Drug Dogs Going Back to School

Reflecting the change in Washington State law making it legal for adults to possess small amounts of marijuana and use it in private, some law enforcement agencies are retraining their drug-sniffing dogs not to alert for marijuana.

Local stories include:

• Legal pot means big changes for state’s drug-sniffing dogs, KOMOnews.com, March 20, 2013 (video and text)
• Manuel Valdes, Pot on some police dogs' not-to-sniff list, News Tribune (Tacoma), June 3, 2013. (This AP story was picked up by many national and local news organizations.)

The Washington State Criminal Justice Training Commission has standards for certifying dogs with different specialties (patrol, explosives, narcotics). As of January, narcotics dogs will be trained to detect cocaine, crack cocaine, methamphetamine, and heroin, but not marijuana.


The Supreme Court has issued two dog-sniff cases this Term. In Florida v. Harris (Feb. 19, 2013), the Court unanimously upheld the admission of evidence found in a truck after an alert by a trained dog (who had previously been reliable). SCOTUSblog's summary of the case is here. In Florida v. Jardines (March 26, 2013), the Court found that using a drug-sniffing dog on the defendant's front porch was an illegal search. See Adam Liptak, Justices, Citing Ban on Unreasonable Searches, Limit Use of Drug-Sniffing Dogs, N.Y. Times, March 26, 2013.

Narcotics dogs do not always perform accurately. In fact, a study of Chicago-area traffic stops by the Chicago Tribune found that drugs were found in just 44% of the vehicles where dogs alerted—and in only 27% of the vehicles with Hispanic drivers. Dan Hinkel & Joe Mahr, Tribune analysis: Drug-sniffing dogs in traffic stops often wrong, Chi. Tribune, Jan. 6, 2011. An academic study about the same time "found that detection-dog/handler teams erroneously 'alerted,' or identified a scent, when there was no scent present more than 200 times — particularly when the handler believed that there was scent present." Explosive- and drug-sniffing dogs' performance is affected by their handlers' beliefs, UC Davis Health System, Feb. 23, 2011. The paper is: Lisa Lit et al., Handler Beliefs Affect Scent Detection Dog Outcomes, 14 Animal Cognition 387 (2011). 

The current issue of the Oregon Law Review (available free in PDF) is a symposium on drug policy. It includes Jane Bambauer, Defending the Dog, 91 Or. L. Rev. 1203 (2013). The author says "This short essay makes the uneasy case for the narcotics dog. Those in favor of U.S. drug enforcement presumably need no convincing, but this Article intends to address the concerns of skeptics who worry about unjust drug enforcement, or who believe that criminalization is just plain bad policy. Dogs are just the first generation of a new set of law enforcement tools that can help us divorce criminal investigation from the bias and discretion that comes with traditional policing." Id. at 1204.

Washington readers might be particularly interested in Michael Vitiello, Joints or the Joint: Colorado and Washington Square Off Against the United States, 91 Or. L. Rev. 1009 and Michèle Alexandre, First Comes Legalization, Then Comes What? Tips for Washington and Colorado to Help Break the Cycle of Selective Prosecution and Disproportionate Sentencing, 91 Or. L. Rev. 1253.

Graphic: mw

Crazy—Book About Mentally Ill in the Criminal Justice System

Spurred by his son's mental illness and prosecution for breaking into a neighbor's house while he was delusional, journalist Pete Earley spent two years exploring what happens to mentally ill Americans, particularly those who encounter the criminal justice system. The result is a conassionate, revealing, and disturbing book: Crazy: A Father’s Search Through America’s Mental Health Madness (2006).

Since the national movement to deinstitutionalize people with mental illness in the 1980s, many more people with very serious conditions are living on the margins of society, often on the streets. There are inadequate services available to them—community mental health clinics, sheltered living situations, support groups.

All too often they commit crimes related to their illness and land in jail. There are the headline-making crimes (the gruesome murderof a family), but also a thousand petty crimes. For instance, Earley interview and befriends a man who writes "Jesus 2007" on buildings and walls to announce his belief that Jesus is about to return; the man is repeatedly jailed because of his graffiti. At a bus stop, one woman yells at another, "Stop stealing my thoughts!" and shoves her. The second woman isn't hurt and doesn't want to press charges, but the delusional woman is jailed nonetheless.

Earley spent most of his time in Miami, but tells us that the horrible conditions he observed in the Miami-Dade jail's psych floor are not uniquely bad and could be found in many other places. His sustained reporting in one lhttp://www.peteearley.com/blog/ocation adds depth to the book, because he is able to follow several people from jail to hospital and back. He interviews many other participants in the system too: a reforming judge, a jail psychiatrist, parents in a support group, correctional officers, nurses, and more.

You can read the first chapter on Earley's website. Earley's blog provides updates and commentary on mental health issues. By the way, Earley has this "important note" on his website: "The word 'CRAZY' in the book title refers to the mental health care system."

Experiences of the Self-Represented

It's tough enough to handle litigation when you're a lawyer, but it's incredibly stressful and daunting when you don't.

CBC's Day Six has a 15-minute story on self-represented litigants (May 18, 2013). It begins with a moving interview of middle-class Vancouver woman who ran out of money for her lawyer about five months and $50,000 into her case. She's well-spoken and well-educated (master's degree) and was still overwhelmed.

Next the host interviews Julie Macfarlane, a law professor who conducted a study of unrepresented litigants in three provinces (BC, Alberta, Ontario). The report: Julie Macfarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants: Final Report (May 2013).

I have just scrolled through the report quickly, but it looks very interesting. Canadians and the Canadian court system are similar enough to US folks and the US legal system that the report is very relevant to our access-to-justice issues.

 Julie Macfarlane teaches law at the University of Windsor. Her faculty bio is here .

Lawyers Who Defend Accused Terrorists

What's it like to defend a high-profile terrorism defendant? See: Ron Scherer, Lawyers who defend terror suspects have thankless task. Why do they do it?, Christian Science Monitor, April 30, 2013. Tamar Rebecca Birckhead, To Defend a Terrorist: Reflections on Reid, Tsarnaev & How I Got from There to Here, Juvenile Justice Blog, May 3, 2013. Birckhead, now a professor at the University of North Carolina, represented Richard Reid, the so-called "shoe bomber," when she was a public defender.

Convicting the Innocent

You've heard of people who were shown by DNA evidence to be innocent of the crimes they were imprisoned for. How can that happen? What can we learn from it?

Prof. Brandon Garrett (with the help of a team of research assistants) found out all he could about the first 250 DNA exonerations, gathering trial transcripts (when available), news coverage, appellate records, and the records from state post-conviction proceedings and federal habeas cases. Then he mined the data: How many of the exonerated people had confessed falsely? How many had been mistakenly identified by one or more eyewitnesses? How many were prosecuted with questionable forensic evidence (hair analysis, for instance, does not prove much of anything)? How many years did it take from initial conviction to eventual exoneration?

He presents the results in Convicting the Innocent: Where Criminal Prosecutions Go Wrong (KF9756 .G37 2011 at Classified Stacks). The results are disturbing—but can also be instructive.

Public Interest Law Retreat

Interested in public service law? Sign up for the Trina Grillo Retreat, which will be here March 22-23. Friday evening's events are at the Talaris Conference Center and Saturday's workshops are at UW Law. The retreat provides a unique opportunity for law students, faculty and practitioners to exchange viewpoints, explore career opportunities, and formulate creative strategies for social justice.

