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.

Port Orchard man convicted in multi-million-dollar fraud scheme - Port Orchard Independent

Bernie Madoff is getting the big headlines for his gargantuan Ponzi scheme. But his wasn't the only Ponzi scheme around.

This week Judge Ronald B. Leighton (W.D. Wash., Tacoma) sentenced Charles Nolon Bush for his Ponzi scheme: 30 years in prison, three years supervised release and $30,097,659 in restitution. (Not just $30 million: $30,097,659.) Former Kitsap County Man Sentenced to 30 Years in Prison for $35 Million "Ponzi" Scheme, U.S. Attorney's Office press release, March 20, 2009.

The government had to get Bush extradited from Poland. It took a year from the extradition request to his first court appearance.
Port Orchard man convicted in multi-million-dollar fraud scheme - Port Orchard Independent, Port Orchard Independent, Nov. 13, 2008.

Sunday, March 15, 2009

New Mexico Legislature repeals death penalty -

New Mexico Legislature repeals death penalty -, March 13, 2009.

Gov. Bill Richardson will decide whether to sign the bill in the next couple of days.

Tuesday, March 10, 2009

Another sign of tough times: legal aid for the middle class -

Another sign of tough times: legal aid for the middle class - Los Angeles Times, March 10, 2009:

Long comfortably ensconced in the proud community of the self-reliant, [one man] was unaware that free or low-cost legal help is available for the mounting middle-class casualties of the recession.

Had he known about the online guidance, legal self-help centers or community lawyers offering their services at group rates, he might have avoided being scammed by a fraudulent foreclosure rescue business that took his last borrowed money.
In Washington, the online site to visit is, a project of the Northwest Justice Project, with documents from Columbia Legal Services, the Northwest Women's Law Center, the Attorney General's Office, and other reliable sources. Click on the Find a Lawyer link at the top of any page to find organizations with free or low-cost legal services.

Thursday, March 5, 2009

New Blog Covers Washington Supreme Court

The Evergreen Freedom Foundation has launched The Supreme Court of Washington Blog (its tag line is "Reading the opinions so you don't have to").

We are publishing this blog to assist citizens, practitioners, and journalists who want to follow the cases before our state’s high court.

* * *

Readers can expect several regular features. We plan to review new cases the court accepts, preview oral arguments, and analyze opinions the court hands down. Special features will include a monthly audio podcast to discuss significant items, and the occasional “live-blog” to follow oral arguments in high-profile cases. Along the way, we’ll cover noteworthy news about the court and its members.
The Evergreen Freedom Foundation's mission
is to advance individual liberty, free enterprise, and limited, accountable government. We have a vision of a day when opportunity, responsible self-governance and free markets flourish in Washington State because its citizens understand and cherish the principles from which freedom is derived.

Our primary research areas are budget and taxes, education, labor, elections, and citizenship and governance. Within those areas we publish studies, conduct seminars, and work to provide information for legislators, media and the general public.
EFF already has a blog on Washington law and policy called Liberty Live.

Wednesday, March 4, 2009

Supreme Court Affirms State Tort Award Against Drug Company

Justices Rule Against Drug Company in Injury Case, Wash. Post, March 5, 2009.

The Supreme Court ruled yesterday in favor of a woman who had her arm amputated after an improper injection of an anti-nausea medication and said drugmakers could not rely on federal regulation to shield them from lawsuits brought under state consumer protection laws.
The case is Wyeth v. Levine, No. 06-1249.

Analysis: A Warning to the FDA, SCOTUSblog, March 4, 2009.
Amid much critical commentary about the way federal drug regulators are doing their job, a Supreme Court majority on Wednesday provided a ringing endorsement of lawsuits in state courts to fill in for lapses at the national level — in particular, lawsuits that claim drugmakers have not given doctors and patients enough warning about side-effects. The six Justices who joined in upholding a verdict of nearly $6.8 million against the pharmacetical company Wyeth have sent their own warnings: to the industry, and to the Food and Drug Administration.

Justice John Paul Stevens’ opinion speaking for five Justices, and Justice Clarence Thomas’ separate opinion joining in the result, provided in combination a reinforcement of these ideas: that drug companies are primarily responsible for keeping their warning labels up to date and complete (and may pay for it if they don’t), and that the FDA not only needs to police the industry more closely — even if it lacks resources – but that it also had better have the clearest mandate from Congress before it tries to scuttle patients’ lawsuits in state courts.

Tuesday, March 3, 2009

Huge inequalities found in Washington's system for court-imposed fines and fees

Huge inequalities found in Washington's system for court-imposed fines and fees | University of Washington News and Information, Feb. 24, 2009:

Washington state's system for imposing fines and fees, or legal financial obligations, on people convicted of felonies is riddled with inequalities and is hindering individuals from rejoining society, according to a report prepared for a state commission by University of Washington researchers.

