Comparative Perspectives on Prosecution

Hey, the whole world doesn't handle prosecutions the same way the United States does!

So the first program of the afternoon in The Prosecutorial Ethic: A Tribute to King County Prosecutor Norm Maleng is "Comparative Perspectives on Prosecution."

• Maureen Howard, introducing the panel, talked about some of the aspects of other countries' systems she's learned by teaching in trial advocacy programs in Ireland (last year) and Hong Kong (last week).
• Judge Jack F. Nevin (Tacoma District Court) spoke of the different situations in areas he has observed -- Kosovo, Sierra Leone, Iraq. (As a Brigadier General in the U.S. Army Reserve, he is Chief Judge of the U.S. Army Court of Criminal Appeals.)
• Molly Townes O'Brien, an American teaching in an Australian law school, contrasted the Australian system with ours, particularly in the area of plea bargaining. (They call it "charge bargaining" -- after all, you're bargaining about different charges and the only possible plea is "guilty.")
• Judge Ann Claire Williams (7th Cir.) discussed work she has done training attorneys and judges in Ghana, Liberia, and Kenya.
  

Who is the Client of an Elected Prosecutor?

Who is the client of an elected prosecutor? An agency the prosecutor is advising, the elected mayor or executive, the elected council, an individual administrator, the public interest? To whom does the attorney-client privilege belong? What happens if an agency and an official have conflicting interests? These issues were tackled by the last panel of The Prosecutorial Ethic: A Tribute to King County Prosecutor Norm Maleng. Speakers are:

• Hugh D. Spitzer (affiliate professor at the UW and partner at Foster Pepper) (moderator)
• Wayne C. Witkowski, Deputy, Legal Counsel Division, Office of the Attorney General for the District of Columbia
• Thomas A. Carr, Seattle City Attorney (by the way, Seattle is the only city in the state with an elected city attorney).
• Janice E. Ellis, Snohomish County Prosecuting Attorney

One remark: "People should be able to ask their lawyers stupid questions -- even councilmembers."

Defense Perspectives on the Prosecutorial Ethic

The final morning session at The Prosecutorial Ethic: A Tribute to King County Prosecutor Norm Maleng was "Defense Perspectives on the Prosecutorial Ethic," with:

• Jacqueline McMurtrie (moderator)
• Daniel S. Medwed, professor at Univ. of Utah
• Ellen Yaroshefsky, professor at Cardozo Law School
• and Daniel T. Satterberg, King County Prosecuting Attorney

Much of the discussion was about post-conviction claims of innocence. (Professors Yaroshevsky, Medwed, and McMurtrie are all connected with innocence projects.)

The ABA has new language in rule 3.8 of the Model Rules of Professional Conduct:

(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:

(1) promptly disclose that evidence to an appropriate court or authority, and

(2) if the conviction was obtained in the prosecutor’s jurisdiction,

(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and

(ii) undertake further investigation, or make reasonablehttp://www.blogger.com/img/gl.link.gif efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

Yaroshevsky was involved in the drafting of the rule. Satterberg reports that the has proposed some alternative language.

Medwed and Yaroshevsky both talked about prosecutor's offices setting up units to investigate post-conviction claims of innocence. Minneapolis, San Diego, Dallas, and some other cities have such units. Some focus on DNA evidence. Dallas's unit covers any claims. Yaroshevsky used the term "conviction integrity units."

Satterberg began his remarks with this: “I’m Dan Satterberg and I deserve your close scrutiny.” He continued by saying that it's not because he's shifty and up to no good, but simply because he's the prosecutor. Prosecutors have unreviewable power in three areas: the decision to charge, the decision not to charge, and the decision to resolve a case short of trial. If prosecutors overcharge -- make charges they can't prove -- then the jury is a check. But otherwise, there aren't checks in these areas of discretion -- other than prosecutors' accountability to the people.

The panelists discussed different techniques to prevent wrongful convictions, notably working on the problems of mistaken eyewitness identification. Yaroshevsky recommended the list of reforms at InnocenceProject.org.

By the way, Yaroshevsky also had a plea for sensitivity in terminology. Too often people refer to any problem in prosecution that lead to wrongful conviction as "prosecutorial misconduct." But that's not fair to prosecutors: many problems aren't "misconduct," so she'd like to see more use of the term "prosecutorial error," which packs less of a bite.

High Profile Prosecutions: Special Issues Created by Heavy Media Coverage

"High-Profile Prosecutions: Special Issues Created by Heavy Media Coverage" at today's conference is a panel by

• Hon. William L. Downing (King County Superior Court) (moderator)
• Patrick J. Fitzgerald (U.S. Atty, N.D. Ill., E. Div., Chicago)
• Anne M. Bremner, Stafford Frey Cooper
• John McKay, Seattle U.

