Maleng Memorial Saturday

Maleng memorial service Saturday, Seattle P-I, May 29, 2007.

Maleng's #2 to Serve as Acting Prosecutor

Maleng's chief of staff will serve as acting prosecutor, Seattle Times, May 29, 2007. Dan Satterberg, the chief of staff, graduated from the University of Washington School of Law in 1985.

Satterberg to be Acting Prosecutor, Seattle P-I, May 29, 2007.

Political parties choose candidates to suceed Maleng as prosecutor, Seattle P-I, May 31, 2007.

County Councilman Bob Ferguson is running as a Democrat and interim prosecutor Dan Satterberg is running as a Republican, both with strong party backing, officials of both parties said Thursday.

Asylum Outcomes Vary Widely

The outcome of asylum cases varies widely depending on the judge and the court handling a case, according to a study of 140,000 decisions by immigration judges. Big Disparities in Judging of Asylum Cases, N.Y. Times, May 31, 2007.

In one of the starker examples cited, Colombians had an 88 percent chance of winning asylum from one judge in the Miami immigration court and a 5 percent chance from another judge in the same court.

The study is: Jaya Ramji-Nogales, Andrew Schoenholtz & Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L. Rev. (forthcoming 2007) (link is to May 15, 2007, draft on SSRN).

Thanks: Michele Storms.

Civil Right to Counsel Argued

Today the Washington Supreme Court hears arguments in King v. King, a case concerning the right to have court-appointed counsel in civil cases. Brenda Leone King was unrepresented in her divorce case and lost almost all custody of her children to her ex-husband, who had an attorney. She asked for a new trial, arguing that she should have had an attorney appointed for her. The superior court denied that request, and now the case is before the state Supreme Court. Should poor be appointed attorneys in civil cases?, Seattle Times, May 31, 2007; Should state pay for divorce lawyer?, Seattle P-I, May 30, 2007.

Amicus briefs have been filed by:

• the Washington State Bar Association. At its December meeting WSBA's Board of Governors adopted the recommendation of the amicus brief committee that it file a brief but not argue for a constitutional right to counsel in such cases.
  
  
• the National Coalition for a Civil Right to Counsel (see article about the coalition).



• the Washington State Attorney General Rob McKenna. The Times says that the AG opposes the right because of concerns about the financial impact on the state.



• Retired Washington State judges.



• the Washington State Legislatrue.



• Northwest Women's Law Center.



• the Washington State Association of Counties. The P-I says that the organization's position is that this is a matter better left to the legislature.
  
  
• a group of international human rights scholars. The motion for leave to file an amicus brief and the brief are available from Columbia Law School, Human Rights Institute, Bringing Human Rights Home Program. The brief was coauthored by Prof. Martha F. Davis (Northeastern) and Prof. Raven Lidman (Seattle University). The brief has a several-page table outlining the scope of the right to counsel for low-income civil litigants in European countries. The 16 professors listed in the motion are from around the country. In addition to Lidman, others from Washington are: Upendra D. Acharya (Gonzaga), George Critchlow (Gonzaga), Gwynne L. Skinner (Seattle U), Ronald C. Slye (Seattle U), Kristen A. Stilt (UW), and Mary Pat Treuthart (Gonzaga).

All the briefs are available from the Sargent Shriver National Center for Poverty Law.

Michele Storms is moderating a panel on this topic at the Washington State Access to Justice Conference on Saturday.

Experts Criticize Intelligence Interrogations

A panel of experts issued a report saying that the government's intelligence agencies do not yet have a good approach to interrogation. They contrast the intelligence interrogations during World War II, when the interrogators were fluent in the subject's language, knowledgeable about culture, and thoroughly prepared. Interrogation Methods Are Criticized, New York Times, May 30, 2007.

That's interesting and important as a news item. But the report can also be useful for trial advocacy:

The Intelligence Science Board study has a chapter on the long history of police interrogations, which it suggests may contain lessons on eliciting accurate confessions. And Mr. Borum, the psychologist, said modern marketing may be a source of relevant insights into how to influence a prisoner’s willingness to provide information.

“We have a whole social science literature on persuasion,” Mr. Borum said. “It’s mostly on how to get a person to buy a certain brand of toothpaste. But it certainly could be useful in improving interrogation.”

