Monday, December 28, 2009

O'Connor Leads Effort to End Judicial Elections

A group of judges, political officials and lawyers, led by the retired Supreme Court Justice Sandra Day O’Connor, has begun a campaign to persuade states to choose judges on the basis of merit, rather than their ability to win an election.
Effort Begun to End Voting for Judges, N.Y. Times, Dec. 23, 2009.

O'Connor is working with the University of Denver's Institute for the Advancement of the American Legal System.

Friday, December 18, 2009

Has the Supreme Court Undermined Civil Rights Enforcement?

Congress is considering legislation to undo the Supreme Court's holdings in Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009). The Washington Independent reports:

Does a House bill about legal civil procedures provide a way to restore the protection of civil rights in America, or is it an unwarranted gift to trial lawyers that could be “paralyzing if not deadly” to the federal government?

* * *

As in the Senate, House lawmakers appear divided along party lines. Democrats and their witnesses say that the Supreme Court’s recent decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal have gutted the civil rights and antitrust laws and imposed an unfair and often insurmountable burden that will doom many valid claims. Republicans and their witnesses, meanwhile, say the court did the right thing to help reduce frivolous lawsuits that destroy small businesses and drag busy government officials into court unnecessarily.

Has the Supreme Court Undermined Civil Rights Enforcement?, Washington Independent, Dec. 17, 2009.

One of the witnesses was Prof. Eric Schnapper of the University of Washington, who argued that Congress should act quickly to overturn Iqbal and Twombly. whose prepared statement is here. The bill being considered in the House is H.R. 4115, the Open Access to Courts Act of 2009.

Tuesday, December 15, 2009

Jurors in Trial of Baltimore Mayor Friend Each Other on Facebook

Judges confounded by jury's access to cyberspace, Baltimore Sun, Dec. 13, 2009:

On Friday, lawyers for Baltimore Mayor Sheila Dixon asked for a new trial in part because five of the jurors who convicted her of embezzlement Dec. 1 were communicating among themselves on Facebook during the deliberations period - and at least one of them received an outsider's online opinion of what the verdict should be. The "Facebook Friends," as Dixon's lawyers call them in court documents, became a clique that the lawyers argue altered jury dynamics.
The article discusses a number of cases affected by jurors who go online.
Concern has grown so much nationwide that legal experts, including in Maryland, are rewriting model jury instructions to specifically tell jurors that online searches, texting and social media - the things they routinely do on laptops, cell phones and BlackBerrys - are out. Maryland's rules are expected to be published next year, and the ones on that subject are still being drafted.

Sunday, November 29, 2009

Forensic Facebook

A New York Times blog reports (Nov. 11, 2009) on a Harlem teenager whose Facebook status update helped confirm an alibi and get burglary charges dropped. The post says that this is the first time Facebook helped the accused, and lists times when Facebook and MySpace posts have been used against defendants.

Comments list different ways that someone could scam the system. Sure, a 19-year-old could call home and say, "Dad! Quick! Log in to my Facebook account and post something. I'm going to need to prove that I was in your apartment right now! Oh, and when the police ask you if I was there, lie for me, OK?" But I think the prosecutor probably made a good call.

Friday, November 27, 2009

Representing Hamdan - Free CLE

The Trial of Salim Ahmed Hamdan:
Constitutional Challenge to Executive Power and the
First War Crimes Trial of a Guantanamo Detainee

Monday, December 7, 2009
Benaroya Hall, 2nd & Union Streets, Downtown Seattle
Nordstrom Recital Hall
4:00 p.m. to 5:30 p.m.

Perkins Coie lawyers Harry Schneider, Joe McMillan and Charles Sipos will provide a behind-the-scenes account of their experience as part of the defense team of lawyers appointed to defend Salim Ahmed Hamdan, widely known as Osama bin Laden's personal driver. The presentation will include a review of the federal court litigation filed in Seattle that eventually led to the United States Supreme Court 2006 landmark Hamdan v. Rumsfeld decision on the limits of presidential power. Messrs. Schneider, McMillan and Sipos will also provide an in-depth analysis of the 2008 trial at Guantanamo Bay in which Mr. Hamdan became the first defendant accused by the United States of committing war crimes in the war on terror and tried before a Military Commission.

To Attend
This is a complimentary seminar offered by Perkins Coie; however, pre-registration is required.
You may register here for this program.
Public parking is available at several parking lots near Benaroya Hall. Parking will not be validated.

This program has been granted CLE credits in Washington and California. If you are admitted to practice in another state, we will provide information to allow you to apply for credit in your state of admittance.

Please contact our Registrar, Linda Gordon, at LGordon [at] or 206.359.8420 if you have questions.

JP Morgan Drops Arbitration Clauses

Parties to a contract often like arbitration clauses because they offer a cheaper and easier resolution to disputes than formal litigation. However, credit-card companies typically dictate the terms of the agreement for consumer debts and hire arbitration companies to handle all of their customer's disputes.

The Wall Street Journal reported last weekend that JP Morgan is removing arbitration clauses from their credit-card agreements. This change comes in the wake of several court cases addressing the close relationship the banks enjoy with arbitration companies.

Businessweek reported this summer that the Minnesota Attorney General filed suit against the industy-leading National Arbitration Forum. As Business week reports, "[The Minnesota suit] follows a bias case brought against NAF last year by the San Francisco city attorney in California state court."

THANKS to Patrick Flanagan for this guest post. -- mw

Tuesday, November 3, 2009

Defendants Gone Missing

Two current stories about defendants on the loose:

Sunday, October 25, 2009

Transcripts Aren't Enough

Surprisingly, in most U.S. jurisdictions, court proceedings, which can dramatically affect people‟s lives or property, are rarely recorded accurately or in their entirety because only a small percentage of courts regularly create a video record of court proceedings. Of those courts that do, most do not preserve the video record but simply turn it into a transcript.
Keith A. Gorgos, Comment, Lost in Transcription: Why the Video Record Is Actually Verbatim, 57 Buff. L. Rev. 1057, 1058 (2009)(footnotes omitted). The author analyzes ways that transcripts can be inadequate records of trials -- for instance because the text does not include all the non-verbal cues a witness can give or because the court reporter simply did not capture the speech accurage -- and argues that video records be kept and made the official.

Wednesday, October 21, 2009

Pro Bono Practice CLE: Hope & Help In Hard Times

As part of the ABA's National Pro Bono Celebration next week, the University of Washington School of Law and Seattle University School of Law are sponsoring a full-day CLE at Seattle U: Pro Bono Practice Workshops and CLE: Hope & Help In Hard Times on Friday, Oct. 30. Registration is just $25 for new lawyers, young lawyers, and recent graduates, $125 for others.

A reception at the end of the day will honor William H. Gates, Sr., who was awarded the American Bar Association Medal in August. WSBA president Salvador Mungia and Harry Schneider, Jr. (pro bono counsel in Hamdan v. Rumsfeld), will speak.

Monday, October 5, 2009

Lower Awards for Spanish-Speaking Plaintiffs

Lost in Translation | ABA Journal - Law News Now, Jan. 2009:

After compiling 17 years of data from his own practice, Dallas lawyer Angel Reyes had a hunch that Spanish-speaking plaintiffs who required the use of a translator in the courtroom received smaller awards than those who did not.

Last fall Reyes and two professors from Texas Tech University's Rawls College of Business confirmed his suspicion: Spanish speakers who relied on a translator during court testimony were 15 percent less likely to obtain a jury verdict that exceeded their last settlement offer than were English speakers.
The article is: Bradley T. Ewing, Angel L. Reyes, III, & James C. Wetherbe, Estimating the Effect of Non-English Speaking Hispanic on Personal Injury Jury Trial Outcomes, Texas Tech University, Rawls College of Business, ISQS Working Paper (2008); it will appear in Social Science Quarterly.

Thanks: @djillpugh.

Tuesday, September 29, 2009

Limiting Secret Settlements - the Florida Experience

Parties often agree to keep settlements confidential -- defendants will often pay extra for the secrecy and plaintiffs are willing to promise quiet in exchange for the settlement. But it's a public concern if the confidentiality keeps the public from learning of unsafe products or conduct that could affect them as well as the particular plaintiff who settled.

