U.S. Attorney Update

Say, have you heard that the Administration's handling of U.S. attorneys has been in the news lately?

A few of today's headlines (with some words of two of the fired U.S. attorneys):

• McKay went from hero to zero with Justice Department, Seattle Times, 3/21/07.
• Fired McKay being treated unfairly, Reichert says, S. Times, 3/21/07.
• Timeline | John McKay's fall from favor, S. Times, 3/21/07.
• Bush fires back, stands by Gonzales, S. Times, 3/21/07.
• Justice Dept. saw McKay as 'effective' -- yet bristled at his 'insubordination', Seattle P-I, 3/21/07.
• McKay cites a 'grievous error', Seattle P-I (from N.Y. Times), 3/21/07:

  "What's hard to fathom," [McKay] said, "is that people sworn to support and defend the Constitution of the United States, who are Justice Department officials, didn't tell political people to go pound sand, which is what they should have done and which I expected them to do and which I know all my colleagues expected them to do."

• House Panel Authorizes Subpoenas for Top Bush Aides, New York Times, 3/21/07.
• David C. Iglesias [former U.S. Attorney for the District of New Mexico], Why I Was Fired, N.Y. Times, 3/21/07.

  United States attorneys have a long history of being insulated from politics. Although we receive our appointments through the political process (I am a Republican who was recommended by Senator Pete Domenici), we are expected to be apolitical once we are in office. I will never forget John Ashcroft, then the attorney general, telling me during the summer of 2001 that politics should play no role during my tenure. I took that message to heart. Little did I know that I could be fired for not being political.
  
  * * *
  
  As this story has unfolded these last few weeks, much has been made of my decision to not prosecute alleged voter fraud in New Mexico. Without the benefit of reviewing evidence gleaned from F.B.I. investigative reports, party officials in my state have said that I should have begun a prosecution. What the critics, who don’t have any experience as prosecutors, have asserted is reprehensible — namely that I should have proceeded without having proof beyond a reasonable doubt. The public has a right to believe that prosecution decisions are made on legal, not political, grounds.
  
  What’s more, their narrative has largely ignored that I was one of just two United States attorneys in the country to create a voter-fraud task force in 2004. Mine was bipartisan, and it included state and local law enforcement and election officials.
  
  After reviewing more than 100 complaints of voter fraud, I felt there was one possible case that should be prosecuted federally. I worked with the F.B.I. and the Justice Department’s public integrity section. As much as I wanted to prosecute the case, I could not overcome evidentiary problems. The Justice Department and the F.B.I. did not disagree with my decision in the end not to prosecute.

And one article from Sunday's Week in Review section: Adam Liptak, For Federal Prosecutors, Politics Is Ever-Present, N.Y. Times, 3/18/07.

“U.S. attorneys are the branch offices of the Department of Justice,” said Douglas W. Kmiec, a former Justice Department official in the administrations of Presidents Ronald Reagan and George H. W. Bush. “It’s an employer-employee relationship.”

As a legal matter, at least, that means the Justice Department was within its rights in the recent dismissals, said Rory Little, a former Justice Department official in the Clinton administration who is on an American Bar Association task force on prosecutorial ethics.

“It has always been a patronage position,” Mr. Little said. “Can the president fire a U.S. attorney for any reason at all? The answer is yes.”

At the same time, United States attorneys are by custom insulated from politics and have, except when administrations change, great job security. They are meant to make individual prosecutorial decisions based only on the facts of the cases before them, without regard to political consequences.

The Washington Post has a page linking to a couple of dozen of its stories about the U.S. attorney firings, if you've gotten behind on the controversy.

More on McKay, U.S. Attorneys

Justice Department Tried to Help McKay Get Judgeship, The Seattle Times: Postman on Politics (blog), March 20, 2007.

Bush warns Dems to take offer in firings, Seattle P-I (AP), March 20, 2007:

A defiant President Bush warned Democrats Tuesday to accept his offer to have top aides testify about the firings of federal prosecutors only privately and not under oath or risk a constitutional showdown from which he would not back down.

New light on McKay firing, Seattle P-I, March 20, 2007:

Two months before U.S. Attorney John McKay was fired, top Justice Department officials traded e-mails excoriating McKay for commenting in a Seattle P-I story about deep budget cuts and layoffs in his office.

Guilty Plea: Adult Using Internet for Sexual Contact with Teens

Ex-King County official pleads guilty to Internet sexual contacts with teens, Seattle Times, March 20, 2007. The official was the financial director of the King County Prosecutor's Office. The "teens" were actually undercover officers purporting to be 13- and 14-year-old girls.

But wait! There's more! I clicked over to our city's other newspaper and learned that he also faces charges that he stole $72,000 from Prosecutor Norm Maleng's re-election campaign. Longtime King County Prosecutor's Office employee guilty of luring: Larry Corrigan worked on political campaigns, Seattle P-I, March 20, 2007.

Judge Jones Nominated for W.D. Wash.

President Bush has nominated Judge Richard Jones (King County Superior Court since 1994) to fill the vacancy in the Western District of Washington created by Judge Coughenour's taking senior status. Superior Court Judge Jones nominated for federal judgeship, Seattle Times, March 20, 2007.

Judge Jones graduated from the UW School of Law in 1975. He was a deputy prosecutor for King County, an assistant U.S. attorney, and an associate at Bogle & Gates before becoming a judge. For more biographical information, the press release from when he received WSBA's Outstanding Judge Award (2004) and the profile in the King County Bar Bulletin the same year.

Law Reviews Irrelevant to Judges

Benjamin N. Cardozo School of Law "hosted a roundtable discussion between seven judges from the US Court of Appeals for the Second Circuit and the Law School’s faculty. Together they examined the declining influence of law reviews. Guided by Vice Dean Michael Herz, Cardozo students examined citations from the 1960s to present of five prestigious law reviews. Their findings show that courts cite law review articles less today than in the '70s and '80s, content is more theoretical than practical, and there is an increase in citations from specialty journals." Cardozo news release, March 8, 2007.

A New York Times story is getting some buzz: Adam Liptak, Rendering Decisions, Judges Are Finding Law Reviews Irrelevant, N.Y. Times, March 19, 2007. (You need to subscribe to TimesSelect to see the whole thing on the Web; it should also be on LexisNexis.)

"I haven't opened up a law review in years," said Chief Judge Dennis G. Jacobs of the federal appeals court in New York. "No one speaks of them. No one relies on them."

That's overstating it, of course. Law reviews might not be cited with the same frequency they were 20 or 30 years ago, but they are still cited.

Some possible reasons that judges use law reviews less now:

• There are more research tools available. In 1970, a law review article was an efficient way to get a survey of cases from many jurisdictions. Now judges (and their clerks) can use a law review article or full-text searching on LexisNexis or Westlaw.
• Fewer law review articles are strictly doctrinal. "The asembled judges pleaded with the law professors to write about actual cases and doctrines, in quick, plain and accessible articles."
• Judges are too busy -- with heavier caseloads, who can bother reading law reviews?
• Judges lack intellectual curiosity. "The claim by judges that they have no use for law review articles seems to me an anti-intellectual know-nothingism that is understandable but regrettable, Professor [Michael C.] Dorf said."
• Law reviews are too slow -- the quickest legal commentary is in blogs.

History Lesson: Segregated Court

Interested in history? Civil rights?

I just finished reading a student piece about a little-known trial court, Miami's Negro Municipal Court (1950-1963), a municipal court that handled only cases against black defendants arrested by black patrolmen. Ernesto Longa, Lawson Edward Thomas and Miami's Negro Municipal Court, 18 St. Thomas L. Rev. 125-38 (2005).

Who could support a Jim Crow court? Interestingly, many of the leaders of the black community. In a city with no black judges and blatant unfairness to black defendants, the Negro Municipal Court -- presided over for many years by Miami's first black judge -- gave defendants a fair deal. (It also protected black victims, treating crimes against them more seriously than the white courts did.)

Longa concludes his piece:

The proponents of an all-black court did not see the court as a panacea but simply as a tool to make "the Negro a little larger citizen" within the bounds of segregation. Within the court, many black defendants experienced due process and equal protection under the law for the first time. Black defendants were presumed innocent until proven guilty, given an opportunity to be heard, and, most importantly, treated with humanity and dignity. Ironically, Judge Thomas's resolve to combat the disparate treatment black defendants experienced in the white dominated courts solely based on the race of the victim resulted in tougher sentences for black violent offenders. Further, court proponents contended that it was Thomas's toughness toward violent offenders that exemplified the court's service to the black community. While the court was accurately criticized as second rate because of the jurisdictional limitations imposed by the white establishment, the justice rendered to individual black defendants by the all-black court was first-class. The historical importance of the court is not what it was incapable of doing, but rather how court proponents used the court to both serve the best interest of the black community and advance the cause of individual civil rights.

Id. at 138.

Gonzales Is Sorry for Saying Performance Was the Problem

JURIST - Paper Chase: Gonzales apologizes to prosecutors for mishandling US Attorney firings, March 18, 2007:

US Attorney General Alberto Gonzales apologized in a conference call with federal prosecutors Friday for mishandling the dismissal of eight US Attorneys. Gonzales has been heavily criticized since he fired the attorneys in 2006 amid speculation the moves were politically motivated. During the phone call, Gonzales regretted suggesting the firings were reflective of the prosecutors' job performance but was clear in his refusal to apologize for the firings themselves.

