A Visit to the Supreme Court

Here is a guest post by Maureen Howard: We all know how brilliant our own Professor Eric Schnapper is and realize that among his many, many accomplishments are two USSC "wins" this Term, but I write to report that you haven’t lived until you’ve see him stand and argue before the Court in person. I was fortunate to enjoy this honor yesterday when he argued Borough of Duryea v. Guarnieri, dealing with the protections afforded a government employee under the Petition Clause of the First Amendment. Professor Schnapper’s argument was clear and compelling, and he masterfully fielded questions from the justices. As a teacher of advocacy, I was mightily impressed. As a colleague, I was so very proud. It was also a memorable day in the Court because prior to argument, Justice Breyer read a summary of the Kasten decision handed down [March 22], which was the second of Professor Schnapper’s "wins" of the term. Joining Professor Schnapper at respondent’s counsel table sat the lawyer who had (unsuccessfully) argued the other side of the Kasten case, an alliance I am sure was not lost on the justices. A personal memorable moment for me occurred just prior to argument when Professor Schnapper moved from the floor for my admission to the Court. Chief Justice Roberts granted the motion, welcomed me to the Court, and directed the clerk to administer the oath. Photos: Eric Schnapper from University of Washington School of Law; Supreme Court bench from United States Supreme Court.

Symposium on Prosecutorial Disclosure Duties

Last June, the Cardozo Law Review had a symposium, New Perspectives on Brady and Other Disclosure Obligations: What Really Works? (vol. 31, no. 6):

Foreword: New Perspectives on Brady and Other Disclosure Obligations: What Really Works?
Ellen Yaroshefsky 1943

New Perspectives on Brady and Other Disclosure Obligations:
Report of the Working Groups on Best Practices 1961

Voices From the Field: An Inter-Professional Approach to Managing Critical Information
Speeches of the Symposium 2037

Organizational Guidelines for the Prosecutor's Office
Rachel E. Barkow 2089

Talking About Prosecutors
Alafair S. Burke 2119

Can an Ethical Person Be an Ethical Prosecutor? A Social Cognitive Approach to Systemic Reform
Lawton P. Cummings 2139

Beyond Training Prosecutors About Their Disclosure Obligations: Can Prosecutors' Offices Learn from Their Lawyers' Mistakes?
Bruce A. Green 2161

Emotionally Charged: The Prosecutorial Charging Decision and the Innocence Revolution
Daniel S. Medwed 2187

Professional and Conviction Integrity Programs: Why We Need Them, Why They Will Work, and Models for Creating Them
Barry Scheck 2215

I learned of the symposium from a Penn State law professor who gives it this endorsement:

The 2010 Cardozo Symposium entitled “New Perspectives on Brady and Other Disclosure Obligations: What Really Works” is important reading for all lawyers – regardless of specialty or country – because we all have an interest in participating in a legal system that has a robust rule of law. Corruption or even misunderstandings about prosecutor conduct, including disclosure duties, can undermine public confidence and also the confidence of the legal profession in our legal system.
. . .
Even if you do not study criminal justice issues, you should read the Foreword in order to develop a better appreciation of issues that are critical to the rule of law and to see additional examples of how systemic, ex-ante approaches . . . can be used when designing legal systems and rules.

Laurel Terry, Academics Making a Difference: Prosecutor Disclosure Obligations in Criminal Cases, Jotwell, March 24, 2011.