Florida attempted to limit the number of such settlements with the Sunshine in Litigation Act, that required openness if the information related to a public hazard. But in the decade or more since the act, the courts and parties in Florida have still allowed secret settlements.

Prof. Roma Perez reviews Florida's experience and suggests improvements in Two Steps Forward, Two Steps Back: Lessons to Be Learned from How Florida's Initiative to Curtail Confidentiality in Litigation Have Missed Their Mark, 10 Fla. Coastal L. Rev. 163 (2009).

Shared via AddThis

Monday, September 28, 2009

Another Cautionary Facebook Tale

I got the Davis Law Group's September 2009 newsletter in my email and took a look. Christopher Davis tells about a client who had been injured in a car accident. There was evidence about the young man's injuries and the likelihood that his back would give him trouble from time to time for years to come. The defense, though, found pictures and videos on his Facebook and Myspace pages showing him snowboarding. And that led to a lower settlement, because of how those images would play with the jury. Even if the plaintiff had considerable pain over long stretches and always would, just a few carefree minutes on the slopes would make it look like the accident hadn't had much impact. And that's why Davis says that he always cautions his clients to be careful what they post.

Graphic from Washington State Department of Licensing.

Saturday, September 26, 2009

Interesting Wash. Criminal Law Blog

Graham Lawyer Blog is by Steve Graham, a solo criminal defense lawyer in Republic, WA. The posts I looked at were interesting and thoughtful.

Because of his location -- he practices in the courts of the Colville Reservation as well as in Okanogan, Ferry, Stevens, Grant, and Spokane Counties -- he follows Indian law issues as well as general criminal law, e.g.,

One cool thing about blogs is that sitting at my desk in Seattle I can "meet" a lawyer in Republic.

Would you like to check out other local blogs? See Law-Related Blogs in Washington State.

By the way, if you're not sure where Republic is, see this:

Friday, September 18, 2009

Mass. Town Pays $3.4M to Family of Wrongfully Convicted Man

The town of Ayer and five of its insurers have agreed to pay $3.4 million to settle a civil rights lawsuit filed by the estate of the late Kenneth Waters, who spent more than 18 years in prison for a murder he did not commit before his sister earned a law degree and helped free him through DNA evidence.

* * *

The lawsuit, which was scheduled to go to trial next week, accused Ayer police of coercing false testimony to convict Waters and withholding evidence that could have cleared him.
Ayer to pay $3.4m for unjust conviction, Boston Globe, July 15, 2009.

See also Betty Anne Waters wins $10.7M for brother's wrongful murder conviction, Nat'l L.J., Sept. 17, 2009 (you have to register to view the story).

The story of a sister who gets her GED and puts herself through college and law school in order to help her brother -- and then succeeds! -- is the stuff of Hollywood. And indeed, Betty Anne Waters is due out later this fall. Hillary Swank plays Betty Anne Waters and Minnie Driver plays her law school friend Abra Rice. Rice, now a public defender, is profiled in Courtroom Drama, New Haven Advocate, Aug. 18, 2009.

Here's the real Waters at an Innocence Project event (she appears at 2:58):

Huge Malpractice Verdict Against Firm for Not Telling Client of Dismissal

An employment discrimination plaintiff whose suit was dismissed because of an error in the complain won a huge malpractice verdict against a firm for not telling her of the dismissal until it was too late to refile and fix the error. The 100-lawyer firm says it was all the fault of one lawyer who messed up and has since left the firm and been disbarred. Becker & Poliakoff to Appeal $4.5M Malpractice Loss, Blames ‘Rogue Lawyer’, ABA Journal Law News Now, Sept. 18, 2009.

Thursday, September 17, 2009

L.A. judge says he can't afford to remain on federal bench

L.A. judge says he can't afford to remain on federal bench, Nat'l L.J., Sept. 16, 2009:

Fewer than two weeks after U.S. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., introduced a bill that would authorize more federal judgeships nationwide, a federal district judge in Los Angeles announced that he would resign on Nov. 2 because he can no longer afford to remain on the bench.

U.S. District Judge Stephen G. Larson of the Los Angeles-based Central District of California said in a prepared statement on Sept. 15 that the failure by Congress to increase judicial salaries made it impossible to support his seven children, all under age 18.

* * *

On Sept. 8, Leahy introduced SB 1653, the Federal Judgeship Act of 2009, which would establish 63 new permanent and temporary judgeships across the country. It would be the first legislation in 19 years to address federal judgeships.

The bill is here.

The new judgeships proposed in our "neighborhood" are:
4 9th circuit judgeships
1 temporary 9th circuit judgeship
1 W.D. Wash. judgeship
1 D. Ore. judgeship

What's this about "temporary" judgeships? Doesn't Article III promise judges life tenure ("during good behaviour")?

Well, yes. The bill provides that the JUDGE would get a permanent appointment, but the court would only have that many slots temporarily: "For each of the judicial districts named in this subsection, the first vacancy arising on the district court 10 years or more after a judge is first confirmed to fill the temporary district judgeship created in that district by this subsection shall not be filled."

Wednesday, September 16, 2009

Vanity Fair on the Craigslist Murder

Maureen Orth on the Craigslist Murder |, Oct. 2009.

The "Craigslist Murder" was a crime made possible by the Internet, and the prime suspect was apprehended through online sleuthing. But the killing of Julissa Brisman allegedly by Boston University medical student Philip Markoff is still a very human mystery, with dark sexual overtones and surprising contradictions.

Monday, September 14, 2009

A Legal Battle for Lawyers - Online Attitude vs. Rules of the Bar

A Legal Battle for Lawyers - Online Attitude vs. Rules of the Bar -, Sept. 13, 2009. Several incidents are reported -- bar discipline for a blog post criticizing a judge, firing for disclosing confidential information, getting called by a judge for asking for a trial delay and then posting a series of Facebook statuses about partying. The moral? Be careful what you say!

Wednesday, September 9, 2009

A Different Shade of Blue

I just read Adam Eisenberg, A Different Shade of Blue: How Women Changed the Face of Police Work (HV8023 .E57 2009 at Good Reads).

The author (a graduate of the University of Washington School of Law who is now a court commissioner) got the idea for a book about female police officers when he was a prosecutor and met some women working in this field dominated by men. His book takes us back to the 1920s, when the Seattle Police Department hired its first women. It is enlivened by dozens of first-person accounts, starting with some women who were in the old Women's Bureau in the 1940s and 1950s. There are a wide range of vivid stories, starting with some by true-crime writer Ann Rule, who reminisces about her time in the Women's Bureau in the 1950s.

The interviews include a wide range of women -- different times on the force, different races, different sexual orientations.

Many of the stories concern the challenges of being among just a handful of women in a force filled with men. What uniform do you wear? Where do you shower? How do they treat you in the police academy? How do you establish trust with your coworkers? How do you deal with rumors? What do you say if your partner's wife says she doesn't feel safe with him having a female partner?

Sexual harassment has been a problem in the department for many women. And reporting it has often created worse problems, so many women have chosen to remain silent.

For more, check out Eisenberg's blog, Shades of Blue, where he posts news about women in police work, including some from around the world.

Ms. named this book one of its "Great Reads for Summer 2009." Nicely done, Adam!

Sunday, August 23, 2009

Renton women use stolen IDs for more than $2 million in student loans

Renton women use stolen IDs for more than $2 million in student loans | The News Tribune, Aug. 20, 2009. One woman took Social Security numbers from medical records at the clinic where she worked, then a group of people applied for student loans and used the money for travel, cars, jewelry, and entertainment. "At sentencing U.S. District Judge John C. Coughenour said, 'these were student loan funds for a very precious, almost sacred purpose.'"

An identity theft case may require a big team: "The case was investigated by Social Security Administration Office of Inspector General (SSA-OIG), the Federal Bureau of Investigation, the Secret Service, the United States Postal Inspection Service, the Seattle Police Department and the King County Sheriff’s Office. The case was prosecuted by Assistant United States Attorneys Norman Barbosa and Aravind Swaminathan as part of the U.S. Attorney’s Office Working Group on Identity Theft."

