Mistrial After Everett Juror Does Online Research

A child sexual abuse case resulted in a mistrial after a juror went online to research the  concept of witness coaching and told his fellow jurors. The  prosecutor didn't want to put  the six-year-old victim through a second trial, so reduced the charges to resolve the case. Juror’s ‘research’ forced mistrial in child rape case, Herald.net (Everett), Dec. 12, 2012

The end of  the  article briefly discusses a mistrial that resulted from a juror refusing to return to court after a break in deliberations.

TED Talk on Statistics

Here's another TED Talk:

Peter Donnelly, How Stats Fool Juries, TED Talks (July 2005, posted Nov. 2006).

TED Talk on Eyewitness Testimony

Forensic psychologist Scott Fraser discusses Why Eyewitnesses Get It Wrong, TED Talk (May 2012, posted Sept. 2012). He illustrates his points with slides showing the lighting conditions on the night of a shooting.

Race in the Criminal Justice System — Video from 9th Cir.

African Americans and other people of color are overrepresented in our nation's prisons compared with their numbers in the general population. A large number of factors are involved, including police practices, prosecution, and sentencing.

This year's Ninth Circuit Judicial Conference (a meeting of judges and court staff) included a 90-minute panel on the issue (Aug. 15, 2012). The panel, What Color is Justice: Racial Disparities in the Criminal Process, is available on YouTube.



The moderator, who introduces the topic, is former district judge Nancy Gertner, who now teaches at Harvard Law School. The other speakers are:

• Judge Ruben Castillo (D. N. Ill.), who was the first Hispanic judge on the Federal Sentencing Commission
• Prof. Sonja Starr, Univ. of Michigan School of Law, and
• Prof. Bryan Stephenson who teaches at NYU and also serves at the executive director of the Equal Justice Initiative, which he founded.

For more on this topic, see Bryan Stephenson's TED Talk, We Need to Talk About an Injustice (March 2012) and material cited in our guide, Race in the Criminal Justice System.

Skype Deposition and Confrontation Clause

An interesting post:

Few cases have the intersection of the Confrontation Clause, witness unavailability, chain of custody, and Skype. Williams v State is one such unpublished opinion from the Indiana Court of Appeals. . . .

Skyping with the Confrontation Clause, Bow Tie Law's Blog, Nov. 19, 2012.

Law & Order Success Rates

Here's a fun item for fans of the original Law & Order series: David Haglund, Katie Kilkenny, & Holly Allen, Which Law & Order Characters Did Their Jobs Best? The Answer in Five Graphs, Slate, Nov. 14, 2012.

Haven't you always wondered who got a higher percentage of convictions, Jack McCoy or Ben Stone?

Funding Needed to Keep Federal Civil Trials Running

Federal civil jury trials in the United States probably would grind to a halt if Congress fails to reach a budget deal and $600 billion in automatic spending cuts kick in next year, a leading federal judge said Tuesday.

The federal judiciary's share of the cuts would be more than $500 million if Congress does not reach a budget deal by year's end to prevent some $1.2 trillion in spending cuts and tax increases from kicking in next year, Chief Judge U.S. Circuit Court of Appeals for the District of Columbia said.

Judge: US civil trials at risk without budget deal, Seattlepi.com (AP), Sept. 11, 2012.

Yakima County increasing its focus on justice costs | Yakima Herald-Republic

Yakima County increasing its focus on justice costs, Yakima Herald-Republic, June 11, 2012.

A review panel—a federal magistrate judge, an attorney, and a businessperson—raised questions about the prosecutions:

While commissioners said they did not interpret the report as critical of departments, the panel did point to issues in the prosecutor's office, citing a rising number of trials while total felony filings have been declining. The report said Prosecutor Jim Hagarty should give his deputies more authority to settle cases.

The increasing number of jury trials is costing the county more money and a high acquittal rate suggests weaker cases are being taken to trial, the report said.

Restrictions on Disseminating Child Porn Include Pre-Trial Discovery

Ordinarily the prosecution gives copies of documentary evidence to the defense—but what happens when the crime is possession of child pornography so copying the evidence would be disseminating the pornography? See New child pornography law affects local case: New restrictions meant to protect young victims, Columbian (Vancouver, WA), June 11, 2012. The new law is 2012 Laws ch. 135, which responds to court decisions. The legislative findings state:

The decisions of the Washington supreme court in State v. Boyd, 160 W.2d 424, 158 P.3d 54 (2007), and State v. Grenning, 169 Wn.2d 47, 234 P.3d 169 (2010), require prosecutors to duplicate and distribute depictions of a minor engaged in sexually explicit conduct ("child pornography") as part of the discovery process in a criminal prosecution. The legislature finds that the importance of protecting children from repeat exploitation in child pornography is not being given sufficient weight under these decisions.

You can read the House and Senate bill reports linked from here. Supporters wanted to limit the victimization of children; opponents said that the new restrictions would make defense more costly and that defense attorneys already are aware of the damage that reproduction could cause and do what they can to protect the evidence.

