Beating on a bus: Driver didn't see — or didn't act?

A jury trial began this week in a case against King County by two people who were beaten up by a crowd of teenagers and young adults who dragged them off the bus one night three years ago. The plaintiffs say the driver should have called the police and should not have opened the rear door through which they were dragged.

Beating on a bus: Driver didn't see — or didn't act? , Seattle Times, Dec. 1, 2007. (posted 12/1/07)


Update (12/7): $250,000 verdict for couple assaulted on bus, Seattle P-I, Dec. 7, 2007.

Suing DSHS

The Olympian profiled Seattle attorney David P. Moody, who has made a specialty of suing the Department of Social and Health Services. Olympia grad targets DSHS with legal crusade: Lawyer wins $40 million from state in 7 years, Olympian, Nov. 26, 2007.

In addition to profiling Moody, the article discusses the policy question of how much the state should be vulnerable to suit. Attorney General Rob McKenna says that Washington's waiver of sovereign immunity was much greater than other states' and he favors legislation limiting the state's liability in certain circumstances. The bill discussed was 2006 SB 6215; McKenna's background sheet is here. SB 5997 in 2007 would have shielded the Department of Corrections and DSHS from liability when employees exercised reasonable care, even if errors in judgment resulted in bad outcomes.

David Moody is a former UW Trial Ad instructor.

Violinist's Case Against Seattle Symphony

Judge Catherine Shaffer (King County Superior Court) has dismissed a violinist's claims of discrimination against the Seattle Symphony. A claim for intentional infliction of emotional distress was not addressed by the motion for summary judgment. 2 claims dismissed in violinist's suit, Seattle Times, Dec. 1, 2007.

Judge Shaffer is also a UW Trial Ad instructor.

To a High Court -- Crusading Law Students

How about reading something inspirational over the winter break? Law student Ilana Mantell recommends To a High Court, "about the students who filed and won the SCRAP decision. The story behind the case is fantastic (and inspiring for law students)."

For more -- including excerpts -- see the book's website.

Within George Washington University, five law students decide to do a practical group project. They take on the Nation's Railroads and the oldest regulatory agency, the Interstate Commerce Commission. They want compliance with a new law, the National Environmental Policy Act and its application to freight rates. They want the unnecessary extraction of natural resources and the impediments to recycling analyzed and stopped. Their name: Students Challenging Regulatory Agency Procedures, SCRAP. In a stunning surprise, published in the New York Times, they petition for compliance with the law and a billion dollar refund. The legal prowess of the Commission and the Railroads confronts them. It is David versus Goliath. As author Neil Thomas Proto reveals, the five find the tools and inner persistence to meet the challenge.

It's available in the Law Library: KF228.S788 P76 2006 at Classified Stacks.

Case finally closes in 1978 slaying of 15-year-old

Case finally closes in 1978 slaying of 15-year-old, Seattle Times, Dec. 4, 2007. A DNA match that wasn't possible with the technology available at the time of the killing implicated the defendant, who has now entered an Alford plea.

Governor Appoints Justice

Governor Gregoire has named Judge Debra Stephens (Div. III, Spokane) to take the Justice Bobbe Bridge's seat on the Supreme Court when Justice Bridge retires at the end of this month. Gregoire picks Spokane jurist for high court, Seattle Times, Dec. 4, 2007.

Judge Stephens has lived in Spokane all her life and is an honors graduate of Gonzaga twice over (B.A. and J.D.). While her private practice specialized in appellate work, she taught as an adjunct at Gonzaga since 1995, covering an impressive variety of courses -- appellate advocacy, community property, state and federal constitutional law, and legal research and writing. She was appointed to Division III in April and was elected without opposition last month

The press release from the Governor's office is here. The photo at right is from Judge Stephens's profile on Division III's website.

Judge: Dog ordinance unconstitutional

Judge: Dog ordinance unconstitutional, Spokesman Review, Dec. 2, 2007:

Spokane’s “dangerous dog” ordinance is unconstitutional because it denies pet owners the right of due process, a Superior Court judge ruled Friday in a case that may have far-reaching effects.

As a matter of law, the administrative procedures used in the city of Spokane regarding “dangerous dog” determinations and appeals from those rulings violate citizens’ due process rights, Judge Robert Austin said in his ruling.

* * *

In the current system, dogs tagged as “dangerous” by the city and its contractor, SpokAnimal, are deemed to be that unless the owner can prove otherwise – flying in the face of the notion of presumed innocence.

Judge's DUI rulings eyed

Judge's DUI rulings eyed, Seattle Times, Dec. 1, 2007:

There are enough questions about the rulings of the judge presiding in the drunken-driving case against King County Councilmember Jane Hague that failed challenges of his jurisdiction in three Woodinville cases may be appealed, a King County Superior Court judge [Helen Halpert] ruled Friday.

