An Empirical Study Of The Value of Impeaching With Prior Inconsistent Statements

Two jury consultants and an attorney provide a long summary of their findings from a study of mock jurors: An Empirical Study Of The Value of Impeaching With Prior Inconsistent Statements, Drug and Device Law, May 15, 2007. My summary of the summary:

• Jurors go into civil trials expecting witnesses to tell the truth (72% believe witnesses will be as honest as possible).
• Most (60%) jurors believe that a witness making a statement that's inconsistent with earlier statements is lying, rather than making an honest mistake.
• Few jurors said that an inconsistency would make them disregard everything the witness said. They look to behavioral clues.
• Jurors will cut a witness slack if told that the inconsistency could be the result of the stress of being in the courtroom.

A longer article is in the April 2007 issue of For the Defense.

Plurality Opinions

The lead opinion in today's school desegregation cases only got four votes. Since a fifth justice agreed in the result -- invalidation of the school district's plans -- but not the reasoning, that lead opinion is a "plurality opinion," and everyone who wants to figure out where the law stands has a lot of sorting out to do.

This seemed like a good occasion to read up a little on plurality opinions and (why not?) share with you.

• Mark Alan Thurmon, Note, When the Court Divides: Reconsidering the Precedential Value of Supreme Court Plurality Decisions, 42 Duke L.J. 419 (1992). Criticizes the rule in Marks v. United States, 430 U.S. 188 (1977), which says to take as precedent the narrowest grounds that would justify the result the majority agreed on. Argues for a hybrid approach.





• Note, Plurality Decisions and Judicial Decisionmaking, 94 Harv. L. Rev. 1127 (1981). Argues that the increase in plurality decisions beginning during the Warren Court is attributable to "substantive reasoning" -- reasoning from substantive values, in contrast to legal formalism. Suggests instead use of process-based arguments.



• Adam S. Hochschild, Note, The Modern Problem of Supreme Court Plurality Decision: Interpretation in Historical Perspective, 4 Wash. U.J.L. & Pol'y 261 (2000). Traces the history of Supreme Court decisions from the Jay Court, when justices each delivered an opinion one after the other ("seriatim"). Argues that the Court should go back to its role before Chief Justice Marshall, who began the practice of consolidating opinions and delivering one for the court. (Somehow I don't think it likely the Court would turn the clock back that far.)



• I returned to a speech Justice Ginsburg gave at the UW when she was a circuit judge: Ruth Bader Ginsburg, Remarks on Writing Separately, 65 Wash. L. Rev. 133 (1990). Positions the U.S. practice (most appellate decisions are unanimous but judges often write separately) between the British practice (decisions delivered seriatim -- except in criminal appeals) and the European civil law practice (unanimous decisions with little emphasis on the identity of the judge). Interesting discussions of reasons to write separately and to refrain from writing separately even when one disagrees with the majority.



• Am.Jur. 2d spends a lot less ink on the question:

  If a majority of the court agreed on a decision in the case, but less than a majority could agree on the reasoning for that decision, the decision has no stare decisis effect.[FN5] A plurality opinion is said not to be a binding precedent,[FN6] or, by a related view, to be nonbinding, but of limited precedential value as to the holding but not as to the rationale.[FN7]

  20 Am.Jur. 2d Courts sec. 138

Clear answers? I'm afraid not. But perhaps these references will be helpful.



Photo from Supreme Court website.

Supreme Court Decides School Cases

The Supreme Court today handed down its decision in two school desegregation cases -- from Louisville, KY, and Seattle -- involving the assignment of students to public schools. In both districts, race was one factor, after other factors, such as parental choice and neighborhood. (Seattle's plan, which used race as a tiebreaker, was no longer in use.) The Court struck down both plans, 5-4. Four justices -- Chief Justice Roberts and Justices Alito, Thomas, and Scalia -- would never allow schools to consider race. Justice Kennedy would sometimes allow it, just not as these two school districts handled it, in the cases of individual children. Justice Breyer (joined by Justices Ginsburg, Stevens, and Souter) and Justice Souter dissented.

Parents Involved in Community Schools v. Seattle School District No. 1, No. 05-908, slip opinion pdf (June 28, 2007).

