House Bill Would Require DNA for Death Penalty

[LEGISLATION] HB 3230, introduced today, would require DNA evidence to support the conviction of anyone sentenced to death to reduce the risk of innocent people being executed. It is scheduled for a hearing in committee on Jan. 31.

Categories: DNA, criminal-law, death-penalty, legislation,

Thinking about Solo Practice?

Are you thinking about solo practice? Take a look at Carolyn Elfant's blog, My Shingle, with lively and thoughtful commentary on life as a solo practitioner.

GP/Solo is the magazine of the ABA General Practice, Solo & Small Firm Division.

And for a book with all sorts of great advice, see Jay Foonberg's How to Start and Build a Law Practice (KF300 .Z9F66 2004 at Reference Area). See review in the Crier.)

Categories: practice-of-law, solo-practice, booksmyshingle

The Illinois Trial Practice Weblog

[TIP] The Illinois Trial Practice Weblog by Evan Schaeffer has consistently high-quality tips and notes about trial advocacy. Some items are, as the blog's name suggests, focused on Illinois practice, but many are applicable to anyone developing trial skills.

From the current posts, I recommend:

• Testifying at Trial: Don't Let Your Client Make These Disastrous Mistakes (Jan. 25)
• An Organizational Tip I'm Going to Try Myself: The Case on a Single Page (Jan. 4)
• Learning to Be Comfortable in a Courtroom (Dec. 30).

You can find lots more by using the list of Categories (e.g., Closing Argument, Courtroom Tech, Evidence) in the sidebar on the left.

Are you a senior attorney who gives assignments to associates, law clerks, or externs? Take a look at Giving Legal Research Assignments to Others (Dec. 14). And if you are an extern, clerk, or associate, take a look at it anyway and think about asking for that information when you get assignments, even if your boss forgets to give it to you.

Categories: Illinois-Trial-Practice-Weblog, research-assignmentsresearch-assignments

Expert Witness Database on Westlaw

The new EW-DOCS database on Westlaw contains documents from expert witnesses filed in the state and federal trial courts throughout the United States. A document is an expert report, affidavit, deposition, or trial transcript.

Users have three options for searching this database:

1. the traditional "terms and connectors" search
2. natural language
3. template

The template search provides a search box for key words and phrases along with fields for the expert's field, type of case, party for whom the expert testified, federal and/or state courts, and jurisdiction.

I tried some sample searches. It's interesting to see the range of material -- for instance, in Washington I looked at an economist's analysis of the wine distribution industry and an engineer's statement about how seatbelts functioned in an accident --and how an expert's affidavit is structured.

Thanks to my colleague Cheryl Nyberg for this tip.

Categories: experts, Westlaw

Do Jury Trial Innovations Help Jurors Understand Scientific Evidence?

At AALS I heard a presentation about a study investigating how jurors understand expert testimony, specifically about mitochondrial DNA (mtDNA). Valerie P. Hans, now a professor at Cornell Law School (formerly in the Department of Sociology and Criminal Justice at the University of Delaware), was one of the investigators who had mock juries -- volunteers from the Jury Assembly Room of a Delaware Superior Court -- view a videotaped mock trial, deliberate, take true-false quizzes, and be interviewed. Some juries were allowed to use various innovations, such as note-taking, asking questions of witnesses (the researchers had DNA experts on call via telephone), juror checklists, or juror notebooks.

The full study is:

B. Michael Dann, Valerie P. Hans, David H. Kaye, Testing the Effects of Selected Jury Trial Innovations on Juror Comprehension of Contested mtDNA Evidence Final Technical Report (Dec. 30, 2004).

Based on the true-false quizzes and interviews, the investigators found that most jurors understood most of the basics about mtDNA. Comprehension was higher with any of these factors:

• more education, especially math and science courses;
• a job that involves math and science;
• participating in jury deliberations.

Study participants were concerned about the reliability of mtDNA in the mock trial. Non-whites and jurors with less formal schooling were more concerned about reliability and possible contamination. (p. 54)

Jurors who had available one or more of the "innovations" found them helpful and supported their use (p. 66). But the innovations did not help comprehension much:

Contrary to our predictions, both before and after deliberation, no significant differences are found when comparing each condition separately to the No Innovations group.121 That is, compared to jurors who had no access to the innovations, the Juror Comprehension scores are not significantly higher for jurors in the various innovations conditions.

(p. 70) However, a combination of innovations does help:

After deliberation, jurors in the Jury Notebooks condition, the Checklist condition, and the All Innovations conditions score significantly higher on the juror comprehension scale, compared to the jurors in the Jury Note taking condition. Thus, additional innovations on top of jury note taking appear to improve the jurors' comprehension of the scientific evidence.

(p. 70) Chapter 8 – Summary of Findings and Conclusions and Some Practical Suggestions for DNA Practitioners (pp. 81-86) wraps it all up.

(updated Feb. 6)

Categories: empirical-studies, juries, experts, AALS, DNA, Hans, forensics

Suit filed for readers' wasted time

[NEWS] The author of a supposed non-fiction memoir has acknowledged that parts are fiction, and the publisher has offered buyers a refund of the purchase price. On Thursday plaintiffs filed a lawsuit in the Western District of Washington seeking damages for the "lost time" spent reading the book. They seek class action certification. The Seattle Times: Local News: Seattle suit filed for "lost time" over controversial best-seller

Feb. 1: Brian McDonough from Legal Pad labels this suit How Not to Combat Tort Reform.

Categories: news

House Passes Med Mal Bill

[LEGISLATION] The Washington House passed a medical malpractice bill yesterday. The Olympian - Medical malpractice bill passes first hurdle. The bill's measures include:

• Doctors with three serious acts of unprofessional conduct in 10 years would lose their licenses.
• Health care workers' apologies or admissions of fault would not be admissible as evidence in a later action.
• Insurers, self-insurers, and claimants would be required to reports all settlements of closed claims to the Insurance Commissioner. (Florida has had this requirement for years. Neil Vidmar is working on a study using the data.)
• Absent approval by a judge, litigants would be limited to two expert witnesses per side.
• No med mal suit could be filed without a "certificate of merit" from a qualified expert.<
• Attorneys fees could be awarded in some cases where the prevailing party had offered a settlement that was rejected.
• A voluntary arbitration system would be available for claims up to $1 million.

Click here for more about HB 2292, including text of the various versions (the one that passed was the second substitute bill), bill reports, and its day-by-day status in the legislature.

Categories: med-mal, legislation, tort-reform,

Lawyer found guilty in rival's shooting

[NEWS] A local lawyer was found guilty last month of attempted murder for shooting opposing counsel in the head in 2004. The Seattle Times: Lawyer found guilty in rival's shooting William Joice did not dispute that he shot Kevin Jung. His defense was that he meant to shoot Jung only in the arm or shoulder in order to buy time in the case they were involved in (a dispute over a gift shop franchise).

Over several hours of testimony, Joice described how he entered an alcohol and stress-fueled "fantasy world" in summer 2004, when he came up with the idea of shooting Jung. He had money problems and missed several deadlines in the gift-shop case, which Jung had pointed out repeatedly in court filings.

Many of the jurors could empathize with his misfortune, but only to a point.

