The Prosecutorial Ethic: A Tribute to King County Prosecutor Norm Maleng

The University of Washington School of Law hosts a day-long conference (and CLE), The Prosecutorial Ethic: A Tribute to King County Prosecutor Norm Maleng, on Friday, May 30, 2008.

A featured speaker is Patrick J. Fitzgerald, U.S. Attorney for the Northern District of Illinois, Eastern Division (Chicago). He'll speak on high-profile cases, of which he's had a few. (Anybody hear of Scooter Libby? ) Also speaking on high-profile cases -- as well as hosting the day -- will be John McKay, former U.S. Attorney for the Western District of Washington and now a professor at Seattle U.

Here's the whole line-up:

• 9:00 a.m. Welcome and Opening Remarks by Dean Gregory Hicks and John McKay


• 9:20 a.m. Maintaining an Ethical Culture in a Prosecutor’s Office - Patrick J. Fitzgerald


• 10:30 a.m. High-Profile Prosecutions: Special Issues Created by Heavy Media Coverage - Hon. William L. Downing (moderator), Judge, King County Superior Court, Seattle; Patrick J. Fitzgerald; Anne M. Bremner, Stafford Frey Cooper, Seattle; John McKay


• 11:25 a.m. Defense Perspectives on the Prosecutorial Ethic - Jacqueline McMurtrie (moderator), Associate Professor of Law; Director, Innocence Project Northwest Clinic, University of Washington School of Law; Daniel S. Medwed, Associate Professor of Law, University of Utah, S.J. Quinney College of Law, Ellen Yaroshefsky, Clinical Professor of Law and Director, Jacob Burns Center for Ethics in the Practice of Law, Cardozo Law School (also an author of one of the chapters in Trial Stories); Daniel T. Satterberg, King County Prosecuting Attorney, Seattle


• 12:30 p.m. Lunch (on your own)


• 2:00 p.m. Comparative Perspectives on Prosecution - Maureen A. Howard (moderator) Assistant Professor of Law and Director, Trial Advocacy Program, University of Washington School of Law; Hon. Ann C. Williams, Judge, Seventh Circuit Court of Appeals, Chicago; Luz Estella Nagle, Professor of Law, Stetson University College of Law, Gulfport, Florida; Molly Townes O’Brien, Associate Professor in Law, Australian National University, Canberra, Australia


• 3:00 p.m. Who is the Client of an Elected Prosecutor? - Hugh D. Spitzer (moderator), Affiliate Professor, University of Washington School of Law and member, Foster Pepper PLLC, Seattle; Wayne C. Witkowski, Deputy, Legal Counsel Division, Office of the Corporation Counsel for the District of Columbia, Washington, D.C.; Thomas A. Carr, Seattle City Attorney, Seattle; Janice E. Ellis, Snohomish County Prosecuting Attorney, Everett
  


• 4:00 p.m. Closing Remarks - Hon. Robert S. Lasnik, Chief Judge, U.S. District Court for the Western District of Washington, Seattle; John McKay, Professor from Practice, Seattle University School of Law, Seattle

Attorneys, this is not only a great program, but a terrific bargain: 5.75 Ethics CLE credits for $50 ($25 for government attorneys).

See you there!

Seattle Police Guild bookkeeper admits embezzling

Seattle Police Guild bookkeeper admits embezzling, Seattle P-I, May 3, 2008. Judge Coughenour (W.D. Wash.) sentenced her to four months in prison and two years of supervision.

Long sentence for child's pimp

Long sentence for child's pimp, Seattle P-I, May 3, 2008:

A Seattle pimp who turned a 12-year-old girl into a prostitute received an extraordinary five-year prison term Friday.

U.S. District Judge John Coughenour cited the victim's age in sentencing Sean Hart to a term that is almost three times longer than federal guidelines.

Coughenour also sentenced a second man -- who had paid for the girl to be flown to Seattle and had turned her over to the first defendant -- to 30 months in prison, another upward departure from the guidelines.

Closing Arguments in Suit on Veterans’ Mental Care

Last summer Veterans for Common Sense and Veterans United for Truth, Inc., sued the Department of Veterans Affairs for declaratory and injunctive relief. Now the case has been tried by Judge Samuel Conti (N.D. Cal.), who is expected to rule in the next month or two. Closing Arguments in Suit on Veterans’ Mental Care, N.Y. Times, May 1, 2008.