Statements and coverage:

• Seattle Public Schools
• Equal Justice Society
• NAACP
• New York Times
• Seattle P-I
• Seattle Times

Gonzales in Seattle

Attorney General Alberto Gonzales was in Seattle today. Attorney general visits Seattle, meets with family of slain federal prosecutor Wales, Seattle Times (web), June 27, 2007

In the morning he spoke to an invitation-only gathering of technology executives, assuring them of the Justice Department's commitment to protecting intellectual property and fighting cybercrime. His prepared remarks are here.

Later he met with the family of Thomas Wales, an assistant U.S. attorney who was murdered in his home in 2001.

"Tom Wales is remembered as an outstanding prosecutor and a beloved member of the Seattle U.S. Attorney's Office and the Department of Justice," Gonzales said. "Bringing those involved in his killing to justice is of the utmost importance to the department."

Seattle Times.

The Wales case is currently before a federal grand jury. Wife of suspect in Wales case called to testify, Seattle Times, June 8, 2007.

Gonzales did not speak about the U.S. attorney firing controversy. But I note that one speculation was that the Administration was unhappy with John McKay because he was asking for more resources to prosecute the case. McKay made firing list in March '05; was Wales killing a factor?, Seattle Times, May 3, 2007. Last month Gonzales told the House Judiciary Committee

he didn't know if McKay might have been fired because he pushed for resources to investigate the October 2001 slaying of Assistant U.S. Attorney Thomas Wales.

Gonzales fends off hostile Democrats, Seattle Times, May 11, 2007.

For more about Wales, see this profile on the Thomas C. Wales Foundation website.

Photo of Gonzales from U.S. Dep't of Justice.

Police chief: No regrets, but I'm open to change

The next story about Chief Kerlikowske and review of questionable officer conduct within the Seattle Police Department: Police chief: No regrets, but I'm open to change, Seattle Times, June 27, 2007.

Police chief exonerated officers in violent arrest

More on Seattle Police Chief Gil Kerlikowske's role in disciplinary investigations: Police chief exonerated officers in violent arrest, Seattle Times, June 26, 2007.

Prosecutor's deputy asks lawyers to endorse boss

Prosecutor's deputy asks lawyers to endorse boss, Seattle P-I, June 25, 2007.

Dan Satterberg, the acting King County prosecuting attorney, has promised to keep his office out of politics by explicitly barring his 250-lawyer staff from contributing money or endorsements to his election campaign.

But that, in his lawyerly interpretation, doesn't prevent one of his top deputies from aggressively seeking political endorsements for Satterberg from a long list of the county's most prominent lawyers and law firms. They include many who do work -- some in the millions of dollars -- for the prosecutor's office.

New Dwyer Book

Ipse Dixit: How the World Looks to a Federal Judge presents speeches by the late Judge William L. Dwyer. He gathered the speeches before he died for his grandchildren, and his widow, Vasiliki Dwyer, thought the manuscript should be published. Professor Emeritus Meade Emory worked to get it in shape, checking quotations, adding endnotes, and writing an introduction.

Reviewing the book, Kevin J. Hamilton concluded, "Inspiring, thoughtful and beautiful, this collection of essays is a gem." Judge Dwyer's speeches bring legend to life, Seattle Times, June 22, 2007.

An all-star panel (Frederic C. Tausend (moderator), Hon. Robert S. Lasnik, Hon. Betty B. Fletcher, Arthur Harrigan, Prof. Stewart Jay, Prof. William Rodgers, Judith Ramseyer. Intro by Meade Emory) will discuss the book and Dwyer on June 27 at Town Hall (admission $5).

The book is not yet available in the law library -- it's just now being released -- but you can bet it will be!

Don't overlook Dwyer's other books: In the Hands of the People: The Trial Jury's Origins, Triumphs, Troubles, and Future in American Democracy (KF9680 .D89 2002 at Good Reads) and The Goldmark Case: An American Libel Trial (KF228.G65 D85 1984 at Classified Stacks and Good Reads).

Prosecutors' Brady Bunch

King county prosecutors have started a list of Seattle police officers and King County deputies whose records include something that might affect their credibility. Prosecutors keep list of problem officers, Seattle Times, June 24, 2007.

Brady v. Maryland, 373 U.S. 83, Justia (1963), requires prosecutors to provide potentially exculpatory information to the defense.

The prosecutors also want to know about potential problems in their cases so they won't be blindsided at trial. Sometimes they have learned of an investigation or discipline of an officer only when the defense uses it in cross.

The prosecutor's office is trying to get information from law enforcement in a more systematic way.