Facts Can’t Speak for Themselves

Facts Can’t Speak for Themselves: Reveal the Stories that Give Facts Their Meaning, a book from NITA, offers trial attorneys help in framing persuasive narratives for juries.

Dave Swanner (South Carolina Trial Law Blog) says it's "a fascinating book on how to present information to help jurors learn and how the decision making process works."

Every decision maker is influenced by far more than his or her background and beliefs. Every decision maker has an imagination and they use it to create many more than one version of your client’s case story. Then, each judge, negotiator, mediator and juror settles on one private version of your story and decides your case from that version. Facts Can’t Speak for Themselves offers trial attorneys proven ways to uncover the full range of those "rewritten" stories in focus groups, and how to take their best elements into court and other venues to deliver a story more likely to persuade than the one you thought you had.

-- publisher's info. Facts Can't Speak for Themselves is available in the library: K181 .O44 2005 at Classified Stacks.

2007 Criminal Justice Summit

Washington's biennial Criminal Justice Summit -- coming up March 28-30, in Gig Harbor -- brings together "Washington state's justice partners ... law enforcement, government officials and courts and non-profit advocay groups." Featured speakers include "the Honorable Monica Benton, United States District Court Magistrate Judge; Brian Moran, Washington Chief Deputy Attorney General; Bob Welden, General Council, Washington State Bar Association; and Robin Hunt, Washington Court of Appeals." Washington Courts press release, March 16, 2007

Community Court: From Retribution to Rehabilitation

The Seattle Channel as a segment (about 10 minutes) on Seattle's Community Court. The community court approach emphasizes community service and social service treatment over jail time for minor crimes -- prostitution, petty theft, drug possession -- often by people who are homeless. The video includes clips of court administrators, Presiding Judge Fred Bonner, City Attorney Tom Carr, defense attorney Dave Chapman (Associated Counsel for the Accused), and a defendant who was helped by the program. Seattle Channel -- CityStream, Dec. 21, 2006.

Judge Bonner says that the program has changed him -- not just the defendants:

I used to be considered somewhat of a hardass, and now I don't look at things the same as I did before.I look at the individual who appears before me as a person who's crying out for help. I am in a help mode rather than a punishment mode. ... My original indoctrination into the system was one of retribution. I've come all the way from retribution to rehabilitation.

Federal Judges Want More Federal Judges; Court Stats

The Judicial Conference of the United States voted to recommend that Congress create 67 new judgeships (15 appeals court, 52 district court). Why? Consider that the number of appellate judges has remained constant since 1990, while the number of appeals filed has gone up 55%. Congress has increased the number of district judgeships 4%, but the caseload has gone up 29%. Federal Judiciary News Release, March 15, 2007.

The local angle:

• The Ninth Circuit currently has 28 judgeships. The Conference recommends 5 permanent and 2 temporary judgeship be added.
• The Western District of Washington currently has 7 judgeships; the conference recommends one more.

The Judicial Conference also:

• Gave the go-ahead for a pilot project adding digital audio recordings to PACER.
• "Strongly urged" courts to make it more clear when cases have been sealed. When you search electronic dockets currently, you can sometimes get a notice that "case does not exist"; the Conference says the message should be "case under seal."
• Told the Committee on Judicial Conduct and Disability to work up guidelines on judicial disability that could be applied nationwide.

This week, the U.S. Courts also released its annual statistical report (covering the year ending Sept. 30, 2006), Judicial Business of the United States Courts 2006. For an overview, see the press release (March 13, 2007).

The local angle:

• Civil Cases Filed (Table C-3, p. 172)
• total civil cases: E.D. Wash. 701; W.D. Wash. 2,772
• "U.S. Civil": E.D. Wash. 288; W.D. Wash. 677
• Social Security: E.D. 175, W.D. 254
• Civil Rights: E.D. 7, W.D. 47
• Prisoner Petitions
  • Motions to Vacate Sentence: E.D. 27; W.D. 35
  • Habeas Corpus General E.D. 5; W.D. 91

Case Dispositions (Table C-5, p. 194).

• How many case dispositions in each of our districts? How long did they take (median time)? E.D. Wash. 533 dispositions, 8.1 months; W.D. Wash. 2,815 dispositions, 9.1 months.
• How about different types of disposition?
• No court action: E.D. 170 cases, 5.7 months; W.D. 885 cases, 6.2 months
• Dispositions before pre-trial -- E.D. 319 cases, 9.5 months; W.D. 1,879 cases, 11.1 months
• During or after pretrial -- E.D. 30 cases, 15.5 months; W.D. 20 cases, 16.0 months
• Trial -- E.D. 14 cases, 17.5 months; W.D. 31 cases, 19.4 months.

9th Cir Upholds Waiver of Death Challenge

The Ninth Circuit en banc reversed a panel decision granting habeas and requiring the state to begin new sentencing proceedings, because when the petitioner was sentenced he was slumped over in a wheelchair, shackled, bleeding, and nearly naked -- a violation of his due process rights. The en banc court finds valid the habeas petitioner's waiver further proceedings, including challenging the death penalty. Comer v. Schriro, No. 98-99003, 9899003withgraphic.pdf 9th Cir. link (9th Cir. March 15, 2007)(en banc)(per curiam, with Judge Paez concurring and Judge Pregerson dissenting).

In his dissent, Judge Pregerson quotes all of the original panel decision (Ferguson, J.)(see earlier post). He concludes with a picture of Comer at his sentencing hearing and writes:

Nothing in this opinion requires the Arizona court to conduct a new penalty phase. The due process violation occurred after the guilt phase of the trial. The due process violation occurred after the penalty phase of the trial. The due process violation occurred at the sentencing hearing held by the Arizona
trial judge who imposed the penalty of death on a man
who was naked, bleeding, shackled, exhausted and semiconscious.

Comer wants to die. Arizona wants to execute him. There is little question that this will happen. Judge Ferguson’s opinion only requires that the sentence of death be pronounced to an understanding human, not to a discarded piece of flesh.

Id. at 3181.

Jury Selection for the Very Rich

At Deliberations (a new blog about juries), Milwaukee lawyer Anne Reed comments on jury selection in the trial of Conrad Black ("former media baron"). Black is famous for his wealth and lavish lifestyle -- as well as for giving up his Canadian citizenship in order to accept a British title (Lord Black of Crossharbour). Lord Black is an extreme example of the rich, but it is certainly common enough for rich people to be involved in litigation, and Reed's comments about jurors' views of the rich are well worth reading. How To Pick A Jury For A Lord, Deliberations, March 16, 2007.

More Brain Info

Since it is still Brain Awareness Week, I thought I'd highlight some recent articles about neuroscience and the law from SSRN (free if you register):

• Chorvat, Terrence R. and McCabe, Kevin, "The Brain and the Law" . George Mason Law & Economics Research Paper No. 04-33 Available at SSRN: http://ssrn.com/abstract=577821. Abstract:

  Much has been written about how law as an institution has developed to solve many problems that human societies face. Inherent in all of these explanations are models of how humans make decisions. This article discusses what current neuroscience research tells us about the mechanisms of human decision-making of particular relevance to law. This research indicates that humans are both more capable of solving many problems than standard economic models predict, but also limited in ways those models ignore. This article discusses how law is both shaped by our cognitive processes and also shapes them. The article considers some of the implications of this research for improving our understanding of how our current legal regimes operate and how the law can be structured to take advantage of our neural mechanisms to improve social welfare.

• Robinson, Paul H., Kurzban, Robert and Jones, Owen D., "The Origins of Shared Intuitions of Justice" (December 18, 2006). University of Pennsylvania Law School, Public Law Working Paper No. 06-47 Available at SSRN: http://ssrn.com/abstract=952726. Abstract:

  Contrary to the common wisdom among criminal law scholars, the empirical evidence reveals that people's intuitions of justice are often specific, nuanced, and widely shared. Indeed, with regard to the core harms to which criminal law addresses itself - physical aggression, takings without consent, and deception in transactions - the shared intuitions are stunningly consistent across cultures and demographics. What could explain the fact that judgments of moral blameworthiness, which seem so complex and subjective, show such remarkable consensus? Here we theorize that there may be an evolved predisposition toward these shared intuitions of justice arising from the advantages that they provided, including stability, predictability, and the facilitation of beneficial exchange - the cornerstones of cooperative action. Data from animal behavior, brain science, and developmental psychology are reviewed and broadly support this hypothesis. Alternative explanations - such as general social learning and efficient norms - are also considered, but face substantial theoretical and empirical difficulties. Whatever the correct explanation for the observed consensus, intuitions of justice seem to be an inherent part of being human, which carries important implications for criminal law and criminal justice policy.

