Batson for GLBT Challenge?

A ninth circuit appeal, argued Thursday, raises the issue of whether the peremptory challenge of a lesbian should receive Batson-type scrutiny. Potential jurors shouldn't be dismissed for being gay, court told, L.A. Times, Aug. 5, 2011.

Daniel Osazuwa, an inmate serving time for bank fraud, was convicted of assaulting a guard. His defense was that he was only trying to embrace the other man—a common way to greet someone in his home country of Nigeria;mdash;and that the guard reacted badly because the inmate is gay.

The prosecution says that its reason for challenging the juror "because she told the court she had close Nigerian friends when the panel was asked if anyone had positive or negative attitudes toward that nationality." Id. To me this stated reason seems at least as shaky as if the challenge were based on sexual orientation. Should an immigrant should be deprived of a juror who has friends of his nationality?

See also  How a Fight over Jury Selection Could Advance Gay Rights, Time, Aug. 8, 2011.

Criminal Case Dismissed for Discovery Abuse (CT)

Conn. High Court Dismisses Criminal Case for Discovery Abuse, Conn. Law Tribune (via law.com), July 20, 2011. Searching the defendant's computer for child pornography, the prosecutor found a document from defense counsel outlining strategy and key witnesses. On appeal, the Connecticut Supreme Court reversed. State v. Lenarz, No. SC 18561 (July 19, 2011), majority, dissent.

The majority opinion concludes:

This is a case in which the prosecutor clearly invaded privileged communications that contained a detailed, explicit road map of the defendant’s trial strategy. Compounding the problem, the prosecutor not only failed to inform the defendant and the trial court of the invasion immediately, but also continued to handle the case, to meet repeatedly with witnesses and investigators and ultimately to try the case to conclusion more than one year after the invasion occurred. Under these circumstances, any remedy other than the dismissal of the criminal charge of which the defendant was convicted would constitute a miscarriage of justice.

The dissent opens:

Until today, no federal or state court in this country ever has presumed a sixth amendment violation on the basis of a government’s unintentional breach of the attorney-client relationship, and no federal or state court ever has dismissed criminal charges due to such a breach. Indeed, until today, this court never has ordered the dismissal of criminal charges as a remedial
measure.

I haven't read all the pages of argument on each side, but even from this much, it seemed well worth a post.

Implicit Social Cognition

A forthcoming article explores the role of implicit social cognition in police stops. L. Song Richardson, Arrest Efficiency and the Fourth Amendment, 95 Minn. L. Rev. __ (forthcoming 2011), available at http://ssrn.com/abstract=1625755.

UW law professor Mary Fan discusses the article and offers her own reflections: Mary D. Fan, Subconscious Impact, Jotwell, July 18, 2011.

Skagit County suit claims public defenders too busy to defend

A class action suit against the cities of Mount Vernon and Burlington claims that the attorney with the contract to handle public defense of misdemeanor cases has such a high caseload that it violates defendants' right to counsel. Skagit County suit claims public defenders too busy to defend | Seattle Times Newspaper, June 20, 2011.

Public defenders suing Seattle

After 40 years, The Defender Association's contract with the City of Seattle was not renewed, going instead to Northwest Defenders Association. TDA is challenging the decision, because the other group's lower bid was adjusted (at the city's request) to be higher than TDA's. Public defenders suing Seattle | Seattle Times Newspaper, June 21, 2011.

Prosecutor's Comments Questioned

The Washington State Supreme Court overturned a conviction this month because of the white prosecutor's remarks that black witnesses had not testified against the black defendant because of a purported code that "black folk don't testify against black folk." State v. Monday, No. 82736-2 (June 29, 2011), links to opinions on court's website: majority, concurrence, dissent. See Jennifer Sullivan, Seattle murder conviction tossed out over 'racist' comments, Seattle Times, June 9, 2011.

King County Prosecutor Dan Satterberg wrote a guest editorial apologizing for the comments. 'No-snitch' argument untrue, damaging to trust in law enforcement, June 16, 2011.

This statement is untrue and offensive. We know from experience that the "no snitch" ethic is not confined to any particular race or background. We see it commonly across a wide range of cases that we handle. On the other hand, we also see witnesses of all races and backgrounds participate fully in the criminal-justice system, fulfilling an important civic duty that keeps us all safe and protects our constitutional rights.

Compounding the error, the statement has the unfortunate and ironic effect of further eroding trust in the criminal-justice system. By decrying the "no snitch" ethic in this manner, the senior deputy prosecutor created yet another reason for some to believe that our justice system is biased and racist.

Now an appeal is arguing that the same deputy prosecutor (James Konat) made inappropriate comments in his closing argument in the trial of Sebastian Burns who was convicted with Atif Rafay of killing Rafay's parents and sister. Konat said that the crime was worse than a Middle East beheading of a U.S. citizen, a comparison the brief argues was an appeal to nationalism and prejudice. Prosecutor's comments cited in call for new Sebastian Burns trial | Seattle Times Newspaper, June 20, 2011.

Gene Anderson, U.S. Atty, Prosecuted White Collar Crime, Neo-Nazis

Gene S. Anderson, who served as the U.S. Attorney for the Western District of Washington 1981-89, died on March 27, 2011. He was noted for his prosecutions of white collar crime, both in the King County Prosecutor's Office and then on the federal level. He also worked with his counterparts in other jurisdictions to convict 20 members of the Order, a neo-Nazi group. A memorial will be held Friday, June 24, at 4 pm in the U.S. Courthouse, 700 Stewart St. Gene S. Anderson: memorial to honor trailblazing prosecutor, Seattle Times, June 18, 2011.

Churches Against ‘Jim Crow’

For many black congregations, this weekend’s celebration of Juneteenth will feature a special emphasis on exposing the racial biases of our nation’s criminal justice system.

Since attorney Michelle Alexander wrote The New Jim Crow: Mass Incarceration in the Age of Colorblindness, a network of churches has joined her in the fight against a criminal justice system that targets poor minority communities and locks up a disproportionate percentage of African American men.

The Samuel DeWitt Proctor Conference, a group of thousands of black churches involved in local and global social justice issues, is coming together for Juneteenth to galvanize faith-based action against the new Jim Crow that Alexander writes about in her book.

Catherine Newhouse, Churches Against ‘Jim Crow’ | Urban Faith, June 17, 2011.

See earlier posts on The New Jim Crow. See also the Gallagher Law Library (UW Law) guide, Race in the Criminal Justice System and the website for the state Task Force on Race and the Criminal Justice System.

Juneteenth is a celebration of African American freedom and accomplishment. The Washington State legislature declared:

The legislature recognizes that on June 19, 1865, Union soldiers landed at Galveston, Texas with news that the Civil War had ended and the slaves were now free; that this was two and a half years after President Lincoln signed the Emancipation Proclamation on January 1, 1863; that the end of slavery brought on new challenges and realities in establishing a previously nonexistent status for African-Americans in the United States; that racism and continued inequality is the legacy of slavery and acknowledging it is the first step in its eradication; and that since 1980 June 19th has been celebrated as Juneteenth across the United States as a day for people to come together in the spirit of reconciliation to commemorate the contributions of African-Americans to this country's history and culture.

The legislature declares that an annual day of recognition be observed in remembrance of the day the slaves realized they were free as a reminder that individual rights and freedoms must never be denied.

