Drug Dogs Going Back to School

Reflecting the change in Washington State law making it legal for adults to possess small amounts of marijuana and use it in private, some law enforcement agencies are retraining their drug-sniffing dogs not to alert for marijuana.

Local stories include:

• Legal pot means big changes for state’s drug-sniffing dogs, KOMOnews.com, March 20, 2013 (video and text)
• Manuel Valdes, Pot on some police dogs' not-to-sniff list, News Tribune (Tacoma), June 3, 2013. (This AP story was picked up by many national and local news organizations.)

The Washington State Criminal Justice Training Commission has standards for certifying dogs with different specialties (patrol, explosives, narcotics). As of January, narcotics dogs will be trained to detect cocaine, crack cocaine, methamphetamine, and heroin, but not marijuana.


The Supreme Court has issued two dog-sniff cases this Term. In Florida v. Harris (Feb. 19, 2013), the Court unanimously upheld the admission of evidence found in a truck after an alert by a trained dog (who had previously been reliable). SCOTUSblog's summary of the case is here. In Florida v. Jardines (March 26, 2013), the Court found that using a drug-sniffing dog on the defendant's front porch was an illegal search. See Adam Liptak, Justices, Citing Ban on Unreasonable Searches, Limit Use of Drug-Sniffing Dogs, N.Y. Times, March 26, 2013.

Narcotics dogs do not always perform accurately. In fact, a study of Chicago-area traffic stops by the Chicago Tribune found that drugs were found in just 44% of the vehicles where dogs alerted—and in only 27% of the vehicles with Hispanic drivers. Dan Hinkel & Joe Mahr, Tribune analysis: Drug-sniffing dogs in traffic stops often wrong, Chi. Tribune, Jan. 6, 2011. An academic study about the same time "found that detection-dog/handler teams erroneously 'alerted,' or identified a scent, when there was no scent present more than 200 times — particularly when the handler believed that there was scent present." Explosive- and drug-sniffing dogs' performance is affected by their handlers' beliefs, UC Davis Health System, Feb. 23, 2011. The paper is: Lisa Lit et al., Handler Beliefs Affect Scent Detection Dog Outcomes, 14 Animal Cognition 387 (2011). 

The current issue of the Oregon Law Review (available free in PDF) is a symposium on drug policy. It includes Jane Bambauer, Defending the Dog, 91 Or. L. Rev. 1203 (2013). The author says "This short essay makes the uneasy case for the narcotics dog. Those in favor of U.S. drug enforcement presumably need no convincing, but this Article intends to address the concerns of skeptics who worry about unjust drug enforcement, or who believe that criminalization is just plain bad policy. Dogs are just the first generation of a new set of law enforcement tools that can help us divorce criminal investigation from the bias and discretion that comes with traditional policing." Id. at 1204.

Washington readers might be particularly interested in Michael Vitiello, Joints or the Joint: Colorado and Washington Square Off Against the United States, 91 Or. L. Rev. 1009 and Michèle Alexandre, First Comes Legalization, Then Comes What? Tips for Washington and Colorado to Help Break the Cycle of Selective Prosecution and Disproportionate Sentencing, 91 Or. L. Rev. 1253.

Graphic: mw

Miranda and Kids

Marcia Coyle, In Miranda Calculus, Age Should Be a Factor, Court Says, Nat'l L.J., June 16, 2011.

Stressing that children are not "miniature adults," a divided U.S. Supreme Court on Thursday held that the police must consider a juvenile suspect's age in deciding whether the child is in custody and must be given Miranda warnings.

"It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave," wrote Justice Sonia Sotomayor for the 5-4 majority. "Seeing no reason for police officers or courts to blind themselves to that commonsense reality, we hold that a child's age properly informs the Miranda custody analysis."

J. D. B. v. North Carolina, No. 09-11121 (June 16, 2011)

For more on the vulnerability of children to coercive interrogation, see this video from the Center on Wrongful Convictions of Youth (Northwestern Law in Chicago).