• Morse, Stephen J., "Brain Overclaim Syndrome and Criminal Responsibility: A Diagnostic Note" . Ohio State Journal of Criminal Law, Vol. 3, p. 397, 2006 Available at SSRN: http://ssrn.com/abstract=896753. Abstract:

  This brief diagnostic note identifies a cognitive pathology, Brain Overclaim Syndrome [BOS], that often afflicts those inflamed by the fascinating new discoveries in the neurosciences. It begins by suggesting how one should think about the relation of neuroscience (or any other material explanation of human behavior) to criminal responsibility, distinguishing between internal and external critiques based on neuroscience. It then describes the signs and symptoms of BOS, the essential feature of which is to make claims about the implications of neuroscience for criminal responsibility that cannot be conceptually or empirically sustained. It then applies the diagnostic lens of BOS to the claims in Roper v. Simmons. Finally, the article recommends Cognitive Jurotherapy [CJ] as the therapy of choice for BOS.

• Saunders, Kevin W., "A Disconnect Between Law and Neuroscience: Modern Brain Science, Media Influences, and Juvenile Justice" . Utah Law Review, Vol. 2005, pp. 695-741, 2005 Available at SSRN: http://ssrn.com/abstract=815244. Abstract:

  Modern brain science has discovered a second period of physical development of the brain in the adolescent years. Paralleling the cognitive development of infancy and early childhood, the judgmental and inhibitory regions of the brain go through a process of synaptic overblooming and later paring in this later period of life. Just as environment affects cognitive development, it appears it also has an effect on judgment and inhibition. This has consequences that should influence the development of the law. First, if environment affects which synapses remain in the developed brain and later influence judgment, there is greater reason to be concerned about the media environment children face. Second, if children are unable to make adult judgments and inhibit their actions, rather than simply being unwilling to do so, that should speak in favor of a juvenile justice system that recognizes that juvenile offenders may be more amendable to rehabilitation than adults.

• Keckler, Charles N.W., "Cross-Examining the Brain: A Legal Analysis of Neural Imaging for Credibility Impeachment" (February 15, 2005). George Mason Law & Economics Research Paper No. 05-02 Available at SSRN: http://ssrn.com/abstract=667601 or DOI: 10.2139/ssrn.667601. Abstract:

  The last decade has seen remarkable process in understanding ongoing psychological processes at the neurobiological level, progress that has been driven technologically by the spread of functional neuroimaging devices, especially magnetic resonance imaging, that have become the research tools of a theoretically sophisticated cognitive neuroscience. As this research turns to specification of the mental processes involved in interpersonal deception, the potential evidentiary use of material produced by devices for detecting deception, long stymied by the conceptual and legal limitations of the polygraph, must be re-examined. Although studies in this area are preliminary, and I conclude they have not yet satisfied the foundational requirements for the admissibility of scientific evidence, the potential for use - particularly as a devastating impeachment threat to encourage factual veracity - is a real one that the legal profession should seek to foster through structuring the correct incentives and rules for admissibility. In particular, neuroscience has articulated basic memory processes to a sufficient degree that contemporaneously neuroimaged witnesses would be unable to feign ignorance of a familiar item (or to claim knowledge of something unfamiliar). The brain implementation of actual lies and deceit more generally, is of greater complexity and variability. Nevertheless, the research project to elucidate them is conceptually sound, and the law cannot afford to stand apart from what may ultimately constitute profound progress in a fundamental problem of adjudication.

• Redding, Richard E., "The Brain-Disordered Defendant: Neuroscience and Legal Insanity in the Twenty-First Century" . American University Law Review, Vol. 56, p. 51, 2006 Available at SSRN: http://ssrn.com/abstract=937349. Abstract:

  Brain-damaged defendants are seen everyday in American courtrooms, and in many cases, their criminal behavior appears to be the product of extremely poor judgment and self-control. Some have a disorder in the frontal lobes, the area of the brain responsible for judgment and impulse control. Yet because defendants suffering from frontal lobe dysfunction usually understand the difference between right and wrong, they are unable to avail themselves of the only insanity defense available in many states, a defense based on the narrow McNaghten test. "Irresistible impulse" (or "control") tests, on the other hand, provide an insanity defense to those who committed a crime due to their inability to exercise behavioral control. Control tests have fallen into disfavor, however. Opponents of control tests offer three rationales for their abandonment: (1) that cognitive tests for insanity are sufficient, since those with impaired impulse control will also be cognitively impaired; (2) that mental health professionals are incapable of reliably assessing the capacity for impulse control, particularly in relation to criminal behavior, or of differentiating between a truly irresistible impulse and an impulse that is merely difficult to resist; and, therefore, that control tests lead to erroneous insanity acquittals; and, (3) that because "they directly pose the question of whether a person could control his or her behavior," control tests run counter to the law's assumption that people have free will and bear responsibility for their actions. Current neuroscience research presents a challenge to these claims. In the Article, I argue for a return to control tests for insanity, but with important doctrinal modifications.

Because my own brain and time are limited, I've done little more than scan the abstracts -- but even that much is interesting.

Graphic from http://www.niehs.nih.gov/kids/brain.htm.

How Can Juries Process the Information Blakely Requires?

Under Blakely v. Washington, 542 U.S. 296, LII link (2004), a fact that enhances a defendant's sentence must be found by a jury beyond a reasonable doubt (not found by a judge by the preponderance of the evidence). So juries will need to make many factual determinations that used to be out of their hands. How should the system respond? The issues are explored in:

J.J. Prescott & Sonja Starr, Improving Criminal Jury Decision Making After the Blakely Revolution, 2006 Ill. L. Rev. 301-356.

Here is the abstract:

The shift in sentencing fact-finding responsibility triggered in many states by Blakely v. Washington may dramatically change the complexity and type of questions that juries will be required to answer. Among the most important challenges confronting legislatures now debating the future of their sentencing regimes is whether juries are prepared to handle this new responsibility effectively - and, if not, what can be done about it. Yet neither scholars addressing the impact of Blakely nor advocates of jury reform have seriously explored these questions. Nonetheless, a number of limitations on juror decision making seriously threaten the accuracy of verdicts in systems where juries are given a more prominent role in finding sentencing facts.

In this article, we assess the capacity of juries to analyze and deliberate on sentencing-related facts. We consider, inter alia, problems of cognitive overload, frustration and loss of motivation due to complex structures, difficulties evaluating evidence that juries do not ordinarily consider, distortions due to the framing of nonbinary questions, and deliberation-related biases. We also propose a model for sentencing-stage jury proceedings that would minimize these problems. Its components include bifurcation of proceedings, partial application of the rules of evidence, special verdict forms that are carefully designed to minimize framing effects, structural simplification of sentencing tasks, a more active jury, and guidance for jurors on bias-reducing deliberation structures.

Hells Angels Case - Spokane Angle, Seattle Trial

The Spokesman Review (Spokane) had a long article on Sunday: Angels on trial; The Hells Angels chapter in Spokane - home to the notorious club's West Coast president - is at the center of a high-stakes federal trial set to begin Monday in Seattle, Spokesman Review, March 11, 2007.

The extraordinary step of identifying jurors only by number was taken, authorities say, to reduce intimidation - a hallmark of so-called outlaw motorcycle clubs that boast their members are so tough they are the "1 percenters" of society.

The trial is expected to last 10 weeks and involve up to 200 witnesses, many of them from Spokane and Eastern Washington. The case involves alleged acts of witness intimidation in Spokane and elsewhere, according to court documents.

Prosecutors are seeking forfeiture of the group's clubhouse in Spokane. In a ruling to limit prejudice, prosecutors are forbidden from referring to the group as a "gang," and will instead used its preferred name, "club."

Tom Hillier, a former Spokane County assistant public defender who is now the federal defender for the Western District of Washington, said prosecutors are up against some of the best criminal defense attorneys in Seattle. Hillier is not directly involved in the case.

"They're all really good lawyers, excellent criminal defense lawyers," Hillier said. "None are flamboyant -- just hard-working, skilled, creative trial attorneys. It's a great defense team."

Robert S. Lasnik, the chief judge for the Western District, will preside over the trial. The federal judge is a former King County deputy prosecutor with a reputation for being a "bright, capable, experienced jurist," Hillier said.

"He's not going to be controversial in the least," Hillier said. "He's not the sort of judge who's the center of attention. He's going to preside over the case with skill and dignity."

(I can't link to the whole article because full access on the paper's website is limited to subscribers. I read the article on LexisNexis.)

Students: Anyone care to spend a day of spring break watching excellent trial lawyers at work in a high-profile trial? It's an easy bus ride from here. Judge Lasnik's calendars are here. They post one week at a time -- so today you can see that the trial started at 8:45 this morning and is scheduled to go all day, but is in recess tomorrow (Friday). Tomorrow there are two sentencing proceedings in other cases -- one scheduled for 2 hours in the morning, and one scheduled for 30 minutes in the afternoon. I imagine that the Hells Angel trial (U.S. v. Fabel et al.) will start up again Monday morning, but it's a good idea to check the calendar.

Are Fast Food Lawsuits Likely to Be the Next 'Big Tobacco'?

Are Fast Food Lawsuits Likely to Be the Next 'Big Tobacco'?, Nat'l L.J. (law.com), Feb. 28, 2007.

Good question.

Appoint New Counsel After Client Stabs One

A rape defendant in Mass. stabbed his attorney in the face and chest with a weapon made out of a piece of Plexiglas. The judge asked the lawyer to withdraw from representation so he could appoint another lawyer. And they're beefing up security for this defendant -- when he attacked his lawyer, he was wearing leg irons. Judge Wants New Counsel for Man Accused of Stabbing Lawyer, AP (law.com), March 1, 2007.