The legislature declares that an annual day of recognition be observed in remembrance of the day the slaves realized they were free as a reminder that individual rights and freedoms must never be denied.

Laws of 2007 ch. 61 § 1, codified at RCW 1.16.050.

Emotional Testimony in Murder-Rape Trial

The cover story in The Stranger describes in some detail the painful and moving testimony by a Seattle woman who was raped and stabbed and whose partner was raped, stabbed, and killed. The Bravest Woman in Seattle, June 14, 2011.

The reporter, Eli Sanders, has followed this case since the crime was committed, nearly two years ago. See his earlier feature stories: While South Park Slept: A Gruesome Murder, a Beloved Bar, and a Week on the Edge, The Stranger, July 28, 2009, and The Mind of Kalebu, Sept. 22, 2009. The second article describes incidents showing the mental instability and possible dangerousness of the defendant, Isaiah Kalebu.

Conference on Forensic Inference Statistics in Seattle Next Month

8th International Conference on Forensic Inference Statistics
Date:  July 18-21, 2011.

Location: University of Washington School of Law, William H. Gates Hall, 4293 Memorial Way, Seattle, WA

The area of statistical reasoning applied to forensic science has undergone a rapid growth and development both theoretically but also in applied research, becoming a highly interdisciplinary field. This conference is the only forum where police officers, forensic scientists, jurists, scholars from related disciplines and statisticians meet to discuss the constraints, mechanisms and opportunities to provide statistical and inferential support to the decision making process either at level of the investigation or in court.

The Washington State Bar Association has approved the July 18, 2011 ICFIS program for 7 hours of general CLE credit, and the July 19-21 ICFIS conference for 18 hours of general CLE credit.

More details on the program are here.

Miranda and Kids

Marcia Coyle, In Miranda Calculus, Age Should Be a Factor, Court Says, Nat'l L.J., June 16, 2011.

Stressing that children are not "miniature adults," a divided U.S. Supreme Court on Thursday held that the police must consider a juvenile suspect's age in deciding whether the child is in custody and must be given Miranda warnings.

"It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave," wrote Justice Sonia Sotomayor for the 5-4 majority. "Seeing no reason for police officers or courts to blind themselves to that commonsense reality, we hold that a child's age properly informs the Miranda custody analysis."

J. D. B. v. North Carolina, No. 09-11121 (June 16, 2011)

For more on the vulnerability of children to coercive interrogation, see this video from the Center on Wrongful Convictions of Youth (Northwestern Law in Chicago).

Jurors Online Discussed in New Journal

The Reynolds National Center for Courts and Media and Donald W. Reynolds School of Journalism (University of Nevada Reno) launched a new journal in February: the Reynolds Courts and Media Law Journal.

The first issue, Winter 2011, included articles on venue after Enron, guidelines for unmasking in public figure libel cases, and a summary guide on courts and media for judges.

The Spring 2011 issue has four articles on "Modern Media in the Courts":

• Judge Dennis M. Sweeney, When Worlds Collide: Digital Natives Enter the Jury Box, p. 121
• Genelle I. Belmas, That's What "Friend" Is for?: Judges, Social Networks and Standards for Recusal, p. 147
• Gareth S. Lacy,* Untangling the Web: How Courts Should Respond to Juries Using the Internet for Research, p. 169
•  Stacy Blasiola, Say "Cheese!": Cameras and Bloggers in Wisconsin's Courtrooms, p. 197

*Gareth is a 2011 graduate of the University of Washington School of Law.

Miranda Anniversary

Miranda v. Arizona, 384 U. S. 436, Justia, was decided 45 years ago today (June 13, 1966). For a quick summary and the oral arguments, see (or hear) the Oyez Project.

Here are some recent books discussing Miranda and its impact:

• Lawrence S. Wrightsman & Mary L. Pitman, The Miranda Ruling: Its Past, Present and Future (2010) (publisher's page)
• Gary L. Stuart, Miranda: The Story of America's Right to Remain Silent (2004) (publisher's page)
• G. Daniel Lassiter, Interrogations, Confessions, and Entrapment (2006) (publisher's page)
• Sara Catherine Benesh, The U.S. Court of Appeals and the Law of Confessions: Perspectives on the Hierarchy of Justice (2002)

Cameras in Federal District Courts

The federal courts are beginning an experiment to have some trial court proceedings videorecorded and made public. The Western District of Washington is one of the fourteen districts in the pilot project. See Courts Selected for Federal Cameras in Court Pilot Study, U.S. Courts, June 8, 2011; Restrictive Rules Announced for Federal Courts Camera Experiment, The BLT: Blog of the Legal Times, June 8, 2011.

Update (June 10): One commentator rues the restrictions in the experiment (e.g., recording of only civil cases, and only cases where the parties consent): Sean Doherty, No Fly-on-the-Wall Effect From Cameras in U.S. District Courts, Law Technology News, June 10, 2011.

High-Level DOJ Mistakes - Recent and Historic

BLT, the Blog of the Legal Times, today discusses mistakes made at the highest levels of the Justice Department -- the recent politicization of hiring within the department and the historic injustice of defending of the removal of 120,000 Japanese Americans and Japanese residents from their homes during World War II.

•  Former AG Gonzales 'Disappointed' in His Own Conduct in DOJ Hiring. In a deposition for an employment case against DOJ, Alberto Gonzales "said for the first time that "I am disappointed that I didn't do things differently" to stop the politicization of the system of hiring career Justice Department attorneys through its honors program during his time in office."
• In DOJ Speech, Katyal Addresses Japanese Internment Cases. Neal Katyal, Acting Solicitor General, criticized the actions of the solicitor general during World War II who urged the Supreme Court to uphold Japanese American internment, failing to disclose a report from the Office of Naval Intelligence that undercut the rationale for the internment. See also yesterday's post, Katyal Speaks of SG 'Mistakes' in Japanese Internment Cases (linking to a post by Katyal on DOJ's blog).

Personal Jurisdiction Over Foreign Law Firm

BLT, The Blog of Legal Times reports Judge Rules Swedish Law Firm Can Be Named In Local Malpractice Suit, May 24, 2011 "In a 120-page opinion . . ., a Washington federal judge affirmed that a foreign-based law firm with few physical ties to Washington and limited involvement in an underlying case could still be the target of a legal malpractice suit in Washington based on its communications and visits over the years." The plaintiff is suing both a DC firm and the Swedish firm for malpractice in their handling his his patent infringement cases.

Jury Selection and the Coase Theorem

The Coase Theorem says that parties will negotiate to an efficient distribution of goods—if they have perfect information and there are no transaction costs. Dru Stevenson takes this basic premise about an idealized economic world and uses it to frame his observations of jury selection, a phase of litigation where negotiation is typically absent: the rules and traditions of voir dire make the transactions costs very high.

Dru Stevenson, Jury Selection and the Coase Theorem (March 4, 2011), available at http://ssrn.com/abstract=1777278.

Not really into law and economics? The article is still worth reading for Stevenson's comments on jury selection. For instance:

the peremptory strike system actually maximizes uncertainty about the jury, rather than neutrality or fairness, by allowing lawyers on each side to deselect jurors who seem favorable to their opponent. In other words, we merely remove those whose biases seem most evident. Given the relationship between predictability and settlement, this means the peremptory strike system has a temporary chilling effect on settlements immediately following the voir dire segment of the litigation.