RPC 3.6 (Trial Publicity) applies to all attorneys. RPC 3.8 (Special Duties of Prosecutor) limits what prosecutors can say:

(f) except for statements that are necessary to inform the public of the
nature and extent of the prosecutor?s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

Again and again, the panel -- particularly Mr. Fitzgerald -- hit the theme that the system is not set up for the convenience or vanity of prosecutors. Sometimes the press will say bad things about you and how you're handling a case and your job is to take it.

Another theme was the duty to inform the public. One striking example Fitgerald gave wasn't about particularly high-profile trials at all. In Chicago there are about 80,000 gang members and 13,000 police officers. So deterrence is very important. When convicted gang members are paroled, the U.S. attorney's office meets with them to say: we know who you are and if we catch you carrying a firearm we will prosecute you (and make a federal case of it). And then it's important for the office to publicize every such prosecution.

Judge Downing commented that when he speaks at law schools (UW and SU), he observes that law students quickly pick up the ethical obligation to represent one's client zealously, but it's harder to get the concurrent obligations to the court and the public.

Prof. McKay said that it's not that hard to teach the rules -- but the Rules of Professional Conduct are just the beginning. Telling people you aren't supposed to steal from clients sets the bar pretty low. It's important to talk about the tough issues that lawyers face in practice -- giving lots of real examples. And lawyers should talk to students about mistakes they've made, to talk about "times when we went down a path that was scary."

Maintaining an Ethical Culture

First up on the agenda for The Prosecutorial Ethic (after welcoming remarks from Maureen Howard and John McKay) was:

Patrick J. Fitzgerald, U.S. Attorney, U.S. Attorney's Office, N.D. Ill., E. Div., Chicago, Maintaining an Ethical Culture in a Prosecutor's Office.

A few notes:

Fitzgerald talked about office culture. Just as some sports teams have a reputation for playing rough and bending the rules and some corporations encourage an atmosphere where cheating is OK, so do some prosecutor's offices.

Ethics is not just about being smart or knowing the rules. (Of course, training does have some role and you want people to be aware of the rules.) In hiring, don't look at only academic credentials and skills -- think about the quality of the applicant's character or soul. Does the applicant have a sense of who he or she is?

Think of an attorney alone in the office on a Saturday afternoon before a Monday trial. If the attorney comes across something that could help the defense and should be shared under Brady, you want that person to turn it over, not to think about how inconvenient it would be or how hard it is to get along with the defense attorney or how to talk him- or herself into thinking it's not Brady evidence.

What do you do when someone says that there's been a problem in your office? On the one hand, when a staff person has done nothing wrong, he or she deserves to be backed to the full. But if there is a problem and you have reason not to trust someone, you must take action. The credibility of the whole office suffers if there's someone who can't be trusted.

When a staffer comes to you to report a problem, make sure that your reaction is that this is something you can deal with. Don't have a fit and panic about what it will do to the case -- this tells the employee you don't want to hear about problems. What's at stake is not just the individual case, but the office's integrity, and you want an atmosphere where people know that inconvenient issues that arise will be addressed, not skirted.

Fitzgerald told a story about a case where several people had confessed to a murder they'd had nothing to do with -- one was convinced that it was going to be pinned on him, so he "cooperated" and named his buddies. Then one of the buddies confessed to get a lighter sentence. And so on. Be sure to question people in an antiseptic manner. Don't walk into a room and say: "We know this is what happened, isn't that so?" Prosecutors should get information from witnesses, not give it.

Fitzgerald says investigations are supposed to be confidential. Prosecutors have no business leaking to the press. Everyone in the office reads the paper and will recognize when a leak has come from the office -- and that contributes to an atmosphere where that is seen as OK.

Never say anything to a witness you aren't willing to see on the front page of The New York Times. And -- as he was told when he was in the New York office -- never do anything you aren't willing to explain to a Second Circuit judge.

The Prosecutorial Ethic: A Tribute to King County Prosecutor Norm Maleng

The Prosecutorial Ethic: A Tribute to King County Prosecutor Norm Maleng is about to begin. The main room is filling up, and there are two rooms set aside for overflow video. A TVW crew is here with its videocams.

Here's a snapshot (taken with my laptop's little Photo Booth application). If you look carefully, you can see Michele Storms -- one of the planners for the conference -- waving to you from the middle of the screen.