In each of the cases before the court Friday, prosecutors had challenged King County District Court Judge Peter Nault and requested another judge. In each case, the challenge was denied, and Nault continued to handle the cases.

Prosecutors also challenged Nault in Hague's case, and Nault denied the challenge.

Army Pays $725 in Set-Aside World War II Case - New York Times

Army Pays $725 in Set-Aside World War II Case, N.Y. Times, Dec. 1, 2007.

A month after the Army said it made a mistake when it court-martialed Samuel Snow and 27 other black soldiers in World War II, the Pentagon has cut Mr. Snow a check for back pay, money withheld while he served a year in prison on a rioting conviction.

The check was for $725. No interest. No adjustment for inflation.

The court-martial stemmed from a riot -- black soldiers (in a Jim Crow Army) against Italian prisoners of war -- at Fort Lawton in Seattle. (Fort Lawton was one of the Army's main feeders to the Pacific Theater during World War II. Discovery Park is now on the site.)

I missed posting about the Army's ruling in October: 1944 Conviction of Black G.I.’s Is Ruled Flawed, N.Y. Times, Oct. 27, 2007.

The [Board for Correction of Military Records] found that the court-martial was flawed, that the defense was unjustly rushed and that the prosecutor, Leon Jaworski, a young lieutenant colonel who went on to fame three decades later as a Watergate special prosecutor, had important evidence that he did not share with defense lawyers.

The Army reviewed the case, after a resolution from the House of Representatives, inspired by Jack Hamann's book, On American Soil: How Justice Became a Casualty of World War II (D805.5.F66 H36 2005 at Good Reads). See Hamann's website for more. See earlier posts too.

McIver Case

Seattle City Councilmember Richard McIver faces trial for fourth degree domestic assault Dec. 10. This week a judge ruled that the press could obtain police documents, including the recording of a 911 conversation and witness statements. The judge denied release of a patrol car recording of Councilmember McIver.

Mr. McIver's attorney, Todd Maybrown, argued against the release of the documents because the release would violate the privacy of McIver and his wife and the pretrial publicity might make the trial unfair. He says that McIver is not guilty.

Recent stories (the information overlaps, but not entirely):

• Police documents detail events that led to arrest of Councilmember McIver, Seattle Times, Nov. 29, 2007.
• Judge rules to release Councilmember McIver police report, Seattle Times, Nov. 28, 2007.
• Police release documents in McIver domestic arrest, Seattle Times, Nov. 28, 2007.
• Judge orders release of police report in Seattle city councilman's arrest, Seattle Times, Nov. 27, 2007.
• McIver trial is in doubt: Councilman's wife won't testify, her lawyer says, Seattle P-I, Nov. 27, 2007.

  Seattle City Councilman Richard McIver could avoid a trial for allegations that he assaulted his wife if she remains unwilling to testify against him in court.
  
  Marlaina Kiner-McIver knows she could be put in jail for ignoring a subpoena, but, her lawyer said Tuesday, she has held the same position since her husband's arrest.
  
  * * *
  
  McIver's attorney, Todd Maybrown, said that without Kiner-McIver's testimony, prosecutors would have "no case at all," because there isn't any corroborating evidence that an assault occurred.
  
  "It shouldn't have been filed in the first place," Maybrown said. "It's not a provable case under any circumstances."

Todd Maybrown is also a UW Trial Ad instructor.

Judge tosses Hague's breath test in DUI case

Judge tosses Hague's breath test in DUI case, Seattle Times, Nov. 28, 2007.

The judge found that the warning the police give (as required by RCW 46.20.308) before administering a breathalyzer test to King County Councilwoman Jane Hague did not adequately warn her of the possible impact of a high reading.

[William] Kirk, Hague's attorney, argued Wednesday that application of the implied-consent law depends on drivers agreeing to the tests "knowingly and intelligently" and after "having been fully informed of the consequences."

As written, Kirk argued, the warning given to Hague was incomplete and failed to fully document the consequences of allowing the test to be administered.

"The blame doesn't lie with the State Patrol," said Kirk, but rather with the language the Legislature adopted in 2004.

A DUI suspect can still be prosecuted without breathalyzer evidence; it's just harder for the prosecution to make its case.

KCBA CLE on Trial Skills

The King County Bar Association is offering a CLE on Trial Skills Fri. Dec. 7. The faculty includes Charles Gordon, Gordon Tilden Thomas & Cordell LLP, Jeffrey Grant, Aoki Sakamoto Grant, LLP, Honorable Dean Lum, King County Superior Court, Dr. Theodore Prosise, Tsongas Litigation Consulting, Aaron Rocke, Carney Badley Spellman PS, Roy Umlauf, Forsberg & Umlauf PS, Lish Whitson PLLC, and Matthew Williams, Attorney at Law. Jeff Grant, Aaron Rocke, and Lish Whitson have taught in the UW Trial Ad Program; Jeff Grant also teaches Pre-trial Practice.

