As Jurors Turn to Web, Mistrials Are Popping Up - NYTimes.com

As Jurors Turn to Web, Mistrials Are Popping Up - NYTimes.com:

Jurors are not supposed to seek information outside of the courtroom. They are required to reach a verdict based on only the facts the judge has decided are admissible, and they are not supposed to see evidence that has been excluded as prejudicial. But now, using their cellphones, they can look up the name of a defendant on the Web or examine an intersection using Google Maps, violating the legal system’s complex rules of evidence. They can also tell their friends what is happening in the jury room, though they are supposed to keep their opinions and deliberations secret.

The article opens with the story of an eight-week trial that had to be scrapped because not one but NINE jurors had been doing outside reseach.

Web 2.0? Web: Uh-oh!

New Mexico governor abolishes capital punishment

New Mexico governor abolishes capital punishment - washingtonpost.com, March 19, 2009.

The new law replaces lethal injection with a sentence of life in prison without the possibility of parole. The repeal takes effect on July 1, and applies only to crimes committed after that date.

"Regardless of my personal opinion about the death penalty, I do not have confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crime," Richardson said.

Richardson said that 130 death-row exonerations in the last decade (including 4 in New Mexico) showed that we can't be 100% sure that "only the truly guilty" are sentenced to death.

The legislation was applauded by the ACLU and human rights groups and opposed by a sheriffs and prosecutors.

Law Prof’s Article on His Jury Experience Leads to Overturned Verdict

A Seton Hall law professor served on a jury and was named the foreperson. Later he wrote an article in a legal newspaper reflecting on his experience and said that the other jurors had asked him to explain legal concepts, such as proximate cause. The defendant in the tort case asked the trial court to overturn the verdict against it, but the trial court said that the professor's influence wasn't that great. But the appellate court said that a new trial was needed. Law Prof’s Article on His Jury Experience Leads to Overturned Verdict | ABA Journal - Law News Now, March 19, 2009. (The comments are worth skimming.)

The case is Barber v. ShopRite of Englewood (N.J. Super. App. Div., March 19, 2009), available here.

Thanks: Maureen Howard.

Port Orchard man convicted in multi-million-dollar fraud scheme - Port Orchard Independent

Bernie Madoff is getting the big headlines for his gargantuan Ponzi scheme. But his wasn't the only Ponzi scheme around.

This week Judge Ronald B. Leighton (W.D. Wash., Tacoma) sentenced Charles Nolon Bush for his Ponzi scheme: 30 years in prison, three years supervised release and $30,097,659 in restitution. (Not just $30 million: $30,097,659.) Former Kitsap County Man Sentenced to 30 Years in Prison for $35 Million "Ponzi" Scheme, U.S. Attorney's Office press release, March 20, 2009.

The government had to get Bush extradited from Poland. It took a year from the extradition request to his first court appearance.
Port Orchard man convicted in multi-million-dollar fraud scheme - Port Orchard Independent, Port Orchard Independent, Nov. 13, 2008.

New Mexico Legislature repeals death penalty - washingtonpost.com

New Mexico Legislature repeals death penalty - washingtonpost.com, March 13, 2009.

Gov. Bill Richardson will decide whether to sign the bill in the next couple of days.

Another sign of tough times: legal aid for the middle class -

Another sign of tough times: legal aid for the middle class - Los Angeles Times, March 10, 2009:

Long comfortably ensconced in the proud community of the self-reliant, [one man] was unaware that free or low-cost legal help is available for the mounting middle-class casualties of the recession.

Had he known about the online guidance, legal self-help centers or community lawyers offering their services at group rates, he might have avoided being scammed by a fraudulent foreclosure rescue business that took his last borrowed money.

In Washington, the online site to visit is washingtonlawhelp.org, a project of the Northwest Justice Project, with documents from Columbia Legal Services, the Northwest Women's Law Center, the Attorney General's Office, and other reliable sources. Click on the Find a Lawyer link at the top of any page to find organizations with free or low-cost legal services.

New Blog Covers Washington Supreme Court

The Evergreen Freedom Foundation has launched The Supreme Court of Washington Blog (its tag line is "Reading the opinions so you don't have to").

We are publishing this blog to assist citizens, practitioners, and journalists who want to follow the cases before our state’s high court.

* * *

Readers can expect several regular features. We plan to review new cases the court accepts, preview oral arguments, and analyze opinions the court hands down. Special features will include a monthly audio podcast to discuss significant items, and the occasional “live-blog” to follow oral arguments in high-profile cases. Along the way, we’ll cover noteworthy news about the court and its members.

The Evergreen Freedom Foundation's mission

is to advance individual liberty, free enterprise, and limited, accountable government. We have a vision of a day when opportunity, responsible self-governance and free markets flourish in Washington State because its citizens understand and cherish the principles from which freedom is derived.

