FRCP - New! New! New!

This year brings changes to all of the Federal Rules of Civil Procedure. Some of the changes are stylistic, some organizational, and some substantive.

The new rules are here.

For a discussion of the changes, see Michael C. Dorf, Meet the New Federal Rules of Civil Procedure: Same as the Old Rules?, Findlaw, July 18, 2007. (Dorf teaches at Columbia.)

A little video by the authors (a law professor and a practitioner) of the Federal Civil Rules Handbook (KF8816 .A194 at Reference Area) is here. The 2007 edition came in December 2006; we're expecting the 2008 edition soon, and it promises to have analysis of all the changes.

As tears flow, driver sentenced in worker's death

As tears flow, driver sentenced in worker's death, Seattle Times, Nov. 10, 2007. The driver, who had a blood alcohol level of .20 percent, pleaded guilty to vehicular homicide in the death of a construction worker on I-405. The sentencing judge, Harry McCarthy, "described the sentence [41 months] as 'woefully inadequate,' but he noted it was the maximum allowed under state sentencing guidelines. Judge McCarthy is also a UW Trial Ad instructor.

Funding of Local Campaigns

Washington Public Campaigns hosts Clean Campaigns Forum, discussing the funding of local election campaigns. Sat., Nov. 17, 2007, 7:30 pm, Kane Hall. The UW School of Law is a cosponsor of the forum.

City Councilman McIver trial set for December

City Councilman McIver trial set for December, Seattle Times, Oct. 30, 2007. Councilmember McIver is represented by Todd Maybrown, who is also a UW Trial Ad instructor.

Suit Filed in Crane Collapse

Suit filed in Bellevue crane-collapse fatality, Seattle Times, Oct. 5, 2007. Mike Wampold (Peterson Sutra), who is also a UW Trial Ad Instructor, represents the plaintiffs.

Verdict in Russell Vehicular Homicide Case

Russell guilty on 3 homicide charges, Spokesman Review, Nov. 6, 2007:

Jury deliberations began Monday afternoon, after more than three weeks of jury selection, witness testimony and arguments. In the end, jurors sided with prosecutors, who said Russell was drunk, speeding, and on the wrong side of the road in a no-passing zone.

Several jurors were visibly emotional Tuesday, crying during juror poling by Frazier, and reportedly again when attorneys met privately with the jury afterward.

“It was obvious that it was a very difficult verdict for them,” said defense attorney Diego Vargas, who said jurors were initially split 6 to 6.

Vargas said the case will be appealed on several grounds, including problems with two blood-alcohol tests, alleged ineffective assistance by a previous attorney for Russell and issues surrounding jury selection.

KCBA Bar Bulletin Profiles Lisa Kelly

The King County Bar Bulletin has a great profile of Lisa Kelly, director of the UW's Children and Youth Advocacy Clinic and Associate Dean. Sharon Perlin, Humble Roots Imbue Life’s Work, Nov. 2007.

Ex-Inmate Sues State for Bad Medical Care

While in prison Charlie Manning became infected with flesh-eating bacteria. For two days, the prison doctor treated him for what he thought was an allergic reaction. Then Mr. Manning was flown to Harborview, where he needed significant surgery was was left battling chronic pain. He is suing the state. The doctor and the Department of Corrections contest many of the allegations. Ex-inmate sues state over disfigurement, Seattle Times, Nov. 5, 2007.

Asarco's Suit Could Help Pay off Creditors from Other Suits

Judge lets Asarco sue Mexican owners , Seattle Times, Nov. 5, 2007.

A federal judge has refused to throw out a lawsuit filed by Asarco against its Mexican owners in a ruling that eventually could help the bankrupt U.S. mining and smelting company recover billions of dollars to help pay off environmental and asbestos-related claims, including hundreds of millions in claims from Washington state.

The lawsuit alleges Americas Mining, a subsidiary of Grupo Mexico, S.A. de C.V., "fraudulently" stripped Asarco LLC of its lucrative holding in two Peruvian copper mines just as Asarco was teetering on the edge of bankruptcy.

The case is in the Southern District of Texas, Judge Andrew S. Hanen.

Effect of Andress

In 2002, the Washington Supreme Court found that assault was not a predicate felony in the the state's felony murder statute. In re Andress, 147 Wn. 2d 602, Legalwa, Findlaw (majority only) (2002). (The legislature amended the statute so that assault is now included in the list of predicate felonies.)

At the time, prosecutors made dire predictions about convicted murderers walking free. Now, five years later, a reporter for the News Tribune reviews what happened in each of the 35 Pierce County cases affected by Andress. Adam Lynn, After ruling, has justice been done? State justices’ Andress decision in 2002 worried prosecutors, but today many killers remain in jail, News Tribune, Oct. 31, 2007.