This issue is in the public eye because of the controversy of the officers' whose account of a drug bust was inconsistent with their actions captured by a security camera -- and the criticisms of the Police Chief's actions during the subsequent investigation. See earlier post.

Book: The Jury Process

The Jury Process, by Nancy S. Marder

gives a complete overview of America's jury system. It has three instructional goals: to show where the jury stands in America's rich legal history, to explain the defining features of today's jury, and to identify aspects of the jury where improvements can and should be made. It can be used as a primary textbook for a course, or as a supplement in any law school course that includes a unit on the jury.

--publisher's description. It's available in the library: KF8972 .M37 2005 at Reference Area.

In addition to this student text, Prof. Marder has written many law review articles on juries, most recently on cyberjuries.

Photo from Prof. Marder's profile at Chicago-Kent College of Law.

Judge Walton's Footnote

Granting permission for a group of professors to file an amicus brief in the Scooter Libby case, Judge Reggie Walton dropped a footnote:

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in the Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

Judge Walton's Footnote, The Volokh Conspiracy, June 10, 2007.

The author of the blog post thinks the "snark" isn't justified, and many commenters weighed in, expressing a range of opinion.

I include the footnote here because, well, it amused me, and I at first didn't even think about judicial decorum, fairness to the professors, and so on. At the least, the footnote is a salutary reminder that many people lack the counsel they need.

Citing Unpub. Opinions in Wash.

This month the Washington Supreme Court adopted a new General Rule on citing formal opinions. Parties will still be unable to cite unpublished opinions by the Washington Court of Appeals but, effective Sept. 1, will be able to cite unpublished opinions from other jurisdictions if they could be cited under their own jurisdiction's rules. GR 14.1.

The current rule is stated in RAP 10.4(h), but it only address opinions from the Washington Court of Appeals, not other jurisdictions. And since the rule is in the Rules on Appeal, it didn't obviously apply to citations to trial courts (although I always assumed that it did). After Sept. 1, RAP 10.4 will reference GR 14.1.

For a summary of the Ninth Circuit's rule on citing unpublished opinions, see earlier post.

Scathing report says chief interfered with cop probe | Seattle Times Newspaper

The Seattle Times ran this as a front-page story this morning: Scathing report says chief interfered with cop probe, Seattle Times, June 19, 2007.

The report is a draft from the civilian Office of Professional Accountability, available on the Times's website. It discusses the handling of the investigation of the two officers whose credibility was called into question after their account of a drug arrest conflicted with what was captured on a surveillance camera. See earlier posts.

D.A. in Duke Lacrosse Case Disbarred; Side Note About Washington

A disciplinary panel from the North Carolina State Bar disbarred Mike Nifong, the Durham County prosecutor who so recklessly pursued charges against three Duke athletes who were later exonerated. Law Panel Disbars D.A. in Duke Lacrosse Case, NPR, June 16, 2007. (In that sentence, I originally thought "zealously," in the ordinary sense of the word -- but lawyers are supposed to be "zealous," just not zealous to the point of "dishonesty, fraud, deceit and misrepresentation.")

One story I heard commented that NC State Bar has traditionally not been tough prosecutorial misconduct.

That led me to wonder: what about the Washington State Bar?

WSBA's discliplinary notices are online and searchable. I searched for "prosecutor" and got 32 hits, from 1997 to date. Most of these are "false drops" -- that is, they have the word, but they aren't about prosecutors (the first one I read was about a defense attorney who failed to contact the prosecutor). Ones involving prosecutors:

• Lawyer on inactive status was hired by prosecutor's office and asked WSBA to change his status. He began practicing before getting his CLE credits squared away. Censured, RPC 5.5, unauthorized practice of law.
• A Thurston County prosecutor told a witness that he could "work something out" (re the witness's own prosecution) if the witness did not testify on behalf of another defendant. Disbarred, 3.4 - Fairness to Opposing Party and Counsel;
  8.4 (b) - Criminal Act; 8.4 (d) - Conduct Prejudicial to the Administration of Justice.
• A prosecutor was suspended for failure to present potentially exculpatory evidence to the defense. 3.4 - Fairness to Opposing Party and Counsel; 3.8 - Special Responsibilities of a Prosecutor.
• A prosecutor was admonished for failure to comply with a court-ordered discovery order. 3.4 - Fairness to Opposing Party and Counsel; 8.4 (c) - Dishonesty, Fraud, Deceit or Misrepresentation.

Why comparatively few disciplinary actions with prosecutors? One possible factor: no clients (many disciplinary complaints involve failure to communicate with clients or mishandling client funds).

