DOJ Train Wreck, Ressam Sentencing

Former U.S. Attorney John McKay writes of the U.S. Attorney firing mess: Train Wreck at the Justice Department: An Eyewitness Account, 31 Seattle U.L. Rev. 265 (2008), available on the Seattle Weekly's website.

The Weekly discusses the article and the Ahmed Ressam case, now before the U.S. Supreme Court: Rick Anderson, Former U.S. Attorney John McKay Takes the Gloves Off on the White House, March 12, 2008.

Taken as a whole, McKay's Law Review article sounds like a closing argument for locking up most of the Bush administration. Though he once picked his words cautiously when speaking of the Bush Justice Department, McKay refers to former Attorney General Alberto Gonzales as a "liar" with "sinister" motives, and says other Justice and White House officials also perjured themselves in Senate hearings as part of a possible criminal conspiracy.

Sunshine Week - News, Resources

I just got back from a great Sunshine Week event, Government Secrecy: Censoring Your Right to Know. It was a national webcast followed by a local discussion with Michele Earl-Hubbard (co-editor of WSBA's Public Records Act Deskbook, KFW462.5.P8 .P83 2006 at Reference Area in the Gallagher Law Library) and Knute Berger (columnist for Crosscut and for Washington Law & Politics, editor-at-large of Seattle Magazine). See Mr. Berger's Crosscut column this week: It's Sunshine Week: Do you know what your government is doing?.

Local sponsors were Law Librarians of Puget Sound, the Washington State Library, and the Washington Coalition for Open Government.

I'd like to share some of what I picked up.

Lawsuits

Ms. Earl-Hubbard's firm just filed cases against five government entities for violating the public meetings law: Wash. open-government advocates sue five agencies around the state. Wash. open-government advocates sue five agencies around state, Seattle P-I, March 17, 2008.

Washington open-government advocates rang in Sunshine Week by filing lawsuits Monday accusing one regional and four local agencies of violating the state's public meetings law.

The Spokane Regional Clean Air Agency, Arlington School Board, Yelm Fire District, Port of Longview and town of Ridgefield improperly conducted public business in closed "executive sessions" or held illegal secret meetings, the complaints say.

They were filed by Allied Law Group, a Seattle and Olympia law firm that focuses on open-government cases, on behalf of the Spokane-based public interest group Center for Justice.

(By the way, you can get a nice sampling of public disclosure disputes by going to the Seattle Times or Seattle P-I website and searching for "Earl-Hubbard." She's been involved in scads!)

Resources

• Open Government Guide (Reporters Committee for Freedom of the Press) - Washington chapter.
• Open the Government (the coalition that hosted the webcast)
• congresspedia - it's a wiki! about Congress! Sponsored by the Center for Media and Democracy.

Cool resources highlighted by some of the speakers in the webcast:

• OpenCongress.org brings together bill information (text, sponsors, actions) with news and blog coverage of the bill. (The speaker said the site's software is open-source and the group would love to see others pick it up. OpenMass.org is the first state site.


• EveryBlock compiles municipal government information and lets you search by address or ZIP code. So -- if you're in New York, San Francisco, or Chicago (so far) -- you can find out about burglaries, stolen cars, building permits, restaurant health inspections, and more right in your neighborhood.


• opensecrets.org (from the Center for Responsive Politics) focuses on campaign finance and the information available in disclosure statements of members of Congress, the President, and presidential candidates. You can find information about individuals, about PACs, about industries (e.g., look at the trend in pharmaceutical companies' donations), and so on.


• FedSpending.org, "created by OMB Watch, is a free, searchable database of approximately $16.8 trillion in Federal government spending, with complete annual data from FY 2000 through FY 2006 and partial data available for FY 2007." Grants and contracts -- who gets them? where are they (by state, by congressional district)? how much?
• In December, the federal government "launched USASpending.gov a website mandated by the Federal Funding, Accountability, and Transparency Act. The website is based on the software that runs FedSpending.org. OMB Watch intends to continue to operate and upgrade FedSpending.org, adding new features and data to provide a more powerful accountability tool for citizens."

Harvard Law School launches new Public Service Initiative

Yesterday Harvard Law School announced a new program that will waive the third year of tuition for law students who commit to public service after graduation. The plan is in addition to Harvard's Loan Repayment Assistance Program. Harvard Law School launches new Public Service Initiative, HLS News, March 18, 2008.

Students interested in participating in the initiative must demonstrate a commitment to public service during their time in law school. Students will earn eligibility “credits” by engaging in public service activities such as summer internships and relevant clinical programs. Students who pledge to work for five years in a qualifying public service job will receive a grant totaling the cost of their tuition for the third year.

Starting with the class of 2011, this will mean a $40,000+ grant for eligible students. (Next year's tuition is $41,500.) Students in the classes of 2009 and 2010 will be eligible for $5,000 and $10,000 tuition grants.

Press coverage: Harvard Law, Hoping Students Will Consider Public Service, Offers Tuition Break, N.Y. Times, March 18, 2008; At Harvard Law, a Financial Incentive for Public Service, Wash. Post, March 19, 2008. See also comments at the Volokh Conspiracy.

Jury Deadlock in Hamlet Case

Last year Justice Anthony Kennedy and the Shakespeare Theatre Company cooked up a mock trial: What would have happened if Hamlet had survived the final scene of the play and been tried for the murder of Polonius? A sold-out crowd at the Kennedy Center watched the lawyers call expert witnesses and argue the case: was Hamlet insane at the time of the homicide? And then the jury retired to deliberate -- and came back, deadlocked 6-6.Is He to Be Guilty, Or Not to Be Guilty?, Wash. Post, March 17, 2007.

Photo: Edwin Booth as Hamlet, from the Library of Congress.

Justices Back Pay Raise, Oppose Cameras

Justices Back Pay Raise, Oppose Cameras, Wash. Post, March 13, 2008:

Two Supreme Court justices pressed lawmakers Thursday to raise the pay of federal judges and refrain from requiring the court to televise its sessions.

Justices Anthony Kennedy and Clarence Thomas went to Capitol Hill to discuss the court's budget request for next year, a largely formal exercise made interesting by the rare give-and-take between justices and members of Congress.

Bills are pending in the House and Senate that would give judges pay hikes of 30 percent or more.

Thomas, noting that federal trial judges earn no more than first-year lawyers at top private firms, said, "I don't think it makes much sense for people with that level of responsibility to be paid at the level of first-year associates."

Is it that judges are underpaid or that Wall Street (and other big firm) associates are overpaid?

See also Dahlia Lithwick, No Justice in These Pay Scales, Wash. Post, March 11, 2007 (discussing large signing bonuses some firms pay to Supreme Court clerks).

Justices Turn Down Microsoft Appeal

Justices Turn Down Microsoft Appeal, Wash. Post, March 17, 2008:

The Supreme Court on Monday handed Microsoft Corp. a defeat by refusing to rule on the software giant's request to halt an antitrust suit against it.

The suit was brought in 2004 by Waltham, Mass.-based Novell Inc., which said in court papers that Microsoft 'deliberately targeted and destroyed' its WordPerfect and QuattroPro programs in order to protect its Windows operating system monopoly.

King County Equity and Social Justice Initiative

Jerry Large's column (Seattle Times) this morning led me to King County's Equity and Social Justice Initiative website:

The King County Equity and Social Justice Initiative takes aim at long-standing and persistent local inequities and injustices. Government and local communities are better prepared than ever before to address these challenges.

"It is unacceptable that the color of your skin or your home address are good predictors of whether you will have a low birth weight baby, die from diabetes or your children will graduate from high school or end up in jail," says King County Executive Ron Sims.