Five years later, 29 of those 35 Pierce County inmates once again are convicted killers: 24 of second-degree murder, two of first-degree murder and three of first-degree manslaughter.

A dozen of them received lighter sentences during their second prosecution because of changes in sentencing laws, new offender scores or sympathetic judges. But 14 received the same sentence, and three got more time behind bars than their original sentence, according to court records.

Six people still have unresolved cases. Five of those cases are wending their way back through the court system. The final person is involuntarily committed to Western State Hospital, so his case is in limbo indefinitely.

Although the article focuses on Pierce County, it mentions King County:

In King County, nearly two-thirds of the cases prosecuted again resulted in a lighter sentence for the defendant, according to prosecutor’s records, and many defendants there were allowed to plead guilty to manslaughter.

See this post from March about a couple of King County cases post-Andress.

Thanks: Lisa Kremer.

Russell Trial Updates

Fred Russell is being tried for vehicular homicide in the deaths of three WSU students in 2001. The trial has been moved from Whitman County to Kelso; Whitman County Superior Court Judge David Frazier is presiding.

• Russell trial begins in Kelso:
  Start comes 6 years after deaths, Spokesman Review, Oct. 16, 2007.

  It shouldn't be hard to find jurors untainted by publicity, judging by Mayor Don Gregory's reaction when told last week that an internationally watched trial is landing in his town, once known as the Smelt Capital of the World.
  
  "Holy Criminy!" he said. "I read the paper every day, and I'm totally oblivious to it."

• Jury selection in Russell trial begins, Spokesman Review, Oct. 16, 2007.

  Defense attorney Francisco Duarte of Bellevue declined to reveal if Russell will testify. But the defense plans to challenge the competence of the crash investigation and the conclusion that Russell caused the accident.

• Photos of victims OK'd in Russell trial: Judge's ruling pending on blood-alcohol tests, Spokesman Review, Oct. 17, 2007.
• Ruling pending on blood-alcohol tests in Russell trial, Spokesman Review, Oct. 17, 2007.
• Search for jury an ongoing process: Many already have opinions of Russell, Spokesman Review, Oct. 18, 2007.

  Attorneys are still hoping to get a jury picked today and start opening arguments. But under extensive questioning by defense attorney Francisco Duarte, jury selection has taken much longer than expected.
  
  Prosecutors, clearly frustrated, are juggling flight plans for the dozens of witnesses in the case.
  
  * * *
  
  Duarte, courtly and polite, continued to draw out potential jurors.
  
  "It probably hurts you a lot, though, it sounds like. … That took a lot of courage. … Tell me more about that," he told various jurors Wednesday morning. "Thank you for sharing that, you're very astute. … Can we talk?"
  
  Many have clearly warmed up to him.
  
  "You're a fine attorney," one man said to Duarte at one point. "I actually like you."

• Jury chosen for Russell trial: Prosecutors win rulings on admissible evidence, Spokesman Review, Oct. 19, 2007.
• Bartender testifies in Russell trial: Defendant caught error on tab, didn't seem intoxicated, he says, Spokesman Review, Oct. 24, 2007.
• Crash scene described as Russell trial opens, Spokesman Review, Oct. 20, 2007.

  The prosecution in Fred Russell's vehicular homicide trial detailed a horrifying crash scene Friday, describing a roadway littered with flaming vehicles, dead college students and live victims trapped in the wreckage.
  
  The cause of that scene, according to prosecutors: Russell and the choices he made that night about how much he drank and how he drove.
  
  * * *
  
  His defense team agreed that the four-vehicle wreck was tragic. But it was an accident, not a crime, attorney Francisco Duarte told jurors. He suggested that the entire investigation has been a witch hunt that started that night, when in the minds of much of the Palouse region, Russell "became public enemy No. 1."

• Survivor recalls night of crash: Jury somber during Russell trial testimony, Spokesman Review, Oct. 23, 2007.
• Russell trial focuses on driving, AP (Spokesman Review), Oct. 26, 2007.

Mr. Russell's attorney, Francisco Duarte, is also a UW Trial Ad instructor.

(There are actually more stories, but I'm running out of steam. If you have access to LexisNexis or Westlaw, it will be quicker to follow the coverage there than digging around in the Spokesman Review's website.)

Domestic Violence Prosecutions

The Seattle Weekly's cover story (Oct. 31, 2007) is How the Cops and Courts Turn Abused Spouses Into Voiceless Victims, by Nina Shapiro.

Shapiro suggests that several policies take all control of the situation from the victims: the police must arrest someone when there's a domestic violence call, there must be a protection order preventing contact between the accused and the victim, prosecutions often go forward against the victims' wishes. The protection orders often break up families and deprive children of contact with their fathers.