The planning committee for this exciting event was:
Hon. Robert S. Lasnik
Hon. William L. Downing
Prof. Maureen A. Howard
Dean Lisa Kelly
Prof. Jacqueline McMurtrie
Affiliate Prof. Hugh D. Spitzer
Michele Storms
Prof. David Boerner (SU)
Prof. John McKay (SU)
Stowell Holcomb (UW 2L)
Will Nicholson (UW law student)

The Plea Bargaining Process

The plea bargaining process is done away from the public eye. Some empirical studies have been done, but most of them are a couple of decades old. Dierdre M. Bowen (Seattle University School of Law) spent several months in 2000 observing and interviewing prosecutors and defense attorneys as they worked out (or didn't work out) pleas. The group she studied? The cases that went through the Early Plea Unit of the King County Prosecutor's Office. (I don't know whether the structures have changed since 2000.)

Prof. Bowen has posted on SSRN an article that will be in Justice Journal next year: Calling Your Bluff: How Prosecutors and Defense Attorneys Adapt Plea Bargaining Strategies to Increased Formalization, available at SSRN: http://ssrn.com/abstract=1128409 (posted May 5, 2008). She reports her observations, compares the system with some published recommendations for plea bargaining, and concludes with recommendations of her own. Here's the abstract:

This ethnographic work examines the inner workings of a highly formalized plea bargaining unit in a large urban prosecutor's office from the lawyers' point of view. Observations of forty two plea negotiations between prosecutors and defense attorneys along with both formal and informal interviews reveal how the legal actors adapt to institutional rules in the pursuit of the both efficiency and justice. In the face of ever increasing prosecutorial power, defense attorneys find ways to equalize the balance when cases don't fit the 'normal crimes' model. Examination of negotiating strategy and discourse give further insight into whether prosecutors and defense attorneys behave differently under highly rationalized systems of plea-bargaining compared with traditional models previously studied.

Haq jury out

The jury is deliberating in the case of Naveed Haq, accused of the shootings at the Jewish Federation offices last summer. Natalie Singer summarizes the closing arguments:
King County jury to begin deliberating case of Naveed Haq, Seattle Times, May 23, 2008.
(The jurors got Memorial Day weekend off: Jury heads home in case of Seattle Jewish center shooting, AP (seattlpi.com), May 23, 2008.)

Lawyers Open Their File Cabinets for a Web Resource - New York Times

Lawyers Open Their File Cabinets for a Web Resource - New York Times, April 27, 2008:

JDSupra.com, a new site, is stocking a free, virtual law library by persuading lawyers to do something highly unusual: to post examples of their legal work online for use by one and all, no strings attached. Many of the documents are articles and newsletters that can be understood by ordinary mortals who want more background on a legal issue, or who would like to find lawyers with expertise in a particular area.

The site is free, but you have to register to view documents.

The top contributor is the Electronic Freedom Foundation, with over 700 documents: pleadings, memoranda, motions, and appellate briefs. The next highest contributor is Morrison Foerster, a large San Francisco law firm. Seattle firm Lane Powell is one of the top 10 contributors. The top 10 contributors also include a couple of solo practitioners, including Aviva Cuyler, who founded the site. That's one thing that's interesting about the site -- a nonprofit, a huge law firm, and a solo practitioner all can have the same exposure.

I played around with searches and found a wide variety of documents and topics -- a newsletter article about collaborative divorce, a PowerPoint presentation about wikis in law firms, briefs in the Supreme Court case Quanta v. LG, some model forms. But it's clear that the collection of documents is still being developed. For instance, when I checked the box for Wills, Trusts, & Estate Planning and searched for the word "will," I got only a document labeled "criminal intake form" that was a sample letter telling a client about retitling assets into trusts -- bviously, not all there is to say about wills!

This will be an interesting project to watch.

Thanks: Pamela Gregory.

Blinking on the Bench: How Judges Decide Cases

Two law professors and a federal magistrate judge take a look at judicial decision-making. Chris Guthrie, Jeffrey Rachlinski, Andrew Wistrich, Blinking on the Bench: How Judges Decide Cases, 93 Cornell L. Rev. (forthcoming), available at SSRN: http://ssrn.com/abstract=1026414.

Here's their abstract:

How do judges judge? Do they apply law to facts in a mechanical and deliberative way, as the formalists suggest they do, or do they rely on hunches and gut feelings, as the realists maintain? Debate has raged for decades, but researchers have offered little hard evidence in support of either model. Relying on empirical studies of judicial reasoning and decision making, we propose an entirely new model of judging that provides a more accurate explanation of judicial behavior. Our model accounts for the tendency of the human brain to make automatic, snap judgments, which are surprisingly accurate, but which can also lead to erroneous decisions. Equipped with a better understanding of judging, we then propose several reforms that should lead to more just and accurate outcomes.

