Wearing o' th' Green (on the Ballot)

Illinois has passed a law saying that candidates for office who have changed their names within three years have to disclose it on the ballot ("Marilyn Monroe, formerly known as Norma Jean Mortenson"). The target? Lawyers who adopt Irish-sounding names in order to run for judge -- most recently Frederick S. Rhine, who became Patrick S. O'Brien (NOT the Patrick O'Brian who wrote Master and Commander). "Though the census shows the Irish or part-Irish amount to less than 20 percent of the Cook County electorate, candidates with Irish names -- especially female candidates -- tend to sweep judicial elections." Gov OKs bill targeting wannabe Irish judges, Chicago Sun-Times, Jan. 31, 2007. There's an exception for people who've changed their names due to marriage, divorce, or adoption.

The law was signed by Gov. Rod R. Blagojevich -- probably not someone who shopped around for a name that would be easy to fit onto bumperstickers.

This is an amusing news snippet, but seriously: what does it say about judicial elections? It's not just folks in the Windy City who go into the voting booth, see the list of judicial candidates, and have little else to go on but what name sounds comforting. (Here in Washington, people have speculated that elections were shaped by name more than qualifications. We just haven't had a rash of candidates changing their names to fit voters' preferences -- that I know of.) And maybe we should worry just a little that "Kelly O'Connor" sounds so much more judicial than, say, "Xinh Nguyen," "Ibrahim Mohammed," or "Latonna Robinson."

Thanks: Maureen Howard.

Jury says Seattle violated rights of WTO protesters

Jury says Seattle violated rights of WTO protesters, Seattle Times, Jan. 31, 2007. The jury found a 4th Amendment violation, but not a 1st Amendment violation.

Charges dropped against mother accused of letting children starve to death

Charges dropped against mother accused of letting children starve to death, Seattle Times, Jan. 31, 2007. The woman was judged incompetent to stand trial after a year at Western State Hospital. She has suffered from alcoholism, depression, and psychotic episodes. The state will now seek civil commitment.

"This is a sad, sad case," said King County Superior Court Judge Helen Halpert. "I know the result may be unsatisfactory to the family... but a basic tenet of the justice system is that a defendant must be able to understand the nature of the legal charges against her."

Washington's Death Penalty

Since King County Prosecutor Norm Maleng has announced that the state will seek the death penalty for Conner Schierman (the man accused of stabbing four neighbors and burning their house), the issue of proportionality is on the table again. Natalie Singer, If Ridgway got life, would anyone get death?, Seattle Times, Jan. 31, 2007.

Like other defense attorneys in recent years, [Schierman's attorney, James]Conroy argues that it's unfair for his client, accused of four murders, to face the death penalty when Ridgway, convicted of so many more, did not.

"It defies any rational analysis," he said. "I'm disappointed for my client, [but] I am more troubled by the system we have in place. Permitting any prosecutor to pick and choose is fundamentally flawed."

That basic proportionality argument did not persuade the state Supreme Court, when it was one of a number of arguments made on appeal in State v. Cross (March 30, 2006), Findlaw links: majority (Chambers, J.), concurrence (Alexander, C.J.), dissent (C. Johnson, J.).

Since Cross's trial, the Green River Killer, Gary Ridgway, was caught, prosecuted, and sentenced to life in prison. We cannot begin to calculate the harm his abhorrent murders caused. The fact he will live out his life in prison instead of facing the death penalty has caused many in our community to seriously question whether the death penalty can, in fairness, be proportional when applied to any other defendant.

We do not minimize the importance of this moral question. But it is a question best left to the people and to their elected representatives in the legislature. Under the United States Constitution (the only constitution plead[ed] here), Washington's death penalty is constitutional and nothing about Gary Ridgway changes that.

(By the way, Trial Ad instructor Todd Maybrown was one of Dayva Cross's attorneys on appeal.)