"Everyone agreed [that] even though we all have problems in our lives, we don't solve them by trying to kill someone," said jury forewoman Karen Morgan, 42, of Maple Valley.

Categories: Joice, Jung, practice-of-law, news, juries,

Online Mock Juries

[NEWS] Law.com offers this article about firms that will run mock trials online:Legal Technology - 12 Angry Surfers, Small Firm Business, Dec. 22, 2005. Two consulting firms mentioned are eJury and Virtual Jury.

Categories: juries

Study of Voir Dire

[RESEARCH] A study of voir dire in one Midwestern county explores attorneys' practices, attitudes, and experience. Marvin Zalman & Olga Tsoudis, Plucking Weeds from the Garden: Lawyers Speak about Voir Dire, 51 Wayne L. Rev. 163-448 (2005), Find Result - 51 WAYNLR 163.

The researchers created a sample of 46 jury trials -- 22 criminal, 24 civil -- in the county (which is unnamed, to preserve the anonymity of attorneys and judges). They then conducted 60-90 minute interviews with attorneys in the cases, interviewing 79 attorneys in all. Their questionnaire covered topics such as the perceived purpose of voir dire, preparation for voir dire, how the attorneys decide whom to strike, whether peremptory strikes should be retained, whether the attorneys had experience with Batson challenges. Attorneys also took a written survey to measure general attitudes (such as "liberal" and "conservative").

"Attorneys gave conflicting accounts of the fairness of judges' ability to rehabilitate jurors who had made biased statements."

All respondents felt that the peremptory challenge should not be eliminated.

Excerpts from the article's Conclusion (pp. 382-89):

• "Most respondents agreed that gaining rapport and 'educating a jury on your case theory' were goals they sought to achieve during voir dire."
• "On the whole, the respondents had modest views of their ability to predict the decisions of jurors."
• "For the most part, preparation for voir dire was a byproduct of preparation for the trial, and not a distinct phase of preparation that required unique efforts."
• "One important aspect of preparation was knowing the judge's reputation for the extent of latitude allowed to attorneys on voir dire and knowing any special rules they might impose on the jury selection process."
• "During voir dire, attorneys found it useful to have either another attorney, a paralegal, or a client observe the jury to provide information on the body language of jurors and to assist in other ways."
• "On the whole, voir dire was not excessively time consuming." Mean estimates from respondents were: 1 hr. 53 min. (crim defense attys); 2 hr. 29 min. (prosecutors), 1 hr. 45 min. (civil attys).
• "To explore the reliance on stereotypes, we asked whether jury panels appeared to reflect a cross-section of Midwest County residents. 'Liberal,' or civil plaintiffs' and criminal defense attorneys, tended to answer 'no' while 'conservative,' or civil defendants' attorneys and prosecutors, tended to answer 'yes.'"
• "All respondents felt that the peremptory challenge should not be eliminated."

Categories: empirical-studies, voir-dire, surveys,

Wash. Supreme Court Comes to UW

[EVENT] The Washington State Supreme Court visits the UW School of Law this week, on Wednesday afternoon (reception in the afternoon) and Thursday (oral arguments and a panel on clerkships).

The first case scheduled for argument is State v. Athan, challenging the way police got DNA evidence against the defendant. They sent him a letter purporting to be from a lawyer; when he sent back the reply envelope about the supposed class action, they got saliva from the envelope flap. At its December meeting the WSBA Board of Governors voted to have WSBA file an amicus brief "to send a clear statement that police or investigators holding themselves out as lawyers was not an allowable ruse." WSBA would not address the remedy.

A detailed schedule links to the parties' briefs in the three cases being argued is here.

Categories: event, judges, State-v-Athan, WSBA, UW

More on Indictment of Alleged Arsonists

[NEWS] The Seattle Times reports more detail about yesterday's indictment in Eugene of eleven people in the series of arsons allegedly on behalf of the Earth Liberation Front (ELF) and Animal Liberation Front (ALF). The Seattle Times: Local News: Prosecutors portray close-knit arson team.

The Times article links to the indictment in this complex conspiracy case. Sixty-five counts! Eighty-three pages!

The press release from the U.S. Attorney in Oregon is here.

Categories: indictments, arson, news

Eleven Defendants Indicted on Domestic Terrorism Charges

[NEWS] The Department of Justice obtained an indictment against 11 defendants in Eugene, charging them with arson and destruction of an energy facility for allegedly participating in an eco-terrorism campaign in five western states. DOJ Press Release. One of the incidents was the May 21, 2001, arson that seriously damaged the UW's Center for Urban Horticulture. (The Center for Urban Horticulture has been rebuilt and was rededicated a year ago.)

Categories: indictments, arson, UW, news,

New Trial after Prosecutorial Misconduct

[CASE] Prosecutorial misconduct in opening and closing statements leads to a new trial in a child molestation case. In the unpublished opinion, Division 2 also addresses a jury instruction question. State v. Mackey, 2005 WL 3541568 (Wash. App. Dec. 28, 2005), Find Result - 2005 WL 3541568.

The defendant was charged with molesting his neighbor, S.B., when she was 11 to 14 years old. The defendant's former step-daughter testimony about similar conduct years before, when she was a minor, was allowed under Rule 404(b) as "proof of a common scheme or plan, absence of mistake or accident."

In oral argument, the state conceded prosecutorial misconduct in two of the three instances the defendant raised and that the misconduct prejudiced the defendant's right to a fair trial. The court found all three instances to be misconduct.

• In the opening statement the prosecutor said that the because the defendant "damaged 2 young lives" he should be held accountable at least for the molestation to the neighbor. This use of the step-daughter's testimony went beyond what was allowed under 404(b).
• In closing argument the defense said that the neighbor girl was not credible because of her delay in reporting the abuse. The prosecutor then recounted a story about a Russian figure skater who had been sexually abused an beaten by her coach -- presumably the story was meant to show that victims of abuse often do not report it. This was improper, both because it was meant to "arouse the jury's passion" and because it was extrinsic evidence.
• During closing argument the prosecutor said that this was not the first time the neighbor girl had had to testify about the defendant's conduct. This, too, was misconduct.

After ordering a new trial, the court of appeals also discussed a jury instruction that had been given:

Evidence has been introduced in this case on the subject of the child molestation of [the former step-daughter] for the limited purpose of proof of a common scheme or plan, absence of mistake or accident. You must not consider this evidence for any other purpose.

This was error because it appeared to indicate that the judge believed the molestation had occurred. Since the defendant contested that the instruction should be "Evidence has been introduced . . . on the subject of the alleged child molestation. . . ."

Categories: opening-statements, closing-arguments, new-trials, 404(b), prosecutorial-misconductcases

The CSI Effect

[NEWS] This weekend the Seattle Times ran an AP story about the "CSI Effect" -- worries that the popularity of shows like "CSI" and "Law & Order" affect jurors. Linda Deutsch, TV distorting jurors' expectationst?, Jan. 15.

Which side benefits the most — prosecutors or defense attorneys — is debatable. While "Law & Order" glamorizes prosecutors, "CSI" can set standards for the infallibility of forensic evidence that prosecutors can't often meet, a science-solves-all formula that millions of viewers may bring to jury service.
* * *
"The expectations of jurors are more elevated," said Elissa Mayo, assistant lab director for the California Attorney General's Bureau of Forensic Services. "They think that we have all the space-age equipment that they see on TV and before you come back from the commercial break you have the results."