ATJ Conference Report

Michele Storms, the Executive Director of the UW's William H. Gates Public Service Law Scholarship Program, offers this report from the Washington State Access to Justice Conference held earlier this month:

Valuing Leadership: Ensuring Justice for All was the theme of this year's 12th annual Washington State Access to Justice Conference, held June 1-3 in Wenatchee.

A joint effort of the Access to Justice Board and the WSBA Bar Leaders Division, the conferences began as a way for the legal community to come together to support the delivery of civil legal aid in this state. Through the recommendations for the conference each year, new initiatives have been developed to enable advocates to deliver better services to low income people in their serious legal cases. An example is the work community leaders have accomplished to develop a "state plan" for delivery of legal services. The most recent state plan focuses much-needed attention on the underserved needs of the low income individuals residing in the rural communities across the state.

The conference keynote speaker this year was John McKay who spoke honestly about his experiences as the US Attorney for the Western District of Washington. He spoke of the meaning of the rule of law and why we must all strive as lawyers to ensure that justice trumps politics.

The conference has always been attended by lawyers, judges, mediators, court staff, social workers and more. But this year a noteworthy aspect of the conference was the strong participation of law students. There were 22 law students present this year; their presence was jointly funded by the three law school deans in this state and by the Legal Foundation of Washington. Brenda Tausch (UW JD '07) stated, "My experience at the ATJ not only provided me with meaningful information about exciting new legal initiatives, but also indispensable contacts with leaders in the field and with fellow law students who will form the next generation of leaders."

Deliberations: "Do Juries Deliberate?" A Survey In Seattle

Anne Reed summarizes (and links to) a study of jury behavior from the Jury and Democracy Project: "Do Juries Deliberate?" A Survey In Seattle, Deliberations, May 29, 2007.

The study is interesting in itself, of course. But I was also interested to learn of the project, which includes investigators here at the University of Washington, in the Dept. of Communication.

Links to previous papers from the project are here. The project has a semiannual email newsletter to alert readers to new content on the website.

2 Attys Sue Avvo Over Ratings

Business & Technology | Attorneys sue site that comes up with ratings on ... lawyers | Seattle Times Newspaper, June 15, 2007.

The plaintiffs are John Henry Browne and Alan Wenokur; they are represented by Steve Berman of Hagens Berman Sobol Shapiro. The case was filed in W.D. Wash.

See earlier post on Avvo.

Wash. Courts and ADA

The Washington State Supreme Court has adopted GR 33 addressing the courts' obligations under the Americans With Disabilities Act. The rule becomes effective on September 1, 2007.

The Rule itself follows from the 2003 case of Tennessee v. Lane, 541 U.S. 509, 124 S. Ct. 1978, Findlaw (2004), in which the U.S. Supreme Court ruled that title II of the ADA applies to state courts, which are thus required toreasonably accommodate persons with disabilities. GR 33 sets up a process by which persons who may be in need of accommodations under the ADA or Washington Law Against Discrimination can make their needs formally known to the court and the court can determine how best to
accommodate them.

Section 1(c) of the rule expressly recognizes representation by counsel as a reasonable accommodation to make the courts accessible for qualified disabled persons.

The Supreme Court's adoption of the Rule and its express recognition of representation by counsel as an accommodation represents a tremendous improvement in access to justice for the disabled and is the result of tremendous effort by Washington State's Access to Justice Board's Impediments to Access to Justice Committee.

This information is from Deborah Perluss (Northwest Justice Project), via Michele Storms.

Justice Dept. Reshapes Its Civil Rights Mission - New York Times

Justice Dept. Reshapes Its Civil Rights Mission, N.Y. Times, June 14, 2007:

In recent years, the Bush administration has recast the federal government’s role in civil rights by aggressively pursuing religion-oriented cases while significantly diminishing its involvement in the traditional area of race.

Prosecutions of hate crimes and voting rights violations are down, protection of the rights of religious groups is more robust. Political appointees have affected the hiring of new lawyers, with an increase in graduates from religiously-based law schools (e.g., Ave Maria, Regent, BYU).

Maureen Howard alerted me to this long, interesting article.

The Proceedings of the Old Bailey, London 1674 to 1834

If you're of a historical bent, you might enjoy a new online source, presenting summaries of 101,102 criminal trials: The Proceedings of the Old Bailey, London 1674 to 1834.

Thanks: WisBlawg.