More Follow-up to #Ferguson Forum

During the forum on Tuesday, there was discussion about why Darren Wilson was not interviewed for a few days after shooting Michael Brown. Former U.S. Attorney Jenny Durkan said that many police unions have negotiated a term in their contracts that provides for a delay of two or three days before questioning after a shooting incident, based in part on studies that suggest that memory would be better after the delay. Jeffery Robinson observed that civilians who are involved in shooting incidents might also experience psychological stress, but police investigators don't wait three days to interview them.

Here's a little more information on that issue:

• In some states a statute gives officers a period to obtain counsel before they are interrogated. See Kevin M. Keenan & Samuel Walker, An Impediment to Police Accountability? An Analysis of Statutory Law Enforcement Officers' Bills of Rights, 14 B.U. Pub. Int. L.J. 185, 212-14 (2005) (links are to HeinOnline).
• The Officer-Involved Shooting Guidelines from the International Association of Chiefs of Police Psychological Services Section (2013) provide:
  

  While officers may be asked to provide pertinent information soon after a shooting to aid the initial investigative process, whenever feasible, officers should have some recovery time before providing a full formal statement. Depending on the nature of the incident, the demands on the agency, and the emotional and physical status of the officers, this can range from a few hours to several days. An officer’s memory will often benefit from at least one sleep cycle prior to being interviewed leading to more coherent and accurate statements.^{3 4 5 6 7} Providing a secure setting, insulated from the press and curious coworkers, is important during the interview process.

p. 6 (citing articles about sleep and memory).

Capital Punishment: Race, Poverty, & Disadvantage—Free Online Course

Stephen Bright is president and senior counsel at the Southern Center for Human Rights, a public interest law program that deals with human rights in the criminal justice and prison systems. He has also been a visiting lecturer or fellow at Yale Law School for over 20 years. Now Yale has posted Bright's  online course, “Capital Punishment: Race, Poverty, & Disadvantage,” on iTunes U and YouTube.

This course examines issues of poverty and race in the criminal justice system, particularly with regard to the imposition of the death penalty. Topics include the right to counsel for people who cannot afford lawyers, racial discrimination, prosecutorial discretion, judicial independence, and mental health issues. 

There are 40 videos, ranging from 18 to 45 minutes. I haven't figured it out, but that's a lot of instruction from one of the nation's leading authorities on the death penalty. Each video has related readings (from the YouTube description, you just click on a link to Dropbox).

If you're interested in criminal justice, this is a great resource.

UW Law Forum on #Ferguson

This afternoon attorney Jeffery Robinson led a discussion on the events in Ferguson, MO—the killing of Michael Brown last summer, the grand jury this fall, and the protests in Ferguson and around the country—and the larger issues of racism, criminal justice, and law enforcement. Justice Sheryl Gordon McCloud and former U.S. Attorney Jenny Durkan were present and contributed to the discussion.

With a nod to Yogi Berra, Robinson titled his presentation "'You Can Observe a Lot Just by Watching': The Killing of Michael Brown and the Transparent Grand Jury Investigation."

This blog post lists some resources.

Washington State Minority and Justice Commission report mentioned by Justice Gordon McCloud: Mark Peffley et al., Justice in Washington State Survey  (2012, revised & updated 2014)

Project Implicit (Harvard website that Robinson mentioned that offers simple tests that reveal implicit bias).

•   The developers of the Implicit Assocation Test (IAT) are two social psychologists, Mahzarin R. Banaji (now at Harvard) and Anthony G. Greenwald (UW). They have written a very accessible and fascinating book reviewing the research: Blindspot: Hidden Biases of Good People (2013). Catalog record.
• Jerry Kang, a law professor at UCLA has done a lot of work bringing these studies into law. See his page, Getting up to speed on implicit bias. Kang has a Ted Talk on the topic, too:
  
  
  

Robinson showed a powerful spoken word video by Javon Johnson. View it here.

Robinson also had a powerful infographic with data on police stops from Racism Still Exists (which also has several other infographics).

The Cato Institute's National Police Misconduct Reporting Project is here.


1L Martina Kartman spoke about her experience going to Ferguson with a team from a Freedom School here in Seattle, the Tyree Scott Leadership Institute.