Thursday, August 20, 2009

Judge Betty’s Revenge

The Seattle Weekly's current cover story is a profile of Judge Betty Fletcher (9th Cir.), a 1956 graduate (top of her class) of the University of Washington School of Law. Judge Betty’s Revenge, Seattle Weekly, Aug. 18, 2009.

Cases discussed include ones on NEPA, affirmative action, and the death penalty.

Photo by Steven Miller, Seattle Weekly.

Monday, August 17, 2009

Florida blogger finds fame digging up dirt on slayings | Seattle Times Newspaper

Florida blogger finds fame digging up dirt on slayings | Seattle Times Newspaper, Aug. 17, 2009.

The local prosecutor said that a couple was murdered in the course of a robbery. But a local blogger got tips that it was a murder for hire. He posted and the case changed shape. The sheriff says the blogger had helped the investigation and his anonymous sources were largely right. A newspaper publisher says that the blogger benefited from his support of the sheriff's election campaign and has looser journalistic standards than the newspaper.

Friday, August 14, 2009

Police ultimatum to drug dealers: Quit, or go to prison | Seattle Times Newspaper

Local News | Police ultimatum to drug dealers: Quit, or go to prison | Seattle Times Newspaper, Aug. 7, 2009:

Confronted with photos, video clips and binders full of evidence gathered in a yearlong operation along Seattle's 23rd Avenue corridor, from Madison to Jackson streets, the dealers were promised they wouldn't be arrested, prosecuted or sent to jail for 20 months or more if they embraced the job training, educational opportunities, housing assistance and chemical-dependency treatment being offered them.
This story was picked up by the ABA Journal's Law News Now.

The Legal Rebels Project

The ABA Journal is going to begin profiling -- in print and online -- lawyers who are "remaking their corners of the profession. . . ., finding new ways to practice law, represent their clients, adjudicate cases and train the next generation of lawyers." You can nominate "legal rebels" to be profiled, and you can participate in a wiki to draft the Legal Rebels Manifesto. See Legal Rebels - Who's a Legal Rebel?

Monday, August 10, 2009

Tweets, Texts, and Other Messaging in the Courtroom

Gadgets can gum up trials. Examples: jurors going online to research facts not presented in evidence, a witness texting another company official for advice about testimony, a spectator's phone ringing with a rousing chorus of "Louie, Louie," someone recording proceedings, jurors tweeting about deliberations.

But gadgets aren't all bad. Sometimes a lawyer needs to contact someone back at the office, or get a message that a witness is stuck in traffic.

Katherine A. Helm suggests reforms:

The best way to manage this problem is one that only a handful of courts across the country have adopted: Allow preauthorized counsel to bring electronic devices into the courtroom and make all other courtroom attendees (jurors, witnesses, observers) check their devices in the lobby. The Southern District of New York is testing out such an interim rule now, where authorization can be given only by specific court order — although being forced to specify each device for each named attorney each day might be overkill.
Katherine A. Helm, Courtrooms all atwitter, Nat'l L.J., Aug. 10, 2009.

Monday, July 27, 2009

Petition to Improve PACER

A group of law librarians are urging the Administrative Office of the United States Courts to improve access to PACER, the online system for federal dockets and related documents. They urge free access at depository libraries, decreased costs to all users, and an improved interface. Check out the petition: Improve PACER - The Petition Site.

Tuesday, July 21, 2009

Lawyer Leads Local Fight Against Illegal Immigration

Lawyer Leads Local Fight Against Illegal Immigration -, July 21, 2009. Interesting profile of Kris W. Kobach, who moved from the Justice Department to law teaching (UMKC) and now litigates on behalf of communities' restrictions on illegal immigration around the country.

Iqbal in Everyday Practice

In Ashcroft v. Iqbal, No. 07-1015 (May 18, 2009), the Supreme Court ruled that the district court should have dismissed plaintiff Iqbal's claims against government officials for his arrest and conviction. Why? Because his complaint "fail[ed] to plead suffi­cient facts to state a claim for purposeful and unlawful discrimination."

You might have thought that the case would only interest those following issues of national security, terrorism, and discrimination against Muslims. But the case also has applicability for all plaintiffs who make general allegations in their complaints so they can use discovery to get the evidence they need to flesh out their cases.

Iqbal is the most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts,” said Thomas C. Goldstein, an appellate lawyer with Akin Gump Strauss Hauer & Feld in Washington.
Adam Liptak, Sidebar - 9/11 Case Could Bring Broad Shift on Civil Suits - Series -, July 20, 2009. Lower courts have cited Iqbal more than 500 times already!

See also:

For discussion of one of those lower court cases -- Tooley v. Napolitano, in which the DC Circuit has granted rehearing on the issue of whether to let a man's suit against Homeland Security proceed -- see Lyle Denniston, Analysis: New Obstacles to Wartime Challenges, SCOTUS Blog, July 4, 2009.

Friday, July 17, 2009

Washington Briefs on the Web

The Washington State Courts are posting briefs on the web. The project began with Division II, but now includes Supreme Court and Division I briefs as well. Supreme Court and Court of Appeals - Briefs has
  • Supreme Court briefs, June 2006-
  • Division I, June 2009-
  • Division II, June 2006-
Coverage is not complete, especially in the early months. For example, in one case, there might be a respondent's brief but not the appellant's brief.

For more, see Court Briefs & Oral Arguments.

Monday, July 13, 2009

What Can a Trial Lawyer Learn from Michael Jackson?

Jury consultant Anne Reed admits that she was never a Michael Jackson fan -- didn't spend time glued to MTV, didn't go nuts for "Thriller." Me too (although, unlike Anne, I'd at least heard the songs and seen a video or two). Anne asks us all to reflect on what we've missed in popular culture:

it might be, like Michael Jackson, something that a lot of jurors would list among their greatest inspirations and influences. It's worth pausing at moments like this to consider what you're missing, and whether you could open a little further to the experience of people who are not you.
Deliberations: What Have You Missed?, July 1, 2009.

Sunday, June 28, 2009

A Different Shade of Blue

A new book about women in police work will be released July 15.

A Different Shade of Blue tells the history of female cops in America through the candid voices of 50 women on the Seattle Police Department. As one of the first cities to hire policewomen in 1912, Seattle provides the perfect backdrop to tell an amazing story – women’s ongoing struggle nationwide to fit into the male-dominated police profession.

A Different Shade of Blue features three generations of women – black, white, Asian, Latina, gay, straight – speaking 'on the record' about their experiences on the streets and in the precincts. Hired between the 1940s and the 2000s, the women share stories of great heroism, from battling an armed assailant inside a patrol car to going undercover to catch an illegal abortionist in the days before Roe v. Wade. They also offer surprising views on affirmative action, and tell tales of discrimination and harassment that reveal how even today men continue to treat their female co-workers as second-class citizens.

As the women recount their lives and experiences, they prove that female cops are a different shade of blue. And that difference has forever changed the face of police work.
The author is UW School of Law graduate Adam Eisenberg, who says that he got the idea for the book when he was working as a prosecutor. He is now the commissioner of Seattle Municipal Court.

Adam's blog will be a forum for more stories of female police officers.

Supreme Court Super Nerd in 3 Easy Steps

A lawyer offers tips on how to follow the Supreme Court. Lawffice Space: Supreme Court Super Nerd in 3 Easy Steps, June 28, 2009.

One tip: subscribe to Willamette Law Online's US Supreme Court service:

This service provides same-day summaries of certiorari granted, oral arguments, and decisions published by the United States Supreme Court. The certiorari summaries focus on the facts and decision from the lower court. The week prior to oral arguments we provide an outline of the issues presented to the Court as argued in the briefs. The decision summaries provide the holding from the United States Supreme Court and a brief overview of the Court's reasoning.
Willamette also offers updates for Ninth Circuit Court of Appeals, Oregon Courts, Intellectual Property, Conflict of Laws, and Dispute Resolution.