The suit was brought under the United States Constitution (alleging that the claims process denies veterans due process, that veterans have been denied access to the courts and an opportunity to petition the government for grievances), the Medical Care Act (alleging the VA has a mandatory obligation to provide medical care to returning veterans and that it has failed in this obligation), and the Rehabilitation Act (alleging denial of services to people with handicaps). Complaint at 64-68.

The 73-page complaint provides an eloquent overview of the VA mess:

1. This lawsuit stems fromthe shameful failures of the United States Department of Veterans Affairs ("VA") and other governmental institutions to meet our nation's legal and moral obligations to honor and care for our wounded veterans who have served our country. Because of those failures, hundreds of thousands of men and women who have suffered grievous injuries fighting in the ongoing wars in Iraq and Afghanistan are being abandoned. Unless systemic and drastic measures are instituted immediately, the costs to these veterans, their families, and our nation will be incalculable, including broken families, a new generation of unemployed and homeless veterans, increases in drug abuse and alcoholism, and crushing burdens on the health care delivery system and otehr social services in our communities.

2. The system for deciding VA claims has largely collapsed. The VA claims adjudication system is currently mired in processing a backlog of over 600,000 claims, many of which have been pending for years. The time period for a claim to be fully decided can exceed ten (10) years. By comparison, the private sector health care industry processes thirty (30) billion claims annually in an average of 89.5 days per claim, including the time required to resolve disputed claims. The VA's process for pursuing a claim is not merely arbitrary and ineffective. The delays have become an insurmountable barrier preventing many veterans from obtaining health care and benefits. Many wounded veterans, particularly those with combat-caused mental illness, give up in frustration and despair or die while their claims are pending. In these cases, justice delayed is justice denied.

Complaint at 3.

The legal claims (summarized above) are discussed at ¶ ¶ 258-78. Complaint at 64-68.

I don't think I've mentioned here that Justia makes available the dockets and electronic documents from many federal cases available free (Justia Federal Civil Court Filings). This is an example of how cool this resource is. In addition to the complaint, you can see the whole docket for this case and read the government's motion to dismiss, the order granting in part and denying in part the motion to dismiss (the judge dismissed the Rehabilitation Act claim), the government's trial brief, and plaintiffs' trial brief.

Thanks: Michele Storms.

Racial Impact of Sentencing Laws

After a study found that Iowa's prisons had the highest racial disparities in the country, the legislature passed a law saying that all new sentencing laws had to have a statement about racial and ethnic impact prior to passage. See Prof. Douglas Berman's post at Sentencing Law & Policy (April 18, 2008) (linking to other materials).

DSHS sued for $22M over starving of child

Local News | DSHS sued for $22M over starving of child | Seattle Times Newspaper, April 25, 2008. The suit was brought by David P. Moody (a former Trial Ad instructor), who has made a specialty of suing the state for abuse and neglect.

The child's father and father's girlfriend have already been convicted of criminal charges (in Snohomish County Superior Court). Couple who starved boy get 8 years, harsh talk from judge, Seattle Times, March 15, 2008.

Pierce County Hit-and-Run Case

Fircrest woman charged in hit-run of female bicyclist | TheNewsTribune.com | Tacoma, WA, April 25, 2008.

Hit-and-run accident changes University Place bicyclists life | TheNewsTribune.com | Tacoma, WA, April 25, 2008.

Sad story.

Patent Judges Unconstitutional?

Prof. John F. Duffy argues:

Under 35 U.S.C. § 6, administrative patent judges of the Board of Patent Appeals and Interferences (BPAI) are appointed by the Director of the Patent and Trademark Office (PTO). That method of appointment is almost certainly unconstitutional, and the administrative patent judges serving under such appointments are likely to be viewed by the courts as having no constitutionally valid governmental authority.

Are Administrative Patent Judges Unconstitutional?, 2007
Patently-O Patent L.J. 21, http://www.patentlyo.com/lawjournal/2007/07/areadministrat.
html.

Now a party is making the argument in a petition for certiorari. Challenge to BPAI Appointments Moves to Supreme Court, Patently-O Patent Law Blog, April 16, 2008.

