Innocence Movement: Free Online Course / Video Series

The University of Illinois Springfield offers a free online course on the Innocence Movement beginning today, Feb. 2, 2015. You can register online at: http://uis.coursesites.com (Click on this link, then click the name of the course, The Innocence Movement, in the box on the right, then self enroll.) You can enroll in the course at any time. It will remain open and accessible indefinitely. The instructor is Prof. Gwen Johnson, from the Legal Studies Department.

This Innocence MOOC (Massive Open Online Course) is a series of videos that feature exonerees, lawyers, students, and advocates from across the country describing their experiences in the Innocence Movement. It includes the stories of Kirk Bloodsworth, Brian Banks, Juan Rivera, Audrey Edmonds, Vanessa Potkin, Justin Brooks, Laura Caldwell, Senator Dick Durbin, Dr. John Plunkett, Scott Turow, and Eric Zorn, among many others.

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.

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.

Free Webcasts from NITA

NITA (the National Institute for Trial Advocacy) offers a free webcast in a couple of weeks: Bad Facts in Your Case? Using theme and theory to tell your story to the factfinder, Jan. 17, 2014, 11 am Mountain (that's 10 am here in Seattle) (NITA is based in Boulder, CO). But wait! There's more! NITA has a couple of dozen Studio71 Webcasts—and many of them are free.
(You can still watch the ones whose dates have passed. You just don't have the live interactive features.)

Free* webcasts include:

• Fundamentals of Cross Examination, Feb. 11, 2014
• Three Critical Tools: Impeachment, Refreshment, and Past Recollection Recorded, Jan. 28, 2014
• Evidentiary Foundations for Social Media Evidence, Dec. 9, 2013
• How to Use Your Trial Skills to Prepare for Mediation, Nov. 19, 2013
• Challenging the Admissibility of Forensic Expert Testimony, Oct. 15, 2013
• Right of Publicity and Privacy, Oct. 2, 2013
• Making and Meeting Objections in Child Welfare Court Proceedings, Aug. 23, 2013
• Demo: Expert Witness Examination, June 19, 2013
• Jury Selection, June 19, 2013
• Direct Examinations in Child Welfare Court, Nov. 8, 2011
• Cross Examination

And there are more!

*There are some fee-based webcasts, too, but the free ones should be especially appealing for student budgets. It's pretty exciting to see the shopping cart icon with "0.00"!

Convicting the Innocent

You've heard of people who were shown by DNA evidence to be innocent of the crimes they were imprisoned for. How can that happen? What can we learn from it?

Prof. Brandon Garrett (with the help of a team of research assistants) found out all he could about the first 250 DNA exonerations, gathering trial transcripts (when available), news coverage, appellate records, and the records from state post-conviction proceedings and federal habeas cases. Then he mined the data: How many of the exonerated people had confessed falsely? How many had been mistakenly identified by one or more eyewitnesses? How many were prosecuted with questionable forensic evidence (hair analysis, for instance, does not prove much of anything)? How many years did it take from initial conviction to eventual exoneration?

He presents the results in Convicting the Innocent: Where Criminal Prosecutions Go Wrong (KF9756 .G37 2011 at Classified Stacks). The results are disturbing—but can also be instructive.

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.

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.

Hot Coffee -- Documentary about Tort Reform

A new documentary explores the rhetoric and politics of "tort reform." Hot Coffee: Is Justice Being Served? begins with the the case that has been fodder for comedians and politicians, Liebeck v. McDonald's.

Seinfeld mocked it. Letterman ranked it in his top ten list. And more than fifteen years later, its infamy continues. Everyone knows the McDonald’s coffee case. It has been routinely cited as an example of how citizens have taken advantage of America’s legal system, but is that a fair rendition of the facts? Hot Coffee reveals what really happened to Stella Liebeck, the Albuquerque woman who spilled coffee on herself and sued McDonald’s, while exploring how and why the case garnered so much media attention, who funded the effort and to what end. After seeing this film, you will decide who really profited from spilling hot coffee.

The next segment of the film looks at how a tort-reform damage cap has affected one family with a seriously disabled son.

And the third segment features Oliver Diaz, a justice of the Mississippi Supreme Court who successfully campaigned against a candidate backed by the U.S. Chamber of Commerce, only to be indicted for accepting a bribe and then for tax fraud. Despite his acquittals, the charges kept him off the bench for years and probably cost him his next election.