Tuesday, June 23, 2009

Commission Releases Report on Combating Prison Rape

The National Prison Rape Elimination Commission -- created by Congress in 2003 -- today released its final report and proposed standards. The standards include a supplement for immigration detention facilities.

The BLT: The Blog of Legal Times reports:

Part of the commission’s goal was to create standards “so that when you hear about a prison rape, the warden doesn’t just wink and nod and say take care of it, but that it’s investigated,” said commissioner Jamie Fellner, senior counsel to the U.S. Program of Human Rights Watch.

* * *

[Commission chairman, Judge Reggie] Walton also said he hoped that its guidelines would become a legal standard of care, which prisoners could use as the basis of lawsuits if they were raped.

Monday, June 22, 2009

Congress Should Free Legal Aid Lawyers From Federal Restrictions

The Washington Post opines that Congress Should Free Legal Aid Lawyers From Federal Restrictions, June 22, 2009:

THE HOUSE was right last week to call for a substantial increase in funding for the Legal Services Corp. (LSC), the nonprofit organization that provides legal assistance to poor people in civil matters. But House members left in place unwise and unwarranted restrictions on how the LSC could use that money; . . .

The Senate, which is scheduled to take up the funding measure this week, should go even further in freeing legal aid lawyers from federal restrictions. The LSC has long been prohibited from using public funds to lodge class-action suits, represent undocumented workers or participate in any abortion-related litigation. While some limitations on the use of tax dollars may be warranted, there is no legitimate reason for federal restrictions on how local legal aid groups use privately raised funds or money they receive from state or local governments. The Obama administration, which supports the lifting of these restrictions, estimates that roughly $490 million in private and non-federal funds that find their way to local legal aid providers are 'tied up' and subject to these federal limitations.

Sunday, June 21, 2009

9th Circuit Finds No First Amendment Violation in Teacher's Demotion Over Blog Comments - 9th Circuit Finds No First Amendment Violation in Teacher's Demotion Over Blog Comments, Nat'l L.J., June 22, 2009. The (unpublished) case, from Kitsap County, is Richerson v. Beckon, No. 08-35310, 2009 U.S. App. LEXIS 12870 (9th Cir. June 16, 2009)(mem.), available on the court's website.

Rosenberg Reenactment

The radio program Studio 360 had a great story about Judge Denny Chin (S.D.N.Y.) -- soon to be sentencing Bernard Madoff -- who participates in reenactments of famous trials. Recently he went through thousands of pages of the transcripts from the trial of Julius and Ethel Rosenberg to create a 60-minute script, focusing on Ethel Rosenberg. He draws lessons about the importance of detached judging even during -- especially during -- emotionally and politically charged cases.

Saturday, June 20, 2009

AG Holder: DNA Evidence Can Exonerate the Wrongfully Charged

day after the Supreme Court ruled defendants have no constitutional right to a review of DNA evidence in post-conviction proceedings, Attorney General Eric Holder Jr. underscored the Justice Department position that seeks to expand access to DNA evidence in the courts.
The BLT: The Blog of Legal Times : AG Holder: DNA Evidence Can Exonerate the Wrongfully Charged, June 19, 2009. The prepared text of Holder's speech is here. The BLT goes on:
Holder issued a statement in response to the Supreme Court 5-4 decision in District Attorney's Office for the Third Judicial District v. Osborne that said, in part: “Constitutional rights are only one part of a fair and full system of justice. Simply because a course of action is constitutional does not make it wise.” Holder said in the statement that the Court “merely spoke about what is constitutional, not what is good policy.”
See Tony Mauro, High Court Rejects Post-Conviction DNA Access, Nat'l L.J., June 19, 2009.

The Solicitor General's amicus brief in Osborne argued against a constitutional right to DNA testing, urging a reversal of the 9th Circuit -- that is, arguing for the result the Court reached. The brief was filed in December 2008 -- that is, during the last Administration.

Juror misconduct alleged in civil rights trial stemming from police shooting

In a civil rights case against a Kent police officer for shooting the passenger in a stolen car, the defense is asking for a judgment notwithstanding the verdict or a new trial because of the influence of a juror who is married to a King County Sheriff's deputy. Judge Coughenour (W.D. Wash.) invited the motion. Juror misconduct alleged in civil rights trial stemming from police shooting | Seattle Times Newspaper, June 18, 2009.

Thursday, June 11, 2009

Pardon Power Blog

Interested in pardons and clemency? Pardon Power is a blog "dedicated to following the very latest news regarding presidential pardons and the pardon power (or clemency powers) as exercised in each state." The author, P.S. Ruckman, Jr., is a professor of political science at Rock Valley College in Illinois.

3-Strikes Offender Granted Clemency

Last month, Stevan Dozier, the first three-strikes offender to be granted clemency, was released from prison. His offenses were second-degree robbery -- an offense some say shouldn't be counted as a strike that leads to life imprisonment -- and during his 15 years in prison he turned his life around. His release was supported by King County Prosecutor Dan Satterberg. Freed 3-strikes offender is being watched closely by supporters, critics, Seattle Times, June 11, 2009.

Dozier spends his days pounding the streets — visiting politicians, community centers and school-district offices in search of an opportunity to share his story with elementary and junior-high-school children who are on the verge of falling into trouble.

"I'm tired of seeing them kids coming to prison. They need to learn from me and other people about our mistakes. We can contribute to them," Dozier said. "Once the kids get on the streets, it's hard to pull them off the streets. I'm looking at the prevention."
Mr. Dozier has started a blog, sdfreedom09.

Arbitration Fairness Act

What claimants can't go to court?
The employees and consumers who are bound by mandatory arbitration provisions in their employment contracts, credit card agreements, etc.

NPR had an interesting story about the issue, leading with the Halliburton employee who wants to be able to sue her employer for the rape and beating she suffered when stationed in Iraq. Rape Case Highlights Arbitration Debate : NPR, June 9, 2009.

NPR links to:

Tuesday, June 9, 2009

Honking horn not constitutionally protected

A homeowner's association told a resident she had to stop keeping chickens. She retaliated by honking her horn in front of the complainant's house at 5:50 on a Saturday morning. A police officer cited her for violation of the noise ordinance. She fought it, arguing that the ordinance was unconstitutionally vague and interfered with her free speech. Representing herself, she was convicted after a 3-day jury trial in a court of limited jurisdiction. She appealed to Snohomish County Superior Court, where Judge Richard J. Thorpe has ruled Honking horn not constitutionally protected | Seattle Times Newspaper, June 9, 2009.

Is WWU drama professor provocative, or an abusive bully?

Local News | Is WWU drama professor provocative, or an abusive bully? | Seattle Times Newspaper, June 9, 2009. The insults and epithets quoted in the article strike me as abusive, although the professor say they're just part of his teaching style and his counsel argues that they are protected by academic freedom.

In 2005 faculty disciplinary board at Western Washington University suspended him for two quarters. That decision was upheld by the Whatcom County Superior Court. And now Division 1 of the Court of Appeals remands for a new hearing:

We hold that the University did not violate Mills’s employment contract, that the Faculty Code of Ethics is not unconstitutionally vague, and that the University did not violate Mills’s free speech rights. However, we also hold that the University violated the
Administrative Procedure Act by conducting Mills’s disciplinary hearing in secret. Accordingly, we vacate the University’s Final Order and remand to the University for a new hearing.
Mills v. Western Wash. Univ. (Div. 1, May 26, 2009).

Thursday, June 4, 2009

Judge Orders Expedia to Pay Consumers $184 Million for Breach of Contract

King County Superior Court Judge Monica Benton granted summary judgment to the plaintiffs in a class action suit against Expedia for hotel fees it charged in millions of transactions. The plaintiffs were represented by Steve Berman of Hagens Berman Sobol Shapiro. The firm says that this is the largest judgment for a consumer class action in Washington State history.

Hagens Berman: Judge Orders Expedia to Pay Consumers $184 Million for Breach of Contract, Hagens Berman press release, June 1, 2009; Expedia ordered to pay $184 million in lawsuit over hotel taxes, fee, Seattle Times, June 1, 2009.