There will be great content and a collegial environment, with law students and practitioners from the West Coast.

Attending is cheap! Cost to a UW law student (or a student from another consortium law school)? $0. That's right: it's free! Cost to practitioners? Just $25.

Socrates on Trial—Again

The philosopher Socrates was tried for impiety and corrupting the youth of Athens. He was found guilty and executed in 399 B.C. Next week, he will be tried again—but in Chicago, not Athens.

The Trial of Socrates, organized by the National Hellenic Museum, will feature a lot of legal star power. The presiding judge will be 7th Circuit judge, law professor, and prolific author Richard Posner. You can read or hear an interview with one of the prosecutors, U.S. Attorney Patrick Fitzgerald, here (NPR Weekend Edition, Jan. 26, 2013).

For the history, see The Trial of Socrates, by Prof. Douglas O. Linder. It's just one of many trials for which Linder presents essays, transcripts, images, and more on his Famous Trials site.

Mistrial After Everett Juror Does Online Research

A child sexual abuse case resulted in a mistrial after a juror went online to research the  concept of witness coaching and told his fellow jurors. The  prosecutor didn't want to put  the six-year-old victim through a second trial, so reduced the charges to resolve the case. Juror’s ‘research’ forced mistrial in child rape case, Herald.net (Everett), Dec. 12, 2012

The end of  the  article briefly discusses a mistrial that resulted from a juror refusing to return to court after a break in deliberations.

TED Talk on Statistics

Here's another TED Talk:

Peter Donnelly, How Stats Fool Juries, TED Talks (July 2005, posted Nov. 2006).

TED Talk on Eyewitness Testimony

Forensic psychologist Scott Fraser discusses Why Eyewitnesses Get It Wrong, TED Talk (May 2012, posted Sept. 2012). He illustrates his points with slides showing the lighting conditions on the night of a shooting.

Race in the Criminal Justice System — Video from 9th Cir.

African Americans and other people of color are overrepresented in our nation's prisons compared with their numbers in the general population. A large number of factors are involved, including police practices, prosecution, and sentencing.

This year's Ninth Circuit Judicial Conference (a meeting of judges and court staff) included a 90-minute panel on the issue (Aug. 15, 2012). The panel, What Color is Justice: Racial Disparities in the Criminal Process, is available on YouTube.



The moderator, who introduces the topic, is former district judge Nancy Gertner, who now teaches at Harvard Law School. The other speakers are:

• Judge Ruben Castillo (D. N. Ill.), who was the first Hispanic judge on the Federal Sentencing Commission
• Prof. Sonja Starr, Univ. of Michigan School of Law, and
• Prof. Bryan Stephenson who teaches at NYU and also serves at the executive director of the Equal Justice Initiative, which he founded.

For more on this topic, see Bryan Stephenson's TED Talk, We Need to Talk About an Injustice (March 2012) and material cited in our guide, Race in the Criminal Justice System.

Skype Deposition and Confrontation Clause

An interesting post:

Few cases have the intersection of the Confrontation Clause, witness unavailability, chain of custody, and Skype. Williams v State is one such unpublished opinion from the Indiana Court of Appeals. . . .

Skyping with the Confrontation Clause, Bow Tie Law's Blog, Nov. 19, 2012.

Law & Order Success Rates

Here's a fun item for fans of the original Law & Order series: David Haglund, Katie Kilkenny, & Holly Allen, Which Law & Order Characters Did Their Jobs Best? The Answer in Five Graphs, Slate, Nov. 14, 2012.

Haven't you always wondered who got a higher percentage of convictions, Jack McCoy or Ben Stone?

Funding Needed to Keep Federal Civil Trials Running

Federal civil jury trials in the United States probably would grind to a halt if Congress fails to reach a budget deal and $600 billion in automatic spending cuts kick in next year, a leading federal judge said Tuesday.

The federal judiciary's share of the cuts would be more than $500 million if Congress does not reach a budget deal by year's end to prevent some $1.2 trillion in spending cuts and tax increases from kicking in next year, Chief Judge U.S. Circuit Court of Appeals for the District of Columbia said.

Judge: US civil trials at risk without budget deal, Seattlepi.com (AP), Sept. 11, 2012.

Yakima County increasing its focus on justice costs | Yakima Herald-Republic

Yakima County increasing its focus on justice costs, Yakima Herald-Republic, June 11, 2012.

A review panel—a federal magistrate judge, an attorney, and a businessperson—raised questions about the prosecutions:

While commissioners said they did not interpret the report as critical of departments, the panel did point to issues in the prosecutor's office, citing a rising number of trials while total felony filings have been declining. The report said Prosecutor Jim Hagarty should give his deputies more authority to settle cases.

The increasing number of jury trials is costing the county more money and a high acquittal rate suggests weaker cases are being taken to trial, the report said.

Restrictions on Disseminating Child Porn Include Pre-Trial Discovery

Ordinarily the prosecution gives copies of documentary evidence to the defense—but what happens when the crime is possession of child pornography so copying the evidence would be disseminating the pornography? See New child pornography law affects local case: New restrictions meant to protect young victims, Columbian (Vancouver, WA), June 11, 2012. The new law is 2012 Laws ch. 135, which responds to court decisions. The legislative findings state:

The decisions of the Washington supreme court in State v. Boyd, 160 W.2d 424, 158 P.3d 54 (2007), and State v. Grenning, 169 Wn.2d 47, 234 P.3d 169 (2010), require prosecutors to duplicate and distribute depictions of a minor engaged in sexually explicit conduct ("child pornography") as part of the discovery process in a criminal prosecution. The legislature finds that the importance of protecting children from repeat exploitation in child pornography is not being given sufficient weight under these decisions.

You can read the House and Senate bill reports linked from here. Supporters wanted to limit the victimization of children; opponents said that the new restrictions would make defense more costly and that defense attorneys already are aware of the damage that reproduction could cause and do what they can to protect the evidence.

Access to Court Records

Two recent stories concern access to court records:

Sunshine Committee

Senator Adam Kline recently resigned from the state's Sunshine Committee (a/k/a the Public Records Accountability Committee), citing concerns about privacy. State Sen. Adam Kline leaves ‘Sunshine’ board, Olympian, June 11, 2012.

The committee is reviewing the hundreds of exemptions to disclosure in our states Public Records Act. Kline says that the committee has become dominated by press representatives, which favor disclosure, and doesn't have enough privacy advocates.
The issue that sparked Kline's resignation involved juror questionnaires: The Freedom Foundation seeks access to them to find non-citizens and check whether they are registered to vote. The Freedom Foundation favors increased identification requirements for voters; Kline believes that the organization is trying to impede participation by likely Democratic voters. See Kline's statement; The Freedom Foundation's blog post.

Court Records
According to the state constitution and court rules, the public is supposed to have access to case files, with certain restrictions (e.g., Social Security numbers are kept private; files may be sealed under certain conditions). Reporters from the News Tribune set out to test how it works. They went to district and municipal courts—the courts where misdemeanors and small civil cases are handled—and, without saying they were reporters, asked to see recent misdemeanor files. In some courts, they were shown the files immediately, but in about half the courts in Pierce County they were given the runaround:

Some clerks said the cases were still “open” or “ongoing” and thus barred from public view. Some said only attorneys and defendants could view case records. Some said case files were confidential. Clerks in two courts – Sumner and Fircrest – insisted the only way to view case files was to pay for copies.  