If you're a new attorney, note that KCBA discounts its CLE registrations for people admitted in 2005 or later.

If you're still a law student, even better: KCBA reserves limited spots in its CLEs for law students. All you need pay is $25 to cover the cost of materials. This is a great opportunity not only to learn important skills but also to meet and network with local attorneys. Contact Denise Medlock, DeniseM|at|KCBA.org.

Free Animal Law Symposium at Seattle U

Seattle University and SU's Student Animal Legal Defense Fund are hosting a free symposium on animal law.

Animal Law Symposium
November 28, 2007
4:30 pm – 6:00 pm
This event is FREE and open to the general public

Speakers will include:

Amanda Lee, JD

On December 7, 2005, one of the largest arrests of environmental activists in American history occurred. The FBI arrested six activists for allegedly taking part in a wide variety of violent crimes, including arson and domestic terrorism. One of the six arrested activists, Daniel McGowan, faced mandatory life in prison on charges related to two arsons in Oregon. As a result of Ms. Lee’s pre-trial motions and negotiations, the charges in the prosecution of McGowan were substantially reduced to a seven year sentence.

Ms. Lee will discuss her experiences representing defendants in “animal and eco-terrorism” cases -the types of people the defendants are, the unique challenges she faces as a lawyer with regards to strategy and picking jurors, the government's illegal wiretapping of defendants, philosophical issues, and more.

Adam Karp, JD MS

Across the nation, courts are evaluating the issue of compensatory damages awarded to those who lose their pets. Speaking on the topic of veterinary medical malpractice, Mr. Karp will explore legal recourse for pet owners, including a heightened standard of care afforded by veterinarians to their animal patients. Karp will address important questions, including:

”Can I recover for the pain and suffering of an animal?”
“What is the economic value of an animal?”
“What is the noneconomic value of an animal?”

Mr. Karp will also speak on the topic of dog-fighting. Karp is currently representing a case dealing with dog-fighting as it pertains to bankruptcy. Specifically, the case examines whether “willful and malicious injury to property/person” is a basis to avoid discharge in Chapter 7.

Elizabeth Lorraine ("Lorrie") Elliot, JD, LLM, MAT

Animal abuse takes many forms including forcing a victim of domestic violence to commit an act of violence upon their own beloved companion animal. Additionally, some victims of domestic violence remain in an abusive situation for fear of what will happen to their companion animals. Ms. Elliot will explore the connection that exists between domestic violence and animal abuse.


The Animal Law Symposium will take place at Seattle University, on the second floor gallery of Sullivan Hall. This event is FREE and open to the general public.
(Please see http://www.seattleu.edu/home/campus_community/visit_campus/ for directions to Seattle University and Sullivan Hall).

UW note: As it happens, all three speakers are graduates of the University of Washington School of Law. Adam Karp has taught Animal Law here and Amanda Lee has been a Trial Ad instructor.

Photo credit: Cheryl Nyberg

Moot Court News from All Over

Prof. Kent Streseman, who is the director of the appellate advocacy program at Chicago-Kent, has revived his blog, Mootness, that reports on moot court competitions from around the country.

One bit of news: the University of Washington team (Carrie Gage, Stephanie Knightlinger, Jeffrey Lane, Megan Larrondo, Ranjit Narayanan, Candice Tewell)
is among the 28 teams that are advancing to the finals of the National Moot Court Competition, sponsored by the Association of the Bar of the City of New York. (About 185 schools began the competition.) The UW team took it all last year. Here you can see a picture of the happy winners and, if you scroll to the bottom and click on a link, you can even see them in action in a video of the finals.

The UW also sent teams to the National Asian Pacific American Bar Association Thomas Tang Moot Court Competition,
the University of Puerto Rico Invitational Criminal Trial Advocacy Competition, and the Buffalo-Niagara Mock Trial Tournament.

And of course there have been a lot of busy students right here, too, since we had both a 2L/3L mock trial competition and (for the first time) a 1L mock trial competition. I got to be a judge for one round and was very impressed by the students.

(Corrected 11/28.)

Romney calls on judge to resign after 2 killed here | Seattle Times Newspaper

Romney calls on judge to resign after 2 killed here, Seattle Times, Nov. 25, 2007.

An offender is released from prison in Massachusetts after completing his sentence. (Prosecutors argued that he should be confined because of assaults on prison guards.) Later he (allegedly) kills a couple in Graham (Pierce County), Washington. Should we blame the judge? The governor who appointed the judge?