Id. at 6.

If you'd like to read more about the Coase Theorem—a lot more—see Steven G. Medema & Richard O. Zerbe, Jr., The Coase Theorem (1999), in Encyclopedia of Law and Economics. This huge, scholarly encyclopedia is on the web, free! By the way, Dick Zerbe, from the UW's Evans School of Public Affairs is an adjunct professor in the law school.

If you think that it would be worthwhile to know a little more about economics and you need an introduction (or a refresher), consider Grady Klein & Yoram Bauman, The Cartoon Introduction to Economics. (This excerpt has a little about the Coase Theorem on page 182.) By the way, Yoram Bauman teaches in the UW's Program on the Environment.

Judging in Black and White

Do judges vary in their treatment of race?

That's the question investigated by three researchers (David S. Abrams, Marianne Bertrand, and Sendhil Mullainathan) who studied thousands of felony cases in Cook County, IL, initiated between 1995 and 2001. Cases were assigned to judges randomly (and the researchers did some statistical checking to confirm that).

Controlling for a wide range of variables, it turned out that race did make a difference across all judges, and, with some judges it made a very big difference. Black defendanats were more likely to be incarcerated than non-Hispanic white defendants. (This paper does not address Hispanic defendants.)

Comparable defendants had different likelihoods of incarceration depending on which judge they were assigned.

With a judge at the lenient end of the spectrum,
a black male defendant had a 45% chance of incarceration
while a white male defendant had at 35% chance of incarceration.



Facing a judge at the harsh end of the spectrum, a black male
defendant had a 68% chance of incarceration, compared with
his white counterpart's 40% chance.

There were also differences in the length of sentences imposed (blacks got longer sentences) but these differences weren't statistically significant.

The researchers did not find significant differences based on race of the judge or whether the judge had experience as a public defender.

David S. Abrams, Marianne Bertrand & Sendhil Mullainathan, Do Judges Vary in Their Treatment of Race? (Univ. of Pa. Law Sch. Inst. for Law & Econ. Research Paper No. 11-07), available at http://ssrn.com/abstract=1800840, J. Legal Studies (forthcoming). The examples about the black and white defendants are drawn from pp. 22-23.

By the way, Cook County gives a very large sample to study. "Cook County is the largest unified court system in the country, with over 2.4 million cases processed per year in both civil and criminal courts." (p. 8). For comparison, consider that all of Washington's superior courts handled a total of 752,082 cases in 2010. Caseloads of the Courts of Washington: Total Proceedings by Type of Case - 2010 Annual Report at 2.

Jury Appreciation Month

According to the Administrative Office of the U.S. Courts, May is Jury Appreciation Month.

Although many people consider jury service on a par with waiting at the DMV, jurors are essential to our judicial processes. The federal Courts website's Educational Resources includes several items about jury service, including jury service basics and two videos on jury service. One of the videos--aimed at high school students--features two judges from the U.S. District Court for the Western District of Washington, Judge Richard Jones and Chief Judge Robert Lasnik.

If you are looking for books in the Gallagher Law Library on juries and jury service, try these subjects: Jury--United States and Jury selection--United States.

The National Center for State Courts website includes many sources on Jury Selection, Trial & Deliberations, including a link to its Center for Jury Studies.

Whether you have served on a jury, intend to practice law before a jury, or care about our fundamental freedoms, take a minute to appreciate jurors and juries.

This post, by Cheryl Nyberg, originally appeared in Gallagher Blogs. Reposted with permission.

Death Penalty Mitigation Specialist; Death Penalty Stories

Jeffrey Toobin profiles Danalynn Recer, a lawyer who specializes in death penalty mitigation in Texas: The Mitigator, The New Yorker, May 9, 2011, at 32.

A greater emphasis on mitigation evidence is one factor in the decline of death sentences in recent years:

The expectations for capital defense practice have also changed over the past twenty years, and it has become less common (and less acceptable) for capital defense lawyers to devote their energies primarily or exclusively to the guilt-innocence phase of capital trials. Capital trial lawyers are more aware of the importance of developing and presenting mitigating evidence and of the need to embrace trial strategies that weave the defense mitigation theory into the guilt-innocence phase of the proceedings. The emergence of "mitigation specialists" as a distinct class of capital trial participants, who coordinate the investigation and presentation of a defendant's family, social, psychological and psychiatric history, represents a marked departure from capital litigation in the immediate post-Furman era; during that period, "generalist" criminal defense lawyers would try capital cases without sufficient attention to the distinctive need to focus their energies toward the fundamental moral question of life-or-death rather than merely to challenge the state's burden of proof on the underlying offense. The changes in expectations regarding the duties of capital trial counsel are reflected in the Court's recent decisions finding ineffective assistance of counsel . . ..

John H. Blume & Jordan M. Steiker, Introduction, in Death Penalty Stories 10 (John H. Blume & Jordan M. Steiker eds., 2009).

Death Penalty Stories  is a fascinating collection of thoughtful and research-packed essays on landmark cases in U.S. death penalty law. Chapters are:

• Deborah Denno, When Willie Francis Died: The "Disturbing" Story Behind One of the Eighth Amendment's Most Enduring Standards of Risk
• Carol S. Steiker, Furman v. Georgia: Not an End, but a Beginning 
• Hugo Adam Bedau, Gregg v. Georgia and Allied Cases: Protecting the Death Penalty from Abolition
• Sheri Lynn Johnson, Coker v. Georgia: Of Rape, Race, and Burying the Past
• John H. Blume, Gilmore v. Utah: The Persistent Problem of "Volunteers" 
• David C. Baldus et al., McCleskey v. Kemp: Denial Avoidance, and the Legitimization of Racial Discrimination in the Administration of the Death Penalty
• Jordan M. Steiker, Penry v. Lynaugh: The Hazards of Predicting the Future
• Austin Sarat, The Story of Payne v. Tennessee: Victims Triumphant 
• David Bruck, Simmons v. South Carolina and the Myth of Early Release
• David R. Dow, Bell v. Cone: The Fatal Consequences of Incomplete Failure 
• Scott W. Howe, Roper v. Simmons: Abolishing the Death Penalty for Juvenile Offenders in the Wake of International Consensus
• Joseph L. Hoffmann,  House v. Bell and the Death of Innocence

I recommend it highly.

Growing Nose, Pants on Fire, or What?

You can easily tell when Pinocchio is lying because his nose grows longer. But it's a lot harder with flesh-and-blood people.

A recent article in a psychology journal reviews the literature and explains why many standard "rules" are basically hooey. People who are lying don't fidget or avert their gaze more than others, for instance.

The authors go on to propose interviewing techniques for spotting lies. They say it's better to use an information-gathering approach than an accusatory approach. Among other things, they encourage asking temporal questions, using evidence strategically, and asking questions to increase the potential liar's cognitive load (i.e., make it harder for the liar to keep his or her story straight).

Aldert Vrij, Pär Anders Granhag & Stephen Porter, Pitfalls and Opportunities in Nonverbal and Verbal Lie Detection, Psychological Science in the Public Interest, vol. 11 no. 3, at 89-121.

