-yellow license plates, Seattle Times, Feb. 12, 2008.

Supporters say that the special plate will help law enforcement keep an eye on these drivers in case they reoffend and will help the rest of us watch out for them on the road (again, in case they reoffend). They also say that shaming will be a deterrent to driving drunk in the first place. Asked why the spouse of an offender should be shamed when sharing the car, they reply that that will also be a deterrent: a driver wouldn't want to expose his or her family to that.

I just don't see it as a deterrent. People who have had too much to drink are not great analysts in the first place. But it's ridiculous to imagine that they'll think: "If I drive and I'm busted and I'm convicted then in a year or two my wife might be ashamed to drive our family car, so I'll call a cab." If the risks of being ticketed or getting in an accident -- totalling their cars and injuring themselves and others -- aren't enough of a deterrent, this future shaming won't be either.

Worse, the shaming could have the opposite of its intended effect. Psychological studies have found that shame actually makes people MORE likely to reoffend. Shame as a feeling overwhelms people with a sense that they are bad -- not that they did a bad thing that they can avoid in the future, but that they are bad. And that leads to more offending, not less. See my earlier post on the work of June Price Tangney and her colleagues.

Suit to Make IRS Release Records

IRS Flouts Court Orders, TRAC press release, Feb. 11, 2008:

The Internal Revenue Service is flouting three court orders requiring it to regularly provide a nationally-recognized researcher with the statistical data she needs for her studies, according to a court action brought today by the researcher.

The new motion was filed by Susan B. Long, a professor at Syracuse University's Martin J. Whitman School of Management. For more than 30 years Long has used the IRS's own statistical data to examine how this powerful agency has been enforcing the nation's tax laws.

In the February 11 filing Long requests that Judge Marsha Pechman of the U.S. District Court for the Western District of Washington enforce two of her own court orders against the agency, issued in 2006, as well as the court's 1976 consent agreement on the same issue.

Prof. Long is co-director of the Transactional Records Access Clearinghouse. She is represented by Scott Nelson (Public Citizen Litigation Group) and Eric M. Stahl (Davis Wright Tremaine). A copy of the 25-page motion is here and the 102-page supporting declaration is here.

Three firms indicted in pet-food recall case

Three firms indicted in pet-food recall case - USATODAY.com:

Two Chinese companies and a U.S. importer were indicted by a federal grand jury Wednesday for allegedly supplying contaminated ingredients that led to the USA's biggest pet-food recall and the deaths of many pets last year.

The firms were charged with 26 counts of introducing adulterated and misbranded food into the USA.

USA Today has posted copies of the indictments (from W.D. Mo.).

The article quotes Prof. Dongsheng Zang, saying that the indictments have no impact on the Chinese companies since there is no treaty giving a federal court jurisdiction over them. There might be a remedy under contract law.

When Do You Have to "Intend" to Harass?

The Washington Supreme Court reversed a conviction for telephone harassment yesterday because the jury instructions did not make it clear that the defendant must have intended to harass at the time she initiated the call. State v. Lilyblad, No.9114-7, courts website (Wash. S. Ct. Feb. 7, 2008) (Owens, J.). (If you just skim the opinion, the case name might confuse you. The Court uses the defendant's preferred surname of Paris.)

Divisions I and II of the Court of Appeals had split on interpretation of RCW 9.61.230, Telephone harassment:

(1) Every person who, with intent to harass, intimidate, torment or embarrass any other person, shall make a telephone call to such other person:
* * *
(c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household;

is guilty of a gross misdemeanor * * *.

Now, if you (1) intend to harass X, (2) call X, (3) threaten X -- in that order -- it's clear the statute applies. But what if you (1) intend to call your son (who lives with X), (2) chat with your son, (3) talk to X once she picks up the phone, and THEN (4) form the intent to threaten X and say you'll F-ing kill her?

The unanimous court now says that you have to have the intent before you call.

In this case, the defendant (Paris/Lilyblad) may be retried. There are many factual disputes and she "concedes that the State presented sufficient evidence to support a finding that she formed the intent to harass at the initiation of the telephone call."
On retrial, the jury might believe that evidence or it might believe her denial that she made any threat at all.

Photo from the American Experience.

Hit woman sentenced to 20 years in prison

Hit woman sentenced to 20 years in prison, Seattle Times, Feb. 8, 2008:

A former-prostitute-turned-hitwoman was sentenced this morning to 20 years in prison nearly three decades after she told a prosecutor that she shot and killed a South Seattle auto mechanic because she heard his death was worth $10,000.

A large part of the story has to do with the flow of information -- should the prosecutor the hitwoman went to seeking immunity have told others about her statements? When?

Abuse defendant kills self as Clark County jury deliberates

Abuse defendant kills self as Clark County jury deliberates, Seattle Times, Feb. 8, 2008. The defendant, who was accused of sexually abusing a family member, took an overdose of pills at home yesterday morning. Before the court learned of his death, the Judge John F. Nichols had declared a mistrial because the jury reported it was unable to reach a verdict.