The King County Equity and Social Justice Initiative aims to end persistent local inequities and injustices that result in, among other things, higher rates of disease among low-income populations and disproportionate rates of young black men in jail.

A pdf of the report is here. See pp. 16-17 for a discussion of adult and juvenile detention.

In Seattle, Mayor Nickels's Race and Social Justice Initiative was started several years ago.

Vehicular Homicide Acquittal in Spokane

Clifford Helm's truck crossed the median and struck a car, killing five children and injuring one adult. Not long after, the family -- Mennonites -- said that they forgave him and didn't want him to be prosecuted. The Spokane County prosecutor did prosecute him, pointing to evidence that he had used a cell phone briefly before the crash. The defense suggested that he might have fainted because of a coughing fit. On Friday, a jury acquitted him.

The jury forewoman, Rebecca Backstrom, said it was a long, emotional trial. When asked if she believed Helm fainted before the crash, she said the prosecution didn’t prove that he hadn’t.

She added: “I hope both families are at peace.”

Helm Acquitted of Vehicular Homicide, Spokesman Review, March 15, 2008.

Pretrial News in Jewish Federation Case

Naveed Haq is accused of shooting six people, killing one, in the Jewish Federation of Greater Seattle offices in July 2006. Jury selection began on Friday. And defense attorneys John Carpenter and C. Wesley Richards have filed several pretrial motions.

• The defense argues that the state should have the burden of showing that Mr. Haq was sane at the time of the shootings. Prosecutors say the opposite.
• The defense has moved to suppress evidence from his apartment and statements he made to the police.

The presiding judge is Judge Paris Kallas. Question of Sanity at Center of Trial, Seattle Times, March 15, 2008.

Hague gets 6 months probation for DUI

Hague gets 6 months probation for DUI, Seattle Times, March 14, 2008:

Sentenced to six months' probation for a driving-under-the-influence charge brought against her last summer, Metropolitan King County Councilmember Jane Hague said she intends to become "the poster child" of efforts to reduce the pain and damage done by drunken driving.

"You haven't heard the last from me," she said. "I definitely feel as a public official I should be held to a higher standard."

If Councilmember Hague fulfills the terms of her probation, it is expected that the charge will be reduced to reckless driving -- a common result in DUI cases.

Man Denied Release from Western State

Man who killed pregnant wife won't be released into community, March 14, 2008:

A man who fatally shot his wife and their unborn child in 2003 will not be released into the community despite recommendations from his doctors at Western State Hospital, a King County Superior Court judge [Michael Hayden] ruled Thursday.

Justices toss out rape conviction

Justices toss out rape conviction, Seattle Times, March 14, 2008:

A Lynnwood man's conviction for third-degree child rape has been overturned by the state Supreme Court, which ruled that prosecutors were wrong to tell jurors his refusal to discuss the case with police implied guilt.

During his 2004 trial, Justin Burke testified he believed the girl was 16 — the age of consent — when they had consensual sex at a party in 2003. But Snohomish County prosecutors implied to jurors that if Burke had truly believed that, he would have told his side of the story to police during his initial interview.

The jury later found Burke guilty of third-degree child rape and he was sentenced to 13 months in prison.

A sharply divided Supreme Court, in a 5-4 ruling issued Thursday, agreed with Burke's appeal attorneys who argued it was unfair and unconstitutional to use his silence against him.

State v. Burke, No. 78528-7, majority (Chambers, J.), dissent (Madsen, J.).

WA high court says random school drug testing unconstitutional

WA high court says random school drug testing unconstitutional, Seattle P-I, March 14, 2008:

A fractured state Supreme Court has ruled that random drug testing of student athletes is unconstitutional, finding that each has "a genuine and fundamental privacy interest in controlling his or her own bodily functions."

The court ruled unanimously Thursday in favor of parents and students in the lower Columbia River town of Cathlamet who opposed the tiny Wahkiakum School District's policy of random urine tests of middle school and high school student athletes, but some justices said random tests could be justified under different circumstances.

York v. Wahkiakum School District No. 200, No. 78946-1, Washington Courts website: majority (Sanders, J.), concurrence (Madsen, J.), concurrence (Chambers, J.), concurrence (J.M. Johnson, J.) (March 13, 2008).

The ACLU of Washington represented the plaintiff students and parents. See the ACLU's press release.

Photo: The Wahkiakum Mules basketball team, which took 4th place in the 2008 WIAA 2B Boys State Basketball Championship. These boys were not plaintiffs. The students in the suit participated in sports at Wahkiakum in 1999-2000 and 2000-2001. But I wanted to show the face of student athletics. Source: welcometowahkiakum.com.

Judge rejects father's bid to visit daughter

Judge rejects father's bid to visit daughter, Seattle P-I, March 14, 2008:

A Tacoma man acquitted last year of kidnapping his daughter cannot see the girl unless he undergoes psychological assessment, batterer's treatment and counseling, a Pierce County Superior Court judge [Kathryn Nelson] ruled Friday.

Mark Supanich took his daughter (then six, now 10 years old) from her mother and disappeared for two years, living under a false name. He says he did it for the girl's safety, alleging that the mother was abusive. A King County jury acquitted him in December.

"Spam King" Pleads Guilty

'Spam king' pleads guilty: Sentence for three charges could top 20 years, Seattle P-I, March 14, 2008.

Robert Soloway, 28, pleaded guilty to three counts: fraud, e-mail fraud -- also known as the Can-Spam Act -- and failure to file an income tax return. He had faced 40 charges.

The case is in the Western District of Washington. Mr. Soloway will be sentenced by Judge Marsha Pechman.

This is only the second conviction under the CAN-SPAM Act, Pub. L. 108-187, 117 Stat. 2699 (2003).

Tangent: The full statute name is Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act. There were rival names. Other names for bills to do something about spam were the Stop Pornography and Abusive Marketing Act (SPAM Act), Restrict and eliminate the Delivery of Unsolicited Commercial Electronic mail or Spam Act (REDUCE Spam Act), and Reduction In Distribution of Spam (RID Spam Act). Mary Whisner, What's in a Statute Name?, 97 Law Libr. J. 169, 180 n.77 (2005).

What's the relationship between the meat product and the invasive email, anyway? Hormel, the company that makes SPAM, links it to the Monty Python skit in which the crescendoing chorus of "SPAM, SPAM, SPAM" drowned out all other discourse. Id.

(The essay is about much more than the CAN-SPAM Act, in case you ever wondered why the Sherman Act is "the Sherman Act" or Megan's Law is "Megan's Law.")

Graphic: SPAM poster from the SPAM Store.

Around the U.S., High Courts Follow California’s Lead

More on the study comparing the influence of states' high courts: Adam Liptak, Around the U.S., High Courts Follow California’s Lead, N.Y. Times, March 11, 2008. (See my earlier post.)

Federal Court Caseload Stats

The Administrative Office of the United States Courts released statistics for the last fiscal year (the year ending Sept. 30, 2007) yesterday. The press release is here; it links to dozens of statistical tables here or (if you can handle a huge download) a 416-page PDF: James C. Duff, Administrative Office of the U.S. Courts, Judicial Business of the United States Courts 2007 Annual Report of the Director.

A few highlights:

• Appeals are down 12%.


• The decline in appeals is because of a big drop (21%) in appeals from the Board of Immigration Appeals.


• District court filings held about steady -- with a slight decrease (less than 1%) in civil filings and an increase (2%) in criminal filings.