Elizabeth F. Loftus has a brief editorial introducing this article: Catching Liars, Psychological Science in the Public Interest, vol. 11 no. 3, at 87-88. One interesting observation, of concern for social justice as well as spotting individual lies:

Using gaze aversion to decide that someone is lying can be dangerous for that someone’s health and happiness. And—what was news to me—some cultural or ethnic groups are more likely to show gaze aversion. For example, Blacks are particularly likely to show gaze aversion. So imagine now the problem that might arise when a White police officer interviews a Black suspect and interprets the gaze aversion as evidence of lying. This material needs to be put in the hands of interviewers to prevent this kind of cross-racial misinterpretation.

It's interesting to me that, steeped in social psychology as she is, Loftus hadn't before focused on cultural differences like this.

(I'm currently reading The Warmth of Other Suns: The Epic Story of America's Great Migration, by Isabel Wilkerson, which piles layer upon layer of incidents when African Americans were slapped down–in small ways and large–for failing to look away and defer to anyone in power, so it's not at all surprising that Blacks would "show gaze aversion." I'm also reminded the passage in David Copperfield, which I just read, where the toadying Uriah Heep explained that his family had been taught "a deal of umbleness--not much else that I know of, from morning to night. We was to be umble to this person, and umble to that; and to pull of our caps here, and to make bows there; and alwasy to knowo our place, and abase ourselves before our betters. And we had such a lot of betters!" It's hard to like Heep, but this passage explained that his damage had causes beyond himself. Heep often was lying, of course, but you couldn't have told that by his "umbleness" alone.)

Defense Attorney Profile

This morning's Seattle Times has a front-page profile of attorney Eric Lindell. Ken Armstrong, West Seattle attorney takes difficult cases -- and wins | Seattle Times Newspaper, April 17, 2011.

Lindell's career has focused on criminal defense, first with SCRAP and then in private practice. One case discussed is an appeal currently pending in the Washington Supreme Court challenging the statute that allows propensity evidence in sexual abuse cases (RCW 10.58.090). See earlier post about this case in Division I.

The article discusses several other cases in which Lindell represented criminal defendants. And there's one case where his work on behalf of a private client led to a successful prosecution. A child had drowned when in the care of her stepfather. Investigators originally ruled it an accident, but the mother thought her husband had killed the little girl. Lindell's work on a wrongful death suit (that was dropped) led to the prosecution and conviction of the stepfather -- the justice the mother wanted.

How Do People Find Lawyers?

The ABA's Standing Committee on the Delivery of Legal Services commissioned a survey to learn how people find lawyers and, when they don't use lawyers, how they find legal information: Perspectives on Finding Personal Legal Services: The Results of a Public Opinion Poll, Feb. 2011.

For summaries see How People Find Lawyers: Referrals Are Popular, Blogs Not So Much, Poll Finds, ABA J. online, March 23, 2011; How People Find Lawyers, Gallagher Blogs, March 25, 2011.

People are more likely to use the Internet than the Yellow Pages now, but the dominant way of finding lawyers is still personal referral.

Has the Judge Eaten?

A caricature of Legal Realism is that it says that outcomes depend on "what the judge had for breakfast." A new study looks not at what judges ate but when they ate.

Shai Danzigera, Jonathan Levavb & Liora Avnaim-Pessoa, Extraneous Factors in Judicial Decisions, Proceedings of the Nat'l Acad. of Sci. Early Ed. (published online before print), April 11, 2011, PDF (UW restricted), abstract (UW restricted). News stories: Facing a judge? Study says go early or after lunch, Physorg.com, April 11, 2011; Hunger Affects Court Rulings?, PRI's The World, April 11, 2011 (radio interview).

The authors examined 1,112 parole rulings by 8 Israeli judges during 50 court days over 10 months. Each day included a late-morning snack break (usually a sandwich and fruit) and a lunch break. The judges did not control the order of the cases that came before them, and they didn't know the content of each case until it was presented. Again and again, it turned out that prisoners whose cases were heard first thing in the morning or shortly after one of the breaks. The stats are striking: The authors didn't ask the judges whether having a snack (or meal) simply put them in a better mood and made them more sympathetic to parole petitions. Perhaps there's an effect due to mental fatigue in doing repeated tasks or low blood glucose levels as the court session wears on.

Graphics: (1) sandwich and fruit by mw; (2) graph, showing jump in favorable decisions after each break, from article.

Empirical Legal Studies

Empirical legal studies uses social science tools to examine law and legal institutions. These tools can include:

• surveys, e.g.:




• Attorney Satisfaction with the Federal Rules of Civil Procedure: Report to the Judicial Conference Advisory Committee on Civil Rules (Federal Judicial Center March 2010)


• Legal Needs and Civil Justice: A Survey of Americans: Major Findings from the Comprehensive Legal Needs Study (ABA 1994)


• Mary R. Rose, Christopher G. Ellison & Shari Seidman Diamond, Preferences for Juries Over Judges Across Racial and Ethnic Groups (2nd Annual Conference on Empirical Legal Studies, 2007), available at http://ssrn.com/abstract=998050.


• observation and analysis of legal events, e.g.:




• Mary R. Rose, Shari Seidman Diamond & Beth Murphy, Revisiting the Unanimity Requirement: The Behavior of the Non-Unanimous Civil Jury, Northwestern U. L. Rev. (forthcoming), available at http://ssrn.com/abstract=825125


• Rafael I. Pardo & Michelle R. Lacey, Undue Hardship in the Bankruptcy Courts: An Empirical Assessment of the Discharge of Educational Debt, 74 U. Cin. L. Rev. 405 (2005), available at http://ssrn.com/abstract=706761.


• Peter B. Oh, Veil-Piercing, 89 Texas L. Rev. 81 (2010) (dataset of 2,908 cases, 1658-2006), available at http://ssrn.com/abstract=1557972


• simulations, e.g.:


Valerie P. Hans et al., Science in the Jury Box: Jurors' Views and Understanding of Mitochondrial DNA Evidence, Cornell Legal Studies Research Paper No. 07-021, available at http://ssrn.com/abstract=998529 (mock trials)


• economic modeling, e.g.:




• John Armour et al., Shareholder Protection and Stock Market Development: An Empirical Test of the Legal Origins Hypothesis, University of Cambridge, CBR Working Paper ECGI - Law Working Paper No. 108/2008, available at http://ssrn.com/abstract=1094355

How can you learn about this diverse field? What are the leading works, what organizations work in the area, where are there standard datasets to use? A librarian at Fordham has prepared an excellent guide: Alissa Black-Dorward, Empirical Research (posted April 1, 2011). Tabs lead you to

• General Materials


• Statistical Software and Instruction


• Survey Research


• Banking


• Courts, Judges & Lawyers


• Crime and Criminal Justice


• Economics, Business & Finance


• Environment


• Evidence


• Foreign & International


• Health


• Intellectual Property


• Social Science Statistics


• State Statistics

Some of the information in the guide is tailored to Fordham, but you can find the equivalent here. For instance, our library has many of the books cited (although perhaps with different call numbers) and the UW has its own Human Subjects Division for ensuring ethical practices. ---------------------------------- This post is copied from Gallagher Blogs, on the assumption that many readers of Trial Ad Notes don't read the law library's blog (although you're welcome to, of course) but would be interested in this topic.

