Monday, November 5, 2007

Asarco's Suit Could Help Pay off Creditors from Other Suits

Judge lets Asarco sue Mexican owners , Seattle Times, Nov. 5, 2007.

A federal judge has refused to throw out a lawsuit filed by Asarco against its Mexican owners in a ruling that eventually could help the bankrupt U.S. mining and smelting company recover billions of dollars to help pay off environmental and asbestos-related claims, including hundreds of millions in claims from Washington state.

The lawsuit alleges Americas Mining, a subsidiary of Grupo Mexico, S.A. de C.V., "fraudulently" stripped Asarco LLC of its lucrative holding in two Peruvian copper mines just as Asarco was teetering on the edge of bankruptcy.
The case is in the Southern District of Texas, Judge Andrew S. Hanen.

Effect of Andress

In 2002, the Washington Supreme Court found that assault was not a predicate felony in the the state's felony murder statute. In re Andress, 147 Wn. 2d 602, Legalwa, Findlaw (majority only) (2002). (The legislature amended the statute so that assault is now included in the list of predicate felonies.)

At the time, prosecutors made dire predictions about convicted murderers walking free. Now, five years later, a reporter for the News Tribune reviews what happened in each of the 35 Pierce County cases affected by Andress. Adam Lynn, After ruling, has justice been done? State justices’ Andress decision in 2002 worried prosecutors, but today many killers remain in jail, News Tribune, Oct. 31, 2007.

Five years later, 29 of those 35 Pierce County inmates once again are convicted killers: 24 of second-degree murder, two of first-degree murder and three of first-degree manslaughter.

A dozen of them received lighter sentences during their second prosecution because of changes in sentencing laws, new offender scores or sympathetic judges. But 14 received the same sentence, and three got more time behind bars than their original sentence, according to court records.

Six people still have unresolved cases. Five of those cases are wending their way back through the court system. The final person is involuntarily committed to Western State Hospital, so his case is in limbo indefinitely.
Although the article focuses on Pierce County, it mentions King County:
In King County, nearly two-thirds of the cases prosecuted again resulted in a lighter sentence for the defendant, according to prosecutor’s records, and many defendants there were allowed to plead guilty to manslaughter.
See this post from March about a couple of King County cases post-Andress.

Thanks: Lisa Kremer.

Friday, November 2, 2007

Russell Trial Updates

Fred Russell is being tried for vehicular homicide in the deaths of three WSU students in 2001. The trial has been moved from Whitman County to Kelso; Whitman County Superior Court Judge David Frazier is presiding.

  • Russell trial begins in Kelso:
    Start comes 6 years after deaths, Spokesman Review, Oct. 16, 2007.
    It shouldn't be hard to find jurors untainted by publicity, judging by Mayor Don Gregory's reaction when told last week that an internationally watched trial is landing in his town, once known as the Smelt Capital of the World.

    "Holy Criminy!" he said. "I read the paper every day, and I'm totally oblivious to it."
  • Jury selection in Russell trial begins, Spokesman Review, Oct. 16, 2007.
    Defense attorney Francisco Duarte of Bellevue declined to reveal if Russell will testify. But the defense plans to challenge the competence of the crash investigation and the conclusion that Russell caused the accident.
  • Photos of victims OK'd in Russell trial: Judge's ruling pending on blood-alcohol tests, Spokesman Review, Oct. 17, 2007.
  • Ruling pending on blood-alcohol tests in Russell trial, Spokesman Review, Oct. 17, 2007.
  • Search for jury an ongoing process: Many already have opinions of Russell, Spokesman Review, Oct. 18, 2007.
    Attorneys are still hoping to get a jury picked today and start opening arguments. But under extensive questioning by defense attorney Francisco Duarte, jury selection has taken much longer than expected.

    Prosecutors, clearly frustrated, are juggling flight plans for the dozens of witnesses in the case.

    * * *

    Duarte, courtly and polite, continued to draw out potential jurors.

    "It probably hurts you a lot, though, it sounds like. … That took a lot of courage. … Tell me more about that," he told various jurors Wednesday morning. "Thank you for sharing that, you're very astute. … Can we talk?"

    Many have clearly warmed up to him.

    "You're a fine attorney," one man said to Duarte at one point. "I actually like you."
  • Jury chosen for Russell trial: Prosecutors win rulings on admissible evidence, Spokesman Review, Oct. 19, 2007.
  • Bartender testifies in Russell trial: Defendant caught error on tab, didn't seem intoxicated, he says, Spokesman Review, Oct. 24, 2007.
  • Crash scene described as Russell trial opens, Spokesman Review, Oct. 20, 2007.
    The prosecution in Fred Russell's vehicular homicide trial detailed a horrifying crash scene Friday, describing a roadway littered with flaming vehicles, dead college students and live victims trapped in the wreckage.

    The cause of that scene, according to prosecutors: Russell and the choices he made that night about how much he drank and how he drove.

    * * *

    His defense team agreed that the four-vehicle wreck was tragic. But it was an accident, not a crime, attorney Francisco Duarte told jurors. He suggested that the entire investigation has been a witch hunt that started that night, when in the minds of much of the Palouse region, Russell "became public enemy No. 1."
  • Survivor recalls night of crash: Jury somber during Russell trial testimony, Spokesman Review, Oct. 23, 2007.
  • Russell trial focuses on driving, AP (Spokesman Review), Oct. 26, 2007.
Mr. Russell's attorney, Francisco Duarte, is also a UW Trial Ad instructor.

(There are actually more stories, but I'm running out of steam. If you have access to LexisNexis or Westlaw, it will be quicker to follow the coverage there than digging around in the Spokesman Review's website.)

Domestic Violence Prosecutions

The Seattle Weekly's cover story (Oct. 31, 2007) is How the Cops and Courts Turn Abused Spouses Into Voiceless Victims, by Nina Shapiro.

Shapiro suggests that several policies take all control of the situation from the victims: the police must arrest someone when there's a domestic violence call, there must be a protection order preventing contact between the accused and the victim, prosecutions often go forward against the victims' wishes. The protection orders often break up families and deprive children of contact with their fathers.

That's a problem, according to several defense attorneys who work frequently on domestic violence cases. "I'm not sure about all this state-mandated intervention in people's lives," says * * * Theresa Allman, who works for the Defender Association. "On the majority of my domestic violence cases, probably 90 percent of the time, the victim does not want a no-contact order." Yet, she says, the victim "is not listened to. She's not respected. Her opinions are not valued."

"People have a right to make bad choices," agrees Pat Valerio, another public defender who works for the Associated Counsel for the Accused. A no-contact order, she says, is supposed to be for the benefit of someone who wants to be protected. It's not "to have all the power of government coming in and saying, 'We know better than you; you need to get over this guy.'" The state's policy, she says, is just another way of overpowering a person who's supposedly already been overpowered by her partner.


Of course, the area is complex, and there have been good reasons for policies like these. In the "bad old days," it was typical for officers not to make arrests in "domestic disputes" and just to walk a violent man around the block and tell him to calm down. Many abusers try to prevent their victims from testifying by threatening them -- think how abusers would act if they knew that they could escape prosecution if only their wives or girlfriends could be bullied into silence.

Coincidentally, I recently read a law review article discussing ways that domestic violence issues can -- and should -- be taught in law schools: Sarah M. Buell, The Pedagogy of Domestic Violence Law: Situating Domestic Violence Work in Law Schools: Adding the Lenses of Race and Class, 11 Am. U. J. Gender Soc. Pol’y & L. 309 (2003), available on HeinOnline (UW restricted). I looked up that article -- which I recommend -- because I heard Prof. Buell speak at a conference on teaching and I thought she was great. The article is part of a symposium, Confronting Domestic Violence and Achieving Gender Equality: Evaluating Battered Women &(and) Feminist Lawmaking, all of which is available on HeinOnline. So if the Weekly article piques your interest in domestic violence law, the symposium might be a good place to start.

Coughenour on How to Try a Terrorist

Judge John Coughenour (W.D. Wash.) wrote an op ed in the New York Times disagreeing with Michael Mukasy's suggestion that we need a "new adjudicatory framework" for trials of terrorists. John C. Coughenour, How to Try a Terrorist, N.Y. Times, Nov. 1, 2007.

In 2001, I presided over the trial of Ahmed Ressam, the confessed Algerian terrorist, for his role in a plot to bomb Los Angeles International Airport. That experience only strengthened my conviction that American courts, guided by the principles of our Constitution, are fully capable of trying suspected terrorists.