Those answers were wrong. They contradict state rules that govern courts large and small. High-ranking legal leaders, including Barbara Madsen, chief justice of the state Supreme Court, said The News Tribune’s findings paint a picture that calls for correction and training.

Open courts, closed files: Hitting roadblocks in quest for public records, News Tribune (Tacoma), June 10, 2012.

Very Bad Deposition Technique

Here is a guest post by Grace Feldman:

Two attorneys from personal injury law firm Morgan & Morgan behaved so poorly during depositions that a judge disqualified both attorneys as well as the entire firm from representing plaintiffs in a class action suit. 

According to Judge Cecilia Altonaga's Order, the attorneys,  Richard Celler and Stacey Schulman chose Dunkin' Donuts for the site of depositions.  Celler would attend in t-shirts and shorts and would show Schulman pictures of male genitalia that he had drawn during the deposition. Celler and Schulman laughed at the drawings and said they described opposing counsel, Jason Coupal. During the deposition, Celler played Angry Birds and bragged about beating someone in Minnesota at the game.  Coupal complained to the court and the judge issued a disqualification ruling.  More details of the attorneys' egregious but hilarious misconduct can be found here and here.  

If you thought that playing Angry Birds or drawing pictures of male genitalia were appropriate ways to gain a "psychological advantage" over your opposition, you many want to check out some of the library's resources on depositions:

• The Effective Deposition: Techniques and Strategies that Work by David M. Malone, Peter T. Hoffman and Anthony J. Bocchino.  KF8900 .M34 2007 at the Reference Area.
• Depositions in a Nutshell by Albert J. Moore.  KF8900 .D485 2011 at the Reference Area.

If you are just interested in holding your depositions in a donut shop, you'll be interested to know that National Donut Day is rapidly approaching.  You may be able to celebrate by visiting the new Top Pot Doughnuts opening in Ballard which is expected to coincide with the holiday on June 1st!

Image Credit 1: LawActually
Image Credit 2: Top Pot Doughnuts

Need for Civil Legal Aid

Civil legal aid has suffered in the recession: more people need help, and funding is down. (One source of funding is IOLTA -- interest on lawyers' trust accounts. When interest rates are down, IOLTA is down too.) WSBA's support for different programs may be affected by the recent vote to cut dues. This article puts a human face on the problem: Chris Stein, Going It Alone: In civil court, fewer people are getting lawyers to help them navigate the system, Pacific Northwest Inlander, April 11, 2012.

 

Prosecutor Found to Have Commented on Case Using Alias

A New Orleans businessman being investigated by the local U.S. Attorney noticed that comments on the local newspaper's website seemed to show an insider's knowledge of the case. He hired a forensic linguist to analyze the comments, which were found to match the writing style of court filings from the prosecution. And now one of the prosecutors has admitted that he wrote the comments about the case (and others) using a pseudonym. 'Mencken1951' unmasked: It is federal prosecutor Sal Perricone, Times Picayune, March 15, 2012 (Nola.com). He has been recused from cases on which he commented, and the U.S. Attorney has asked the Department of Justice Office of Professional Responsibility to review his actions.

Hat tip: Ars Technica via Volokh Conspiracy.

What Research Skills Do Lawyers Need?

The American Association of Law Libraries is currently conducting a survey of legal practitioners to identify the current and future research skills that law school graduates need to succeed in legal practice. This information will help law schools determine how to develop their curriculum to meet the research needs of their graduates. Please consider taking a minute to share your thoughts here: http://www.surveymonkey.com/s/skillsforlegalpractice. Responses are anonymous.

If you have any questions, please contact Susan Nevelow Mart (Susan.Nevelow.Mart [at] colorado.edu) or Shawn Nevers (neverss [at] lawgate.byu.edu), the chair and vice chair of the Task Force on Identifying Skills & Knowledge for Legal Practice.

Defendant Has Right to Be Present During All Jury Selection

A defendant is headed for a second trial for first-degree murder after his first conviction was reversed because he had not been present for all aspects of jury selection. Biker convicted in ‘no-body’ Ravensdale killing headed for new trial, SeattlePI.com, Feb. 26, 2012.

The Court of Appeals case is State v. Price, No. 63056-3-I, Justia link, Findlaw link (July 25, 2011). (The court also addresses a Rule 404(b) issue, saying that the trial judge was within her discretion to admit evidence of the defendant's membership in a biker gang.) The Court of Appeals applies a recent Washington Supreme Court case that examines the right to be present for jury selection under both the federal and the state constitutions. State v. Irby, 170 Wn. 2d 874, Google Scholar link (2011).

Juries for South Korea

UW grad Steven Kim ('00) has the combination of trial experience and fluency in Korean needed to train Korean officials in the how the U.S. jury system works. King County prosecutor to help South Korea establish jury system, Seattle Times, Jan. 30, 2012. (This article is a few weeks old, but I missed it until Seattle U's law library blogged about it. Nobody can keep up with everything!)

Judge again rebukes lawyers who want him to step down

Defense attorneys for the men accused of killing a corrections officer in Monroe asked the judge to step down because of his allegedly flawed understanding of the law and improper behavior in an earlier case. That's only part of the friction between the judge and the lawyers. Judge again rebukes lawyers who want him to step down from Byron Scherf’s trial, Herald (Everett), Feb. 11, 2012.

Jurors Excused Because of Views Toward Immigrants

In the Franklin County trial of a Mexican for allegedly killing his girlfriend, Judge excuses some jurors because of opinion about immigrants, Tri-City Herald, Feb. 14, 2012.

Public Defender Benefits (King County), Staffing (Skagit County)

Two public defender news items:

A recent class action lawsuit resulted in a ruling that King County public defenders, although termed contractors, are basically employees and should be covered by the state's pension plan. Dolan v. King County, 172 Wn.2d 299, legalwa.org link (2011). See State Supreme Court Rules Public Defenders Deserve Pensions; Seattle Times Editorial Board Embarrasses Itself, Seattle Weekly, Aug. 23, 2011. Now a bill (EHB 2771) seeks to limit the reach of the ruling. Kevin Dolan Lawsuit Over State Benefits for Public Defenders Sparks Controversial Bill, Seattle Weekly, Feb. 21, 2012.

The ACLU of Washington represents three defendants in Skagit County who claim that the public defense provided there is inadequate. The ACLU reports Court Hears Lawsuit over Public Defense System that Fails to Represent Poor People, Feb. 14, 2012. See also Public Defense Almost Non-Existent in Burlington, Mount Vernon, Claims Lawsuit, Seattle Weekly, Feb. 16, 2012.  The case is Wilbur v. City of Mount Vernon, No. C11-01100 (W.D. Wash.). The ACLU has posted two of the plaintiffs' motions.

Lawyer Tries to Use Facebook Against Opposing Counsel

Lots of people talk about using Facebook, Twitter, et al. to learn about parties and jurors. This blog posts discusses using social media against a lawyer: When Opposing Counsel Uses Your Facebook Friendship Against You, Legal Blog Watch, Feb. 8, 2012. A lawyer at a mediation said that the other lawyer wasn't taking the mediation seriously. His evidence? The lawyer's Facebook page showed that he'd had a party on his birthday. A couple of comments suggest that the lawyer who tried to make this point was just a jerk and his attack would probably hurt him more than it hurt the guy who had a birthday party.