Two bills in the legislature (HB 1518 and SB 5786) would stay death sentences until July 1, 2008, and set up a task force to study the death penalty. Here's part of the bill digest for HB 1518:

Finds that historically most death sentences imposed in Washington have been reversed and rarely imposed. The legislature further finds that it is in the state's interest to determine whether the state's capital punishment system is applied fairly and proportionally, and whether the continued allocation of substantial time, resources, and moneys spent on capital trials and appeals is warranted. * * *
Creates a death penalty task force for the purpose of conducting a review of the existing death penalty statutes and court rules to determine the following:

(1) The uniformity of decision making by prosecuting attorneys in terms of charging defendants with aggravated first degree murder and the criteria used in such decisions;
(2) The impact of race, ethnicity, gender, and economic status on the likelihood of a defendant being charged with aggravated first degree murder;
(3) The administration of Washington's death penalty law since the enactment of chapter 10.95 RCW to determine whether it is applied randomly or arbitrarily;
(4) The costs associated with capital trials and appeals;
and
(5) Whether there are revisions to existing statutes and court rules that, if implemented, would decrease the likelihood of an inappropriate imposition of the death penalty.

Related stories in the Times list four Executions in Washington since 1975 and the Washington state offenders awaiting execution

States Settle with Bayer for $8M

Washington sued Bayer Corp. in King County Superior Court for failing to warn prescribers and consumers of side effects from a cholesterol drug that has since been removed from the market. Washington was joined by 29 other states. Without admitting any wrongdoing, Bayer has now settled for $8 million. McKenna Announces $8 Million Settlement with Bayer Corporation, AG's press release, Jan. 25, 2007. The complaint and consent decree are here.

Direct Testimony Exercise

Robert Boggs advises lawyers to paint a picture with direct testimony. And as a little exercise, he invites you to read a descriptive paragraph (that he provides) and work through the questions that would elicit the facts. Paint a picture with direct testimony, Washington Trial Law, Jan. 17, 2007.

Wash. Construction Law Case

Washington Supreme Court overturns "completion and acceptance" doctrine, according to Robert Boggs at the Washington Trial Law blog (Jan. 20). The doctrine says that a contractor won't be liable to third parties for negligence once the job is completed and the owners have accepted it. Now the court adopts Restatement (2d) of Torts sec. 385, which imposes liability based on foreseeability.

The case is Davis v. Baugh Industrial Contractors, Inc. (Jan. 18, 2007), Washington courts links: majority (Chambers, J.), dissent (J. Johnson, J.).

Retired Federal Judge Blogs

Retired federal judge H. Lee Sarokin (D. N.J., 3d Cir.) has started a blog: X-Judge. His "first entry in to the world of blog" (Dec. 9) was because he was "astonished by the lack of outrage over the case of Jose Padilla---an American citizen who has been held in solitary confinement for 31/2 years, been deprived of the right to counsel for 21 months, all as a result of the unfettered discretion of the President in designating Mr Padilla as an 'enemy combatant'." Subsequent comments have been equally forceful.

Bar News Looks at Public Defense

The February issue of the Washington State Bar News features public defense:

Articles

• Public Defense: Guaranteeing Justice for All by Chief Justice Gerry L. Alexander
  
• Making Gideon Real: Washington Counties and the Duty to Provide Effective Assistance of Counsel by David F. Taylor, Don Scaramastra, and Beth Colgan
  
• The State's Role in Defining the Constitutional Right to Counsel in Gideon by Rob McKenna
  
• Counsel for Poor Criminal Defendants: An American Tradition by Joanne Moore
  
• Right to Counsel Remains Threatened in Washington by Robert C. Boruchowitz
  
• Improving Public Defense in Washington: A Progress Report by Rafael Gonzales
  
• Effective Public Defense — Benefits to the Bottom Line by Mary Jane Ferguson
  
• Maintaining a Healthy Criminal Justice System by Tom McBride

Columns

• President's Corner: Our Constitutional Commitment to Justice by Ellen Conedera Dial 
  
• Executive's Report:Justice in Jeopardy: Where We Started and Where We Have Yet to Go! by M. Janice Michels

Conspirators Testifying Against Each Other

Christine Hurt at the Conglomerate Blog has some reflections on a medieval practice whereby conspirators who testified against their fellows were let off if the fellows were convicted -- but executed if their fellows were acquitted! The Practice of "Approvement", Jan. 26, 2007. She read about this practice in Neal Katyal, Conspiracy Theory, 112 Yale L.J. 1307 (2003).