Thursday, November 1, 2007

Respected Marine Lawyer Alleges Military Injustices

On Tuesday I heard a great profile of Colby Vokey, a Marine Corps defense attorney who is resigning because of his concerns about abuses of the system. Daniel Zwerdling, Respected Marine Lawyer Alleges Military Injustices, All Things Considered, Oct. 30, 2007.

When he trains young Marine defense lawyers, he tells them "you have one loyalty, and that's to the client," Vokey said.

Top commanders said they appreciate and need courageous defense lawyers like Vokey.

"We are an American military," said Tom Hemingway, who retired earlier this year as Brigadier General and legal advisor at the Pentagon. "We're here to support American values, and one of the things that we have in our disciplinary system, as a requirement, is that the trial system be fair."

Defense Offers New Evidence in a Murder Case That Shocked Arkansas

Defense Offers New Evidence in a Murder Case That Shocked Arkansas, N.Y. Times, Oct. 30, 2007.

In 1994, three teenagers were convicted of killing three 8-year-old boys in a crime that was alleged to have been related to a Satanic cult. Now new evidence may give the defendants another chance: none of their DNA was at the crime scene; the bodies apparently were mutilated by animals, not the killer(s); hairs at the scene belong to the step-father of one of the victims and a friend of his.

Thanks: Maureen Howard.

Ex-Official Who Fired U.S. Attorneys Speaks Out

Michael Battle, the former director of the Executive Office of U.S. Attorneys, today spoke publicly about his role in the U.S. Attorney firings for the first time. He was told to do it, and to tell them as little as possible. Ex-Official Who Fired U.S. Attorneys Speaks Out, NPR, Nov. 2, 2007 (NPR's website has a story that will be on Morning Edition tomorrow, so the dateline is really Nov. 2, even though most of us aren't there yet).

The people he called greeted him warmly — which made the part that came next much more difficult.

"Listen," Battle said he told the U.S. attorneys. "I've been asked to call you and advise you that you're being asked to submit your resignation as U.S. attorney."

Transparency in the Civil Justice System

The RAND Corporation Institute for Civil Justice and UCLA are presenting a conference tomorrow: Transparency in the Civil Justice System.

Researchers at the RAND Institute for Civil Justice and UCLA School of Law are collaborating on an analysis of the issue of transparency, both its advantages and disadvantages, in many aspects of the civil justice system. The following questions guide their research:
  • Are there specific examples of problems in the civil justice system that might have been avoided if the system were more transparent? What are the risks associated with too much transparency?

  • How can the civil justice system balance the value of privacy with the value of transparency?

  • What mechanisms are involved in providing greater transparency? What are the costs, and who pays them?

  • Will greater transparency improve the civil justice system? Is it likely to improve accountability and increase public confidence?

  • Are there examples of reforms that have led to greater transparency? Have they affected outcomes in the system? Have they improved efficiency in the system?

  • Can plaintiffs and defendants agree on a cohesive vision of increased transparency in the civil justice system?
The papers presented at the Transparency in the Civil Justice System will be collected in a book that will be released at an event on Capitol Hill in Summer 2008.
Sounds interesting!

Monday, October 22, 2007

Politicized Fed Prosecution in Pittsburgh?

Thornburgh to tell Congress Wecht case is political, Pittsburgh Post-Gazette, Oct. 19, 20076:

Former Attorney General Dick Thornburgh will testify before a subcommittee of the House Judiciary Committee on Tuesday about why he feels the prosecution of former Allegheny County Coroner Dr. Cyril Wecht is politically motivated.

Mr. Thornburgh, who is on Dr. Wecht's defense team, will be given an allotment of time to make a statement, and then it is likely the subcommittee, which is investigating the firings of nine U.S. attorneys across the country last year, will ask questions.
Twenty years ago Dick Thornburgh was the attorney general under Pres. George H.W. Bush.
Others scheduled to testify Tuesday include former Alabama U.S. Attorney Doug Jones, who was an early defense attorney in the bid-rigging case against former Gov. Don Siegelman, as well as Donald C. Shields, a professor emeritus at the University of Missouri, who co-wrote a study looking at the number of Democratic vs. Republican officeholders who have been investigated by the Department of Justice during the Bush administration.
For a summary of the study (with links to the underlying data), see Donald C. Shields & John F. Cragan, The Political Profiling of Elected Democratic Officials: When Rhetorical Vision Participation Runs Amok, ePluribus Media, Feb. 18, 2007.

Gonzales could be prosecuted, McKay says

Gonzales could be prosecuted, McKay says, Spokesman Review, Oct. 20, 2007:

McKay said he was summoned to Washington, D.C., in June and questioned for eight hours about possible reasons for his firing by investigators with the Office of Inspector General, who will forward their final report to Congress.

"My best guess is it will be released sometime next month," and likely will include recommendations for criminal prosecutions of Gonzales and maybe others, McKay said.

Gonzales "lied about" reasons for the firings when questioned under oath in July by the Senate Judiciary Committee and now has hired a lawyer and is refusing to answer questions from the Inspector General, McKay said.
Thanks: Maura Goodwin.

Thursday, October 18, 2007

Is Evidence Law Just for Juries?

Why do we have evidence rules anyway? A common justification is that it’s to protect the process from cognitive failings of jurors, who might, say, attach too much weight to hearsay testimony or be prejudiced by a picture that was relevant but gory. A provocative law review article examines the related belief (and practice by many judges) that evidence law is less important in bench trials because judges can give the evidence the weight it deserves. Frederick Schauer, On the Supposed Jury Dependence of Evidence Law, 155 U. Pa. L. Rev. 165 (2006).

Prof. Schauer says that many judges relax the evidence rules in bench trials. But is this merited? Why should we believe that judges are any less prone to cognitive failings than the rest of the population?

Moreover, the existence of evidence rules may improve the fact-finding process. If parties know they will not be allowed to present hearsay evidence, then they will work harder to find more direct (and hence more reliable) evidence. If parties know they can’t rely on past acts evidence to show that a defendant acted in a certain way on a particular occasion, they will work harder to find evidence of this particular act.

There has been much discussion of the decline in civil jury trials in the U.S. I was interested in Prof. Schauer’s discussion of other countries: I hadn’t realized that jury trials are very, very rare in the UK and other common-law jurisdictions now.

See also:

(PENNumbra is the online companion to the University of Pennsylvania Law Review.)

Tuesday, October 16, 2007

King County Superior Court at UW Law

The University of Washington's Moot Court Room will be a real courtroom on Friday when King County Superior Court Judge Mary Yu convenes court to hear two summary judgment motions. Students are invited to observe the proceedings, bearing in mind that rules of courtroom decorum are stricter than those in the classroom (e.g., no snacking, no hats, no disruptions). Judge Yu to Hear Motions at UW Law School, News Release, Oct. 12, 2007.

A summary of the cases that Judge Yu will hear and a message about courtroom decorum are here.

This is a great opportunity. We've had appellate courts visit before, but this is our first visit by a trial court. It's easier for appellate courts to go on road, since trial courts have witnesses, jurors, interpreters, guards, and others to transport. Few trial courts travel even for motions practice, and I'm happy that Judge Yu does. (She takes her courtroom to Seattle U regularly.)

Judge Yu is President of the Judge Dwyer American Inn of Court, Seattle Chapter; chair of the Superior Court Judge’s Association Civil Law and Procedure Committee; and Assistant Dean for the 2008 Judicial College. She was received many awards -- notably the 2005 "Judge of the Year" award from the American Board of Trial Advocates, Washington Chapter (ABOTA). For more about Judge Yu, see Beth Barrett Bloom, Profile: Judge Mary Yu -- Opening Doors and Passing on the Gifts of Mentorship, Bar Bull., Jan. 2006.

Insurance Bad Faith Legislation

The city of Puyallup disputes the allegations in one of the ads in support of R-67, the provision that would authorize damages in actions against insurance companies for bad faith. Ad's assertions questioned, Olympian, Oct. 8, 2007.

As the election draws near, I thought I'd post a little information related to R-67. It is a referendum on a law adopted by the legislature and signed by the governor: 2007 Laws, Ch. 498. You can read the bill reports here.

The question is whether we voters want to accept or undo that law. The controversial part is about is section 3, which says that an insured person can sue the insurance company for denying a claim in bad faith. The suit is for actual damages and "reasonable attorneys' fees and litigation costs." If the superior court finds bad faith it may "increase the total award of damages to an amount not to exceed three times the actual damages."