Access to Court Records

Two recent stories concern access to court records:

Sunshine Committee

Senator Adam Kline recently resigned from the state's Sunshine Committee (a/k/a the Public Records Accountability Committee), citing concerns about privacy. State Sen. Adam Kline leaves ‘Sunshine’ board, Olympian, June 11, 2012.

The committee is reviewing the hundreds of exemptions to disclosure in our states Public Records Act. Kline says that the committee has become dominated by press representatives, which favor disclosure, and doesn't have enough privacy advocates.
The issue that sparked Kline's resignation involved juror questionnaires: The Freedom Foundation seeks access to them to find non-citizens and check whether they are registered to vote. The Freedom Foundation favors increased identification requirements for voters; Kline believes that the organization is trying to impede participation by likely Democratic voters. See Kline's statement; The Freedom Foundation's blog post.

Court Records
According to the state constitution and court rules, the public is supposed to have access to case files, with certain restrictions (e.g., Social Security numbers are kept private; files may be sealed under certain conditions). Reporters from the News Tribune set out to test how it works. They went to district and municipal courts—the courts where misdemeanors and small civil cases are handled—and, without saying they were reporters, asked to see recent misdemeanor files. In some courts, they were shown the files immediately, but in about half the courts in Pierce County they were given the runaround:

Some clerks said the cases were still “open” or “ongoing” and thus barred from public view. Some said only attorneys and defendants could view case records. Some said case files were confidential. Clerks in two courts – Sumner and Fircrest – insisted the only way to view case files was to pay for copies.  

Those answers were wrong. They contradict state rules that govern courts large and small. High-ranking legal leaders, including Barbara Madsen, chief justice of the state Supreme Court, said The News Tribune’s findings paint a picture that calls for correction and training.

Open courts, closed files: Hitting roadblocks in quest for public records, News Tribune (Tacoma), June 10, 2012.

Very Bad Deposition Technique

Here is a guest post by Grace Feldman:

Two attorneys from personal injury law firm Morgan & Morgan behaved so poorly during depositions that a judge disqualified both attorneys as well as the entire firm from representing plaintiffs in a class action suit. 

According to Judge Cecilia Altonaga's Order, the attorneys,  Richard Celler and Stacey Schulman chose Dunkin' Donuts for the site of depositions.  Celler would attend in t-shirts and shorts and would show Schulman pictures of male genitalia that he had drawn during the deposition. Celler and Schulman laughed at the drawings and said they described opposing counsel, Jason Coupal. During the deposition, Celler played Angry Birds and bragged about beating someone in Minnesota at the game.  Coupal complained to the court and the judge issued a disqualification ruling.  More details of the attorneys' egregious but hilarious misconduct can be found here and here.  

If you thought that playing Angry Birds or drawing pictures of male genitalia were appropriate ways to gain a "psychological advantage" over your opposition, you many want to check out some of the library's resources on depositions:

• The Effective Deposition: Techniques and Strategies that Work by David M. Malone, Peter T. Hoffman and Anthony J. Bocchino.  KF8900 .M34 2007 at the Reference Area.
• Depositions in a Nutshell by Albert J. Moore.  KF8900 .D485 2011 at the Reference Area.

If you are just interested in holding your depositions in a donut shop, you'll be interested to know that National Donut Day is rapidly approaching.  You may be able to celebrate by visiting the new Top Pot Doughnuts opening in Ballard which is expected to coincide with the holiday on June 1st!

Image Credit 1: LawActually
Image Credit 2: Top Pot Doughnuts

Need for Civil Legal Aid

Civil legal aid has suffered in the recession: more people need help, and funding is down. (One source of funding is IOLTA -- interest on lawyers' trust accounts. When interest rates are down, IOLTA is down too.) WSBA's support for different programs may be affected by the recent vote to cut dues. This article puts a human face on the problem: Chris Stein, Going It Alone: In civil court, fewer people are getting lawyers to help them navigate the system, Pacific Northwest Inlander, April 11, 2012.

 

Prosecutor Found to Have Commented on Case Using Alias

A New Orleans businessman being investigated by the local U.S. Attorney noticed that comments on the local newspaper's website seemed to show an insider's knowledge of the case. He hired a forensic linguist to analyze the comments, which were found to match the writing style of court filings from the prosecution. And now one of the prosecutors has admitted that he wrote the comments about the case (and others) using a pseudonym. 'Mencken1951' unmasked: It is federal prosecutor Sal Perricone, Times Picayune, March 15, 2012 (Nola.com). He has been recused from cases on which he commented, and the U.S. Attorney has asked the Department of Justice Office of Professional Responsibility to review his actions.

Hat tip: Ars Technica via Volokh Conspiracy.

What Research Skills Do Lawyers Need?

The American Association of Law Libraries is currently conducting a survey of legal practitioners to identify the current and future research skills that law school graduates need to succeed in legal practice. This information will help law schools determine how to develop their curriculum to meet the research needs of their graduates. Please consider taking a minute to share your thoughts here: http://www.surveymonkey.com/s/skillsforlegalpractice. Responses are anonymous.