Scads of Empirical Studies

A couple of weeks ago, NYU hosted the Second Annual Conference on Empirical Legal Studies. Many scholars in this area are using social science research methods to explore different aspects of trials and litigation. Conference papers related to trial advocacy included:

• Kuo-Chang Huang, Does Discovery Promote Settlement? - An Empirical Answer (September 29, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=995349. Since Taiwan added discovery to its civil law system, settlements have increased.


• Seth Seabury, Inferring Beliefs from Selected Samples: Evidence from Civil Litigation (July 5, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=998687. Litigants make settlement decisions based on jury verdicts in earlier cases -- but the sample of cases that actually go to trial is skewed, so this skews predictions.


• Gillian K. Hadfield, Settlement Values: How 9/11 Victims Saw the Choice between Money and Going to Court (June 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=998647


• Nancy J. King, Habeas Litigation in the U.S. District Courts. 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=999389.


• Jeffrey Fagan, Aaron Kupchik, and Akiva Liberman, Be Careful What You Wish for: Legal Sanctions and Public Safety Among Adolescent Offenders in Juvenile and Criminal Court (July 2007). Columbia Law School, Pub. Law Research Paper No. 03-61 Available at SSRN: http://ssrn.com/abstract=491202 or DOI: 10.2139/ssrn.491202.


• James E. Bessen & Michael J. Meurer, The Private Costs of Patent Litigation (March 2007). Boston University School of Law Working Paper No. 07-08 Available at SSRN: http://ssrn.com/abstract=983736.


• Randi Hjalmarsson, Crime and Expected Punishment: Changes in Perceptions at the Age of Criminal Majority (June 30, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=1002390.


• Danton Asher Berube & Donald P. Green, The Effects of Sentencing on Recidivism: Results from a Natural Experiment (July 5, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=999445.


• David S. Abrams, Marianne Bertrand, & Sendhil Mullainathan, Do Judges Vary in Their Treatment of Race? (July 5, 2007). Univ. of Chicago, Olin Law and Economics Program, Research Paper Series, Forthcoming Available at SSRN: http://ssrn.com/abstract=913021.


• Russell B. Korobkin & Joseph W. Doherty, Who Wins in Settlement Negotiations? (July 1, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=998095.


• Claudia M. Landeo, Tort Reform and Disputes under Endogenous Beliefs (January 20, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=957753.


• Christina L. Boyd, Lee Epstein & Andrew D. Martin, Untangling the Causal Effects of Sex on Judging. 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=1001748. Looking at federal courts of appeals, the researchers found that female judges were more likely to rule in favor of discrimination plaintiffs and male judges were more likely to do so if there was a woman on the panel.


• Samuel R. Gross & Barbara O'Brien, Frequency and Predictors of False Conviction: Why We Know So Little, and New Data on Capital Cases (September 2007). U of Michigan Public Law Working Paper No. 93 Available at SSRN: http://ssrn.com/abstract=996629.


• Joanna Shepherd & Paul H. Rubin, The Demographics of Tort Reform (November 2007). Emory Law and Economics Research Paper No. 07-17 Available at SSRN: http://ssrn.com/abstract=967712.

  Tort reform may not affect all segments of society equally. Studies have shown that many tort reforms disproportionately reduce compensation to women, children, the elderly, disadvantaged minorities, and less affluent people. This study goes beyond tort reform's disproportionate effect on compensation, to explore whether tort reform also has a disproportionate effect on accidental death rates. We explain that, theoretically, tort reform's care-level effects and activity-level effects may disproportionately impact the accident rates of different groups. Using the most accurate, comprehensive data on medical malpractice tort reforms and state-level data from 1980-2000, we examine empirically whether tort reforms indeed have such a disproportionate effect. The results from our empirical analysis are consistent with our theoretical predictions. We find that the impact of tort reform varies substantially among demographic groups. When we consider the net effect of all the reforms in our study together, our results suggest that women, children, and the elderly do not enjoy tort reform's benefits as much as men and middle-aged people. In fact, they might even be harmed by reform.

• Herbert M. Kritzer, To Lawyer, or Not to Lawyer, is That the Question? (August 2007). William Mitchell Legal Studies Research Paper No. 82 Available at SSRN: http://ssrn.com/abstract=1004773.

  A central aspect of much of the debate over access to justice is the cost of legal services. The presumption of most participants in the debate is that individuals of limited or modest means do not obtain legal assistance because they cannot afford the cost of that assistance. The question I consider in this paper is whether income is a major factor in the decision to obtain the assistance of a qualified legal professional. Drawing upon data from five different countries (the United States, England and Wales, Canada, Australia, and Japan) I examine the relationship between income and using a legal professional. The results are remarkably consistent across the five countries: income has relatively little relationship with the decision to use a legal professional to deal with a dispute or other legal need. The decision to use a lawyer appears to be much more a function of the nature of the dispute. Even those who could afford to retain a lawyer frequently make the decision to forego that assistance. The analysis suggests that those considering access to justice issues need to grapple with the more general issues of how those with legal needs, regardless of the resources they have available, evaluate the costs and benefits of hiring a lawyer.

