Judge Texts Hint to Prosecutor

A judge in Texas thought of a helpful line of questioning for the prosecution and texted a note to another prosecutor, asking her to pass it along to trial counsel. She did, but now regrets it. Judge texted during trial to help state, says ex-prosecutor, ABA Journal News, July 9, 2013.

Calling Home Is Expensive

Most prisons charge inmates such high rates that "a phone call from an inmate across town may be ten times more expensive than ringing a friend in Singapore," says the Legal Times blog. Now the FCC might do something about it. The agency is holding a day-long workshop today.  FCC Tackles Cost of Prison Phone Calls, The BLT: The Blog of the Legal Times, July 10, 2013.

It's a big issue for the quality of life of inmates and their families. It also affects access to counsel (defense counsel get hit with big bills accepting calls from clients). And it affects state budgets: a Virginia legislator who wants to reform prison phone rates acknowledges that the state general fund would miss the millions of dollars it has been making from the high rates. "What do we replace the lost revenue with? That's our problem."

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