The catchphrase in the opposition's ads is "frivolous lawsuits." But I note that the insurance company doesn't have to pay damages and costs unless the plaintiff shows bad faith. Even then, the treble damages are discretionary. If a lawsuit is truly frivolous (not just unpleasant for the insurance company), then plaintiff's counsel would be vulnerable to sanctions under CR 11. (I wonder how often Rule 11 sanctions are imposed in Washington...)

Some scholarship on the difference that bad faith legislation might make:

  • Mark J. Browne, Ellen S. Pryor, & Bob Puelz, The Effect of Bad-Faith Laws on First-Party Insurance Claims Decisions, 33 J. Legal Studies 358 (2004). The authors did some serious number-crunching (using data from 1992) to compare claim recoveries in states with and without a bad-faith tort action (or with one but with a damage cap). Washington was among the states without. Id. at 362 n.15. Here's their conclusion:
    5. OBSERVATIONS AND IMPLICATIONS

    Our study supports several assumptions about how the law of bad faith affects insurers’ claims settlement practices. Higher overall settlement amounts are paid in states with a bad-faith remedy. Moreover, . . . the higher overall settlements are a result of higher payments for both economic and noneconomic damages.

    Somewhat surprisingly, we find that bad-faith laws are associated with a greater increase in loss settlement amounts when claimants are not represented by an attorney. We find this effect in all of our models. The presence of a bad-faith law may encourage insurers to offer greater amounts to claimants who then do not feel the need to engage the services of attorneys. If so, this would result in a change in the mix of cases represented by attorneys. To the extent that the tort of bad faith reduces litigation costs, it would also lead to a more efficient resolution of claims. If, however, the tort is resulting in inappropriately higher payments to insureds, it is contributing to unnecessarily high insurance costs. The economic efficiency of the tort of bad faith warrants future research.
    Id. at 386.

  • A study by the Rand Institute for Civil Justice, comparing California claims before and after a period when bad-faith suits were possible, also found increased payments. But, contrary to the above study, it found claimants were more likely to be represented by counsel. Angela Hawken, Stephen J. Carroll, Allan Abrahamse, How Do Third-Party, Bad Faith Bodily Injury Claims Affect Automobile Insurance Costs and Compensation? (2001) (summarizing research reported in The Effects of Third-Party, Bad Faith Doctrine on Automobile Insurance Costs and Compensation (MR-1199-ICJ), by the same authors).

Monday, October 15, 2007

Litigation clues are found on Facebook

Litigation clues are found on Facebook, Nat'l L.J., Oct. 15, 2007.

If a husband's MySpace page says he's single and looking, you might be able to impeach his credibility. And the article has lots more examples -- e.g., an eyewitness ID of a suspect from a group photo; a heavy sentence for someone who posted a picture of herself drinking wine even after her drunk-driving vehicular manslaughter.

Oh, and if you're the sort of person who beats up people recreationally, don't post the video on MySpace.

Md. Judge Faces Discipline for Joking

Judge’s Joking Went Too Far, ABA Journal Daily News, Oct. 15, 2007.

Some considered him a breath of fresh air, a jurist who really knew how to establish a rapport with those who appeared in front of him and make a court appearance enjoyable.

But after a party complained * * * the Maryland Commission on Judicial Disabilities * * * determined that a number of his comments were crass, profane, sarcastic, disparaging and undignified.

Overturning Verdict, Judge Slams Lawyer

Lawyer’s ‘Bombast’ Gets Verdict Tossed, ABA Journal Daily News, Oct. 11, 2007.

The judge exercised his impressive vocabulary, saying the lawyer made "mordaciously sarcastic" comments. "Such disrespectful cockalorum, grandstanding, bombast, bullying and hyperbole as Mr. Brennan exhibited throughout the trial are quite beyond my experience as a jurist."

The lawyer, for his part, says that the judge insulted the jury by overturning its verdict.

Friday, October 12, 2007

Shame, Guilt, and Offending


A few weeks ago, I wrote a post about the federal Fugitive Safe Surrender program and the work of June Price Tangney, a psychologist who had been interviewed in a radio story about the program. Psychological research has a bearing on crime and punishment.

I was curious about Tangney's work, so I checked out her book: June Price Tangney & Ronda L. Dearing, Shame and Guilt (2002). It's really interesting -- and it's written to be accessible to non-specialists. Tangney and her associates have studied shame and guilt in a variety of populations (children, adolescents, college students, adults), looking at correlations with behaviors and with other psychological measures.

In everyday speech, a lot of people use "shame" and "guilt" interchangeably, but the authors (and other pscyhologists) differentiate between the two. Guilt has to do with feeling bad about SOMETHING you DID. Shame is feeling bad about YOURSELF. Guilt (when it's not accompanied by shame) turns out to be adaptive: you realize you did something bad and you can then make amends or figure out a way to do better in the future. Shame is different: you feel so horrible that you can't think constructively and you often withdraw, do self-destructive things, or lash out at others.

One of the more intriguing studies described in the book looked at a group of 5th graders, their parents, and their grandparents -- and then studied them all again in 10 years, when the kids were 17 and 18.

[S]hame-proneness assessed in the fifth grade predicted later high school suspension, drug use of various kinds (amphetamines, depressants, hallucinogens, heroin), and suicide attempts. Relative to their less shame-prone peers, shame-prone children were less likely to apply to college or engage in community service.

In contrast, relative to less guilt-prone children, guilt-prone fifth graders were more likely to later apply to college and do community service. They were less likely to make suicide attempts, to use heroin and to drive under the influence of alcohol or drugs, and they began drinking at a later age. Guilt-prone fifth graders were less likely to be arrested, convicted, and incarcerated. In adolescence they had fewer sexual partners and were more likely to practice "safe sex" and use birth control.

These links . . . remained robust, even when we controlled for family income and mothers' education. . . . Moreover, these findings held even when controlling for children's anger [in fifth grade].
Id. at 135. The authors devote four pages at the end of the book to implications of their research for the criminal justice system. They support restorative justice programs (using "active participation by the victim, the offender, and the community with the aim of repairing the community," id. at 192). They point to innovative programs of "cognitive-behavioral interventions" with inmates to encourage "appropriate experiences of guilt" and "constructive motivations to repair or make amends" and cut down the maladaptive shame (id.).

The authors strongly disapprove "shaming" sentences -- e.g., the sentences that require the offender to walk through town with a sign saying what he or she did. Id. at 193. And given their findings about shame leading to negative behaviors, their disapproval makes a lot of sense.

In a final note, the authors point out that "[a]pects of the incarceration experience itself may provoke feelings of shame and humiliation . . . . [P]articularly when punishment is perceived as unjust, such feelings of shame can lead to defiance and, paradoxically, an increase in criminal behavior. . . . A thoughtful examination of the prison environment and policies could substantially reduce the shaming, humiliating potential of life behind bars, shifting the emphasis toward values of responsibility and community." Id.

Wednesday, October 10, 2007

Rebellious Lawyering Conference

"Rebellious Lawyering Conference is an annual, student-run conference that brings together practitioners, law students, and community activists / advocates from around the country to discuss innovative, progressive approaches to law and social change."

The next Reblaw (the 14th) is Feb. 21-23, 2008, at Yale.

Friday, October 5, 2007

State fines UW in murder-suicide case

The Department of Labor and Industries has fined the University of Washington $2,100 for failing to follow its own workplace safety rules. State fines UW in murder-suicide case, Seattle Times, Oct. 5, 2007.

After a murder-suicide at the UW medical center in 2000, the university took steps to make the campus safer. It created a workplace violence-prevention assessment team, hired a coordinator, published an early-warning checklist for supervisors and made it easier for them to report workplace threats directly to the university's Human Resources department and on online to the UW's Environmental Health & Safety Department.

But in the Griego case, managers at the College of Architecture and Urban Planning either didn't know the procedures or failed to enforce them properly, according to the report.

Thursday, October 4, 2007

Berman Environmental Law Clinic

Last month's Bar Bulletin had a piece about the UW's Berman Environmental Law Clinic: Shari Ireton, UW Clinic Students Making a Difference, Bar Bull., Sept. 2007.

Advice for Technophobes

Have you been reluctant to incorporate technology into your courtroom presentations? This month's Bar Bulletin has some helpful tips for getting started: Christian R. Hazelmann, Overcoming Techno-Phobia in the Courtroom, Bar Bull., Oct. 2007.