Our primary research areas are budget and taxes, education, labor, elections, and citizenship and governance. Within those areas we publish studies, conduct seminars, and work to provide information for legislators, media and the general public.

EFF already has a blog on Washington law and policy called Liberty Live.

Supreme Court Affirms State Tort Award Against Drug Company

Justices Rule Against Drug Company in Injury Case, Wash. Post, March 5, 2009.

The Supreme Court ruled yesterday in favor of a woman who had her arm amputated after an improper injection of an anti-nausea medication and said drugmakers could not rely on federal regulation to shield them from lawsuits brought under state consumer protection laws.

The case is Wyeth v. Levine, No. 06-1249.

Analysis: A Warning to the FDA, SCOTUSblog, March 4, 2009.

Amid much critical commentary about the way federal drug regulators are doing their job, a Supreme Court majority on Wednesday provided a ringing endorsement of lawsuits in state courts to fill in for lapses at the national level — in particular, lawsuits that claim drugmakers have not given doctors and patients enough warning about side-effects. The six Justices who joined in upholding a verdict of nearly $6.8 million against the pharmacetical company Wyeth have sent their own warnings: to the industry, and to the Food and Drug Administration.

Justice John Paul Stevens’ opinion speaking for five Justices, and Justice Clarence Thomas’ separate opinion joining in the result, provided in combination a reinforcement of these ideas: that drug companies are primarily responsible for keeping their warning labels up to date and complete (and may pay for it if they don’t), and that the FDA not only needs to police the industry more closely — even if it lacks resources – but that it also had better have the clearest mandate from Congress before it tries to scuttle patients’ lawsuits in state courts.

Huge inequalities found in Washington's system for court-imposed fines and fees

Huge inequalities found in Washington's system for court-imposed fines and fees | University of Washington News and Information, Feb. 24, 2009:

Washington state's system for imposing fines and fees, or legal financial obligations, on people convicted of felonies is riddled with inequalities and is hindering individuals from rejoining society, according to a report prepared for a state commission by University of Washington researchers.

The report for the Washington State Minority and Justice Commission based on data from all 3,366 Washington State Superior Court cases decided during the first two months of 2004, shows:

• Hispanic defendants are assessed significantly higher fee and fines than whites.


• Individuals convicted in trials are assessed significantly higher fees and fines than those who plead guilty.


• Males are assessed higher fees and fines than women.


• Assessment of fees and fines varies by jurisdiction and the data indicate that defendants with similar criminal histories and charges may accrue very different debt amounts depending upon where they are convicted.


• Drug convictions result in significantly higher fees and fines than convictions involving violent charges.

The report was prepared by two UW Sociology professors, Katherine Beckett and Alexes Harris.

The UW researchers said their research suggests that imposition of these penalties can have far-reaching effects.

"Placing these financial obligations on largely poor people is counterproductive and is a barrier to successful reentry into society," said Harris. * * *

She and Beckett noted that the majority of felons have difficulty finding decent housing and employment because of their criminal records, and can be trapped in a cycle of poverty that also affects their spouses and children. Slightly more than half of those interviewed were living on incomes that fell below the federal poverty line. Lack of employment also hinders their ability to pay legal financial obligations, putting them at risk for being re-arrested because they have not paid these fees and fines. Some felons become discouraged and live on the margins of society while others return to criminal activity.

While the report noted higher fines and fee imposed on Latinos compared to whites, there was no significant difference in those given to blacks compared to whites. Because of the small number of Asian-Americans, Native Americans and Pacific Islanders in the sample of cases, no meaningful conclusions could be drawn about those groups.

The report recommends reforms calling for:

• Placing a moratorium on the assessment and collection of such fines and fees, other than restitution and a currently mandatory $500 victim penalty assessment fee, until concerns raised by the report are addressed. * * *


• Allowing poor defendants to pay their obligations through community service and services to people directly harmed by their prior criminal behavior.


• Adoption of legislation that automatically restores the civil rights, including voting rights, of Washington residents with a felony conviction when they complete their jail or prison sentence.

The full report is Katherine Beckett, Alexes Harris & Heather Evans, The Assessment and Consequences of Legal Financial Obligations in Washington State (Aug. 2008).

Although the report appeared six or seven months ago, it apparently didn't get any coverage before last week. Press coverage:

• State courts unfair to men, minorities, UW study alleges, Seattle Times, Feb. 25, 2009.

  Beckett and Harris turned over their study to the commission in August, but the UW released the study to the public on Tuesday. It's unclear why the report wasn't released directly by the commission. [It is on the commission's website.] Officials with the commission didn't return calls for comment on Tuesday.
  
  Beckett believes the study, which also includes interviews with defense attorneys, county clerk staff and convicted criminals, may finally show state and local officials the evidence they need to support a systematic overhaul.
  