That's a problem, according to several defense attorneys who work frequently on domestic violence cases. "I'm not sure about all this state-mandated intervention in people's lives," says * * * Theresa Allman, who works for the Defender Association. "On the majority of my domestic violence cases, probably 90 percent of the time, the victim does not want a no-contact order." Yet, she says, the victim "is not listened to. She's not respected. Her opinions are not valued."

"People have a right to make bad choices," agrees Pat Valerio, another public defender who works for the Associated Counsel for the Accused. A no-contact order, she says, is supposed to be for the benefit of someone who wants to be protected. It's not "to have all the power of government coming in and saying, 'We know better than you; you need to get over this guy.'" The state's policy, she says, is just another way of overpowering a person who's supposedly already been overpowered by her partner.

Of course, the area is complex, and there have been good reasons for policies like these. In the "bad old days," it was typical for officers not to make arrests in "domestic disputes" and just to walk a violent man around the block and tell him to calm down. Many abusers try to prevent their victims from testifying by threatening them -- think how abusers would act if they knew that they could escape prosecution if only their wives or girlfriends could be bullied into silence.

Coincidentally, I recently read a law review article discussing ways that domestic violence issues can -- and should -- be taught in law schools: Sarah M. Buell, The Pedagogy of Domestic Violence Law: Situating Domestic Violence Work in Law Schools: Adding the Lenses of Race and Class, 11 Am. U. J. Gender Soc. Pol’y & L. 309 (2003), available on HeinOnline (UW restricted). I looked up that article -- which I recommend -- because I heard Prof. Buell speak at a conference on teaching and I thought she was great. The article is part of a symposium, Confronting Domestic Violence and Achieving Gender Equality: Evaluating Battered Women &(and) Feminist Lawmaking, all of which is available on HeinOnline. So if the Weekly article piques your interest in domestic violence law, the symposium might be a good place to start.

Coughenour on How to Try a Terrorist

Judge John Coughenour (W.D. Wash.) wrote an op ed in the New York Times disagreeing with Michael Mukasy's suggestion that we need a "new adjudicatory framework" for trials of terrorists. John C. Coughenour, How to Try a Terrorist, N.Y. Times, Nov. 1, 2007.

In 2001, I presided over the trial of Ahmed Ressam, the confessed Algerian terrorist, for his role in a plot to bomb Los Angeles International Airport. That experience only strengthened my conviction that American courts, guided by the principles of our Constitution, are fully capable of trying suspected terrorists.

Respected Marine Lawyer Alleges Military Injustices

On Tuesday I heard a great profile of Colby Vokey, a Marine Corps defense attorney who is resigning because of his concerns about abuses of the system. Daniel Zwerdling, Respected Marine Lawyer Alleges Military Injustices, All Things Considered, Oct. 30, 2007.

When he trains young Marine defense lawyers, he tells them "you have one loyalty, and that's to the client," Vokey said.

Top commanders said they appreciate and need courageous defense lawyers like Vokey.

"We are an American military," said Tom Hemingway, who retired earlier this year as Brigadier General and legal advisor at the Pentagon. "We're here to support American values, and one of the things that we have in our disciplinary system, as a requirement, is that the trial system be fair."

Defense Offers New Evidence in a Murder Case That Shocked Arkansas

Defense Offers New Evidence in a Murder Case That Shocked Arkansas, N.Y. Times, Oct. 30, 2007.

In 1994, three teenagers were convicted of killing three 8-year-old boys in a crime that was alleged to have been related to a Satanic cult. Now new evidence may give the defendants another chance: none of their DNA was at the crime scene; the bodies apparently were mutilated by animals, not the killer(s); hairs at the scene belong to the step-father of one of the victims and a friend of his.

Thanks: Maureen Howard.

Ex-Official Who Fired U.S. Attorneys Speaks Out

Michael Battle, the former director of the Executive Office of U.S. Attorneys, today spoke publicly about his role in the U.S. Attorney firings for the first time. He was told to do it, and to tell them as little as possible. Ex-Official Who Fired U.S. Attorneys Speaks Out, NPR, Nov. 2, 2007 (NPR's website has a story that will be on Morning Edition tomorrow, so the dateline is really Nov. 2, even though most of us aren't there yet).

The people he called greeted him warmly — which made the part that came next much more difficult.

"Listen," Battle said he told the U.S. attorneys. "I've been asked to call you and advise you that you're being asked to submit your resignation as U.S. attorney."

Transparency in the Civil Justice System

The RAND Corporation Institute for Civil Justice and UCLA are presenting a conference tomorrow: Transparency in the Civil Justice System.

Researchers at the RAND Institute for Civil Justice and UCLA School of Law are collaborating on an analysis of the issue of transparency, both its advantages and disadvantages, in many aspects of the civil justice system. The following questions guide their research:

• Are there specific examples of problems in the civil justice system that might have been avoided if the system were more transparent? What are the risks associated with too much transparency?