For a sampling of other stories, see Bibliography of Resources Related to the CSI Effect, prepared for a program at last summer's ABA meeting, "CSI Meets the Courts: The Brave New World of Forensic Technology."

While at the ABA site, I found that the ABA awarded its "Silver Gavel" to the Chicago Tribune for a special series called "Forensics Under the Microscope." The reporters told the ABA:

As we were reporting the series, other newspapers were reporting on prosecutors’ complaints of a so-called “CSI effect,” that is, jurors acquitting defendants for lack of precise forensic evidence. In fact, our reporting showed the more systemic problem is that prosecutors are using unproven forensic evidence and testimony and that jurors are readily accepting it. We hope that readers — be they prosecutors, defense attorneys, judges or potential jurors — will be better informed when they enter the courtroom.

Categories: juries, evidence, forensics, CSI, ABA, popular-culture

"Twinkie Defense" an Urban Legend?

Snopes.com "Urban Legends Reference Pages is a great site for checking out rumors, hoaxes, and stories that just don't seem quite right. Checking for something else, I came across its entry for The Twinkie Defense. The entry suggests that it was a distortion to say that Dan White's defense of diminished capacity due to eating Twinkies and other sugar-filled foods:

Neither White nor his defense team ever claimed that White's consumption of junk food had wrought psychological or physiological changes in White that caused him to act in way inconsistent with his "normal" behavior when he shot George Moscone and Harvey Milk. White's defense was that he had been suffering from a long-standing and untreated depression that diminished his capacity to distinguish right from wrong, and thus he was not capable of the premeditation required to support a charge of first degree murder. Dr. Martin Blinder was called as a witness by the defense to testify that the conversion of the previously health-conscious White to a diet of Twinkies and other junk foods was evidence of his depression. This testimony was similar to offering evidence that the habitual wearing of torn and dirty clothes by someone who had previously always been a snappy dresser was a sign that that person was suffering from depression.

Really?

I did a little research. State v. White, 117 Cal. App. 3d 270, 172 Cal. Rptr. 612 (1981), briefly summarizes the testimony of six psychiatrists (5 for the defense, 1 for the prosecution), mentioning depression repeatedly but never mentioning Twinkies or sugar. But in law review articles, it is easy to find statements that White relied on his sugar consumption to establish his diminished capacity defense. The "Twinkie defense" is held up as an example of "junk science."

The most detailed account I found (in my limited searching) was in Eileen A. Scallen & William E. Wiethoff, The Ethos of Expert Witnesses: Confusing the Admissibility, Sufficiency and Credibility of Expert Testimony, 49 Hastings L.J. 1143, 1161-66 (1998):

At the trial, White presented a defense of diminished capacity, using [precedent] . . . which held that evidence of diminished capacity, whether from intoxication, trauma or mental disease, could be used to show that the defendant did not have a specific mental state such as malice aforethought, or could not premeditate or deliberate to the degree required for a conviction of first degree murder. Thus, White presented expert testimony regarding his mental state at the time of the killings. This expert testimony was the source of one of the trial's most memorable images and one of the most reviled examples of "junk science" - the "Twinkie defense," as the press referred to the testimony of Dr. Martin Blinder. This defense expert testified that when White became depressed, he ate large amounts of junk food - Twinkies, Coca-Cola, etc. Moreover, Dr. Blinder testified that when "susceptible individuals" like White consume "large quantities of what we call junk food, high sugar content food with lots of preservatives can precipitate anti-social and even violent behavior." However, what is now forgotten is that the defense did not rely solely on the "Twinkie" theory; four other psychiatrists also testified for the defense, uniformly agreeing that White suffered from depression to such a degree that he possessed diminished capacity at the time of the killing and could not premeditate or deliberate.

Id. at 1161 (footnotes omitted).

Note that, despite the public attention and press surrounding the "Twinkie defense," no law reform was deemed necessary to prohibit that particular "scientific" theory. Indeed, when interviewed following the verdict, the jurors discussed the burden of proof and the prosecution's failure to prove premeditation "beyond a reasonable doubt," but none of them relied on "the Twinkie defense."

Id. at 1166 (citation omitted)
From this, it seems that White's defense emphasized sugar more than Snopes says -- but much less than the popular imagination (and law reviews) would have it.

Categories: Twinkie-defense, criminal-law, experts, juries,

Judge Jack E. Tanner

[NEWS] Judge Jack E. Tanner died last week. The first African American judge in the Northwest, he was noted for several civil rights rulings, including one about prison conditions at the Washington State Penitentiary and a nationally famous "comparable worth" case. The Seattle Times: Obituary | Judge made key civil-rights rulings. Trial Ad note: one of the people quoted in the obituary is instructor Thomas Hillier.

See also obituaries from the University of Washington School of Law (he was a 1955 graduate) and the Seattle PI.

Categories: judges, Tanner, obituaries, UW, Hillier

Creative Deal Fails to Win Lawyer Fees at 9th Circuit

[CASE] Law.com reports Creative Deal Fails to Win Lawyer Fees at 9th Circuit.

The 9th U.S. Circuit Court of Appeals on Wednesday dealt a blow to plaintiffs lawyers seeking court-ordered fees in small-money cases.

Lump-sum settlements that preclude lawyers from seeking separate attorneys fees have long been a bane of the plaintiff bar, and of lawyer Michael Mitchell in particular.

The plaintiff in the case was a girl who was unconstitutionally required to submit to a gynecological examination while in a juvenile detention facility. Mitchell did not expect the case to have a high monetary value and sought to protect his fee by having the client assign to him her right to seek attorneys fees and to waive her right to enter into a lump sum settlement. The agreement also said the Mitchell and his partner would recive the greater of 1/3 of the gross award (40% under certain conditions) or statutory attorney's fees.

She did settle, for a "lump sum, including all attorney's fees." The sum was $29,999. Mitchell then went to court to seek the statutory fees -- asking for over $50,000.

The 9th Circuit rejected his arguments:

We hold that the provisions of the retainer agreement conveying Pony’s right to seek or waive attorney’s fees to Mitchell are void under California law. We reach this conclusion because Section 1983 sounds in tort and California law prohibits a plaintiff from transferring her substantive tort claims. We also find that Mitchell lacks standing to raise a constitutional challenge to the County’s settlement policy.

Pony v. County of Los Angeles, No. 03-5685 (9th Cir. Jan. 11, 2006

Categories: settlements, lump-sum, attorney's-fees, cases

McKenna Proposes Bills

[LEGISLATION] Washington State Attorney General Rob McKenna is working with legislators to push several bills. His press release highlights seven bills in a sex offender package, which would:

Increase penalties for sexually motivated crimes, possession of child pornography, and second degree assault of a child with sexual motivation.
Strengthen the sex offender registration statute.
Continue to restrict sex offenders from living within 880 feet of a public or private school statewide.
Extend the statute of limitations in DNA cases.
Require sex offenders to admit guilt before becoming eligible for special sentencing alternatives.

Another bill addresses a number of aspects of methamphetamine -- clean up of sites, treatment of addicts, and criminal penalties.

McKenna has also worked with legislative leaders from both parties to introduce a reporter shield bill (HB 2452/SB 6216) to protect confidential sources from being revealed and to protect the rights of the media to report on sensitive stories.