• "Sex offense filings jumped 31 percent to 2,460 cases, and defendants in such cases climbed 30 percent to 2,572. The surge in filing was primarily due to filings related to sexually explicit materials."


• "Overall drug cases dropped 2 percent to 17,046 and defendants charged with drug crimes fell 2 percent to 29,885. The decline came as filings associated with non-marijuana drugs fell 5 percent. Marijuana cases increased 5 percent to 5,040."


• Bankruptcy filings were at their lowest since 1990, due to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). But there might be growth -- each quarter of the fiscal year saw more filings than the one before. Since BAPCPA, the percentage of filings that under Chapter 7 has declined and the percentage under Chapter 13 has gone up.


• Some district courts get a lot more business than others -- even weighted by the number of judges. (See map below.)

Numbers people are sometimes disparaged as mere "bean counters" -- but statistics can reveal a lot about real live people, the administration of justice, and society. I get overwhelmed when I think about, say, the human stories behind thousands of bankrupcty filings or thousands of marijuana prosecutions, but it's a good exercise to try.



Sources for graphics: Civil Cases Filed, by Type of Case" (top) -- Judicial Business of the United States Courts 2007 Annual Report of the Director, at 21; 2007 Weighted Filings by Authorized Judgeship, by District" -- id. at 29.

New Federal Rules for Judicial Misconduct, Disability

The Judicial Conference of the United States today [March 11] approved the first-ever binding, nationwide set of rules for handling conduct and disability complaints against federal judges, bringing consistency and rigor to the process.

The new rules, which take effect in 30 days, are authorized under a statute (the Judicial Conduct and Disability Act of 1980) that allows any person to file a complaint alleging that a federal judge has engaged in conduct "prejudicial to the effective and expeditious administration of the business of the courts." The statute also permits the filing of a complaint relating to a judge's inability to perform his or her duties because of "mental or physical disability."

The Conference approved these rules in response to recommendations made in September 2006 by a special committee chaired by Supreme Court Justice Stephen Breyer (the Judicial Conduct and Disability Act Study Committee). The rules cover such topics as complaint initiation and review, venue, confidentiality and publication, remedies, the conduct of investigations, and the rights and roles of participants in the process.

U.S. Courts News Release, March 11, 2008.

Before these binding rules, the national body had illustrative rules that served as models for rules in the different circuits.

9th Circuit FPD Blog

Do you want to follow criminal law developments in the Ninth Circuit? Then check out Ninth Circuit Blog, written by seven attorneys from Federal Public Defender offices in the circuit. (The ones whose cities I found were: Steven Kalar, San Francisco; David M. Porter, Sacramento; John Rhodes, Missoula; Jon M. Sands, Phoenix; Steven R. Sady, Portland. The others are Carl Gund and Paul M. Rashkind.)

Most of the posts are summaries of recent ninth circuit cases -- a great way to keep up!

A side note: many of the public defender blogs I've seen are written anonymously. That allows for a wider range of commentary than a signed blog. If you want to be able to say how much you hate the prosecutor and how stupid a judge is, then it's best to keep it anonymous because you're sure to see them again and again. This blog is signed and (therefore) has a different tone.

Map from U.S. Courts.

Fragile evidence dooms murder case

The P-I has an interesting article by Tracy Johnson looking at the uncertain evidence in a murder case that once seemed solid. Fragile evidence dooms murder case, Seattle P-I, March 9, 2008.

Prosecutors dismissed charges filed a year and a half ago because they realized their evidence wasn't as strong as it had appeared at first. DNA evidence -- saliva on a marijuana "blunt" -- showed some connection between the defendant and the victim, but the defendant could have rolled the blunt long before the murder. The gun that killed the victim had only a tenuous connection to the defendant. And the eyewitness who had come forward had a history of lying (having set up someone before) and could well have killed the victim himself.

"Scientific evidence, whether it's ballistics or DNA, seldom tells the whole story," Deputy Prosecutor Hugh Barber said. "We're not going to put a case before a jury unless we have absolute certainty."

The rare dismissal provides a look at how even the most painstakingly built murder case still can be fragile.

[The defendant's] attorneys credited the Prosecutor's Office for doing the right thing after they said they "uncovered significant problems with the state's case."

Low Income Taxpayer Clinic

Congratulations to the UW Federal Tax Clinic for receiving a renewal of its federal grant. See a list of all the law schools with such grants here.

1 out of 100 Americans are behind bars

Laura Appleman (Willamette) comments on the shocking stats of U.S. imprisonment: 1 out of 100 Americans are behind bars, The Faculty Lounge, Feb. 28, 2008.

New Data On Effectiveness Of Megan's Law Sex Offender Community Notification

An interesting post from a new law professor blog, the Faculty Lounge: Dan Filler, New Data On Effectiveness Of Megan's Law Sex Offender Community Notification, Faculty Lounge, March 7, 2008.

Sex Offender Issues Blog

I just came across the Sex Offenders Issues Blog and spent a while reading. The author ("ZMan!") is thoughtful and shares a lot of news. See his introduction:

I want to first start off with saying I am NOT pro-pedophile or pro-sex offender but pro-Constitution. I am totally against any form of abuse to any animal or human being. Anybody who commits any crime should be punished. But, once that person has done the time they were convicted under, via contract, and is off parole and/or probation, they should be able to get on with their lives without all the rules and regulations. No other criminal has to live by such draconian laws, so why sex offenders? If we must do this for sex offenders, then I think, to be fair, all criminals must be under similar rules and regulations.

If you're interested in the issue, take a look.

What Judges Look for in Law Clerks

Judge Paul Cassell (D. Utah) write about What Judges Look for in Law Clerks, Volokh Conspiracy, March 7, 2008. His post links to a couple of earlier posts with advice for would-be clerks. Worth looking at if you're thinking about clerking.

New Washington Practice Volumes

Washington Practice has a new volume (volume 30): Washington Motions in Limine by David N. Finley & Lisa McGuire. Read Kelly Aldrich's description in the Law Library news here.

And if you haven't been watching the bookshelves closely you might also want to look at volume 29, which was added last year. Washington Elements of an Action by David K. DeWolf

provides legal analysis of the required elements for various causes of action, including defenses, checklists, sample pleadings, jury instructions, and jury verdicts, providing a streamlined approach to your research efforts. Topics included in the 2007 edition include actions for abuse of process, animals, business torts, contracts, dram shop liability, employment, false imprisonment, breach of fiduciary duties, fraud, government tort liability, insurance bad faith, intentional infliction of emotional distress, libel and slander, malicious prosecution, medical malpractice, negligence, nuisance, premises liability, privacy, products liability, and wrongful death.

The publisher's description links to the table of contents and index.

Washington Practice is in the Reference Area of the library, at KFW80. It's also on Westlaw (WAPRAC database) -- but the new volume on motions in limine isn't online yet.

King County Superior Court Leader in Electronic Records

The King County Superior Court Clerk’s Office will be honored Thursday by the King County Council’s Law, Justice and Human Services Committee for its nationally recognized Electronic Case Records (ECR) program.

The Court Clerk’s Office was recognized late last year as a “2007 Innovation in American Government” winner by the Ash Institute for Democratic Governance and Innovation, which is based at Harvard University’s Kennedy School of Government. The Clerk’s Office will receive a $100,000 award for the honor, which will be used to share information with other courts and agencies who are interested in establishing electronic records systems.

Washington Courts Press Release: King County Superior Court to be honored Thursday, March 5, 2008.

