Continuing Effects of Andress

In 2002, the Washington Supreme Court held that assault could not be the predicate felony for second-degree felony murder. In Re Andress, 147 Wn. 2d 602, Legalwa link (2002). In the wake of this case, many convictions were vacated and prosecutors around the state needed to figure out how to respond.

A year ago, one local case (Jerell Thomas, in the "Mardi Gras riot" case) was resolved by the defendant pleading guilty to second-degree manslaughter and getting a sentence five years shorter. Earlier post. In another case, Chayce A. Hanson, sentenced to 25 years for killing a small child he was babysitting, pleaded guilty to lesser charges and got 10-year sentence. Natalie Singer, Ruling overturns conviction in girl's death; man gets reduced sentence, Seattle Times, Sept. 30, 2006.

Now another defendant who was prominent in the local news faces new charges. Natalie Singer, New charges in officer's fatal shooting, Seattle Times, March 7, 2007. Quentin Ervin, one of the men convicted of killing off-duty police officer Antonio Terry in 1994, was charged with aggravated first-degree murder and the lesser included offenses of first-degree murder and second-degree felony murder. The jury convicted him of the least serious offense, second-degree felony murder. After Andress, the felony murder conviction was vacated.

The state wanted to retry him on the first two charges, but could it? Wouldn't that be double jeopardy? The Supreme Court unanimously held that it could, because the non-convictions on the first two offenses (for which the jury left the verdict forms blank) were not implied acquittals (that would have resulted in jeopardy attaching) -- they could have represented the jury's failure to agree. State v. Ervin, --- Wn.2d ---, Findlaw (Nov. 30, 2006) (Bridge, J.). And so King County prosecutors filed new charges on Tuesday. Deputy prosecutor (and Trial Ad instructor) Scott O'Toole says that the state plans to go to trial, but a plea agreement is still possible.

(If there were a prize for Trial Ad Instructor Most Often Mentioned in Newspapers, Scott would win it, hands down. I have a LexisNexis Eclipse search for all of their names, not just his.)

The legislature was unhappy with Andress and quickly (chapter 3 of the next legislative session) amended the felony murder statute (RCW 9A.32.050(b)) to make it clear that assault can be a predicate felony:

(1) A person is guilty of murder in the second degree when:
* * *
(b) He or she commits or attempts to commit any felony, including assault, * * * and, in the course of and in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants; * * *

Id. (emphasis added). The legislature also included a statement of findings and intent indicating that it believed the statute had been clear all along and the Supreme Court was mistaken -- but, since the court had ruled as it had, a curative amendment was necessary.

Fitzgerald's Closing Argument in Libby Trial

The Washington Post discusses Special Counsel Patrick J. Fitzgerald's closing argument in the Libby case:

Fitzgerald would respond with great frustration in his summation at Libby's trial almost three years [after his initial interview with Libby], saying that Libby's lies had effectively prevented him from learning about all of Cheney's actions in the administration's campaign to undermine Plame's husband, Joseph C. Wilson IV, a critic of the U.S. invasion of Iraq.

More than he had previously, Fitzgerald made clear in those remarks that his search for the truth about Cheney was a key ambition in his probe and that his inability to get it was a key provocation for Libby's indictment. Although Cheney was the target, Fitzgerald's investigation could not reach him because of Libby's duplicity.

Cheney's Suspected Role in Security Breach Drove Fitzgerald, Washington Post, March 7, 2007.

After Libby's lawyers complained that he was trying to put a "cloud" over Cheney without evidence to back it up, Fitzgerald told the jury on Feb. 20, "We'll talk straight."

There was, he said, "a cloud over what the vice president did" during the period before Novak's column was published, and it was created by testimony about Cheney directing Libby and others at the White House to disseminate information on Wilson and Wilson's criticisms.

"We didn't put that cloud there. That cloud remains because the defendant obstructed justice and lied about what happened," Fitzgerald added.

Id.The Post also helps us sort out the confusing chain of events, allegations, and evidence graphically in Fact vs. Fiction in the Libby Case, March 7, 2007, and What the Jury Decided About These Libby Statements, March 7, 2007.

Thanks: Stephanie Knightlinger.

McKay Testifies

Former U.S. Attorney testified in Congress yesterday. Did the Administration ask him to resign because of performance issues or because of partisan dissatisfaction about his investigation of alleged vote fraud in the 2004 gubernatorial election? An aide to Rep. "Doc" Hastings (R - Wash.) called McKay twice to ask about the election issue. And the Times website includes a 2005 letter from the Building Industry Association of Washington to Rep. Hastings asking him to call on President Bush to fire McKay. McKay goes down fighting, Seattle Times, March 7, 2007.