The National Law Journal reports on it in its upcoming issue: Marcia Coyle, Patent board's rulings in doubt: Appointment of judges questioned, Nat'l L.J., Apr. 28, 2008 (password needed to see whole article).

15 people indicted as part of ‘Green Reaper’ pot bust

PUGET SOUND AREA: 15 people indicted as part of ‘Green Reaper’ pot bust | TheNewsTribune.com | Tacoma, WA, Apr. 24, 2008.

Federal agents contend the owners of two garden-supply stores . . . [in Tukwila and Auburn] supplied equipment, advice and trash-disposal services to growers in exchange for a cut of the profits.

Murderer tried to escape, Pierce County Jail officers say

Murderer tried to escape, Pierce County Jail officers say | TheNewsTribune.com | Tacoma, WA, April 24, 2008.

Several weeks after his guilty plea but before sentencing, the defendant made a rope out of sheets and broke the window of his cell (which was too small for a person to get through in any event).

Arbitrator urges raises for Tacoma police officers | TheNewsTribune.com | Tacoma, WA

Arbitrator urges raises for Tacoma police officers, News Tribune (Tacoma), April 23, 2008. The police officers have been working without a contract since 2005; this arbitration is a step toward a new collective bargaining agreement.

The proposed raises (based on a comparison with other cities, such as Spokane and Everett) are interesting, given Tacoma's recently announced goal of cutting the crime rate.

Proposed Washington Court Rules

The Washington Supreme Court has published some proposed rules for comment. Text and comments are available here.

April 2008 - Proposed Rules Published for Comment
The following Proposed Rules Published for Comment in April 2008 have a comment period which expires on July 7, 2008.

General Rules(GR)

* GR 22 - Access to Family Law and Guardianship Court Records

Rules of Appellate Procedure(RAP)

* RAP 13.5A - Motions for Discretionary Review of Specified Final Decisions
* RAP 18.13 - Accelerated Review of Dispositions in Juvenile Offense Proceedings
* RAP 18.13A - Accelerated Review of Juvenile Dependency Disposition Orders and Orders Terminating Parental Rights

Potential juror arrested for public intoxication

Potential juror arrested for public intoxication, Austin American-Statesman, April 22, 2008. A man in Williamson County, TX, had three beers before reporting for jury duty -- potentially in a DUI case. He wandered around the courthouse to the judge's office and was arrested for public drunkenness.

They never got to voir dire for the DUI case: the defendant pleaded guilty.

DNA Developments

The Washington Post is reporting on new developments in forensic DNA.

GENES AND JUSTICE The Second Generation
Rick Weiss, DNA Tests Offer Deeper Examination Of Accused: Biological, Emotional States Scrutinized, Wash. Post, April 20, 2008, at A01

The article discusses applications in both civil and criminal cases. Should a toxic tort defendant be able to show via genetic testing that the plaintiff would have been likely to get cancer even without the pollution? Should prosecutors bring in evidence that a defendant has a propensity to violence? Should the court measure damages in part by genetically-informed estimates of life expectance?

Rick Weiss, Where Genetic Influences Leave off and State of Mind Takes Over, Wash. Post, April 20, 2008, at A17.

Dwuan D. June, You Be the Judge, Wash. Post, April 20, 2008. This sidebar relates two hypothetical situations posed in a survey of federal and state judges asking whether they'd admit the genetic information -- first, a marker for susceptibility to schizophrenia (in a criminal case where the defendant argues insanity) and second, a marker for heightened sensitivity to pain (in a civil case where the plaintiff wants higher damages).

⇒ The original study, by two professors at the University of Maryland, was published in Science: Diane E. Hoffmann and Karen H. Rothenberg, When Should Judges Admit or Compel Genetic Tests?, 310 Science 241 (2005). The six hypos in their survey are here.

GENES AND JUSTICE Mining the Database
Ellen Nakashima, From DNA of Family, a Tool to Make Arrests, Wash. Post, April 21, 2008, at A01. The subtitle -- Privacy Advocates Say the Emerging Practice Turns Relatives Into Genetic Informants -- says a lot.

Law enforcement is often using relatives' DNA to zero in on a suspect. For instance, officers investigating a serial murder suspected one man. They got a court order for his daughter's Pap smear sample, test it, and found that it matched the perpetrator's DNA (consistent with a father-daughter relationship). In a case in England, the DNA of someone arrested for drunk driving led to her brother, who was convicted of serial rapes.