"How to Give Great Speeches" and some examples for you to watch

Rich Karlgaard at Forbes.com gives pointers on How to Give Great Speeches, Dec. 10, 2007. One of his tips is to watch some great speeches on YouTube. A blogger went one step further and provided the links to those speeches: idealawg: From Forbes.com: "How to Give Great Speeches" and some examples for you to watch.

So I thought: what sort of trial examples are there? Lots, it turns out. I searched YouTube for opening statement trial. The first hit turned out to be a TV news story about the Fred Russell trial, a couple of clips include a few seconds of Russell's attorney, Francisco Duarte, who is also a Trial Ad instructor.

Another clip I watched part of was Judge Murray Sinclair - How to Be a Good Lawyer. This isn't about trial practice, but rather about law practice generally. Judge Sinclair was Manitoba's first Aboriginal judge and Canada's second.

Well, this searching might turn up some good stuff, but it's not easy to sort out. I'd like to see someone's recommendations of the best clips showing good technique.

Beauty and The Law

A Howard 3L who is Miss District of Columbia USA is interviewed in Beauty and The Law, The BLT: The Blog of Legal Times, March 7, 2008.

What sort of feedback do you get from professors or other students about being a beauty queen?
* * * One time in class I got a question * * * [and my] answer was obviously wrong, and the professor looked at me and I paused and said “And world peace.” My classmates gave me a standing ovation....You never know when a pageant technique might come in handy.

Has your study of law helped you win contests?
I do think it has, and I'm going to say that because with litigation you're dealing with being able to speak on your feet. I always say that the toughest interview I've ever had in my life is a pageant interview....There's no fear factor like being in a pageant interview because you have no idea what the next question is.

Lawyer, Client Sanctioned $29K for Client’s Profanity-Laced Deposition | ABA Journal - Law News Now

Lawyer, Client Sanctioned $29K for Client’s Profanity-Laced Deposition, ABA Journal - Law News Now, March 5, 2008. The foul-mouthed client was the CEO of a company accused of selling poor-quality mortgages to the plaintiff.

Taking "hostile witness" to new heights...

Thanks: Maureen Howard.

Transnational IP Program

I just went to a very interesting lunchtime talk about CASRIP's Transnational Intellectual Property Program held in Rome last month. It was a one-week class attended by students from the University of Washington (JD and LL.M.) and law schools in Italy, France, Germany, and the United Kingdom and taught by professors from here and Europe.

In teams composed of students from all the jurisdictions represented, students prepared and conducted a patent license negotiation and a mock trial of a patent dispute. The three mock trials had three different judges, from Italy, Germany, and the U.S. This gave the students exposure to different trial practice, since the Italian judge said she wanted the presentations to follow the procedure used in Italy. (The students before the German judge had a mock trial that was mostly U.S.-style with a little German procedure.)

The lunchtime presentation included two of the faculty members (Toshiko Takenaka and Signe Brunstad) and three UW students who led student teams (Chris Kuyper, Dario Machleidt, and David Ray). It sounds like an amazing week -- lots of substantive material, lots of hard work on the simulations, and great exposure to other legal systems and cultures -- not to mention new friendships with law students from all over.

In 2007 there was a similar program at Waseda University in Japan. Next year, they'll run the program in Strasbourg, France.

Comparing Elected and Appointed Judges

What difference does it make whether a state appoints its judges, elects them, or has some system in between? A team of researchers examined the opinions of states' highest courts from 1998-2000 and tried to come up with measurements that would say something about quality. Stephen J. Choi, G. Mitu Gulati & Eric A. Posner, Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather Than Appointed Judiciary, U of Chicago Law & Economics, Olin Working Paper No. 357 (Aug. 2007), available at SSRN: http://ssrn.com/abstract=1008989.

Here are the measures they tried:

• Quantity - number of opinions (including dissents and concurrences. Elected judges wrote more than appointed judges.
• Citations to opinions by courts from other jurisdictions. Appointed judges were cited more. (But see the recent study by Dear and Jessen, who found that our (elected) Washington Supreme Court was the second most influential in the country. Dear and Jessen looked at citations following an opinion, not just citations.)
• Independence - measured by how often a judge wrote an opinion contrary to a judge of the same or different party. Elected judges are more likely to dissent than appointed judges, and they're fine dissenting against a judge of the same party.
• I wondered what they did for states (like ours) whose judges are elected in nonpartisan elections. The answer: they did some digging.
  
• They searched Nexis for news stories about the judges.
  
• If the judges had at one point been appointed and, if so, they looked at the party of the governor who appointed them.
  
• They checked for campaign contributions, deeming a judge who contributed to partisan campaigns to be of the same party as the candidates supported.
  

Here's the abstract:

Although federal judges are appointed with life tenure, most state judges are elected for short terms. Conventional wisdom holds that appointed judges are superior to elected judges because appointed judges are less vulnerable to political pressure. However, there is little empirical evidence for this view. Using a dataset of state high court opinions, we construct objective measures for three aspects of judicial performance: effort, skill and independence. The measures permit a test of the relationship between performance and the four primary methods of state high court judge selection: partisan election, non-partisan election, merit plan, and appointment.

The empirical results do not show appointed judges performing at a higher level than their elected counterparts. Appointed judges write higher quality opinions than elected judges do, but elected judges write many more opinions, and the evidence suggests that the large quantity difference makes up for the small quality difference. In addition, elected judges do not appear less independent than appointed judges.

The results suggest that elected judges are more focused on providing service to the voters (that is, they behave like politicians), whereas appointed judges are more focused on their long-term legacy as creators of precedent (that is, they behave like professionals).

Graphic from the Wyoming Secretary of State's page with 2002 election results. It's not about electing judges specifically, but it's a cute graphic.

Arbitration "the Windermere Way"

Even though "strong public policy favors arbitration," courts won't always enforce the arbitration agreements employers have employees sign. One exception? When Windermere's system has the employer pick three arbitrators and

All potential arbitration panelists must be members of the Windermere "family" -- owners, brokers, managers, and sales associates affiliated with other Windermere franchisees.

and

Disputes, such as those concerning which agent receives a commission, must be resolved according to the "Windermere Way."

On the facts, the trial court and the Court of Appeals concluded that the process did not* "satisfy the neutrality requirements of the arbitration statute." Rodriguez v. Windermere Real Estate/Wall Street, Inc., 175 P.3d 604, 27 IER Cases 190, Findlaw (Div. 1, Jan. 28, 2008)(Applewick, C.J.).


Thanks: Rod Stephens, Employment Advisory.

* March 10: Thanks to reader Manny Jacobowitz who pointed out that I'd left out these critical words in my original post.

ABA Pres. Neukom at UW

ABA President Bill Neukom to Speak at Law School Monday, March 3, 4:00.

William H. Neukom, president of the American Bar Association, will speak at the UW law school at 4 p.m. on Monday, March 3 in Room 138 of William H. Gates Hall. Neukom will speak about his ABA presidential initiative, the World Justice Project.

The World Justice Project (WJP) is a multidisciplinary and multinational initiative to foster human well-being by advancing the rule of law. Through its multidisciplinary focus and analytical work, the WJP is filling the nexus between the rule of law and such important global goals as peace, reducing poverty and building economic prosperity, decreasing corruption, improving public health, and strengthening education systems.

Third BAR/BRI suit filed over prices

Third BAR/BRI suit filed over prices, Nat'l L.J. (web-only), Feb. 26, 2008:

Eliot Disner, the lawyer who objected to a $49 million class action settlement last year in an antitrust case he filed against the makers of the BAR/BRI bar review preparatory course, has filed a third suit to break up an alleged monopoly [Thomson West] and reimburse students for the inflated prices they paid.