They report some interesting empirical studies. For instance, one study looked at "anchoring" -- the way that a number presented as an outside range can influence te eventual result reached. Judges were given the facts of a personal injury case and asked to come up with an amount for an award (assuming liability). Judges in different groups were told an amount the plaintiff demanded $10 million in settlement or simply that the plaintiff demanded "a significant monetary payment." The awards from the first group averaged much higher than those from the second group. Another part of the study showed anchoring at the low end: some judges were told that the defendant had moved to dismiss the case because the damages were below $75,000, the minimum for jurisdiction. This time, the judges who had been given the low anchor gave significantly lower award than the other judges.

The reference to "blinking" in the article's title comes from the Malcolm Gladwell's bestseller, Blink, "a book about rapid cognition, about the kind of thinking that happens in a blink of an eye."

Wash. S. Ct. Excludes Evidence from Pat-Down

The state Supreme Court has thrown out the 2005 methamphetamine conviction of an Olympia man, ruling that police had no right to frisk him just because he was apparently intoxicated and acting nervous in a public building.

The unanimous court overturned a decision by a Thurston County judge and the state Court of Appeals, both of which had found Lt. Don Stevens of the Tumwater Police Department justified in patting down Michael Setterstrom for weapons in the lobby of the Department of Social and Health Services (DSHS) building.

Court: Police pat-down was not justified | Seattle Times Newspaper, May 23, 2008.

The case is State v. Setterstrom, No. 79690-4, Wa Courts opinion (May 22, 2008) (J.M. Johnson, J.).

Thumbs Up for Procedural Safeguards

The Seattle Times reprints an editorial from the Spokesman Review applauding the state Supreme Court for a ruling that reversed a drug conviction because of procedural issues.

A cynic will call procedural errors technicalities. A civil libertarian will exalt them as bedrock constitutional protections.

They're both right.

Opinion | Editorial views from across the state | Seattle Times Newspaper, May 23, 2008.

The case in question was State v. Montgomery, No. 79564-9 Wa Courts majority (Chambers, J.), concurrence (Madsen, J.), concurrence (J.M. Johnson, J.) (May 15, 2008). The majority summarizes:

Virgil Montgomery challenges both his conviction for possession of pseudoephedrine with intent to manufacture methamphetamine and his standard range 51-month sentence. Among other arguments, Montgomery asserts his trial was tainted by improper opinion testimony, an improper missing witness instruction, and improper argument about missing potential defense witnesses. We agree with Montgomery that the State's opinion testimony was improper, as was the missing witness argument and instruction. Although we find some of the error harmless, we agree that Montgomery was denied a fair trial. We reverse his conviction, and remand for a new trial.

Supreme Court Memo - At Supreme Court, 5-to-4 Rulings Fade, but Why? - NYTimes.com

Linda Greenhouse reports on a shift in voting patterns at the U.S. Supreme Court: Supreme Court Memo - At Supreme Court, 5-to-4 Rulings Fade, but Why?, NYTimes.com, May 23, 2008.

Tom Goldstein Wants To Be Your Lawyer | SCOTUSblog

Tom Goldstein, one of the authors of SCOTUSblog and a bigshot appellate advocate, shows his sense of humor in this spoof of lawyer commercials: Tom Goldstein Wants To Be Your Lawyer , SCOTUSblog, May 15, 2008. I recommend clicking on the link to his iPhone video as well.

9th Circuit Blasts U.S. Prosecutor for Withholding Documents

Under Brady v. Maryland, prosecutors have an obligation to give the defense information that might help the defense's case. In a complicated fraud case, the federal prosecutor held back hundreds of pages of documents. As a sanction, the district judge dismissed the case. And now the Ninth Circuit has upheld the dismissal. 9th Circuit Blasts U.S. Prosecutor for Withholding Documents, Nat'l L.J. (law.com), May 12, 2008.

The case is United States v. Chapman, No. 06-10316 court website (9th Cir. May 8, 2008).

Pay-as-You-Go Lawyer Referred to 2nd Circuit's Grievance Panel

Pay-as-You-Go Lawyer Referred to 2nd Circuit's Grievance Panel, N.Y.L.J. (law.com), May 13, 2008:

A lawyer who refused to act on his client's appeal because the client had not fully paid his fees has been referred by a federal judge to the 2nd Circuit's grievance panel.

Senior Judge Jon O. Newman said it was 'unacceptable' that attorney Douglas Rosenthal took an initial retainer fee from an aspiring U.S. citizen and then stopped working because the client did not pay additional fees.

Clermont Reviews Empirical Work on Litigation

A new paper on SSRN gives a good introduction to empirical work on civil litigation: Kevin M. Clermont, Litigation Realities Redux (May 10, 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1112274. Here's the abstract:

Both summarizing recent empirical work and presenting new observations on each of the six phases of a civil lawsuit (forum, pretrial, settlement, trial, judgment, and appeal), the author stresses the needs for and benefits from understanding and using empirical methods in the study of the adjudicatory system's operation.