Jur-E Bulletin

Jur-E Bulletin is a weekly email "newsletter published by the Center for Jury Studies and the National Center for State Courts' Knowledge and Information Services Division and Jury Community of Practice. It contains information on the weekly happenings in the jury world, including media coverage, prominent court decisions, and important developments on all things jury."

The articles are very short -- usually just a quick summary with a link. For example, this week's issue includes:

• A summary of an article reviewing studies try to evaluate the quality of jury verdicts by comparing them with judges' verdicts. It links to Brian H. Bornstein, Judges v. Juries, Court Review, Summer 2006, at 56. (This is newer than the date might suggest: it's the latest issue of the magazine; our library received our copy Feb. 1, 2008.)
• A news item from yesterday about a mistrial in Spokane, with a link to the Spokesman Review. Because of "a clerical error" a jury was given a criminal defendant's record of 20 prior convictions. New trial ordered after jury sees suspect's rap sheet, Spokesman Review, Feb. 7, 2008. The Spokesman Review has posted the courtroom minutes from the trial as well as Judge
  Greg Sypolt's order for a new trial.
• An item about the trial in Georgia of the man who escaped from a courthouse where he was being tried for rape, shooting a judge, a court reporter, and a sheriff's deputy. Jeffrey Toobin had an article about it in the New Yorker (Death In Georgia: The high price of trying to save an infamous killer’s life, Feb. 4, 2008). And now the judge has recused himself because of "unguarded comments" he made to Toobin.
• An item about a public defender in Kentucky who was punched by his client during a pretrial hearing.
• A new flyer from a trial court in Virginia: Overcoming the Stress of Jury Duty.

How can you get this neat little newsletter? Just go here and type in your information.

Trial Tips from Elliott Wilcox

Wouldn't it be great to get short, understandable, practical tips about trial practice sent to your email? Try out Elliott Wilcox's free Trial Tips Newsletter.

In the latest issue, he reflects on that standby question of direct examination, "What happened next."

Without guidance, your witness may be thinking, “What happened next? Well, the earth spun on its axis and rotated around the sun; my heartbeat sped up; I took a breath; a white car passed by me in the left lane; a man wearing a red jacket stepped off the sidewalk; I turned to the southeast; the traffic light turned from green to yellow; two men walked out of the grocery store; a lady ten feet to my left ducked down and screamed; I unholstered my concealed firearm; my partner opened the trunk of the patrol car... A lot of things happened 'next.' Which one did you want me to talk about? Oh, the shots that were fired? Yeah, I heard that too.”

“What happened next?” is simply too broad a question. It allows for a whole world of possible responses. If you want to help your witness tell his story more effectihttp://www.blogger.com/img/gl.link.gifvely, give him some idea of what he's supposed to say by focusing his attention toward a narrower range of responses. Instead of asking, “What happened next,” ask something like this:

• “Where did you drive to next?”
• “Who did you speak to after that?”
• “What was the next test you performed on the substance?”
• “How does the man in the white jacket react?”
• “Let's focus your attention on the operating nurse. What does she do next?”

I also like Elliott's regular "Quotations for Lawyers." This week's:

In theory there is no difference between theory and practice.
In practice, there is.
– YOGI BERRA

Elliott has some many tips bubbling out he doesn't limit himself to the newsletter. Also check out his Winning Trial Advocacy Techniques blog. What the heck, take a look all around his website. It's good!

Racial remarks prompt new trial - Spokane

Racial remarks prompt new trial, Spokesman Review, Jan. 26, 2008:

A Spokane County Superior Court judge has ordered a new trial in a medical malpractice case where a Spokane attorney of Japanese descent was repeatedly referred to as 'Mr. Kamikaze' and other racially charged names during jury deliberations.

Judge Robert D. Austin said he was surprised when he received attorney Mark D. Kamitomo's motion for a new trial in mid-December, based in part on the racial comments.

"We'd hoped we'd moved beyond this, and we apparently have not. It's upsetting," a visibly emotional Austin said during a court hearing Friday.

One juror said that the verdict against the Japanese American attorney's client being read on Pearl Harbor Day was "almost appropriate."

Mark Kamitomo's father was interned in a Canadian internment camp during World War II.

The Spokesman Review has posted the defense memorandum in opposition to a new trial and the plaintiff's reply memo (including two affidavits from jurors).


Thanks: Skylee Robinson.

Photo of Mark Kamitom from Northwest Asian Weekly.

E. Coli Lawyer Is Busier Than Ever

Seattle attorney Bill Marler represented one of the children poisoned by e. coli in a Jack in the Box meal by in 1993 and since then has made a specialty of food safety litigation. E. Coli Lawyer Is Busier Than Ever, Associated Press, Feb. 4, 2008.