The blog post also discusses a more professional use of social media: checking to see whether a lawyer has written a blog post expressing a legal view opposite to what he or she is now arguing (just as, pre-blogs, one might look up lawyers' bar journal articles and CLE publications).

Plaintiff Bias in Philadelphia Courts?

A law professor has conducted a study finding that Philadelphia courts are more attractive to plaintiffs than other courts and hence many plaintiffs with no connection to the area file suit there. Study shows plaintiff bias in Philly courts, LegalNewsline.com, Feb. 6, 2012. A plaintiff's lawyer interviewed for LegalNewsline's article cites other explanations for the data – for instance, many asbestos cases are filed in Philadelphia because workers were exposed at the Philadelphia Navy Shipyard during World War II.

The study is by Prof. Joshua D. Wright (George Mason), who is also the Director of Research for the International Center for Law and Economics (ICLE), which published the study. The report, originally released in fall 2011, is available with a supplemental appendix released this month here.

Pennsylvania House Bill 1976 would address the practice of choosing Philadelphia courts because of their perceived openness to plaintiffs' claims. Pa. lawmaker behind 'venue shopping' bill discusses legislation, LegalNewsline.com, Dec. 5, 2011.

Trial Lawyer Litigation Tip: The Importance of Listening

Rob Sullivan, a lawyer in Kansas City, MO, offers this Trial Lawyer Litigation Tip: The Importance of Listening, Lawyerology!, Feb. 17, 2012.

Listening is a key component to the art of communication and persuasion. Nevertheless, the majority of the time I observe lawyers questioning deponents, they are hardly listening at all to what the deponent is saying.

Suing for Privacy Invasion Would Cost Privacy

Plaintiffs in a class action against Facebook for using their names and pictures to advertise to their friends now want not to be the class representatives: they realize how intrusive discovery can be.

"I did not expect that every single post I had ever made on Facebook would be potentially rehashed in an interrogatory responses [sic] and deposition," [the plaintiff] said in court documents filed Monday. "Answering questions regarding my private posts or my decisions to click 'Like' buttons on certain pages or posts would subject me to embarrassment and invade my privacy."

Facebook Privacy Plaintiff Wants Out of Class Action, Recorder, Feb. 16, 2012 (Law.com). How can counsel prepare their clients for litigation experience?

Hat tip: Lawyerology!

Pro Se Defendants Questioning Victims

One day in 2010, a woman who was to be questioned by the man who had abused her through her childhood did not return to the courtroom after a recess. Instead she kept climbing the courthouse stairs until she emerged on the roof, pondering whether to jump. Q13 broadcast an interview with her on Feb. 8. The next night, the station reported on a proposed court rule amendment designed to protect victims from abusive questioning by defendants representing themselves pro se.

The proposal would amend CrR 3.1 - Right to and Assignment of Lawyer by adding a new subsection:

(g) Pro Se Defendants  

(1) When a defendant has waived his or her right to counsel, the court, on a motion by the prosecuting attorney, on its own initiative, or at the request of a witness, and for good cause shown, may restrict the manner and means by which a defendant questions a witness.  

(2) Good cause is shown when the court finds by substantial evidence, in a hearing conducted outside the presence of the jury, that requiring the witness to be questioned by the defendant without restriction will cause that individual to suffer serious emotional or mental distress that will prevent the witness from reasonably communicating at the trial.  

(3) The court shall state on the record the basis for good cause.  

(4) When the court does not permit the pro se defendant to question a witness without restriction, the court may impose reasonable procedures including but not limited to:    

(i) requiring questioning by the defendant of the witness using remote audio-visual means when authorized by law;   

(ii) allowing stand-by counsel to question the witness with the agreement of the defendant,.  

Nothing herein precludes a court from using other means to control the courtroom including but not limited to prohibiting the defendant from approaching the witness during questioning and requiring the defendant to remain seated during questioning of the witness.

The Q13 story emphasized the clause in (4)(ii) that would have stand-by counsel question the witness, but only "with the agreement of the defendant."

One person who has commented on the proposal was on the jury in the case featured by Q13; her letter outlines ways the defendant's questioning was abusive of his victims.

The letter from the Washington Association of Prosecuting Attorneys generally favors the amendment, with alternative language.

The Washington State Bar Association's letter opposes the change. Stephen R. Crossland, WSBA's president, argues that at best the change is unnecessary, because trial judges "already have the ability to control questioning of a witness by a pro se defendant, subject to constitutional limitations in light of the facts and circumstances of each case." At worst, he says, the rule – which does not mention constitutional protections – might lead judges to disregard them.

Prosecutor May Disclose Cop's Records from Elsewhere

After he accidentally became aware of a dispute between an officer (in Quincy, WA) and a prior employer (a sheriff's office in California), the Grant County prosecutor determined that the proceedings showed a record of dishonesty and hence should be disclosed to defense counsel in cases where the officer was a witness. The officer sued. On appeal, Division III upheld the superior court's decision to allow disclosure. Doyle v. Lee, No. 29212-6-III (Feb. 2, 2012), Washington Courts link.

See Prosecutor can give information about Quincy officer, Columbia Basin Herald, Feb. 8, 2012.

Reflections on Jury Duty

A News Tribune columnist talks about being called for jury duty. Kathleen Merryman, Jury duty a burden to some, a thrill and an honor to others, News Tribune, Jan. 25, 2012.

I was thrilled at the chance to be part of one of the fairest judicial systems on the planet. It has its flaws, and some of them run deep. But it demands that the accused see the faces of the peers who will decide the verdict. It requires that those peers be accountable to each other, and to themselves. It’s a mental stretch for participants, and discussions that stretch us beyond preconceptions are good for the health of democracy. We get to experience all that, even if we don’t serve on a jury.

Voir Dire Tool: iPad App or Post-It Notes?

Law Technology News reviews iJury, another iPad app for managing voir dire (see earlier post). The review is fairly positive – but the author finds that the Post-It Notes on which a lawyer can scribble quick notes remain good competition. Ted Brooks, Will an iPad Replace Post-it for Voir Dire?, Law Technology News (law.com), Jan. 19, 2012.

Frustrations in Family Court

This week's cover story in the Seattle Weekly is Ripped Apart: Divorced dads, domestic violence, and the systemic bias against men in King County family court (Jan. 18, 2012). Nina Shapiro reports on courts that are so busy that each side in a divorce often has just minutes to present evidence and arguments. (Very few cases go to trial, so the hearings before commissioners are critical.) She profiles three men whose divorces were complicated by allegations of domestic violence and painful custody disputes. Several attorneys quoted say that the system is biased against men. 

It would be interesting to hear more voices related to this story – divorced and divorcing women, more men than the three profiled, commissioners, judges. Would the conclusions be any different?

Updates to Pattern Instructions

Today the Washington Courts announced:

several criminal pattern jury instructions were recently updated. Changes have been made to WPIC 1.01, 4.61, and 4.69 in order to spell out in greater detail the prohibitions against jurors discussing the case with others, including with regard to their electronic communications. Changes also have been made to several concluding instructions, incorporating State v. Bashaw’s holding that unanimity is not required for jurors to answer “no” on a special verdict form; see WPIC 30.03, 50.60, 50.60.01, 160.00, and 300.51.  