Some of these issues were also discussed in the Washington Law Review two years ago:

• Judge Robert S. Lasnik and David Boerner, The Legacy of Norm Maleng, 84 Wash. L. Rev. 3 (2009) Full Article
• Hon. Patrick Fitzgerald, Thoughts on the Ethical Culture of a Prosecutor's Office, 84 Wash. L. Rev. 11 (2009)
• Daniel S. Medwed, The Prosecutor as Minister of Justice: Preaching to the Unconverted from the Post-Conviction Pulpit, 84 Wash. L. Rev. 35 (2009) Full Article

Poor Trial Ad Skills Lead to Suspension

Calif. Suspends Lawyer Who Botched Gang-Related Shooting Case, Orders Arbitration Over Disputed Fee - ABA Journal, March 18, 2011. The disciplinary proceeding included three counts (with subcounts). The list right out of a Trial Ad syllabus is from Count One:

[R]espondent failed to perform with competence in the criminal case by:

• Performing little, if any, pre-trial case development, planning, or investigation on behalf of Rios.
• Failing to adequately argue motions in limine.
• Failing to make a coherent opening statement.
• Repeatedly failing to ask admissible and relevant questions.
• Repeatedly failing to assert proper objections.
• Repeatedly failing to move to exclude improper testimony.
• Failing to advance a defense theory.
• Repeatedly failing to adequately cross-examine witnesses.
• Failing to properly handle expert witness testimony on gang-related matters.
• Repeatedly failing to properly impeach witnesses’ testimony.
• Failing to adequately prepare Rios for direct and cross examination.
• Repeatedly failing to present evidence or elicit facts on behalf of Rios.
• Failing to diligently perform the services for which he was hire

In re Harlan R. Antler, STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING (Sept. 20, 2010).

Senior judges keep 9th Circuit courthouses open

With vacant judgeships and mounting caseloads, the ninth circuit relies on its senior judges. Carol J. Williams, Senior Judges Keep 9th Circuit Courthouses Open, L.A. Times, March 14, 2011. Featured is 88-year-old Judge Betty Fletcher (UW Law class of 1956) who carries a full caseload.

Mark Twain on Ability to Judge Expressions

A bit of my leisure reading reminded me of trial ad.

After visiting "The Last Supper"—and a lot of other famous European art—Mark Twain riffed on people's ability (or inability) to judge the meaning behind expressions.

It vexes me to hear people talk so glibly of "feeling," "expression," "tone," and those other easily acquired and inexpensive technicalities of art that make such a fine show in conversations concerning pictures. There is not one man in seventy-five hundred that can tell what a pictured face is intended to express. There is not one man in five hundred that can go into a court-room and be sure that he will not mistake some harmless innocent of a juryman for the black-hearted assassin on trial. Yet such people talk of "character" and presume to interpret "expression" in pictures. There is an old story that Matthews, the actor, was once lauding the ability of the human face to express the passions and emotions hidden in the breast. He said the countenance could disclose what was passing in the hear plainer than the tongue could.

"Now," he said, "observe my face—what does it express?"

"Despair!"

"Bah, it expresses peaceful resignation! What does this express?"

"Rage!"

"Stuff! It means terror! This!"

"Imbecility!"

"Fool! It is smothered ferocity! Now this!"

"Joy!"

"Oh, perdition! Any ass can see it means insanity!"

Expression! People coolly pretend to read it who would think themselves presumptuous if they pretended to interpret the hieroglyphics on the obelisks of Luxor—yet they are fully as competent to do the one thing as the other.

Mark Twain, Innocents Abroad, ch. 19.

What do you think? Did Twain have it right? If most people are this bad at reading faces, why do we put so much faith in a juror deciding that a witness's fidgeting and stammering means lying rather than sincerity or uncertainty rather than shyness?

Graphic: picture of young Mark Twain lifted from America.gov, Mark Twain Abroad.

Cross-Examination Handbook

The other side puts a witness on the stand, and the jury the hears a selection of facts and impressions—generally the selection that the other side wants it to hear. Now you get the wonderful opportunity to cross-examine the witness. At the end of your cross, you'd like the other side's case to seem weaker and your own to seem stronger, of course, but how do you do that?

A new textbook offers guidance. Cross-Examination Handbook: Persuasion, Strategies and Techniques is by our neighbors Ronald H. Clark (Distinguished Practitioner in residence at Seattle U) and William S. Bailey (partner in Fury Bailey and part-time faculty at Seattle U and the UW) with George R. Dekle (professor at University of Florida).