The filmmaker, Susan Saladoff, is a lawyer who took on this project – her first film – during a sabbatical from her practice. She definitely has a point of view, and in the film and on the website encourages people to take action opposing tort reform. Whether or not you ultimately share her position, the film offers important information, with clips from advocates on both sides of the debate. Check it out: KF1250.H68 2011 at Classified Stacks.

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).

"Hot Coffee" Documentary Challenges "Tort Reform"

Oregon Attorney's Documentary 'Hot Coffee' Makes the Sundance Cut, ABA Journal, Feb. 1, 2011. Susan Saladoff explains her project here:



The movie's website includes links to resources. And this page gives links to Democracy Now! segments with film clips and interviews. One person interviewed is former Mississippi Justice Oliver Diaz whose election was opposed by the U.S. Chamber of Commerce. After he won, the local U.S. Attorney prosecuted him for campaign finance violations (he was acquitted) and then for tax violations (he was acquitted again).

The film got good press at Sundance. I'm looking forward to when the website includes a list of cities where it's playing -- and Seattle is one of them.

Documentary on Media, Race, Crime, and Punishment

Juror Number Six (2008) -- a short documentary on the Web -- explores the media, race, and the criminal justice system. Dozens of clips from television news, drama, and reality programs vividly illustrate how media shapes our perceptions (and jurors' perceptions) of crime and criminals. Crime has been going down, and yet crime is portrayed much, much more. Fear sells.

While the news scares viewers, dramas might actually comfort us. On "Law and Order," for instance (and I've happily watched hundreds of hours of it!), we see far more African American judges, prosecutors, and defense attorneys than are present in most communities. Defendants all seem to have counsel right away, and generally very sharp counsel. And so, the film suggests, we are led to believe that the system is much fairer than it actually is.

The documentary's producer lists impressive partners:

• The Berkman Center for Internet & Society at Harvard Law School
• The Center for Communications and Community at UCLA
• The Center for Justice in Capital Cases at DePaul University, College of Law
• The Center on the Media, Crime and Justice at the City University of New York’s John Jay College of Criminal Justice
• The Center on Race, Crime and Justice at CUNY John Jay College of Criminal Justice
• The Charles Hamilton Houston Institute for Race & Justice at Harvard Law School
• The Department of Journalism at San Francisco State University
• The Division of Cinema-Television at Southern Methodist University
• USC Annenberg Institute for Justice and Journalism
• The Kirwan Institute for the Study of Race and Ethnicity at Ohio State University
• The Media and Culture Program in Bentley College’s English Department

Irving Younger -- Still Teaching

Irving Younger was a giant of trial advocacy -- professor (NYU, Cornell, Minnesota), practitioner, judge (City of New York, 1969-74). He was a masterful teacher and was famous for his lectures on evidence, discovery, and other topics.

Even though Younger died in 1988, he is still teaching, via recordings. See (and hear!) Trial Evidence Series (14 videotapes), KF8935 .Y68 1982 at Reference Area; The Ten Commandments for Cross-Examination (DVD), KF8920 T46 2000 at Reference Area.

Now the ABA Section of Litigation has published a book collecting a number of his speeches: The Irving Younger Collection: Wisdom & Wit from the Master of Trial Advocacy (Stephen D. Easton ed., 2010), KF213.Y68 E17 2010 at Classified Stacks. You can read his observations and tips on discovery, expert witnesses, scientific evidence, hearsay, jury selection, and cross-examination. You can also read his speeches on historic cases: Ulysses, Alger Hiss, and Erie.

The tone is casual, conveying messages through war stories, quips, and examples. Here's a passage I flipped to:

Lewis on cross-examination: "When this man jumped up on the running board, was he disguised in any way?"

"No."

"What was he wearing?"

"What I've told you -- khaki pants and a T-shirt."

"By a T-shirt, do you mean man's underwear, cut pretty short at the arms?"

"Yes."

"Did you get a good look at those arms?"

"I sure did. One of those arms was holding a gun to my head."

"Was there anything unusual about that man's arms?"

"No."