One last bill (SB 6215) would limit government liability.

See the press release for links to the bills and one-page legislative background papers.

The WSBA Board of Governors was scheduled to hear McKenna talk about the reporter shield and government liability bills at its meeting yesterday.

Categories: legislation, sex-offenders, meth, state-liability, WSBA, McKenna

Neil Vidmar

[RESEARCH] Neil Vidmar, a social psychologist who teaches at Duke Law School, is one of the leading researchers on the jury. I got to hear him speak at last week's AALS meeting as part of a panel on "The Civil Jury in the Shadow of Tort Reform."

Vidmar described a

report to the Illinois State Bar Association of a study examining the incidence, frequency, size of verdicts and other aspects of the medical malpractice system in Illinois. The study looked at statewide data where available, concentrating on Cook and DuPage counties, and Madison and St. Clair counties. The study concludes that the Illinois tort system does not appear to be the cause of the undisputed fact that doctors' liability insurance premiums showed dramatic rises.

Medical Malpractice and the Tort System in Illinois explains his methodology and his findings.

He focused on the Chicago-area counties (Cook and DuPage), with about half the state's population and two-thirds of its doctors. In the two small counties that had been branded as "judicial hellholes," he found nothing to justify that reputation -- for instance, only 11 jury verdicts favoring plaintiffs in a 14-year period, and no decline in doctors (despite claims in the press).

Chapter 2 of the report gives an interesting overview of the tort system, aimed at laypeople but helpful for anyone thinking about these issues. Here's a fact that grabbed me:

Research on medical malpractice trials across the country indicates that when the case goes to trial the juries decide in favor of the plaintiff only between 20 to 30 percent of the time. * * *
These statistics surprise many people. Part of the problem is that newspapers tend to report only cases with prevailing plaintiffs being awarded large sums of money while ignoring cases with smaller sums or cases in which defendants prevail.

p. 14.

Another study Vidmar discussed at the meeting looked at data from Florida, where insurance companies are required to report all settlements, so that Vidmar and his associates were able to look not just at the cases that went to trial but even the "cases" that were never filed.

For a look at Vidmar's scholarship on these and other trial issues, see his bibliography.

Categories: empirical-studies, juries, tort-reform, med-mal, Vidmar

Identifying and Evaluating Expert Witnesses

[TIP] Suppose you need an expert witness on neurogizmology. Where do you look? Or, on the other hand, what if opposing counsel lists some experts who will testify. How can you find out about their publications and qualifications? See Identifying and Evaluating Expert Witnesses by Hazel L. Johnson (an experienced law firm librarian) in Virginia Lawyer.

The same issue also has an article with tips on web sources for researching scientific evidence questions: Paul Barron, "It's Not Rocket Science": Making Sense of Scientific Evidence.

Categories: experts, research-assignments, tips,

Problems with Confessions

[RESEARCH] If a defendant confessed to a crime, that's solid evidence, right? Not always -- but it can be hard to explain the problems to the judge and jury. At last week's AALS meeting in DC, Prof. Deborah Davis (Univ. of Nevada, Reno, Psychology Dept.) presented The Road to Perdition: Influence Tactics in Police Interrogations. Using social science research and examples of real cases where people who confessed were shown to be innocent, she explained common interrogation techniques and how they create psychological pressure to confess -- perhaps falsely or inaccurately.

Prof. Davis suggests that an expert witness can help challenge a confession. The expert witness can:

• Provide evidence that false confessions do occur
• Explain both interrogative and non-interrogative influences promoting false confession
• Explain the nature and impact of coercive interrogation
  practices
• Evaluate suspect vulnerabilities that enhance susceptibility to coercive practices
• Assist with or provide post admission narrative analysis
  to demonstrate likelihood of false confession

Davis's PowerPoint is packed with information. She also makes available a book chapter:

Davis, D. & O'Donohue, W. T. (2004). The road to perdition: Extreme influence tactics in the interrogation room. In W. T. O’Donohue, E. Levensky (Eds.) Handbook of Forensic Psychology (897-996). New York, Elsevier, Academic Press.

If you're interested in this type of research, take a look at her website, which includes papers on eyewitness testimony, consent in sexual offense cases, and other evidence-related research.

Categories: empirical-studies, confessions, evidence, experts, eyewitnesses, Davis, AALS,

Ex-Prosecutor Suspended For Misleading Trial Court

[CASE] A New York appellate court suspended a lawyer for three years for lying about a witness's whereabouts. law.com - Ex-Prosecutor Suspended For Misleading Trial Court. According to experts interviewed in the NY Law Journal, this is an unusually strong sanction for prosecutorial misconduct.

During a felony trial, the defense argued that the prosecutor had violated Brady by withholding a police report of a witness whose statements were exculpatory. When questioned by the judge, the prosecutor said that he had been unable to contact the witness at her residence. Later, he located and interviewed the witness at her work. But when the judge again questioned the prosecutor, he stated on the record that he had no knowledge of her whereabouts.

What sanction? The prosecutor pointed to his record as an attorney, a reserve officer, and a church member. On the other hand, he had once before been given a letter of caution for prosecutorial misconduct that resulted in the reversal of a conviction. And in this case, the "conduct strikes at the heart of his credibility as a prosecutor and an officer of the court," he did not take opportunities to correct his false statement, and his action required a costly second trial. The court suspended him from practice for three years. Matter of Stuart, 2005 NYSlipOp 06936 (App. Div. 2d Dept. Sept. 26, 2005.)

Categories: prosecutorial-misconduct, sanctions, cases,

Judges Question Need for Expert Witnesses,

[TIP] BNA's Expert Evidence Report summarized comments by judges at an employment law CLE in Minneapolis. Judges Question Need for Expert Witnesses. Some of the key points:

• "Employment attorneys tend to overuse both experts and Powerpoint presentations."
• Most employment cases don't need experts, but a statistician may be needed for personal injury cliams.
• Visual aids can be useful -- in moderation.
• Judges appreciate having the aids reproduced on letter-size paper or in a binder.

The 32nd Labor and Employment Law Institute was sponsored by the Labor & Employment Law Section of the Minn. State Bar Ass'n, the Minneapolis offices of the NLRB and the EEOC, and Minnesota Continuing Legal Education.

Categories: judges, experts, tips,

Association of American Law Schools Annual Meeting

This year's Association of American Law Schools Annual Meeting had as its theme "Empirical Scholarship: What Should We Study and How Should We Study It?" Many interesting studies were reported. I heard panels on evidence, civil procedure and juries, and medical malpractice reform. In the next couple of days I'll summarize some of them and provide links to more information.

Categories: empirical-studies, AALS, event

Litigation Dep't of the Year: Paul Weiss

American Lawyer awards Paul, Weiss, Rifkind, Wharton & Garrison honors for "litigation department of the year," saluting its work defending Citigroup in several big-money class actions. law.com - 2006 Litigation Department of the Year The profile discusses the department's changes in the last several years, adjusting to the loss of its long-time star and rainmaker, Arthur Liman. And it mentions that the firm handles pro bono litigation as well, including death penalty cases and a challenge to New York's marriage law on behalf of same-sex couples.