Familial searching of offender databases would be of no use "if close relatives didn't commit crimes," said Frederick Bieber, a medical geneticist at Brigham and Women's Hospital in Boston.

"For reasons we don't understand, there is often a familial clustering in crime," he said. "This could relate to organized crime families, to street gangs, or it could be dysfunctional family units." He pointed to a 1999 Department of Justice study that found 46 percent of prison inmates had at least one close relative who had been incarcerated.

Behind that statistic is another troubling set of numbers, highlighting an issue at the heart of the debate over familial searching: racial justice. The national database, which is made up mostly of state contributions, has a disproportionate number of DNA profiles from non-whites.

Stanford University law professor Henry T. Greely estimates that at least 40 percent of the FBI database is African American, though they make up only 13 percent of the U.S. population. That is because in an average year, more than 40 percent of people convicted of felonies in the United States are African American, he said.

If the national database were used for familial searching, he said, and assuming that on average each person whose profile in the database has five first-degree relatives, authorities would be "putting under surveillance" roughly a third of the African American population, compared with about 7.5 percent of the European American population, he said.

Graphic: DNA model from Genes—What We Knew, Know, and Hope to Learn Fact Sheet, NIH National Institute of General Medical Science

Tacoma Hopes to Slice Crime Rate by Half

Tacoma sets an ambitious goal of cutting crime in half, News Tribune (Tacoma), April 21, 2008.

Tacoma City Manager Eric Anderson wants to reduce crime in the city by 50 percent in 14 months. Approximately 250 city employees from a cross-section of departments met for two days this week at Tacoma’s convention center to discuss how the city might reach the target, a goal that surprised some City Council members for its sheer ambition.

The same group is charged with developing a plan to clean up the city, an equally lofty aim that’s not as easily measured as the crime rate.

Big plans for the City of Destiny!

Brennan Center Urges Recusal Reforms

The Brennan Center for Justice at NYU issued a report this month recommending reforms in recusal policies around the country. James Sample, David Pozen & and Michael Young, Fair Courts: Setting Recusal Standards (2008). See a press release here.

The authors say that it's more important now because of increasingly contentious elections, with judges accepting big contributions from industries whose disputes they may preside over (whether it's insurance companies, plaintiffs' lawyers, or real estate developers).

Their ten recommendations:

1. Peremptory disqualification. Some states let parties decline a judge assignment, just as they can excuse a juror.
2. Enhanced disclosure. Judges should disclose campaign statements and campaign contributions that might be seen as affecting their impartiality.
3. Per se disqualification for campaign contributors. The ABA also recommends disqualifying a judge from judging a party that has contributed above a certain amount to the campaign.
4. Independent adjudication of disqualification motions.
5. Transparent and reasoned decision-making. (Don't just say: "Nope, I won't recuse myself." Explain it.)
6. De novo review on interlocutory appeal.
7. Mechanisms for replacing disqualified judges.
8. Expanded commentary in the canons.
9. Judicial education.
10. Recusal advisory bodies.

Thanks: Tony Mauro, A New Call for Tougher Recusal Standards, Legal Times, April 22, 2008.

Posner Criticizes Immigration Judges

The National Law Journal reports that Judge Richard Posner was sharply critical of the system for adjudicating claims of asylum in a speech sponsored by the Chicago Bar Association on Monday.

Posner . . . said administrative law judges who serve in the immigration courts are ill-trained and insufficient in number. He also said the bar that represents applicants doesn't have enough qualified lawyers, and that the Board of Immigration Appeals, which has 11 members, is too small.

* * *

Judges should be better trained, especially with respect to the international issues they may be asked to consider; more law schools should offer clinics to help improve the quality of the bar; the Board of Immigration Appeals should add members; and judges should hold a conference to exchange ideas on the state of the system, he said.

Posner blasts immigration courts as 'inadequate' and ill-trained, Nat'l L.J. web only, April 22, 2008. (Alas, you have to have a Nat'l L.J. subscription to see the whole article.)

The criticisms from federal judges are not new. For a longer article discussing the issue, see Adam Liptak, Courts Criticize Judges' Handling of Asylum Cases, N.Y. Times, Dec. 26, 2005.