One of the best lines:

Another good tip is to start small — a Magic Marker and a white board in the hands of a skilled attorney can work wonders.
Not only does this make sense based on presentations I've witnessed, but Mr. Hazelmann also mentions a study that supports it:
In a recent research study, three separate groups were tested on the same set of facts presented by different methods — orally, on hard boards for some of the key points, and utilizing the latest in graphics technology with computerized presentation and delivery. The marked difference was between the first and second groups. It didn’t matter nearly as much how the visual materials were presented, simply that there were materials presented in a more engaging and visually stimulating manner.
A little tangent... In making the point that people are used to having lots of visual stimulation, the author comments
When the now-familiar CNN news format was first introduced, it received terrible reviews. Viewers said the screen was much too busy, horribly cluttered and swore it would fail dismally since there was simply too much information to take in. Fast forward to today’s teenagers who will sit at their computers conducting multiple IM dialogues, listening to music, texting messages on their cell phones, all while “studying” their history books for homework. Since we can’t get away from technology, we might as well embrace it, adopt it and use it to our advantage.
That rang a bell for me. I remembered a study where a professor showed students CNN with and without the "crawl" (the headlines scrolling across the bottom of the screen). The students who had the crawl remembered 10% fewer facts than those who watched without it. Well, speaking of memory, I found that it was hard to find the article even though I was pretty sure of the general point. One reason: I "remembered" that the study was by a psychology professor and it was really by two journalism professors. Oh, well. Anyway, here's the article: Noah Shachtman, "The Crawl" Makes You Stupid, N.Y. Times Magazine, Dec. 11, 2005. One lesson: even though jurors (like everyone else today) may be used to lots of visual clutter, that doesn't mean that visual clutter is the best way to communicate with them. Sure, use technology, but more is not necessarily better. As Mr. Hazelmann, a Magic Marker (or a generic felt pen) can work wonders.

IPNW in Bar Bulletin

Check out the profile of the UW's Innocence Project Northwest clinic in the current King County Bar Association Bar Bulletin: Sharon Perlin, Clinic Fights for Those Wrongfully Convicted, Bar Bull., Oct. 2007.

Remember that the IPNW's 10th anniversary celebration is next Thursday, October 11.

State Sentencing After Blakeley

Sentencing law has been in flux in recent years. Professors Douglas Berman (Ohio State) and Steven L. Chanenson (Villanova) recommend "robust state sentencing commissions":

Soon after the Supreme Court in Blakely v. Washington declared certain judicial fact-finding within a state sentencing guideline system unconstitutional, Justice O’Connor described the Court’s decision as a “Number 10 earthquake.” But two years after the Blakely ruling, the case’s broader impact and meaning for state criminal justice systems around the country has been largely overshadowed by developments in the federal sentencing system. Nevertheless, this is an exciting time for state sentencing. By granting review in yet another state sentencing case, California v. Cunningham, this past spring, the Supreme Court brings state issues to the national stage once more.

State courts handle many more criminal cases than the federal courts. State sentencing procedures touch the lives of many more defendants, victims and witnesses than the federal sentencing system. Yet, these realities often get lost in all the attention paid to the federal sentencing system in the era of the United States Sentencing Guidelines, perhaps because the federal system is in everyone’s backyard whether that backyard is in Manhattan or Montana. Especially in the academic world, there is seemingly endless interest in federal sentencing law and practices, but precious little discussion of state sentencing reforms generally or of developments in particular states.

The direct and indirect impact of Apprendi and especially Blakely in the states is a rich and dynamic story, with many facets and lessons that should not be overlooked. The doctrinal uncertainty and confusion produced by Blakely and Booker makes it dangerously easy for jurisdictions to be concerned primarily with technical problems in particular sentencing laws rather than with broader reform issues. But the Supreme Court’s coming work in Cunningham, like Blakely before it, should motivate state legislatures, courts, and sentencing commissions to reexamine and improve their sentencing systems.

In this Commentary – which serves as the introduction to a broader symposium on state sentencing after Blakely – we argue in favor of robust state sentencing commissions as part of that reexamination and improvement. Creating and empowering a sentencing commission closes few, if any, substantive options for state sentencing systems. The resulting sentences urged by a sentencing commission can be comparatively high and tightly controlled by a central authority. In contrast, sentences can also be set relatively low and sentencing decisions can be left comparatively unencumbered by binding guidance. A pro-commission view is a process-oriented recommendation with few, if any, inherent substantive sentencing consequences. It does, however, encourage much-needed rationality and transparency in sentencing.
Douglas A. Berman and Steven L. Chanenson, The Real (Sentencing) World: State Sentencing in the Post-Blakely Era (November 2006). Villanova University Legal Working Paper Series. Villanova University School of Law Working Paper Series. Working Paper 69, 4 Ohio St. J. Crim. L. 27 (2006).

Should Courts Allow Expert Testimony About Credibility?

There's a longstanding maxim that an expert shouldn't invade the province of the jury in assessing credibility.

But does the maxim always make sense?

What if there are circumstances that ordinary jurors don't have much experience with, such as a witness with a psychological condition leading to self-aggrandizing exaggerations? What about victims of rape or other events who show a wooden affect because of their trauma? What about child witnesses?

Prof. Anne Poulin (Villanova) suggests that the courts should more often permit experts to assist juries in their task of assessing credibility.

Credibility: A Fair Subject for Expert Testimony? (July 2007), Villanova University Legal Working Paper Series. Villanova University School of Law Working Paper Series. Working Paper 77, Florida Law Review ____ (forthcoming 2007). Abstract:

This article explores the ways in which experts can assist the jury to assess the credibility of other witnesses and suggests analytical approaches to such expert testimony. The article argues that the courts should be more receptive to expert testimony bearing on witness credibility and engage in a more nuanced consideration of the role played by proffered expert testimony and how the role of the evidence affects its admissibility. Doing so should lead the courts to embrace the promise of the modern rules of evidence and permit experts to assist juries as they assess credibility.

Sunday, September 30, 2007

Public Interest Paper Topics

The American Constitution Society has a new project that will serve both the public interest community and law students. Public interest groups can post topics they'd liked to have researched and get students to work on them. Students casting about for paper topics can find something interesting that might actually make a difference. Talk about win-win!

ACS ResearchLink collects legal research topics submitted by practitioners for law students to explore in faculty-supervised writing projects for academic credit. Topic authors will receive a copy of the resulting student papers, which ACS will also post in a searchable online library. By connecting law students and faculty with the research needs of public interest organizations and advocates, ACS ResearchLink will become an increasingly comprehensive and powerful engine for change, while also enhancing the relevance and influence of student academic scholarship.
This promises to be a great resource.

Saturday, September 29, 2007

Grant to Help Organization Help Clients with Legal Resources

Law Librarians of Puget Sound has a community outreach program, offering a grant of up to $500 for a project to create, expand, or update legal resource collections or facilitate access to legal resources for Puget Sound residents.

"Funds may be spent on print or online resources, computer software or hardware or professional services, such as translation of legal materials."

Priority is given to projects serving low-income clients, but there is no income restriction.

Last year, the first grant went to DAWN (Domestic Abuse Women’s Network) for its new DAWN Legal Resource Center – a room at DAWN’s confidential location for their clients to safely access a computer, phone, fax, copier and other resources. The grant enabled DAWN to buy WSBA's three-volume Family Law Deskbook and other materials.

Could your organization use a grant like this?

Read more and download the application here. The application deadline is October 31.

AG's Consumer Blog

This summer the Washington State Attorney General's Office started All Consuming, a blog about consumer law for consumers.http://www.blogger.com/img/gl.link.gif. Seems to be a great means of public education.

While at the site, I learned that Northwest Justice Project is opening three new offices in Washington, in Aberdeen, Port Angeles, and Longview. There was a celebration and an open house at the Port Angeles office yesterday. More legal help for low-income folks, Sept. 26, 2007.

Thanks to Tom Mighell, who named this one of his "blogs of the week" in Internet Legal Research Weekly.

Dept of Corrections Rejects Lenient Sentence

Here's the story from Sept. 15:

Almost one year after Michael "Mikey" Miller was accidentally shot and killed in their Burien home, the couple went before a King County judge Friday to plead for leniency for the teen who pulled the trigger: their other son, Jordan Jantoc.

* * *

"I think this is a case where justice needs to be tempered with mercy," [Superior Court Judge Harry] McCarthy said before he sentenced Jordan to 24 months of home detention, followed by probation when he will be required to give speeches on gun control.
Family gets wish in sibling slaying: leniency, Seattle Times, Sept. 15, 2007.

Now the Department of Corrections says it cannot legally comply with the sentence:
[A]ccording to the prosecutor's office, the state prison system said it could not enforce Jantoc's sentence because home detention is not available to those convicted of certain violent crimes nor is it typically used for sentences of more than one year.