"Bill was certainly at the right place at the right time entering the field of food safety litigation," says Caroline Smith DeWaal, who is in charge of food safety at the nonprofit Center for Science in the Public Interest in Washington. "I see him in kind of a private attorney general role."

In a better, safer world, he wouldn't bring so many suits (or at least not in this area):

Marler continually implores the food industry to "put me out of business" by adopting more stringent safety procedures. He sent the lettuce industry a letter in 2006 in which he called on growers to stop using irrigation water contaminated with cattle and human feces, to wash fruits and vegetables more thoroughly, and to provide field hands with bathrooms.

"These steps will help make our food supply safer and will enable us to keep our most vulnerable citizens — kids and seniors — out of harm's way," he wrote. "And, with a little luck, it will force one damn trial lawyer to find another line of work."

To keep up with Bill and food safety law, see Marlerblog.

Photo from USDA Food Safety Inspection Service.

Turow on Capital Punishment

A couple of years ago I picked up Ultimate Punishment by Scott Turow (available in the library: KF9227.C2 T87 2003 at Good Reads). This slender book -- subtitled "a lawyer's reflections on dealing with the death penalty" -- relates Turow's experience handling a couple of death penalty appeals pro bono and serving on the Illinois commission that looked at the death penalty. He said he began as a "death penalty agnostic" -- not opposed, not for -- and ended up so concerned that the report he participated in led to Gov. Ryan's decision to declare a moratorium on the punishment.

This is a thoughtful discussion of the issues. And you already know that Turow can write in a way that keeps you reading!

Death penalty decision in Carnation slayings delayed to May

Death penalty decision in Carnation slayings delayed to MaySeattle P-I, Feb. 2, 2008.

Attorneys for Joseph McEnroe and Michele Anderson, both 29, said they hope for still more time to learn more about the suspects and offer information aimed at persuading Prosecutor Dan Satterberg that death sentences are not deserved.

Anderson's attorney, Kevin Dolan, said he needed to explore her mental health issues and other aspects of her life. While saying little about her specific case, he said that in potential death-penalty cases, sometimes "you have a monstrous act, but not a monster."

The law behind the timing question is RCW 10.95.040, which requires the prosecutor to file notice of seeking the death penalty within 30 days of arraignment.

Sometimes I find it interesting to skim the comments people post using the P-I's "Soundoff" feature. For this article, many people believe that the defendants are guilty and are monsters who deserve to be executed. (The first comment begins "Hang them high!" The range of opinion expressed includes: * there should be no capital punishment; * there should be capital punishment but our leaders don't have the political will to carry out an execution; * child killers are abhorred by other prisoners so someone might "'help' the state along." One person points out:

If you law and order types, salivating at the chance to kill these two in an effort to satisfy your bloodlust for revenge, actually understood our criminal justice system, you'd want the prosecutor to take as long as it takes to exhaust all possible options, to examine every possible aspect to this case, and to compile every possible bit of data so that the convictions - if we get that far - stick and are not overthrown on a technicality by a higher court.

If you want convictions, and you want the ultimate penalty, you had better be patient for the system to work.

Cinerama's peeping Tom won't serve time

Cinerama's peeping Tom won't serve time, Seattle P-I, Feb. 1, 2008. Pursuant to a plea agreement, the 21-year-old defendant will do 30 days of community service, undergo sexual deviancy screening, and be monitored by a probation officer for a year. The most significant penalty is being required to register as a sex offender for the next ten years.

"This was a very dumb mistake," [Philip Michael] Thomas told Judge Chris Washington. "I'm deeply sorry for what I did."

But Washington pointed out before sentencing Thomas that setting up a video camera on several occasions wasn't a momentary lapse of judgment.

"It's a bit more than just dumb," he said. "You're going to have explaining to do, probably for the rest of your life."

King County Prosecutor Targets Capitol Hill Hate Crimes

In response to violence against gay men, lesbians, and transgendered people on Capitol Hill, King County Prosecutor Dan Satterberg has released a poster to increase public awareness and promote personal safety, encouraging people to avoid confronting an offender and to call 911 instead. Press release, Jan. 31, 2008; Posters Warn of Hate Crimes, Seattle P-I, Feb. 2, 2008, Hate Crimes Alert Campaign, KPLU (audio), Feb. 1, 2008.

Remembering a Local Lawyer

This obituary paints a warm portrait of a lawyer from an earlier generation: In life and law, deceased lawyer Bill Williams showed faith in people, Seattle Times, Jan. 31, 2008. This UW grad set up practice in Kenmore in 1955.

Those of you who came to this area within the last 20 years might think of Kenmore as just "more of the same" in the suburb of Shoreline-Lake Forest Park-Mountlake Terrace-Bothell. In 1955, I imagine it looked a lot different!