Miranda Anniversary

Miranda v. Arizona, 384 U. S. 436, Justia, was decided 45 years ago today (June 13, 1966). For a quick summary and the oral arguments, see (or hear) the Oyez Project.

Here are some recent books discussing Miranda and its impact:

• Lawrence S. Wrightsman & Mary L. Pitman, The Miranda Ruling: Its Past, Present and Future (2010) (publisher's page)
• Gary L. Stuart, Miranda: The Story of America's Right to Remain Silent (2004) (publisher's page)
• G. Daniel Lassiter, Interrogations, Confessions, and Entrapment (2006) (publisher's page)
• Sara Catherine Benesh, The U.S. Court of Appeals and the Law of Confessions: Perspectives on the Hierarchy of Justice (2002)

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.

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.

Court Requires Warning About Deportation Risk

Court Requires Warning About Deportation Risk, N.Y. Times, March 31, 2010:

The Supreme Court ruled on Wednesday that lawyers for people thinking of pleading guilty to a crime must advise their clients who are not citizens about the possibility that they will be deported.

Likening deportation to the punishments of banishment and exile, Justice John Paul Stevens, writing for five justices, said the Constitution guaranteed competent legal advice on at least some collateral consequences of guilty pleas.

“It is our responsibility under the Constitution to ensure that no criminal defendant — whether a citizen or not — is left to the mercies of incompetent counsel,” Justice Stevens wrote.

Padilla v. Kentucky, No. 08-651 (March 31, 2010) is here. SCOTUS Blog has links to other stories here.

Iqbal in Everyday Practice

In Ashcroft v. Iqbal, No. 07-1015 (May 18, 2009), the Supreme Court ruled that the district court should have dismissed plaintiff Iqbal's claims against government officials for his arrest and conviction. Why? Because his complaint "fail[ed] to plead suffi­cient facts to state a claim for purposeful and unlawful discrimination."

You might have thought that the case would only interest those following issues of national security, terrorism, and discrimination against Muslims. But the case also has applicability for all plaintiffs who make general allegations in their complaints so they can use discovery to get the evidence they need to flesh out their cases.

“Iqbal is the most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts,” said Thomas C. Goldstein, an appellate lawyer with Akin Gump Strauss Hauer & Feld in Washington.

Adam Liptak, Sidebar - 9/11 Case Could Bring Broad Shift on Civil Suits - Series - NYTimes.com, July 20, 2009. Lower courts have cited Iqbal more than 500 times already!

See also:

• Ashby Jones, Why Defense Lawyers Are Lovin' the Iqbal Decision, Wall Street Journal's Law Blog, May 19, 2009.
• Howard Wasserman, Iqbal and the death of notice pleading: Part II, PrawfsBlawg, May 18, 2009.
• Howard Wasserman, Iqbal and the Death of Notice Pleading: Part I, PrawfsBlawg, May 18, 2009.
• Jim Beck & Mark Herrmann, In Praise of "Short and Plain" Pleadings After Twombly and Iqbal, Drug and Device Law, May 28, 2009.
  
• Howard Wasserman, Discovery, Burdens, Risks, and Iqbal, PrawfsBlawg, June 2, 2009.
• Scott Dodson, Against Twombly & Iqbal -- A Reply to Drug & Device Law Post, June 5, 2009.

For discussion of one of those lower court cases -- Tooley v. Napolitano, in which the DC Circuit has granted rehearing on the issue of whether to let a man's suit against Homeland Security proceed -- see Lyle Denniston, Analysis: New Obstacles to Wartime Challenges, SCOTUS Blog, July 4, 2009.

9th Circuit Finds No First Amendment Violation in Teacher's Demotion Over Blog Comments

Law.com - 9th Circuit Finds No First Amendment Violation in Teacher's Demotion Over Blog Comments, Nat'l L.J., June 22, 2009. The (unpublished) case, from Kitsap County, is Richerson v. Beckon, No. 08-35310, 2009 U.S. App. LEXIS 12870 (9th Cir. June 16, 2009)(mem.), available on the court's website.