The 372-page report is:

Intelligence Science Board, Educing Information -- Interrogation: Science and Art -- Foundations for the Future (National Defense Intelligence College, Dec. 2006.

Chapters that look good for the domestic context:

2. Approaching Truth: Behavioral Science Lessons on Educing Information from Human Sources, Randy Borum, p. 17

3. Research on Detection of Deception: What We Know vs. What We Think We Know, Gary Hazlett, p. 45

4. Mechanical Detection of Deception: A Short Review, by Kristin E. Heckman and Mark D. Happel, p. 63

6. Custodial Interrogations: What We Know, What We Do, and What We Can Learn from Law Enforcement Experiences, by Ariel Neuman and Daniel Salinas-Serrano, p. 141

8. Negotiation Theory and Practice: Exploring Ideas to Aid Information Eduction, by Daniel L. Shapiro, p. 267

9. Negotiation Theory and Educing Information: Practical Concepts and Tools, by M. P. Rowe, p. 285

Book Honors Loftus, Discusses Psychology in Courtroom

Do Justice and Let the Sky Fall: Elizabeth Loftus and Her Contributions to Science, Law, and Academic Freedom (2006) is a collection of essays related to and honoring the work of Elizabeth Loftus (now of UC Irvine, for many years at the UW and still an affiliate professor in the Law School and the Psychology Department). According to the publisher:

For more than 30 years, renowned psychological scientist Elizabeth F. Loftus has contributed groundbreaking research to the fields of science, law, and academia. * * *

Do Justice and Let the Sky Fall collects research in theoretical and applied areas of human memory, provides an overview of the application of memory research to legal problems, and presents an introduction to the costs of doing controversial research. * * *

This multipurpose volume is intended to serve as a valuable resource for established scientists, emerging scientists, graduate students, lawyers, and health professionals.

The contents:

• Memory distortions: problems solved and unsolved / Elizabeth F. Loftus
• Tracking the birth of a star / Gordon H. Bower
• Elizabeth F. Loftus: the early years / Geoffrey R. Loftus
• Misinformation effects and the suggestibility of eyewitness memory
• Maria S. Zaragoza, Robert F. Belli, and Kristie E. Payment
• Loftus' lineage in developmental forensic research : six scientific misconceptions about children's suggestibility / Stephen J. Ceci and Maggie Bruck
• Verbal recall of preverbal memories: implications for the clinic and the courtroom / Harlene Hayne
• Illusory recollection in older adults : testing Mark Twain's conjecture / Henry L. Roediger and Mark A. McDaniel
• False memories / Deryn Strange, Seema Clifasefi and Maryanne Garry
• Incorporating Elizabeth Loftus's research on memory into reforms to proect the innocent / Jacqueline McMurtrie
• Elizabeth F. Loftus: warrior scientist / Mahzarin R. Banaji
• The cost of courage / Carol Tavris

The book is available in the Law Library: BF109.L64 E45 2006 at Classified Stacks.

How Juries Handle Med Mal Cases

Some critics of the tort system say that juries can't handle medical malpractice cases. Now Prof. Philip G. Peters, Jr. (Univ. of Missouri at Columbia) "collects and synthesizes three decades of empirical research on jury decision-making."

It turned out that juries agreed with outside experts evaluating the cases in 80-90% of the cases where evidence of provider negligence is weak.

In about half the cases that the experts think the plaintiffs should win, the juries find for the doctors. Why? Peters suggests that doctors may enjoy an advantage in court because of such factors as

the defendant's superior resources, the social standing of physicians, social norms against "profiting" from an injury, and the jury's willingness to give physicians the benefit of the doubt" when the evidence of negligence is conflicting.

Philip G. Peters, Jr., SSRN-Doctors & Juries, 105 Mich. L. Rev. 1453 (May 2007). (My quotations are from the abstract on SSRN.)

Thanks: Day on Torts.

Gotta Make a Record!