 You can find more resources in our guide, Race in the Criminal Justice System.

Bryan Stevenson's Memoir, Just Mercy

Bryan Stevenson, executive director of the Equal Justice Initiative in Montgomery, AL, and a professor at NYU Law, has written a memoir about his work: Just Mercy: A Story of Justice and Redemption.

A very warm review, by Seattle lawyer Kevin J. Hamilton, was in yesterday's Seattle Times. You can read more on the publisher's webpage.

And you can hear Bryan Stevenson himself at 7 pm Tues. Nov. 4 at the Seattle Public Library Central Library.

The book was just published Oct. 21, so we don't have it in the library yet, but we hope to have it soon.

Videos of U.S. Supreme Court Arguments—at Last!

On the HBO program Last Week Tonight, John Oliver observed that without video Supreme Court oral arguments are pretty dry, even with courtroom sketches as backdrops. So he proposed that the audio be livened up with video. What video? Dogs!




Clip from Last Week Tonight with John Oliver, Oct. 19, 2014.

Oliver and his team didn't stop with a cute video of their own. They went further, posting clips of nine canine justices and two lawyers that others could mash up with oral argument recordings. Some of the casting is apt: Justice Ginsburg, played by a Chihuahua, is petite; Justice Scalia, played by a Bulldog, is assertive and jowly.

The YouTube community has responded. Just a few days after the original broadcast, you can now watch the canine Court hear arguments in:

• Citizens United v. FEC (see Citizens United v. FEC (2010), Google Scholar)
• Hobby Lobby Stores v. Sibelius (see Burwell v. Hobby Lobby Stores, Inc. (2014), Google Scholar
• Bond v. United States (see Bond v. United States, 134 S.Ct. 2077 (2014), Google Scholar )
• Florida v. Jardines (see Florida v. Jardines, 133 S.Ct. 1409 (2013), Google Scholar)
• NLRB v. Noel Canning (see NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), Google Scholar)
• Florida v. Harris (see Florida v. Harris, 133 S.Ct. 1050 (2013)   Google Scholar)
• Holt v. Hobbs (not yet decided; see SCOTUS Blog page )
• Heien v. North Carolina (not yet decided; see SCOTUS Blog page )

. . . and more!

I can't be alone in finding these amusing (otherwise, why would so many people have gone to the trouble of making the mash-ups?). Love the dogs. I also like the court reporter pecking at her stenotpe machine.

Conflicts Among Wash. Court of Appeals Divisions

Unlike the federal circuits, the Washington Court of Appeals is a "unitary system"—one court that sits in three divisions, not three separate courts. But sometimes panels from two divisions disagree with each other, so there can be conflicting precedent. What's a trial judge to do? And how should counsel frame their arguments to the trial court?

Learn more about the problem and possible solutions in: Mark DeForrest, In the Groove or in a Rut? Resolving Conflicts Between the Divisions of the Washington State Court of Appeals at the Trial Court Level, 48 Gonz. L. Rev. 431 (2013).

Map of Washington Court of Appeals divisions from Washington Courts website

For practical help on working with precedent in Washington, see Kelly Kunsch, Stare Decisis—Everything You Never Realized You Need to Know, 52 Wash. St. B. News, Oct. 1998, at 31, HeinOnline

Ethics of Advising Marijuana Users and Businesses

Under RPC 1.2(d), a "lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal . . ."  Does this cover lawyers advising clients under Washington's new marijuana law, when possession is still a crime under federal law?



To address this, the Washington Supreme Court is considering a new comment to RPC 1.2:

Special Circumstances Presented by Washington Initiative 502

[18]  At least until there is a change in federal enforcement policy, a lawyer may counsel a client regarding the validity, scope, and meaning of Washington Initiative 502 and may assist a client in conduct that the lawyer reasonably believes in permitted by this initiative and the statutes, regulations, orders and other state and local provisions implementing them.

Anyone may comment on the proposal and, as the court receives comments, you can read what others have sent.



You can sign up here to get email notifications of proposed court rule changes. You can also sign up for new opinions, caseload reports, and other information from the Washington Courts.

Perceptions of Justice—Olympia, June 9

The Washington State Minority and Justice Commission presents a half-day program, Perceptions of Justice, reviewing a report on Washingtonians' perceptions of how they are treated by the police and the courts.

