Emotions and Culpability

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?

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.

Publisher's description. This book, from the American Psychological Association, is available in the Law Library: K5065 .F56 2006 at Classified Stacks.

What Happens When Wrongfully Convicted Are Released?

The Wisconsin Law Journal profiled several people who were exonerated -- "After the Door Opens":

• State offers little support for exonerated individuals, Wis. L.J., Oct. 20, 2008


• Putting broken lives back together, Wis. L.J., Oct. 20, 2008


• Exonerees hope to find strength in numbers, Wis. L.J., Oct. 20, 2008


• Half of states offer more exoneration compensation than Wisconsin, half offer nothing, Wis. L.J., Oct. 24, 2008

A Thanksgiving thought: be thankful that you haven't endured the nightmares these people have, and be thankful that you can work to improve the system. If wrongful convictions are your issue, check out the Innocence Project Northwest or the national Innocence Project. And if your passion is free speech or civil rights or environmental justice or anything else, there are places for you to make a difference, too.

Thanks: WisBlawg.

History of Adversary Trial

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.

When Juries Acquit But the Judges Would Have Convicted

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

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

Is Pro Bono Good?

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.

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.

See NY Judge's Remarks Cause Stir Over Goal of Pro Bono Work, N.Y.L.J., Oct. 31, 2008.

Judge Boyce F. Martin (6th Cir.) replies: It's All for the Clients, Nat'l L.J., Nov. 24, 2008

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.

Federal Evidence

I got an email announcement from the folks at the www.FederalEvidence.com site. It seems to have a lot of good, free content (as well as an option for subscribing to a pricey newsletter). Here's the announcement (edited lightly):

The www.FederalEvidence.com site provides a forum for evidence issues, offering many complimentary evidence features and tools for visitors. Some of the features include:

• The Federal Evidence Blog
• The updated Federal Evidence Rules (including new rule FRE 502) in a searchable PDF format with hyperlinks to the rule.
  
• Online, searchable access to the Federal Evidence Rules and Advisory Committee Notes.
  
• Signup for Evidence Alerts! (on the blog page).
  
• Key Evidence Cases by the Supreme Court

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. Subscription information is available here.

Lawyers Will Be Lawyers, Dumping More on Juries Than They Can Process - WSJ.com

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.

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.

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.

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.

Justice Stevens Shows No Signs of Leaving Supreme Court

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.

Prosecution of Low-End Drug Offenses

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.

Public Defense to Be Hit by County Budget Cuts?

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.

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?

Graphic from Oregon Board of Cosmetology Safe Salons Public Education Program.

Sex Offender Policy Blogs

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.

Access to Justice Board Members Needed

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.

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.

More information here.

Citing Workload, More Public Defenders Are Refusing New Cases

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.

This story links to an article from last year Adam Liptak, Public Defenders Get Better Marks on Salary, N.Y. Times, July 14, 2008 (discussing Radha Iyengar, An Analysis of the Performance of Federal Indigent Defense Counsel, Nat'l Bur. Econ. Research Working Paper 13187, June 2007).