• How can the civil justice system balance the value of privacy with the value of transparency?


• What mechanisms are involved in providing greater transparency? What are the costs, and who pays them?


• Will greater transparency improve the civil justice system? Is it likely to improve accountability and increase public confidence?


• Are there examples of reforms that have led to greater transparency? Have they affected outcomes in the system? Have they improved efficiency in the system?


• Can plaintiffs and defendants agree on a cohesive vision of increased transparency in the civil justice system?

The papers presented at the Transparency in the Civil Justice System will be collected in a book that will be released at an event on Capitol Hill in Summer 2008.

Sounds interesting!

Politicized Fed Prosecution in Pittsburgh?

Thornburgh to tell Congress Wecht case is political, Pittsburgh Post-Gazette, Oct. 19, 20076:

Former Attorney General Dick Thornburgh will testify before a subcommittee of the House Judiciary Committee on Tuesday about why he feels the prosecution of former Allegheny County Coroner Dr. Cyril Wecht is politically motivated.

Mr. Thornburgh, who is on Dr. Wecht's defense team, will be given an allotment of time to make a statement, and then it is likely the subcommittee, which is investigating the firings of nine U.S. attorneys across the country last year, will ask questions.

Twenty years ago Dick Thornburgh was the attorney general under Pres. George H.W. Bush.

Others scheduled to testify Tuesday include former Alabama U.S. Attorney Doug Jones, who was an early defense attorney in the bid-rigging case against former Gov. Don Siegelman, as well as Donald C. Shields, a professor emeritus at the University of Missouri, who co-wrote a study looking at the number of Democratic vs. Republican officeholders who have been investigated by the Department of Justice during the Bush administration.

For a summary of the study (with links to the underlying data), see Donald C. Shields & John F. Cragan, The Political Profiling of Elected Democratic Officials: When Rhetorical Vision Participation Runs Amok, ePluribus Media, Feb. 18, 2007.

Gonzales could be prosecuted, McKay says

Gonzales could be prosecuted, McKay says, Spokesman Review, Oct. 20, 2007:

McKay said he was summoned to Washington, D.C., in June and questioned for eight hours about possible reasons for his firing by investigators with the Office of Inspector General, who will forward their final report to Congress.

"My best guess is it will be released sometime next month," and likely will include recommendations for criminal prosecutions of Gonzales and maybe others, McKay said.

Gonzales "lied about" reasons for the firings when questioned under oath in July by the Senate Judiciary Committee and now has hired a lawyer and is refusing to answer questions from the Inspector General, McKay said.

Thanks: Maura Goodwin.

Is Evidence Law Just for Juries?

Why do we have evidence rules anyway? A common justification is that it’s to protect the process from cognitive failings of jurors, who might, say, attach too much weight to hearsay testimony or be prejudiced by a picture that was relevant but gory. A provocative law review article examines the related belief (and practice by many judges) that evidence law is less important in bench trials because judges can give the evidence the weight it deserves. Frederick Schauer, On the Supposed Jury Dependence of Evidence Law, 155 U. Pa. L. Rev. 165 (2006).

Prof. Schauer says that many judges relax the evidence rules in bench trials. But is this merited? Why should we believe that judges are any less prone to cognitive failings than the rest of the population?

Moreover, the existence of evidence rules may improve the fact-finding process. If parties know they will not be allowed to present hearsay evidence, then they will work harder to find more direct (and hence more reliable) evidence. If parties know they can’t rely on past acts evidence to show that a defendant acted in a certain way on a particular occasion, they will work harder to find evidence of this particular act.

There has been much discussion of the decline in civil jury trials in the U.S. I was interested in Prof. Schauer’s discussion of other countries: I hadn’t realized that jury trials are very, very rare in the UK and other common-law jurisdictions now.

See also:

• Barbara A. Spellman, On the Supposed Expertise of Judges in Evaluating Evidence, 156 PENNumbra 1 (2006). An empirical scholar considers different reasons that people might consider impermissible evidence and muses about how a study could be constructed to sort out whether judges are different from jurors in this regard.


• Walter Sinnott-Armstrong, Which Evidence Law? A Response to Schauer, 155 PENNumbra 129 (2006).


• Jennifer L. Mnookin, Bifurcation and the Law of Evidence, 155 PENNumbra 134 (2006). Maybe the reason judges seem cavalier about applying the rules of evidence to themselves it that, once they’ve had to decide on admissibility, they know about the evidence and they understand their own cognitive limitations: they can’t un-know it. If one judge made evidence rulings and another made factual findings, this could be avoided.

(PENNumbra is the online companion to the University of Pennsylvania Law Review.)