June 9, 2014, 8:45 a.m.-noon
OB2 Auditorium DSHS, 115 Washington Street SE, Olympia
Registration is free and lunch is provided.
Email cynthia.delostrinos[at]courts.wa.gov with "Perceptions of Justice" in the subject line.
3 CLE credits

Speakers are:

• Don Stemen, from Measures for Justice, a national organization working on ways to measure how well or poorly justice systems are performing basic legal services and then advocating to use the data to improve systems. Stemen is also on the faculty of the Dept. of Criminal Justice and Criminology at Loyola Chicago. His profile includes a list of recent publications.


• Mark Peffley, Jon Hurwitz, and Jeffery Mondak, researchers for Justice in Washington report, which was commissioned by the Minority and Justice Commission.


• An advance copy of the report is available on the Washington Defender Association's website: Part 1 (General Descriptive Report on the "Justice in Washington State Survey, 2012") (Oct. 1, 2012), Part 2 (Justice in Washington State Survey, 2012: Analysis of Results, 2nd Report) (rev. March 24, 2014)



• Peffley & Hurwitz wrote Justice in America: The Separate Realities of Blacks and Whites (2010) (UW Libraries catalog record) (publisher's page)


• Jon Hurwitz & Mark Peffley, Explaining the Great Racial Divide: Perceptions of Fairness in the U.S. Criminal Justice System, 67 J. Politics 762-83 (2005)

Adolescent Brain Development & Juvenile Justice

The Washington Supreme Court hosted "Looking to the Future: Adolescent Brain Development and the Juvenile Justice System" May 20, 2014. The symposium materials are here.

Can Lawyers Look up Jurors on Social Media

Is it permissible for a lawyer to look for information about jurors on social media? A new ABA ethics opinion (Formal Opinion 466) says yes (subject to local rules and court orders)—but lawyers shouldn't ask to connect with the jurors. See this article from ABA Journal online (April 24, 2014).

Graphic: Drawing of jury by Charles Edmund Brock taken from: Thomas Hood, Humorous Poems ... With a preface by A. Ainger, and ... illustrations by C. E. Brock. L.P (1893); available in the British Library's Photostream here. Blogger, Facebook, Instagram, LinkedIn, and Twitter logos added by Mary Whisner.

What Makes Lawyers Happy?

What makes lawyers happy? Apparently people want to know, because an article on that topic was the most downloaded paper on SSRN last week. You can read it yourself:

Lawrence S. Krieger & Kennon M. Sheldon, What Makes Lawyers Happy? Transcending the Anecdotes with Data from 6200 Lawyers, 83 Geo. Wash. U. L. Rev. (forthcoming 2015), available at http://ssrn.com/abstract=2398989.

Attorney well-being and depression are topics of great concern, but there has been no theory-driven empirical research to guide lawyers and law students seeking well-being. This article reports a unique study establishing a hierarchy of five tiers of factors for lawyer well-being, including choices in law school, legal career, and personal life, and psychological needs and motivations established by Self-Determination Theory.

Data from several thousand lawyers in four states show striking patterns, repeatedly indicating that common priorities on law school campuses and among lawyers are confused or misplaced. Factors typically afforded most attention and concern, those relating to prestige and money (income, law school debt, class rank, law review, and USNWR law school ranking) showed zero to small correlations with lawyer well-being. Conversely, factors marginalized in law school and seen in previous research to erode in law students (psychological needs and motivation) were the very strongest predictors of lawyer happiness and satisfaction.

Lawyers were grouped by practice type and setting to further test these findings. The group with the lowest incomes and grades in law school, public service lawyers, had stronger autonomy and purpose and were happier than those in the most prestigious positions and with the highest grades and incomes. Additional measures raised concerns: subjects did not broadly agree that judge and lawyer behavior is professional, nor that the legal process reaches fair outcomes. Specific explanations and recommendations for lawyers, law teachers, and legal employers are drawn from the data, and direct implications for attorney productivity and professionalism are explained.

(emphasis added)

Graphic: original drawing by Mary Whisner, photograph by Grace Feldman, Civil Procedure Hornbook by Friedenthal, Kane, and Miller

How Damaging Is a Prior Conviction as Impeachment in a Civil Trial?