These updates have been incorporated into all formats, including the printed pocket parts, Westlaw, and the free public website.

You can sign up for email alerts about court rule changes and pattern instruction changes here.

State v. Bashaw, cited in the announcement, is here: 169 Wash.2d 133, 234 P.3d 195, Google Scholar (2010)

Hiding Tattoos?

In pretrial motions, lawyers argued over whether the jury should be allowed to see Michael Coombes's tattoos – one on his face with A-F (for Aryan Family) and one on his hip with a gun and a syringe; the gun was the same brand and caliber as the murder weapon. Murder suspect hopes makeup will hide criminal history from jury, KXLY (Spokane), Dec. 12, 2011.

 

One issue was whether revealing the tattoos would also reveal the fact that the defendant was serving time in prison for the murder when he got them. He was getting a new trial because he had successfully argued that his guilty plea should be invalidated because of a misunderstanding of how time off for good behavior would be calculated. In re Coombes, 159 Wash.App. 1044, 2011 WL 240687 (Wash.App. Div. 3 2011) (unreported). The jury did learn of the hip tattoo (but I'm not sure if they saw it). Closing arguments heard in Coombes murder trial, KLXY, Dec. 16, 2011.

Coombes was convicted and received a sentence about 7 years longer than the sentence under the plea he had withdrawn. Jury convicts man of 2007 slaying, Spokesman-Review (Spokane), Dec. 19, 2011. By the way, the Spokesman-Review blog, Sirens & Gavels, has a number of posts tagged "neck tattoos": Coombes is not the only defendant who risks the jury forming an opinion of him based on his body art.

Inside an Interrogation of a Scared Teen

After a trial court judge suppressed a teenager's confession in her trial for smothering her infant, David Boeri, a reporter for WBUR, a public radio station in Boston, petitioned to get the DVDs or the interrogation. It took several months, but the judge issued an order in September, and in December, WBUR aired a two-part report, "Anatomy of a Bad Confession." Today, NPR aired a lengthy story (though not as lengthy as what WBUR aired). Here are links:

• David Boeri, How a Teen's Coerced Confession Set Her Free, All Things Considered, Jan 2, 2012
• David Boeri, Anatomy of a Bad Confession, Part 1, WBUR, Dec. 7, 2011
• Anatomy Of A Bad Confession, Part 2, WBUR, Dec. 8, 2011
• video – excerpts from the interrogation, plus recent interview with the defendant, Nga Truong, and reflections by the reporter, David Boeri.
• Commonwealth v. Truong, Feb. 25, 2011, the opinion suppressing the confession
• Boeri's motion seeking the recordings
• decision and order granting the motion

Hearing (or viewing) the questioning is much more vivid the reading a discussion of a coercive interrogation in an appellate opinion. This is very valuable reporting.

Hot Coffee -- Documentary about Tort Reform

A new documentary explores the rhetoric and politics of "tort reform." Hot Coffee: Is Justice Being Served? begins with the the case that has been fodder for comedians and politicians, Liebeck v. McDonald's.

Seinfeld mocked it. Letterman ranked it in his top ten list. And more than fifteen years later, its infamy continues. Everyone knows the McDonald’s coffee case. It has been routinely cited as an example of how citizens have taken advantage of America’s legal system, but is that a fair rendition of the facts? Hot Coffee reveals what really happened to Stella Liebeck, the Albuquerque woman who spilled coffee on herself and sued McDonald’s, while exploring how and why the case garnered so much media attention, who funded the effort and to what end. After seeing this film, you will decide who really profited from spilling hot coffee.

The next segment of the film looks at how a tort-reform damage cap has affected one family with a seriously disabled son.

And the third segment features Oliver Diaz, a justice of the Mississippi Supreme Court who successfully campaigned against a candidate backed by the U.S. Chamber of Commerce, only to be indicted for accepting a bribe and then for tax fraud. Despite his acquittals, the charges kept him off the bench for years and probably cost him his next election.

The filmmaker, Susan Saladoff, is a lawyer who took on this project – her first film – during a sabbatical from her practice. She definitely has a point of view, and in the film and on the website encourages people to take action opposing tort reform. Whether or not you ultimately share her position, the film offers important information, with clips from advocates on both sides of the debate. Check it out: KF1250.H68 2011 at Classified Stacks.

Brain Science and the Law

Royal Society report

A panel of experts from the Royal Society has issued a report on Neuroscience and the Law (Dec. 13, 2011):

Neuroscientists seek to determine how brain function affects behaviour, and the law is concerned with regulating behaviour. It is therefore likely that developments in neuroscience will increasingly be brought to bear on the law. This report sets out some of the areas where neuroscience might be of relevance, along with some of the limits to its application. Specific issues discussed include risk assessment in probation and parole decisions; detecting deception; assessing memory; understanding pain; and Non-Accidental Head Injury NAHI).

The experts conclude that the science is potentially relevant to the law, but that it's too early to apply neuroscience directly in legal proceedings. They encourage further dialogue between neuroscientists and people in law.  See Maria Cheng, UK experts: Too soon to use brain science in court, Olympian (via AP), Dec. 12, 2011.

The 46-page report is available for free download in PDF, Kindle, or E-Reader format.

This is part of a series of reports the Royal Society is putting out on neuroscience and society.  The others are: Neuroscience, Society and Policy (Jan. 2011), Neuroscience: Implications for Education and Lifelong Learning (Feb. 2011), and Neuroscience, Conflict and Security (forthcoming).

Last March, the Royal Society and the National Academies co-hosted a two-day forum on neuroscience and the law in Irvine, CA. You can watch videos of most of the panels here.

Intrigued by this area of cross-disciplinary study? You can see posts on a variety of issues in The Law and Neuroscience Blog and the Neuroethics & Law Blog. 

News Tribune Investigates Kitsap-Pierce Drug Task Force

Today's News Tribune has an investigative report on WestNET, the West Sound Narcotics Enforcement Team, a federally funded drug task force based in Kitsap County, with tendrils reaching into Pierce County. A Dirty Little War, News Tribune, Dec. 4, 2011.

While the task force's mission is to go after drug-trafficking organizations, much of its effort was spent on low-level cases. Critics say that the officers often had a "cowboy" mentality, breaking down doors and bursting into homes wearing paramilitary gear.

The newspaper's review of court records indicates that the task force often inflated its success rate.

At least two people allege that one officer (Roy Alloway, who has since pleaded guilty to federal firearms and tax offenses) pressured them to give evidence that was false, or said that they made statements they did not.

In A story like WestNET's takes considerable work, News Tribune, Dec. 4, 2011, the journalists describe the public records they used, from courts (federal and state) and law enforcement agencies. The Tahoma Narcotics Enforcement Team (TNET), based in Pierce County, presents a different picture. All of its cases went to federal court, while most of WestNET's cases went to federal court. TNET has a much higher success rate (although the journalists did not have a record of cases the prosecutors declined. How WestNET compares with Pierce County task force, News Tribune, Dec. 4, 2011.