Clinic for Pro Se Federal Litigants

The Federal Bar Association for the Western District of Washington sponsors a clinic to assist federal pro se litigants. The Federal Civil Rights Legal Clinic, started in March 2006, is affiliated with the King County Bar Association's Neighborhood Legal Clinics. Tracy M. Morris, Filling the Gap: How the Federal Civil Rights Legal Clinic is Making a Difference, Fed. B. Ass'n W.D. Wash. News, Fall 2007, at 5.

Judge Settle Profile

The Federal Bar Association (W.D. Wash.) has a Profile of Judge Benjamin H. Settle in its fall newsletter. Judge Settle took the bench -- Western District of Washington, in Tacoma -- July 2, 2007.

Write about Juries for Dwyer Prize

The Federal Bar Association of the Western District of Washington sponsors the William L. Dwyer Jury Project Award writing competition. Submissions are due April 4, 2008. UW law students, if you've got thoughts about the jury system, write them down -- you can even use a related paper you've already written -- and you might win $2,000.

Last year's winner was John Goldmark (class of '08) for A Better Cross-Section of the Community: Bolstering the Quality, Function, and Legitimacy of the Jury, Fed. B. Ass'n. W. Dist. Wash. News, Fall 2007, at 11.

Second place went to Arleta Young for “Public Perception of the Jury Trial: Cause and Effect.” And the committee gave honorable mention to Woo Koo (Chris) Choi (a visiting student from Korea) for “The Japanese Jury System.” (See newsletter article.)

Schierman Motions - Press Restrictions? Jail Duds?

Attorneys for Conner Schierman -- who is accused of killing four people and burning their house -- moved to have the case dismissed (because prosecutors hadn't provided discovery), to allow Mr. Schierman to way civilian clothes to pre-trial hearings, and to prohibit press photography in public courthouse spaces. Judge Gregory Canova denied the motions. Suspect in slayings of Kirkland family must wear jail uniform in court, Seattle P-I, Feb. 22, 2008; Judge won't restrict media in trial of man accused of killing Kirkland family, Seattle Times, Feb. 22, 2008.

The Seattle Times and several television stations opposed the motion to prohibit press photography. Under the Washington Courts' Bench Bar Press Statement of Principles

Law enforcement and court personnel should not prevent the photographing of defendants when they are in public places outside the courtroom. They should not encourage pictures or televising nor should they pose the defendant. The media should recognize that broadcasting, televising, recording and taking photographs in the courtroom is governed by GR 16. Artist's renditions sketched in the courtroom are not governed by GR 16 and should not be curtailed unless such actions unduly distract participants or impair the dignity of the proceedings.

King County Deputy Prosecutor Scott O'Toole is quoted in the Times article. He is also a UW Trial Ad instructor.

Photo of King County Courthouse from King County website.

O'Connor on Judicial Selection

This morning's Parade has an article by Justice Sandra Day O'Connor expressing concern about partisan pressures in states that elect judges. How to Save Our Courts, Parade, Feb. 24, 2008.

Justice O'Connor says that she is now involved with two projects:

• Sandra Day O'Connor Project on the State of the Judiciary At Georgetown Law. You can listen to recordings of symposia, e.g., The Debate Over Judicial Elections and State Court Judicial Selection, Oct. 17, 2007.
• Our Courts, a civics education project being developed by the Sandra Day O'Connor College of Law and the College of Teacher Education and Leadership at Arizona State University.

For state-by-state information about judicial selection, Parade links to the American Judicature Society.

Photo: Justice O'Connor, speaking at the FDR Library in a program on presidential and judicial powers last fall. Credit: National Archives.

Lawyer as Detective

The King County Bar Association has an interesting CLE coming up March 7: The Lawyer As Detective: Effective & Ethical Informal Discovery.

Law students, remember that KCBA offers a limited number of spots in its CLEs free to law students. So when you see a CLE you'd like to attend, contact KCBA's CLE Manager, Denise Medlock, DeniseM[at]kcba.org.

Smelter case a big mess in more ways than one

Smelter case a big mess in more ways than one, News Tribune (Tacoma), Feb. 22, 2008. An overview of the complex dispute involving the pollution of Washington's Lake Roosevelt (the lake behind Grand Coulee Dam) by a Canadian Smelter -- EPA (under two presidents), Washington State, the Colville tribe, ...

The article quotes Prof. Michael Robinson-Dorn, the director of the UW's Berman Environmental Law Clinic. For more (lots more!) about the case, see Michael J. Robinson-Dorn, The Trail Smelter: Is What's Past Prologue? EPA Blazes a New Trail for CERCLA, 14 N.Y.U. Envtl. L.J. 233 (2006) , available at SSRN and Prof. Robinson-Dorn's website providing copies of opinions, briefs, pleadings, and other material.

Photo of Lake Roosevelt from the Governor's Salmon Recovery Office. (Beautiful, isn't it? You can't tell how many heavy metals and other pollutants are in a lake just by looking at it.)

Shaming Laws Discussed on Weekday

KUOW's Weekday featured a discussion on Shame and the Law with Martha Nussbaum, Feb. 20, 2008:

A lawmaker in Washington State proposes fluorescent–yellow license plates as a punishment for drunk driving. A judge in Massachusetts forces a college kid to stand in front of a police station wearing a toga. Are these so–called 'shaming laws' making a comeback? What are the origins of these laws? Should an emotion like shaming play a major role in our legal system today? Do shaming laws work? We'll take up these question and more this hour with legal thinkers including Martha Nussbaum of the University of Chicago.

Guests:
Steve Calandrillo is Professor of Law at the University of Washington.
Dan Markel [more here] is assistant professor at Florida State University College of Law.
Martha Nussbaum is Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago. She's the author of articles and books including Hiding from Humanity: Disgust, Shame, and the Law [K346 .N87 2004 at Classified Stacks].

Service of Process in Domestic Violence Cases

Rebecca Griego was killed in her office at the UW by her ex-boyfriend, whom she had been trying unsuccessfully to serve with a protection order. Now her mother and sister are supporting a bill that would provide alternate means of service. Family of UW worker seeks new law, Seattle Times, Feb. 21, 2008.

The bill is ESB 6357. Its companion in the House is HB 2563.

State Court Could Apply Crawford Rule Retroactively

In 1996 Stephen Danforth was convicted of sexual conduct with a minor. His alleged victim, a six-year-old, did not testify, but the jury was shown a videotape interview with her. In 2004, the Supreme Court in Crawford v. Washington, 541 U.S. 36, Findlaw, ruled that testimonial statements -- even in recordings -- must be subject to cross-examination. So Danforth sought post-conviction relief in Minnesota.

The state court declined the relief because it did not think it had the option to extend the rule announced in Crawford retroactively. Today the Supreme Court held otherwise -- the state court isn't required to apply the rule retroactively, but it can do so. And so the case is reversed an remanded. Danforth v. Minnesota, No. 06-8273, Court website.

See Lyle Denniston, Analysis: ‘Creating’ or ‘declaring’ rights, SCOTUSblog, Feb. 20, 2008:

Perhaps it is not enough to gladden the hearts of true “originalists,” but a clear majority of the Supreme Court has newly acknowledged that, when it comes to constitutional rights, they always existed and did not just emerge out of modern judicial creativity. That concept, most closely identified with the jurisprudence of Justice Antonin Scalia, is a basic rationale behind Wednesday’s 7-2 decision in Danforth v. Minnesota (06-8273) . . .