And for a moving personal story of the system at work, see David Ngaruri Kenney and Philip G. Schrag, Asylum Denied: A Refugee's Struggle for Safety in America (2008) (see earlier post).

Health Courts?

One reform of the civil justice system that's been proposed is taking medical malpractice cases away from courts of general jurisdiction -- and ordinary juries -- and instead having them tried by administrative courts that would specialize in health issues. Philip G. Peters, Jr. says: not so fast. Here's the abstract of his article, Health courts?, 88 B.U. L. Rev. 227 (2008):

This Article provides the first detailed critique of the Common Good/Harvard School of Public Health proposal to replace medical malpractice jury trials with adjudication before specialized health courts. I conclude that the modest benefits likely to be produced by the current health court proposal are more than matched by the risks of bias and overreaching that these courts would also present.

Missing from the plan is the doctrinal change most likely to improve patient safety – hospital enterprise liability. Without enterprise liability, the health court proposal is unlikely to achieve its patient safety goals and, as a result, simply does not offer patients a sufficient quid pro quo to justify their loss of the right to a trial before a jury of their peers.

Common Good's page on health courts is here. It summarizes the case for health courts like this:

Why Does America Need Health Courts?

• The current medical liability system fails both patients and providers.
• Patients lose because few patients are compensated and those that do generally endure years of litigation.
• Physicians and other healthcare providers lose because they receive mixed signals on the appropriate standard of care, encouraging defensive medicine and adding to healthcare costs.
• Society loses because patient safety efforts, which require candor about mistakes and near misses, are stymied by legal fear.

Does Judicial Pay Make a Difference?

Chief Justice Roberts and many other members of the federal judiciary say that federal judges' salaries are far too low. Scott Baker wondered what difference salary makes and put together an empirical study. Scott Baker, Should We Pay Federal Circuit Judges More?, 88 B.U. L. Rev. 63 (2008).

The obvious way to do such a study would be to take a group of high-paid federal judges and compare them with a group of low-paid federal judges. But, gee, they're all on the same pay scale (more or less).

So Prof. Baker instead calculated the opportunity cost for each court of appeals judge, comparing the salary received as a judge with the salary the judge would have received had he or she been a large firm partner in the same region over the same years. (He used law firm partners as the comparison group, even if the judge was in government or academia before appointment to the bench.)

How does that work? For example, a judge who is in Minneapolis and was appointed at age 40 would have a larger opportunity cost than a judge in Minneapolis who was appointed at 50, because he or she would forgo more years of the private sector salary. A judge in New York City would have a higher opportunity cost than a judge the same age in Seattle, because big firm partners in New York make more money than big firm partners here.

So now Baker could sort judges by how much they gave up to take the judicial salary. Now, how did he measure judicial performance? He looked at number of opinions, number of dissents, length of time to produce an opinion. For influence, he looked at number of citations by other circuits. A proxy for ideological bias was the ratio of citations to out-of-circuit opinions (i.e., persuasive precedent) by judges of the same party versus the other.

After a bunch of regression analyses, Prof. Baker concluded (as stated in his abstract):

This Article finds that low judicial salaries do not affect the nature of votes in controversial cases, the speed of controversial case disposition, the frequency of citation to outside circuit authority, or the strength of opinions as measured by citation counts. This Article does find, however, that low salaries lead to slightly fewer dissents. This effect, while statistically significant, is nonetheless practically trivial. In short, this Article finds that judicial pay is largely irrelevant to the performance of the circuit courts.

Spitzer on Constitutional Division of Powers

Hugh Spitzer has a piece in today's Crosscut using constitutional fundamentals -- back to the 18th century. Hugh Spitzer, Power to the people! It's in the constitution, Crosscut, April 17, 2008.

He critiques Justice Sanders's concurrence in Washington Farm Bureau Federation v. State of Washington, 162 Wn.2d 284 (2007) (the case about whether the legislature could change the spending limits defined by Initiative 601). Legalwa.org links: majority (Fairhurst, J.), concurrence (Chambers, J.), concurrence (Alexander, C.J.), concurrence (J.M. Johnson, J.), concurrence (Sanders, J.).

(Hugh Spitzer is an affiliate professor at the UW as well as a partner at Foster Pepper.)

Asylum Denied

I just read about a new book coauthored by an asylum applicant and the law professor whose clinic unsuccessfully represented him through his original application and appeals.