(I checked Expedia's press room to see if it had a press release of its own about this case. Nope. And the press release it did have for June 1 seems a little ironic in light of the judgment: Announces Its Biggest Hotel Sale Ever.)

Monday, June 1, 2009

WYLD's Trial Advocacy Program

Think you could use some Trial Ad instruction to improve your skills? Or would you like to help out? Here's a notice from the June 2009 issue of De Novo, the newsletter of the Washington State Bar Association Young Lawyers Division:

Fall 2009 – Trial Advocacy Program Seeks Committee Volunteers and Participants

The Trial Advocacy Program (TAP) offers members of the WYLD an opportunity to improve their litigation skills in both the civil and criminal justice fields, and acquire trial experience. The TAP provides a unique opportunity to interact with and learn from more experienced practitioners, and to network with other young lawyers. The TAP is an intensive two-weekend program emphasizing jury trials, and includes lectures, discussion groups, mock trials, exercises, and general education and instruction in courtroom trial practice.

Additional details and registration information will be available in July 2009. For more information, or to volunteer as a committee member, contact Brian Halcomb, WYLD liaison, at brianh [at]

De Novo Highlights

The June 2009 issue of De Novo, the newsletter of WSBA's Young Lawyers Division is now out. (The newsletter is now electronic-only.) Highlights for people interested in trial practice are:

Video monitors coming to Gretna courtrooms

Over a million dollars of equipment is being installed in the courthouse in Jefferson Parish (near New Orleans). Video monitors coming to Gretna courtrooms -, May 25, 2009. I hadn't heard of "annotation monitors":

Each courtroom will have five monitors, including annotation monitors, which, for instance, will allow a witness to use a finger to mark on a photograph appearing on a monitor where he stood when he saw a crime. After the jury sees it, that image can be printed out by a clerk and filed into the case record, Murphy said.

Judges, through annotation monitors that have touch-screen controls, decide what is published for the jury and when.

Tuesday, May 26, 2009

Heck no, he won't go, said lawyer to client

Civil client is unhappy with lawyer and fires him, saying she'll go pro se. But lawyer says client isn't competent to make decisions about the case and wants a guardian ad litem appointed. They've been litigating this for seven years! Heck no, he won't go, said lawyer to client, Nat'l L.J., May 18, 2009.

Monday, May 25, 2009

Happy Therapeutic Birthday: The First Drug Court Turns 20

Cynthia Alkon, Happy Therapeutic Birthday: The First Drug Court Turns 20, ADR Prof Blog, May 25, 2009.

Earlier this month the first drug court in the USA, in Dade County Florida, marked its 20th birthday. Many newspapers observed the anniversary and published what are now fairly commonplace stories about successful participants—along with a new twist of possible drug court closures due to tough economic times.
Post includes link to a YouTube clip of a drug court proceeding.

Judge’s trial delayed until September

Judge’s trial delayed until September | The News Tribune - Local, May 23, 2009.

Pierce County Superior Court Judge Michael Hecht is charged with felony harassment and misdemeanor patronizing a prostitute. King County Superior Court Judge James Cayce has been assigned to preside, to avoid the appearance of impropriety if the trial were run by one of Hecht's Pierce County colleagues. Hecht has moved for the trial to be moved out of Pierce County because of the coverage by the News Tribune. The prosecutor (assistant state attorney general John Hillman) has moved to admit evidence of uncharged acts to show a "common scheme or plan" (ER 404(b)).

He’s suing to stay out of Guinness

He’s suing to stay out of Guinness | The News Tribune (AP), May 24, 2009. Jonathan Lee Riches, a federal inmate who says he has filed more than 4,000 lawsuits, is suing to prevent the Guiness Book of World Records from naming him as the man who has filed the most lawsuits in the history of mankind.

Threats against judges, prosecutors escalate

Threats against judges, prosecutors escalate, Seattle Times, May 25, 2009. The story reports a variety of incidents and threats around the country.

Friday, May 22, 2009

'Extremely bored' juror gets an arrest warrant

Bored Potential Juror Arrested for Absconding, Hillsoboro (Ore.) Argus, May 12, 2009 (picked up in the Oregonian May 19 and ABA Journal website May 20).

On the one hand, this is a funny law story -- man "just couldn't take" the boredom anymore and so didn't return after lunch and it turns out that (surprise!) doing that can land you in jail.

It also raises some serious questions. The judge emphasized that having a broad cross-section in jury pools and juries is essential to fair trials and that jury duty is an important, well, duty.

But face it: much of jury duty IS boring. I love having some time with nothing to do but read a book, but even I have felt restless and bored being trapped in the jury assembly room waiting to have my name called. The Seattle Municipal Court has done a lot to improve jurors' lot -- the room is at the top of the building with some views; on nice days jurors can go out on the deck; there are places to plug in laptops; some of the furniture is comfortable; people who work nearby can leave if they promise to be able to return within a short time.

What else could be done? DVD players (with headphones so as not to distract others)? Wii?

The jury assembly room is only part of it. What about the long stretches when something is going on in the courtroom and the jury is stuck in the jury room, not able to discuss the case and not able to do anything else? Is there a way to alleviate that boredom? A few video games, a deck of cards, ...?

NJ Defense Attorney Indicted on Many Counts

Ex-Prosecutor Charged in Federal Court With Murder, Other Crimes, N.J.L.J. (, May 21, 2009:

The 14-count indictment charges that Bergrin, a former federal and Essex County prosecutor, engaged in a host of illegal activities from his Newark law office, including witness tampering, wire fraud, money laundering and drug trafficking.

They included orchestrating the murder of an informant who was expected to testify against his client in a federal drug case and attempting to hire a hitman from Chicago to kill an informant in a Monmouth County, N.J., drug case -- a killing that was never carried out.

Bergrin obtained exculpatory testimony from witnesses through bribes or threats of harm in nine other cases, and he assumed control of his client's drug trafficking operation after the client was convicted on federal drug charges, the indictment says.

Thursday, May 21, 2009

Fight breaks out after arrest at gang murder trial at King County Courthouse | Seattle Times Newspaper

Local News | Fight breaks out after arrest at gang murder trial at King County Courthouse | Seattle Times Newspaper, May 20, 2009.

The trial has drawn an audience of supporters of the defendant and the victim. One of the audience members was arrested on an outstanding warrant, and then the two camps began fighting. "Paul Sherfy, chief administrative officer for King County Superior Court, said additional court-security officers have been assigned to Superior Court Judge Regina Cahan's courtroom because of the fight."

New Jersey Death Penalty Study

In cooperation with Seton Hall Law School, the Stein Center for Law & Ethics - Fordham Law School, the New Jersey State Bar Association, and the Capital Punishment Committee of the New York City Bar Association, the Legal Scholarship Network (LSN) is pleased to announce the Legislation, Litigation, Reflection, and Repeal: The Legislative Repeal of Capital Punishment in New Jersey Online Proceedings. These proceedings are available to all users at no charge and contain abstracts of the meeting's papers with links to the full text within the SSRN eLibrary.

In 1982 the New Jersey Legislature restored the death penalty, lifting the Furman stay of executions. 228 times prosecutors sought death. 60 times juries agreed, 57 cases were reversed at some point. 8 remained on death row at the time of repeal. None were executed.

On December 17, 2007, Gov. Jon Corzine signed a bill repealing the death penalty and replacing it with life imprisonment without parole for capital murder.

On April 14, 2008, principal actors in the 25-year drama gathered at Seton Hall Law School. The symposium reflected on the judicial, legislative, and popular efforts to sustain, limit, and ultimately abandon capital punishment. Five former Justices of the New Jersey Supreme Court (two of them former Chief Justices, and three of them former Attorneys General), leaders of the legislative effort, and members of the Legislative Study Commission which recommended repeal spoke. Former prosecutors and public defenders recounted the struggle in the courtrooms and on appeal. Sen. Raymond J. Lesniak presented a resolution by the Legislature honoring Celeste Fitzgerald and New Jerseyans for Alternatives to the Death Penalty. Gov. Corzine expressed his pride and personal commitment on the issue, urging others to follow New Jersey’s lead.

