High-Level DOJ Mistakes - Recent and Historic

BLT, the Blog of the Legal Times, today discusses mistakes made at the highest levels of the Justice Department -- the recent politicization of hiring within the department and the historic injustice of defending of the removal of 120,000 Japanese Americans and Japanese residents from their homes during World War II.

•  Former AG Gonzales 'Disappointed' in His Own Conduct in DOJ Hiring. In a deposition for an employment case against DOJ, Alberto Gonzales "said for the first time that "I am disappointed that I didn't do things differently" to stop the politicization of the system of hiring career Justice Department attorneys through its honors program during his time in office."
• In DOJ Speech, Katyal Addresses Japanese Internment Cases. Neal Katyal, Acting Solicitor General, criticized the actions of the solicitor general during World War II who urged the Supreme Court to uphold Japanese American internment, failing to disclose a report from the Office of Naval Intelligence that undercut the rationale for the internment. See also yesterday's post, Katyal Speaks of SG 'Mistakes' in Japanese Internment Cases (linking to a post by Katyal on DOJ's blog).

Personal Jurisdiction Over Foreign Law Firm

BLT, The Blog of Legal Times reports Judge Rules Swedish Law Firm Can Be Named In Local Malpractice Suit, May 24, 2011 "In a 120-page opinion . . ., a Washington federal judge affirmed that a foreign-based law firm with few physical ties to Washington and limited involvement in an underlying case could still be the target of a legal malpractice suit in Washington based on its communications and visits over the years." The plaintiff is suing both a DC firm and the Swedish firm for malpractice in their handling his his patent infringement cases.

Jury Selection and the Coase Theorem

The Coase Theorem says that parties will negotiate to an efficient distribution of goods—if they have perfect information and there are no transaction costs. Dru Stevenson takes this basic premise about an idealized economic world and uses it to frame his observations of jury selection, a phase of litigation where negotiation is typically absent: the rules and traditions of voir dire make the transactions costs very high.

Dru Stevenson, Jury Selection and the Coase Theorem (March 4, 2011), available at http://ssrn.com/abstract=1777278.

Not really into law and economics? The article is still worth reading for Stevenson's comments on jury selection. For instance:

the peremptory strike system actually maximizes uncertainty about the jury, rather than neutrality or fairness, by allowing lawyers on each side to deselect jurors who seem favorable to their opponent. In other words, we merely remove those whose biases seem most evident. Given the relationship between predictability and settlement, this means the peremptory strike system has a temporary chilling effect on settlements immediately following the voir dire segment of the litigation.

Id. at 6.

If you'd like to read more about the Coase Theorem—a lot more—see Steven G. Medema & Richard O. Zerbe, Jr., The Coase Theorem (1999), in Encyclopedia of Law and Economics. This huge, scholarly encyclopedia is on the web, free! By the way, Dick Zerbe, from the UW's Evans School of Public Affairs is an adjunct professor in the law school.

If you think that it would be worthwhile to know a little more about economics and you need an introduction (or a refresher), consider Grady Klein & Yoram Bauman, The Cartoon Introduction to Economics. (This excerpt has a little about the Coase Theorem on page 182.) By the way, Yoram Bauman teaches in the UW's Program on the Environment.

Judging in Black and White

Do judges vary in their treatment of race?

That's the question investigated by three researchers (David S. Abrams, Marianne Bertrand, and Sendhil Mullainathan) who studied thousands of felony cases in Cook County, IL, initiated between 1995 and 2001. Cases were assigned to judges randomly (and the researchers did some statistical checking to confirm that).

Controlling for a wide range of variables, it turned out that race did make a difference across all judges, and, with some judges it made a very big difference. Black defendanats were more likely to be incarcerated than non-Hispanic white defendants. (This paper does not address Hispanic defendants.)

Comparable defendants had different likelihoods of incarceration depending on which judge they were assigned.

With a judge at the lenient end of the spectrum,
a black male defendant had a 45% chance of incarceration
while a white male defendant had at 35% chance of incarceration.



Facing a judge at the harsh end of the spectrum, a black male
defendant had a 68% chance of incarceration, compared with
his white counterpart's 40% chance.

There were also differences in the length of sentences imposed (blacks got longer sentences) but these differences weren't statistically significant.

The researchers did not find significant differences based on race of the judge or whether the judge had experience as a public defender.