A Visit to the Supreme Court

Here is a guest post by Maureen Howard: We all know how brilliant our own Professor Eric Schnapper is and realize that among his many, many accomplishments are two USSC "wins" this Term, but I write to report that you haven’t lived until you’ve see him stand and argue before the Court in person. I was fortunate to enjoy this honor yesterday when he argued Borough of Duryea v. Guarnieri, dealing with the protections afforded a government employee under the Petition Clause of the First Amendment. Professor Schnapper’s argument was clear and compelling, and he masterfully fielded questions from the justices. As a teacher of advocacy, I was mightily impressed. As a colleague, I was so very proud. It was also a memorable day in the Court because prior to argument, Justice Breyer read a summary of the Kasten decision handed down [March 22], which was the second of Professor Schnapper’s "wins" of the term. Joining Professor Schnapper at respondent’s counsel table sat the lawyer who had (unsuccessfully) argued the other side of the Kasten case, an alliance I am sure was not lost on the justices. A personal memorable moment for me occurred just prior to argument when Professor Schnapper moved from the floor for my admission to the Court. Chief Justice Roberts granted the motion, welcomed me to the Court, and directed the clerk to administer the oath. Photos: Eric Schnapper from University of Washington School of Law; Supreme Court bench from United States Supreme Court.

Symposium on Prosecutorial Disclosure Duties

Last June, the Cardozo Law Review had a symposium, New Perspectives on Brady and Other Disclosure Obligations: What Really Works? (vol. 31, no. 6):

Foreword: New Perspectives on Brady and Other Disclosure Obligations: What Really Works?
Ellen Yaroshefsky 1943

New Perspectives on Brady and Other Disclosure Obligations:
Report of the Working Groups on Best Practices 1961

Voices From the Field: An Inter-Professional Approach to Managing Critical Information
Speeches of the Symposium 2037

Organizational Guidelines for the Prosecutor's Office
Rachel E. Barkow 2089

Talking About Prosecutors
Alafair S. Burke 2119

Can an Ethical Person Be an Ethical Prosecutor? A Social Cognitive Approach to Systemic Reform
Lawton P. Cummings 2139

Beyond Training Prosecutors About Their Disclosure Obligations: Can Prosecutors' Offices Learn from Their Lawyers' Mistakes?
Bruce A. Green 2161

Emotionally Charged: The Prosecutorial Charging Decision and the Innocence Revolution
Daniel S. Medwed 2187

Professional and Conviction Integrity Programs: Why We Need Them, Why They Will Work, and Models for Creating Them
Barry Scheck 2215

I learned of the symposium from a Penn State law professor who gives it this endorsement:

The 2010 Cardozo Symposium entitled “New Perspectives on Brady and Other Disclosure Obligations: What Really Works” is important reading for all lawyers – regardless of specialty or country – because we all have an interest in participating in a legal system that has a robust rule of law. Corruption or even misunderstandings about prosecutor conduct, including disclosure duties, can undermine public confidence and also the confidence of the legal profession in our legal system.
. . .
Even if you do not study criminal justice issues, you should read the Foreword in order to develop a better appreciation of issues that are critical to the rule of law and to see additional examples of how systemic, ex-ante approaches . . . can be used when designing legal systems and rules.

Laurel Terry, Academics Making a Difference: Prosecutor Disclosure Obligations in Criminal Cases, Jotwell, March 24, 2011.

Some of these issues were also discussed in the Washington Law Review two years ago:

• Judge Robert S. Lasnik and David Boerner, The Legacy of Norm Maleng, 84 Wash. L. Rev. 3 (2009) Full Article
• Hon. Patrick Fitzgerald, Thoughts on the Ethical Culture of a Prosecutor's Office, 84 Wash. L. Rev. 11 (2009)
• Daniel S. Medwed, The Prosecutor as Minister of Justice: Preaching to the Unconverted from the Post-Conviction Pulpit, 84 Wash. L. Rev. 35 (2009) Full Article

Poor Trial Ad Skills Lead to Suspension

Calif. Suspends Lawyer Who Botched Gang-Related Shooting Case, Orders Arbitration Over Disputed Fee - ABA Journal, March 18, 2011. The disciplinary proceeding included three counts (with subcounts). The list right out of a Trial Ad syllabus is from Count One:

[R]espondent failed to perform with competence in the criminal case by:

• Performing little, if any, pre-trial case development, planning, or investigation on behalf of Rios.
• Failing to adequately argue motions in limine.
• Failing to make a coherent opening statement.
• Repeatedly failing to ask admissible and relevant questions.
• Repeatedly failing to assert proper objections.
• Repeatedly failing to move to exclude improper testimony.
• Failing to advance a defense theory.
• Repeatedly failing to adequately cross-examine witnesses.
• Failing to properly handle expert witness testimony on gang-related matters.
• Repeatedly failing to properly impeach witnesses’ testimony.
• Failing to adequately prepare Rios for direct and cross examination.
• Repeatedly failing to present evidence or elicit facts on behalf of Rios.
• Failing to diligently perform the services for which he was hire

In re Harlan R. Antler, STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING (Sept. 20, 2010).

Senior judges keep 9th Circuit courthouses open

With vacant judgeships and mounting caseloads, the ninth circuit relies on its senior judges. Carol J. Williams, Senior Judges Keep 9th Circuit Courthouses Open, L.A. Times, March 14, 2011. Featured is 88-year-old Judge Betty Fletcher (UW Law class of 1956) who carries a full caseload.

Mark Twain on Ability to Judge Expressions

A bit of my leisure reading reminded me of trial ad.

After visiting "The Last Supper"—and a lot of other famous European art—Mark Twain riffed on people's ability (or inability) to judge the meaning behind expressions.

It vexes me to hear people talk so glibly of "feeling," "expression," "tone," and those other easily acquired and inexpensive technicalities of art that make such a fine show in conversations concerning pictures. There is not one man in seventy-five hundred that can tell what a pictured face is intended to express. There is not one man in five hundred that can go into a court-room and be sure that he will not mistake some harmless innocent of a juryman for the black-hearted assassin on trial. Yet such people talk of "character" and presume to interpret "expression" in pictures. There is an old story that Matthews, the actor, was once lauding the ability of the human face to express the passions and emotions hidden in the breast. He said the countenance could disclose what was passing in the hear plainer than the tongue could.

"Now," he said, "observe my face—what does it express?"

"Despair!"

"Bah, it expresses peaceful resignation! What does this express?"

"Rage!"

"Stuff! It means terror! This!"

"Imbecility!"

"Fool! It is smothered ferocity! Now this!"

"Joy!"

"Oh, perdition! Any ass can see it means insanity!"

Expression! People coolly pretend to read it who would think themselves presumptuous if they pretended to interpret the hieroglyphics on the obelisks of Luxor—yet they are fully as competent to do the one thing as the other.

Mark Twain, Innocents Abroad, ch. 19.

What do you think? Did Twain have it right? If most people are this bad at reading faces, why do we put so much faith in a juror deciding that a witness's fidgeting and stammering means lying rather than sincerity or uncertainty rather than shyness?

Graphic: picture of young Mark Twain lifted from America.gov, Mark Twain Abroad.

Cross-Examination Handbook

The other side puts a witness on the stand, and the jury the hears a selection of facts and impressions—generally the selection that the other side wants it to hear. Now you get the wonderful opportunity to cross-examine the witness. At the end of your cross, you'd like the other side's case to seem weaker and your own to seem stronger, of course, but how do you do that?