Judge Doesn't Recuse: Spouse's Firm

N.Y. Federal Judge Rebuffs Recusal Motion Citing Clients of Husband's Firm, N.Y. L.J. (law.com), March 5, 2007:

A federal judge has rejected a request that she recuse herself from a high-profile litigation involving the music industry on the ground that her attorney husband and his firm have represented some of the defendants in other matters.

Big Bucks IP Jury Verdicts

Intellectual Property Verdicts Exceed $1.3 Billion in 2006, Nat'l L.J. (law.com), March 5, 2007.

Who says jury work is all about personal injury and criminal law?

Here's another story that's more than coincidental, I reckon: LA Piper Singles Out Patent Litigators for Higher Pay, Recorder (law.com), March 2, 2007.

2nd Circuit Upholds Attorney's Conviction for Forgery

2nd Circuit Upholds Attorney's Conviction for Forgery, N.Y. L.J. (law.com), March 5, 2007. The forgery? A magistrate's signature on an order. Prosecutors said that the lawyer wanted to discredit his adversaries by making it look like they were responsible for the forgery. (The order purported to rule against Reich's side in a dispute and have the magistrate judge recuse herself.)

United States v. Reich, 06-1445 (2d Cir. March 2, 2007).

The Attorney-Client Privilege and the 'Complete Lawyer': More than Mere Legal Advice

In a recent decision, Pritchard v. Erie County, No. 06-2459-op (Jan. 3, 2007), the 2nd U.S. Circuit Court of Appeals held that a client does not forfeit the protection of the attorney-client privilege merely because that client has the good sense or good fortune to have hired a lawyer who is able not only to tell the client what the law is, but can also make recommendations and advise the client on how the client should proceed given the status of the law.

Kevin Allen, The Attorney-Client Privilege and the 'Complete Lawyer': More than Mere Legal Advice, Law.com, March 6, 2007. The case concerns strip searches of arrestees in Erie County, PA. During discovery, the county withheld from plaintiffs a series of emails in which a county attorney not only discussed the law but also assessed the county's current policies, recommended changes, and monitored the changes.

Ethiopia Versus Starbucks

Ethiopia wants to trademark and license coffee names based on its coffee-growing regions in order to increase the value in the market and to get a bigger share of the coffee pie (so to speak). Starbucks doesn't want to sign the license offered. Both sides have used videos they've posted on YouTube to try to sway public opinion. Ethiopian Coffee Trademark Dispute With Starbucks Runs Hot and Cold, Legal Times (law.com), March 8, 2007.

Exonerees' Attorneys Fight Over Fees

Kathleen Zellner successfully used DNA to get two men exonerated and released from prison. Then she represented them in a civil suit against the City of Chicago (and others) for violating their rights. After nearly a year, they switched attorneys. Now the new lawyers say they are close to settling that case, and she wants a cut of the fees. They say they shouldn't have to share, since she said that she was representing the men pro bono. Her reply: she was pro bono on the DNA motion, but the plaintiffs signed a contingency fee agreement with her for the civil suit. Fee Dispute Erupts in Pro Bono Exoneration Case, Nat'l L.J. (law.com), March 8, 2007.

Equal, Splenda Go to Trial

A federal district judge denied summary judgment to the manufacturer of Splenda, which is being sued by the manufacturer of Equal and Nutra Sweet. The plaintiff says that Splenda's slogan -- "made from sugar so it tastes like sugar" -- is misleading because the sugar molecules are chemically altered. How Sweet It Isn't: Equal, Splenda to Clash in Trial, Legal Times (law.com), March 8, 2007.

"[Judge Gene] Pratter's opinion sets the stage for a two-week trial scheduled to begin in April that promises to be a battle of the experts, including a neurobiologist who will testify about the biology of sweet tastes." (Remember, it's Brain Awareness Week! See yesterday's post.)

The memorandum and order is Merisant Co. v. McNeil Nutritionals, No. 04-5504 (E.D. Pa. March 2, 2007).

Graphic: mw.

Family Reaches Unusual Settlement Over Reporter's Death

Family Reaches Unusual Settlement Over Death of Retired Times Reporter, Legal Times (law.com), March 9, 2007:

The settlement, which includes no money for the Rosenbaum family or their lawyer Patrick Regan, will create a task force that will make recommendations within six months on ways of improving emergency medical services in the District. In return, the family agrees to dismiss the District from the suit but retains the right to refile their claims within one year if they are not satisfied by the District's efforts.

Other cases stemming from the incident: One man pleaded guilty to second-degree murder and testified against another, who was convicted of first-degree murder. The family is suing Howard University Hospital "because the hospital provided 'third-world care in the nation's capital.'"

Judges Recusing Themselves Over Pay Dispute

New York judges and legislators disagree about the importance and urgency of a pay raise for judges. In December the legislature failed to enact a proposed measure, and "judicial morale sagged." Three judges brought a suit seeking to compel a salary increase. Some judges have recused themselves in cases handled by legislators or legislators' firms. Is that cricket? The court system's Advisory Committee on Judicial Ethics says it isn't -- the judges shouldn't recuse themselves. N.Y. Judges Advised Not to Link Recusals to Pay Dispute, N.Y. L.J. (law.com), March 9, 2007.

Supreme Court (trial court) judges make $136,700/year. Meanwhile, first-year associates at some big Wall Street firms make $160,000. Boston Firms Split on How to Respond to N.Y. Pay Hikes, Nat'l L.J. (law.com), March 9, 2007.

Big Punitive Damages Against Truck Maker

DaimlerChrysler Hit With $50M Punitive Verdict, The Recorder (law.com), March 12, 2007. The plaintiff's attorney said he asked the judge to craft jury instructions that took into account the Supreme Court's recent ruling in Philip Morris USA v. Williams (see earlier post).

D.C. Circuit Strikes Down Gun-Control Law, Priming Issue for High Court

D.C. Circuit Strikes Down Gun-Control Law, Priming Issue for High Court, Legal Times (law.com), March 12, 2007. The panel held that the DC ordinance violated individuals' second amendment rights.

(Not really a trial practice news item, but worth sharing.)

Antitrust Action Against Barbers

After a number of barbershop owners in Tillicum (near Fort Lewis and McChord Air Force Base) all raised their prices for military haircuts from $6 to $7, the state began an antitrust investigation. Some barbers interviewed by the News Tribune say they planned their rate increase on their own. Said one, "My rent was going up on January 1. I thought it wouldn't hurt." State looks into price hikes of military haircuts, News Tribune, March 9, 2007.

Janelle Guthrie, a spokeswoman for the Attorney General’s Office, said these types of investigations are started by consumer complaints and "are not an attempt to bully anyone."

The AG’s office will accept antitrust complaints by telephone or online, she said.

While a barbershop investigation might seem unusual, Guthrie likened it to a consumer complaint that a group of gas stations raised their price four cents a gallon – all at the same time.

Lisa Kremer sent me this story, noting:

I took antitrust last quarter, so when I saw the story I thought, wow, that must have been a fun change of pace for the lawyers. But it's turned into a public relations nightmare. The paper has been full of letters every day criticizing the attorney general's office for wasting money on investigating $7 haircuts. My guess is the antitrust lawyers are not feeling too good right now.

Many consumer-oriented cases involve small amounts multiplied by many consumers -- for instance, when Netflix allegedly slowed the turnaround on its DVD mailings for heavy users (see settlement website), when Epson allegedly marketed ink cartridges that indicated they were empty and prevented printing even when there was ink in them (see settlement website), or when Microsoft allegedly violated California and federal laws in its volume license programs between 1995 and 2001 (see settlement website). But it's easier to sympathize with the hard-working barbers (often immigrants), trying to make a living 6 or 7 bucks at a time, than with the large corporations who are often defendants in such cases.

For more about antitrust investigations in Washington, see the Antitrust Division's website.

Update: The investigation stemmed from a couple of consumer complaints. Attorneys met with each of the barbers, along with an interpreter and Elliott Kim, a member of the state Commission on Asian Pacific American Affairs. The AG's office gave the barbers a warning but no penalties. It was clear that they did not know that agreeing to raise prices was illegal. Mr. Kim plans to translate antitrust information into Korean for use in the local Korean American press. No charges for barbers who fixed their prices, News Tribune, March 24, 2007. (Lisa sent me this update the day the article appeared, but that was during spring break and her message got lost in my email backlog.)

Photo: U.S. Army Museum of Hawai'i (Japanese-American soldiers during World War II).

McKay "stunned" by report on Bush

More on the U.S. attorney controversy:

• McKay "stunned" by report on Bush, Seattle Times, March 13, 2007.
• Gonzales Accepts Responsibility for 'Mistakes':
  Schumer Warns Sampson's Resignation Does Not Absolve Attorney General, Wash. Post, March 13, 2007.
• Gonzales Says ‘Mistakes Were Made’ in Firing of Prosecutors, N.Y. Times, March 14, 2007.

Viacom Sues YouTube Over Copyright

Viacom Sues YouTube Over Copyright, Washington Post, March 14, 2007. One BILLION dollars!

The complaint is on Findlaw.