Ethics and Evidence Symposium

Fordham Law Review ran a symposium on evidence and ethics in its December 2007 issue. It's all available on the journal's website:

• Daniel J. Capra, Introduction, 76 Fordham L. Rev. 1225 (2007)

  The authors in this Symposium address three important questions about the interrelationship between ethics rules and evidence rules:
  (1) Do ethics rules impose any limitations on the use (and arguable abuse) of evidence rules?
  (2) Do evidence rules enforce ethical principles of lawyering, and if not, why not?
  (3) What specific areas of evidentiary practice are most in need of an infusion of ethical principles?



• Daniel D. Blinka, Ethical Firewalls, Limited Admissibility, and Rule 703, 76 Fordham L. Rev. 1229 (2007)


• Gerald L. Shargel, Federal Evidence Rule 608(b): Gateway to the Minefield of Witness Preparation, 76 Fordham L. Rev. 1263 (2007)


• Edward J. Imwinkelried, Clarifying the Curative Admissibility Doctrine: Using the Principles of Forfeiture and Deterrence to Shape the Relief for an Opponent’s Evidentiary Misconduct, 76 Fordham L. Rev. 1295 (2007)


• Fred C. Zacharias, Are Evidence-Related Ethics Provisions “Law”?, 76 Fordham L. Rev. 1315 (2007)


• Robert P. Mosteller, The Duke Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure to "Do Justice", 76 Fordham L. Rev. 1337 (2007)


• Myrna S. Raeder, See No Evil: Wrongful Convictions and the Prosecutorial Ethics of Offering Testimony by Jailhouse Informants and Dishonest Experts, 76 Fordham L. Rev. 1413 (2007)


• Robert Aronson & Jacqueline McMurtrie, The Use and Misuse of High-Tech Evidence by Prosecutors: Ethical and Evidentiary Issues, 76 Fordham L. Rev. 1453 (2007)


• Paul C. Giannelli & Kevin C. McMunigal, Prosecutors, Ethics, and Expert Witnesses, 76 Fordham L. Rev. 1493 (2007)


• Joseph Sanders, Expert Witness Ethics, 76 Fordham L. Rev. 1539 (2007)


• Aviva Orenstein, Special Issues Raised by Rape Trials, 76 Fordham L. Rev. 1585 (2007)


• Todd E. Pettys, The Emotional Juror, 76 Fordham L. Rev. 1609 (2007)


• Joseph A. Colquitt, Evidence and Ethics: Litigating in the Shadows of the Rules, 76 Fordham L. Rev. 1641 (2007)


• Marianne Wesson, "Remarkable Stratagems and Conspiracies": How Unscrupulous Lawyers and Credulous Judges Created an Exception to the Hearsay Rule, 76 Fordham L. Rev. 1675 (2007)


• L. Timothy Perrin, The Perplexing Problem of Client Perjury, 76 Fordham L. Rev. 1707 (2007)
  

• Paul F. Rothstein, "Anything You Say May Be Used Against You": A Proposed Seminar on the Lawyer’s Duty to Warn of Confidentiality’s Limits in Today’s Post-Enron World, 76 Fordham L. Rev. 1745 (2007)

Vouching

Vouching: A Defense Attorney's Guide to Witness Credibility, Law and Strategy, by Donna Lee Elm, is a new book from the ABA Criminal Justice Section. Vouching:

What are those 'proper bounds' when arguing credibility of witnesses? Specifically, what is 'vouching?' Although ethics rules are explicit and firm, commentators are quick to point out that case law is inconsistent, fact-driven, and highly protective of convictions

Most trial lawyers know vouching, like obscenity, when they see it -- even if they have trouble formulating a definition. Understanding the principles that underlie vouching has been confounded by how it is usually defined: not by why it is problematic, but instead by how it most commonly appears. The basic concept of vouching, then, is that it is an improper means of bolstering a witness's credibility. Witnesses' reliability and honesty virtually always arises at trial, so practitioners frequently find that they need to 'rehabilitate' or support their witnesses' statements.

This one-of-a-kind book supplies all you need to know about this sometimes misunderstood concept. In fifteen chapters you'll find the topic of vouching covered from every angle, backed up with relevant case citations whenever applicable. You'll discover when it's permissible, and when it's prohibited. You'll get a cleared picture of where the illusive grey areas lie, and learn to recognize when it's been crossed. If you are a trial lawyer, prosecution or defense, you need this book to help establish your expertise in the sometimes confusing area of vouching.

It's in the Library: KF8950 .E46 2008 at Classified Stacks.