David S. Abrams, Marianne Bertrand & Sendhil Mullainathan, Do Judges Vary in Their Treatment of Race? (Univ. of Pa. Law Sch. Inst. for Law & Econ. Research Paper No. 11-07), available at http://ssrn.com/abstract=1800840, J. Legal Studies (forthcoming). The examples about the black and white defendants are drawn from pp. 22-23.

By the way, Cook County gives a very large sample to study. "Cook County is the largest unified court system in the country, with over 2.4 million cases processed per year in both civil and criminal courts." (p. 8). For comparison, consider that all of Washington's superior courts handled a total of 752,082 cases in 2010. Caseloads of the Courts of Washington: Total Proceedings by Type of Case - 2010 Annual Report at 2.

Jury Appreciation Month

According to the Administrative Office of the U.S. Courts, May is Jury Appreciation Month.

Although many people consider jury service on a par with waiting at the DMV, jurors are essential to our judicial processes. The federal Courts website's Educational Resources includes several items about jury service, including jury service basics and two videos on jury service. One of the videos--aimed at high school students--features two judges from the U.S. District Court for the Western District of Washington, Judge Richard Jones and Chief Judge Robert Lasnik.

If you are looking for books in the Gallagher Law Library on juries and jury service, try these subjects: Jury--United States and Jury selection--United States.

The National Center for State Courts website includes many sources on Jury Selection, Trial & Deliberations, including a link to its Center for Jury Studies.

Whether you have served on a jury, intend to practice law before a jury, or care about our fundamental freedoms, take a minute to appreciate jurors and juries.

This post, by Cheryl Nyberg, originally appeared in Gallagher Blogs. Reposted with permission.

Death Penalty Mitigation Specialist; Death Penalty Stories

Jeffrey Toobin profiles Danalynn Recer, a lawyer who specializes in death penalty mitigation in Texas: The Mitigator, The New Yorker, May 9, 2011, at 32.

A greater emphasis on mitigation evidence is one factor in the decline of death sentences in recent years:

The expectations for capital defense practice have also changed over the past twenty years, and it has become less common (and less acceptable) for capital defense lawyers to devote their energies primarily or exclusively to the guilt-innocence phase of capital trials. Capital trial lawyers are more aware of the importance of developing and presenting mitigating evidence and of the need to embrace trial strategies that weave the defense mitigation theory into the guilt-innocence phase of the proceedings. The emergence of "mitigation specialists" as a distinct class of capital trial participants, who coordinate the investigation and presentation of a defendant's family, social, psychological and psychiatric history, represents a marked departure from capital litigation in the immediate post-Furman era; during that period, "generalist" criminal defense lawyers would try capital cases without sufficient attention to the distinctive need to focus their energies toward the fundamental moral question of life-or-death rather than merely to challenge the state's burden of proof on the underlying offense. The changes in expectations regarding the duties of capital trial counsel are reflected in the Court's recent decisions finding ineffective assistance of counsel . . ..

John H. Blume & Jordan M. Steiker, Introduction, in Death Penalty Stories 10 (John H. Blume & Jordan M. Steiker eds., 2009).

Death Penalty Stories  is a fascinating collection of thoughtful and research-packed essays on landmark cases in U.S. death penalty law. Chapters are:

• Deborah Denno, When Willie Francis Died: The "Disturbing" Story Behind One of the Eighth Amendment's Most Enduring Standards of Risk
• Carol S. Steiker, Furman v. Georgia: Not an End, but a Beginning 
• Hugo Adam Bedau, Gregg v. Georgia and Allied Cases: Protecting the Death Penalty from Abolition
• Sheri Lynn Johnson, Coker v. Georgia: Of Rape, Race, and Burying the Past
• John H. Blume, Gilmore v. Utah: The Persistent Problem of "Volunteers" 
• David C. Baldus et al., McCleskey v. Kemp: Denial Avoidance, and the Legitimization of Racial Discrimination in the Administration of the Death Penalty
• Jordan M. Steiker, Penry v. Lynaugh: The Hazards of Predicting the Future
• Austin Sarat, The Story of Payne v. Tennessee: Victims Triumphant 
• David Bruck, Simmons v. South Carolina and the Myth of Early Release
• David R. Dow, Bell v. Cone: The Fatal Consequences of Incomplete Failure 
• Scott W. Howe, Roper v. Simmons: Abolishing the Death Penalty for Juvenile Offenders in the Wake of International Consensus
• Joseph L. Hoffmann,  House v. Bell and the Death of Innocence

I recommend it highly.