The proceedings and an introductory essay have been published by the Seton Hall Legislative Journal.

You can browse all Legislation, Litigation, Reflection, and Repeal: The Legislative Repeal of Capital Punishment in New Jersey abstracts in the SSRN database by clicking here:

Hearing on constitutionality of lethal injection begins today

The Thurston County Superior Court is considering the constitutionality of lethal injection in the cases of two men on death row whose executions have been stayed. The Blotter | Hearing on constitutionality of lethal injection begins today | Seattle Times Newspaper, May 21, 2009.

Monday, May 18, 2009

Digital Forensics Talk on Campus

The Information School hosts a talk on digital forensics this afternoon:

Digital Records Forensics. What is a record in the digital environment and why is it important? The Findings of the InterPARES project and the premises of the DRF project (Speaker: Luciana Duranti)
Date: 5/18/2009 to 5/18/2009
Time: 3:30 PM - 5:00 PM
Location: Mary Gates Hall 420

Under the aegis of two of her research projects, InterPARES and the Digital Records Forensics (DRF) project, Prof Duranti will demonstrate how information technologies have made it difficult to identify and establish the trustworthiness of records in various digital environments, and have added a level of complexity to the concept of record itself such that the legal system has serious problems in assessing digital documentary evidence.

Prof Duranti will begin her talk with a discussion of the concept of record as understood in traditional diplomatics and archival science, and then demonstrate its application to static and dynamic entities in digital systems by looking at selected InterPARES case studies. Finally she will discuss some of the legal consequences of the InterPARES project research findings and the way they are addressed by the Digital Records Forensics (DRF) project, for example, with regard to the hearsay rules.

Friday, May 8, 2009

Trial Ad Text -- and Multimedia Too!

Three faculty members from Seattle University have written a second edition of their trial advocacy textbook: Marilyn J. Berger, John B. Mitchell & Ronald H. Clark, Trial Advocacy: Planning, Analysis, and Strategy. Its companion book is Trial Advocacy: Assignments and Case Files.

The publisher's description of the book begins:

Trial Advocacy: Planning, Analysis and Strategy, Second Edition is completely revised and updated reflecting today’s trial practice. Every chapter includes practical and conceptual instructions with realistic illustrations. Trial planning techniques and strategies using case theory and theme are explained in depth. Trial Advocacy presents premier trial persuasion principles and state-of-the-art technology used by practicing lawyers. It provides guidance for every phase from trial preparation to closing argument. The text together with an accompanying DVD showing model trial demonstrations of all aspects of trial from jury selection to closing argument, make this this an outstanding primer for law students and will serve as an indispensable resource for a continuing trial practice. A companion book contains Assignments and a CD with the case files.
The first edition came out in 1989, so an update is very welcome -- particularly with respect to technology used in practice management and trial presentations.

Throughout the book, students will find handy tips and checklists set off in boxes -- helpful reminders to people who are trying to develop their skills.

The supplement has dozens of exercises that can be used in a class or training session. It comes with a CD that has lots of documents connected with the exercises (pleadings, deposition excerpts, experts' CVs, photographs, etc.).

I like the "research memoranda" -- short discussions of the law in the fictitious jurisdiction where the exercises are set, so that students have the relevant rules of evidence and a summary of caselaw on issues like spousal privilege, prior convictions, duty to defend, or whatever. The preface says that faculty can choose to set the exercises in their own state and have students research the law. I'm all for more research experience for students, but I see an advantage to giving the students the law so that they can focus on the skill and judgment needed for making objections, arguing motions, and so on.

But wait, there's more!

Trial advocacy doesn't take place within the covers of a book, you know. Recognizing that, the authors provide a DVD so that you can see and hear a demonstration trial (or significant passages from a trial). You can see clips here.

Seattle lawyers and law students might recognize several of the actors. Lawyers are played by local lawyers -- and UW and SU Trial Ad instructors -- Lisa Marchese, Craig Sims, William Bailey (pictured above), Vonda Sargent, and Matthew Williams. The judge is played by Judge Dean S. Lum of King County Superior Court. The defendant is played by Tacoma District Court Judge Jack Nevin. Not only can you spot folks you know -- the fact that real lawyers are involved makes the mock trial very realistic. The script is by Ron Clark -- no slouch either, of course!

Just a week or two ago, a lawyer called me looking for DVDs of trials that he could watch to learn more about trial procedure and presentation skills. We talked about going to the courthouse to watch actual trials -- he agreed that that would be useful, but he felt he couldn't take the time from work and he could watch a DVD in the evening. He wanted actual trials, but this carefully edited DVD might be a much better start.

The DVD also includes a tour of the crime scene from another case, with the prosecutor's investigator walking the viewer around, showing where the witnesses were sitting, where the hallway was, and so on. This should be very helpful to students trying to prepare trial exercises for that case. Hats off to Seattle U's Films for Justice Institute, which did a fine job creating the films.

Two books, a CD, and a DVD. What else could you want? Well, there's a website with some additional information, including links to companies that prepare trial graphics, research sites, and other sites (including this blog).

Disclosing possible bias, I'll say that I've chatted with Ron Clark at the Book Store Cafe and I was happy to get review copies of the books in exchange for a promise to blog about them.

Those review copies will soon be part of the library collection so UW students and others in the Seattle area will be able to take a look. When they've been cataloged, I'll add the call numbers here.

Wednesday, May 6, 2009

Florida enacts first-of-its-kind law to protect confidential informants

Florida enacts first-of-its-kind law to protect confidential informants, Nat'l L.J. (, May 4, 2009:

The death of a woman who was killed while working undercover in a police drug sting has prompted Florida lawmakers to pass a first-of-its-kind law to protect confidential informants.

The law, which unanimously passed the Senate on April 30 and is on the governor's desk for approval, establishes uniform guidelines and written standards for the use of confidential informants by Florida police departments. Specifically, it requires law enforcement agencies to take into account the informant's age, maturity and substance abuse history to protect the informant from any potential harm.
The family of the informant is suing the city for wrongful death.

Tuesday, May 5, 2009

Woody Allen Tries To Block Mia Farrow's NYC Testimony

Woody Allen is suing American Apparel for $10 million for its unauthorized us of his image (a still from Annie Hall) on billboards and a website. The company has apologized for the use. Allen says that the company's advertising is "sleazy." The company says that his image isn't worth $10 million after his scandals in the 1990s. So a question for the trial is: how much of his past can the jury hear about? Woody Allen Tries To Block Mia Farrow's NYC Testimony, Huffington Post, May 5, 2009.

Wash. State Ass'n for Justice Honors Judge Meyer, P-I

At its Law Day event last night, the Washington State Association for Justice (formerly Washington State Trial Lawyers Association) gave its judge of the year award to Skagit County Superior Court Judge John M. Meyer and its excellence in journalism award to the Seattle Post-Intelligencer. See the press release. A bio of Judge Meyer is here. That page also has bios of 7 judges honored for 20 years of judicial service.

Monday, April 27, 2009

In a Downturn, More Act as Their Own Lawyers

In a Downturn, More Act as Their Own Lawyers -, April 9, 2009.

To ensure fair outcomes, courts must do more to help people navigate the courts, said John T. Broderick, the chief justice of New Hampshire. “If you and I went to the hospital and they said, ‘Do you have insurance?’ and we don’t, and they said, ‘There are some textbooks over there with some really good illustrations,’ ” Judge Broderick said, “we would think that was immoral.”

Murder Myths, Tort Myths

Friday evening I went to a lecture by UW sociologist Joe Weis, "'Just the Facts, Ma'am': Investigating Murder Myths." As you'd expect from the title, he debunked a lot of commonly held beliefs -- that murder is up, that serial murder is up, that there are thousands of little children abducted and murdered each year.

Washington State now has the lowest murder rate it's had since 1960. Far from being on the rise, murder has been dropping for the last couple of decades.