AG Holder: DNA Evidence Can Exonerate the Wrongfully Charged

day after the Supreme Court ruled defendants have no constitutional right to a review of DNA evidence in post-conviction proceedings, Attorney General Eric Holder Jr. underscored the Justice Department position that seeks to expand access to DNA evidence in the courts.

The BLT: The Blog of Legal Times : AG Holder: DNA Evidence Can Exonerate the Wrongfully Charged, June 19, 2009. The prepared text of Holder's speech is here. The BLT goes on:

Holder issued a statement in response to the Supreme Court 5-4 decision in District Attorney's Office for the Third Judicial District v. Osborne that said, in part: “Constitutional rights are only one part of a fair and full system of justice. Simply because a course of action is constitutional does not make it wise.” Holder said in the statement that the Court “merely spoke about what is constitutional, not what is good policy.”

See Tony Mauro, High Court Rejects Post-Conviction DNA Access, Nat'l L.J., June 19, 2009.

The Solicitor General's amicus brief in Osborne argued against a constitutional right to DNA testing, urging a reversal of the 9th Circuit -- that is, arguing for the result the Court reached. The brief was filed in December 2008 -- that is, during the last Administration.

Judge Allows Katrina Lawsuit Against Corps of Engineers

Judge Stanwood J. Duval Jr. (E.D. La.) denied the government's motion to dismiss a case against the Army Corps of Engineers for damage caused when the Mississippi River Gulf Outlet (MRGO) canal flooded parts of New Orleans after Hurricane Katrina. This was the third time the government sought dismissal. The judge also denied the plaintiffs' motion for partial summary judgment. Judge Allows Katrina Lawsuit Against Corps of Engineers - NYTimes.com, March 20, 2009 (story will be in March 21 print edition); Judge gives go-ahead to MRGO suit, Times-Picayune, March 21, 2009.

The case, Robinson v. United States (No. 06-2268), will begin trial April 20, 2009.

Duval's 65-page opinion is here (on the blog of attorney Joseph M. Bruno)

See the court's page, "Katrina Canal Breaches Consolidated Litigation." These are the last remaining cases stemming from Katrina.

Supreme Court Affirms State Tort Award Against Drug Company

Justices Rule Against Drug Company in Injury Case, Wash. Post, March 5, 2009.

The Supreme Court ruled yesterday in favor of a woman who had her arm amputated after an improper injection of an anti-nausea medication and said drugmakers could not rely on federal regulation to shield them from lawsuits brought under state consumer protection laws.

The case is Wyeth v. Levine, No. 06-1249.

Analysis: A Warning to the FDA, SCOTUSblog, March 4, 2009.

Amid much critical commentary about the way federal drug regulators are doing their job, a Supreme Court majority on Wednesday provided a ringing endorsement of lawsuits in state courts to fill in for lapses at the national level — in particular, lawsuits that claim drugmakers have not given doctors and patients enough warning about side-effects. The six Justices who joined in upholding a verdict of nearly $6.8 million against the pharmacetical company Wyeth have sent their own warnings: to the industry, and to the Food and Drug Administration.

Justice John Paul Stevens’ opinion speaking for five Justices, and Justice Clarence Thomas’ separate opinion joining in the result, provided in combination a reinforcement of these ideas: that drug companies are primarily responsible for keeping their warning labels up to date and complete (and may pay for it if they don’t), and that the FDA not only needs to police the industry more closely — even if it lacks resources – but that it also had better have the clearest mandate from Congress before it tries to scuttle patients’ lawsuits in state courts.

Whole Foods Sues FTC

In Once-Every-Fifty-Years Case, Whole Foods Sues FTC, Am. Lawyer, Dec. 10, 2008 (law.com).