Kathryn Stanchi & Deirdre M. Bowen, This is Your Sword: How Damaging are Prior Convictions to Plaintiffs in Civil Trials?, 89 Wash. L. Rev. (forthcoming 2014), http://ssrn.com/abstract=2412110:

The conventional wisdom in law is that a prior conviction is one of the most powerful and damaging pieces of evidence that can be offered against a witness or party. In the legal lore, prior convictions seriously undercut the credibility of the witness and can derail the outcome of a trial. This paper suggests that may not always be true.

This paper details the results of an empirical study of juror decision-making that challenges the conventional wisdom about prior convictions. In our study, the prior conviction evidence did not have a direct impact on the outcome of the civil trial or the credibility of the witness with the conviction. Moreover, we tested prior conviction evidence with a white witness and an African-American witness and saw no difference in results.

The prior conviction evidence did, however, change the trial in a substantial, but indirect, way. Rather than the direct effect on outcome that we might have expected, the introduction of the prior conviction evidence changed the mental decision-making process of the jurors. Specifically, the evidence seemed to subconsciously lead the jurors to conclude that to decide liability, they had to believe one party over the other. The prior conviction evidence thus turned the trial into a zero sum credibility contest in which believing the plaintiff’s story meant disbelieving the defendant’s (and vice versa). This “zero sum” effect did not appear in the control version of the trial.

In sum, the results of our experiment suggest that while prior convictions are highly noticeable and powerful pieces of evidence, they may not always be the bane that lawyers think they are. Nevertheless, the introduction of this evidence has the potential to change a civil trial by changing the juror decision-making process.

Alaska Bill Would Allow Jury Nullification

A House bill promoting the notion that jurors can ignore Alaska's criminal code and let a lawbreaking defendant off the hook had a brief hearing Wednesday in the House Judiciary Committee, then was held for later. The bill, fostering "jury nullification," has been a bipartisan favorite of some Fairbanks-area House members, with identical versions introduced in 2002 and 2009.

Richard Mauer, House bill pushed by Fairbanks lawmakers promotes ‘jury nullification', Anchorage Daily News, March 26, 2014.




H.B. 315 is here. The bill information page has more links. The sponsor, Rep. Tammie Wilson, states:

Before one is able to understand why jury nullification is a good idea, one must understand the importance of a trial by jury. Our Founding Fathers considered them to be a powerful weapon in the war against tyranny. Thomas Jefferson wrote, “I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution”. In the Federalist Papers, Alexander Hamilton wrote that trial by jury was the “very palladium of free government” and a “valuable check upon corruption”.  

Given the strength of these opinions, then, it is no surprise that the denial of trials by jury was one of the foremost acts of despotism listed by Thomas Jefferson in the Declaration of Independence.  

As for the concept that juries have not only the power but the obligation to nullify unjust rulings of a judge, John Adams wrote, “It is not only (the juror’s) right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court”.  

Our Founding Fathers zealously defended this right and recognized that only an informed and empowered jury could effectively protect a defendant from the potentially harmful effects of autocratic judges. Jury nullification allows citizens to have the final say on what is fair in a court of law.  

Therefore, I ask for your support of HB 315. Jury nullification is a good idea and one supported by Constitutional principles of freedom.

Jur-E Bulletin from the National Center for State Courts reports:

The state attorney general's office opposes the bill, indicating it would lead to “unfair and disorderly trials.”  Additionally, Doug Gardner, director of the Legislature's legal services division wrote a memo which expressed concern that the bill may not comply with U.S. Supreme Court precedent that "it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence."  Additionally, he wrote another memo comparing the provisions in House Bill 315 to New Hampshire Revised Statute 519:23-b, which is New Hampshire’s statutory authority for jury nullification.  

The Fiscal Note Analysis prepared by the Department of Law includes some interesting commentary.  It states:

Passage of this bill would result in more cases brought to trial by jury because even though the offender does not dispute that he or she broke the law, the offender could argue for the jury not to follow the law.

Rap Lyrics as Evidence in a Criminal Case

Should a jury hear (or read) violent lyrics written by a criminal defendant? Even if they were written years before the crime? The issue has come up in a number of cases, including one that was recently argued in the New Jersey Supreme Court (State v. Skinner).