Hells Angels Trial Opens

Attorneys made opening statements in the big RICO trial against members of the Washington Nomads chapter of the Hells Angels. A big issue will be witness credibility -- will the jury believe the witnesses who struck deals in exchange for their testimony? The trial is projected to last ten weeks. Hells Angels' defense: Witnesses are "rats,", Seattle Times, March 13, 2007.

In his statement Todd Maybrown, representing Rodney Rollness, said that one of the witnesses against Rollness has changed his story, since he earlier said his attackers were members of a different gang. (Maybrown was a Trial Ad instructor fall quarter.)

Neurolaw

Stephanie Knightlinger told me about a fascinating article in Sunday's New York Times Magazine about applications -- and potential applications -- of neuroscience in the law. Take a look: Jeffrey Rosen, The Brain on the Stand, NY Times Mag., March 11, 2007.

The article discusses many scientists' and scholars' work. Here are a few links if you want to look further:

• O. Carter Snead, a law professor at Notre Dame, has written in the area and serves on the President's Council on Bioethics. See O. Carter Snead, Neuroimaging and the 'Complexity' of Capital Punishment (February 27, 2007). Notre Dame Legal Studies Paper No. 07-03 (avail. at SSRN).
• The President's Council on Bioethics discussed neuroscience and law at its Sept. 2004 meeting:
  • Working Paper, An Overview of the Impact of Neuroscience Evidence in Criminal Law (Sept. 2004)
  • Stephen J. Morse, Neuroscience, Brain, and Behavior VI: Neuroscience and the Law (Sept. 9, 2004) (transcript of speech).
• Vanderbilt Law School is setting up a law and neuroscience program, led by Prof. Owen D. Jones, who has appointments in the med school and the law school.
• The University of Pennsylvania also had a number of people working in the field, including Stephen J. Morse (Prof. of Law and Prof. of Psychology and Law in Psychiatry) and Prof. Ruben G. Gur (Psychiatry).
• A group of professional associations -- including the American Medical Association -- filed an amicus brief in Roper v. Simmons (juvenile death penalty) discussing what science says about adolescent brains. Although the Court didn't cite the brief, observers believe it was influential in the decision.
• The Center for Cognitive Liberty and Ethics "is a network of scholars elaborating the law, policy and ethics of freedom of thought. [Its] mission is to develop public polices that will preserve and enhance freedom of thought into the 21st Century."

Are you stumped when you hear or read "amygdala," "cerebellum," or "medulla oblongata"? Would you like an accessible introduction to neuroscience? See Neuroscience for Kids, a website developed by a team led by Dr. Eric H. Chudler, Director of Education and Outreach, UW Bioengineered Materials.

By the way, this week (March 12-18, 2007) is Brain Awareness Week, observed by more than 2000 organizations in 69 countries. Did you know that there's an International Brain Bee? It's this week at the University of Maryland in Baltimore.

Graphic from the Dana Foundation's collection of graphics for Brain Awareness Week.

Toobin on Libby Verdict

On CNN, Jeffrey Toobin discussed Lewis "Scooter" Libby's prospects:

In a way, the fact that the jury did not convict Libby of all the counts will make the verdict that much harder to overturn on appeal. Because the appellate court will obviously see that this is a jury that looked very carefully at the evidence, that didn't just walk in there and convict him because they didn't like Republicans or they didn't like President Bush. They meticulously went through the evidence. And those kind of verdicts are harder to overturn on appeal than simply an across-the-board set of convictions.

He suggested that Libby's best bet might be to delay prison until after the 2008 election, since a pardon is most likely after the President is a lame duck. Toobin: Presidential pardon may be on Libby agenda, CNN.com, March 6, 2007.

While I was looking for that story, I came across: Libby jury asked to explain 'reasonable doubt' question, CNN.com, March 5, 2007. "The jurors asked whether it would have to be "not humanly possible for someone not to recall an event" for them to find guilt beyond a reasonable doubt."

( Aside: I suspect juror uncertainty over "reasonable doubt" is common. I was on a jury in municipal court once that deadlocked because of it. A man accused of possessing stolen property said that he bought a brand new Eddie Bauer down coat from a stranger on the street for some ridiculously low amount, but he didn't know it was stolen. He was arrested after he went to the store to exchange it the next day. The prosecution presented strong evidence that the coat had been stolen the afternoon that he said he bought it. Four jurors were willing to convict, but two said they had reasonable doubt, because you can never truly know what is in someone else's mind, so we couldn't know that he knew the coat was stolen.)

This week Toobin in The New Yorker addresses the question: why did it take the jury 10 days to convict Lewis "Scooter" Libby when the evidence was so clear? Comment: Verdicts, New Yorker, March 19, 2007.

No one except Libby was proved to be lying to investigators. And Libby has not said that anyone told him to perjure himself. Still, in a moral sense, if not a legal one, it was clear that the business of discrediting the Wilsons was a group undertaking, and it’s therefore easy to see why the jury struggled with laying blame for the whole operation on Libby. One juror, Denis Collins, said after the trial that he agreed with the defense claim that Libby was a "fall guy" for Cheney, among others, but Collins also thought that Libby was guilty; under the circumstances, both conclusions made sense.

Thanks: Pamela Gregory

Questionnaires in Voir Dire

Jury consultant Susan E. Jones (Jury Research Institute) discusses using questionnaires during voir dire: The prospective juror questionnaire.

Thanks: Bill Pryme-Fuld.

Fund Judicial Elections?

Prof. William R. Andersen writes in the Seattle Times's op-ed section: Ensure an impartial judiciary with public funding of elections, March 12, 2007.

U.S. Attorney Firing

Controversy continues to swirl around the Administration's firing of eight U.S. attorneys. The headlines tell the story: Rove funneled Justice complaints, Seattle Times, March 12, 2007. Outrage, questions persist on firing of U.S. attorneys, Seattle Times (reprinting a long story from the L.A. Times), March 12, 2007. Justice Official 'Horrified' Phone Call Was Seen as Threat, Washington Post, March 12, 2007. Gonzales Should Quit, Senator Says, New York Times, March 12, 2007.

Medical Errors and Neglect in King County Jail

The Seattle Times has a long article describing problems with the medical care provided in the King County Jail (and the Regional Justice Center in Kent). There are some appalling stories -- for instance, the one about the man with sickle cell anemia who complained of joint pain. The health care providers thought he was going through withdrawal from heroin. Although he said it wasn't the right drug, they gave him methadone, and he died of an overdose. More typical are the tales of unaddressed complaints, slow responses to requests to see a doctor, and poor records of narcotics and other drugs. Mike Carter, Mistakes, some deadly, haunt county jails, Seattle Times, March 9, 2007.

Rangers and Robbers

Two former Army Rangers who were stationed at Ft. Lewis are pleading guilty today to charges stemming from their involvement in a bank robbery in Tacoma in August. Altogether, seven men have been charged, five of them Rangers. The non-Rangers are Canadians; one of the Rangers has dual citizenship and is currently under house arrest in his mother's house in BC, fighting extradition. Two Rangers already pleaded guilty. 2 ex-Rangers to admit guilt in bank heist, Seattle Times, March 8, 2007. Trial Ad instructor Amanda Lee represents one of the Rangers who is scheduled to enter a plea today. The details of his plea agreement were still confidential at the time of the newspaper story.

Other stories (all Seattle Times, all by David Bowermaster):

• The Army Ranger who robbed a bank, Feb. 8, 2007. Prosecutors said that Luke Sommer, the alleged leader, planned to take over a BC crime ring from the Hells Angels. When he was picked up by Canadian police, he gave a statement saying that he planned the robbery in order to bring attention to war crimes.
• No evidence found of war crimes Ranger alleged, Pentagon says, Dec. 9, 2006.
• Army Ranger pleads guilty to bank robbery, Dec. 8, 2006
• Ranger's defense: If I did it, it was political, Dec. 6, 2006.
• Charges in the Heist, Dec. 6, 2007.
• Tacoma Bank Robbed to Start a Crime Family?, Nov. 30, 2006.
• Fort Lewis Ranger Charged Over Stored Weapons, Sept. 22, 2006.
• 3 Rangers Charged in Tacoma Bank Heist, Aug. 11, 2006.

I think the Army recruiting slogan, "Be all you can be," was not really intended to apply to young men with ambitions to use their weapons training for bank robbery.

Fudging a Filing Date Miffs Utah Judge

In Utah, state and federal courthouses give last-minute lawyers a break: they have date stamp machines outside the building so you can datestamp a document after closing on the date that it's due, plop it in a drop box, and still have met the deadline.

Some attorneys in a big federal case tried to scam the system: they datestamped the first page of their document and did not plop it in the drop box, instead going back to the office to work on it for three or four more days. The filing was due the Friday before Presidents Day weekend (Feb. 16), and it wasn't found in the drop box until the Wednesday morning (Feb. 21) pickup, sandwiched between documents that were datestamped Feb. 20.

Judge Dale A. Kimball (D. Utah) was steamed and issued a sizzling order:

This deceitful conduct will not be tolerated. The conduct is particularly egregious when counsel has been previously notified that the court is liberal in granting extensions of time when additional time is needed. Moreover, counsel in this case have been admonished before about the gamesmanship that has been taking place in this lawsuit.