Lessons from Football

Elliott Wilcox offers A Lesson from the Florida Gators About Winning Cases, Winning Trial Advocacy Techniques, Jan. 15, 2007. Everyone thought the Ohio State Buckeyes were a shoo-in, but the Florida Gators whopped 'em anyway. The lessons? 1. Ignore the hype. 2. Practice, practice, practice. 3. Know your opponent. (Elliott elaborates nicely on each of these.)

This link was sent in by Bill Pryme-Fuld, who says he can't "get enough of sports intertwining with law, especially when it comes to trial work." Any other good sports-and-law items out there?

By the way, Elliott Wilcox had his Trial Theater website for years (longer than I've been blogging anyway). In September, he started this Winning Trial Advocacy Techniques blog. He always has good, sensible advice. Take a look! Or a listen, since he also offers a weekly podcast.

Civil Rights Guide for Cops

The International Association of Chiefs of Police has a new handbook, Protecting Civil Rights: A Leadership Guide for State, Local, and Tribal Law Enforcement.

With funding from and collaboration with the Office of Community Oriented Policing Services (COPS), a component of the US Department of Justice, IACP produced this guide as a comprehensive overview of the civil rights issues and challenges that face today’s law enforcement leaders. The guide describes the processes by which agencies with alleged “pattern or practice” civil rights violations are investigated and monitored. It offers lessons learned, resources, and strategies for protecting and promoting civil rights across the varied communities’ police agencies serve.
Topics addressed include:

• Federal “Pattern or Practice” Civil Rights Investigations and Agreements
• The Pivotal Role of Community Policing
• The Benefits of Early Intervention Strategies
• Effective Management of Use of Force
• Fair and Open Investigation of Citizen Complaints
• Bias-free Policing
• Personnel and Data Management Issues Related to Civil Rights

Thanks: Be Spacific.

MethResources.gov

A new federal website brings together lots of resources about methamphetamine: MethResources.gov. Cosponsored by the White House office of National Drug Control Policy, the Department of Justice, and the Department of Health and Human Services, it includes information for law enforcement and public safety; prevention and education; treatment and health; parents and youth; business, retail, farmers, and landlords; and policymakers and legislators.

Meth in Your State lets you find local resources. For example, I found a December 2006 report from the Washington Department of Ecology listing Meth Incidents Responded to by County for Jan.-Nov. I had heard that Pierce County has a lot of meth labs, and now I can see the numbers: out of 390 incidents, 148 were in Pierce County. The next highest county was King, with 63.

Thanks: Be Spacific.

Stanford Securities Class Action Clearinghouse

Interested in tracking what's happening with securities class actions? Then the Stanford Securities Class Action Clearinghouse is for you. It

provides detailed information relating to the prosecution, defense, and settlement of federal class action securities fraud litigation. The Clearinghouse maintains an Index of Filings of 2468 issuers that have been named in federal class action securities fraud lawsuits since passage of the Private Securities Litigation Reform Act of 1995. The Clearinghouse also contains copies of more than 18,800 complaints, briefs, filings, and other litigation-related materials filed in these cases.

It just issued a report reviewing 2006 and finding that securities class action filings were at an all-time low.
Graphic from Securities Class Action Clearinghouse.

Thanks: Be Spacific.

Libby's Lawyers Want to Know Immunity Deal

Scooter Libby's lawyers are trying to find out what sort of a deal special prosecutor Patrick Fitzgerald made with former White House press secretary Ari Fleischer in order to gain his testimony. Lawyers Probe Fleischer's Immunity Deal, Washington Post, Jan. 27, 2007.

Today Fleischer "said he sought the deal after reading about the investigation and worrying, 'Oh my God. Did I somehow play a role in outing a CIA operative?' He insisted he believed throughout that the information was not classified." Fleischer Recalls Discussion About Plame, Washington Post, Jan. 29, 20007.

Documents from the Libby trial are on this AP site. They include Fleischer's immunity order.

Stephanie Knightlinger sent me this, with a note that "the Libby trial is fascinating especially from a procedural standpoint of both the prosecutors and defense counsel."

Defendant Can't Insist on Bench Trial

The trial court granted defendants' motion for a bench trial over the government's objection. The government then went to the Ninth Circuit, seeking -- and getting -- an order of mandamus to compel a jury trial. United States v. United State District Court for the Eastern District of California, 464 F.3d 1065 (9th Cir. Oct. 3, 2006) (per curiam), 9th Cir. link.