John Day (the Tennessee lawyer who writes Day On Torts) uses a Missouri case to remind readers that you have to make a record to prevent reversal on appeal. In this case, there was a settlement agreement that the plaintiffs refused to sign, saying that the attorney didn't have authority to make the settlement offer he did. The trial court, after a hearing with only oral argument (and no transcript), found that he did and entered judgment. But the Court of Appeals reversed. What did it have in front of it to do otherwise? Day on Torts: Failure to Make Record Causes Reversal, May 21, 2007.

Crosscut's Homage to Maleng

O. Casey Corr writes:

If any good comes from recent headlines about U.S. Attorney General Alberto Gonzales and the firings of John McKay and other U.S. attorneys, one benefit here is a deeper appreciation for Norm Maleng, the elected King County prosecutor who died yesterday.

* * *

Gonzales' displays of bad memory, indecision, weakness, misjudgment about subordinates, and tin ear for the distinctions between prosecutorial policy and improper politics stand in contrast to the legacy of integrity and competence left by Maleng.

A man of integrity and decency who saw the best in people, Crosscut, May 25, 2007.

Prosecutor's Office as Stepping Stone

David Brewster comments on offices as political stepping stones, saying that one effect of Norm Maleng serving for so long as King County Prosecutor was that young talent didn't rise from his post to other elected offices. (He says the same thing happens with Jim McDermott serving so long in his congressional seat.) An opportunity for new talent to rise in Washington politics, Crosscut, May 26, 2007.

It's true that no one else was King County Prosecutor and moved from there to statewide office. But Norm Maleng's office did nurture talent in the deputy prosecutor slot, and people moved on from there (e.g., Gary Locke from prosecutor to legislator to county executive to governor).

The office of prosecutor can be a stepping stone politically. Even if that's a consideration for the people who will seek the office, I hope that they also have the ambition to run a competent, fair office, ably prosecuting the crimes in our spread-out, urban, suburban, and rural county.

Pet food class action

About 75 class action suits have been filed against Menu Foods, the company that recalled canned pet food made with contaminated wheat gluten. Seattle pet owners part of class-action suit over tainted food, Seattle P-I, May 27, 2007.

Seattle lawyers Tom Baisch (Myers & Co.) and Steve Berman (Hagens Berman Sobol Shapiro) say they have consulted with more than 500 potential plaintiffs.
About 75 class action suits have been filed against Menu Foods.

Also quoted in the article is Adam Karp, who teaches an animal law class at the UW.

The article says that a panel of judges in Las Vegas will decide on Thursday where the 75 class action cases should be heard. That panel is the Judicial Panel on Multidistrict Litigation. The cases are listed on pp. 19-20 of its hearing list for May 31. There are three motions: one plaintiff moves for the cases (or certain of them) to be centralized in C.D. Cal.; one plaintiff moves for them to be centralized in S.D. Fla.; and five plaintiffs (from five separate suits) move for them to be centralized in W.D. Wash. An introductory brochure about the JPML is here.

Sentence in Convenience Store Killing

Christopher Bistryski, who pleaded guilty to second-degree murder, was sentenced by King County Superior Court Judge Nicole McInnes yesterday. Deputy's friend gets 24 years in clerk's slaying, Seattle P-I, May 26, 2007.

Senior Deputy Prosecutor Nelson Lee (also a Trial Ad instructor) is quoted as saying at the sentencing hearing that the defendant "executed" the clerk.

Part of the plea agreement was a promise not to prosecute Bistryski for a crime he committed two days before the killing.

See earlier post: Mental Health and Plea Deal.

Today's Stories about Norm Maleng

Maleng leaves a living legacy, Seattle Times, May 26, 2007. Maleng was a mentor to many lawyers, including some who have gone on to be judges (e.g., Ricardo Martinez, Robert Lasnik, Mary Yu) and even governor (Gary Locke).

Martinez said Maleng often told his prosecutors, "Our job is to do justice, and that doesn't necessarily mean a conviction."

Maleng also was influential in a range of legal and institutional developments -- the passage of Sentencing Reform Act, the development of drug court, the creation of a Special Assault unit, the passage of laws requiring registration of sex offenders.

Maleng's legacy remembered, Seattle P-I, May 26, 2007.

Even many of the county's defense attorneys, who often disagreed with many of Maleng's views on prosecuting crimes, were saddened.