Judge Kimball vs. naughty Salt Lake lawyers, Voice of Utah, March 5, 2007.

Thanks: Jessica Van Buren.

Court voids drive-by shooting conviction

Court voids drive-by shooting conviction, Seattle P-I, March 7, 2007.

Cesar Sarausad drove the car from which a Ballard High School student was shot. He admitted that he was driving, but said he didn't know that his passenger had a gun. The jury instructions were unclear as to whether he needed to know that his passenger intended to kill someone -- so unclear that the jury asked three times for clarification, only to be told to reread them.

Judge Coughenour (W.D. Wash.) granted habeas based on the erroneous jury instructions and insufficiency of the evidence. The 9th Circuit affirmed the grant of habeas relief, but only on the jury instruction issue. The state hasn't indicated whether it will appeal or seek a rehearing.

The opinion is Sarausad v. Porter, 05-35062 (9th Cir. March 7, 2007).

The panel was split: Judge William Fletcher wrote the first opinion, Judge Reinhardt concurred in part (jury instruction issue) and dissented in part (sufficiency of the evidence issue), and Judge Bybee dissented. This case has been through the system -- trial court, appeal in state court, personal restraint petition in state court, federal district court, federal court of appeals -- 13 years!

This morning I've been procrastinating on a less interesting task, but I really have to get to that task, so I'll resist the temptation to sift through the 80 pages of 9th Circuit opinions further. (If you read the opinions and would like to explain, please click on Comment!)

Part-time lecturer Patricia Novotny has represented Mr. Sarausad throughout his appeals.

UW Brain Prof Dumps HazMat

A UW Pharmacology professor who studies the brain used the save-a-buck region of his own brain when he should have used the follow-the-law area. The Environmental Health and Safety Department told Prof. Daniel R. Storm that it would cost $15,000 to dispose properly of a highly flammable solvent in his lab. Seeking to preserve his budget, he took an ax to the containers holding the solvent and poured it down the drain, followed by another solution to dilute the bad stuff. On Wednesday, he pleaded guilty in federal court to knowingly disposing of a hazardous waste without a permit. Prosecutors are recommending probation. Professor pleads guilty to dumping chemical, Seattle P-I, March 8, 2007.

Storm's lawyer, John Wolfe, said that Storm acknowledged that he acted improperly and is trying to rectify the matter by pleading guilty to the dumping charge and working with the university.

UW considers tuition waivers for veterans in grad school

UW considers tuition waivers for veterans in grad school, Seattle Times, March 5, 2007.

State law enables public universities to waive tuition for veterans and National Guard members. The UW gives a 50% waiver for undergraduate studies, but currently does nothing for graduate and professional students. Daniel Bugbee, 1L and Iraq veteran, proposed to the Regents that they expand the policy to cover law students and others. They'll vote on the proposal later this month.

Public Service at the UW

Last month's KCBA Bar Bulletin has an article about public service at the UW -- from the graduation requirement that all students do 60 hours of it, to PILA, which raises money to fund students' summer jobs with public interest groups, to the Gates Public Service Law Scholarship Program. Shari Ireton, Service Commitment Pays Dividends at UW, B. Bull., Feb. 2007.

Products Liability Symposium

The Review of Litigation is hosting a symposium in a couple of weeks: Products Liability: Litigation Trends on the 10th Anniversary of the Third Restatement, March 22-23, 2007, at the University of Texas.

"Nationally renowned scholars, as well as judges and practitioners will speak" on a variety of topics, including post-sale duties, the bulk supplier doctrine, prescription drugs in the US and the EU, ethics rules in group litigation (are they biased against plaintiffs?), multi-district litigation, public nuisance law in lead paint and gun litigation, jury selection in high-stakes productions liability cases, mass tort litigation.

Continuing Effects of Andress

In 2002, the Washington Supreme Court held that assault could not be the predicate felony for second-degree felony murder. In Re Andress, 147 Wn. 2d 602, Legalwa link (2002). In the wake of this case, many convictions were vacated and prosecutors around the state needed to figure out how to respond.

A year ago, one local case (Jerell Thomas, in the "Mardi Gras riot" case) was resolved by the defendant pleading guilty to second-degree manslaughter and getting a sentence five years shorter. Earlier post. In another case, Chayce A. Hanson, sentenced to 25 years for killing a small child he was babysitting, pleaded guilty to lesser charges and got 10-year sentence. Natalie Singer, Ruling overturns conviction in girl's death; man gets reduced sentence, Seattle Times, Sept. 30, 2006.

Now another defendant who was prominent in the local news faces new charges. Natalie Singer, New charges in officer's fatal shooting, Seattle Times, March 7, 2007. Quentin Ervin, one of the men convicted of killing off-duty police officer Antonio Terry in 1994, was charged with aggravated first-degree murder and the lesser included offenses of first-degree murder and second-degree felony murder. The jury convicted him of the least serious offense, second-degree felony murder. After Andress, the felony murder conviction was vacated.

The state wanted to retry him on the first two charges, but could it? Wouldn't that be double jeopardy? The Supreme Court unanimously held that it could, because the non-convictions on the first two offenses (for which the jury left the verdict forms blank) were not implied acquittals (that would have resulted in jeopardy attaching) -- they could have represented the jury's failure to agree. State v. Ervin, --- Wn.2d ---, Findlaw (Nov. 30, 2006) (Bridge, J.). And so King County prosecutors filed new charges on Tuesday. Deputy prosecutor (and Trial Ad instructor) Scott O'Toole says that the state plans to go to trial, but a plea agreement is still possible.

(If there were a prize for Trial Ad Instructor Most Often Mentioned in Newspapers, Scott would win it, hands down. I have a LexisNexis Eclipse search for all of their names, not just his.)

The legislature was unhappy with Andress and quickly (chapter 3 of the next legislative session) amended the felony murder statute (RCW 9A.32.050(b)) to make it clear that assault can be a predicate felony:

(1) A person is guilty of murder in the second degree when:
* * *
(b) He or she commits or attempts to commit any felony, including assault, * * * and, in the course of and in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants; * * *

Id. (emphasis added). The legislature also included a statement of findings and intent indicating that it believed the statute had been clear all along and the Supreme Court was mistaken -- but, since the court had ruled as it had, a curative amendment was necessary.

Fitzgerald's Closing Argument in Libby Trial

The Washington Post discusses Special Counsel Patrick J. Fitzgerald's closing argument in the Libby case:

Fitzgerald would respond with great frustration in his summation at Libby's trial almost three years [after his initial interview with Libby], saying that Libby's lies had effectively prevented him from learning about all of Cheney's actions in the administration's campaign to undermine Plame's husband, Joseph C. Wilson IV, a critic of the U.S. invasion of Iraq.

More than he had previously, Fitzgerald made clear in those remarks that his search for the truth about Cheney was a key ambition in his probe and that his inability to get it was a key provocation for Libby's indictment. Although Cheney was the target, Fitzgerald's investigation could not reach him because of Libby's duplicity.

Cheney's Suspected Role in Security Breach Drove Fitzgerald, Washington Post, March 7, 2007.

After Libby's lawyers complained that he was trying to put a "cloud" over Cheney without evidence to back it up, Fitzgerald told the jury on Feb. 20, "We'll talk straight."

There was, he said, "a cloud over what the vice president did" during the period before Novak's column was published, and it was created by testimony about Cheney directing Libby and others at the White House to disseminate information on Wilson and Wilson's criticisms.

"We didn't put that cloud there. That cloud remains because the defendant obstructed justice and lied about what happened," Fitzgerald added.

Id.The Post also helps us sort out the confusing chain of events, allegations, and evidence graphically in Fact vs. Fiction in the Libby Case, March 7, 2007, and What the Jury Decided About These Libby Statements, March 7, 2007.

Thanks: Stephanie Knightlinger.

McKay Testifies

Former U.S. Attorney testified in Congress yesterday. Did the Administration ask him to resign because of performance issues or because of partisan dissatisfaction about his investigation of alleged vote fraud in the 2004 gubernatorial election? An aide to Rep. "Doc" Hastings (R - Wash.) called McKay twice to ask about the election issue. And the Times website includes a 2005 letter from the Building Industry Association of Washington to Rep. Hastings asking him to call on President Bush to fire McKay. McKay goes down fighting, Seattle Times, March 7, 2007.

The Washington Post has a nice graphic (March 6) listing the eight fired U.S. attorneys, quoting from their job reviews, listing significant cases, and adding other notes.

McKenna Meets with Gonzales

Attorney General Rob McKenna meets today with U.S. Attorney General Alberto Gonzales, press release, March 6, 2007.

McKenna is in DC for the spring meeting of the National Association of Attorneys General, along with 45 other attorneys general and their staffs, plus a couple of hundred federal officials and representatives of law enforcement and trade groups. NAAG press release, March 5, 2007.

Why 24/7?

Responding to someone who says that lawyers need to be available to their clients 24/7 in order to be competitive, Dave Swanner asks: why?

Other than a rare emergency, what purpose does it serve to be available 100% of the time to your client? If you have good communication with your client and their case is up to date, why would they need to call you at 8:00 p.m. on a Thursday evening? Other than a rare emergency, what purpose does it serve to be available 100% of the time to your client? If you have good communication with your client and their case is up to date, why would they need to call you at 8:00 p.m. on a Thursday evening?