The four defendants were charged with acts involving interstate travel and about ten years of ritual sexual abuse of their children. (One couple lived in California, the other in Texas.) They moved for a bench trial because the molestation was so horrific that no jury could fairly consider their argument that the government could not prove knowledge and intent at the time the children were sent from state to state. When the judge granted the motion, he said:

I know I can give both sides a fair trial, if this is a court trial. I do not know that I can rule correctly on every one of the evidentiary objections that might be deemed to deny defendants a fair trial if we have a jury.

The Ninth Circuit panel, though, was "left with 'the definite and firm conviction that a mistake has been committed.'" Id. at 1071. The panel was "confident that the able and experienced trial judge is fully capable of ensuring these defendants an impartial trial" -- and offered suggestions for doing so, including extensive voir dire and limiting "bad acts" evidence, cumulative evidence, and the number of witnesses.

Mr. Harrod has already been convicted of 32 counts of sexual abuse in state court, affirmed on appeal. People v. Harrod, 2006 WL 3366146 (Cal. App. Nov. 21, 2006). For more about him, see The patriarch, polygamy and power, Sacramento News & Review, May 29, 2003.

Lay Witness Can Testify About Pot

A woman was convicted in a bench trial of distributing a controlled substance to a person under 21. The minor was her 18-month-old daughter whom she had smoke marijuana from a waterpipe (bong). But was it marijuana? A lay witness testified that it was, but was that testimony property admitted?

The chief witness was the friend who turned her in. The friend testified that they were smoking residue scraped from the side of the bong. Based on her 20 years of experience smoking marijuana, she said that the residue was marijuana residue and had chunks of marijuana. Moreover, she also smoked from the same bong that the toddler did, and the taste and smell of the substance and the effect it had on her led her to conclude that it was marijuana.

The Ninth Circuit found no error in admitting the testimony. It also found there to be sufficient evidence to convict. It reversed the trial judge's interpretation of a sentencing statute and remanded for a new, shorter sentence. United States v. Durham, 464 F. 3d 976 (9th Cir. Sept. 22, 2006), Findlaw link.

Med Mal Appeal Raises Procedural Issues

Division 1 recently addressed a number of procedural issues in an appeal by Stevens Hospital of a $17 million verdict. Lafferty v. Stevens Memorial Hospital, 2006 WL 3775848 (Wash. App. Dec. 26, 2006)(unpublished), Findlaw link.

Since the opinion is unpublished, it's not of interest as precedent. But the size of the verdict makes it newsworthy (or blogworthy) -- and no doubt affected the decision to appeal (and will affect the decision whether to appeal further).

When Tami Lafferty was about 36 weeks pregnant, she noticed that her fetus was not moving much. Over the next several days, she visited her doctor and the hosptal for various check-ups and tests. It was only after the fetus suffered cardiac arrest that the medical professionals decided to deliver the baby through an emergency caesarean. But by that time, he had been deprived of oxygen so long that he had suffered brain damage, and he is now disabled. The plaintiffs' experts testified that he would not have suffered the brain damage if he had been delivered before the cardiac arrest.

By the time of the appellate decision, the hospital was the only remaining defendant -- individual doctors, a clinic, and an imaging lab had all settled. The hospital argued that the trial court abused its discretion in denying several motions for a mistrial during the course of the trial. Making that case is tough, since trial judges have broad discretion in how they manage trials:

The trial court's decision to deny a motion for mistrial will be overturned only "when nothing the court can say or do would remedy the harm caused by the irregularity[,] or ... when the harmed party has been so prejudiced that only a new trial can remedy the error." In considering a motion for a mistrial based on the misconduct of counsel, the moving party must establish that the conduct "complained of constitutes misconduct (and not mere aggressive advocacy) and that the misconduct is prejudicial in the context of the entire record."