Categories: practice-of-law, class-actions, big-firms

The Docket - legal affairs program

The Washington State Bar Association is sponsoring a new legal affairs program on TVW (Washington's "C-SPAN" cable channel). The Docket premieres on TV at 8 pm Sunday, January 1, but you can view it already in streaming video. Hosted by Dean W.H. Knight, Jr., of the University of Washington School of Law, the half-hour program includes:

• a discussion of state Supreme Court cases on de facto parental rights and sexual relationships between teachers and students;
• an interview with Chief Justice Gerry Alexander;
• comments on the media's coverage of courts by former ABC news producer Peter Shaplen; and
• a guided Capitol tour explaining how a bill becomes a law.

The TVW website includes links to more material -- for instance, the video of the oral argument of one of the cases discussed and the audio of the entire speech by Peter Shaplen that is excerpted in the program.

Categories: The-Docket, Knight, UW, WSBA, Alexander, TVW

Confusion over marital privilege leads to ineffective assistance of counsel

[CASE] The Ninth Circuit upholds habeas relief for a defendant whose attorney elicited testimony that waived his marital privilege. Edwards v. Lamarque, --- F.3d ---, 2005 WL 3358845 (9th Cir. Dec. 12, 2005), Find Result - 2005 WL 3358845.

[The lawyer's] responses to the prosecutor's objections and the trial judge's comments reveal that he fundamentally misunderstood the marital privilege, and thus lacked the legal understanding necessary for a competent tactical decision. [The lawyer] plainly believed that he could prevent [defendant's wife] from testifying as to certain “confidential” conversations between her and [the defendant] * * *, but that he could pick and choose other parts of the conversations they had and elicit testimony as to [the defendant's] versions of those exchanges to bolster his defense.

* * *
Fundamentally, [the lawyer] had no conception of the most basic premise of the spousal privilege and could therefore not make competent tactical decisions regarding it. He did not recognize that all private communications between spouses are “presumed to have been made in confidence.” * * Correspondingly, [he] showed no understanding that courts narrowly construe the privilege because it “prevent[s] the admission of relevant and otherwise admissible evidence” and impedes the search for truth. * * * Given [the lawyer's] evident misconceptions about the nature and scope of the marital privilege, [he] was incapable of making competent tactical decisions of the sort the state court (and the dissent) imagines.

Categories: evidence, privilege, waiver, ineffective-assistance, cases

King County's Jury Debriefing Program

[RESEARCH] The current (Dec/Jan. 2006) issue of Washington Law & Politics includes an article about the King County Superior Court's jury debriefing program that provides psychological debriefing after particularly stressful trials. The article ("Jury Box Blues," p. 73) is not on the magazine's website, so I looked for aomething I could link to. (The magazine is available in print in the Reference Area of the law library, but still it's nice to have a link.)

I hit paydirt with King County Superior Court: Evaluation of the Jury Debriefing Program, a report prepared by the National Center for State Courts in 2000, two years after the program was instituted. It outlines how the program is implemented -- bringing in the psychologist is at the discretion of the judge -- and reports on surveys of participants, who found the service very helpful. Skimming the appendix of survey responses and focus group comments provides an interesting glimpse of jurors' experience during high-stress trials.

King County is a leader in this area. At the time of the report in 2000, the National Center for State Courts was aware of only two other similar programs (one in Georgia and one in Kentucky). (Law & Politics says that King County is apparently the only court to institutionalize debriefing.)

See this earlier post for a summary of a law review article about juror stress that, among other things, recommends debriefing programs.

Categories: juries, debriefing, empirical-studies, NCSC, King-County

Book: Trial and Error

[BOOK] Trial and Error: The Education of a Courtroom Lawyer is John C. Tucker's memoir of a career in the Chicago courts (and even the U.S. Supreme Court). The publisher says "Relating both the highs and lows, while also recounting tales from the trial of a giant Mafia gambling ring to a legal showdown with heavyweight champion Muhammad Ali, Tucker gives aspiring young attorneys, law students, recent graduates, and all fans of courtroom drama -- and comedy -- the chance to see it all through the eyes of the man in the middle of the ring."

Check it out: KF373.T833 A3 2003 at Classified Stacks.

Categories: practice-of-law, books, famous-trials,

Closing Arguments: The Art and the Law

[BOOK] Closing Arguments: The Art and the Law, by Jacob A. Stein, gives lawyers guidance on the practical and legal aspects of closing argument. According to the publisher's description:

This work includes a detailed discussion of the strategies and techniques of a convincing closing statement, examining such issues as timing, references, handling objections, instructions, and rebuttals. Covers the use of visual aids and corroborating evidence, and dealing with difficult judges.

Take a look -- it's at KF8915 .S7 2005 in the Classified Stacks.

Categories: closing-arguments, tips, books,

The Persuasive Edge

[BOOK] We've just received The Persuasive Edge. According to the publisher:

THE PERSUASIVE EDGE, the revised edition of a classic, THE PERSUASION EDGE, is a must for every trial lawyer, teacher and student of law or communication, and anyone else whose practice or profession depends on human persuasion.

This straight-forward discussion combines the best academic conclusions from the psychology of human persuasion and decision-making with the practical knowledge acquired from litigation throughout the United States, to offer you a more purposeful and practical approach to improving your influence and advocacy. The authors? extensive experience as trial consultants has given them the opportunity to test modern persuasion techniques and research by working inside jury trials and conducting interviews with thousands of real and mock jurors in a wide variety of civil and criminal cases and training opportunities. This wealth of experience and unique perspective will assist you in creating a persuasive strategy for all aspects of legal practice but especially within the jury trial. This book is not an abstract discussion of communication and persuasion theory, but a reference work designed to offer you practical and concrete techniques for improving your persuasive communication skills.

The authors begin by identifying communication choices that will help you create a persuasive strategy for any situation inside and outside of the courtroom. Next, they demonstrate how the key components of personal credibility allow you to build an honest relationship with the jury, and offer specific techniques for capturing juror attention and securing juror commitment from the very start of every trial. They devote three chapters to the approach, mechanics and strategies of effective jury selection, including good voir dire question design, sound strike strategies, and techniques for improving your efficacy when voir dire is limited. They also identify the essential elements of powerful and persuasive opening statements and offer extensive tips and techniques for all witness examinations, and excellent methods for presenting compelling closing arguments. This new edition offers updated and practical suggestions for the effective use of advanced technology to visually enhance your persuasive strategy for every jury trial, and provides rare and insightful advice about improving your persuasive effectiveness and influence with judges.

Regardless of your specialty or years of experience, your advocacy will be enhanced by the deliberate communication choices identified and illustrated in this book. For everyone working, teaching or studying in the legal arena, this advanced guide to purposeful persuasion will change the way you communicate for the better.

It's in the Reference Area, at KF8915 .C698 2005.

Attorney sentenced for hitting courthouse marshal in Everett

[NEWS] An attorney has been sentenced to two months in jail and an anger management course after striking and cursing at a marshal. Here's the story from the Seattle Times Local Digest on Tuesday:

Everett Attorney gets 2 months in jail

A Seattle attorney found guilty of cursing at and striking a Snohomish County courthouse marshal was sentenced Monday to two months in jail.