The report for the Washington State Minority and Justice Commission based on data from all 3,366 Washington State Superior Court cases decided during the first two months of 2004, shows:
  • Hispanic defendants are assessed significantly higher fee and fines than whites.

  • Individuals convicted in trials are assessed significantly higher fees and fines than those who plead guilty.

  • Males are assessed higher fees and fines than women.

  • Assessment of fees and fines varies by jurisdiction and the data indicate that defendants with similar criminal histories and charges may accrue very different debt amounts depending upon where they are convicted.

  • Drug convictions result in significantly higher fees and fines than convictions involving violent charges.
The report was prepared by two UW Sociology professors, Katherine Beckett and Alexes Harris.
The UW researchers said their research suggests that imposition of these penalties can have far-reaching effects.

"Placing these financial obligations on largely poor people is counterproductive and is a barrier to successful reentry into society," said Harris. * * *

She and Beckett noted that the majority of felons have difficulty finding decent housing and employment because of their criminal records, and can be trapped in a cycle of poverty that also affects their spouses and children. Slightly more than half of those interviewed were living on incomes that fell below the federal poverty line. Lack of employment also hinders their ability to pay legal financial obligations, putting them at risk for being re-arrested because they have not paid these fees and fines. Some felons become discouraged and live on the margins of society while others return to criminal activity.

While the report noted higher fines and fee imposed on Latinos compared to whites, there was no significant difference in those given to blacks compared to whites. Because of the small number of Asian-Americans, Native Americans and Pacific Islanders in the sample of cases, no meaningful conclusions could be drawn about those groups.

The report recommends reforms calling for:
  • Placing a moratorium on the assessment and collection of such fines and fees, other than restitution and a currently mandatory $500 victim penalty assessment fee, until concerns raised by the report are addressed. * * *

  • Allowing poor defendants to pay their obligations through community service and services to people directly harmed by their prior criminal behavior.

  • Adoption of legislation that automatically restores the civil rights, including voting rights, of Washington residents with a felony conviction when they complete their jail or prison sentence.
The full report is Katherine Beckett, Alexes Harris & Heather Evans, The Assessment and Consequences of Legal Financial Obligations in Washington State (Aug. 2008).

Although the report appeared six or seven months ago, it apparently didn't get any coverage before last week. Press coverage:
  • State courts unfair to men, minorities, UW study alleges, Seattle Times, Feb. 25, 2009.
    Beckett and Harris turned over their study to the commission in August, but the UW released the study to the public on Tuesday. It's unclear why the report wasn't released directly by the commission. [It is on the commission's website.] Officials with the commission didn't return calls for comment on Tuesday.

    Beckett believes the study, which also includes interviews with defense attorneys, county clerk staff and convicted criminals, may finally show state and local officials the evidence they need to support a systematic overhaul.

    King County Prosecutor Dan Satterberg said he has little sympathy for the disparities cited in the report. He believes fines are a good idea because they "hit people where it hurts."

  • Report finds inequalities in Wash. criminal fines, Seattle P-I, Feb. 24, 2009.
    The researchers first completed the report last fall for the state Minority and Justice Commission, and the university released it to reporters on Tuesday, as the Legislature weighs three bills that concern the penalties.

Videos in Supreme Court

Adam Liptak, Supreme Court Enters the YouTube Era, March 2, 2009:

The first citation in a petition filed with the court last month, for instance, was not to an affidavit or a legal precedent but rather to a YouTube video link. The video shows what is either appalling police brutality or a measured response to an arrested man’s intransigence — you be the judge.

Such evidence vérité has the potential to unsettle the way appellate judges do their work, according to a new study in The Harvard Law Review. If Supreme Court justices can see for themselves what happened in a case, the study suggests, they may be less inclined to defer to the factual findings of jurors and to the conclusions of lower-court judges.
The law review article is Dan M. Kahan, David A. Hoffman & Donald Braman, Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 Harv. L. Rev. 837 (2009). The abstract:
This Article accepts the unusual invitation to "see for yourself" issued by the Supreme Court in Scott v. Harris, 127 S. Ct. 1769 (2007). Scott held that a police officer did not violate the Fourth Amendment when he deliberately rammed his car into that of a fleeing motorist who refused to pull over for speeding and instead sought to evade the police in a high-speed chase. The majority did not attempt to rebut the arguments of the single Justice who disagreed with its conclusion that "no reasonable juror" could find that the fleeing driver did not pose a deadly risk to the public. Instead, the Court uploaded to its website a video of the chase, filmed from inside the pursuing police cruisers, and invited members of the public to make up their own minds after viewing it. We showed the video to a diverse sample of 1350 Americans. Overall, a majority agreed with the Court’s resolution of the key issues, but within the sample there were sharp differences of opinion along cultural, ideological, and other lines. We attribute these divisions to the psychological disposition of individuals to resolve disputed facts in a manner supportive of their group identities. The Article also addresses the normative significance of these findings. The result in the case, we argue, might be defensible, but the Court’s reasoning was not. Its insistence that there was only one "reasonable" view of the facts itself reflected a form of bias — cognitive illiberalism — that consists in the failure to recognize the connection between perceptions of societal risk and contested visions of the ideal society. When courts fail to take steps to counteract that bias, they needlessly invest the law with culturally partisan overtones that detract from the law’s legitimacy.
Thanks: Alysha Yagoda.

