Defendant Has Right to Be Present During All Jury Selection

A defendant is headed for a second trial for first-degree murder after his first conviction was reversed because he had not been present for all aspects of jury selection. Biker convicted in ‘no-body’ Ravensdale killing headed for new trial, SeattlePI.com, Feb. 26, 2012.

The Court of Appeals case is State v. Price, No. 63056-3-I, Justia link, Findlaw link (July 25, 2011). (The court also addresses a Rule 404(b) issue, saying that the trial judge was within her discretion to admit evidence of the defendant's membership in a biker gang.) The Court of Appeals applies a recent Washington Supreme Court case that examines the right to be present for jury selection under both the federal and the state constitutions. State v. Irby, 170 Wn. 2d 874, Google Scholar link (2011).

Juries for South Korea

UW grad Steven Kim ('00) has the combination of trial experience and fluency in Korean needed to train Korean officials in the how the U.S. jury system works. King County prosecutor to help South Korea establish jury system, Seattle Times, Jan. 30, 2012. (This article is a few weeks old, but I missed it until Seattle U's law library blogged about it. Nobody can keep up with everything!)

Judge again rebukes lawyers who want him to step down

Defense attorneys for the men accused of killing a corrections officer in Monroe asked the judge to step down because of his allegedly flawed understanding of the law and improper behavior in an earlier case. That's only part of the friction between the judge and the lawyers. Judge again rebukes lawyers who want him to step down from Byron Scherf’s trial, Herald (Everett), Feb. 11, 2012.

Jurors Excused Because of Views Toward Immigrants

In the Franklin County trial of a Mexican for allegedly killing his girlfriend, Judge excuses some jurors because of opinion about immigrants, Tri-City Herald, Feb. 14, 2012.

Public Defender Benefits (King County), Staffing (Skagit County)

Two public defender news items:

A recent class action lawsuit resulted in a ruling that King County public defenders, although termed contractors, are basically employees and should be covered by the state's pension plan. Dolan v. King County, 172 Wn.2d 299, legalwa.org link (2011). See State Supreme Court Rules Public Defenders Deserve Pensions; Seattle Times Editorial Board Embarrasses Itself, Seattle Weekly, Aug. 23, 2011. Now a bill (EHB 2771) seeks to limit the reach of the ruling. Kevin Dolan Lawsuit Over State Benefits for Public Defenders Sparks Controversial Bill, Seattle Weekly, Feb. 21, 2012.

The ACLU of Washington represents three defendants in Skagit County who claim that the public defense provided there is inadequate. The ACLU reports Court Hears Lawsuit over Public Defense System that Fails to Represent Poor People, Feb. 14, 2012. See also Public Defense Almost Non-Existent in Burlington, Mount Vernon, Claims Lawsuit, Seattle Weekly, Feb. 16, 2012.  The case is Wilbur v. City of Mount Vernon, No. C11-01100 (W.D. Wash.). The ACLU has posted two of the plaintiffs' motions.

Lawyer Tries to Use Facebook Against Opposing Counsel

Lots of people talk about using Facebook, Twitter, et al. to learn about parties and jurors. This blog posts discusses using social media against a lawyer: When Opposing Counsel Uses Your Facebook Friendship Against You, Legal Blog Watch, Feb. 8, 2012. A lawyer at a mediation said that the other lawyer wasn't taking the mediation seriously. His evidence? The lawyer's Facebook page showed that he'd had a party on his birthday. A couple of comments suggest that the lawyer who tried to make this point was just a jerk and his attack would probably hurt him more than it hurt the guy who had a birthday party.

The blog post also discusses a more professional use of social media: checking to see whether a lawyer has written a blog post expressing a legal view opposite to what he or she is now arguing (just as, pre-blogs, one might look up lawyers' bar journal articles and CLE publications).

Plaintiff Bias in Philadelphia Courts?

A law professor has conducted a study finding that Philadelphia courts are more attractive to plaintiffs than other courts and hence many plaintiffs with no connection to the area file suit there. Study shows plaintiff bias in Philly courts, LegalNewsline.com, Feb. 6, 2012. A plaintiff's lawyer interviewed for LegalNewsline's article cites other explanations for the data – for instance, many asbestos cases are filed in Philadelphia because workers were exposed at the Philadelphia Navy Shipyard during World War II.