And at that point, Lewis turned to DeSisto and said,"DeSisto, stand up. Take off your jacket." He took it off. "Roll up your sleeves." He rolled up his sleeves and there was an audible gasp in the courtroom because from wrist to shoulder, both arms were tattooed like the tattooed man in the circus. The government stipulated that DeSisto had been tattooed in that fashion at the age of 20 some odd; he was now well into his forties. And Lews sat down. That's it. What more can you do on cross-examination? You have raised a serious question not as to whether there was a hijacking, not as to whether somebody didn't jump up on the running board, but as to whether Wimpy has identified the man who did it correctly.

p. 258.

If you want to be a trial lawyer or if, like me, you're just interested in trials, The Irving Younger Collection is worth checking out.

Mass. Town Pays $3.4M to Family of Wrongfully Convicted Man

The town of Ayer and five of its insurers have agreed to pay $3.4 million to settle a civil rights lawsuit filed by the estate of the late Kenneth Waters, who spent more than 18 years in prison for a murder he did not commit before his sister earned a law degree and helped free him through DNA evidence.

* * *

The lawsuit, which was scheduled to go to trial next week, accused Ayer police of coercing false testimony to convict Waters and withholding evidence that could have cleared him.

Ayer to pay $3.4m for unjust conviction, Boston Globe, July 15, 2009.

See also Betty Anne Waters wins $10.7M for brother's wrongful murder conviction, Nat'l L.J., Sept. 17, 2009 (you have to register to view the story).

The story of a sister who gets her GED and puts herself through college and law school in order to help her brother -- and then succeeds! -- is the stuff of Hollywood. And indeed, Betty Anne Waters is due out later this fall. Hillary Swank plays Betty Anne Waters and Minnie Driver plays her law school friend Abra Rice. Rice, now a public defender, is profiled in Courtroom Drama, New Haven Advocate, Aug. 18, 2009.

Here's the real Waters at an Innocence Project event (she appears at 2:58):

Trial Ad Text -- and Multimedia Too!

Three faculty members from Seattle University have written a second edition of their trial advocacy textbook: Marilyn J. Berger, John B. Mitchell & Ronald H. Clark, Trial Advocacy: Planning, Analysis, and Strategy. Its companion book is Trial Advocacy: Assignments and Case Files.

The publisher's description of the book begins:

Trial Advocacy: Planning, Analysis and Strategy, Second Edition is completely revised and updated reflecting today’s trial practice. Every chapter includes practical and conceptual instructions with realistic illustrations. Trial planning techniques and strategies using case theory and theme are explained in depth. Trial Advocacy presents premier trial persuasion principles and state-of-the-art technology used by practicing lawyers. It provides guidance for every phase from trial preparation to closing argument. The text together with an accompanying DVD showing model trial demonstrations of all aspects of trial from jury selection to closing argument, make this this an outstanding primer for law students and will serve as an indispensable resource for a continuing trial practice. A companion book contains Assignments and a CD with the case files.

The first edition came out in 1989, so an update is very welcome -- particularly with respect to technology used in practice management and trial presentations.

Throughout the book, students will find handy tips and checklists set off in boxes -- helpful reminders to people who are trying to develop their skills.

The supplement has dozens of exercises that can be used in a class or training session. It comes with a CD that has lots of documents connected with the exercises (pleadings, deposition excerpts, experts' CVs, photographs, etc.).

I like the "research memoranda" -- short discussions of the law in the fictitious jurisdiction where the exercises are set, so that students have the relevant rules of evidence and a summary of caselaw on issues like spousal privilege, prior convictions, duty to defend, or whatever. The preface says that faculty can choose to set the exercises in their own state and have students research the law. I'm all for more research experience for students, but I see an advantage to giving the students the law so that they can focus on the skill and judgment needed for making objections, arguing motions, and so on.

But wait, there's more!

Trial advocacy doesn't take place within the covers of a book, you know. Recognizing that, the authors provide a DVD so that you can see and hear a demonstration trial (or significant passages from a trial). You can see clips here.


Seattle lawyers and law students might recognize several of the actors. Lawyers are played by local lawyers -- and UW and SU Trial Ad instructors -- Lisa Marchese, Craig Sims, William Bailey (pictured above), Vonda Sargent, and Matthew Williams. The judge is played by Judge Dean S. Lum of King County Superior Court. The defendant is played by Tacoma District Court Judge Jack Nevin. Not only can you spot folks you know -- the fact that real lawyers are involved makes the mock trial very realistic. The script is by Ron Clark -- no slouch either, of course!