If you have any questions, please contact Susan Nevelow Mart (Susan.Nevelow.Mart [at] colorado.edu) or Shawn Nevers (neverss [at] lawgate.byu.edu), the chair and vice chair of the Task Force on Identifying Skills & Knowledge for Legal Practice.

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.

Reflections on Jury Duty

A News Tribune columnist talks about being called for jury duty. Kathleen Merryman, Jury duty a burden to some, a thrill and an honor to others, News Tribune, Jan. 25, 2012.

I was thrilled at the chance to be part of one of the fairest judicial systems on the planet. It has its flaws, and some of them run deep. But it demands that the accused see the faces of the peers who will decide the verdict. It requires that those peers be accountable to each other, and to themselves. It’s a mental stretch for participants, and discussions that stretch us beyond preconceptions are good for the health of democracy. We get to experience all that, even if we don’t serve on a jury.

Voir Dire Tool: iPad App or Post-It Notes?

Law Technology News reviews iJury, another iPad app for managing voir dire (see earlier post). The review is fairly positive – but the author finds that the Post-It Notes on which a lawyer can scribble quick notes remain good competition. Ted Brooks, Will an iPad Replace Post-it for Voir Dire?, Law Technology News (law.com), Jan. 19, 2012.

Frustrations in Family Court

This week's cover story in the Seattle Weekly is Ripped Apart: Divorced dads, domestic violence, and the systemic bias against men in King County family court (Jan. 18, 2012). Nina Shapiro reports on courts that are so busy that each side in a divorce often has just minutes to present evidence and arguments. (Very few cases go to trial, so the hearings before commissioners are critical.) She profiles three men whose divorces were complicated by allegations of domestic violence and painful custody disputes. Several attorneys quoted say that the system is biased against men. 

It would be interesting to hear more voices related to this story – divorced and divorcing women, more men than the three profiled, commissioners, judges. Would the conclusions be any different?

Updates to Pattern Instructions

Today the Washington Courts announced:

several criminal pattern jury instructions were recently updated. Changes have been made to WPIC 1.01, 4.61, and 4.69 in order to spell out in greater detail the prohibitions against jurors discussing the case with others, including with regard to their electronic communications. Changes also have been made to several concluding instructions, incorporating State v. Bashaw’s holding that unanimity is not required for jurors to answer “no” on a special verdict form; see WPIC 30.03, 50.60, 50.60.01, 160.00, and 300.51.  

These updates have been incorporated into all formats, including the printed pocket parts, Westlaw, and the free public website.

You can sign up for email alerts about court rule changes and pattern instruction changes here.

State v. Bashaw, cited in the announcement, is here: 169 Wash.2d 133, 234 P.3d 195, Google Scholar (2010)

Hiding Tattoos?

In pretrial motions, lawyers argued over whether the jury should be allowed to see Michael Coombes's tattoos – one on his face with A-F (for Aryan Family) and one on his hip with a gun and a syringe; the gun was the same brand and caliber as the murder weapon. Murder suspect hopes makeup will hide criminal history from jury, KXLY (Spokane), Dec. 12, 2011.

 

One issue was whether revealing the tattoos would also reveal the fact that the defendant was serving time in prison for the murder when he got them. He was getting a new trial because he had successfully argued that his guilty plea should be invalidated because of a misunderstanding of how time off for good behavior would be calculated. In re Coombes, 159 Wash.App. 1044, 2011 WL 240687 (Wash.App. Div. 3 2011) (unreported). The jury did learn of the hip tattoo (but I'm not sure if they saw it). Closing arguments heard in Coombes murder trial, KLXY, Dec. 16, 2011.

Coombes was convicted and received a sentence about 7 years longer than the sentence under the plea he had withdrawn. Jury convicts man of 2007 slaying, Spokesman-Review (Spokane), Dec. 19, 2011. By the way, the Spokesman-Review blog, Sirens & Gavels, has a number of posts tagged "neck tattoos": Coombes is not the only defendant who risks the jury forming an opinion of him based on his body art.

Inside an Interrogation of a Scared Teen

After a trial court judge suppressed a teenager's confession in her trial for smothering her infant, David Boeri, a reporter for WBUR, a public radio station in Boston, petitioned to get the DVDs or the interrogation. It took several months, but the judge issued an order in September, and in December, WBUR aired a two-part report, "Anatomy of a Bad Confession." Today, NPR aired a lengthy story (though not as lengthy as what WBUR aired). Here are links:

• David Boeri, How a Teen's Coerced Confession Set Her Free, All Things Considered, Jan 2, 2012
• David Boeri, Anatomy of a Bad Confession, Part 1, WBUR, Dec. 7, 2011
• Anatomy Of A Bad Confession, Part 2, WBUR, Dec. 8, 2011
• video – excerpts from the interrogation, plus recent interview with the defendant, Nga Truong, and reflections by the reporter, David Boeri.
• Commonwealth v. Truong, Feb. 25, 2011, the opinion suppressing the confession
• Boeri's motion seeking the recordings
• decision and order granting the motion

Hearing (or viewing) the questioning is much more vivid the reading a discussion of a coercive interrogation in an appellate opinion. This is very valuable reporting.