If you'd like to read about a drug task force gone horribly wrong, I recommend Nate Blakeslee, Tulia: Race, Cocaine, and Corruption in a Small Texas Town, HV8079.N3 B55 2005 at Good Reads. While focusing on one notoriously bad case – with a renegade officer at the center of the action – Blakeslee also discusses the structural factors that make drug task forces susceptible to abuse of power, sloppy police work, and worse. See chapter 11, The Jump Out Boys.

Spokane Judge Won't Approve Plea without Seeing Prosecutor

Spokane County prosecuting attorney Steve Tucker personally negotiated a plea agreement with a defendant who shot a gun into a neighbor's house. The judge wanted to ask him some questions about it, but he chose not to appear, sending one of his assistants. The judge said she wouldn't approve the plea. Prosecutor Rankles Judge Spokesman Review, Nov. 26, 2011.

Ore. governor bans death penalty for rest of term

Ore. governor bans death penalty for rest of term, Seattle Times (via AP), Nov. 22, 2011.

Cameras in the Supreme Court

C-SPAN has asked to broadcast the arguments in the case testing the constitutionality of the Affordable Care Act. Adam Liptak, a leading legal reporter, writes: Supreme Court TV? Nice Idea, but Still Not Likely (N.Y. Times, Nov. 28, 2011).

Liptak suggests that the Justices are leary of being reduced to sound bites, but he notes that "newspaper reporters use the text equivalent of sound bites all the time. We call them quotations."

TVW has broadcast (on cable, on DVD, and online) Washington Supreme Court oral arguments for many years with no apparent ill effects. You can watch arguments 1997-present here.

Graphic: screen capture from oral argument on TVW, dressed up a little in Paint, by mw.

Second Trial in Civil Sex Abuse Case Because of Juror Misconduct

A Shoreline pediatrician will have a second trial in a civil case brought by young men who allege he engaged in improper sexual conduct with them when they were minors. The doctor admits to much of the conduct but says it was a legitimate part of his mentoring the boys.

Originally there were thee cases filed by four young men and their families. The cases were consolidated. The jury ordered the doctor to pay damages to three young men and their families, but the sum was much lower than the plaintiffs had sought. Now two of the plaintiffs have withdrawn from the suit.

The retrial follows juror misconduct in the first trial:

• a juror failed to disclose that she and her husband had been sued for medical malpractice;
• a juror told other jurors about her experience of sexual abuse but had not disclosed it during voir dire;
• jurors shared newspaper stories and watched television news about the case.

Noted Pediatrician Accused of Preying on Patients Faces Jury ‐ Again, Seattle PI, Nov. 22, 2011.

The Court of Appeals opinion upholding the trial court's declaration of a mistrial is Kuhn v. Schnall, 155 Wn. App. 560 (2010) Legalwa.org link.

Poster Reminds Jurors to Focus on Courtroom

In an effort to keep jurors from going online to discuss cases or look up information outside the trial, the Washington State Courts are introducing a new poster with a picture of a smart phone and the headline "Focus on the Courtroom."

Focus on the Courtroom poster

The Courts' press release (Nov. 22, 2011) is here. 

New Trial Ad Texts from Seattle U Faculty

Marilyn J. Berger, John B. Mitchell, and Ronald H. Clark, our neighbors at Seattle University's Trial Ad Program have been hard at work, creating multimedia teaching materials for their students – and for students and lawyers around the country who want to develop their skills.

cover of Trial Advocacy text

Trial Advocacy: Planning, Analysis, and Strategy (3d ed. 2011) is the basic text that covers all aspects of the trial, from developing a case theory all the way through closing arguments.  It comes with a DVD showing a simulated trial that is discussed throughout the book ("the Freck Point Trial") and a "scene of the crime" video that walks the viewer through a tavern where a crime that's the subject of another mock trial took place.

A companion book, Trial Advocacy: Assignments and Case Files, has (you won't be surprised) assignments and case files.

(My post about the second edition (2009) is here.)

The publisher's page lists the 13 chapters. The catalog record is here.

The publisher's website also has a page of bonus features, such a booklet on voir dire by Karen Koehler (who also teaches in the UW's Trial Ad program), a sample juror questionnaire, and transcripts from the trial in which the City of Seattle tried to keep the Sonics in town.

cover of Evidence text

Evidence: Skills, Strategies, and Assignments for Pretrial and Trial (2012) focuses on the nitty-gritty of handling evidence – objecting to it if you don't want it in, or introducing it and meeting objections if you do. 

Evidence is designed for use in different contexts: as a supplement in a Trial Ad course, as a supplement for an Evidence class, as a text for a stand-alone class, or as a text for a lawyer who wants to improve his or her skills. (I could imagine it being used by college mock trial teams, too.)

Like Trial Advocacy, it includes a DVD with the Freck Point trial. It also has a CD with case files to go with exercises. The publisher's page is here. The catalog record is here. So far, only one document is listed on the Bonus Materials page: a motion in limine in the Seattle Sonics case.

When I went to law school 30 years ago, I think it was typical for Evidence to be taught about the same way as other classes – in a large lecture hall, with a professor at the front and 100 students flipping through casebooks and statutory/rules supplements as they sat at long tables. I'm pretty sure we were never asked to rise and object to or defend proffered testimony. At the end of the semester, we scrawled exam answers in bluebooks, just as we did for all our classes.

This was good preparation for my first post-law-school job, clerking for an appellate judge. But actually handling evidence in a trial? No way.

I think that Evidence pedagogy has advanced considerably. For instance, the text by Peter Nicolas (a UW professor), Evidence: A Problem-Based and Comparative Approach, includes over 100 problems. Publisher's page. Catalog record. Still, though, the problems are meant for class discussion, not for trial simulations.

Berger, Mitchell, and Clark's book devotes all of Chapter 5 to exercises, and they aren't the sort that can be done from the back row of a lecture hall. There are roles for witnesses, prosecutors (or plaintiff's counsel), and defense counsel. (The instructor gets a CD with instructions for the actors who play witnesses.) Students are asked to address evidentiary issues either in motions in limine or as objections during trial.

Evidence goes into more detail about evidence than does Trial Advocacy – but the difference isn't night and day. Chapter 4 in Evidence, "Exhibits: Introducing and Displaying Them," tracks Chapter 7 in Trial Advocacy, "Introducing Exhibits," very closely. In fact, I was surprised when I compared the two chapters that the Trial Advocacy chapter went on longer, discussing evidence issues not in the Evidence chapter. Further examination found that the content was just elsewhere in the book.

So that classes can use Evidence without having to research rules and caselaw, the authors insert a text within a text. Morgan's Evidence Handbook is an 83-page chapter (itself divided into chapters) summarizing the law of evidence in the fictional state of Major. (Major's evidence rules, like Washington's and many other states', are modelled on the Federal Rules of Evidence.) 

I'm ambivalent about this. I like the idea of giving the students enough law so they can focus on the skills of submitting evidence, objecting, and so on. But as a librarian, I would like more classes to encourage students to look things up. Research is a skill they'll need too, even as trial lawyers. Of course, an instructor could choose to have the students do their exercises in a real jurisdiction or a hybrid of Major and a real jurisdiction. Students could be told to use Morgan's Evidence Handbook and to deepen their knowledge of evidence with works from their own state, such as The Law of Evidence in Washington by Robert H. Aronson and the Washington Practice volumes Evidence Law and Practice and Courtroom Handbook on Washington Evidence and by Karl B. Tegland.