Monday, March 2, 2009

Beating caught on police video

A King County Sheriff's deputy is being prosecuted for misdemeanor assault after he apparently beat a teenage girl he was putting in a holding cell. Beating caught on police video, Seattle P-I, Feb. 27, 2009. The P-I obtained the video through a public records request, over the objection of the deputy's attorneys:

"We had argued strenuously that the videotape released to the media this morning not be released because it does not tell the whole story of the incident," attorney Anne Bremner said in a statement.

"As we argued to the judge, it will inflame public opinion and will severely impact the deputy's right to a fair trial."
The article mentions a recent federal trial in which another deputy, Brian Bonnar, was acquitted of civil rights violations. Bonnar was represented by David Allen and Todd Maybrown, who is also a UW Trial Ad instructor.

Sunday, March 1, 2009

Curtis Thompson Trials

After serving 18 years for 4 rapes, Curtis Thompson returned to Seattle and committed more crimes -- rape and, allegedly, murder. His trials have spanned a few years, as he has been evaluated for competency. A trial with such a volatile defendant presents special challenges. Here are highlights, in headlines and a few article excerpts:

Deputing prosecutor Scott O'Toole is also a UW Trial Ad instructor.

Cruelty laws apply to livestock, lawsuit says

Cruelty laws apply to livestock, lawsuit says, Seattle P-I, Feb. 20, 2009:

In the suit filed earlier this month by the Northwest Animal Rights Network, the activists aim, at a minimum, to limit the manner in which meat and dairy producers treat their livestock, said Adam Karp, a Bellingham attorney representing NARN.

Under state law, animal cruelty can be charged as a felony. But the law exempts livestock handlers from prosecution so long as their actions are in line with "customary animal husbandry practices."

That standard, Karp argued, gives the industry far too great a role in determining what is and isn't humane treatment. Karp alleged that many practices considered "customary" by meat, milk and egg producers are unduly and unnecessarily cruel.
Karp has taught Animal Law at both the UW and SU.

Former pharmacist sentenced to year in prison

A grocery store pharmacist started collecting customers' leftover medications for a charity. When the charity (which had been operating illegally, by the way) stopped picking up, he got the bright idea of selling the old meds to customers and pocketing the customers' copays. He pleaded guilty to misbranding drugs and deceptively acquiring a controlled substance. HeraldNet: Former pharmacist sentenced to year in prison, Everett Herald, Feb. 28, 2009.

Ronald Friedman, the assistant U.S. attorney who handled the prosecuting, has been a Trial Ad instructor at the UW.

See also Guilty plea in reselling of store drugs, Seattle P-I, Oct. 31, 2008. (Grammar geek digression: This headline had the subhead: "pharmacist filled orders, pockets." That, I believe, is a zeugma. Playing a word game at my boss's house, we came across that word and didn't know what it meant. The dictionary on my Mac has this for zeugma: "a figure of speech in which a word applies to two others in different senses (e.g., John and his license expired last week) or to two others of which it semantically suits only one (e.g., with weeping eyes and hearts). The example we found that day was "He took his hat and his leave.")

Rescuing legal aid

An op ed piece by a law professor and former legal aid lawyer: Clare Pastore, Rescuing legal aid - Los Angeles Times, Feb. 23, 2009:

Every day, Americans without access to legal counsel unnecessarily lose homes, jobs, retirement benefits, healthcare and custody of their children. This is because in America, we have not yet recognized a right to counsel in civil cases, except in a tiny number of narrow areas. Indigent clients with the law on their side often find themselves losing to well-funded opponents simply because they have no means of fighting back.

* * *

In the end, the cost of providing counsel must be balanced against the hidden costs of not providing representation: the societal costs of displacing a frail senior, for example, can dwarf those of providing legal help to avoid the eviction.
Thanks: Michele Storms.