The Washington Post has a nice graphic (March 6) listing the eight fired U.S. attorneys, quoting from their job reviews, listing significant cases, and adding other notes.

McKenna Meets with Gonzales

Attorney General Rob McKenna meets today with U.S. Attorney General Alberto Gonzales, press release, March 6, 2007.

McKenna is in DC for the spring meeting of the National Association of Attorneys General, along with 45 other attorneys general and their staffs, plus a couple of hundred federal officials and representatives of law enforcement and trade groups. NAAG press release, March 5, 2007.

Why 24/7?

Responding to someone who says that lawyers need to be available to their clients 24/7 in order to be competitive, Dave Swanner asks: why?

Other than a rare emergency, what purpose does it serve to be available 100% of the time to your client? If you have good communication with your client and their case is up to date, why would they need to call you at 8:00 p.m. on a Thursday evening? Other than a rare emergency, what purpose does it serve to be available 100% of the time to your client? If you have good communication with your client and their case is up to date, why would they need to call you at 8:00 p.m. on a Thursday evening?

How Connected Should You Be to Your Client?, South Carolina Trial Law Blog, Jan. 14, 2007.

Dave is a very techie guy and fully appreciates connectedness, but he thinks there ought to be limits:

When I travel, I call clients and check in on them. I sometimes call clients on Sunday afternoon to see how their treatment is doing and to make certain all of their questions have been answered. I appreciate my Treo, GoToMyPC and wireless internet. But I also think it’s important to set boundaries to have a personal and family life.

Sounds like good, solid advice to me!

Hearings re Axing of U.S. Attys

Six of the U.S. Attorneys who were recently dismissed by the Bush Administration are testifying before the Senate and House Judiciary committees today. Some attention is being directed at Republican politicians' possible pressure of David Iglesias, the former U.S. Attorney in New Mexico. His office was investigating some Democrats but had not filed charges. Before the election Rep. Heather Wilson called him to ask about the case. A couple of weeks later Sen. Pete Dominici called him (at home!) a couple of weeks later. There's talk of ethics investigations in Congress. Fired U.S. Attorney Testifies on New Mexico Lawmakers, Washington Post, March 6, 2007.

Former judge H. Lee Sarokin says he is opposed to having U.S. Attorneys testify before congressional committees.

Although I am in favor of the Justice Department being called upon to explain and justify these dismissals, I fear that those hearings, as well, will be demeaning to the discharged U.S. Attorneys. The government will parade out a litany of faults and failures to justify and excuse its decision to discharge them. When the hearings are over, we will know what we know today: The decision to discharge and replace these dedicated public servants was based upon political not personnel considerations.

http://x-judge.blogspot.com/index.html">The Injustice Department, March 3, 2007.

Libby Found Guilty in CIA Leak Case

Today the jury found I. Lewis "Scooter" Libby guilty of "two counts of perjury, one count of making false statements and one count of obstruction of justice, while acquitting him of a single count of lying to the FBI." Libby Found Guilty in CIA Leak Case, March 6, 2007.

The Washington Post articles gives an excellent recap of the whole trial.

Open Government Event at UW

A national webcast ("Closed Doors? Open Democracies?") will discuss open access to government documents Monday, March 12, 10:00-12:30 (our time). It's sponsored by OpenTheGovernment.org and a number of library and journalist organizations.

After the webcast, we'll have two great local speakers:

• Steve Miletich, one of the reporters who researched and reported the Seattle Times's terrific series on sealed court records ("Your Courts, Their Secrets")
• Armen Yousoufian, a board member of Washington Coalition for Open Government and the plaintiff in "the largest and most successful Public Disclosure Act lawsuit under any state open records act in U.S. history," Yousoufian v. Sims, which sought documents related to the construction of the Seahawks stadium and demotion of the Kingdome. Documents and news coverage of the case are on Yousoufian's website.

This free event is hosted by the University Libraries and cosponsored by Law Librarians of Puget Sound, Washington Coalition for Open Government, and Washington State Library. (Fittingly, it is open to the public.)

Where? Odegaard Undergraduate Library, Room 220. Parking & Directions:

To register, click here.

UW's Champion Moot Court Team in Daily

The campus paper, the Daily, today ran a good story about the UW moot court team's victory at the National Moot Court Competition in New York last month. Moot Court Law students place first in national competition, The Daily, March 5, 2007. See earlier post.

Lefty Lawyer Lynne Stewart Speaks at SU

New York lawyer Lynne Stewart, who was sentenced to prison on charges of abetting terrorism, speaks at Seattle University on Saturday, March 10, 7-8:30 p.m. Seattle University - Campus Calendar - Lecture with Civil Rights Attorney Lynne Stewart. Her talk, "My fight for Justice in Patriot Act America," is cosponsored by a number of groups, including the National Lawyers Guild - SU Law School Chapter and Radical Women.