Both books are very accessible. The font is a little larger than is typical in lawbooks. Checklists, pointers, and practice notes abound, indicated with consistent icons (e.g., a painter at an easel for illustrations, a bewigged judge or barrister pointing at the text for pointers).

Chapters are introduced with quotations drawn from a wide range of sources, from Shakespeare's Julius Caesar to the recent classic, My Cousin Vinny.

The books are practical, giving them impression that the authors are sharing wisdom they have accumulated through years of experience. There are some citations to the Federal Rules of Evidence and cases, but these books are guides, not treatises. You won't find footnotes, bibliographies, tables of authorities, or recommendations for further reading.

This is part of what makes the books accessible: they can be read easily, without wading through dense citations. I'm curious, though, so when I read "Studies show that we retain less than 15 percent of what we hear, but we remember over 80 percent of what we see and hear" (Evidence at 118; Trial Advocacy at 26), I wonder: what studies? where?

I think the publisher probably could have done a better job with the photographs: they should be sharper.

The Freck Point case is set up to be either a criminal case (murder) or a civil case (wrongful death). Within one class, students could be working on criminal or civil examples, using the same fact pattern, exhibits, and witnesses. The case is adapted from a story that was sensational enough to merit a true crime reporting by Ann Rule (see A Rose for Her Grave and Other True Cases) – a choice that must be intended to hold students' interest for a semester.


Thanks to Ron Clark's giving me review copies, these two books will soon be available in the library.

And for current commentary on trial advocacy issues, see Ron Clark's blogs, Pretrial, Trial, Appellate & Evidence Blog and Cross-Examination Blog.

Skype in Drug Court

Judge Thomas Larkin (Pierce County) has started using Skype in drug court. Some drug offenders make their appearances from in-patient clinics using the online tool. Judge gets money saving idea from grandkids, KING5.com, Nov. 17, 2011.

Federal Sentencing News

There's a big new study of federal sentencing AND the federal government has begun reviewing the sentences of people serving time for crack cocaine offenses.

Study

Yesterday the United States Sentencing Commission submitted to Congress a huge (645 pages!) assessing the impact of statutory minimum mandatory sentences. Here are a few excerpts from the press release:

"While there is a spectrum of views on the Commission regarding mandatory minimum penalties, the Commission unanimously believes that certain mandatory minimum penalties apply too broadly, are excessively severe, and are applied inconsistently across the country. The Commission continues to believe that a strong and effective guideline system best serves the purposes of sentencing established by the Sentencing Reform Act of 1984.”
. . .
The Commission also addresses the overcrowding in the federal Bureau of Prisons, which is over-capacity by 37 percent.
. . .
The report was undertaken pursuant to a directive from Congress to examine mandatory minimum penalties, particularly in light of the Supreme Court’s 2005 decision in Booker v. United States, which rendered the federal sentencing guidelines advisory.
. . .

• More than 75 percent of those offenders convicted of an offense carrying a mandatory minimum penalty were convicted of a drug trafficking offense.
• Hispanic offenders accounted for the largest group (38.3%) of offenders convicted of an offense carrying a mandatory minimum penalty, followed by Black offenders (31.5%), White offenders (27.4%), and Other Race offenders (2.7%).
• Almost half (46.7%) of all offenders convicted of an offense carrying a mandatory minimum penalty were relieved from the application of such penalty at sentencing for assisting the government, qualifying for "safety valve" relief, or both.
• Black offenders received relief from a mandatory minimum penalty least often (in 34.9% of their cases), compared to White (46.5%), Hispanic (55.7%) and Other Race (58.9%) offenders. In particular, Black offenders qualified for relief under the safety valve at the lowest rate of any other racial group (11.1%), compared to White (26.7%), Hispanic (42.8%) and Other Race (36.6%), either because of their criminal history or the involvement of a dangerous weapon in connection with the offense.
• Receiving relief from a mandatory minimum penalty made a significant difference in the sentence ultimately imposed. . . .

The report is here. The executive summary is here.

Crack Sentences

Crack Cocaine Case Review May Free Inmates, All Things Considered, NPR, Nov. 1, 2011.

Across the country on Tuesday, federal judges began reviewing the prison sentences of thousands of men and women jailed on crack cocaine charges. Many inmates could be released or see their sentences sharply reduced.

Congress voted last year to ease federal sentencing guidelines for crack cocaine. But a decision this summer to revisit old drug cases has sparked new controversy.

Judge Wants Attorneys to Behave

As Jay Mehring's case against Spokane and the city's chief of police for defamation and wrongful termination approaches its trial date, the judge says she is "sick of" the attorneys' behavior:

Spokane County Superior Court Judge Kathleen O'Connor had choice words Thursday for attorneys on both sides of the Jay Mehring civil case.

* * *

She ordered attorneys Bob Dunn and Ellen O'Hara to appear before her this afternoon "no matter what" with an agreed upon statement in the case and a list of issues that are in dispute and issues that aren't.

She threatened to hold the lawyers in contempt if they weren't able to do so "because I am sick of this."

The judge also warned that she would have no time to look at motions for reconsideration, "so assume that they're all going to be denied."

* * *

The judge also picked up a report she said had been submitted that morning in violation of a previous order.

"See this? The one I got today? In the waste basket!" she said, holding up the waste basket.

Judge Calls Mehring Case 'Dysfunctional,' Spokesman Review, Oct. 7, 2011.

Avoiding Tech Meltdowns in Court

The current issue of Law Technology News features Robyn Weismann, Wrong Way: Preventing (and Recovering From) Courtroom Snafus, Oct. 1, 2011.

Related content:

• David Snow, Don't Let Courtroom Crises Beat You, Law Technology News, Oct. 5, 2011
• Ltn podcast, Wrong Way: How to Recover from (and Prevent) Courtroom Technology Snafus, October 2011.

Just today I was about to give a presentation in a classroom when I discovered that my PowerPoint file was not in the folder where I thought I'd saved it. Fortunately I found it, and it was just a small classroom talk, not a million-dollar trial, but the two minutes when I wasn't sure where the darn slides had gone gave me a taste of what these articles (and podcast) are talking about.

Scientific Evidence Manual

DNA identification, economic estimates of damages, psychiatric evidence of competence to stand trial, engineers' testimony about product defects—there's a lot of scientific testimony in today's courtrooms. How can judges—who are not statisticians, geneticists, economists, epidemiologists, engineers, or psychiatrists—intelligently manage this flood of information?



To address this challenge, the Federal Judicial Center and the National Research Council have published the Reference Manual on Scientific Evidence. The first edition was in 1994, the second in 2000, and the third edition was released this week.

This book would be useful to anyone wanting an introduction to scientific evidence. Chapters include:

• The Admissibility of Expert Testimony
• How Science Works
• Reference Guide on Forensic Identification Expertise
• Reference Guide on DNA Identification Evidence
• Reference Guide on Statistics
• Reference Guide on Multiple Regression
• Reference Guide on Survey Research
• Reference Guide on Estimation of Economic Damages
• Reference Guide on Exposure Science
• Reference Guide on Epidemiology
• Reference Guide on Toxicology
• Reference Guide on Medical Testimony
• Reference Guide on Neuroscience
• Reference Guide on Mental Health Evidence
• Reference Guide on Engineering

The book is available for free reading online; you can also download a PDF of any chapter or of the whole book. And the library will soon order it in paper.