Parallels with the work of UW political scientist Michael McCann were striking. When Weis described another scholar's study of newspaper reports of murders in L.A. County finding that only a fraction were reported, it seemed very much like McCann's discussion of media coverage of tort cases. Murders are more likely to be reported if there are multiple victims, if the victims are of high socio-economic class, if there are "extra" factors like mutilation -- and so the public has a skewed perception of murder. Jury verdicts are more likely to be reported if they are very large or surprising in some way -- and so the public has a skewed perception of civil litigation.

For more on McCann's work, see William Halton & Michael McCann, Distorting the Law: Politics, Media, and the Litigation Crisis, KF380 .H358 2004 at Good Reads. (Of course this is William Halton's work, too, but he's at UPS and McCann is here...)

Monday, April 20, 2009

Court to review 10-year-old suicide ruling

In 1998 a woman was found shot to death in her bedroom closet and the coroner ruled it a suicide. But the woman's mother and the detective on the case thought it was a homicide. The sheriff closed the case. Now the mother is having the coroner's decision reviewed in Lewis County Superior Court. Local News | Court to review 10-year-old suicide ruling | Seattle Times Newspaper, April 20, 2009.

The Times article says that this is the first time the 1987 law allowing judicial review has been used. It's RCW 68.50.015

Immunity for determining cause and manner of death — Judicial review of determination.

A county coroner or county medical examiner or persons acting in that capacity shall be immune from civil liability for determining the cause and manner of death. The accuracy of the determinations is subject to judicial review.

[1987 c 263 § 1.]
In order to get to this point -- having the superior court act -- the mother had get a ruling from the Court of Appeals, finding, among other things, that the statute of limitations had been tolled. Thompson v. Wilson, 142 Wash.App. 803, 175 P.3d 1149, Findlaw (Wash. App. (Div. 2) 2008).

Sunday, April 19, 2009

Picking Cotton Authors on Campus

I just read Picking Cotton: Our Memoir of Injustice and Redemption and I'm very eager to hear the authors, Jennifer Thompson-Cannino and Ronald Cotton, when they speak tomorrow afternoon (UW School of Law, Gates Hall room 133, 4 p.m.).

The authors' friendship is improbable and compelling. In 1984 Jennifer Thompson was raped at knifepoint by a stranger who broke into her apartment. She studied the man's face so she could describe him to the police. A tip based on the composite sketch led to Ronald Cotton, whom she identified in a lineup and in court. She was sure of her identification. But 11 years later, DNA testing confirmed his claim of innocence. Cotton was freed from prison.

When witnesses are given a choice of, say, six men, they will often pick the one who looks most like the person they saw commit the crime. Then that person's image becomes part of their memory. Because of this case, their town's police department changed its procedures for photo arrays and lineups. Now witnesses are shown pictures or suspects one at a time to reduce that effect.

This should be a great talk.

The library's copy of the book hasn't been processed yet but will be available soon. The University Book Store will also be selling copies at the event.

F.B.I. and States Vastly Expand DNA Databases

F.B.I. and States Vastly Expand DNA Databases -, April 19, 2009.

Law enforcement officials are vastly expanding their collection of DNA to include millions more people who have been arrested or detained but not yet convicted. The move, intended to help solve more crimes, is raising concerns about the privacy of petty offenders and people who are presumed innocent.

Until now, the federal government genetically tracked only convicts. But starting this month, the Federal Bureau of Investigation will join 15 states that collect DNA samples from those awaiting trial and will collect DNA from detained immigrants — the vanguard of a growing class of genetic registrants.

Friday, April 17, 2009

Boy's stepdad sentenced in 'torture' case

Boy's stepdad sentenced in 'torture' case | KOMO News - Seattle, Washington | Local & Regional, April 17, 2009:

In [Pierce County superior] court on Friday, the [10-year-old] boy bravely spoke up against the man who admitted to beating the boy to the point he'd pass out and wet himself. Taking long pauses to compose himself during the difficult testimony, the boy told the judge in a low voice that he wishes he could have back all the lost years.

Outside the courtroom, the boy told KOMO News he is torn as to what he wants to happen to his stepfather.

"I wanted him to get the low sentence, and I want to get the high sentence," he said. "I wanted him to get the low sentence for my brothers. I want them to see their dad. But then I want him to get the high sentence because I don't want them to go through the same thing."
If you were a prosecutor or victim's advocate, how would you do to help an abused child through that testimony? And if you represented the convicted man, what would you argue at the sentencing hearing?

Olympia man wins lawsuit over 'communist' label

Olympia man wins lawsuit over 'communist' label - South Sound - The Olympian - Olympia, Washington, April 17, 2009.

Being a communist sympathizer is a hot-button issue within the Vietnamese community, since many of the Vietnamese people who settled in the U.S. were opponents of the communists and oppose the current regime. So when several people accused Duc Tan and his organization, Vietnamese Community of Thurston County of being communist sympathizers, it hurt him and his business.

Five years and a three-week trial later, a jury awarded him $225,000 in damages.

Guilty Plea in Cold Embezzlement Case

70-Year-Old Woman Goes To Jail For Theft In 1983 - Seattle News Story - KIRO Seattle, April 17, 2009.

Friday, April 10, 2009

Sociologist Examines Murder Myths

UW Sociology Professor Joseph Weis presents "Just the Facts, Ma'am": Investigating Murder Myths on Friday, April 24:

Professor Joe Weis discusses the myths surrounding murder. Many people believe that the Pacific Northwest is the serial murder capital of the world; thousands of children are abducted every year by strangers and killed; the violent crime rate, particularly for murder, continues to spiral upward; this is the most dangerous time to live in the history of the U.S.; gangs are responsible for a significant percent of murders; a significant percent of murderers are mentally disordered; murder is predominantly a crime of poor, minority groups; etc. This list of apparent “facts” is surely incomplete, and they may or may not be true. How do we know they are not simply myths? Empirical research allows us to investigate the accuracy of common beliefs about murder. Drawing primarily on research on murder in Washington State and from a national study of child abduction murders, the accuracy or illusion of many apparent “facts” about murder will be examined.

UW Club Lecture Room
Friday, April 24
7:00 p.m.

Registration for this free public lecture is requested at with the registration code "murder".

Thursday, April 9, 2009

Closing prisons, slashing sentences eyed to balance budget

Politics | Closing prisons, slashing sentences eyed to balance budget | Seattle Times Newspaper, April 9, 2009:

Tough-on-crime legislation that has long filled courtrooms, prisons and parole offices across the country has apparently met its match — the economy.

In Washington and other states, lawmakers are considering budget cuts that would close prisons, loosen sentencing guidelines and slash probation terms.

With lawmakers in Olympia looking for nearly $4 billion in spending cuts, several high-ranking Democrats say the recession gives them an opportunity to add compassion to a criminal-justice system they believe has grown too large, too expensive and too harsh for some of the crimes.

"We need a massive re-look at what we're doing and what the focus is," said Senate Ways and Means Chairwoman Margarita Prentice, D-Renton.

Monday, April 6, 2009

Series of Errors Doomed Stevens Prosecution - Series of Errors Doomed Stevens Prosecution, April 6, 2009. The government prosecution of Sen. Ted Stevens was messed up by the government's failure to share potentially exculpatory evidence with the defense. There might be repercussions -- e.g., a change in personnel at DOJ.

On April 1, Attorney General Eric Holder Jr. announced he was moving to dismiss the case with prejudice—five months after Stevens was convicted of public corruption charges. In its motion to dismiss, the Justice Department said it found more government evidence that Stevens’ lawyers should have received. The move to dismiss the case is more than an embarrassment for the Public Integrity Section. It presupposes a shake-up in the section’s leadership and invites a new era of heightened scrutiny from judges, defense lawyers say, though history shows prosecutors seldom face criminal charges for misconduct.

Thursday, April 2, 2009

First-person Story of Mistaken Eyewitness Identification

The Gates PSL Speaker Series is presenting an event that should be amazing:

Picking Cotton: Our Story of Injustice & Redemption, featuring Speakers, Activists and Authors Jennifer Thompson-Cannino and Ronald Cotton

Jennifer and Ronald have an extraordinary story to tell. It is a story that challenges the way we think of our legal system. It is a story that challenges our ideas about memory and judgment. It is a story that teaches us about human grace and the healing power of forgiveness.