Two professors argue that rap lyrics should be entitled to protection as artistic expression. Erik Nielson & Charles E. Kubrin, Rap Lyrics on Trial, N.Y. Times Jan. 13, 2014.

The lower judges disagreed: the majority remanded, holding that the admission of the lyrics was prejudicial; a dissenter would have upheld the admission of the lyrics, finding that the trial judge appropriately applied New Jersey's four-part test for admission of extrinsic "bad-act" evidence. State v. Skinner, No. A-2201-08T2 (N.J. Super. Ct. App. Div. Aug. 31, 2012). The opinions offer extensive analysis and factual context. The ACLU of New Jersey's amicus brief is here link to the organization's amicus brief.

While we Seattleites can be proud of our hometown rappers Macklemore and Ryan Lewis who won four Grammys and are white, it is clear that attitudes toward rap are tied to attitudes about young black men. Some commentary by bloggers and two radio programs:

• Scott H. Greenfield, The Rhyming Irrelevance of Rap, Simple Justice: A Criminal Defense blog, Jan. 14, 2014.
• Deborah C. England, Rap Lyrics in Evidence: Is it a Crime to Rhyme?, CriminalDefense.com (among other points, asks: why rap and not pop? what about "Helter-Skelter" by Paul McCartney?)
• Dan Brooks, New Jersey supreme court to consider admissibility of rap lyrics, Combat! ("oppositional culture for an occupied age"), Jan. 14, 2014.
• Rap, Race, Free Speech and Crimes, Basic Black (WGBH), Jan. 17, 2014 (panel discussion including professors of law, music, and writing)
• Rap Lyrics as Evidence, On the Media, Jan. 17, 2014. Transcript here.

This reminds me of an article Prof. Helen Anderson wrote several years ago: The Freedom to Speak and the Freedom to Listen: The Admissibility of the Criminal Defendant's Taste in Entertainment, 83 Or. L. Rev. 899-943 (2005).

Juvenile Justice Resources

The Models for Change initiative "supports a network of government and court officials, legal advocates, educators, community leaders, and families working together to ensure that kids who make mistakes are held accountable and treated fairly throughout the juvenile justice process." Models for Change is supported by the MacArthur Foundation.

Models for Change selected four strategic states "for their leadership and commitment to change, geographic diversity, differing needs and opportunities, and likelihood to influence reforms in other locations." The states are Illinois, Louisiana, Pennsylvania, and Washington. Within our state, five projects are underway in six counties (Benton and Franklin, Clark, King, Pierce, and Spokane). Our state's projects are coordinated by the Center for Children & Youth Justice.

Top 5 Things to Look for in a Legal Job

How do you figure out what sort of job to look for? Experienced lawyers and law teachers Jennifer Fan and Deborah Maranville say the main focus shouldn't be on the substantive area (bankruptcy vs. environmental law, for instance). Instead consider

• people
• tasks
• case or project features
• demands
• rewards

Top Five Things to Look for in a Legal Job: People, Tasks, Case/Project Features, Demands & Rewards is available on SSRN.

Jennifer Fan	Prof. Deborah Maranville
Managing Director of the Entrepreneurial Law Clinic

What Female Attorneys Should Wear to Court

Slate's Amanda Hess observes Female Lawyers Who Dress Too "Sexy" Are Apparently a "Huge Problem" in the Courtroom (March 21, 2014).

For a deeper look at this issue, see Prof.
Maureen Howard's article, Beyond a Reasonable Doubt: One Size Does Not Fit All When It Comes to Courtroom Attire for Women, 45 Gonz. L. Rev. 209 (2010).

Does Allocution Make a Difference?

The new issue of the Alabama Law Review has an article reporting the results of a survey of federal district judges about allocution in sentencing:

Mark W. Bennett & Ira P. Robbins, Last Words: A Survey and Analysis of Federal Judges' Views on Allocution in Sentencing, 65 Ala. L. Rev.  735 (2014)

Allocution—the penultimate stage of a criminal proceeding at which the judge affords defendants an opportunity to speak their last words before sentencing—is a centuries-old right in criminal cases, and academics have theorized about the various purposes it serves. But what do sitting federal judges think about allocution? Do they actually use it to raise or lower sentences? Do they think it serves purposes above and beyond sentencing? Are there certain factors that judges like or dislike in allocutions? These questions—and many others—are answered directly in this first-ever study of judges’ views and practices regarding allocution.