A book that covers all of trial advocacy can only devote a chapter or two to cross-examination, but this one is all cross, all the time. (Bailey argues for a whole course on cross in this post.) The authors break cross-examination down into understandable pieces. The text is very accessible, even conversational in places.

How do you plan a cross? It might be obvious, but I hadn't really thought about starting with the closing argument: if I want to say ___ in closing, what do I need to get the witness to say on cross now?

The book discusses the difference between cross-examination when you are trying to get the witness to concede facts that will bolster your case and cross when you are trying to discredit the witness. And it offers tips for doing each.

You might use many techniques with one witness -- seeking factual concessions AND impeaching testimony on one point, for instance -- and this book also gives some tips for structuring your cross overall.

There are chapter previews and review lists with text boxes to help you study and retain the information. Several chapters illustrate points with two fictitious cases—a civil wrongful death case and a criminal armed robbery case—so you can see how the different cross techniques can be used with one set of facts and even one witness.

The authors also draw examples from real-life cases. Some are from history (Abraham Lincoln's legendary almanac cross-examination (more on that on the authors' blog) and Clarence Darrow's cross of William Jennings Bryan in the Scopes trial. Others are much more recent. Seattle sports fans might appreciate the examples from the cases involving the Sonics' leaving Seattle and Huskies football coach Rick Neuheisel being fired for gambling (March Madness anyone?). (Maybe these bits of Seattle sports history are still painful to some fans.)

It's been many, many years since I took Evidence. I'd find it very helpful to go over the list of common objections to cross (pp. 344-45) and the summaries of the evidence and ethics rules they stem from (pp. 346-54), as well as the advice about tactics for meeting objections (pp. 354-55).

For classroom use—or even dedicated self-education—there are lots of exercises to try, with supporting documents on a CD-ROM that's included with the book.

I'm a librarian, not a trial lawyer. For a practitioner's perspective, see this warm review on MS Litigation Review and Commentary.

The book has a website and a companion blog (Cross-Examination Blog).

The law library's copy hasn't been cataloged yet—I've had it in my living room so I could write this post—but it will be soon. It will be included in this catalog record.

"Voir Google"?

Interesting article gives specific examples of attorneys weighing jurors based on online activity -- as well as judges' reactions to the practice. Internet v. Courts: Googling for the perfect juror, Reuters Legal, Feb. 17, 2011.

One 24-year-old was excluded from a jury because of "antibusiness sentiments" in blog posts.

[The excluded juror], for his part, said in an interview that while he understands why ConAgra's lawyers viewed his online activities as evidence of bias, he doesn't believe they should have been taken so seriously. "This is the Internet," he said. "It's a different realm. It's like a playground."

Thanks: Mike Meredith.

Jury Nullification Advocate With Court Pulpit Charged - NYTimes.com

A former chemistry professor is charged with jury tampering because of his activity handing out brochures outside courthouses, telling potential jurors that they have the right to ignore the law if they disagree with it. Jury Nullification Advocate With Court Pulpit Charged, NYTimes.com, Feb. 25, 2011.

Thanks: Maureen Howard.

Using the Internet as a Tool for Cross-Examination

An article offers tips for Using the Internet as a Tool for Cross-Examination, Law Technology News (N.Y.L.J.), March 1, 2011. I've seen a number of articles about using information found in, say, Facebook to impeach a witness. This article goes further in offering two sample series of questions, e.g.,

Q: Can we agree your recovery was a good one?

A: I wouldn't say that.

Q: You've certainly participated in some challenging activities, haven't you?

A: What do you mean?

Q: Like skiing, true?

A: I tried, but was unable to ski.

* * *

Eventually, the cross-examiner sets the trap and undoes the witness with a YouTube video, perhaps like this one:



(I have no reason to believe the skier in this video has ever been a plaintiff in a personal injury case or, if so, misled the jury about the extent of his injuries. Looks pretty good, doesn't he?)