* * * King County Deputy Prosecutor Don Raz said he does not expect DOC's notice to significantly alter Jantoc's existing sentence.
State rejects boy's sentence in stepbrother's slaying, Seattle Times, Sept. 28, 2007.

Judge McCarthy is a UW Trial Ad instructor.

Friday, September 28, 2007

Russell trial moving to Kelso

Russell trial moving to Kelso, Spokesman Review, Sept. 26, 2007. Originally prosecutors opposed the defense motion to move the trial of Fred Russell, accused of vehicular homicide, because of local publicity and prejudice, but then they agreed. Judge David Frazier (Whitman County Superior Court) ruled Tuesday that the trial should move to Kelso.

Frazier granted a one-week delay to allow prosecutors to prepare more than 60 witnesses to appear at the courthouse in Kelso. Cowlitz County is in southwestern Washington, north of Clark County. Frazier said in a hearing Monday that he liked the county because it was near a major metropolitan area with an airport but outside the major media markets in Washington.
Judge Frazier still has not ruled on the defense motion to exclude blood alcohol evidence.

Fred Russell is represented by UW Trial Ad Instructor Francisco Duarte.

Operation Stolen Valor

The U.S. Attorney for the Western District of Washington has been working for a year to prosecute people falsely claiming veteran's benefits. There was a news story last week about the sentencing of one such defendant (see post), but I didn't focus on the part of the story that said the local U.S. Attorney's office had prosecuted eight men for related violations. NORTHWEST CRACKDOWN ON FAKE VETERANS IN “OPERATION STOLEN VALOR” -- Phony Vets Scam more than $1.4 Million and Damage Image of Honorable Veterans, press release, Sept. 21, 2007.

The lead attorney is Ronald J. Friedman, who was a UW Trial Ad instructor in 2005.

Washington Women Lawyers Awards for Bridge et al.

At its annual dinner tonight Washington Women Lawyers honors:

  • The Honorable Bobbe Bridge, Passing the Torch Award
  • Ellen Dial and Dean Kellye Testy, President’s Award
  • Norm Maleng, WWL Foundation Award
  • Carla Lee, State Board Member of the Year Award
.

Thursday, September 27, 2007

On Vacation


Charles A. Sullivan created a great law review article title: On Vacation, 43 Hous. L. Rev. 1143 (2006).

It is, of course, about cases being vacated, not about the pleasures of being on vacation.

Because I am, admittedly, pretty lazy, I have always given short shrift to vacated opinions. They have, after all, been “vacated,” which the Oxford English Dictionary reports means “[a]nnulled, made legally void.” Recently, however, I realized that vacated opinions have begun to play an increasingly significant role in the development of the law, a role that remains largely unappreciated and completely unexamined. Contrary to Gertrude Stein, there may be a there there after all.
Id. at 1144 (footnotes omitted).

Photo credit Washington State Parks.

Securities Litigation

The Columbia Law Review devoted an issue (vol. 106 no. 7, pp. 1479-1954, Nov. 2006) to Litigation Reform Since the Private Securities Litigation Reform Act 10 years ago. It includes a section on the Class Action Fairness Act. You can read the articles here.

When You Don't Speak the Client's Language

At the NWIRP Gala Dinner on Saturday, there were some posters with facts like these (taken from NWIRP's website):

  • Washington is one of the top refugee resettlement states in the country.
  • NWRIP serves 10,000 clients a year from more than 100 countries.
  • One in eight people living in Seattle is foreign-born.
And "nearly 6,000 bilingual students, representing more than 80 languages, are enrolled in Seattle's public schools." Seattle Times, May 10, 2005.

So it's time to think about how language differences affect lawyering. And here's a law review article that does that: Muneer I. Ahmad, Interpreting Communities: Lawyering Across Language Difference, 54 UCLA L. Rev. 999 (2007). Here's the abstract:
* * * Poor and low-wage workers and their families in the aggressively globalized U.S. economy increasingly are Limited English Proficient * * *. And yet, despite a growing awareness of the challenges posed by limited English proficiency to the social, economic, political, and cultural well-being of poor immigrants today, relatively little attention has been paid to the role of language difference in poverty lawyering.

This Article confronts the complexities of lawyering across language difference. Starting with the principal model for poverty lawyering—client-centeredness—it suggests the inadequacy of the model for meeting the challenges of language difference, particularly when an interpreter is interposed in the paradigmatic lawyer-client dyad. After exploring the nature of interpretation and the role of interpreters, the Article argues in favor of a more collaborative relationship among lawyers, clients, and interpreters than is often seen in poverty law practice. Specifically, it suggests that the disruption effected by the introduction of an interpreter may be more productive than is typically realized, and invites a normative reconceptualiztion of the traditional lawyer-client relationship.

Ultimately, the Article urges the embrace of an emerging set of practices known as community interpreting, and argues that its increased attention to cultural context, third-party relationships, and community involvement is consistent with the methods and goals of community lawyering.
A pdf of the article is available at the link above.

Study of Sanctions in Appellate Proceedings | The California Blog of Appeal

Greg May, presiding blogger of the California Blog of Appeal, summarizes The Price of Frivolity: A Longitudinal Study of California Appellate Sanctions, 28 Whittier L.Rev. 1087 (2007).
Study of Sanctions in Appellate Proceedings, Aug. 22, 2007. (You might have to scroll down a lot to get to the post.)

Anti-Hunger Speaker

The William H. Gates Public Service Law Scholarship Program, the UW Global Health and Justice Project, and the UW Department of Global Health are cosponsoring a lecture by John Teton, Director, International Food Security Treaty Campaign, 4:00 Mon. Oct. 22 (rm 133, William H. Gates Hall).

Prosecutor Candidates Forums


The King County Bar Association, the League of Women Voters of Seattle, and the Municipal League Foundation are hosting two brown-bag candidate debates with the candidates for King County Prosecutor, Dan Satterberg (currently the interim prosecutor) and Bill Sherman (an attorney in the prosecutor's office). A copy of the flyer is here.

Downtown Seattle (Seattle Public Library), Wed. 10/3, 12-1.
Downtown Bellevue (Puget Sound Energy auditorium), Wed. 10/10 12-1.

Wednesday, September 26, 2007

Mining for Embedded Data: Is It Ethical?

David Hricik, Mining for Embedded Data: Is It Ethical to Take Intentional Advantage of Other People's Failures? 8 N.C. J.L. & Tech. 671 (2007). "This Article contends that transmission of embedded data should be at least presumptively inadvertent and that it is dishonest for a lawyer to actively look for embedded data."

Just to be sure: don't send opposing counsel documents that retain earlier draft language...

Central Area Housing

Again I'm straying from trial practice, but I came across this and thought I'd share it because of the local angle: Henry W. McGee, Jr., Seattle’s Central District, 1990–2006: Integration or Displacement?, 39 Urb. Law. 167 (Spring 2007):

This study explores the continued process of displacement of African Americans from a Seattle community in which they were once captive to their dispersal throughout the southeast sections of the city, the so-called Rainier Valley, and to the inner suburbs of Renton and Kent, once working and middle class white communities in which African Americans could not safely walk after dark. The study commenced on the assumption that the disappearance of African Americans from Seattle’s core, just a mile or so from downtown Seattle, was a net loss in the zero-sum game that might describe American racial dynamics in which blacks usually lose when they have something Euro Americans want. What then follows is anecdotal information that surveys African American attitudes toward the gentrification and the gain and loss presented by Euro American demand for housing in their once vibrant community. The study concludes in equipoise on the outcome of the gentrification. Rather than determining whether the displacement is “good” or “bad,” the ultimate question is whether Seattle will see a stable and successful inter-racial area emerge at the expense of black political power in Seattle.
A longer abstract is on SSRN.

Tuesday, September 25, 2007

City Sues Sonics

The City of Seattle has filed suit against the Seattle Supersonics' and Storm's owners to try to keep the teams in Seattle through the end of their lease of the KeyArena. Blame flies as city sues Sonics, Seattle Times, Sept. 25, 2007.

The Seattle Times has posted a pdf of the complaint (11 pages, with 75 pages of exhibits).

In addition to City Attorney Tom Carr, the city is represented by a team from K&L Gates.

I'm reminded of the first-year Contracts case where a concert hall owner tried to force an opera singer to sing. It doesn't always work so well.