The authors surveyed all federal district judges in the United States. This Article provides a summary and analysis of the participants’ responses. Patterns both expected and unexpected emerged, including, perhaps most surprisingly, that allocution does not typically have a large influence on defendants’ final sentences. Most of the judges agreed, however, that retaining this often-overlooked procedural right remains an
important feature of the criminal-justice process.

How Female Lawyers Dress

Slate's Amanda Hess observes Female Lawyers Who Dress Too "Sexy" Are Apparently a "Huge Problem" in the Courtroom (March 21, 2014).

For a deeper look at this issue, see Prof.
Maureen Howard's article, Beyond a Reasonable Doubt: One Size Does Not Fit All When It Comes to Courtroom Attire for Women, 45 Gonz. L. Rev. 209 (2010).

Juvenile Justice Resources

The Models for Change initiative "supports a network of government and court officials, legal advocates, educators, community leaders, and families working together to ensure that kids who make mistakes are held accountable and treated fairly throughout the juvenile justice process." Models for Change is supported by the MacArthur Foundation.

Models for Change selected four strategic states "for their leadership and commitment to change, geographic diversity, differing needs and opportunities, and likelihood to influence reforms in other locations." The states are Illinois, Louisiana, Pennsylvania, and Washington. Within our state, five projects are underway in six counties (Benton and Franklin, Clark, King, Pierce, and Spokane). Our state's projects are coordinated by the Center for Children & Youth Justice.

Twelve more states are involved in the Models for Change initiative through the Action Networks. (The four core states participate in all Action Networks.)

• Maryland, Wisconsin, Kansas, North Carolina (Disproportionate Minority Contact Action Network)
• California, Florida, Massachusetts, New Jersey (Juvenile Indigent Defense Action Network)
• Connecticut, Colorado, Ohio, Texas (Mental Health/Juvenile Justice Action Network)

So there's a lot going on in a lot of places. One more component is sharing information.

The Natural Resource Bank is a group of "16 leading national juvenile justice research, reform, and advocacy organizations that provide expert advice, training, and technical assistance to the core states and action network sites."

Recently Models for Change launched a Resource Center Partnership, in which four different groups  focus on four areas to "provide administrators, practitioners and policymakers with technical assistance, trainings, and proven tools and resources."

• Mental Health & Juvenile Justice Collaborative for Change (mental health issues)
• National Juvenile Defender Center (public defense for indigent youth)
• Status Offense Reform Center (status offenses include truancy and running away)
• Robert F. Kennedy National Resource Center for Juvenile Justice (dual status youth are involved in both the foster care system and the juvenile justice system)

If you're interested in juvenile justice issues, wander through these websites: you'll find a wealth of reports describing problems and describing and evaluating projects that seek to alleviate them.

Measuring Criminal Defense Attorneys' Competence

If you were running a public defender office, wouldn't you want to know which lawyers were getting the best results for the clients? And how you could help lawyers improve their results? Here's an interesting paper not only speculating about the possibility but looking at actual data from the North Carolina courts:
Ronald F. Wright & Ralph A. Peeples, Criminal Defense Lawyer Moneyball: A Demonstration Project, Wake Forest L. Rev. (forthcoming), available at http://ssrn.com/abstract=2190570:

The book and movie “Moneyball” portray the iconoclastic general manager of a baseball team. When drafting new players, this GM de-emphasized the insights of baseball scouts as on-the-scene evaluators of a player’s talents, and looked instead to statistical measures of player quality. We take this idea from baseball into the criminal courts. In this article, we argue that criminal defense organizations could meaningfully evaluate the skills of their attorneys through the use of metrics, rather than relying so heavily on the in-person observation of their work in the courtroom. Statistical performance-based rankings could support better leadership in defense attorney organizations.  