See Science Manual for Judges Updated, Law Technology News, Sept. 29, 2011.

Women on the Federal Bench

Sandra Day O’Connor sworn in, September 25, 1981.

Today is the 30th anniversary of Sandra Day O'Connor being sworn in as a Supreme Court Justice.

The appointment of the first woman to the Supreme Court was very big news back in 1981, when I was a law student. But most of today's law students have always had at least one woman one the Supreme Court. Today's 1Ls are starting law school with three female justices on the Court. (Beloit's Mindset List annually offers reminders of how a younger generation's experience differs from the last's.)

So I thought this might be a good occasion to offer some stats about the representation of women on the federal bench. I'm using a fascinating database from the Federal Judicial Center, The Biographical Directory of Federal Judges.

First, how many women did Justice O'Connor join when she was sworn in?

51 women had been been commissioned before Sept. 25, 1981. Only 23 were still serving. (That is, their commission date was before that date, but their termination date was after it.)

And what were the corresponding numbers for men?

2023 men had been commissioned, and 619 were still serving.

President Reagan made history by appointing the first woman to the Supreme Court. What was his record throughout the federal courts?

court	women	men
U.S. Supreme Court	1	3
courts of appeal	6	77
all federal courts	30	334

An important part of the historical context is that women were a minority in the legal profession. 1972 was the first year when women were over 10% of law school enrollment nationally, so in the 1980s there'd wasn't as large a pool of experienced female lawyer from whom to select judges as there is today.

Speaking of today, what is the makeup of our federal bench now?

All Sitting Federal Judges (including those on senior status)

Race or Ethnicity	women	men
African American	38	81
American Indian	0	1
Asian American	6	10
Hispanic	23	56
White	208	861
Total	278	1015

Photo credit: National Archives Today's Document blog, Sept. 25, 2011.

Future of Miranda

The UW School of Law presents The Future of Miranda: A Dialogue
Featuring:

• The Hon. Betty B. Fletcher, U.S. Court of Appeals for the Ninth Circuit   
• Professor Emeritus Yale Kamisar, University of Michigan School of Law
• Oregon Attorney General John Kroger

With commentary by Todd Maybrown, Partner, Allen, Hansen & Maybrown, PS
Wednesday, October 19, 2011, 5:00 p.m. to 6:30 p.m.  Room 138. Reception to follow in Room 115

The landmark case of Miranda v. Arizona launched one of the best-known aspects of criminal procedure, the Miranda warnings before custodial police interrogation. The controversial case and the rights it vouchsafed have been under siege for decades. The scope of Miranda and availability of remedies are increasingly constricted. Please join our distinguished panelists for a discussion about the past and present of Miranda.

CLE Program: 1.5 credits approved.
This event is free and open to the general public.
The cost of CLE credits is $15.
RSVP here.
Contact Kathy Kline at (206) 543-8881 or email.

How Do Lay People React to Judicial Decision-Making?

A new study looks at how lay people respond to the judicial reasoning. Dan Simon & Nicholas Scurich, Lay Judgments of Judicial Decision-Making (July 18, 2011), J. Empirical Legal Stud. (forthcoming 2011), available at http://ssrn.com/abstract=1888630

This exploratory study examined lay people’s evaluations of judicial decision-making, specifically of the judicial decision-making process and the judiciary’s legitimacy. Seven hundred participants were presented with three judicial decisions, which were portrayed as following on the heels of solid and appropriate legal procedure.

Each decision was accompanied by one of four types of reasoning. Participants were asked to evaluate the acceptability of the decisions, focusing on the manner in which they were made and the legitimacy of the decision-maker, regardless of their outcomes. The study yielded four findings.

• First, lay people’s judgments were highly contingent on the outcome of the judges’ decisions. Consistent with the theory of motivated reasoning, participants found the decisions highly acceptable when they agreed with the judges’ decision, but deemed them relatively unacceptable when they disagreed with them.
• Second, participants were indifferent to the modes of reasoning when they agreed with the outcomes of the decisions, but were differentially sensitive to the modes of reasoning when the judges’ decisions frustrated their preferred outcomes.
• Third, when participants were sensitive to the modes of reasoning, they gave higher ratings of acceptability to decisions that openly admitted to good reasons on both sides of the case as compared with decisions accompanied by reasons that supported one side of the case exclusively. Giving no reasons at all was found to be more acceptable than giving a single, curt reason.
• Fourth, the findings replicated the coherence effect. Implications for the legitimacy of the judiciary are discussed.

Sealing Cases - Federal

Judicial Conference Urges Restraint In Sealing Civil Cases, BLT: The Blog of Times, Sept. 13, 2011.

The policy-making body of the federal judiciary approved a new standard today that instructs judges to limit sealing entire civil cases to only extraordinary circumstances. The Judicial Conference of the United States said the new policy emphasizes that sealing an entire case should be the last resort. Judges should first explore narrower alternatives, such as blacking out information or sealing particular documents, the panel said.

Federal Rules Go Mobile!

Wouldn't it be great to have the Federal Rules of Civil Procedure, the Federal Rules of Evidence, or the Federal Rules of Criminal Procedure with you without toting the bound books? Now you can: CALI and the Legal Information Institute have released Federal Rules Ebooks, with the rules and official comments, in a format compatible with iPhone, iPad, and Nook. (Kindle support is coming soon.)

The books are free, but you are encouraged to donate to the Legal Information Institute, a nonprofit based at Cornell that puts a lot of resources into making law accessible.

New California Law Prohibits Jurors' Social Media Use

New California Law Prohibits Jurors' Social Media UsE, Citizen Media Law Project, Sept. 1, 2011.

California has adopted a new statute which clarifies that jurors may not use social media and the Internet – such as texting, Twitter, Facebook, and Internet searches – to  research or disseminate information about cases, and can be held in criminal or civil contempt for violating these restrictions. 

The new statute, 2011 Cal. Laws chap. 181, expands the state's existing jury instructions which currently, at the start of trial and prior to any recesses or breaks, admonish jurors not to discuss the case they are sitting on with each other or anyone else before deliberations. The current instructions make no specific mention of electronic research or communications.

Juror Held in Contempt, Gets Community Service for Effort to Friend Defendant on Facebook - News - ABA Journal

Juror Held in Contempt, Gets Community Service for Effort to Friend Defendant on Facebook - News - ABA Journal, Aug. 29, 2011. The headline summarizes it; I'll just add that it was a civil case, the young juror was male, and the defendant was female.

Good Lawyers Settle

Jay Shepard writes about the importance to litigation of motions practice and settlement negotiations: Small Lawyers, Big Lawyers: Real Lawyers Settle Cases, Above the Law, Aug. 31, 2011.

I once was at a CLE seminar where one of the deans of our local employment bar said that if you ever have the opportunity to try a case, you should leap at it — they’re a lot of fun.

Fun? Yes, actually they are. But I’m pretty sure that my fun was not one of the guiding factors in my clients’ decision to hire me.

The truth of the matter is that your job as a civil litigator is not to win at all costs. Instead, it is to make your client’s problem go away. And making your client’s problem go away often involves settlement. The deal is to get a good deal.

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.