For lots more info about Ms. Stewart, see www.lynnestewart.org.

How to Learn Your Craft

Starting from discussions of the work-life balance in law firms, Anthony Colleluori offers some advice for young lawyers. The Work Life Balance in Law Firms. Two Sides of the Debate, That Lawyer Dude, Feb. 11, 2007.

Learning the law, does not happen between 9-5 or even 8-6. It is the reading and working done when the phones stop ringing and the partners stop screaming that permits the opportunity for learning to take place.

He recommends reading advance sheets (since many of our students read all their cases online, I'll note that these are pamphlets with reports of new cases) and the daily bar journal (Washington doesn't have one -- whew!). He also says "reading transcripts of trials and issue spotting the appellate issues is a good tool in learning how to put a question, and on how to object and preserve a record." To understand jurors better, he says it's a good idea to read People, Ebony, Woman's Day, Sports Illustrated, and other magazines that jurors read.

He thinks that a "regular work week" for young lawyers should be 10-12 hours Monday through Thursday (alternating 10 and 12-hour days). Friday they can leave after 4:00. "Saturday or Sunday is meant for renewal but a few hours either in the office or at home working on self improvement or office work should be required." Then he adds: "The key to this is that the lawyer should want to do this." (emphasis added)

What about families? He says that in his firm, he considers people for partnership at six years out, even if they have taken maternity or paternity leave, as long as they've been there two years.

Any thoughts on this? Lawyers, is this what you expect of young lawyers in your settings?

Supreme Court Limits Punitive Damages

Last month the Supreme Court reversed the Oregon Supreme Court's decision upholding a huge ($79.5 million) verdict against Philip Morris. The Court said that punitive damages can, as a constitutional matter, only be based on injuries to the parties to the litigation -- not "strangers to the litigation." The case is remanded to the Oregon Supreme Court for further consideration. Court limits punitive damages, SCOTUSblog, Feb. 20, 2007.

The opinion, Philip Morris USA v. Williams, --- U.S. --- (Feb. 20, 2007) is here.

Justice Breyer wrote for a five-judge majority (including Chief Justice Roberts and Justices Kennedy, Souter, and Alito). Justices Stevens, Thomas, and Ginsburg filed dissenting opinions; Justices Thomas and Scalia joined Ginsburg's opinion. (Just when you think you can predict voting alignments based on stereotypes about political leanings or judicial philosophy, the justices go and mix it up.)

Update (March 5): Former district court judge H. Lee Sarokin thoughtfully discusses this issue (can punitive damages punish a defendant for harm to people other than the plaintiff?) in his blog. Punishing Punitive Damages, X Judge, Feb. 23, 2007. He faced the issue himself in Juzwin v. Amtorg Trading Co., 705 F. Supp. 1053 (D. N.J. 1989):

[I] concluded that multiple awards of punitive damages based upon injuries to others violated the due process clause, the only decision I ever made that was praised by the Wall Street Journal. Despite that praise, I eventually and unilaterally withdrew the decision, concluding that I did not have the power or authority to effectuate such a decision---that it required the Supreme Court or the Congress to do so. The Supreme Court has now spoken, but I continue to have the same concerns expressed above. The ability of citizens to punish others for outrageous conduct in instances in which government cannot or will not is a power worth preserving, but it is essential that guidelines be established so as to lead courts through this current quagmire.

Profile of Detective Work in Sex Abuse Case

The Seattle Times yesterday profiled the work of the Redmond detective who investigated the case against Enrique Fabregas, the foster father who allegedly abused the girls in his care. Maureen O'Hagan, Sex-crime cop's pursuit: Who was telling the truth?, March 4, 2007.

Former Trial Ad instructor David P. Moody represents two of the foster daughters -- now adults -- in a civil case. [Correction, 3/6/07: He represents all three alleged victims.] King County prosecutor (and Trial Ad instructor) Scott O'Toole is quoted saying of the detective "she's somewhat unorthodox in her approach but her instincts oftentimes prove correct."

King County Law Library Podcasts

The King County Law Library started producing podcasts in the fall. They offer a variety of information -- from research tips to beer recommendations.

The Jan. 29 episode is about disability law and includes an interview with Judge Catherine Shaffer about ensuring access to the courts for people with disabilities. She was cochair of the committee that produced Ensuring Equal Access for People with Disabilities: A Guide for Washington Courts (Aug. 2006). The guide is aimed particularly at court staff, but trial attorneys should review it too. How will you examine a witness who is blind, serve a client who needs a wheelchair, or argue to a jury that includes someone who uses a sign language interpreter?