Rather than simply assert that a rating system is possible, we attempt in this paper to show its feasibility. We employ data from the North Carolina courts as a demonstration project to illustrate how an office might develop a rating system for the attorneys who work there. Our attorney ratings are based on the bottom line: sentencing reductions those attorneys achieve for their clients, principally through plea negotiations. We then use our tentative quality ratings to address the question of structural causes. What makes one attorney noticeably more or less effective than the typical defense lawyer? Our most surprising discovery is that experience actually has a negative correlation with performance after the first eight years: the more time an attorney has spent in the profession, the more likely that her clients will obtain a more severe sentence. We close with some reflections on other potential users of a statistical rating system, concluding that managers of defense organizations are better situated than judges, prosecutors, or clients to make wise use of ratings data.

Predicting Erroneous Convictions

What causes criminal trials to go wrong? This new article attempts to answer: Jon B. Gould et al., Predicting Erroneous Convictions, 99 Iowa L. Rev. 471 (2014)

ABSTRACT: The last thirty years have seen an enormous increase not only in exonerations of innocent defendants but also academic scholarship on erroneous convictions. This literature has identified a number of common factors that appear frequently in erroneous conviction cases, including forensic error, prosecutorial misconduct, false confessions, and eyewitness misidentification. However, without a comparison or control group of cases, researchers risk labeling these factors as “causes” of erroneous convictions when they may be merely correlates. This Article reports results from the first large-scale empirical research project to compare wrongful convictions with other innocence cases in which the defendant escaped conviction (so-called “near misses”). Employing statistical methods and an expert panel, the research helps us to understand how the criminal justice system identifies innocent defendants in order to prevent erroneous convictions. In another first, the research secured the cooperation of practitioners from multiple sides of the criminal justice system, including the national Innocence Project, the Police Foundation, the Association of Prosecuting Attorneys, and the National District Attorneys Association. The results highlight ten factors that distinguish wrongful convictions from near misses, but the larger story is one of system failure in which the protections of the criminal justice system operate in a counterintuitive manner. The Article closes with a series of policy reforms to address these failings.

Rap Lyrics as Evidence of Crime

Should a jury hear (or read) violent lyrics written by a criminal defendant? Even if they were written years before the crime? The issue has come up in a number of cases, including one that was recently argued in the New Jersey Supreme Court (State v. Skinner).

Two professors argue that rap lyrics should be entitled to protection as artistic expression. Erik Nielson & Charles E. Kubrin, Rap Lyrics on Trial, N.Y. Times Jan. 13, 2014.

The lower judges disagreed: the majority remanded, holding that the admission of the lyrics was prejudicial; a dissenter would have upheld the admission of the lyrics, finding that the trial judge appropriately applied New Jersey's four-part test for admission of extrinsic "bad-act" evidence. State v. Skinner, No. A-2201-08T2 (N.J. Super. Ct. App. Div. Aug. 31, 2012). The opinions offer extensive analysis and factual context. The ACLU of New Jersey's amicus brief is here link to the organization's amicus brief.

While we Seattleites can be proud of our hometown rappers Macklemore and Ryan Lewis who won four Grammys and are white, it is clear that attitudes toward rap are tied to attitudes about young black men. Some commentary by bloggers and two radio programs:

• Scott H. Greenfield, The Rhyming Irrelevance of Rap, Simple Justice: A Criminal Defense blog, Jan. 14, 2014.
• Deborah C. England, Rap Lyrics in Evidence: Is it a Crime to Rhyme?, CriminalDefense.com (among other points, asks: why rap and not pop? what about "Helter-Skelter" by Paul McCartney?)
• Dan Brooks, New Jersey supreme court to consider admissibility of rap lyrics, Combat! ("oppositional culture for an occupied age"), Jan. 14, 2014.
• Rap, Race, Free Speech and Crimes, Basic Black (WGBH), Jan. 17, 2014 (panel discussion including professors of law, music, and writing)
• Rap Lyrics as Evidence, On the Media, Jan. 17, 2014. Transcript here.

This reminds me of an article Prof. Helen Anderson wrote several years ago: The Freedom to Speak and the Freedom to Listen: The Admissibility of the Criminal Defendant's Taste in Entertainment, 83 Or. L. Rev. 899-943 (2005).