• Catherine T. Harris, Ralph A. Peeples & Thomas B. Metzloff, Does Being a Repeat Player Make a Difference? The Impact of Attorney Experience and Case Picking on the Outcome of Medical Malpractice Lawsuits (July 3, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=998105.


• Christina L. Boyd, She'll Settle It: Judges, Their Sex, and the Disposition of Personal Injury Cases in Federal District Courts (July 5, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=998649.


• Paul Brace, Jeff L. Yates & Brent Boyea, Institutional Structure and Judge Ideology in Tort Litigation in State Supreme Courts (July 2, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=997907.


• David F. Greenberg & Valerie West, Sentencing Americans to Death After Furman (July, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=1000308.


• Elizabeth R. Tenney, Barbara A. Spellman & Robert MacCoun, Expanding the Scope of Cross Examination so that Jurors Can Infer Witness Calibration (September 3, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=998593.


• Michelle M. Mello & David M. Studdert, Deconstructing Negligence: The Role of Individual and System Factors in Causing Medical Injuries . Georgetown Law Journal, Forthcoming Available at SSRN: http://ssrn.com/abstract=998574.


• David A. Hyman, Bernard S. Black, Charles M. Silver & William M. Sage, Estimating The Effect of Damage Caps in Medical Malpractice Cases: Evidence from Texas (October 2007). U of Texas Law, Law and Econ Research Paper No. 106 Available at SSRN: http://ssrn.com/abstract=995649.


• Ronen Avraham & Alvaro E. Bustos, The Unexpected Effect of Tort Reform: Do Caps Delay Settlements? (June 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=997112.


• Thomas H. Cohen, Do Federal and State Courts Differ in How They Handle Civil Trial Litigation: A Portrait of Civil Trials in State and Federal District Courts (June 28, 2006). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=912691.


• Stephen J. Choi, G. Mitu Gulati & Eric A. Posner, Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather Than Appointed Judiciary (August 2007). U of Chicago Law & Economics, Olin Working Paper No. 357 Available at SSRN: http://ssrn.com/abstract=1008989


• Alyna Jehle, Monica K. Miller & Markus Kemmelmeier, The Influence of Accounts and Remorse on Mock Jurors' Judgments of Offenders (July 3, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=998122.


• Rachlinski , Jeffrey J., Johnson, Sheri Lynn, Wistrich, Andrew J. and Guthrie, Chris, "Does Unconscious Bias Affect Trial Judges?" (July 9, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=999490.


• Mary R. Rose, Christopher G. Ellison & Shari Seidman Diamond, Preferences for Juries Over Judges Across Racial and Ethnic Groups (July 2, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=998050. Asked whether they'd prefer a judge or jury to make decisions in four hypothetical situations, whites preferred judges by much higher margins than did blacks or Hispanics.
  

Photo from National Institutes of Health Medical Instrument Gallery.

The Business of District Courts

Judge D. Brock Hornby (D. Me.) wrote an interesting piece reflecting on what it is that federal district courts do: D. Brock Hornby, The Business of the U.S. District Courts, 10 Green Bag 2d 453, Westlaw (2007).

Beginning with the management approach of Peter Drucker, Judge Hornby asks what the courts' "customers" -- their outside constituents (lawyers, litigants, the public, Congress) -- value.

The obvious function, holding trials, is becoming a smaller and smaller part of a district judge's job. Civil filings are up, but civil trials are down. Criminal prosecutions remain high, but criminal trials are also down.

Dramatists enjoy trials. District judges enjoy trials. Some lawyers enjoy trials. Except as bystanders, ordinary people and businesses don't enjoy trials, because of the unacceptable risk and expense.

In the twenty-first century, the federal district courts' primary roles in civil cases have become law exposition, fact sorting, and case management -- office tasks -- not umpiring trials. In criminal cases, the judges' work remains courtroom-centered but, instead of trials, it has become law elaboration and fact finding at sentencing, supervising federal offenders after prison, and safeguarding the integrity of a criminal process that sends defendants to prison without trial. In 2007, that is the federal district courts' business. Trials as we have known them, and unfettered sentencing discretion, are not coming back.

Id. at 468.

Courtroom photo: U.S. District Court for the District of Maine.

Justice Report Slams King County Jail

Justice Report Slams King County Jail, KPLU, Nov. 21, 2007.