Advanced Cross-Examination Techniques DVD 2E - LexisNexis(R) Bookstore

Want to improve your cross-examination skills? Consider this new set of DVDs: Advanced Cross-Examination Techniques, KF8920 .P68 2007 currently on Course Reserve. Here's what the publisher says:

Filmed before a live audience in high quality digital format, Advanced Cross-Examination Techniques illustrates many of the techniques described in the best selling book Cross-Examination: Science and Techniques, 2nd Edition. Watching Larry Pozner and Roger Dodd at work will give you invaluable insight into such factors as voice inflection, word emphasis, body language, and facial expressions that play such an important role in a successful cross.

With features like scene selection by topic, the seminar materials, and the PowerPoint presentation on the DVD, you can selectively choose material to review, and learn at your own pace. Larry Pozner and Roger Dodd together have revolutionized the practice of cross-examination in the United States through their book and seminars. This DVD captures America's most attended trial tactics seminar, which they have performed over 400 times in all 50 states.

The Library purchased this set with funds from the Hugh C. Miracle Memorial Foundation for Trial Advocacy.

The Jury Expert

The American Society of Trial Consultants puts out a newsletter with tips and reports of research. As of May 2008, it's online only -- and you can sign up for an email subscription free. Take a look at the latest issue: The Jury Expert - May 2008. You can download PDF versions of past issues here.

Lawyers in Tacoma debate whether a pig is a hog

Lawyers in Tacoma debate whether a pig is a hog | TheNewsTribune.com | Tacoma, WA, May 12, 2008. Animal law, statutory construction, and a pun that made me laugh. Take a look.

Thanks: Lisa Kremer.

Medical Care in Immigrant Detention Centers

The Washington Post is in the middle of a four-day series, Careless Detention: Medical Care in Immigrant Prisons, Wash. Post, May 11-14, 2008. The series is by reporters Dana Priest and Amy Goldstein, whom you can see in a video introducing the series on the Post's website.

Federal Shield Law

Congress is considering a statute that would protect reporters from having to reveal confidential sources to investigators. The Justice Department opposes the bill, but all three presidential candidates have endorsed it.

See:

• Arlen Specter, Why We Need a Shield Law, Wash. Post, May 5, 2008.
• Michael B. Mukasey, No Need for a Shield, USA Today, April 17, 2008.

The bills to watch are H.R. 2101 (the Free Flow of Information Act of 2007), which passed the House 398-21 in October, and S. 2035, which is before the Senate.

The April 17 Lawyer2Lawyer podcast discussed this topic, with Lucy Dalglish, exec. dir. of the Reporters Committee for Freedom of the Press, and Prof. Geoffrey Stone of the University of Chicago.

In his Brotman Professorship Lecture on Thursday, Peter Nicolas urged for greater attention to state law for, among other reasons, the potential for state experience to improve federal law. This seems to be an area where that's possible, since most states already have reporter shield laws. Washington's is RCW 5.68.010.

Yale Club settles ex-nominee Bork's suit over 2006 stumble - washingtonpost.com

Yale Club settles ex-nominee Bork's suit over 2006 stumble - washingtonpost.com, May 9, 2008.

Justice Stevens contrasts lethal injection methods

Speaking to the Sixth Circuit Judicial Conference on Friday, Justice John Paul Stevens said that the method of euthanizing racehorse Eight Belles was probably more humane than the lethal injection method used on death row in Kentucky. Even though he voted to uphold the lethal injection method in a challenge last month, he raised concerns about the constitutionality of the death penalty. Justice Stevens contrasts lethal injection methods - washingtonpost.com, May 10, 2008 (AP story).

Rapist and Murderer Sentenced in Tacoma

A killer keeps his silence | TheNewsTribune.com | Tacoma, WA, May 3, 2008. Interesting and painful story about the sentencing hearing for a man who pleaded guilty to raping two girls and kidnapping, raping, and killing a third.

Labor activists file lawsuit over Point Ruston project

Labor activists file lawsuit over Point Ruston project | TheNewsTribune.com | Tacoma, WA, May 9, 2008.

A group of nine plaintiffs, most with ties to the activist group Jobs with Justice, filed a lawsuit this week against the City of Tacoma and Point Ruston LLC, claiming errors in the environmental review and permit process for the planned $1 billion development of the former Asarco smelter site.

One concern is that construction could stir up toxics in the soil and pollute air and water.

Newspaper asks state Supreme Court for ruling in Federal Way judge’s case

Newspaper asks state Supreme Court for ruling in Federal Way judge’s case | TheNewsTribune.com | Tacoma, WA, May 9 , 2008. Judge Michael Morgan is trying to block the release of documents related to his role in fostering an allegedly hostile workplace. The News Tribune wants the documents made public, and wants the information before the judge is up for reelection.

Consumer Class Action Defense Practice Group

Katten Muchin Rosenman, a large firm based in Chicago, has put together a national practice group specializing in the defense of consumer class action suits. See press release, May 8, 2008.