(That nineteenth-century case was Lumley v. Wagner, and it still gets attention. See Geoffrey Christopher Rapp, Affirmative Injunctions in Athletic Employment Contracts: Rethinking the Place of the Lumley Rule in American Sports Law, 16 Marquette Sports L. Rev. 261 (2006); S.M. Waddams, Johanna Wagner and the Rival Opera Houses, 117 Law Q. Rev. 117 431 (2001); Lea S. VanderVelde, The Gendered Origins of the Lumley Doctrine: Binding Men's Consciences and Women's Fidelity, 101 Yale L.J. 775 (1992). )

To those who enjoy good, hard-fought athletic contests, I recommend finding youth leagues and school teams and following them. They're likely to stay in town, the athletes try their best and truly care about the outcomes of their games, and the seats are a lot more affordable than anything in the NBA.


Photo: Coach Bill Resler with his Roosevelt High School team, from "The Heart of the Game" (Miramax Pictures) via University Week.

Seuss-like Order: Judge Indulges in Poultry Poetry

You've heard of poetry in motion? Here's poetry in response to a motion.

A pro se prisoner filed a hard-boiled egg with his case, and the magistrate judge responded with an order in the cadence of Green Eggs and Ham. It's been picked up by the Associated Press and a bunch of bloggers. Here's a link to Abovethelaw: A Legal Tabloid, which has a pdf of the order.

A couple of commenters decry judges using humor to belittle litigants.

For more opinions in verse and also law review articles critiquing judicial humor, see our guide, Judicial Humor.

The prisoner says that he is an Orthodox Jew and complains that the prison refuses to serve him a kosher diet. For a little more on issues relating to religion in prisons (including Gentile prisoners who say they're Jewish largely to get a more palatable diet), see this earlier post linking to a Seattle Weekly article.

If you would have gone with "I am the eggman" rather than "I do not like green eggs and ham," then see this post about rock lyrics in legal opinions.

Photo from National Agricultural Library, USDA.

Monday, September 24, 2007

Hard Case: Job Market Wanes for U.S. Lawyers

Hard Case: Job Market Wanes for U.S. Lawyers, Wall Street Journal, Sept. 24, 2007.

It's not particularly trial-related, but why not link to a front-page story about the employment prospects for law school grads?

The end of the article links to some posts in the WSJ's Law Blog welcoming One Ls and offering advice (with various commenters weighing in).

NWIRP Honors IFAP, Ramasastry

At the Northwest Immigrant Rights Project's annual gala on Saturday, NWIRP gave its amicus award to Prof. Anita Ramasastry for her work as the faculty coordinator for the UW's Immigrant Families Advocacy Project. (See the law school's press release, Sept. 13.)

Since 1996 IFAP's law students teamed with pro bono attorneys have been helping immigrant women and children who are the victims of domestic violence. Each year, about 50 law students (many of them 1Ls) volunteer to help the women navigate the immigration system and take advantage of the laws that permit them to retain their immigration status even if they leave the abusive partners who may have enabled them to immigrate in the first place.

Attorneys who will commit to taking one case during the year can take the upcoming IFAP CLE (Oct. 26) for the cost of materials ($25).

The NWIRP dinner is always inspirational. One speaker was a client who told his story of coming to the U.S. from Congo and seeking asylum. Immigration officials handcuffed him and put him in detention. He remarked wryly that he wanted protection and they gave him "maximum protection." He was denied asylum and lost hope. But a NWIRP volunteer attorney from K&L Gates told him he could appeal and took the case. He lost the appeal. He lost another appeal. But NWIRP posted a bond for him so he could be released from the detention center and, eventually, he was granted residency.

The violation of immigration laws is considered civil rather than criminal, so the people facing deportation don't have a right to counsel. There are no public defenders for immigration cases. So most of the thousands of people who face proceedings in our state each year do so alone. NWIRP's staff and volunteers do incredibly valuable work, representing immigrants and providing legal orientation sessions to those detained at the Northwest Detention Center. (This year, the detention center's capacity went up to 1000 beds. It is at capacity.)

Sunday, September 23, 2007

Reports of "deficient" behavior cost two prosecutors their jobs

Reports of "deficient" behavior cost two prosecutors their jobs, Seattle Times, Sept. 23, 2007.

The article doesn't indicate what got the attorneys from the Clallam County Prosecutor's Office fired, but it was off duty during Labor Day weekend.

They were both junior: one graduated from law school in 2006 and was hired last spring; one graduated in 2007 and was working as an intern pending bar passage.

Historylink

Seattle lost Walt Crowley this week.

In four decades spanning student revolution and the information revolution, Mr. Crowley went from campus radical to the city's most prominent citizen historian, co-founding and running HistoryLink.org, an online encyclopedia of Washington state history.
Walt Crowley, historian, part of city history, dies at 60, Seattle Times, Sept. 22, 2007.

Although we've lost Mr. Crowley, we have not lost the wonderful resource he created. (Indeed, Crowley penned a plan for HistoryLink's future, Seattle Times, Sept. 23, 2007.)

Among the thousands of articles on our state's history that are on HistoryLink, there are many on our legal history, e.g.:If you're curious about the backstory in a case or issue or you'd like a quick biography of a judge or other prominent figure, give HistoryLink a try.

(I didn't set out to find only articles by David Wilma, but these all happen to be. He was the Deputy Director of HistoryLink -- which has a large roster of board members, volunteers, and staff -- from 2003 to 2007.)

Judges may appoint prosecutor to succeed Mckay

Judges may appoint prosecutor to succeed Mckay, Seattle Times, Sept. 23, 2007:

[Jeffrey] Sullivan was named acting U.S. attorney shortly after the Justice Department's controversial firing of John McKay in December. His appointment will end Oct. 12, along with those of 11 other interim U.S. attorneys, because of legislation passed this spring, according to the Justice Department. If the White House does not nominate a permanent replacement for McKay, the U.S. District Court in Seattle can name a new interim federal prosecutor. The decision would fall to the court's senior judge, Robert Lasnik, a Clinton appointee who has been preparing to fill the vacancy.

Saturday, September 22, 2007

Fugitive Safe Surrender; Shame and Guilt

Today's Weekend America had a story about the program sponsored by the Justice Department that gives people with outstanding warrants an opportunity to surrender, generally at churches. A Fugitive Safe Haven, Sept. 22, 2007. I posted a link to a New York Times article on the same program this summer (earlier post). The radio program adds the personal touch of an interview with two people who turned themselves in.

I was also interested in the radio interview with Prof. June Price Tangney, a clinical psychologist at George Mason University who has studied "moral emotions" -- principally shame and guilt -- including in the context of the justice system. I looked up her publications, and found this one that might interest Trial Ad Note readers:

Working at the Social-Clinical-Community-Criminology Interface: The George Mason University inmate study. [References].
2007
Tangney, June Price; Mashek, Debra; Stuewig, Jeffrey.
E-Mail Address Tangney, June Price: jtangney@gmu.edu
Journal of Social & Clinical Psychology. Vol 26(1) Jan 2007, 1-21.
This article describes our attempt to import social-personality theory and research on moral emotions and moral cognitions to applied problems of crime, substance abuse, and HIV risk behavior. Thus far, in an inmate sample, we have evidence that criminogenic beliefs and proneness to guilt are each predictive of re-offense after release from jail. In addition, we have evidence that jail programs and services may reduce criminogenic beliefs and enhance adaptive feelings of guilt. As our sample size increases, our next step is to test the full mediational model, examining the degree to which programs and services impact post-release desistance via their effect on moral emotions and cognitions. In addition to highlighting some of the key findings from our longitudinal study of jail inmates over the period of incarceration and post-release, we describe the origins and development of this interdisciplinary project, highlighting the challenges and rewards of such endeavors.

(PsycINFO Database Record (c) 2007 APA, all rights reserved) (journal abstract).

Audit: WSP lab 'severely deficient'

Fred Russell's defense is using a 2004 audit of the Washington State Patrol crime lab to support its motion to suppress evidence of his blood alcohol level, becausee the lab lost the vials with the blood samples. Audit: WSP lab 'severely deficient', Spokesman Review, Sept. 20, 2007. Russell's attorney is UW Trial Ad Instructor Francisco Duarte.

Man gets 5 months for lying about war

Man gets 5 months for lying about war, Seattle Times, Sept. 22, 2007:

A Tacoma man who falsely claimed he was a decorated war hero and even appeared in a video that protested the U.S. role in Iraq was sentenced Friday to five months in a federal prison for making false statements to the Department of Veterans Affairs.
The case was in the Western District of Washington, Judge Lasnik.