In September 2004, Christopher Bartow was confronted by Marshal George Willoth because Bartow had repeatedly interrupted a court commissioner during a hearing, according to court papers. The attorney cursed at Willoth and struck him in the head, charging documents said. Willoth used pepper spray to subdue Bartow.

In addition to jail time, Bartow, 40, was ordered to complete an anger-management course.

I don't know any more about the incident, but this is a good reminder of the need to learn to manage the stress of litigation. It's natural to get excited in the heat of argument -- but one doesn't do oneself or one's clients any good if the adrenaline takes over.

Categories: practice-of-law, Snohomish-county, sanctions, news,

DUI tests frequently tossed out; 2004 law backfired (Seattle Times)

[NEWS] This morning's Seattle Times has a front-page story about challenges to the new DUI law: DUI tests frequently tossed out; 2004 law backfired. The Washington State Supreme Court heard oral argument in City of Fircrest v. Jensen October 27. For more, see my post from Aug. 5 with a link to the PI's story.

Categories: DUI, legislation, cases, news

Conviction reversed when impeachment evidence used to show element of crime

[CASE] Division 3 reverses a conviction because the only evidence for one element of the crime was hearsay evidence introduced for impeachment. State v. Clinkenbeard, --- P.3d ---, 2005 WL 3164814 (Wash. App. Nov. 29, 2005), Find,
Washington Courts website

The defendant was a school bus driver. He became friendly with a student when she was in fifth grade and maintained contact for many years, even after she no longer rode his bus. After she turned 18, he left his wife and moved close to the student. The state alleged that he had sex with her and prosecuted him under a statute that makes it unlawful for a school employee to have sex with any student while still a student, if the employee is at least five years older than the student. The defendant was 44 years older than the student.

At trial, the student testified that they had not had sex. As impeachment evidence, the court allowed hearsay statements -- one from a friend and one from a detective.

On appeal, the defendant unsuccessfully challenged the consitutionality of the statute (RCW 9A.44.093(1)(b)).

The court found it impermissible to allow the hearsay testimony to be used to show that the defendant had, in fact, had sex with the student. And, since that was the only testimony as to that element of the crime, the court reversed the conviction for insufficient evidence.

(Note: this is the second time I've posted about this case and the last one. That's because my earlier posts were dropped from the system. Computers: very handy, but sometimes things go wrong.)

Categories: evidence, hearsay, impeachment, cases,

Hearsay OK to show participation in false alibi

[CASE] Division 1 addresses a Crawford argument, holding that admission of the hearsay statements in this case did not violate the defendant's confrontation rights because they were not admitted to show the truth of the matter asserted. In re Personal Restraint of Theders, --- P.3d ---, 2005 WL 3101045 (Wash. App. Nov. 21, 2005), Find Result - 2005 WL 3101045,
Washington Courts site

The facts, simplified: The defendant's buddy called his wife on his cell phone, saying that he was with the defendant and they were going to Petsmart to look for a dog bed. The wife heard defendant in the background. Later the buddy called again, saying that they were checking other stores. Then a woman was attacked in her home by a man in a ski mask. She recognized the man's voice as that of the buddy. Both men were questioned by the police, and each said that they had been together, shopping for a dog bed, away from the scene of the assault. In a later written statement the defendant said that he had driven his buddy to the house.

At trial, the court admitted testimony about the cell phone calls and the buddy's statement about shopping with the defendant. Does that present a hearsay problem? Division 1 says no. The statements weren't introduced to show that the defendant and his buddy actually were shopping for a dog bed. They were introduced to show that the defendant participated in the buddy's construction of a false alibi.

Categories: evidence, hearsay, alibi, Crawford-v-Wash, cases,

Judicial Selection Coalition

A number of legal and civic groups are participating in a Judicial Selection Coalition. According to the King County Bar Association, one of the coalition members

Some of the expressed concerns that gave rise to this coalition effort are: the increasingly partisan nature of judicial campaigns; the escalating costs of funding a judicial election campaign; the lack of judicial campaign financing limits; the growing amounts of special interest money being injected into judicial campaigns; the lack of sufficient standards for eligibility for judicial office; the relative shortage of useful information available to voters regarding judicial candidates and the difficulties of ferreting out such information; and the skewing of voting results by irrelevant factors such as ballot placement and commonness of names of judicial candidates.

The members of the coalition are:

• American Judicature Society (Washington Chapter)


• Asian Bar Association of Washington


• Defender Association
• King County Bar Association
• League of Women Voters of Washington
• Loren Miller Bar Association
• Municipal League of King County


• Washington Defense Trial Lawyers


• Washington State Bar Association


• Washington State Trial Lawyers Association

The KCBA website includes links to much more information.

Curious about judicial selection in other states? See Judicial Selection in the States, from the American Judicature Society. (It includes Washington, of course.)

Categories: judges, judicial-selection, American-Judicature-Society, WSBA, WSTLA, KCBA

WSBA meeting this week

[EVENT] The Washington State Bar Association Board of Governors meets in Bremerton Friday and Saturday. WSBA press release. Items related to trial advocacy include:

• Draft ethics opinion about handling of advance fees
• Possible amicus brief in case about police posing as attorneys to gather evidence (See earlier post.)
• Possible Criminal Rule changes concerning the recording of witness statements
• Update from Committee on Public Defense

Categories: WSBA, event

Public Access to Decision Revealing Evidence Tampering by Honda and Expert Robert Gratzinger - November 3, 2005

[CASE] After a California Superior Court judge sanctioned an expert for deliberately destroying evidence in a car safety case against Honda he sealed the sanctions opinion to facilitate settlement. Trial Lawyers for Public Justice challenged that ruling, arguing that "the public has the right to know about the unethical conduct exposed in this decision." And three years after the original ruling, the judge agreed that the order was improperly sealed and unsealed it.
TLPJ - Press - Public Access to Decision Revealing Evidence Tampering by Honda and Expert Robert Gratzinger - November 3, 2005. The original order (Oct. 2, 2002) and the recent order unsealing it (Oct. 26, 2005) are linked from TLPJ's press release.

The original order related the facts in some detail. Honda's expert, Robert Gratzinger, was examining the car the plaintiff had been riding in to gather evidence about whether she'd been wearing a seatbelt. During his examination, he took out a rag and rubbed out certain "witness" marks on the seatbelt buckle's latch. When plaintiff's attorney told him to stop, he persisted. He took the rag with him and produced a different rag at a hearing on spoliation. Clearly, the judge was appalled.

In the 32-page order, the judge then carefully went over possible sanctions -- monetary fine, limiting the defense that Honda could offer, declaring a mistrial -- and rejected them, concluding that the appropriate sanction was the biggest: holding Honda liable for the injuries and only sending to the jury the question of damages. Honda was also ordered to pay attorneys fees and costs to the plaintiff and the co-defendants.

Categories: experts, evidence, spoliation, sanctions, sealed-records, settlements, cases,

The Seattle Times: Judge sends 2 lawyers to prison

[NEWS] On Friday Federal District Judge Ricardo Martinez sentenced the two lawyers who pleaded guilty in the drug money case. James L. White was sentenced to 18 months in prison. A. Mark Vanderveen was sentenced to 3 months in prison and 3 months of home detention. The government had recommended a lighter sentence for Vanderveen, but the judge said that he had to hold him to a "higher standard." The Seattle Times: Judge sends 2 lawyers to prison
The Seattle Times story concludes:

Meantime, an investigation arising out of the same drug case into possible misconduct by other criminal-defense attorneys is continuing. Other attorneys have been advised they could be targets.