  King County Prosecutor Dan Satterberg said he has little sympathy for the disparities cited in the report. He believes fines are a good idea because they "hit people where it hurts."



• Report finds inequalities in Wash. criminal fines, Seattle P-I, Feb. 24, 2009.

  The researchers first completed the report last fall for the state Minority and Justice Commission, and the university released it to reporters on Tuesday, as the Legislature weighs three bills that concern the penalties.

Videos in Supreme Court

Adam Liptak, Supreme Court Enters the YouTube Era, March 2, 2009:

The first citation in a petition filed with the court last month, for instance, was not to an affidavit or a legal precedent but rather to a YouTube video link. The video shows what is either appalling police brutality or a measured response to an arrested man’s intransigence — you be the judge.

Such evidence vérité has the potential to unsettle the way appellate judges do their work, according to a new study in The Harvard Law Review. If Supreme Court justices can see for themselves what happened in a case, the study suggests, they may be less inclined to defer to the factual findings of jurors and to the conclusions of lower-court judges.

The law review article is Dan M. Kahan, David A. Hoffman & Donald Braman, Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 Harv. L. Rev. 837 (2009). The abstract:

This Article accepts the unusual invitation to "see for yourself" issued by the Supreme Court in Scott v. Harris, 127 S. Ct. 1769 (2007). Scott held that a police officer did not violate the Fourth Amendment when he deliberately rammed his car into that of a fleeing motorist who refused to pull over for speeding and instead sought to evade the police in a high-speed chase. The majority did not attempt to rebut the arguments of the single Justice who disagreed with its conclusion that "no reasonable juror" could find that the fleeing driver did not pose a deadly risk to the public. Instead, the Court uploaded to its website a video of the chase, filmed from inside the pursuing police cruisers, and invited members of the public to make up their own minds after viewing it. We showed the video to a diverse sample of 1350 Americans. Overall, a majority agreed with the Court’s resolution of the key issues, but within the sample there were sharp differences of opinion along cultural, ideological, and other lines. We attribute these divisions to the psychological disposition of individuals to resolve disputed facts in a manner supportive of their group identities. The Article also addresses the normative significance of these findings. The result in the case, we argue, might be defensible, but the Court’s reasoning was not. Its insistence that there was only one "reasonable" view of the facts itself reflected a form of bias — cognitive illiberalism — that consists in the failure to recognize the connection between perceptions of societal risk and contested visions of the ideal society. When courts fail to take steps to counteract that bias, they needlessly invest the law with culturally partisan overtones that detract from the law’s legitimacy.

Thanks: Alysha Yagoda.

Beating caught on police video

A King County Sheriff's deputy is being prosecuted for misdemeanor assault after he apparently beat a teenage girl he was putting in a holding cell. Beating caught on police video, Seattle P-I, Feb. 27, 2009. The P-I obtained the video through a public records request, over the objection of the deputy's attorneys:

"We had argued strenuously that the videotape released to the media this morning not be released because it does not tell the whole story of the incident," attorney Anne Bremner said in a statement.

"As we argued to the judge, it will inflame public opinion and will severely impact the deputy's right to a fair trial."

The article mentions a recent federal trial in which another deputy, Brian Bonnar, was acquitted of civil rights violations. Bonnar was represented by David Allen and Todd Maybrown, who is also a UW Trial Ad instructor.

Curtis Thompson Trials

After serving 18 years for 4 rapes, Curtis Thompson returned to Seattle and committed more crimes -- rape and, allegedly, murder. His trials have spanned a few years, as he has been evaluated for competency. A trial with such a volatile defendant presents special challenges. Here are highlights, in headlines and a few article excerpts:

• DNA evidence links sex offender to rape of Eastlake woman, Seattle P-I, Sept. 3, 2004

  Thompson appeared in court yesterday wearing the jail garb of an ultrasecurity inmate and shackled hand and foot.
  
  Defense attorney Richard Warner tried to argue that his client should appear without shackles.
  
  Warner said after the hearing that he was simply trying to ensure Thompson receives a fair trial.
  
  "He's presumed innocent," Warner said.
  
  But during the hearing, O'Toole argued that Thompson is a danger, citing threats Thompson allegedly made at the time of his arrest, in which he said he would kill police and corrections officers.
  
  "This man is a very dangerous person inside and outside the jail," O'Toole said.



• Ex-con charged in slaying found competent for trial, Seattle Times, Dec. 1, 2006.


• Ex-con charged in slaying found competent for trial, Dec. 1, 2006.


• Officers slam struggling defendant in courthouse, Seattle P-I, March 13, 2008.

  When his hearing ended Thursday, five King County Jail officers were leading him out of the courtroom when he struggled and "made sort of a jerking motion, as if he was trying to get away," said Deputy Prosecutor Scott O'Toole.
  