I was curious about the statute making it a crime to like to the VA. See 18 USC § 289:
Sec. 289. False claims for pensions

Whoever knowingly and willfully makes, or presents any false, fictitious or fraudulent affidavit, declaration, certificate, voucher, endorsement, or paper or writing purporting to be such, concerning any claim for pension or payment thereof, or pertaining to any other matter within the jurisdiction of the Secretary of Veterans Affairs, * * *
Shall be fined under this title or imprisoned not more than five years, or both.
Back in my TV-besotted youth, there was a margarine commercial with the tagline "It's not nice to fool Mother Nature." There are likewise penalties for fooling Uncle Sam.

Friday, September 21, 2007

Referendum 67

Here are some recent items about Referendum 67:

Class Action Kickback Indictment

Melvyn Weiss, cofounder of Milberg Weiss Bershad & Schulman, was indicted by federal prosetors in L.A., who charged that he conspired to pay kickbacks to people who agreed to be plaintiffs in class-action cases. N.Y. lawyer indicted in kickbacks investigation, Seattle Times, Sept. 21, 2007.

Youth of Color in Criminal Justice System

This morning's Seattle Times has a front-page story about a rally protesting the treatment of six African American teens charged with attempted murder in the beating of a white teen in Jena, LA. "Jena Six" rally puts justice system on trial, Seattle Times, Sept. 21, 2007.

The story mentions "a January report from the National Council on Crime and Delinquency." I was curious and thought some readers might be as well. The 38-page report is: And Justice for Some: Differential Treatment of Youth of Color in the Justice System (2007). Here's a string of telling statistics from the executive summary:

From 2002 to 2004, African Americans were:
• 16% of youth.
• 28% of juvenile arrests.
• 30% of referrals to juvenile court.
• 37% of the detained population.
• 34% of youth formally processed by the juvenile court.
• 30% of adjudicated youth.
• 35% of youth judicially waived to criminal court.
• 38% of youth in residential placement.
• 58% of youth admitted to state adult prison.
Id. at 3.

Thursday, September 20, 2007

Victorious Pants Defendants Have Losses

A lawsuit in DC got a lot of attention -- an administrative law judge sued a dry cleaner for millions of dollars over a problem with a pair of pants. He lost. The Korean couple that owned the dry cleaning business got a lot of support, including fundraisers that covered their attorney's fees. But they have still suffered losses -- they lost a lot of business and suffered a lot of stress. And now they have closed the shop (they still have one other shop). Even litigation that you win can have a high cost. Marc Fisher, Dry Cleaners' Victory in Pants Lawsuit Still Comes With a Loss.

Wednesday, September 19, 2007

Family gets wish in sibling slaying: leniency

Family gets wish in sibling slaying: leniency, Seattle Times, Sept. 15, 2007.

Almost one year after Michael "Mikey" Miller was accidentally shot and killed in their Burien home, the couple went before a King County judge Friday to plead for leniency for the teen who pulled the trigger: their other son, Jordan Jantoc.

* * *

"I think this is a case where justice needs to be tempered with mercy," [Superior Court Judge Harry] McCarthy said before he sentenced Jordan to 24 months of home detention, followed by probation when he will be required to give speeches on gun control.
Judge McCarthy is also a UW Trial Ad instructor.

Fees for Fee Research?

Columnist Danny Westneat, "pawing through the firm's expense sheets," discovered that Davis Wright Tremaine has included in his fee request "287 hours of work related to its own billing. This includes researching how to collect the fees. Tabulating the hours everyone worked and expenses they incurred. Writing up memos defending their bills as reasonable." The bill just keeps going up, Seattle Times, Sept. 19, 2007.

Westneat says this is nuts. He doesn't buy DWT's argument that charging the school district big fees is a way to prevent further violations of civil rights. He doesn't buy DWT's analogy of this case to one where prison guards beat up a prisoner.

Update (Sept. 23): A reader, Scott St. Clair, wrote to Westneat about his column:

"It's curious that Westneat, given his personal history of being on the receiving end of similarly motivated School District abuse, isn't more sympathetic to the law firm," he wrote. "And less sympathetic to the villains of the piece, the politically motivated, educationally oblivious school board... ."

He's talking about the mess I was embroiled in last year, when, after years involved in our local school, we left due in part to an administration we felt was resistant to whites integrating a black school.

St. Clair's point: Seattle schools are so fixated on race that even the nation's highest court isn't enough to check it. The mule won't notice without "a board upside the head."

He might be right. I still think fining the schools is overkill. But I love it when a reader makes me doubt.
Danny Westneat, So lovely when you're mad, Sept. 23, 2007.

State Sen. Sues God

State Sen. Ernie Chambers Sues God - , KETV Omaha, Sept. 17, 2007:

OMAHA, Neb -- State Sen. Ernie Chambers is suing God. He said on Monday that it is to prove a point about frivolous lawsuits.

Chambers said senators periodically have offered bills prohibiting the filing of certain types of suits. He said his main objection is that the constitution requires that the doors to the courthouse be open to all.

"Thus anybody can file a lawsuit against anybody -- even God," Chambers said."
Thanks: Lea Vaughn.

Innocence Project Northwest Celebrates 10th Anniversary with Special Screening of "The Trials of Darryl Hunt"

Innocence Project Northwest Celebrates 10th Anniversary with Special Screening of "The Trials of Darryl Hunt", Thur. Oct. 11, 2007. Check it out -- a chance to see a great movie (with appearances by Darryl Hunt and his attorneys), to support a good cause, and to join other supporters for hors d'oeuvres and chat.

Drug Forfeiture; Church Liability for Abuse

This morning's Seattle Times reports two Court of Appeals cases that address, in different ways, the web of responsibility for others' actions.

On page A1, the story is about parents whose cars were seized under the drug forfeiture law (RCW 69.50.505) because their son was using them to deal drugs. They said they didn't know, but Division I upheld the seizure because they should have investigated, given the circumstances. Son is busted for drugs, but it's mom and dad who lose the cars, Seattle Times, Sept. 19, 2007.

The case is In Re The Forfeiture Of One: 1970 Chevrolet Chevelle (wln Cv02849), No. 58943-1-I, Wash. Courts website (Wash. App. Div. I Sept. 17, 2007).

On page B1, the story is about the Mormon church being held liable for a man's sexual abuse of his step-daughters. After years of abuse, the older girl talked to the family's bishop, who persuaded her not to report the abuse and instead to pray for her family. The court upheld an award against the church based on the bishop's role, but not the portion of the award attributable to the man.

The case is Doe v. Corporation of President of Church of Jesus Christ of Latter-Day Saints, No. 57416-7-I,--- P.3d ----, 2007 WL 2696764 (Wash.App. Div. 1, Sept. 17, 2007). (It wasn't on the Washington Courts website when I checked.) The case attracted amicus participation from the Washington State Trial Lawyers Foundation and the Washington Defense Trial Lawyers.

Tuesday, September 18, 2007

9th Circuit Blocks Human Rights Suit Against Caterpillar

Four years ago a peace activist from Olympia was killed by an Israeli bulldozer that was razing a Palestinian home. Her family -- and the families of 16 Palestinians who were killed or injured -- sued Caterpillar, the manufacturer of the bulldozer, for abetting human rights violations. Corrie family suit blocked by judges, Seattle Times, Sept. 18, 2007.

The case is Corrie v. Caterpillar, Inc., No. 05-36210 (9th Cir. Sept. 17, 2007), available on the 9th Circuit website.

Civil procedure geeks (and I mean that in a good way) might be interested in the way the case was dismissed: defendants moved for dismissal under Fed. R. Civ. P. 12(b)(6), but the court took it as going to the heart of jurisdiction -- i.e., Fed. R. Civ. P. 12(b)(1) -- and thus considered facts not in the complaint.

In concluding that jurisdiction is precluded by the political question doctrine, the court noted:

The decisive factor here is that Caterpillar’s sales to Israel were paid for by the United States. Though mindful that we must analyze each of the plaintiffs’ “individual claims,” id. at 547, each claim unavoidably rests on the singular premise that Caterpillar should not have sold its bulldozers to the IDF. Yet these sales were financed by the executive branch pursuant to a congressionally enacted program calling for executive discretion as to what lies in the foreign policy and national security interests of the United States.
The plaintiffs were represented by Gwynne Skinner and Ronald C. Slye from Seattle University's Ronald A. Peterson Law Clinic, as well as by attorneys from the Center for Constitutional Rights (New York). Erwin Chemerinsky (Duke University) argued for the plaintiffs-appellants. There were also a number of amici, including the United States, the National Chamber Litigation Center, and groups of law professors.

(Side note: Prof. Chemerinsky will be the dean of the new law school at University of California - Irvine. UCI, Chemerinsky putting on a happy face, L.A. Times, Sept. 18, 2007. What made this newsworthy is that UC-Irvine announced it, then withdrew its offer. After much criticism for the withdrawal, the university rehired him.)