The Justice Department has delivered a stinging report over health conditions in the King County Jail. The report charges inmates rights are being violated, but county leaders disagree.

The KPLU story links to both the 27-page DOJ report and King County's response.

DOJ's Civil Rights Division began the investigation a year ago, under the Civil Rights of Insitutionalized Persons Act, 42 U.S.C. §© 1997-1997j.

Evaluators in Child-Custody Cases Scrutinized

I heard an interesting story on NPR this evening: Evaluators in Child-Custody Cases Scrutinized, All Things Considered, Nov. 21, 2007.

Psychologists and other mental health professionals are increasingly playing a role in child custody disputes.

Using a battery of psychological tests and expert judgment, psychologists make recommendations about which parent should have custody.

Those decisions are accepted by judges more than 90 percent of the time, but critics say the tests are flawed and the decisions are often more personal than professional.

See earlier post about local child custody evaluators.

Spokane man whose son died of methadone sues supplier's family

Spokane man whose son died of methadone sues supplier's family, Seattle Times, Nov. 21, 2007.

The plaintiff's 17-year-old son died after his friend, also 17, gave him methadone. The suit is against the friend's mother and alleges that she failed to secure a medicine cabinet, despite her daughter's past theft of medications from there.

Jury Duty Stamp

This fall, the US Postal Service released a stamp honoring jury service. USPS Stamp Release: Celebrity Jurors Help Postal Service Issue Jury Duty Stamp, press release, Sept. 12, 2007.

Supplies are limited -- only 40 million printed -- so get yours soon!

Evidence Of Injustice, FBI's Bullet Lead Analysis Used Flawed Science To Convict Hundreds Of Defendants - CBS News

Last night's "60 Minutes" opened with a story about the impact of a discredited forensic tool used by the FBI: Evidence Of Injustice, FBI's Bullet Lead Analysis Used Flawed Science To Convict Hundreds Of Defendants, 60 Minutes, Nov. 18, 2007.

For 40 years, the FBI tested bullet fragments and compared the lead content to other bullets, in the believe that bullets from the same batch would have distinctive chemical attributes (and those from separate batches would be different). But then in 1998, William Tobin retired from the crime lab. This formal chief metallurgist didn't drop metallurgy in retirement: instead he began a study of bullet lead analysis. Contrary to prior assumptions, he found that the lead chemistry could vary within a batch and match across batches.

In 2002, the FBI asked the National Academy of Sciences to do an independent study. Its National Research Council came back with a report that also questioned bullet lead analysis. A year later, the FBI told police departments and national associations of prosecutors and defense attorneys that it wouldn't run the tests anymore.

But what about the people who had been convicted based on this evidence over the prior decades? No one made any effort to contact them to say that there was a problem.

60 Minutes and the Washington Post teamed up with the Innocence Project and a team of summer associates from a Wall Street law firm to look for cases in which bullet lead testimony was a factor. They found 250 -- and believe that's just a fraction.

In one case, the defendant has always maintained his innocence. The public defender of his codefendant agrees. The codefendant told his lawyer 20 years ago that he had committed the murders alone, but the lawyer kept the confidence until after his client had died (a suicide in prison). When he went forward, a judge reported him to a disciplinary board. The defendant who asserts his innocence is still in prison.

On Friday, the FBI * * * acknowledged that it had made mistakes in handling bullet lead testimony and should have done more to alert defendants and the courts. As a result of the 60 Minutes-Washington Post investigation, the bureau said it will identify, review and release all of the pertinent cases, and notify prosecutors about cases in which faulty testimony was given.

The FBI also says it will begin monitoring the testimony of all lab experts to make sure it is based on sound scientific principles. FBI Assistant Director John Miller said, "We are going to the entire distance to see that justice is now served."

The Washington Post coverage ("Silent Injustice") is here.

Driver Who Killed Officer Sentenced

Officer's life honored as killer gets 20 years. Mary Jane Rivas had a long record of misdemeanor and felony convictions for various offenses when she plowed into Officer Joselito Barber's patrol car at 23rd and Yesler at 80 miles per hour.

Rivas, 32, had pleaded guilty to vehicular homicide and possession of cocaine, and also agreed that she should serve an exceptionally long prison term.

In imposing the sentence, Superior Court Judge Harry McCarthy added a five-year 'special enhancement' to Rivas' sentence based on her recent release from prison before the accident. Only 10 days earlier Rivas had been released from prison for possession of cocaine.

Rivas was one of three former prison inmates who, while under the state's version of probation, were involved in incidents that resulted in the deaths of three Seattle-area law enforcement officers in 2006. The incidents prompted Gov. Christine Gregoire to order the state Department of Corrections to review its conditional-release policies.

Judge Harry McCarthy is also a UW Trial Ad instructor.