The study is by Prof. Joshua D. Wright (George Mason), who is also the Director of Research for the International Center for Law and Economics (ICLE), which published the study. The report, originally released in fall 2011, is available with a supplemental appendix released this month here.

Pennsylvania House Bill 1976 would address the practice of choosing Philadelphia courts because of their perceived openness to plaintiffs' claims. Pa. lawmaker behind 'venue shopping' bill discusses legislation, LegalNewsline.com, Dec. 5, 2011.

Trial Lawyer Litigation Tip: The Importance of Listening

Rob Sullivan, a lawyer in Kansas City, MO, offers this Trial Lawyer Litigation Tip: The Importance of Listening, Lawyerology!, Feb. 17, 2012.

Listening is a key component to the art of communication and persuasion. Nevertheless, the majority of the time I observe lawyers questioning deponents, they are hardly listening at all to what the deponent is saying.

Suing for Privacy Invasion Would Cost Privacy

Plaintiffs in a class action against Facebook for using their names and pictures to advertise to their friends now want not to be the class representatives: they realize how intrusive discovery can be.

"I did not expect that every single post I had ever made on Facebook would be potentially rehashed in an interrogatory responses [sic] and deposition," [the plaintiff] said in court documents filed Monday. "Answering questions regarding my private posts or my decisions to click 'Like' buttons on certain pages or posts would subject me to embarrassment and invade my privacy."

Facebook Privacy Plaintiff Wants Out of Class Action, Recorder, Feb. 16, 2012 (Law.com). How can counsel prepare their clients for litigation experience?

Hat tip: Lawyerology!

Pro Se Defendants Questioning Victims

One day in 2010, a woman who was to be questioned by the man who had abused her through her childhood did not return to the courtroom after a recess. Instead she kept climbing the courthouse stairs until she emerged on the roof, pondering whether to jump. Q13 broadcast an interview with her on Feb. 8. The next night, the station reported on a proposed court rule amendment designed to protect victims from abusive questioning by defendants representing themselves pro se.

The proposal would amend CrR 3.1 - Right to and Assignment of Lawyer by adding a new subsection:

(g) Pro Se Defendants  

(1) When a defendant has waived his or her right to counsel, the court, on a motion by the prosecuting attorney, on its own initiative, or at the request of a witness, and for good cause shown, may restrict the manner and means by which a defendant questions a witness.  

(2) Good cause is shown when the court finds by substantial evidence, in a hearing conducted outside the presence of the jury, that requiring the witness to be questioned by the defendant without restriction will cause that individual to suffer serious emotional or mental distress that will prevent the witness from reasonably communicating at the trial.  

(3) The court shall state on the record the basis for good cause.  

(4) When the court does not permit the pro se defendant to question a witness without restriction, the court may impose reasonable procedures including but not limited to:    

(i) requiring questioning by the defendant of the witness using remote audio-visual means when authorized by law;   

(ii) allowing stand-by counsel to question the witness with the agreement of the defendant,.  

Nothing herein precludes a court from using other means to control the courtroom including but not limited to prohibiting the defendant from approaching the witness during questioning and requiring the defendant to remain seated during questioning of the witness.

The Q13 story emphasized the clause in (4)(ii) that would have stand-by counsel question the witness, but only "with the agreement of the defendant."

One person who has commented on the proposal was on the jury in the case featured by Q13; her letter outlines ways the defendant's questioning was abusive of his victims.

The letter from the Washington Association of Prosecuting Attorneys generally favors the amendment, with alternative language.

The Washington State Bar Association's letter opposes the change. Stephen R. Crossland, WSBA's president, argues that at best the change is unnecessary, because trial judges "already have the ability to control questioning of a witness by a pro se defendant, subject to constitutional limitations in light of the facts and circumstances of each case." At worst, he says, the rule – which does not mention constitutional protections – might lead judges to disregard them.

Prosecutor May Disclose Cop's Records from Elsewhere

After he accidentally became aware of a dispute between an officer (in Quincy, WA) and a prior employer (a sheriff's office in California), the Grant County prosecutor determined that the proceedings showed a record of dishonesty and hence should be disclosed to defense counsel in cases where the officer was a witness. The officer sued. On appeal, Division III upheld the superior court's decision to allow disclosure. Doyle v. Lee, No. 29212-6-III (Feb. 2, 2012), Washington Courts link.

See Prosecutor can give information about Quincy officer, Columbia Basin Herald, Feb. 8, 2012.