Monday, September 17, 2007

Insurance Industry's Ads Hit Hard

David Postman, Trial lawyers complain insurance industry's ads are "slanderous," Seattle Times, Sept. 14, 2007.

The trial attorneys funding their Referendum 67 campaign say the insurance industry's ads making fun of lawyers are "slanderous, uncivil and reckless."

Karen Koehler, president of the Washington State Trial Lawyers Association, wrote a letter last week to the Washington State Bar Association (WSBA), with copies sent to members of the state Supreme Court, complaining about TV spots featuring the fictional law firm of Sooem Settle & Kashin.
There's more in Postman on Politics (Sept. 13) -- and of course there are comments.

WSTLA president Karen Koehler is also a UW Trial Ad instructor.

DSHS settles rape lawsuit

The state Department of Social and Health Services has agreed to pay $2.5 million to a former patient at Eastern State Hospital who was raped by a nurse.DSHS settles rape lawsuit, Spokesman Review, Sept. 5, 2007.

The patient was represented by former Trial Ad instructor David P. Moody.

Head of Spokane Hells Angels gets 7 years

Judge Lasnik sentenced Richard Fabel this morning: Head of Spokane Hells Angels gets 7 years, Spokesman Review, Sept. 17, 2007.

Civil Rights Attorney Fees for DWT?

Billing in "pro bono" cases is fodder for ethics debate, Seattle Times, Sept. 17, 2007.

Davis Wright Tremaine is seeking attorneys fees in the school desegregation case. (See earlier post.)

Is it cricket for a firm to say it's taking a case pro bono and then seek fees from the defendant? DWT says yes: "pro bono" means that the clients didn't have to pay. Making a government pay fees creates a disincentive for governments to deprive people of their civil rights.

Some say it's OK to get the fees as long as they're turned over to charity.

Some say that it would be too bad to take money away from the school district's educational mission. But isn't that always the case with civil rights cases and fees? When a government has to pay attorney's fees to the successful plaintiffs, then that money isn't available for government services. When civil rights plaintiffs get attorney's fees from a police department or prison or DSHS, then the money can't be used for better policing, better conditions for prisoners, or better health care and social services.

Friday, September 7, 2007

What Can Law Schools Do Better?

The Complete Lawyer, v.3, no.5 (Sept. 2007) is devoted the theme "What Can Law Schools Do Better?"

I heard about this from David Giacalone at f/k/a, who also prepared a directory of law-related blogs on professionalism, work-life balance, and marketing.

Gov Appoints Superior Court Judge

Gregoire appoints Craighead to King County Superior Court, Seattle Times, Sept. 7, 2007.

Governor Gregoire's press release (Sept. 6, 2007) has much more information about Judge Susan J. Craighead.

Security Cameras in Seattle

Jennifer Sullivan, Look up: Seattle cops may soon be watching, Seattle Times, Sept. 7, 2007:

Seattle police may turn to private security cameras around the downtown business core to help watch for assaults, drug deals and other crimes.

Following the lead of many other U.S. cities, police and the Downtown Seattle Association are examining the creation of a surveillance system that would allow officers to track live video footage from security cameras on and around downtown buildings.

But the idea has been sharply criticized by privacy advocates.
The article mentions an August ACLU report. That report is Under the Watchful Eye: The Proliferation of Video Surveillance Systems in California, by Mark Schlosberg and Nicole A. Ozer of the ACLU of Northern California, issued jointly by the ACLU of Northern California, the ACLU of Southern California, and the ACLU of San Diego and Imperial Counties.

Suspect in 1996 slaying wins right to fourth trial

Suspect in 1996 slaying wins right to fourth trial, Seattle Times, Sept. 7, 2007.

Trial 1 (1997): mistrial - prosecutors revealed that a key witness had been in jail at the time of the crime

Trial 2 (1997): conviction overturned in 2002 -- error to admit testimony by police detective about defendant's leadership qualities. State v. Everybodytalksabout, 145 Wn.2d 456, 39 P.3d 294, Findlaw (2002).

Trial 3 (2003): conviction overturned yesterday (by a unanimous state Supreme Court) - admission of statement made to a probation officer error because defendant's counsel was not present. State v. Everybodytalksabout, No. 78514-7, Wash. Courts site (Sept. 6, 2007).

Feds Indict Peer-to-Peer Identity Thief

Federal prosecutors indicted Gregory Kopiloff yesterday, alleging that he used Limewire peer-to-peer filing sharing software to steal financial information to create credit-card and bank-accounts using other people's identities. David Bowermaster, Indictment here marks "new age" of ID theft, Seattle Times, Sept. 7, 2007.

Prosecutors say that this use of peer-to-peer filing sharing is becoming common. They even had a security consultant at their news conference show how a stream of P2P searches includes requests for terms like "medical billing" and "password" as well as for pornography and music.

The Times article online links to the indictment.

Thursday, September 6, 2007

Law-Related Conferences

Every year there are hundreds of law-related conferences, on topics as diverse as law and psychology and law and Catholic social theory. Now there's a way to find out about upcoming conferences. The new Legal Scholarship Blog posts information about conferences, as well as calls for papers and law faculty colloquia.

Postings that migt interest Trial Ad Notes readers have included:

Summer with Farmworkers in Yakima

A Seattle U student describes his summer job working on a farmworker project at Columbia Legal Services in Yakima: Michael Khalili, How I Spent My Summer Vacation: Internship Opens Eyes on Farm Workers’ World, Bar Bull., Aug. 2007.

DWT Seeks Fees in School Case

Davis Wright Tremaine is asking for court-awarded attorney's fees in the school desegregation case decided by the Supreme Court in June in which DWT represented the parents against the Seattle Public Schools. Law firm wants school district to pay $1.8M, Seattle Times, Sept. 6, 2007.

The school district argues that the parents were not the "prevailing party" within the terms of the attorney's fee statute, since Justice Kennedy's concurrence supported the school district's position in part.

The Ninth Circuit will decide the fee application.

I assume that the attorney's fees statute they're proceeding under is 42 U.S.C. § 1988:

In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, * * * the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs * * *
The case is Parents Involved in Community Schools v. Seattle School District No. 1, No. 05-908, slip opinion pdf (June 28, 2007). See post. For more on plurality opinions, see this post.

Tuesday, September 4, 2007

Law Professors on Juries

A law professor blogged about his notice for jury duty -- he said he hoped not to have to do it, didn't like litigation and wasn't interested in the experience. Several other professors have commented with their experiences serving on juries. Gordon Smith, "Jury service is an opportunity and an obligation shared by all adult citizens", Conglomerate Blog: Business, Law, Economics & Society, Aug. 30, 2007.

Saturday, September 1, 2007

The Trial Technologist’s View

Blake Boyd, a consultant who works on trial presentations has a new blog about trials he's worked on and technology tips. Check out The Trial Technologist’s View.

Thanks: Internet Legal Research Weekly, Sept. 2, 2007.

Jacob Nickels Pleads Guilty in Casino Case

Mayor's son pleads guilty in casino scam, Seattle Times, Aug. 31, 2007. Jacob Nickels (the son of Mayor Greg Nickels) is represented by Jeffery Robinson (a UW Trial Ad instructor).

$5M+ Verdict in Seattle Med Mal Case

Four days after Mr. Tri Hoang, 30, was sent home from the ER at Swedish Medical Center with acid reflux medicine, he died of an aortic rupture. Now a jury has awarded Hoang's family $5.39 million in its suit against Grace Dy, the ER doctor who misdiagnosed him. It did not find liable his regular doctor at a UW clinic who diagnosed a heart infection two days after the ER visit. $5 million award in negligence case, Seattle P-I, Aug. 30, 2007; Jury awards $5.39 million to family in suit over medical negligence, Seattle Times, Aug. 31, 2007.

After an investigation, the State Board of Health had found that Dr. Dy's actions fell "within the standard of care."

The P-I's "Soundoff" page shows a range of opinion along the lines you might expect -- cases like this are signs of litigiousness or examples of how the tort system protects people. At least one writer questions bringing a case when the State Board of Health had cleared the doctor. I don't know how extensive a Board of Health investigation is, but I note that the trial lasted a month. There was surely a lot more to this than what could be covered in the newspaper stories -- and probably more than what the Board of Health reviewed.

The Hoang family was represented by Felix Gavi Luna and Mike Wampold of Peterson Young Putra. Both are UW Trial Ad instructors (and UW Trial Ad alumni too).