Categories: sentencing, practice-of-law, Martinez, Vanderveen, White

Local lawyers plead guilty in drug money case

[NEWS] The good news on the front page of the Seattle Times this morning was the Gates gift for public service scholarships. A sadder story about lawyers and money was above the fold. Two local defense attorneys (one of whom was also a part-time municipal court judge) pleaded guilty to charges related to their receipt of drug money. A. Mark Vanderveen's offense was failure to report income to the IRS; James L. White's was money laundering (he accepted $100,000 in cash from a client and passed along $20,000 to Vanderveen).The Seattle Times: Local News: Two well-regarded lawyers are done in by drug money

In a related story, the Times reports that such prosecutions are rare.

The Times has posted sentencing memoranda on its website (linked from the first story above) -- the government's memoranda for both men and Vanderveen's. The government is recommending 18 months imprisonment for White and 30 days imprisonment for Vanderveen.

By the way, the federal prosecutor, Ronald Friedman, was a Trial Ad instructor last year.

Categories: practice-of-law, sentencing, Vanderveen, White, Friedman, UW

Gates public service scholarships at UW

[NEWS] Yesterday the Bill & Melinda Gates Foundation announced an extraordinary gift to the University of Washington School of Law: $33.3 million for full-ride scholarships over the next 80 years.

The gift honors Bill Gates's father, William H. Gates (UW Law School class of 1950), who turned 80 yesterday. The scholarship program begins with law students who enter next year. Each year five students will be awarded a scholarship covering tuition and living expenses for the three years of law school, with a commitment that the student spend seven years in public service after graduation.

Dean Knight announced the gift to the law school community in a brief meeting in the moot court room. I'm sure I was not the only one among the gathered students, staff, and faculty who was stunned and impressed by the gift.

Some years ago, the Bill & Melinda Gates Foundation made the lead gift in our building campaign, and the building is named William H. Gates Hall because of that. That generous gift was $12 million. This one is nearly three times as much -- and it's very exciting that it will go to students. The whole law school will benefit, because of speakers and other programs that will accompany the scholarship program. And in turn, the program will benefit the public because of the committed advocates who will go into public service.

William H. Gates has a long-standing commitment to public service. Among other things, in 1990 he led a Washington State Bar Association committee that declared access to justice to be the most pressing issue facing the state bar. Golden Gates, Equal Justice Magazine, Summer 2003.

Press coverage of yesterday's gift:

• UW law school gets $33.3 million gift from Gates Foundation -- Seattlel PI


• Gates birthday gift is the kind that will keep on giving -- Seattle Times


• Press releases: UW; Gates Foundation. (You'll note a strong similarity -- with a gift of this magnitude, of course the parties coordinated!)

Categories: Gates, Public-Service, UW, Knight, news

How Many Trials?

[RESEARCH] I wondered: how many trials are taking place in Washington Courts? Of those, how many take place here in King County? Are there more or fewer than a few years ago?

So I spent a little time looking at the caseload reports from the Washington Courts. In these, you can find all sorts of data about filings, dispositions, nature of cases, and more. Here are just a few statistics:

Filings and trials in the superior courts in 2004

• Filings

Criminal: 48,161 (up 13% from 2000)
--- King County: 10,209
Civil: 128,009 (up 21% from 2000)
--- King County: 39,309
Domestic Relations: 37,703 (down 1% from 2000)
--- King County: 7,507

• Trial Proceedings

Criminal: 2,207 (down 11% from 2000)
--- King County: 537
Civil 1,462 (down 15% from 2000)
--- King County: 342
Domestic Relations: 2,563 (about the same as 2000)
--- King County: 814

So just a small slice of the cases filed actually go to trial. (Of course, you need to know about trial practice even if your case doesn't go to trial. Settlement negotiations and motions practice are shaped by how you think the case would play out if tried.)

Trials in the Courts of Limited Jurisdiction in 2004

• Jury Trials

Civil trials set: 681; civil trials held: 78
--- King County: 145 civil trials set; 22 civil trials held
All trials set: 97,212; all trials held: 2,999
--- King County: 15,315 trials set; 884 trials held

• Non-jury Trials

Civil trials set: 4,886; civil trials held: 1,717
--- King County: 1,157 civil trials set; 325 civil trials held
All trials set: 23,158 civil trials set; all trials held 6,956
--- King County: 3,776 trials set; 1,623 held

OK, all those numbers are pretty dense. Try these:

• Just over 1% of civil cases filed in superior court go to trial!
• Less that 5% of criminal cases filed in superior court go to trial!
• Almost a quarter of the felony trials (i.e., criminal trials in
  superior court) in the state are in King County!
• 70% of the trials in the courts of limited jurisdiction are non-jury trials!

Categories: statistics

ABA - Tort Trial & Insurance Practice Section

Interested in personal injury law? Consider TIPS, the ABA's Tort Trial & Insurance Practice Section. Law students, if you belong to the ABA, then you can join the section free.

Some of the content on the section's website is limited to members. One freebie is TortSource, a newsletter that

highlights topical tort and insurance law issues and includes technology advice, practice tips and updates on continuing legal education programming. "When I Was A Young Lawyer," "Legislative Update," "In Motion" and a host of other unique columns round out each issue of this quarterly newsletter.

The summer 2005 issue had two pieces about appeals -- how to preserve issues for appeal and, once you get an appeal, oral argument advice for trial attorneys. Fall 2005 has a piece called "Let the Jury Draw the Conclusion":

The juror who comes to an independent conclusion will hold on to that deduction much more tenaciously than will a juror who is told what to think and decides to think that way only because that is what the lawyer said to do. * * * [Jurors who reach their own conclusions will] will listen more closely for the facts, analogies, and argument that support the conclusion and allow them to defend it in the jury room.

The fall issue also has several pieces about developments in employment law.

For discussion of policy questions, see the TIPS Task Forces. For example, the Task Force on Contingent Fees has a 66-page Report on Contingent Fees in Medical Malpractice Litigation (draft, Sept. 20, 2004)

The Emerging Issues Committee has a list of emerging issues, with some links to press releases, letters, etc. Students, looking for a paper topic?

Categories: ABA, tips, appeals, med-mal, attorney's-fees, empirical-studies,

Is it good to be considered a pit bull in the courtroom?

The Florida Supreme Court has sanctioned two attorneys for using a pit bull in their advertising (and in their phone number, 1-800-PIT-BULL) because the ads "demean all lawyers and thereby harm both the legal profession and the public's trust and confidence in our system of justice." Florida Bar v. Chandler.

Carolyn Elefant has a post on MyShingle (her blog for solo practitioners) (that's where I got the link to the case -- thanks!). My Shingle: An Ethics Decision for the Dogs She includes ads from a firm that uses a Golden Retriever and an elephant and wristwatch with Georgetown's cartoon bulldog. Demeaning? She concludes "What a silly decision." There are several interesting comments, at least one defending the court's position.