"I don't think there is any opponent that I have ever had that I respected more," said Seattle defense attorney Jeff Robinson. "I respect him. I like him as a person. And I am afraid that we will not see his like again."

(Robinson, a partner in Schroeter Goldmark and Bender, is also a Trial Ad instructor.)

Maleng was a class act, with a big heart, Seattle P-I, May 26, 2007. Columnist Robert L. Jamieson Jr. recounts stories of Maleng's kindness to crime victims' families.

A man of faith, Maleng lived out the divine words of Scripture: Learn to do right; seek justice, encourage the oppressed, defend the cause of the fatherless, plead the case of the widow.

Norm Maleng: A man to emulate, Seattle P-I editorial, May 25, 2007.

David Horsey's tribute to Maleng, coming in Sunday's print P-I.

Aide will step in for now; after that, who knows?, Seattle Times, May 26, 2007.

• On Tuesday, the County Council will appoint one of Maleng's top assistants to serve as interim county prosecutor in the short term.
• Within 60 days the County Council will appoint an interim prosecutor. Since Maleng was a Republican, the appointment will probably be made from a list of names submitted from the county Republic party.
• In November, the voters will select a successor to serve the remainder of Maleng's term (till Dec. 2010). Candidates must file by June 8 -- so there will be a lot of people trying to make a big decision.

The article speculates about who might be in the running -- for both the interim appointments and the election.

Scramble on to fill Maleng's job, which has rarely gone vacant, Seattle P-I, May 26, 2007. More about the process of appointing interims and more about possible candidates (some overlap with the Times but also some different names). A couple of tidbits:

• Our county has only had 3 prosecutors in the last 59 years!
• Sen. Warren Magnuson began his political career as King County Prosecutor.

See also letters to the editor in the Times, May 26.

Update: See also The loss of an icon, Seattle Times editorial, May 27, 2007.

King County Prosecutor Norm Maleng Dead at 68

King County Prosecutor Norm Maleng died last night after suffering a heart attack. He was attending a Nordic Heritage Museum event at the University of Washington and was rushed to Harborview Medical Center.

It's not surprising that he was at a community event -- especially at the University of Washington -- because he often was, and he loved this university. His final hour was at the county hospital just up the hill from the county courthouse where he served for decades.

Norm Maleng, a Republican, was elected King County Prosecutor in 1978 and re-elected seven times, often by a landslide. (He received 97% of the vote in the last election!) He was unsuccessful in his bids for state-wide office, losing runs for governor and for attorney general.

Maleng was widely respected -- by Democrats and Republicans, by prosecutors and defense attorneys -- for his integrity and compassion.

Last fall the ABA Criminal Justice Section honored Maleng:

During the Disaster Preparedness Conference in New Orleans, the Minister of Justice Award was presented to Norman Maleng, King County prosecuting attorney, Seattle, Washington. Maleng served as King County prosecutor since 1978. In that capacity he has embodied the principles enunciated in the ABA Standards for Criminal Justice, Prosecution Function, particularly: “The duty of the prosecutor is to seek justice, not merely to convict.” His impact on the justice system has been statewide and beyond with involvement in victims’ rights, laws involving the civil commitment of sex offenders, and a Juvenile Justice Act that provides an improved framework to intervene in the life of a troubled youth.

Criminal Justice, Winter 2007, at 61. Maleng served at the chair of the Criminal Justice Section in 2003-2004.

His ties to the University of Washington School of Law were long and tight. He served at editor-in-chief of the Washington Law Review as a student, and volunteered in many capacities as an alumnus. The UW law school's Alumni Association honored him with its Distinguished Alumni Award in 1993 and the Henry M. Jackson Distinguished Alumni Public Service Award in 2004. At the time of his death he was president of the Washington Law School Foundation and co-chair of the law school's capital campaign.

Both local dailies have long obituaries:

* Longtime prosecutor Norm Maleng dies, Seattle Times, May 25, 2007.
* Norm Maleng Dead at 68, Seattle P-I, May 25, 2007.

See also this profile excerpted from Washington Law and Politics and Dan Satterberg, Dedicated Prosecutor Keeps Swinging Away, Bar Bull., June 2005.

Update: See May 26 post.