A new textbook offers guidance. Cross-Examination Handbook: Persuasion, Strategies and Techniques is by our neighbors Ronald H. Clark (Distinguished Practitioner in residence at Seattle U) and William S. Bailey (partner in Fury Bailey and part-time faculty at Seattle U and the UW) with George R. Dekle (professor at University of Florida).

A book that covers all of trial advocacy can only devote a chapter or two to cross-examination, but this one is all cross, all the time. (Bailey argues for a whole course on cross in this post.) The authors break cross-examination down into understandable pieces. The text is very accessible, even conversational in places.

How do you plan a cross? It might be obvious, but I hadn't really thought about starting with the closing argument: if I want to say ___ in closing, what do I need to get the witness to say on cross now?

The book discusses the difference between cross-examination when you are trying to get the witness to concede facts that will bolster your case and cross when you are trying to discredit the witness. And it offers tips for doing each.

You might use many techniques with one witness -- seeking factual concessions AND impeaching testimony on one point, for instance -- and this book also gives some tips for structuring your cross overall.

There are chapter previews and review lists with text boxes to help you study and retain the information. Several chapters illustrate points with two fictitious cases—a civil wrongful death case and a criminal armed robbery case—so you can see how the different cross techniques can be used with one set of facts and even one witness.

The authors also draw examples from real-life cases. Some are from history (Abraham Lincoln's legendary almanac cross-examination (more on that on the authors' blog) and Clarence Darrow's cross of William Jennings Bryan in the Scopes trial. Others are much more recent. Seattle sports fans might appreciate the examples from the cases involving the Sonics' leaving Seattle and Huskies football coach Rick Neuheisel being fired for gambling (March Madness anyone?). (Maybe these bits of Seattle sports history are still painful to some fans.)

It's been many, many years since I took Evidence. I'd find it very helpful to go over the list of common objections to cross (pp. 344-45) and the summaries of the evidence and ethics rules they stem from (pp. 346-54), as well as the advice about tactics for meeting objections (pp. 354-55).

For classroom use—or even dedicated self-education—there are lots of exercises to try, with supporting documents on a CD-ROM that's included with the book.

I'm a librarian, not a trial lawyer. For a practitioner's perspective, see this warm review on MS Litigation Review and Commentary.

The book has a website and a companion blog (Cross-Examination Blog).

The law library's copy hasn't been cataloged yet—I've had it in my living room so I could write this post—but it will be soon. It will be included in this catalog record.

"Voir Google"?

Interesting article gives specific examples of attorneys weighing jurors based on online activity -- as well as judges' reactions to the practice. Internet v. Courts: Googling for the perfect juror, Reuters Legal, Feb. 17, 2011.

One 24-year-old was excluded from a jury because of "antibusiness sentiments" in blog posts.

[The excluded juror], for his part, said in an interview that while he understands why ConAgra's lawyers viewed his online activities as evidence of bias, he doesn't believe they should have been taken so seriously. "This is the Internet," he said. "It's a different realm. It's like a playground."

Thanks: Mike Meredith.

Jury Nullification Advocate With Court Pulpit Charged - NYTimes.com

A former chemistry professor is charged with jury tampering because of his activity handing out brochures outside courthouses, telling potential jurors that they have the right to ignore the law if they disagree with it. Jury Nullification Advocate With Court Pulpit Charged, NYTimes.com, Feb. 25, 2011.

Thanks: Maureen Howard.

Using the Internet as a Tool for Cross-Examination

An article offers tips for Using the Internet as a Tool for Cross-Examination, Law Technology News (N.Y.L.J.), March 1, 2011. I've seen a number of articles about using information found in, say, Facebook to impeach a witness. This article goes further in offering two sample series of questions, e.g.,

Q: Can we agree your recovery was a good one?

A: I wouldn't say that.

Q: You've certainly participated in some challenging activities, haven't you?

A: What do you mean?

Q: Like skiing, true?

A: I tried, but was unable to ski.

* * *

Eventually, the cross-examiner sets the trap and undoes the witness with a YouTube video, perhaps like this one:



(I have no reason to believe the skier in this video has ever been a plaintiff in a personal injury case or, if so, misled the jury about the extent of his injuries. Looks pretty good, doesn't he?)

Race and the Criminal Justice System

People of color are over-represented at every stage of the criminal justice system, from arrest through sentencing and incarceration.

Paula Ditton Henzel, Disproportionality and Disparity in Adult Felony Sentencing 2003 (Wash. State Sentencing Guidelines Comm'n, [2003]).

What are the causes, effects, and possible cures for this serious disproportionality?

A state-wide Task Force on Race and the Criminal Justice System has been meeting for the last few months and will meet with the Washington Supreme Court March 2.

The Law Library has prepared a guide, linking to Washington State studies and other materials. See Race in the Criminal Justice System.

Next Thursday, the UW Minority Law Students Association presents a panel, Racial Disparity & The Criminal Justice System, 3:30-5:

Welcome by Dean Kellye Testy
Panelists:
• The Honorable Veronica Alicea-Galvan, Des Moines, Washington Municipal Court
• Professor Katherine Beckett, UW Department of Sociology and UW Law, Societies & Justice Program
• Officer Jeff Geoghagan, Seattle PD SWAT
• Professor Alexes Harris, UW Department of Sociology
• Anita Khandelwal, The Defender Association
• Mark Larson, Chief Criminal Deputy of the King County Prosecuting Attorney's Office

Moderated by Professor Mary D. Fan

Seattle University School of Law is also having speakers on this and related topics as part of its Diversity Week 2011. Thursday afternoon has a CLE, Advocacy Strategies for Protecting Civil Rights (3:30-5:30), followed by a reception (5:30-7:30):

The reception following the CLE will provide a forum to discuss how lawyers, law students and community members can address racial bias in the criminal justice system. The discussion will be facilitated by the Co-Chairs of the Task Force on Race and the Criminal Justice System, Professor Robert Chang, director of the Fred T. Korematsu Center for Law and Equality, and Judge Steven González, chair of the WA Access to Justice Board.

If you're inspired by the UW panel, you can hop up Capitol Hill for the reception at SU.

"Hot Coffee" Documentary Challenges "Tort Reform"

Oregon Attorney's Documentary 'Hot Coffee' Makes the Sundance Cut, ABA Journal, Feb. 1, 2011. Susan Saladoff explains her project here:



The movie's website includes links to resources. And this page gives links to Democracy Now! segments with film clips and interviews. One person interviewed is former Mississippi Justice Oliver Diaz whose election was opposed by the U.S. Chamber of Commerce. After he won, the local U.S. Attorney prosecuted him for campaign finance violations (he was acquitted) and then for tax violations (he was acquitted again).

The film got good press at Sundance. I'm looking forward to when the website includes a list of cities where it's playing -- and Seattle is one of them.

Documentary on Media, Race, Crime, and Punishment

Juror Number Six (2008) -- a short documentary on the Web -- explores the media, race, and the criminal justice system. Dozens of clips from television news, drama, and reality programs vividly illustrate how media shapes our perceptions (and jurors' perceptions) of crime and criminals. Crime has been going down, and yet crime is portrayed much, much more. Fear sells.