One of the partners in the group says:

The formation of this practice group will enable us to pool our resources and expertise across our various offices so that we can efficiently and effectively represent our clients in these types of cases, which are becoming more prevalent and present significant exposure and risk.

Katten has about 650 attorneys, with offices in 7 U.S. cities and London.

I don't know how common a department with that specialty is. Certainly there are firms that specialize (or have departments that specialize) in representing consumer class action plaintiffs (e.g., in Seattle, Bendich, Stobaugh & Strong; Hagens Berman Sobol Shapiro; Schroeter Goldmark & Bender. So why not a specialty in defending such actions?

Busy Week!

There's a lot going on for students (and community members) interested in trial-related topics next week!

• Mon.-Fri., May 12-16, evenings: 1L appellate advocacy competition
• Tues., May 13, 12:30: IPNW Student Chapter hosts "Mistaken Eyewitness Identification: The Leading Cause of Wrongful Convictions," with Prof. Jackie McMurtrie and attorney Anna Tolin
• Wed., May 14, 1-6pm: Coughenour trial advocacy competition, presided over by Hon. John C. Coughenour
• Thur. May 15, 12:30: Jury and Democracy Project talk
• Thur. May 15, 3:30: TGIT and presentation of the Dwyer prize for best paper on a topic related to the jury system
• Fri. May 16, 8-3: Animal Law: Working with the Grassroots, sponsored by SALDF. 5.0 CLE credits. Free, but registration is requited. See here for link to online registration.
  

Jury and Democracy Project - Thur. 5/15

Prof. John Gastil will discuss his work examining the relationship between jury service and civic participation at an event hosted by the Forum on Law and Policy, Thur. May 15, 12:30, William H. Gates Hall rm 117. (Students: free lunch!)

Prof. Gastil is a leader of the Jury and Democracy Project.

Until recently, there was no direct empirical evidence regarding the link between jury service and public engagement, but a study recently published by this proposal’s primary investigators produced such data. Our 2002 study found that after controlling for other trial features and past voting frequency, Washington citizens who served on a criminal jury that reached a verdict were more likely to vote in subsequent elections than were those jurors who deadlocked, were dismissed during trial, or served as alternates. Our current research confirms that general finding and shows in more detail how jury service influences the civic attitudes and behaviors of average citizens.

poorly framed in Schenectady

David Giacalone comments on a burglary case in which the defendant tried to pin the crime on someone else and helpfully provided a photo of the man. The defendant's attorney allowed him to present the tale, but the prosecutor thought the picture looked familiar and placed it, in hundreds of picture frames sold at Wal-Mart. David doesn't buy the public defender's "excuses — and I would not like to think that the ethical and “professional responsibility” duties of an officer of the court could be so lax as to allow him to look the other way, while his client tried to pin the crime on a picture-frame model." f/k/a . . . » poorly framed in Schenectady

The Prosecutorial Ethic: A Tribute to King County Prosecutor Norm Maleng

The University of Washington School of Law hosts a day-long conference (and CLE), The Prosecutorial Ethic: A Tribute to King County Prosecutor Norm Maleng, on Friday, May 30, 2008.

A featured speaker is Patrick J. Fitzgerald, U.S. Attorney for the Northern District of Illinois, Eastern Division (Chicago). He'll speak on high-profile cases, of which he's had a few. (Anybody hear of Scooter Libby? ) Also speaking on high-profile cases -- as well as hosting the day -- will be John McKay, former U.S. Attorney for the Western District of Washington and now a professor at Seattle U.

Here's the whole line-up:

• 9:00 a.m. Welcome and Opening Remarks by Dean Gregory Hicks and John McKay


• 9:20 a.m. Maintaining an Ethical Culture in a Prosecutor’s Office - Patrick J. Fitzgerald


• 10:30 a.m. High-Profile Prosecutions: Special Issues Created by Heavy Media Coverage - Hon. William L. Downing (moderator), Judge, King County Superior Court, Seattle; Patrick J. Fitzgerald; Anne M. Bremner, Stafford Frey Cooper, Seattle; John McKay


• 11:25 a.m. Defense Perspectives on the Prosecutorial Ethic - Jacqueline McMurtrie (moderator), Associate Professor of Law; Director, Innocence Project Northwest Clinic, University of Washington School of Law; Daniel S. Medwed, Associate Professor of Law, University of Utah, S.J. Quinney College of Law, Ellen Yaroshefsky, Clinical Professor of Law and Director, Jacob Burns Center for Ethics in the Practice of Law, Cardozo Law School (also an author of one of the chapters in Trial Stories); Daniel T. Satterberg, King County Prosecuting Attorney, Seattle


• 12:30 p.m. Lunch (on your own)