The book is David Ngaruri Kenney and Philip G. Schrag, Asylum Denied: A Refugee's Struggle for Safety in America.

The publisher's information about the book is here. A blog post by Philip Schrag is here. You can watch a webcast of a panel discussion (including both authors) at Georgetown this month here. The law library doesn't have it -- yet. I'm asking for it.

Hurrah for PatternJury Instructions Online!!

Washington State's pattern jury instructions are published by Thomson West as part of Washington Practice. For years they have been available on Westlaw, but until this week there has never been a free source for them. And now there is!

Washington Pattern Jury Instructions -- both civil and criminal -- are now on the Web for free. "This website is maintained by Thomson West under contract with the Washington Supreme Court Committee on Jury Instructions."

The committee says "This free public access is being provided as part of a one-year pilot project between the WPI Committee and Thomson/West Publishing. We hope to be able to continue the free access beyond the one-year period."

This is great news!

Right now, links to the RCW take you to a Westlaw sign-on screen. I'd like to see links go to a free site -- either the legislature's or legalwa.org's .

(Students note: even if you don't need to draft jury instructions, the pattern instructions offer a nice summary of the law.)

Public Defense in Washington

The Washington State Office of Public Defense released on Friday 2007 Status Report on Public Defense in Washington State.

While state and local governments achieved significant improvements in public defense programs in 2007, there remain troubling barriers to ensuring the constitutional and statutory guarantees of counsel. In particular, excessively high caseloads, low compensation for contracted attorneys, and inadequate oversight in the administration and delivery of trial level public defense services require ongoing and focused attention, as well as enhanced state funding. These challenges cut across all types of public defense in all areas of the state, but perhaps are most acute for public defense services for children and teenagers facing criminal charges in juvenile courts.

Read the Washington Courts press release here.

Self-Representation Right Considered by SCOTUS, with Help of Empirical Study

In a concurring opinion in a case about the right of criminal defendants to represent themselves on appeal, [Justice] Breyer noted the lack of data on the subject of pro se defendants.

The court had declared 25 years before, in Faretta v. California, 422 U.S. 806 (1975), that defendants had a right to represent themselves at trial. But Breyer noted in his concurrence in Martinez v. Court of Appeals, 528 U.S. 152 (2000), that some judges "closer to the firing line" had expressed some dismay about the practical consequences of allowing defendants to act as their own lawyers.

But Breyer added that the court wasn't in a position to reconsider its opinion -- yet. "I have found no empirical research ... that might help determine whether, in general, the right to represent oneself furthers, or inhibits, the Constitution's basic guarantee of fairness."

Professor Answers Justice Breyer's Wish for Study on Pro Se, Fulton County Daily Report, April 7, 2008, law.com.

Now the Court is considering the issue again and has the benefit of Erica J. Hashimoto, Defending the Right to Self Representation: An Empirical Look at the Pro Se Felony Defendant, 85 N. Car. L. Rev. 423 (2007), available at http://ssrn.com/abstract=901610. In the samples she studied, defendants who represented themselves were acquitted about as often as those represented by attorneys. (See my earlier post.)

This Term's case is Indiana v. Edwards, No. 07-208, argued March 26. The question presented is

May a criminal defendant who, despite being legally competent, is schizophrenic, delusional, and mentally decompensatory int he course of a simple conversation, be denied the right to represent himself at trial when the trial court reasonably concludes that permitting self-representation would deny the defendant a fair trial?

Potential Jurors Serve Even When Excused from Service

Seattle Times writer Scott Barry writes about his first jury duty:

"I love working with juries," said King County Superior Court Judge Catherine Shaffer. She was presiding over the case for which I was a potential juror and talked about the process a few days after I'd been eliminated from consideration.

* * *

What determines who winds up on a jury and who doesn't?

"It depends on the case. It depends on the prosecutor and the defense," Shaffer said, including their gut reaction to a juror.

"If you sense a juror doesn't like you, doesn't trust you, if you're not establishing a rapport with a juror — that's a lot of what's going on with jury selection."

So why wasn't I picked?

"I don't know," she said. "It could be any one of a number of reasons. But if you [meaning the populace in general] weren't here and weren't a part of this, it wouldn't work."

I'm looking forward to the next time I'm summoned — even if it takes another 40 years.