While the news scares viewers, dramas might actually comfort us. On "Law and Order," for instance (and I've happily watched hundreds of hours of it!), we see far more African American judges, prosecutors, and defense attorneys than are present in most communities. Defendants all seem to have counsel right away, and generally very sharp counsel. And so, the film suggests, we are led to believe that the system is much fairer than it actually is.

The documentary's producer lists impressive partners:

• The Berkman Center for Internet & Society at Harvard Law School
• The Center for Communications and Community at UCLA
• The Center for Justice in Capital Cases at DePaul University, College of Law
• The Center on the Media, Crime and Justice at the City University of New York’s John Jay College of Criminal Justice
• The Center on Race, Crime and Justice at CUNY John Jay College of Criminal Justice
• The Charles Hamilton Houston Institute for Race & Justice at Harvard Law School
• The Department of Journalism at San Francisco State University
• The Division of Cinema-Television at Southern Methodist University
• USC Annenberg Institute for Justice and Journalism
• The Kirwan Institute for the Study of Race and Ethnicity at Ohio State University
• The Media and Culture Program in Bentley College’s English Department

More on The New Jim Crow

Real Change has a long interview with Michelle Alexander, the author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness (see earlier post). Rosette Royale, One Nation, Under Lock and Key, Real Change, Feb. 9-15, 2011.

Angry Jurors Hope to Give Acquitted Teen Their Jury Pay

The Cleveland Plain Dealer reports that the county prosecutor has brought cases against hundreds of people with very little evidence. In less than a year, judges acquitted 364 defendants mid-trial. In one recent case, the jury not only acquitted, but some of the jurors wanted to give their jury pay to the defendant if he got his GED. Angry Jurors Hope to Give Acquitted Teen Their Jury Pay - News - ABA Journal, Feb. 10, 2011.

Thanks: Maureen Howard.

Judges Surveyed About Lawyers

How well do lawyers represent their clients? It's a hard question to answer. One approach would be to ask the judges who observe the lawyers at work, and that's just what Judge Richard A. Posner and Professor Albert H. Yoon have done: What Judges Think of the Quality of Legal Representation, 63 Stan. L. Rev. 317 (2010).

Here's the short version of their findings, from the abstract:

We find that judges perceive significant disparities in the quality of legal representation, both within and across areas of the law. In many instances, the underlying causes of these disparities can be traced to the resources of the litigants. The judges’ responses also suggest that they respond differently than juries to these disparities, and that the effect of these disparities on juries may be more pronounced in civil than in criminal cases.

But don't stop with the abstract! The more detailed findings are very interesting.

Judges' backgrounds.
I was surprised to see the number of judges with experience in criminal defense, since I heard or read somewhere that prosecutors more often became judges. But the patterns vary between trial and appellate courts and between federal and state courts.

exp	fed app	fed trial	state app	state trial
crim defense	19%	36%	29%	40%
prosecution	9%	14%	29%	44%

p. 323.

Disparities in civil cases.
The civil areas where federal trial judges saw the greatest disparity were civil rights and personal injury/malpractice. When there was a disparity, the defendant had better representation. State judges saw the greatest disparities in family law and personal injury/malpractice. Again, when there was a disparity in the tort cases, it was generally the defense that had the advantage.

Judges said that intellectual property and commercial litigation cases seldom had a great disparity between the sides' lawyers. These lawyers were rated between "good" and "excellent" -- i.e., at the top of the scale.

What about criminal cases?

Federal judges exhibited a clear divide, ranking public defenders highest, followed closely by prosecutors. Both federal appellate and district judges deemed court-appointed and privately retained counsel markedly (and statistically significantly) worse, although they disagreed which group was the worst. In contrast, state judges perceived greater parity among criminal lawyers, with both appellate and trial judges giving their highest ratings to retained counsel. Appellate judges generally gave similarly high scores to prosecutors and public defenders, whereas trial judges thought privately retained counsel distinctly better than other criminal lawyers.

pp. 325-26 (footnotes omitted). Judges across all categories said that they observed significant disparities in quality between prosecution and defense 21-40% of the time.


When there is a disparity in representation, many judges conduct additional research. p. 335. (But they aren't happy about this burden -- see p. 346.) The judges thought that many jurors favor litigants with better lawyers, but they thought they themselves could rise above the disparate representation. p. 326. But in many situations, they thought that the representation did not make much difference to the outcomes of the cases. p. 327. The authors discuss this perception -- and related studies about the impact of counsel in criminal cases -- at pp. 341-43.

Change law school?
The survey asked judges what could be done to improve the quality of representation.

About law schools, judges were in general agreement. The most common response in each judge group was that law schools should provide more coursework oriented to instilling practice-oriented skills. The second most popular response was expansion of core curriculum—-that is, courses required of all students—-to ensure a stronger foundation for practice. More than two-thirds of the judges in each group proposed changes in law school curricula, while no more than 10% in any group recommended higher admissions standards. Recommendations to make tuition more affordable drew slightly higher but still modest support (ranging between 5% and 14%).

p. 338 (footnote omitted)

The judges would like to see better trial skills:

Judges expressed concern about the effectiveness of the bar at trial advocacy. One federal district judge remarked that lawyers are “smart, well-prepared and know the law and write great briefs—but if the case goes to trial, their trial skills are nowhere near what their pre-trial skills were.”

p. 346

The whole article is worth a look: there are lots of interesting nuggets, and the footnotes cite other intriguing studies about lawyers' effectiveness.

Memoirs of Death Penalty Lawyering

Andrea Lyon and David Dow have a lot in common: they both are lawyers, they both represent indigent defendants in criminal cases, they both teach in law school clinics, and they both have written absorbing memoirs about their work. (To protect client confidentiality, both changed names and details of cases but say they are representing real events honestly.)

There are some differences, too. For instance, Dow (in Texas) never had a governor impose a moratorium on the death penalty, but Lyon did (in Illinois). And I assume Dow's ability to handle homicides was never questioned because of his gender.

Angel of Death Row is Lyon's memoir, taking the reader from her legal education at a school that emphasized clinical experiences to the Cook County public defender's office, where she eventually rose to the position of chief of the Homicide Task Force. After she left public defense, she founded the Illinois Capital Resource Center and later moved to teaching.

Lyon reports the investigations and trials of many cases. "Winning" a case does not always mean the defendant is acquitted -- it can mean that a defendant who is charged with first degree murder is convicted of manslaughter. And when a defendant is convicted of a capital offense, it is a defense victory if the penalty phase of the trial results in a sentence of life imprisonment. Remarkably, in 19 of the 19 capital cases Lyon has tried through the penalty phase, not one of the defendants was sentenced to death.

In Autobiography of an Execution, Dow weaves together several capital cases at once. Unlike Lyon, who was generally the trial attorney, Dow and his associates focused on post-conviction relief, and trial counsel had often put up lackluster defenses at best. For instance, two of his clients were represented by a lawyer who fell asleep during trial. Many of the clients' appellate lawyers failed to raise good potential claims. By the time the cases got to Dow, there were limits to what he could do. And so the book describes flurries of research, motions, petitions -- and several executions.

Both writers convey the toll the work can take on lawyers. The main reason Lyon left the defender's office was that she wanted to spend time with her daughter and not work on cases around the clock. Dow often numbed himself with alcohol, but also found comfort in his family life -- wife, son, and dog.