The FTC opposed the merger of Whole Foods Market and Wild Oats Marketplace in the summer of 2007, so it sought a preliminary injunction. The district court denied the motion. The FTC went to the D.C. Circuit to get an injunction pending appeal. Denied. So the deal went ahead. The FTC still appealed the district court's denial of an injunction, and in July the D.C. Circuit reversed and remanded. Federal Trade Comm'n v. Whole Food Market, Inc., No. 07-5276 (D.C. Cir. July 29, 2009, amended and reissued Nov. 21, 2008).

Now, American Lawyer reports:

Now, the Whole Foods legal team from Orrick, Herrington & Sutcliffe, Dechert and new addition Constantine Cannon is trying something it says hasn't been attempted in half a century -- suing the FTC.

The Whole Foods team, which says the company has already spent $16.5 million on legal fees and other costs related to winning approval of the deal, says the FTC is so biased against the merger that it should be prohibited from reviewing it.

Additionally, the grocer's lawyers say, new FTC rules that call for an expedited discovery process put Whole Foods at an unfair disadvantage by giving the company just five months to prepare its case (Whole Foods wants an additional ten months).

A press release from Whole Foods (Dec. 8) is here. The FTC has lots of documents related to its investigation and the litigation here.

See also Whole Foods Returns FTC's Fire: Grocer Files Rare Suit Against U.S. Agency in Fight Over Wild Oats Merger, Wall St. J., Dec. 9, 2008.

Judge sends rambling lawsuit back for a rewrite

Judge Ronald Leighton (W.D. Wash., Tacoma) ordered an attorney to rewrite his 465-page complaint to get to the point. Judge sends rambling lawsuit back for a rewrite Seattle Times Newspaper, July 4, 2008.

Leighton concluded his order with some doggerel:

Plaintiff has a great deal to say,
But it seems he skipped Rule 8(a).
His Complaint is too long,
Which renders it wrong,
Please re-write and re-file today.

The case is Presidio Group LLC et al. v. GMAC Mortgage LLC et al., no. 3:08-cv-05298-RBL. So that it's clear that Judge Leighton analyzed the case with more than a funny verse, here's the full order (filed June 27, 2008):
------------------------------------------------------------------------------

I. INTRODUCTION

Pending before the Court are Defendants’ Motions for a More Definite Statement (Dkts. #12, 19, 20, 21).

Defendants Cano, GMAC, F. James Mayhew, and Mark Schaller assert that Plaintiff’s Complaint, at 465 pages, is repetitious and needlessly long. They request that Plaintiff strike the unnecessary material and re-file his Complaint.

II. DISCUSSION

“Brevity is the soul of wit.”
--William Shakespeare
Hamlet, Act 2, Scene 2, Line 90.

Brevity is also the soul of a pleading. See Fed. R. Civ. P. 8(a). The Federal Rules envision a “short and plain statement of the claim showing that the pleader is entitled to relief.” Id. Under the liberal system of “notice pleading,” a claimant need not set out in detail the facts upon which he bases his claim; to the contrary, the claimant need only give the defendant fair notice of what the claim is, and the grounds upon which it rests. Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001), quoting Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993). When alleging fraud, however, a plaintiff must “state with particularity the circumstances constituting fraud . . . .” Fed. R. Civ. P. 9(b). The Court recognizes the tension between Rule 8(a), which requires a “short and plain statement,” and Rule 9(b), which requires the party state his claim with particularity. The issue before the Court is whether Plaintiff’s 465 page Complaint correctly balances this tension.

The Complaint does not correctly balance this tension. The title to the Complaint is eight pages. (Compl., 1-8) (Dkt. #9). It appears to list all of Plaintiff’s claims, as well as their statutory and precedential basis. In eighteen pages following the title, the Plaintiff lists the Defendants. There are six Defendants. This section consists largely of useless repetition.