There's a nice warm, fuzzy feeling that comes with being part of this process. Participatory democracy is a pretty cool thing.

Scott Barry, Jury summons a chance at civic duty, Seattle Times, April 9, 2008.

Judge Shaffer is a UW Trial Ad instructor.

Who's Got the Transcript?

I came across an interesting piece by a researcher who set out to study some high-profile cases from the 1980s and discovered that transcripts -- even in high-profile cases -- are not always easy to find. Ross E. Cheit, The Elusive Record: On Researching High-Profile 1980s Sexual Abuse Cases, 28 Just. Sys. J. 79 (2007), available on HeinOnline (UW restricted).

Washington is one of the states whose records retention policy provides for keeping all felony transcripts, but even such a policy does not guarantee ready access. In the cases the author researched, some were sealed, some were missing volumes or boxes, some were available only at great cost, and some had been destroyed despite their state's retention policy. In many cases, a transcript isn't prepared in the first place (e.g., if the defendant is acquitted or, if convicted, chooses not to appeal).

Employment Law Blogs in Washington

Interested in following employment law issues? Check out these blogs:

• Employment Advisory ("employment law observations for employers and employees in Washington State" by Rod Stephens, a solo practitioner in Sumner)


• Employment Law Blog ("a general discussion of the laws affecting the workplace from both the perspective of the small business owner and that of the individual employee," by D. Jill Pugh, a solo practitioner in Seattle) (Jill has been taking a break from blogging but says she'll be writing again soon. In the meantime, you can browse the archives.)


• Washington Labor, Employment & Employee Benefits Blog ("current events in labor, employment, and employee benefits law in Seattle, Washington, and across the United States," by Donald W. Heyrich, a solo practitioner in Seattle)

Seattle's boom attracts law firms

The forthcoming (April 14) issue of National Law Journal has an article about out-of-town firms coming to Seattle. Seattle's boom attracts law firms: "A thriving tech sector and a wave of construction in Seattle have lured about a half-dozen law firms to the Emerald City, most of them within the past few months."

(Unfortunately if you're curious about the full article, the link requires a password. UW readers, you can ask a reference librarian to pull it up. Our print copy will get here in a week or two. Westlaw will probably have the April 14 issue loaded sooner.)

The firms with new Seattle offices mentioned in the article are:

• Fenwick & West LLP
• Knobbe Martens Olson & Bear LLP
• Darby & Darby P.C.
• Gordon & Rees LLP
• Wolfe Law Group
• Nossaman Guthner Knox & Elliot LLP

Justice Keith Callow Dies

Obituaries | Justice Keith Callow, 82, worked for State Department, Seattle Times, April 8, 2008.

Justice Callow (UW School of Law, '52) served on the King County Superior Court 1969-72, the Washington Court of Appeals 1972-84, and the Washington Supreme Court 1985-91. He was defeated by Justice Charles W. Johnson in the November 1990 election.

After his career on the bench, Justice Callow advised former Soviet republics reforming their legal systems. See Callow's Job Is Exporting U.S. Law to Ex-Soviets, Seattle Times, March 31, 1997; Jean Godden, State Judge Puts Mark On Estonia, Seattle Times, June 25, 1993; Seattleite Helps Disconnect Estonia's `Telephone Justice', Seattle Times, April 11, 1993.

Justice Callow's family asks that memorial gifts in his honor be given to the UW Law School Scholarship Fund.

Haq Trial Jury Selection, Miranda Issue

Natalie Singer reports on jury selection in the Naveed Haq trial, including the defense's use of a jury consultant: Jury selection especially tricky in Jewish Federation shootings trial, Seattle Times, April 6, 2008.

"You can lose a case in jury selection," said Lisa Marchese, a former King County prosecutor. "One mistake, one wrong choice, and it can affect the entire outcome."

(Lisa Marchese is a UW Trial Ad instructor as well as a partner at Dorsey and Whitney.)

I'd missed this story about Miranda issues in the case: Natalie Singer, Police ignored Haq's 6 requests for lawyer, Seattle Times, April 1, 2008.

A King County prosecutor acknowledged Monday that much of a taped statement by accused Jewish Federation assailant Naveed Haq is inadmissible at his murder trial because Seattle police detectives repeatedly ignored Haq's requests to talk to a lawyer after the July 28, 2006, rampage.