Angel of Death Row is in Good Reads at KF373.L963 A3 2010. AndreaLyon.com (includes information about the book and much more). WorldCat record.

The Autobiography of an Execution is in the Classified Stacks at KF373.D635 A3 2010. Publisher's page. WorldCat record.

Diversity Science Research

The UW Alumni Association offers How Diversity Science Research Informs Law and Policy, Wed., Feb. 23, 2011, at 7 pm:

Despite societal efforts to promote equality and harmonious intergroup relationships, policies and practices employed in the service of these goals are not always successful. Drs. Kaiser and Tropp draw upon innovations from psychological science to offer empirical evidence and practical strategies for fostering positive outcomes in diverse settings, such as schools and workplaces.

Any applications to work with colleagues, witnesses, and jurors?

The event is free, but an RSVP is required.

Originalism and the Jury

Ohio State Law Journal has a symposium on "Originalism and the Jury":

Suja A. Thomas, Foreword, 71 Ohio St. L.J. 883 (2010).

Douglas A. Berman, Making the Framers’ Case, and a Modern Case, For Jury Involvement in Habeas Adjudication, 71 Ohio St. L.J. 887 (2010).

Brian T. Fitzpatrick, Originalism and Summary Judgment, 71 Ohio St. L.J. 919 (2010).

Judge Nancy Gertner, Juries and Originalism: Giving “Intelligible Content” to the Right to a Jury Trial, 71 Ohio St. L.J. 935 (2010).

Joan L. Larsen, Ancient Juries and Modern Judges: Originalism’s Uneasy Relationship with the Jury, 71 Ohio St. L.J. 959 (2010).

William E. Nelson, The Lawfinding Power of Colonial American Juries, 71 Ohio St. L.J. 1003 (2010).

James Oldham, On the Question of a Complexity Exception to the Seventh Amendment Guarantee of Trial by Jury, 71 Ohio St. L.J. 1031 (2010).

Gene Schaerr and Jed Brinton, Business and Jury Trials: The Framers’ Vision Versus Modern Reality, 71 Ohio St. L.J. 1055 (2010).

Suja A. Thomas, A Limitation on Congress: “In Suits at common law”, 71 Ohio St. L.J. 1071 (2010).

Juicy stuff for constitutional law, legal history, and trial practice buffs!

I will never complain about jury instructions again! «

Justin Walsh, writing on The Amateur Law Professor blog, shares a choice jury instruction from 1869 here: I will never complain about jury instructions again! «

An iPad in Your Trial Briefcase?

Two new iPad apps are designed to help lawyers keep track of jurors during selection and trial. A reviewer says they seem quite promising -- much better than moving sticky notes around a legal pad! Each app is just $9.99, so they're pretty cheap to try out (if you already have an iPad, of course). Ted Brooks, Selecting and Monitoring a Jury on an iPad, Legal Technology News, Jan. 21, 2011.

The reviewer was much more cautious about a couple of iPad apps for managing and displaying trial exhibits. Ted Brooks, Two iPad Apps Make Their Cases for Trial, Legal Technology News, Jan. 11, 2011. One of those apps is also $9.99; the other is $89.99.

Graphic: screen shot of Jury Tracker app from Legal Technology News review.

Loans for Lawsuits: High Price, Little Regulation

The New York Times and the Center for Public Integrity (a nonprofit for investigative journalism in DC) took a look at the industry that lends money to plaintiffs until their settlements or awards come in. The interest rates are very high -- a $10,000 loan can become a $30,000 debt very quickly -- but the industry says they are justified because of the risk that the plaintiffs lose their cases. Others say the practice is abusive. See Benjamin Appelbaum, Lawsuit Loans Add New Risk for the Injured, Jan. 16, 2011.

Articles on E-Discovery Sanctions, Federal District Courts, and More

A recent study finds increasing sanctions of lawyers and their clients for e-discovery violations. Dan H. Willoughby, Jr., Rose Hunter Jones & Gregory R. Antine, Sanctions for E-Discovery Violations: By the Numbers, 60 Duke L.J. 789 (2010). You can find a brief discussion of this 76-page article here: Study: Lawyer Sanctions Over Electronic Discovery on the Rise - Law Blog - WSJ, Jan. 13, 2011.

That article caught the eye of the Wall Street Journal's blogger, but it's just one in a special symposium issue: the 2010 Civil Litigation Review Conference. Here are the rest of the articles in that issue:

John G. Koeltl, Introduction, Progress in the Spirit of Rule 1 ... 537

John H. Beisner, Discovering a Better Way: The Need for Effective Civil Litigation Reform ... 547

Paul D. Carrington, Politics and Civil Procedure Rulemaking: Reflections on Experience ... 597

Steven S. Gensler, Judicial Case Management: Caught in the Crossfire ... 669

Patrick E. Higginbotham,The Present Plight of the United States District Courts ... 745

Emery G. Lee III & Thomas E. Willging, Defining the Problem of Cost in Federal Civil Litigation ... 765

For even more scholarship on civil litigation, see the shorter e-only articles on Duke Law Journal's Workshop site.

Patrick E. Higginbotham has been a federal judge for 35 years (N.D. Tex. 1975-82, 5th Cir. 1982-present), so I was curious about what he thinks the plight of federal district courts is. He observes that conducting trials has become a very small part of the work of federal trial court judges -- the average district judge has almost 300 days a year with no trials. While some see this as a good thing, Judge Higginbotham says it is "a manifestation of the illness" he discusses.

He argues "that federal trial courts are now more like administrative agencies than trial courts in their present efforts to discharge their duty to decide cases or controversies, and that we are witnessing the death of an institution whose structure is as old as the Republic."

The changes Judge Higginbotham examines are the rise of arbitration and other ADR, the decline of attorneys with trial experience, the loss of the 12-person jury, and "the drift of the federal courts to the civil law model and their capture by the administrative model." He urges a return to the trial model.

Thanks: Aaron McElhose

Judy Clarke: Loughner's Lawyer Defended the Unabomber - TIME

Judy Clarke has been appointed to represent a number of unpopular defendants: Ted Kaczynski (the Unabomber), Susan Smith, Zacarias Moussaoui, Timothy McVeigh, Eric Robert Rudolph. And now she has been appointed to represent Jared Loughner. See Judy Clarke: Loughner's Lawyer Defended the Unabomber - TIMEJan. 12, 2011; Loughner’s Lawyer Is Called a Master Strategist, N.Y. Times, Jan. 10, 2011.

For a very interesting account of the representation of Kaczynski, see Michael Mello, United States v. Kaczynski: Representing the Unabomber, in Legal Ethics Stories (Deborah L. Rhode & David Luban eds., 2006), KF306.A4 L43 2006 at Reference Area.

Is There Such a Thing as Social Network Privilege? « Law, Technology & Arts Blog

In Is There Such a Thing as Social Network Privilege? « Law, Technology & Arts Blog, Nov. 4, 2010, Susuk Lim discusses a personal injury case in which "a Pennsylvania court not only concluded that information posted on one’s profile lacked protection, but that login credentials to the profiles themselves are not confidential." I've seen lots of articles about litigators using Facebook and other sites, but I hadn't seen discovery of the other party's passwords in order to read them. Interesting.