How Connected Should You Be to Your Client?, South Carolina Trial Law Blog, Jan. 14, 2007.

Dave is a very techie guy and fully appreciates connectedness, but he thinks there ought to be limits:

When I travel, I call clients and check in on them. I sometimes call clients on Sunday afternoon to see how their treatment is doing and to make certain all of their questions have been answered. I appreciate my Treo, GoToMyPC and wireless internet. But I also think it’s important to set boundaries to have a personal and family life.

Sounds like good, solid advice to me!

Hearings re Axing of U.S. Attys

Six of the U.S. Attorneys who were recently dismissed by the Bush Administration are testifying before the Senate and House Judiciary committees today. Some attention is being directed at Republican politicians' possible pressure of David Iglesias, the former U.S. Attorney in New Mexico. His office was investigating some Democrats but had not filed charges. Before the election Rep. Heather Wilson called him to ask about the case. A couple of weeks later Sen. Pete Dominici called him (at home!) a couple of weeks later. There's talk of ethics investigations in Congress. Fired U.S. Attorney Testifies on New Mexico Lawmakers, Washington Post, March 6, 2007.

Former judge H. Lee Sarokin says he is opposed to having U.S. Attorneys testify before congressional committees.

Although I am in favor of the Justice Department being called upon to explain and justify these dismissals, I fear that those hearings, as well, will be demeaning to the discharged U.S. Attorneys. The government will parade out a litany of faults and failures to justify and excuse its decision to discharge them. When the hearings are over, we will know what we know today: The decision to discharge and replace these dedicated public servants was based upon political not personnel considerations.

http://x-judge.blogspot.com/index.html">The Injustice Department, March 3, 2007.

Libby Found Guilty in CIA Leak Case

Today the jury found I. Lewis "Scooter" Libby guilty of "two counts of perjury, one count of making false statements and one count of obstruction of justice, while acquitting him of a single count of lying to the FBI." Libby Found Guilty in CIA Leak Case, March 6, 2007.

The Washington Post articles gives an excellent recap of the whole trial.

Open Government Event at UW

A national webcast ("Closed Doors? Open Democracies?") will discuss open access to government documents Monday, March 12, 10:00-12:30 (our time). It's sponsored by OpenTheGovernment.org and a number of library and journalist organizations.

After the webcast, we'll have two great local speakers:

• Steve Miletich, one of the reporters who researched and reported the Seattle Times's terrific series on sealed court records ("Your Courts, Their Secrets")
• Armen Yousoufian, a board member of Washington Coalition for Open Government and the plaintiff in "the largest and most successful Public Disclosure Act lawsuit under any state open records act in U.S. history," Yousoufian v. Sims, which sought documents related to the construction of the Seahawks stadium and demotion of the Kingdome. Documents and news coverage of the case are on Yousoufian's website.

This free event is hosted by the University Libraries and cosponsored by Law Librarians of Puget Sound, Washington Coalition for Open Government, and Washington State Library. (Fittingly, it is open to the public.)

Where? Odegaard Undergraduate Library, Room 220. Parking & Directions:

To register, click here.

UW's Champion Moot Court Team in Daily

The campus paper, the Daily, today ran a good story about the UW moot court team's victory at the National Moot Court Competition in New York last month. Moot Court Law students place first in national competition, The Daily, March 5, 2007. See earlier post.

Lefty Lawyer Lynne Stewart Speaks at SU

New York lawyer Lynne Stewart, who was sentenced to prison on charges of abetting terrorism, speaks at Seattle University on Saturday, March 10, 7-8:30 p.m. Seattle University - Campus Calendar - Lecture with Civil Rights Attorney Lynne Stewart. Her talk, "My fight for Justice in Patriot Act America," is cosponsored by a number of groups, including the National Lawyers Guild - SU Law School Chapter and Radical Women.

For lots more info about Ms. Stewart, see www.lynnestewart.org.

How to Learn Your Craft

Starting from discussions of the work-life balance in law firms, Anthony Colleluori offers some advice for young lawyers. The Work Life Balance in Law Firms. Two Sides of the Debate, That Lawyer Dude, Feb. 11, 2007.

Learning the law, does not happen between 9-5 or even 8-6. It is the reading and working done when the phones stop ringing and the partners stop screaming that permits the opportunity for learning to take place.

He recommends reading advance sheets (since many of our students read all their cases online, I'll note that these are pamphlets with reports of new cases) and the daily bar journal (Washington doesn't have one -- whew!). He also says "reading transcripts of trials and issue spotting the appellate issues is a good tool in learning how to put a question, and on how to object and preserve a record." To understand jurors better, he says it's a good idea to read People, Ebony, Woman's Day, Sports Illustrated, and other magazines that jurors read.

He thinks that a "regular work week" for young lawyers should be 10-12 hours Monday through Thursday (alternating 10 and 12-hour days). Friday they can leave after 4:00. "Saturday or Sunday is meant for renewal but a few hours either in the office or at home working on self improvement or office work should be required." Then he adds: "The key to this is that the lawyer should want to do this." (emphasis added)

What about families? He says that in his firm, he considers people for partnership at six years out, even if they have taken maternity or paternity leave, as long as they've been there two years.

Any thoughts on this? Lawyers, is this what you expect of young lawyers in your settings?

Supreme Court Limits Punitive Damages

Last month the Supreme Court reversed the Oregon Supreme Court's decision upholding a huge ($79.5 million) verdict against Philip Morris. The Court said that punitive damages can, as a constitutional matter, only be based on injuries to the parties to the litigation -- not "strangers to the litigation." The case is remanded to the Oregon Supreme Court for further consideration. Court limits punitive damages, SCOTUSblog, Feb. 20, 2007.

The opinion, Philip Morris USA v. Williams, --- U.S. --- (Feb. 20, 2007) is here.

Justice Breyer wrote for a five-judge majority (including Chief Justice Roberts and Justices Kennedy, Souter, and Alito). Justices Stevens, Thomas, and Ginsburg filed dissenting opinions; Justices Thomas and Scalia joined Ginsburg's opinion. (Just when you think you can predict voting alignments based on stereotypes about political leanings or judicial philosophy, the justices go and mix it up.)

Update (March 5): Former district court judge H. Lee Sarokin thoughtfully discusses this issue (can punitive damages punish a defendant for harm to people other than the plaintiff?) in his blog. Punishing Punitive Damages, X Judge, Feb. 23, 2007. He faced the issue himself in Juzwin v. Amtorg Trading Co., 705 F. Supp. 1053 (D. N.J. 1989):

[I] concluded that multiple awards of punitive damages based upon injuries to others violated the due process clause, the only decision I ever made that was praised by the Wall Street Journal. Despite that praise, I eventually and unilaterally withdrew the decision, concluding that I did not have the power or authority to effectuate such a decision---that it required the Supreme Court or the Congress to do so. The Supreme Court has now spoken, but I continue to have the same concerns expressed above. The ability of citizens to punish others for outrageous conduct in instances in which government cannot or will not is a power worth preserving, but it is essential that guidelines be established so as to lead courts through this current quagmire.

Profile of Detective Work in Sex Abuse Case

The Seattle Times yesterday profiled the work of the Redmond detective who investigated the case against Enrique Fabregas, the foster father who allegedly abused the girls in his care. Maureen O'Hagan, Sex-crime cop's pursuit: Who was telling the truth?, March 4, 2007.

Former Trial Ad instructor David P. Moody represents two of the foster daughters -- now adults -- in a civil case. [Correction, 3/6/07: He represents all three alleged victims.] King County prosecutor (and Trial Ad instructor) Scott O'Toole is quoted saying of the detective "she's somewhat unorthodox in her approach but her instincts oftentimes prove correct."

King County Law Library Podcasts

The King County Law Library started producing podcasts in the fall. They offer a variety of information -- from research tips to beer recommendations.

The Jan. 29 episode is about disability law and includes an interview with Judge Catherine Shaffer about ensuring access to the courts for people with disabilities. She was cochair of the committee that produced Ensuring Equal Access for People with Disabilities: A Guide for Washington Courts (Aug. 2006). The guide is aimed particularly at court staff, but trial attorneys should review it too. How will you examine a witness who is blind, serve a client who needs a wheelchair, or argue to a jury that includes someone who uses a sign language interpreter?

(Judge Shaffer has been a Trial Ad instructor in past years.)

The Feb. 15 podcast focused on things the commentators love, in honor of Valentine's Day. You might be interested in Craig's top five courtroom dramas (and Stina's Hollywood gossip related to them).

Costs of Conflict

Stewart Levine -- an author and consultant in alternative dispute resolution -- wrote about The Many Costs of Conflict in the Dec. 2006 issue of the ABA's Law Practice Management. He leads with the statistic that 20% of senior executives' time in Fortune 500 companies is spent on litigation-related activities. The cost of litigation isn't just the attorneys' fees -- it's also this time, and the severed business relationships, and so on. Food for thought.

Supreme Court hears arguments in sentencing guidelines cases

JURIST - Paper Chase: Supreme Court hears arguments in sentencing guidelines cases, Feb. 20, 2007.