Before going to MyShingle, I'd looked for a news story about the case. (I saw an AP snippet over the weekend.) One of the first things I found was:

Ed Gillespie was called ''President Bush's pit bull'' during the 2004 presidential campaign, when as chairman of the Republican National Committee he seemed to live on cable television trading snarls with Terry McAuliffe, his attack dog of a counterpart at the Democratic National Committee.

New York Times, July 6, 2005. (If you Google Gillespie pit bull, you'll see a bunch of examples.) It doesn't seem that he minds this -- or that Republicans as a whole feel demeaned because the chairman of the Republican Party has that nickname. It's ironic, because during the heat of the presidential campaign, it seemed that "trial lawyer" was used as an insult, but "pit bull" was a term of respect.

PS As a UW Husky, I considered finding dog images to match Elefant's Georgetown bulldog, but time is short. Go Dawgs.

PPS (Nov. 27) David Giacalone at f/k/a ethicalEsq offers a more current example of "pit bull" as a compliment for a Republican: President Bush's description of Harriet Miers as "a pit bull in size 6 shoes."

Categories: MyShingle, practice-of-law, advertising, dogs, cases

Specialized courts vs. juries

[POLICY] Are some cases too complex factually for a jury of ordinary citizens to sift through? Or is the American jury the best factfinder for all sorts of cases? Would we get "better" results if we had professional factfinders for patent cases? How about medical malpractice cases?

An article in the Oregon State Bar Bulletin discusses the issue, with quotations from a jury consultant, a plaintiff's attorney, and intellectual property experts. Janine Robben, Who Decides? Specialized Courts vs. the Jury of Peers, April 2005.

Categories: juries, specialized-courts, IP

WSBA considering amicus brief in case re DNA evidence gathering

[CASE] Twenty years after a 13-year-old girl was found raped and murdered, the police tried to match up DNA evidence with a suspect (the man who had been the boyfriend of the girl's older sister). They sent a letter to the defendant (he was then living in New Jersey), on the letterhead of a fictitious law firm, inviting him to join a fictitious class action. When he replied, they obtained enough saliva from the envelope he'd licked to match the DNA sample.

The Washington State Bar Association has been asked to write an amicus brief in the defendant's appeal to the Washington State Supreme Court, State v. Athan. The amicus committee recommends that "the appropriate issue to be addressed by the WSBA is the detrimental effect on the bar and the administration of justice if police are allowed to falsely pose as lawyers." The Board of Governors invites comments, and will decide at its next meeting, December 9-10. For more information see Notice of Request for WSBA to File Amicus Curiae Brief.

Categories: State-v-Athan, WSBA, DNA, practice-of-law,

Making the Leap From PI to IP

[NEWS] Since Texas has enacted tort reform measures, some personal injury firms are moving into intellectual property litigation. Here's a profile of a firm in Marshall, TX, home of the Eastern District of Texas, a court with a reputation for being friendly toward patent plaintiffs (in both bench and jury trials). law.com - Making the Leap From PI to IP, IP Law & Business, Nov. 14, 2005.

Categories: personal-injury, IP, tort-reform, practice-of-law,

Application of rape shield statute to exclude victim's email message

[CASE] A recent case raises several issues about the trial of a juvenile as an adult. Here I'd like to highlight the final issue discussed in the case: whether it was error for the trial court to exclude an email message from the victim.

The defendant (Posey) and the alleged victim (H.A.H.) were high school classmates. Prior to or around the time the met Posey, H.A.H. wrote an email message to someone else describing some rape fantasies and saying she would like a boyfriend to choke her and beat her. The police made copies of emails from the H.A.H.'s computer. The defense wanted to introduce this one to show that H.A.H. consented to the violence and intercourse with Posey and to rebut her claim that she was afraid of him.

The trial court found that the email was highly prejudicial. The court noted that "[a]nybody who's had an e-mail correspondence with anybody knows it's easy to say things during that correspondence that you wouldn't necessarily say to their face."

After discussing limited situations when a victim's past sexual history can be admitted despite the rape shield statute (RCW 9A.44.020), Division 3 found that the trial court did not abuse its discretion in excluding the email.
Find Result - 2005 WL 2982134

Categories: email, rape-shield, evidence, cases,

Ineffective asstance of counsel claims fail - discussion of defense counsel's trial tactics

[CASE] In an appeal of child molestation convictions, the defendant raised claims of ineffective assistance of counsel that give an interesting view of the defense counsel's trial tactics. State v. Cramer, 2005 WL 2858884 (Wash. App. Div. 2, Nov. 1, 2005) (unpublished), Find Result - 2005 WL 2858884.

Cramer contends that his trial counsel was constitutionally ineffective for several reasons. Primarily, he points to counsel's decision to cross-examine R.C. in a highly confrontational manner, which, by Cramer's account, could serve only to engender hate for Cramer in the jurors' minds. Cramer also maintains that his counsel was ineffective because he elicited unfavorable testimony; was repeatedly rebuked by the trial court for using improper impeachment procedures; failed to object to improper closing argument by the State; and acted unprofessionally in the courtroom.

I was particularly interested in the first issue -- the aggressive cross-examination of the child victim. The cross seemed to be so hard on the girl that the trial judge ordered the lawyer to do his questioning seated:

[T]his is my problem, sir, and this is why I told you to sit down, is that this witness is breaking down on the stand. I do not believe that badgering this witness is going to succeed for either side. If anything, if you look at your jury, they're tuning out this part of the testimony because they can't stand to watch this child go through that.

Not only did the questioning appear to be hard on the girl, but the defendant's reaction to it also made an impression on the judge. During sentencing, he told the defendant:

This child was on the stand for three hours, approximately. You know what really affected me about that testimony? Not so much what she said, but how you didn't react to it. You had absolutely zero expression while your attorney scathed her on the stand, skewered her six ways to Sunday.

And I'm thinking of those moments where he goes, [']You see your transcript. At this time and this place you said this?['] Trying to trip up this little girl. Okay. He did his job. But she broke down as a result of it. Okay.

But you didn't react, sir. And that really bothered me that a father, a biological father wouldn't react to that, seeing his own child put through that kind of torture.

On the ineffective assistance of counsel claims, the court concluded:

This court will rarely sustain an ineffective assistance claim where the 'entire record' on appeal 'reflects a vigorous and competent defense.' * * * Cramer received such a defense. This is reflected not only in the trial transcript, but in a record that contains detailed motions for discovery, continuance, a bill of particulars, dismissal, an arrest of judgment, and a new trial. Defense counsel's tactical decisions in representing Cramer did not constitute ineffective assistance. Were we to hold otherwise, such tactical decisions would be the norm with defense counsel intent on creating error for redress on appeal.

Categories: ineffective-assistance, cross-examination, child-witnesses, impeachment, cases,

Families fight at murder sentencing in Tacoma

[NEWS] On Thursday there was a scuffle between the families of a murder victim and his killer, sparked by a remark that the sentence was unfairly long, since the victim was 69 years old and "wasn't going to live forever." Families fight at murder sentencing in Tacoma, Seattle PI, Nov. 10, 2005.

Categories: sentencing, news,

Convicted rapist tells judge he's rude

[NEWS] Here's a courtroom incident from Georgia: Convicted rapist tells judge he's rude, Seattle PI, Nov. 11, 2005. The defendant's outburst got him an extra 5 days on his sentence (which was already 99 years plus two life sentences).

Categories: sentencing, judges, news,