• 2:00 p.m. Comparative Perspectives on Prosecution - Maureen A. Howard (moderator) Assistant Professor of Law and Director, Trial Advocacy Program, University of Washington School of Law; Hon. Ann C. Williams, Judge, Seventh Circuit Court of Appeals, Chicago; Luz Estella Nagle, Professor of Law, Stetson University College of Law, Gulfport, Florida; Molly Townes O’Brien, Associate Professor in Law, Australian National University, Canberra, Australia


• 3:00 p.m. Who is the Client of an Elected Prosecutor? - Hugh D. Spitzer (moderator), Affiliate Professor, University of Washington School of Law and member, Foster Pepper PLLC, Seattle; Wayne C. Witkowski, Deputy, Legal Counsel Division, Office of the Corporation Counsel for the District of Columbia, Washington, D.C.; Thomas A. Carr, Seattle City Attorney, Seattle; Janice E. Ellis, Snohomish County Prosecuting Attorney, Everett
  


• 4:00 p.m. Closing Remarks - Hon. Robert S. Lasnik, Chief Judge, U.S. District Court for the Western District of Washington, Seattle; John McKay, Professor from Practice, Seattle University School of Law, Seattle

Attorneys, this is not only a great program, but a terrific bargain: 5.75 Ethics CLE credits for $50 ($25 for government attorneys).

See you there!

Seattle Police Guild bookkeeper admits embezzling

Seattle Police Guild bookkeeper admits embezzling, Seattle P-I, May 3, 2008. Judge Coughenour (W.D. Wash.) sentenced her to four months in prison and two years of supervision.

Long sentence for child's pimp

Long sentence for child's pimp, Seattle P-I, May 3, 2008:

A Seattle pimp who turned a 12-year-old girl into a prostitute received an extraordinary five-year prison term Friday.

U.S. District Judge John Coughenour cited the victim's age in sentencing Sean Hart to a term that is almost three times longer than federal guidelines.

Coughenour also sentenced a second man -- who had paid for the girl to be flown to Seattle and had turned her over to the first defendant -- to 30 months in prison, another upward departure from the guidelines.

Closing Arguments in Suit on Veterans’ Mental Care

Last summer Veterans for Common Sense and Veterans United for Truth, Inc., sued the Department of Veterans Affairs for declaratory and injunctive relief. Now the case has been tried by Judge Samuel Conti (N.D. Cal.), who is expected to rule in the next month or two. Closing Arguments in Suit on Veterans’ Mental Care, N.Y. Times, May 1, 2008.

The suit was brought under the United States Constitution (alleging that the claims process denies veterans due process, that veterans have been denied access to the courts and an opportunity to petition the government for grievances), the Medical Care Act (alleging the VA has a mandatory obligation to provide medical care to returning veterans and that it has failed in this obligation), and the Rehabilitation Act (alleging denial of services to people with handicaps). Complaint at 64-68.

The 73-page complaint provides an eloquent overview of the VA mess:

1. This lawsuit stems fromthe shameful failures of the United States Department of Veterans Affairs ("VA") and other governmental institutions to meet our nation's legal and moral obligations to honor and care for our wounded veterans who have served our country. Because of those failures, hundreds of thousands of men and women who have suffered grievous injuries fighting in the ongoing wars in Iraq and Afghanistan are being abandoned. Unless systemic and drastic measures are instituted immediately, the costs to these veterans, their families, and our nation will be incalculable, including broken families, a new generation of unemployed and homeless veterans, increases in drug abuse and alcoholism, and crushing burdens on the health care delivery system and otehr social services in our communities.

2. The system for deciding VA claims has largely collapsed. The VA claims adjudication system is currently mired in processing a backlog of over 600,000 claims, many of which have been pending for years. The time period for a claim to be fully decided can exceed ten (10) years. By comparison, the private sector health care industry processes thirty (30) billion claims annually in an average of 89.5 days per claim, including the time required to resolve disputed claims. The VA's process for pursuing a claim is not merely arbitrary and ineffective. The delays have become an insurmountable barrier preventing many veterans from obtaining health care and benefits. Many wounded veterans, particularly those with combat-caused mental illness, give up in frustration and despair or die while their claims are pending. In these cases, justice delayed is justice denied.

Complaint at 3.

The legal claims (summarized above) are discussed at ¶ ¶ 258-78. Complaint at 64-68.

I don't think I've mentioned here that Justia makes available the dockets and electronic documents from many federal cases available free (Justia Federal Civil Court Filings). This is an example of how cool this resource is. In addition to the complaint, you can see the whole docket for this case and read the government's motion to dismiss, the order granting in part and denying in part the motion to dismiss (the judge dismissed the Rehabilitation Act claim), the government's trial brief, and plaintiffs' trial brief.

Thanks: Michele Storms.