Can Parents Represent Child in IDEA case?

Can parents represent their child in a case under the Individuals with Disabilities in Education Act? Or is that practicing law without a license? The Supreme Court will decide. The 6th Circuit held that non-lawyers may not represent other parties pro se in court; the parents may represent their children in administrative proceedings. Supreme Court hears arguments in autistic child legal representation case, Feb. 27, 2007.

See Winkelman: Scalia frets over pro se burden on courts, Shlep: The Self-Help Law ExPress, Feb. 28, 2007.

This reminds me of one of the (many) interesting chapters in Legal Ethics Stories (KF306.A4 L43 2006 at Reference Area): "In re Arons: the plight of the 'unrich' in obtaining legal services, by David C. Vladeck. A working paper version of the chapter is on SSRN for download. Prof. Vladeck begins:

Marilyn Arons is nobody’s fool. Tall, with piercing blue eyes and a measured, powerful voice, she is an imposing presence in a courtroom. She is a riveting speaker. Her arguments are not simply lucid; they are forceful, well-reasoned, and almost always irresistible. She is in total command. It is no surprise that she wins most of her cases. And it is no surprise that for twenty-five years she has struck fear in the hearts of her adversaries — lawyers for school boards in New Jersey, Pennsylvania, New York, and, for a brief period, Delaware. Her clients — disabled children and their families — revere her. More than any other advocate, she has shaped the law governing the educational rights of disabled children. What makes this story even more remarkable is that Marilyn Arons is not a lawyer.

Special ed can be expensive, so schools don't always provide what a child needs without some pressure. IDEA sets up an administrative procedure to resolve disputes between families and school districts.

At IDEA hearings involving significant issues, like the placement of the child in a private school, the school boards and the states are represented by counsel. Rarely can parents find or afford lawyers. Anticipating this disparity, IDEA says that parents may be "accompanied and advised" in these proceedings "by counsel and by individuals with special knowledge and training with respect to children with disabilities. Mrs. Arons is an individual with special knowledge and training, with a record of success in due process hearings in many jurisdictions."

She helped families in New York, New Jersey, and Pennsylvania navigate the system, but when she started handling hearings in Delaware, the bar prosecuted her for unauthorized practice of law (UPL). And the Delaware Supreme Court agreed. In re Arons, 756 A.2d 867, Delaware courts link (Del. 2000).

It's quite a gripping -- and disturbing -- story about the barriers to access to justice.

San Diego diocese files for Chapter 11 bankruptcy over clergy abuse lawsuits

San Diego diocese files for Chapter 11 bankruptcy over clergy abuse lawsuits, Jurist - Paper Chase, Feb. 28, 2007. Our neighboring dioceses, Spokane and Portland, have company.

Crawford Not Retroactive

Supreme Court rules out-of-court witness statement rule doesn't apply retroactively, Jurist - Paper Chase, Feb. 28, 2007. The Court unanimously reversed the 9th Circuit's ruling that Crawford v. Washington applied retroactively to cases on collateral review. Bockting v. Bayer, 399 F. 3d 1010, as amended, 408 F. 3d 1127 (2005) (McKeown, J.), rehearing en banc denied, 418 F.3d 1055 (2005).

The case is: Whorton v. Bockting, --- U.S. --- (Feb. 28, 2007), Cornell LII link (Alito, J.).

Cold Case: Civil Rights Edition

FBI investigating suspicious civil rights era deaths, Jurist - Paper Chase, Feb. 28, 2007. The FBI is looking into 12 cases, including the lynching of four sharecroppers in 1946.

See also Mississippi grand jury fails to indict in 1955 Till murder case, Jurist, Feb. 27, 2007.

Hearing Re Dismissed US Attys

House judiciary panel subpoenas dismissed US Attorneys, Jurist - Paper Chase, March 2, 2007. This suggests that McKay might have been singled out because he "decided against empanelling a grand jury to examine accusations of voter fraud in Washington State's 2004 election for governor, which was won by a Democrat."

State Sues Over Spyware

McKenna Announces Fifth Computer Spyware Case; Washington Sues Three Internet Affiliate Advertisers, press release, Feb. 7, 2007.

The defendants are accused of sending anonymous “Net Send” messages to consumers’ computers that simulate Windows operating system warnings, transmitting bundled software that changes Internet browser home pages, and marketing registry-cleaner programs through the use of deceptive free scans.

Hundreds of Washington consumers have purchased products from the defendants, who are accused of violating the state’s Computer Spyware Act and Consumer Protection Act.

The case is in King County Superior Court.

Early Release Under Scrutiny

Yesterday's P-I had an article looking at the state's system for releasing inmates to community supervision when they are deemed to have a low risk of reoffending. The scoring system and the supervision don't always work, and some reoffend. State routinely gambles on release of felons, Seattle P-I, March 1, 2007.

"More than 100 have committed violent crimes" sounds scary but I'm not sure it's solid proof that the program isn't working, since there are 26,000 felons in the program. 122/26,000 = about 1/2 percent. So up to 99.5% of the people in the program haven't reoffended.

Of course rape, murder, assault, robbery, and so on are bad. Really, I'm very much against them. I'm not saying we should just shrug our shoulders and say "Oh, well." But these individuals might have reoffended if they had served their full sentences behind bars -- they just might have done so a year or two later. How safe can we make ourselves?

The article says that Gov. Gregoire "has demanded a report on community supervision from Corrections Secretary Harold Clarke" and "issued a strongly worded statement demanding that he find a way to keep violators locked up." The Governor's directive that offenders serve their full terms is here.

DV Strangulation Bill

The AG is supporting a bill to make assault by strangulation -- a common form of domestic violence -- a felony. McKenna announces new bill to protect domestic violence victims, press release, Feb. 8, 2007.

“Tragically, domestic strangulation happens more often than we realize. In Federal Way alone during the past few months, we have had 50 cases,” said Sen. [Tracey J.] Eide [one of the bill's sponsors] said. “This will not be a silent issue. We are tough on domestic violence, and strangulation will absolutely not be tolerated.”

Companion bills were introduced in the House and the Senate: SB 5953 and HB 2119.

Washington Needs Its Sales Tax

The state prosecuted a Washington resident who bought 16 vehicles in Washington and titled them using an Oregon address. This month he pleaded guilty to one count of first-degree theft for evading more than $14,000 in taxes. He'll have a 50-day sentence (20 days of work release and 240 hours of community service) and he'll be required to pay restitution. Driving school owner sentenced to 50 days after pleading guilty to theft, Wash. AG press release, Feb. 16, 2007.

Oregon has an income tax but no sales tax; Washington has a (hefty) sales tax but no income tax. Although many people acknowledge that the sales tax is regressive and it would be more equitable to have an income tax, making the switch would be incredibly difficult politically. (Many voters would probably fear that we'd get an income tax and still have the hefty sales tax.) So here we are, dependent on the sales tax (and various property and business taxes) to run the state. As a taxpayer and as someone who works for the state-supported institution, I'm glad they're enforcing the tax law. State government can't operate on frequent rain and nice views on the clear days.

(I'm sure the man who titled the cars in Oregon didn't step forward and offer the folks in Salem to pay them income tax to support their government. You don't get to have it both ways: no sales tax and no income tax!)

Anti-Gang Bill

The legislature is considering a bill targeting "criminal gangs." One focus is on "tagging" or gang-related graffiti, which is considered a "gateway crime." Another aspect of the bill increases penalties for crimes committed as part of a gang or in order to gain admission to a gang. And a work group would be set up to study gangs.

• Information on SB 5987 from the legislature. The Senate bill report -- dated yesterday -- summarizes the bill and the testimony from the hearing. No one is listed as testifying against it. Much of the attention is on Eastern Washington, especially Yakima County.
• McKenna to testify on Anti-Gang bill in Senate Tomorrow, press release, Feb. 27, 2007.
• McKenna Announces New Legislation to Combat Criminal Gangs, press release, Feb. 14, 2007.

Older Adults May Be Unreliable Eyewitnesses, Study Shows

Older Adults May Be Unreliable Eyewitnesses, Study Shows, Medical News Today, Feb. 25, 2007:

A University of Virginia study suggests that older adults are not only more inclined than younger adults to make errors in recollecting details that have been suggested to them, but are also more likely than younger people to have a very high level of confidence in their recollections, even when wrong. The finding has implications regarding the reliability of older persons' eyewitness testimonies in courtrooms.

* * *

when younger and older adults were matched on their overall memory for experienced events, both groups showed comparable rates of suggestibility errors in which they claimed to have seen events in a video that had been suggested in a subsequent questionnaire. However, older adults were 'alarmingly' likely to commit these suggestibility errors when they were most confident about the correctness of their response. Younger people were more likely to commit these errors when they were uncertain about the accuracy of their response.

Chad S. Dodson & Lacy E. Krueger, I Misremember It Well: Why Older Adults Are Unreliable Eyewitnesses, Psychonomic Bulletin & Review, v. 13 no. 5, Oct. 2006, pp. 770-75. Ingenta link (on-campus users).

I love the title -- because I'm old enough to remember the charming duet between Maurice Chevalier and his wife in "Gigi" ("I Remember It Well"). Of course, I'm also finding it harder to learn names...

Thanks: Idealawg.