McKenna Wants Tort Reform in Washington

Tort laws out of whack, costing the Evergreen State, says AG McKenna, LegalNewsLine, March 20, 2008. McKenna would like to see changes in joint and several liability, so that a party that has only minor responsibility could not be made to pay full damages. He'd also like to see limits on awards against the state.

'This guy must pay,' potential juror wrote

Tracy Johnson has a long article describing jury selection in the case against Naveed Haq for the Jewish Federation shootings: 'This guy must pay,' potential juror wrote, Seattle P-I, April 2, 2008:

One man thought that whoever opened fire at the Jewish Federation offices was "an anti-Semitic, Islamic coward" and was fuming because the chaotic episode stranded him in downtown Seattle for hours.

Another believed that the insanity defense was just something "put up by defense lawyers to get their client off the hook."

Both men were kindly thanked for their time Wednesday -- and then sent on their way -- as attorneys began questioning potential jurors for the trial of Naveed Haq, a 32-year-old Tri-Cities man who is charged in the deadly July 2006 shooting.

Judge Paris Kallas has ruled that the burden will be on the defense to prove Mr. Haq's insanity at the time of the shootings.

Trial Stories

Trial Stories, edited by Michael E. Tigar and Angela J. Davis, uses the stories nine trials to illustrate and reflect on trial advocacy. The authors are ten law professors who offer different perspectives on a wide range of cases illustrating different aspects of trial advocacy. The writing is non-technical and lively.

History buffs will enjoy several of the essays, including Robert A. Ferguson's on the trial of Aaron Burr. Carol S. Steiker's chapter on Clarence Darrow’s famous advocacy on behalf of Leopold and Loeb brings it up to date by exploring themes in current capital punishment debates. Barbara Bergman recounts Darrow's stirring (and successful) defense of Dr. Ossian Sweet and his ten codefendants, blacks prosecuted in 1925 after one of them fired shots into an angry white crowd that surrounded their house. Paul Bergman and Marianne Wesson tell the story of an alleged insurance fraud in Kansas in 1879, imaginatively having counsel explain their trial strategies to us.

Michael Tigar, who was appointed to represent Terry Nichols -- Timothy McVeigh’s alleged coconspirator in the Oklahoma City bombing -- writes about that case, as well as contrasting two recent cases concerning the painkiller Vioxx. Other recent trial stories are those of the O.J. Simpson murder trial (told by Angela Davis) and the Pennzoil v. Texaco case (told by Robert Lloyd). (My favorite line in the Pennzoil chapter came 32 pages into it: "the facts of the case were, as the reader is undoubtedly painfully aware, complex. For the jurors, already numbed by seven days of voir dire and opening statements, the story was hard to follow.")

The first essay in the book has local interest. It concerns the defense of a Pierce County woman who killed her husband in 1980 and asserted self defense based on his abuse of her. The case went to the Washington Supreme Court, which held that testimony on battered woman syndrome was admissible and that the trial court should have given an instruction that she had no duty to retreat in her own home. State v. Allery, 101 Wash. 2d 591, 682 P.2d 312 (1984). The author, Ellen Yaroshefsky, was Allery’s attorney and is now a professor at Cardozo.

Trial Stories is available in the law library: KF226.T76 2008 at Reference Area.

CSI Effect?

Judge Donald E. Shelton, a trial judge in Michigan, writes about a study he and two colleagues conducted in which they surveyed jurors about their expectations for scientific evidence in criminal trials in the National Institute of Justice's NIJ Journal, March 17, 2008: The 'CSI Effect': Does It Really Exist?.

See earlier post about this study.

Thanks: WisBlawg.

Public Service Speaker

Derek Douglas, director of the New York Governor's Washington office, will speak at the UW School of Law about his work in public service on Monday, March 31 at 4 p.m. This is part of the Gates Public Service Law Speakers Series and is free and open to the public. More information here.

Juveniles charged with violent crime have no right to a jury trial, state Supreme Court rules

Juveniles charged with violent crime have no right to a jury trial, state Supreme Court rules, Seattle Times, March 20, 2008. The case is State v. Chavez, No. 79265-8, Wash. Courts website majority (C. Johnson, J.), dissent (Madsen, J.) (March 20, 2008).

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.