Just a week or two ago, a lawyer called me looking for DVDs of trials that he could watch to learn more about trial procedure and presentation skills. We talked about going to the courthouse to watch actual trials -- he agreed that that would be useful, but he felt he couldn't take the time from work and he could watch a DVD in the evening. He wanted actual trials, but this carefully edited DVD might be a much better start.

The DVD also includes a tour of the crime scene from another case, with the prosecutor's investigator walking the viewer around, showing where the witnesses were sitting, where the hallway was, and so on. This should be very helpful to students trying to prepare trial exercises for that case. Hats off to Seattle U's Films for Justice Institute, which did a fine job creating the films.

Two books, a CD, and a DVD. What else could you want? Well, there's a website with some additional information, including links to companies that prepare trial graphics, research sites, and other sites (including this blog).

Disclosing possible bias, I'll say that I've chatted with Ron Clark at the Book Store Cafe and I was happy to get review copies of the books in exchange for a promise to blog about them.

Those review copies will soon be part of the library collection so UW students and others in the Seattle area will be able to take a look. When they've been cataloged, I'll add the call numbers here.

The Trials of Darryl Hunt

The Trials of Darryl Hunt is the story of a murder, its investigation, the wrongful conviction of an innocent man, and -- after many years -- his eventual exoneration. You can see a trailer on the film's website. And you can check out the DVD from the law library and watch the whole thing: KF9756 .T75 2007 at Classified Stacks

WSBA's YouTube Contest

The Washington State Bar Association invites you to create a short video (3 minutes max.) showing "your vision of justice for all as citizens of Washington state." Not only do you get to use your creativity and express yourself, but you also will be in the running for two $1000 prizes -- one to be selected by a panel of judges and one People's Choice winner. You might even get both!

Details about the contest are here. The deadline for posting entries on YouTube is June 15, 2009.

Alliance for Justice: Our Rights, Our Courts, Our Future

The Alliance for Justice held a day-long program, Our Rights, Our Courts, Our Future on Sept. 25. Now you can watch video of most of the speakers (and read a transcript of one speaker's remarks) here.

• Access Denied? Our Courts and Consumer Protection. Panel includes Diana Levine, the plaintiff in a case before the Supreme Court this Term (see Drug Label, Maimed Patient and Crucial Test for Justices, N.Y. Times, Sept. 18, 2008).
  
• Executive Privilege: Abuse of Presidential Power in the Bush Administration
• Repercussions of Judicial Selection in the Bush Administration.

Also available:

• transcript of May 28, 2008, luncheon speech by Hon. Patricia M. Wald (D.C. Cir.)
• Video, Supreme Injustices. (This is one of the films Abby Ginzberg recommended last week.)
• Herman Schwartz Distinguished Lecture (March 3, 2008) by Jeffrey Toobin (author of The Nine: Inside the Secret World of the Supreme Court, KF8748 .T66 2007 at Classified Stacks).
• Herman Schwartz Distinguished Lecture (July 25, 2007) by Sen. Richard Durbin.

Brick by Brick: A Civil Rights Story

Brick by Brick: A Civil Rights Story follows three Yonkers families during a struggle over housing desegregation. It goes back decades to describe how a ghetto was created through public policies, so that people of color mostly lived in segregated neighborhoods with very poor schools. Members of the community organized to fight for change, and the film

tracks the resulting federal US v Yonkers litigation, which challenged neighborhood and educational discrimination. Coming back out of the courtroom into the community, the story describes the bitter local confrontation about race and the very concept of community that follows. From a first person perspective, characters weave a tale of years of work attempting to achieve justice, with a labyrinth of successes and setbacks that the struggle entails.

At its close, Brick by Brick shows what has happened both to a community and to individual citizens, committed to their city. It also illustrates the difference housing opportunity can make in a single family’s life. The story brings the fiery legal and political crucible of a contemporary city and its larger implications for our nation today onto the screen.

It's in the library: HD7288.76.U5 B75 2007 at Classified Stacks.

The print is too small to read here, but this KeyCite display will show you how complex the case's history is:

Dates range from 1995 to 2000.