(Judge Shaffer has been a Trial Ad instructor in past years.)

The Feb. 15 podcast focused on things the commentators love, in honor of Valentine's Day. You might be interested in Craig's top five courtroom dramas (and Stina's Hollywood gossip related to them).

Costs of Conflict

Stewart Levine -- an author and consultant in alternative dispute resolution -- wrote about The Many Costs of Conflict in the Dec. 2006 issue of the ABA's Law Practice Management. He leads with the statistic that 20% of senior executives' time in Fortune 500 companies is spent on litigation-related activities. The cost of litigation isn't just the attorneys' fees -- it's also this time, and the severed business relationships, and so on. Food for thought.

Supreme Court hears arguments in sentencing guidelines cases

JURIST - Paper Chase: Supreme Court hears arguments in sentencing guidelines cases, Feb. 20, 2007.

Can Parents Represent Child in IDEA case?

Can parents represent their child in a case under the Individuals with Disabilities in Education Act? Or is that practicing law without a license? The Supreme Court will decide. The 6th Circuit held that non-lawyers may not represent other parties pro se in court; the parents may represent their children in administrative proceedings. Supreme Court hears arguments in autistic child legal representation case, Feb. 27, 2007.

See Winkelman: Scalia frets over pro se burden on courts, Shlep: The Self-Help Law ExPress, Feb. 28, 2007.

This reminds me of one of the (many) interesting chapters in Legal Ethics Stories (KF306.A4 L43 2006 at Reference Area): "In re Arons: the plight of the 'unrich' in obtaining legal services, by David C. Vladeck. A working paper version of the chapter is on SSRN for download. Prof. Vladeck begins:

Marilyn Arons is nobody’s fool. Tall, with piercing blue eyes and a measured, powerful voice, she is an imposing presence in a courtroom. She is a riveting speaker. Her arguments are not simply lucid; they are forceful, well-reasoned, and almost always irresistible. She is in total command. It is no surprise that she wins most of her cases. And it is no surprise that for twenty-five years she has struck fear in the hearts of her adversaries — lawyers for school boards in New Jersey, Pennsylvania, New York, and, for a brief period, Delaware. Her clients — disabled children and their families — revere her. More than any other advocate, she has shaped the law governing the educational rights of disabled children. What makes this story even more remarkable is that Marilyn Arons is not a lawyer.

Special ed can be expensive, so schools don't always provide what a child needs without some pressure. IDEA sets up an administrative procedure to resolve disputes between families and school districts.

At IDEA hearings involving significant issues, like the placement of the child in a private school, the school boards and the states are represented by counsel. Rarely can parents find or afford lawyers. Anticipating this disparity, IDEA says that parents may be "accompanied and advised" in these proceedings "by counsel and by individuals with special knowledge and training with respect to children with disabilities. Mrs. Arons is an individual with special knowledge and training, with a record of success in due process hearings in many jurisdictions."

She helped families in New York, New Jersey, and Pennsylvania navigate the system, but when she started handling hearings in Delaware, the bar prosecuted her for unauthorized practice of law (UPL). And the Delaware Supreme Court agreed. In re Arons, 756 A.2d 867, Delaware courts link (Del. 2000).

It's quite a gripping -- and disturbing -- story about the barriers to access to justice.

San Diego diocese files for Chapter 11 bankruptcy over clergy abuse lawsuits

San Diego diocese files for Chapter 11 bankruptcy over clergy abuse lawsuits, Jurist - Paper Chase, Feb. 28, 2007. Our neighboring dioceses, Spokane and Portland, have company.

Crawford Not Retroactive

Supreme Court rules out-of-court witness statement rule doesn't apply retroactively, Jurist - Paper Chase, Feb. 28, 2007. The Court unanimously reversed the 9th Circuit's ruling that Crawford v. Washington applied retroactively to cases on collateral review. Bockting v. Bayer, 399 F. 3d 1010, as amended, 408 F. 3d 1127 (2005) (McKeown, J.), rehearing en banc denied, 418 F.3d 1055 (2005).

The case is: Whorton v. Bockting, --- U.S. --- (Feb. 28, 2007), Cornell LII link (Alito, J.).

Cold Case: Civil Rights Edition

FBI investigating suspicious civil rights era deaths, Jurist - Paper Chase, Feb. 28, 2007. The FBI is looking into 12 cases, including the lynching of four sharecroppers in 1946.

See also Mississippi grand jury fails to indict in 1955 Till murder case, Jurist, Feb. 27, 2007.