Plaintiffs' Bar Symposium

In the spring of 2006, New York Law School's Center for Professional Values and Practice hosted a symposium on The Plaintiffs' Bar.

It's obviously much too late to go to the symposium, but some of the papers were published in the New York Law School Law Review (Volume 51, Issue 2 (2006-2007)) and are very interesting:

Anita Bernstein, Marc Galanter & Tanina Rostain, Introduction, 51 N.Y.L. Sch. L. Rev. 209 (2006-2007)

Mary Nell Trautner, How Social Hierarchies Within the Personal Injury Bar Affect Case Screening Decisions, 51 N.Y.L. Sch. L. Rev. 216 (2006-2007)

Sara Parikh, How the Spider Catches the Fly: Referral Networks in the Plaintiffs' Personal Injury Bar, 51 N.Y.L. Sch. L. Rev. 243 (2006-2007)

Stephen Daniels & Joanne Martin, Texas Plaintiffs' Practice in the Age of Tort Reform: Survival of the Fittest – It's Even More True Now,51 N.Y.L. Sch. L. Rev. 285 (2006-2007)

Robert S. Peck & John Vail, Blame it on the Bee Gees: The Attack on Trial Lawyers and Civil Justice. 51 N.Y.L. Sch. L. Rev. 323 (2006-2007)

Richard L. Abel, How the Plaintiffs' Bar Bars Plaintiffs, 51 N.Y.L. Sch. L. Rev. 345 (2006-2007)

I found Parikh's piece particularly interesting. Based on research she did for her doctoral dissertation, it looks at referral patterns in the Chicago plaintiffs' bar. She groups lawyers hierarchically, based on the size of their average cases. Sometimes a low-end lawyer will refer "up" to a lawyer whose practice is specialized or better able to handle a "big" case (e.g., a firm that often takes complex product liability cases instead of automobile accident cases). The referring lawyers often depend on their cut of the eventual contingent fee -- which can be substantial. But many high-end and elite lawyers cultivate referral partners who are from firms or practices that don't accept fee splitting. Higher-end lawyers refer "down" when they have cases that they don't want to take.

(Washington's rule on lawyers from different firms sharing fees is RPC 1.5(e). The Illinois rule is 1.5(f)-(h) of that state's RPC. Illinois is explicit about fees for referrals, while Washington says that the lawyers who split fees must be jointly responsible for the representation. It allows referral fees to a county or state bar referral service.)

Abel looks at many aspects of the plaintiff-attorney relationship. Plaintiffs and attorneys often have very different interests. He comments that a justification for contingency fees is the lawyer's risk that the case is lost and no money is collected -- but says that lawyers select cases carefully enough that they may not have as much risk as the argument suggests. His argument is bolstered by Parikh's work on referrals -- the referring lawyers often serve to screen out the cases that have little chance of success.

Abel also has a section on the financial services that lend plaintiffs (or plaintiffs' attorneys) money pending collection of a judgment (e.g., during an appeal). The services charge amazingly high rates, often requiring the borrower to repay twice the amount borrowed (or more!). One company boasts that it has failed to collect only 2% of its loans -- so, again, the risk of nonpayment is not the justification for the whopping interest rates.

Arbitrary Justice: The Power of the American Prosecutor

In Arbitrary Justice: The Power of the American Prosecutor, Professor Angela Davis (American University Washington College of Law) "examines the expanding power of prosecutors, from mandatory minimum sentencing laws that enhance prosecutorial control over the outcome of cases to the increasing politicization of the office. Drawing on her dozen years of experience as a public defender, Davis demonstrates how the everyday, legal exercise of prosecutorial discretion is responsible for tremendous inequities in criminal justice."

The book's website has lots of information, including chapter summaries (and a pdf of all of Chapter One) and reviews.

The book is available in the library: KF9640 .D38 2007 at Classified Stacks.

Prof. Davis organized a conference at AU last month: The American Prosecutor - Power, Discretion and Accountability. C-SPAN aired much of the conference, and you can watch clips here.

Blogging Jurors

Anne Reed (lawyer, trial consultant, and the author of the Deliberations blog) was interviewed last week on a Milwaukee radio program. The three-minute piece about jurors who blog is very interesting.

Reed says that a lot of trial attorneys are oblivious to how many of their potential jurors are online, and so they make mistakes and miss opportunities. For instance, judges routinely instruct jurors not to talk about the case or read the newspaper, but the jurors don't hear that as meaning they shouldn't blog about it or read the online sources they usually do; Reed recommends that the cautions be explicit. She also recommends that lawyers ask jurors if they have blogs, MySpace pages, Flickr pages, etc. -- and if so, how the lawyer could find them. You can learn a lot about people!