Justices Make It Tougher to Sue Medical Device Makers - New York Times

Justices Make It Tougher to Sue Medical Device Makers, N.Y. Times, Feb. 20, 2008:

In a case with huge implications for the health care-technology industry, the Supreme Court ruled on Wednesday that the manufacturer of a federally approved medical device cannot be sued under state law if the device causes an injury.

The case is Riegel v. Medtronic, Inc., no. 06-179, Court website (Feb. 20, 2008).

Oregon inmate loses sex-change lawsuit

A transgendered prisoner, who is anatomically male but identifies as a woman, lost his suit seeking to have Oregon pay for sex-change surgery and transfer her to a women's prison. Oregon inmate loses sex-change lawsuit, Seattle Times, Feb. 19, 2008.

I found the following in a blog opposing mandatory minimum sentencing laws, Oregonians Against Measure 11:

A lawsuit by an Oregon inmate demanding a sex-change operation spotlights the increasing complexity and cost of providing health services to the state’s 13,500 prisoners.

Anny May Stevens, a Portland man serving an 18-year sentence for manslaughter, contends in court papers that prison officials denied him medical treatment for transsexualism.

“I didn’t ask to be born this way,” Stevens, 45, said in an interview from Snake River Correctional Institution in Ontario. “But I sure don’t want to die this way.”

Prison officials don’t dispute Stevens’ diagnosis, but they rejected his request, arguing in court papers that neither hormone treatment nor surgery is medically necessary.

Though transsexual inmates are rare, prison officials report a surging demand from inmates for a wide array of conditions, diseases and mental illnesses.

Care needs of prisoners put Oregon in a bind, Oregonians Against Measure 11, Nov. 12, 2007.

Global Justice at SU

The Center for the Study of Justice in Society at Seattle University and the Center for Global Justice at Seattle University School of Law present Globalization & Justice: Interdisciplinary Dialogues, Feb. 21-22, 2008. The program is open to the public and it's free.

Food Safety CLE

Bill Marler sent me a link about a CLE Seattle University is presenting April 11-12,Who's Minding the Store? The Current State of Food Safety and How It Can Be Improved. Looks interesting!

Want to Write about Changes Affecting Judges?

Do you want to write an article about changes that have affected judges in the last fifty years -- or that are on the horizon? Consider responding to this call for papers:

The Widener Law Journal is commemorating the fiftieth anniversary of the founding of the National Conference of State Trial Judges by publishing essays and articles discussing the changes that have affected trial judges over the last fifty years. Pieces will be published in the Spring 2009 issue of the Journal, in time for the August 2009 (July 30 - Aug. 4) American Bar Association meeting in Chicago, where the Conference and its members will be honored and the Journal’s work would be recognized.

Writings may discuss any aspect of the evolution of the trial judge, including, but not limited to, the following:

• the impact of changes in evidence relating to technological advancement;
• the increasing popularity of specialized courts such as drug and business courts;
• the role of the judiciary in formulating public policy;
• the erosion or importance of judicial independence at the trial level;
• the perennial conflict over methods of judicial selection; and
• the potential evolution of the trial courts over the next several decades

Accordingly, the Widener Law Journal welcomes pieces from all disciplines including, but not limited to, political science, history, and traditional legal analyses. Interested scholars, judges, and members of the practicing bar are asked to submit proposals to the Law Journal by September 1, 2008, and to submit completed works by December 1, 2008. Questions may be directed to Michael Dimino, faculty advisor to the Journal, at 717-541-3941 or mrdimino[at]mail.widener.edu.

Ninth Cir. Senior Judge Joseph T. Sneed Dies

Court of Appeals Mourns Loss of Senior Circuit Judge Joseph T. Sneed, Feb. 13, 2008.

Stay Denied in Pharmacy Plan B Case

Druggists can deny Plan B, judge rules:

Pharmacies and pharmacists with religious or moral objections to 'Plan B' emergency contraception may continue to refuse to dispense it until a lawsuit is settled, a federal judge ruled Friday.

The state had asked Judge Ronald Leighton of the U.S. District Court to reinstate rules requiring pharmacists and pharmacies to dispense all legal medications, pending outcome of an appeal. Last year, Leighton suspended the rules as they pertain to Plan B, the so-called 'morning-after pill,' by granting an injunction.

See also Judge again rules druggists can deny morning-after pill, Seattle P-I, Feb. 15, 2008.

A little chronology:

• June 2006. The state Board of Pharmacy announced it would issue a rule allowing pharmacists to refuse to dispense Plan B, an emergency contraceptive, when it was prescribed. Northwest Women's Law Center press release (links to proposed rules). Many people opposed the draft rules, including the governor. See Statement from Governor Gregoire on Pharmacy Board Rules, June 1, 2006, and Governor Gregoire Proposes New Rule to Washington Pharmacy Board, Aug. 29, 2006. and the Board adopted new draft rules Aug. 31.

• July 2007. The state Board of Pharmacy issues rules saying that pharmacists have to fill all lawfully prescribed drugs and devices. See WAC 246-869-010, Pharmacies' Responsibilites, and WAC 246-863-095, Pharmacist's professional responsibilities. A letter sent from the Board of Pharmacy is here.


• Nov. 2007. Judge Ronald B. Leighton grants an injunction to pharmacists who challenged the rule. The pharmacists said it forced them to violate their religious principles. Judge: Druggists may withhold "morning-after" pill, Seattle Times, Nov. 9, 2007. The opinion, Stormans Inc. v. Selecky, No. C07-5374RBL (W.D. Wash. Nov. 8, 2007), is here. ACLU release, Nov. 8.


• Dec. 2007. Intervenors -- 7 citizens represented by the Northwest Women's Law Center, the ACLU of Washington, and Planned Parenthood of Western Washington -- announced they were appealing the injunction. Press release, Dec. 10, 2007.


• Feb. 2008. Judge Leighton denies the request by the State Board of Health and the Board of Pharmacy to stay the injunction -- that is, let the regulation stand -- while the appeal to the Ninth Circuit is pending.


• Feb. 29 is deadline for filing the appeal.


• Oct. 2008 is when trial is scheduled.

Photo: Dr. R.V. Toker prepares prescription in U.S. Coal and Coke Co. clinic, Gary Mines, McDowell County, WV, 08/16/1946. National Archives, ARC Identifier: 540833.

Crime Lab Chief Resigns

State crime-lab chief to resign, Seattle Times, Feb. 15, 2008:

[Barry Logan,] The embattled director of the State Patrol crime labs has resigned, accepting responsibility for allegations of sloppy work and fraud that jeopardized more than 100 DUI breath-test results in the past year.

Guardianship: AARP/ABA Report; Washington Office

When people cannot handle their own affairs, courts often appoint guardians -- but not all guardians are competent, careful, diligent, and honorable. A report from AARP and the ABA looks at successful practices by courts.

Despite a dramatic strengthening of statutory standards in recent years, judicial monitoring practices vary substantially by jurisdiction. This AARP Public Policy Institute (PPI) Research Report by Naomi Karp (PPI) and Erica Wood (American Bar Association Commission on Law and Aging) describes methods for helping courts protect some of our society's most vulnerable people. Through site visits to exemplary courts, the authors have identified promising approaches that can be replicated by courts around the country.

Press release, Dec. 2007.

The report is Guarding the Guardians: Promising Practices for Court Monitoring
Research Report, by Naomi Karp, J.D., AARP Public Policy Institute, and Erica F. Wood, American Bar Association, December 2007.

See this post (Dec. 6, 2006) about the Seattle Times's investigation of guardianship practices in this state.