(citations omitted). Here the Court of Appeals was not persuaded that any of the alleged problems below were sufficiently prejudicial to merit reversing the trial court. The issues were:

• Voir dire: Plaintiffs' attorney told the venire that he had won a $13 million verdict against the City of Seattle. Was that impermissibly inviting the jury to return a large verdict? The comment was improper, but the trial court sustained the defense objection and the attorney moved on. The comment was isolated.
• Speaking objections: Both sides sometimes made "improper comments when making evidentiary objections" -- but the trial court dealt with them and they did not deprive the hospital of a fair trial.
• Closing arguments: In context, plaintiffs' attorney's comments were proper. Besides, the hospital didn't object at the time so it "cannot show the remarks were so flagrant and prejudicial that a contemporarneous objection and curative instruction could not have addressed any potential prejudice." (n. 19)
• Shadow jury: The plaintiffs hired a jury consultant who in turn hired three "shadow jurors" to listen to the evidence during the trial (and presumably answer questions from the consultant about what they thought). The consultant did not tell them which side they were working for. At one point during the trial, the three shadow jurors went to the jury lounge to eat their lunch. One of them asked a real juror in the case a question about parking validation. Afterwards, the judge questioned the consultant and the shadow jurors but, contrary to the request of the defense, did not question each real juror individually. The Court of Appeals concluded that the trial court's inquiry was appropriate.
• Evidence that the ultrasound technician was suspended after the incident: The court ruled in limine that the parties would not mention this. But plaintiffs' counsel inadvertently didn't edit out two mentions of it from a videotaped deposition shown to the jury. The court was within its discretion to deal with the problem with a curative instruction.
• Admissibility of personnel file: The hospital argued that it was error to admit certain information from the technician's personnel file because it was allegedly created for a quality improvement committee. Again: no abuse of discretion.
• Spoliation instruction: The hospital didn't like it that the court instructed the jury that "[w]hen a party fails to produce relevant documentary evidence within its control, without satisfactory explanaation, the inference is that such evidence would be unfavorable to the non-producing party." In this case, the missing evidence was a schedule for ultrasounds on the night Ms. Lafferty was supposed to have a special test. The instruction was supported by the evidence -- no error.
• Evidence of future benefits -- OK for the trial court not to let the defense bring in evidence of benefits the child will receive at his state-funded school (in NJ) until he's 21.

See earlier post for a news story at the time of the verdict.

U.S. Attorney Appointments

Controversy is heating up about the process for naming U.S. attorneys. Formerly, local district judges made an interim appointment when a vacancy came up. Now, under a provision in the USA PATRIOT Act, the Attorney General can make interim appointments for indefinite periods. U.S. attorneys' selection is questioned, Seattle Times, Jan. 28, 2007.

Critics say the change is a move by the Bush administration to avoid the Senate confirmation process and reward its insiders. The administration replies that the change was to avoid a separation of powers issue.

The controversial interim appointments are people who served in Washington, DC, in the White House, the Justice Department, or (in one case) in Sen. Orrin Hatch's office. A criticism is that they have few ties to the communities they are appointed to serve. The interim appointment in the Western District of Washington, Jeffrey Sullivan, is an exception. He has been serving as the head of the Criminal Division here, and before that was for 27 years the prosecutor in Yakima County (just outside the Western District, but MUCH closer than Washington, DC!).

It is not clear how long Sullivan will hold the top job. Rep. Dave Reichert, R-Auburn, has asked a panel of local lawyers and law-enforcement officials to identify potential permanent replacements for McKay.

Democratic lawmakers have proposed bills that would change the system:

• H. R. 580, "To amend chapter 35 of title 28, United States Code, to provide for a 120-day limit to the term of a United States attorney appointed on an interim basis by the Attorney General, and for other purposes." The administration could still appoint the interim USA, but if an appointment expired, then the district court would appoint someone to serve until the vacancy is filled. Sponsors: Berman, Conyers, Scott.
• S. 214, "Preserving United States Attorney Independence Act of 2007." District court would appoint the interim. Sponsors: Feinstein and Leahy.

Complaints about SPD's Use of Force

Minorities filed nearly half of the 268 complaints about use of force by Seattle police in 2003-2005. The police department's investigators found excessive force in only about 10 percent of those cases, but now they are reviewing them to see if there are patterns that need to be addressed. One problem: in many of the cases where people complained of excessive force, the officer had not filed a report on the use of force. Police say no link in racial bias, use of force, Seattle Times, Jan. 27, 2007. In the 2000 census Seattle was 70.1% white. City of Seattle Demographics.