Jurors Have a Hard Time Resisting Call of the Web

After a five-week trial, Judge Mary E. Roberts

Judge Mary E. Roberts (UW Law '84)
Photo from King County Superior Court

faced a tough decision: after learning that the jury foreman defied her instructions not to research legal issues on the Web, should she let the verdict stand or declare a mistrial?

The juror had looked up the penalty for first-degree rape—but in criminal trials, the juror is supposed to focus on the definition of the crime, not the penalty. The judge decided that the jury had been sufficiently tainted by the juror's action that a new trial was warranted.

The Seattle Times has a long story about this case and the nationwide issue of jurors leaving the jury room via wireless technology. Ken Armstrong, Case of the Curious Juror: When the Web Invades the Courtroom, Seattle Times, Jan. 18, 2014.

As people increasingly carry around Internet access in their pockets and reflexively look up actors on IMDb, rate restaurants on Yelp, and settle trivia disputes with a quick look at Wikipedia, the use of the web by jurors has challenged judges, advocates, and parties nationwide.

The Washington Courts created (with private funds) a poster for jury rooms reminding jurors to "FOCUS ON THE COURTROOM." (Here's the press release about it.)

Washington Courts poster

Jury instructions include cautions about outside research. See WPI 1.01 (civil trials) and WPIC 1.01 (criminal trials):

It is essential to a fair trial that everything you learn about this case comes to you in this courtroom, and only in this courtroom. You must not allow yourself to be exposed to any outside information about this case. Do not permit anyone to discuss or comment about it in your presence, and do not remain within hearing of such conversations. You must keep your mind free of outside influences so that your decision will be based entirely on the evidence presented during the trial and on my instructions to you about the law.

Until you are dismissed at the end of this trial, you must avoid outside sources such as newspapers, magazines, blogs, the internet, or radio or television broadcasts which may discuss this case or issues involved in this trial. If you start to hear or read information about anything related to the case, you must act immediately so that you no longer hear or see it. By giving this instruction I do not mean to suggest that this particular case is newsworthy; I give this instruction in every case.

During the trial, do not try to determine on your own what the law is. Do not seek out any evidence on your own. Do not consult dictionaries or other reference materials. Do not conduct any research into the facts, the issues, or the people involved in this case. This means you may not use [Google or other internet search engines] [internet resources] to look into anything at all related to this case. Do not inspect the scene of any event involved in this case. If your ordinary travel will result in passing or seeing the location of any event involved in this case, do not stop or try to investigate. You must keep your mind clear of anything that is not presented to you in this courtroom.

For more on the impact of the web on litigation, see these articles by UW Law students from the last few years:

• Matthew Frederickson,  Conformity in Confusion: Applying a Common Analysis to Wikipedia-Based Jury Misconduct, 9 Wash. J.L. Tech. & Arts 19 (2013)
• Mallory Allen & Aaron Orheim, Get Outta My Face[book]: The Discoverability of Social Networking Data and the Passwords Needed to Access Them, 8 Wash. J.L. Tech. & Arts 137 (2012)
•  J.C. Lundberg, Googling Jurors to Conduct Voir Dire, 8 Wash. J.L. Tech. & Arts 123 (2012)
• Heather L. Griffith, Understanding and Authenticating Evidence from Social Networking Sites, 7 Wash. J.L. Tech. & Arts 209 (2012)
• Aurora J. Wilson, Let's Be Cautious Friends: The Ethical Implications of Social Networking for Members of the Judiciary, 7 Wash. J.L. Tech. & Arts 225 (2012)
• Duncan Stark, Juror Investigation: Is In-Courtroom Internet Research Going to Far?, 7 Wash. J.L. Tech. & Arts 93 (2011)
• Jason Boulette and Tanya DeMent, Ethical Considerations for Blog-Related Discovery, 5 Shidler J.L. Com. & Tech. 1 (Sep. 23, 2008)
• Gareth S. Lacy, Should Jurors Use the Internet? (2010)
• Gareth S. Lacy, Untangling the Web: How Courts Should Respond to Juries Using the Internet for Research, 1 Reynolds Cts. & Media L.J. 169 (2011)

See also the Jurors & Courtrooms page in the Social Media & the Courts section of National Center for State Court.

Want more? Just take out your smartphone and run a search. (But not while you're on a jury.)