Last year the legislature passed SSB 5320, 2007 Laws of Washington chapter 364, "Creating an office of public guardianship within the administrative office of the courts."

Washington's Office of Public Guardianship is just getting rolling.

The initial implementation of public guardianship services shall be on a pilot basis in a minimum of two geographical areas that include one urban area and one rural area. The Office of Public Guardianship plans to release a Request for Proposal (RFP) January 2008. The pilot programs will be selected from submitted proposals which satisfy the RFP critieria.

The RFP is here, with an addendum here. Proposals were due Feb. 8.

Special License Plates for DUI Offenders?

SSB 6402 would require people convicted of DUIs to have a special flourescent yellow license plate on their cars for the year after they regain their driving privileges (after a suspension, say). Search Bill proposes "scarlet letter" for DUIs: bright-yellow license plates, Seattle Times, Feb. 12, 2008.

Supporters say that the special plate will help law enforcement keep an eye on these drivers in case they reoffend and will help the rest of us watch out for them on the road (again, in case they reoffend). They also say that shaming will be a deterrent to driving drunk in the first place. Asked why the spouse of an offender should be shamed when sharing the car, they reply that that will also be a deterrent: a driver wouldn't want to expose his or her family to that.

I just don't see it as a deterrent. People who have had too much to drink are not great analysts in the first place. But it's ridiculous to imagine that they'll think: "If I drive and I'm busted and I'm convicted then in a year or two my wife might be ashamed to drive our family car, so I'll call a cab." If the risks of being ticketed or getting in an accident -- totalling their cars and injuring themselves and others -- aren't enough of a deterrent, this future shaming won't be either.

Worse, the shaming could have the opposite of its intended effect. Psychological studies have found that shame actually makes people MORE likely to reoffend. Shame as a feeling overwhelms people with a sense that they are bad -- not that they did a bad thing that they can avoid in the future, but that they are bad. And that leads to more offending, not less. See my earlier post on the work of June Price Tangney and her colleagues.

Suit to Make IRS Release Records

IRS Flouts Court Orders, TRAC press release, Feb. 11, 2008:

The Internal Revenue Service is flouting three court orders requiring it to regularly provide a nationally-recognized researcher with the statistical data she needs for her studies, according to a court action brought today by the researcher.

The new motion was filed by Susan B. Long, a professor at Syracuse University's Martin J. Whitman School of Management. For more than 30 years Long has used the IRS's own statistical data to examine how this powerful agency has been enforcing the nation's tax laws.

In the February 11 filing Long requests that Judge Marsha Pechman of the U.S. District Court for the Western District of Washington enforce two of her own court orders against the agency, issued in 2006, as well as the court's 1976 consent agreement on the same issue.

Prof. Long is co-director of the Transactional Records Access Clearinghouse. She is represented by Scott Nelson (Public Citizen Litigation Group) and Eric M. Stahl (Davis Wright Tremaine). A copy of the 25-page motion is here and the 102-page supporting declaration is here.

Three firms indicted in pet-food recall case

Three firms indicted in pet-food recall case - USATODAY.com:

Two Chinese companies and a U.S. importer were indicted by a federal grand jury Wednesday for allegedly supplying contaminated ingredients that led to the USA's biggest pet-food recall and the deaths of many pets last year.

The firms were charged with 26 counts of introducing adulterated and misbranded food into the USA.

USA Today has posted copies of the indictments (from W.D. Mo.).

The article quotes Prof. Dongsheng Zang, saying that the indictments have no impact on the Chinese companies since there is no treaty giving a federal court jurisdiction over them. There might be a remedy under contract law.

When Do You Have to "Intend" to Harass?

The Washington Supreme Court reversed a conviction for telephone harassment yesterday because the jury instructions did not make it clear that the defendant must have intended to harass at the time she initiated the call. State v. Lilyblad, No.9114-7, courts website (Wash. S. Ct. Feb. 7, 2008) (Owens, J.). (If you just skim the opinion, the case name might confuse you. The Court uses the defendant's preferred surname of Paris.)

Divisions I and II of the Court of Appeals had split on interpretation of RCW 9.61.230, Telephone harassment:

(1) Every person who, with intent to harass, intimidate, torment or embarrass any other person, shall make a telephone call to such other person:
* * *
(c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household;

is guilty of a gross misdemeanor * * *.

Now, if you (1) intend to harass X, (2) call X, (3) threaten X -- in that order -- it's clear the statute applies. But what if you (1) intend to call your son (who lives with X), (2) chat with your son, (3) talk to X once she picks up the phone, and THEN (4) form the intent to threaten X and say you'll F-ing kill her?

The unanimous court now says that you have to have the intent before you call.

In this case, the defendant (Paris/Lilyblad) may be retried. There are many factual disputes and she "concedes that the State presented sufficient evidence to support a finding that she formed the intent to harass at the initiation of the telephone call."
On retrial, the jury might believe that evidence or it might believe her denial that she made any threat at all.

Photo from the American Experience.

Hit woman sentenced to 20 years in prison

Hit woman sentenced to 20 years in prison, Seattle Times, Feb. 8, 2008:

A former-prostitute-turned-hitwoman was sentenced this morning to 20 years in prison nearly three decades after she told a prosecutor that she shot and killed a South Seattle auto mechanic because she heard his death was worth $10,000.

A large part of the story has to do with the flow of information -- should the prosecutor the hitwoman went to seeking immunity have told others about her statements? When?

Abuse defendant kills self as Clark County jury deliberates

Abuse defendant kills self as Clark County jury deliberates, Seattle Times, Feb. 8, 2008. The defendant, who was accused of sexually abusing a family member, took an overdose of pills at home yesterday morning. Before the court learned of his death, the Judge John F. Nichols had declared a mistrial because the jury reported it was unable to reach a verdict.

Jur-E Bulletin

Jur-E Bulletin is a weekly email "newsletter published by the Center for Jury Studies and the National Center for State Courts' Knowledge and Information Services Division and Jury Community of Practice. It contains information on the weekly happenings in the jury world, including media coverage, prominent court decisions, and important developments on all things jury."

The articles are very short -- usually just a quick summary with a link. For example, this week's issue includes:

• A summary of an article reviewing studies try to evaluate the quality of jury verdicts by comparing them with judges' verdicts. It links to Brian H. Bornstein, Judges v. Juries, Court Review, Summer 2006, at 56. (This is newer than the date might suggest: it's the latest issue of the magazine; our library received our copy Feb. 1, 2008.)
• A news item from yesterday about a mistrial in Spokane, with a link to the Spokesman Review. Because of "a clerical error" a jury was given a criminal defendant's record of 20 prior convictions. New trial ordered after jury sees suspect's rap sheet, Spokesman Review, Feb. 7, 2008. The Spokesman Review has posted the courtroom minutes from the trial as well as Judge
  Greg Sypolt's order for a new trial.
• An item about the trial in Georgia of the man who escaped from a courthouse where he was being tried for rape, shooting a judge, a court reporter, and a sheriff's deputy. Jeffrey Toobin had an article about it in the New Yorker (Death In Georgia: The high price of trying to save an infamous killer’s life, Feb. 4, 2008). And now the judge has recused himself because of "unguarded comments" he made to Toobin.
• An item about a public defender in Kentucky who was punched by his client during a pretrial hearing.
• A new flyer from a trial court in Virginia: Overcoming the Stress of Jury Duty.

How can you get this neat little newsletter? Just go here and type in your information.

Trial Tips from Elliott Wilcox

Wouldn't it be great to get short, understandable, practical tips about trial practice sent to your email? Try out Elliott Wilcox's free Trial Tips Newsletter.