In 1984, Jennifer Thompson-Cannino was raped at knifepoint by a man who broke into her apartment while she was sleeping. She escaped, and in the course of reporting her crime eventually positively identified Ronald Cotton as her rapist in a photo array and subsequent physical lineup. Ronald always insisted he was innocent, but Jennifer’s positive ID was the compelling evidence that put him behind bars. But in 1995, with the help of a UNC law professor, Ronald was allowed a DNA test that proved he was not Jennifer’s rapist. He was released, after serving eleven years in prison for a crime he did not commit.

What makes this story unique is what occurred after Cotton’s release. Two years later, Jennifer and Ronald met face to face — and they became incredible friends. With Jennifer’s help, Ronald received over $100,000 in compensation from the state of North Carolina for his wrongful incarceration. They now travel the country speaking about their experiences, their friendship, the harrowing and often murky waters of the criminal justice system, and working towards reform in the area of mistaken witness identification.

Co-sponsored by the Integrity of Justice Project.

Date: Monday, April 20, 2009
Time: 4:00pm - 5:15pm
Location: W. H. Gates Hall Room 133

Sunday, March 29, 2009

Hellhole: Article on Solitary Confirnement

Annals of Human Rights: Hellhole: Reporting & Essays: The New Yorker, March 30, 2009. Atul Gawanda makes a strong case that prolonged solitary confinement is torture. He also discusses an alternative that has worked in Britain and Europe: housing prisoners in small groups where they have more control and more dignity.

Virginia Senator Pushes For Prison Reform : NPR

Virginia Senator Pushes For Prison Reform : NPRAll Things Considered, March 29, 2009:

Sen. Jim Webb introduced legislation last week establishing a blue-ribbon commission to retool the nation's prison system. The Virginia Democrat talks to host Jacki Lyden about the bill and why he feels the criminal justice system has to change.
Excellent interview.

Sen. Webb has a webpage devoted to the National Criminal Justice Commission Act of 2009. It includes fact sheets, news stories, hearings, and other material.

The bill is S. 714, introduced Friday, March 26. The text isn't yet on Thomas, but it is on the website above.

Friday, March 27, 2009

Federal Judges Revealed

In Federal Judges Revealed (KF372 .D66 2009 at Classified Stacks) William Domnarski looks at the biographies and attitudes of federal judges.

The power and influence of the federal judiciary has been widely discussed and understood. And while there have been a fair number of institutional studies-studies of individual district courts or courts of appeal--there have been very few studies of the judiciary that emphasize the judges themselves. Federal Judges Revealed considers approximately one hundred oral histories of Article Three judges, extracting the most important information, and organizing it around a series of presented topics such as "How judges write their opinions" and "What judges believe make a good lawyer."

D.C. Federal Courts Honor Pro Bono Work in Washington

The BLT: The Blog of Legal Times : D.C. Federal Courts Honor Pro Bono Work in Washington, March 26, 2009:

The economic crisis may be taking its toll on law firms across Washington, but that hasn’t stopped 26 firms from logging a record-setting number of pro bono hours.

In recognition of that effort this morning, the U.S. District Court for the District of Columbia hosted the sixth annual “Forty at Fifty Judicial Pro Bono Recognition” breakfast to honor firms that had 40 percent of their lawyers contribute 50 or more hours of pro bono work.
Chief Judge David Sentelle (D.C. Cir.) said:
There is nothing wrong with making money, and I wouldn’t besmirch that for attorneys at all. But at the end of your career, when you’re talking to your children and your grandchildren, is it enough to say you made a lot of money or that you made your billable hours? Or would you rather say you helped a widow stay in her home, or kept an innocent person out of jail?
Good point! But it could be a little stronger. Widows and innocent defendants are the cliches of deserving people to help. Pro bono should also include helping a mother who was never married stay in her home and helping a guilty defendant get a fair trial and a reasonable sentence.

Legal Voice - Women's rights. Nothing less.

Last night the Northwest Women's Law Center announced a name change: it's now Legal Voice, with the tag line "Women's rights. Nothing less."

The name and the graphics are new, but the organization retains its mission and programs:

Legal Voice, founded in 1978 as the Northwest Women's Law Center, has been the vanguard organization bringing groundbreaking litigation and fighting for landmark legislation to ensure justice for women in the Pacific Northwest for more than 30 years.

As an action-oriented, diverse organization, Legal Voice is committed to securing and protecting the rights of all women. We are a vital force in the community, making substantive, lasting changes through legislation and litigation designed to have a far-reaching public impact, and by empowering women with knowledge about their legal rights.

Wednesday, March 25, 2009

Legal Documents in Bernie Madoff Case

Curious about the Madoff case? The U.S. Attorney for the Southern District of New York has posted a collection here.

Thanks: Cheryl Nyberg, writing in our library's blog, Gallagher Blogs. Have you Trial Ad (and other) Notes readers checked out that blog? It has some interesting stuff (and I'm not just saying that because I create some of the posts).

Saturday, March 21, 2009

Judge Allows Katrina Lawsuit Against Corps of Engineers

Judge Stanwood J. Duval Jr. (E.D. La.) denied the government's motion to dismiss a case against the Army Corps of Engineers for damage caused when the Mississippi River Gulf Outlet (MRGO) canal flooded parts of New Orleans after Hurricane Katrina. This was the third time the government sought dismissal. The judge also denied the plaintiffs' motion for partial summary judgment. Judge Allows Katrina Lawsuit Against Corps of Engineers -, March 20, 2009 (story will be in March 21 print edition); Judge gives go-ahead to MRGO suit, Times-Picayune, March 21, 2009.

The case, Robinson v. United States (No. 06-2268), will begin trial April 20, 2009.

Duval's 65-page opinion is here (on the blog of attorney Joseph M. Bruno)

See the court's page, "Katrina Canal Breaches Consolidated Litigation." These are the last remaining cases stemming from Katrina.

Friday, March 20, 2009

As Jurors Turn to Web, Mistrials Are Popping Up -

As Jurors Turn to Web, Mistrials Are Popping Up -

Jurors are not supposed to seek information outside of the courtroom. They are required to reach a verdict based on only the facts the judge has decided are admissible, and they are not supposed to see evidence that has been excluded as prejudicial. But now, using their cellphones, they can look up the name of a defendant on the Web or examine an intersection using Google Maps, violating the legal system’s complex rules of evidence. They can also tell their friends what is happening in the jury room, though they are supposed to keep their opinions and deliberations secret.
The article opens with the story of an eight-week trial that had to be scrapped because not one but NINE jurors had been doing outside reseach.

Web 2.0? Web: Uh-oh!

New Mexico governor abolishes capital punishment

New Mexico governor abolishes capital punishment -, March 19, 2009.

The new law replaces lethal injection with a sentence of life in prison without the possibility of parole. The repeal takes effect on July 1, and applies only to crimes committed after that date.

"Regardless of my personal opinion about the death penalty, I do not have confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crime," Richardson said.
Richardson said that 130 death-row exonerations in the last decade (including 4 in New Mexico) showed that we can't be 100% sure that "only the truly guilty" are sentenced to death.

The legislation was applauded by the ACLU and human rights groups and opposed by a sheriffs and prosecutors.

Law Prof’s Article on His Jury Experience Leads to Overturned Verdict

A Seton Hall law professor served on a jury and was named the foreperson. Later he wrote an article in a legal newspaper reflecting on his experience and said that the other jurors had asked him to explain legal concepts, such as proximate cause. The defendant in the tort case asked the trial court to overturn the verdict against it, but the trial court said that the professor's influence wasn't that great. But the appellate court said that a new trial was needed. Law Prof’s Article on His Jury Experience Leads to Overturned Verdict | ABA Journal - Law News Now, March 19, 2009. (The comments are worth skimming.)

The case is Barber v. ShopRite of Englewood (N.J. Super. App. Div., March 19, 2009), available here.

Thanks: Maureen Howard.