Not before page 30 does the Complaint address the facts alleged. Plaintiff’s allegations continue for 87 pages — including a 37 page pit-stop to quote emails. (Compl., 39-76). The Court notes, with some irony, that in his response opposing Defendants’ motions for a more definite statement, the Plaintiff successfully states his allegations in two pages. (Pl.’s Resp., 1-3)(Dkt. #25).

On page 117, Plaintiff embarks on an odyssey through his claims for relief. While the Court understands that asserting 54 claims requires some space, the 341 pages used to do so is unreasonable. The root of the problem lies in paragraphs like the following:

Plaintiffs, for a Fifty-Fourth Claim for Relief, reallege and incorporate herein Paragraphs 1 through 105, including the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty-First, Twenty-Second, Twenty-Third, Twenty-Fourth, Twenty-Fifth, Twenty-Sixth, and Twenty-Seventh Claims for Relief alleged under the federal Racketeer Influenced and Corrupt Organizations Act of 1970 [“RICO”][Title 18 U.S.C.A. §§1961 et.seq.], and the Twenty-Eighth, Twenty-Ninth, Thirtieth, Thirty-First, Thirty-Second, Thirty- Third, Thirty-Fourth, Thirty-Fifth, Thirty-Sixth, Thirty-Seventh, Thirty-Eighth, Thirty-Ninth, Fortieth, Forty-First, Forty-Second, Forty-Third, Forty-Fourth, Forty-Fifth, Forty-Sixth, Forty-Seventh, Forty-Eighth, Forty-Ninth, Fiftieth, Fifty-First , Fifty-Second, and Fifty-Third Claims for Relief.

(Pl.’s Am. Compl., 458) (Dkt. #9).

In sum, while Rule 9(b) requires particularity, the sheer quantity of redundant material presented here forces the Court and the Defendants to engage in an unreasonable amount of filtering. Plaintiff need only state the circumstances constituting fraud; he does not need to quote every email he intends to present into evidence.

The Court strongly recommends that Plaintiff read The Elements of Legal Style, by Bryan Garner.1

III. CONCLUSION

Plaintiff has a great deal to say,
But it seems he skipped Rule 8(a),
His Complaint is too long,
Which renders it wrong,
Please re-write and re-file today.

Defendants’ Motions for a More Definite Statement (Dkts. #12, 19, 20, 21), are GRANTED.

1 The Court recommends Plaintiff specifically review §7.7, “Avoid jargon and beware terms of art,” and §3.1, “Brevity and Clarity.”

-----------------------------------------------------------------------------------------

Fed. R. Civ. P. 8(a) provides:

(a) Claim for Relief. A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

(emphasis added). Rule 9(b):

(b) Fraud or Mistake; Conditions of Mind.
In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.

(emphasis added). Recall that the Federal Rules of Civil Procedure were amended last fall. See this post and this post. The new text of all the rules is here.

The Elements of Legal Style is available in the Library: KF250 .G37 2002 at Reference Area.

Justices Cut Damages Award in Exxon Valdez Spill

The Supreme Court on Wednesday reduced what had once been a $5 billion punitive damages award against ExxonMobil to about $500 million. The ruling essentially concluded a legal saga that started when the Exxon Valdez, a supertanker, struck a reef and spilled 11 million gallons of crude oil into the Prince William Sound in Alaska in 1989.

* * *

The decision may have broad implications for limits on punitive damages generally. Punitive damages, which are meant to punish and deter, are imposed on top of compensatory damages, which aim to make plaintiffs whole.

Justice David H. Souter, writing for the majority in the 5-to-3 decision, said a ratio between the two sorts of damages of no more than one-to-one was generally appropriate, at least in maritime cases. Since Exxon has paid about $507 million to compensate more than 32,000 Native Alaskans, landowners and commercial fishermen, Justice Souter said, it should have to pay no more than that amount in punitive damages.

That works out to $15,000 for each plaintiff for compensation and $15,000 more as punitive damages.