In the latest issue, he reflects on that standby question of direct examination, "What happened next."

Without guidance, your witness may be thinking, “What happened next? Well, the earth spun on its axis and rotated around the sun; my heartbeat sped up; I took a breath; a white car passed by me in the left lane; a man wearing a red jacket stepped off the sidewalk; I turned to the southeast; the traffic light turned from green to yellow; two men walked out of the grocery store; a lady ten feet to my left ducked down and screamed; I unholstered my concealed firearm; my partner opened the trunk of the patrol car... A lot of things happened 'next.' Which one did you want me to talk about? Oh, the shots that were fired? Yeah, I heard that too.”

“What happened next?” is simply too broad a question. It allows for a whole world of possible responses. If you want to help your witness tell his story more effectihttp://www.blogger.com/img/gl.link.gifvely, give him some idea of what he's supposed to say by focusing his attention toward a narrower range of responses. Instead of asking, “What happened next,” ask something like this:

• “Where did you drive to next?”
• “Who did you speak to after that?”
• “What was the next test you performed on the substance?”
• “How does the man in the white jacket react?”
• “Let's focus your attention on the operating nurse. What does she do next?”

I also like Elliott's regular "Quotations for Lawyers." This week's:

In theory there is no difference between theory and practice.
In practice, there is.
– YOGI BERRA

Elliott has some many tips bubbling out he doesn't limit himself to the newsletter. Also check out his Winning Trial Advocacy Techniques blog. What the heck, take a look all around his website. It's good!

Racial remarks prompt new trial - Spokane

Racial remarks prompt new trial, Spokesman Review, Jan. 26, 2008:

A Spokane County Superior Court judge has ordered a new trial in a medical malpractice case where a Spokane attorney of Japanese descent was repeatedly referred to as 'Mr. Kamikaze' and other racially charged names during jury deliberations.

Judge Robert D. Austin said he was surprised when he received attorney Mark D. Kamitomo's motion for a new trial in mid-December, based in part on the racial comments.

"We'd hoped we'd moved beyond this, and we apparently have not. It's upsetting," a visibly emotional Austin said during a court hearing Friday.

One juror said that the verdict against the Japanese American attorney's client being read on Pearl Harbor Day was "almost appropriate."

Mark Kamitomo's father was interned in a Canadian internment camp during World War II.

The Spokesman Review has posted the defense memorandum in opposition to a new trial and the plaintiff's reply memo (including two affidavits from jurors).


Thanks: Skylee Robinson.

Photo of Mark Kamitom from Northwest Asian Weekly.

E. Coli Lawyer Is Busier Than Ever

Seattle attorney Bill Marler represented one of the children poisoned by e. coli in a Jack in the Box meal by in 1993 and since then has made a specialty of food safety litigation. E. Coli Lawyer Is Busier Than Ever, Associated Press, Feb. 4, 2008.

"Bill was certainly at the right place at the right time entering the field of food safety litigation," says Caroline Smith DeWaal, who is in charge of food safety at the nonprofit Center for Science in the Public Interest in Washington. "I see him in kind of a private attorney general role."

In a better, safer world, he wouldn't bring so many suits (or at least not in this area):

Marler continually implores the food industry to "put me out of business" by adopting more stringent safety procedures. He sent the lettuce industry a letter in 2006 in which he called on growers to stop using irrigation water contaminated with cattle and human feces, to wash fruits and vegetables more thoroughly, and to provide field hands with bathrooms.

"These steps will help make our food supply safer and will enable us to keep our most vulnerable citizens — kids and seniors — out of harm's way," he wrote. "And, with a little luck, it will force one damn trial lawyer to find another line of work."

To keep up with Bill and food safety law, see Marlerblog.

Photo from USDA Food Safety Inspection Service.

Turow on Capital Punishment

A couple of years ago I picked up Ultimate Punishment by Scott Turow (available in the library: KF9227.C2 T87 2003 at Good Reads). This slender book -- subtitled "a lawyer's reflections on dealing with the death penalty" -- relates Turow's experience handling a couple of death penalty appeals pro bono and serving on the Illinois commission that looked at the death penalty. He said he began as a "death penalty agnostic" -- not opposed, not for -- and ended up so concerned that the report he participated in led to Gov. Ryan's decision to declare a moratorium on the punishment.

This is a thoughtful discussion of the issues. And you already know that Turow can write in a way that keeps you reading!

Death penalty decision in Carnation slayings delayed to May

Death penalty decision in Carnation slayings delayed to MaySeattle P-I, Feb. 2, 2008.

Attorneys for Joseph McEnroe and Michele Anderson, both 29, said they hope for still more time to learn more about the suspects and offer information aimed at persuading Prosecutor Dan Satterberg that death sentences are not deserved.

Anderson's attorney, Kevin Dolan, said he needed to explore her mental health issues and other aspects of her life. While saying little about her specific case, he said that in potential death-penalty cases, sometimes "you have a monstrous act, but not a monster."

The law behind the timing question is RCW 10.95.040, which requires the prosecutor to file notice of seeking the death penalty within 30 days of arraignment.

Sometimes I find it interesting to skim the comments people post using the P-I's "Soundoff" feature. For this article, many people believe that the defendants are guilty and are monsters who deserve to be executed. (The first comment begins "Hang them high!" The range of opinion expressed includes: * there should be no capital punishment; * there should be capital punishment but our leaders don't have the political will to carry out an execution; * child killers are abhorred by other prisoners so someone might "'help' the state along." One person points out:

If you law and order types, salivating at the chance to kill these two in an effort to satisfy your bloodlust for revenge, actually understood our criminal justice system, you'd want the prosecutor to take as long as it takes to exhaust all possible options, to examine every possible aspect to this case, and to compile every possible bit of data so that the convictions - if we get that far - stick and are not overthrown on a technicality by a higher court.

If you want convictions, and you want the ultimate penalty, you had better be patient for the system to work.

Cinerama's peeping Tom won't serve time

Cinerama's peeping Tom won't serve time, Seattle P-I, Feb. 1, 2008. Pursuant to a plea agreement, the 21-year-old defendant will do 30 days of community service, undergo sexual deviancy screening, and be monitored by a probation officer for a year. The most significant penalty is being required to register as a sex offender for the next ten years.

"This was a very dumb mistake," [Philip Michael] Thomas told Judge Chris Washington. "I'm deeply sorry for what I did."

But Washington pointed out before sentencing Thomas that setting up a video camera on several occasions wasn't a momentary lapse of judgment.

"It's a bit more than just dumb," he said. "You're going to have explaining to do, probably for the rest of your life."

King County Prosecutor Targets Capitol Hill Hate Crimes

In response to violence against gay men, lesbians, and transgendered people on Capitol Hill, King County Prosecutor Dan Satterberg has released a poster to increase public awareness and promote personal safety, encouraging people to avoid confronting an offender and to call 911 instead. Press release, Jan. 31, 2008; Posters Warn of Hate Crimes, Seattle P-I, Feb. 2, 2008, Hate Crimes Alert Campaign, KPLU (audio), Feb. 1, 2008.

Remembering a Local Lawyer

This obituary paints a warm portrait of a lawyer from an earlier generation: In life and law, deceased lawyer Bill Williams showed faith in people, Seattle Times, Jan. 31, 2008. This UW grad set up practice in Kenmore in 1955.

Those of you who came to this area within the last 20 years might think of Kenmore as just "more of the same" in the suburb of Shoreline-Lake Forest Park-Mountlake Terrace-Bothell. In 1955, I imagine it looked a lot different!