Cat in Sting of Fake Vet

How do you catch someone who is fraudulently pretending to be a veterinarian? Police in Brooklyn set up a sting with a shelter kitten. Told that the cat needed to be neutered, he took the cat and $135. The "vet" pleaded guilty and was sentenced to probation and mental health treatment. The cat got a tiny badge for his collar and was honored at a couple of events. Fake Veterinarian in New York City 'Undercover Kitten' Sting Sentenced to Probation, AP (law.com), May 24, 2007.

Photo: "Tabby cat with pet license," from Clark County, Wash., Animal Protection and Control.

Supreme Court Rule Changes?

Last week (May 14) the Supreme Court released for comment proposed changes to its rules. One change of note is in the rules governing amicus curiae briefs. Tony Mauro, New Supreme Court Rule Would Force Advocacy Groups to Reveal Membership Rolls, Legal Times (Law.com), May 24, 2007.

Currently, an amicus must state in its brief whether counsel for a party drafted all or part of the brief. Under the the proposed rule (R. 37.6), the brief must state that and whether a party or a party's attorney is a member of the organization or made a monetary contribution to the preparation or submission of the brief.

On the one hand, this makes complete sense. Suppose I'm a litigant and wealthy. Would it be fair for me to be able to use my wealth to dummy up fake advocacy organizations (Citizens' Association in Favor of Whatever) to write amicus briefs on my behalf? What if I could co-opt existing organizations and get them to submit briefs to support my side simply by writing enough checks?

On the other hand, many advocacy groups have worked hard to keep private their membership lists. The Supreme Court upheld their right to do so in NAACP v. Alabama, 377 U.S. 288, Findlaw link (1964).

One group that often submits amicus briefs is the U.S. Chamber of Commerce which, according the article, places a high premium on the secrecy of its membership list and promises members that it will never reveal that they're members.

Another change for amici (R. 37.2(a)) would tighten up the time for them to file briefs, with no possibility of extensions.

A change affecting parties is in the way length of briefs (and other documents) is counted -- if it's adopted, the limits will be word counts not pages (R. 33.1(1)(g)).

The proposed changes are available here.

S. Ct.: Parents Can Litigate on Behalf of Child's Educational Needs

Tony Mauro, High Court Rules Parents Can Litigate on Behalf of Child's Educational Needs, Legal Times, May 21, 2007. The case is Winkelman v. Parma City School Dist. (May 21).

What If SCOTUS Goes on TV?

First Impressions, the online publication of the Michigan Law Review has a Symposium on Televising the Supreme Court.

Will 12(b)(6) "b" easier?

In Bell Atlantic Corp. v. Twombly, decided on Monday, the Supreme Court addressed the specificity of pleading necessary to survive a 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.

Twombly and others represented a class of phone and internet subscribers. They alleged that phone companies had conspired not to compete, citing the companies' parallel markets.

The district court granted defendants' 12(b)(6) motion. The Second Circuit reversed, saying the defendants needed to show there was no set of facts that the plaintiffs could prove that would prove the elements of the claim. And the Supreme Court reversed that:

we do not require heightened factpleading of specifics, but only enough facts to state a claimto relief that is plausible on its face. Because the plaintiffshere have not nudged their claims across the line fromconceivable to plausible, their complaint must be dismissed.

majority slip op. at 24.

"The Twombly opinion not surprisingly has caused quite a stir in civil procedure circles." Is Twombly the Death-Knell for Notice Pleading?, SCOTUSblog, May 24, 2007. See that post for a little analysis and links to other commentary.

Thanks: Lea Vaughn, Mary Hotchkiss.

Ex-Aide Admits Political Slant in Justice Role - New York Times

Ex-Aide Admits Political Slant in Justice Role, New York Times, May 23, 2007:

A former top Justice Department aide testified on Wednesday that she had “crossed the line” in considering the political beliefs of applicants for nonpartisan legal jobs and suggested that earlier testimony by Attorney General Alberto R. Gonzales and another top official about the dismissals of federal prosecutors may have been flawed.

Monica M. Goodling, the former Justice official, told a House panel that she regretted favoring applicants with Republican credentials for lower level prosecutor jobs or prestigious postings at Justice headquarters, actions that could violate federal employment laws.