Justices Cut Damages Award in Exxon Valdez Spill, N.Y. Times, June 26, 2008 (it's dated tomorrow but it's on the web today).

The opinion in Exxon Shipping Corp. v. Baker is here.

Supreme Court Rejects Death Penalty for Child Rape

The Supreme Court ruled, 5 to 4, on Wednesday that sentencing someone to death for raping a child is unconstitutional, assuming that the victim is not killed.

Supreme Court Rejects Death Penalty for Child Rape, N.Y. Times, June 26, 2008 (it's dated tomorrow, but it's on the web today). The case is Kennedy v. Louisiana, here.

9th Circuit Blasts U.S. Prosecutor for Withholding Documents

Under Brady v. Maryland, prosecutors have an obligation to give the defense information that might help the defense's case. In a complicated fraud case, the federal prosecutor held back hundreds of pages of documents. As a sanction, the district judge dismissed the case. And now the Ninth Circuit has upheld the dismissal. 9th Circuit Blasts U.S. Prosecutor for Withholding Documents, Nat'l L.J. (law.com), May 12, 2008.

The case is United States v. Chapman, No. 06-10316 court website (9th Cir. May 8, 2008).

Closing Arguments in Suit on Veterans’ Mental Care

Last summer Veterans for Common Sense and Veterans United for Truth, Inc., sued the Department of Veterans Affairs for declaratory and injunctive relief. Now the case has been tried by Judge Samuel Conti (N.D. Cal.), who is expected to rule in the next month or two. Closing Arguments in Suit on Veterans’ Mental Care, N.Y. Times, May 1, 2008.

The suit was brought under the United States Constitution (alleging that the claims process denies veterans due process, that veterans have been denied access to the courts and an opportunity to petition the government for grievances), the Medical Care Act (alleging the VA has a mandatory obligation to provide medical care to returning veterans and that it has failed in this obligation), and the Rehabilitation Act (alleging denial of services to people with handicaps). Complaint at 64-68.

The 73-page complaint provides an eloquent overview of the VA mess:

1. This lawsuit stems fromthe shameful failures of the United States Department of Veterans Affairs ("VA") and other governmental institutions to meet our nation's legal and moral obligations to honor and care for our wounded veterans who have served our country. Because of those failures, hundreds of thousands of men and women who have suffered grievous injuries fighting in the ongoing wars in Iraq and Afghanistan are being abandoned. Unless systemic and drastic measures are instituted immediately, the costs to these veterans, their families, and our nation will be incalculable, including broken families, a new generation of unemployed and homeless veterans, increases in drug abuse and alcoholism, and crushing burdens on the health care delivery system and otehr social services in our communities.

2. The system for deciding VA claims has largely collapsed. The VA claims adjudication system is currently mired in processing a backlog of over 600,000 claims, many of which have been pending for years. The time period for a claim to be fully decided can exceed ten (10) years. By comparison, the private sector health care industry processes thirty (30) billion claims annually in an average of 89.5 days per claim, including the time required to resolve disputed claims. The VA's process for pursuing a claim is not merely arbitrary and ineffective. The delays have become an insurmountable barrier preventing many veterans from obtaining health care and benefits. Many wounded veterans, particularly those with combat-caused mental illness, give up in frustration and despair or die while their claims are pending. In these cases, justice delayed is justice denied.

Complaint at 3.

The legal claims (summarized above) are discussed at ¶ ¶ 258-78. Complaint at 64-68.

I don't think I've mentioned here that Justia makes available the dockets and electronic documents from many federal cases available free (Justia Federal Civil Court Filings). This is an example of how cool this resource is. In addition to the complaint, you can see the whole docket for this case and read the government's motion to dismiss, the order granting in part and denying in part the motion to dismiss (the judge dismissed the Rehabilitation Act claim), the government's trial brief, and plaintiffs' trial brief.

Thanks: Michele Storms.