She also talked a little about a recent California appellate case that threw out a jury's verdict. A juror blogged that he had said his profession was "project manager" because that sounded better than "lawyer" and he wanted to be on the jury -- and then he boasted online that he had steered the jury too its verdict. Reed wrote about that case (People v. McNeely) here (June 19, 2007) and here (June 21, 2007).

Along the same themes as the radio interview, see Reed's posts: Jurors And Social Networking? So What?, Deliberations, Nov. 1, 2007; Jurors Who Read Blogs, Deliberations, June 27, 2007; Blogging Jurors, Part III: The Good, June 22, 2007.

FRCP - New! New! New!

This year brings changes to all of the Federal Rules of Civil Procedure. Some of the changes are stylistic, some organizational, and some substantive.

The new rules are here.

For a discussion of the changes, see Michael C. Dorf, Meet the New Federal Rules of Civil Procedure: Same as the Old Rules?, Findlaw, July 18, 2007. (Dorf teaches at Columbia.)

A little video by the authors (a law professor and a practitioner) of the Federal Civil Rules Handbook (KF8816 .A194 at Reference Area) is here. The 2007 edition came in December 2006; we're expecting the 2008 edition soon, and it promises to have analysis of all the changes.

As tears flow, driver sentenced in worker's death

As tears flow, driver sentenced in worker's death, Seattle Times, Nov. 10, 2007. The driver, who had a blood alcohol level of .20 percent, pleaded guilty to vehicular homicide in the death of a construction worker on I-405. The sentencing judge, Harry McCarthy, "described the sentence [41 months] as 'woefully inadequate,' but he noted it was the maximum allowed under state sentencing guidelines. Judge McCarthy is also a UW Trial Ad instructor.

Funding of Local Campaigns

Washington Public Campaigns hosts Clean Campaigns Forum, discussing the funding of local election campaigns. Sat., Nov. 17, 2007, 7:30 pm, Kane Hall. The UW School of Law is a cosponsor of the forum.

City Councilman McIver trial set for December

City Councilman McIver trial set for December, Seattle Times, Oct. 30, 2007. Councilmember McIver is represented by Todd Maybrown, who is also a UW Trial Ad instructor.

Suit Filed in Crane Collapse

Suit filed in Bellevue crane-collapse fatality, Seattle Times, Oct. 5, 2007. Mike Wampold (Peterson Sutra), who is also a UW Trial Ad Instructor, represents the plaintiffs.

Verdict in Russell Vehicular Homicide Case

Russell guilty on 3 homicide charges, Spokesman Review, Nov. 6, 2007:

Jury deliberations began Monday afternoon, after more than three weeks of jury selection, witness testimony and arguments. In the end, jurors sided with prosecutors, who said Russell was drunk, speeding, and on the wrong side of the road in a no-passing zone.

Several jurors were visibly emotional Tuesday, crying during juror poling by Frazier, and reportedly again when attorneys met privately with the jury afterward.

“It was obvious that it was a very difficult verdict for them,” said defense attorney Diego Vargas, who said jurors were initially split 6 to 6.

Vargas said the case will be appealed on several grounds, including problems with two blood-alcohol tests, alleged ineffective assistance by a previous attorney for Russell and issues surrounding jury selection.

KCBA Bar Bulletin Profiles Lisa Kelly

The King County Bar Bulletin has a great profile of Lisa Kelly, director of the UW's Children and Youth Advocacy Clinic and Associate Dean. Sharon Perlin, Humble Roots Imbue Life’s Work, Nov. 2007.

Ex-Inmate Sues State for Bad Medical Care

While in prison Charlie Manning became infected with flesh-eating bacteria. For two days, the prison doctor treated him for what he thought was an allergic reaction. Then Mr. Manning was flown to Harborview, where he needed significant surgery was was left battling chronic pain. He is suing the state. The doctor and the Department of Corrections contest many of the allegations. Ex-inmate sues state over disfigurement, Seattle Times, Nov. 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.

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.

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!

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.

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:

• Barbara A. Spellman, On the Supposed Expertise of Judges in Evaluating Evidence, 156 PENNumbra 1 (2006). An empirical scholar considers different reasons that people might consider impermissible evidence and muses about how a study could be constructed to sort out whether judges are different from jurors in this regard.


• Walter Sinnott-Armstrong, Which Evidence Law? A Response to Schauer, 155 PENNumbra 129 (2006).


• Jennifer L. Mnookin, Bifurcation and the Law of Evidence, 155 PENNumbra 134 (2006). Maybe the reason judges seem cavalier about applying the rules of evidence to themselves it that, once they’ve had to decide on admissibility, they know about the evidence and they understand their own cognitive limitations: they can’t un-know it. If one judge made evidence rulings and another made factual findings, this could be avoided.

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

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).

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.

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.

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.

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.

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.