Self-Representation Right Considered by SCOTUS, with Help of Empirical Study

In a concurring opinion in a case about the right of criminal defendants to represent themselves on appeal, [Justice] Breyer noted the lack of data on the subject of pro se defendants.

The court had declared 25 years before, in Faretta v. California, 422 U.S. 806 (1975), that defendants had a right to represent themselves at trial. But Breyer noted in his concurrence in Martinez v. Court of Appeals, 528 U.S. 152 (2000), that some judges "closer to the firing line" had expressed some dismay about the practical consequences of allowing defendants to act as their own lawyers.

But Breyer added that the court wasn't in a position to reconsider its opinion -- yet. "I have found no empirical research ... that might help determine whether, in general, the right to represent oneself furthers, or inhibits, the Constitution's basic guarantee of fairness."

Professor Answers Justice Breyer's Wish for Study on Pro Se, Fulton County Daily Report, April 7, 2008, law.com.

Now the Court is considering the issue again and has the benefit of Erica J. Hashimoto, Defending the Right to Self Representation: An Empirical Look at the Pro Se Felony Defendant, 85 N. Car. L. Rev. 423 (2007), available at http://ssrn.com/abstract=901610. In the samples she studied, defendants who represented themselves were acquitted about as often as those represented by attorneys. (See my earlier post.)

This Term's case is Indiana v. Edwards, No. 07-208, argued March 26. The question presented is

May a criminal defendant who, despite being legally competent, is schizophrenic, delusional, and mentally decompensatory int he course of a simple conversation, be denied the right to represent himself at trial when the trial court reasonably concludes that permitting self-representation would deny the defendant a fair trial?

Smelter case a big mess in more ways than one

Smelter case a big mess in more ways than one, News Tribune (Tacoma), Feb. 22, 2008. An overview of the complex dispute involving the pollution of Washington's Lake Roosevelt (the lake behind Grand Coulee Dam) by a Canadian Smelter -- EPA (under two presidents), Washington State, the Colville tribe, ...

The article quotes Prof. Michael Robinson-Dorn, the director of the UW's Berman Environmental Law Clinic. For more (lots more!) about the case, see Michael J. Robinson-Dorn, The Trail Smelter: Is What's Past Prologue? EPA Blazes a New Trail for CERCLA, 14 N.Y.U. Envtl. L.J. 233 (2006) , available at SSRN and Prof. Robinson-Dorn's website providing copies of opinions, briefs, pleadings, and other material.

Photo of Lake Roosevelt from the Governor's Salmon Recovery Office. (Beautiful, isn't it? You can't tell how many heavy metals and other pollutants are in a lake just by looking at it.)

State Court Could Apply Crawford Rule Retroactively

In 1996 Stephen Danforth was convicted of sexual conduct with a minor. His alleged victim, a six-year-old, did not testify, but the jury was shown a videotape interview with her. In 2004, the Supreme Court in Crawford v. Washington, 541 U.S. 36, Findlaw, ruled that testimonial statements -- even in recordings -- must be subject to cross-examination. So Danforth sought post-conviction relief in Minnesota.

The state court declined the relief because it did not think it had the option to extend the rule announced in Crawford retroactively. Today the Supreme Court held otherwise -- the state court isn't required to apply the rule retroactively, but it can do so. And so the case is reversed an remanded. Danforth v. Minnesota, No. 06-8273, Court website.

See Lyle Denniston, Analysis: ‘Creating’ or ‘declaring’ rights, SCOTUSblog, Feb. 20, 2008:

Perhaps it is not enough to gladden the hearts of true “originalists,” but a clear majority of the Supreme Court has newly acknowledged that, when it comes to constitutional rights, they always existed and did not just emerge out of modern judicial creativity. That concept, most closely identified with the jurisprudence of Justice Antonin Scalia, is a basic rationale behind Wednesday’s 7-2 decision in Danforth v. Minnesota (06-8273) . . .