  The officers restrained Thompson and drove his face into a wooden bench in the courthouse hallway, O'Toole said. They then led him back to the jail, leaving a trail of blood along the courthouse's marble floors.
  
  * * *
  
  Thompson's attorney, John Hicks -- who has unsuccessfully sought to be taken off the case -- said it didn't appear the officers acted inappropriately.
  
  "He obviously struggled somehow, and they found it necessary to put him down," Hicks said. "I know these corrections officers, and they wouldn't have acted that way unless it was necessary."
  
  * * *
  
  Hicks, a veteran defense attorney, has taken to sitting at the prosecutors' table, leaving a few empty chairs between himself and the man who regularly threatens his life.
  

• Volatile offender faces 1st of 3 trials, Seattle Times, Sept. 12, 2008.


• Shackled defendant takes the stand for alleged crime spree, Seattle Times, Sept. 30, 2008.


• Rapist convicted of assault in University District elevator attack, Seattle Times, Oct. 4, 2008.


• Crime-spree suspect Thompson starts trial by lunging at lawyer, Seattle Times, Feb. 17, 2009.


• Two more trials for serial rapist: Once current case is over, man faces murder charge, Seattle P-I, Feb. 17, 2009:

  Thompson, as in previous trials, has remained a difficult defendant. Outside the jury's view, he has been transported into court on a low-slung restraint chair because of previous outbursts. He's also requested that his attorney, John Hicks, be removed from the case; Hicks previously received accolades from Judge Palmer Robinson for his handling of a challenging case and client.

• Serial rapist takes stand, claims he's the victim, Seattle P-I, Feb. 25, 2009:

  "Are you the victim here?" Senior Deputy Prosecutor Scott O'Toole asked Thompson, as the convicted serial rapist again faced a jury Wednesday on charges of burglary, car theft and first-degree rape related to a 2004 attack.
  
  "In a sense, yeah," Thompson answered, shackled and seated at the defense table. "You want a list of how long the government has been oppressing me?"

• Curtis Thompson found guilty of '04 rape of Eastlake woman | Seattle Times Newspaper, Feb. 27, 2009.


• Thompson convicted again in 2004 post-prison rape spree, Seattle P-I, Feb. 27, 2009.

Deputing prosecutor Scott O'Toole is also a UW Trial Ad instructor.

Cruelty laws apply to livestock, lawsuit says

Cruelty laws apply to livestock, lawsuit says, Seattle P-I, Feb. 20, 2009:

In the suit filed earlier this month by the Northwest Animal Rights Network, the activists aim, at a minimum, to limit the manner in which meat and dairy producers treat their livestock, said Adam Karp, a Bellingham attorney representing NARN.

Under state law, animal cruelty can be charged as a felony. But the law exempts livestock handlers from prosecution so long as their actions are in line with "customary animal husbandry practices."

That standard, Karp argued, gives the industry far too great a role in determining what is and isn't humane treatment. Karp alleged that many practices considered "customary" by meat, milk and egg producers are unduly and unnecessarily cruel.

Karp has taught Animal Law at both the UW and SU.

Former pharmacist sentenced to year in prison

A grocery store pharmacist started collecting customers' leftover medications for a charity. When the charity (which had been operating illegally, by the way) stopped picking up, he got the bright idea of selling the old meds to customers and pocketing the customers' copays. He pleaded guilty to misbranding drugs and deceptively acquiring a controlled substance. HeraldNet: Former pharmacist sentenced to year in prison, Everett Herald, Feb. 28, 2009.

Ronald Friedman, the assistant U.S. attorney who handled the prosecuting, has been a Trial Ad instructor at the UW.

See also Guilty plea in reselling of store drugs, Seattle P-I, Oct. 31, 2008. (Grammar geek digression: This headline had the subhead: "pharmacist filled orders, pockets." That, I believe, is a zeugma. Playing a word game at my boss's house, we came across that word and didn't know what it meant. The dictionary on my Mac has this for zeugma: "a figure of speech in which a word applies to two others in different senses (e.g., John and his license expired last week) or to two others of which it semantically suits only one (e.g., with weeping eyes and hearts). The example we found that day was "He took his hat and his leave.")

Rescuing legal aid

An op ed piece by a law professor and former legal aid lawyer: Clare Pastore, Rescuing legal aid - Los Angeles Times, Feb. 23, 2009:

Every day, Americans without access to legal counsel unnecessarily lose homes, jobs, retirement benefits, healthcare and custody of their children. This is because in America, we have not yet recognized a right to counsel in civil cases, except in a tiny number of narrow areas. Indigent clients with the law on their side often find themselves losing to well-funded opponents simply because they have no means of fighting back.

* * *

In the end, the cost of providing counsel must be balanced against the hidden costs of not providing representation: the societal costs of displacing a frail senior, for example, can dwarf those of providing legal help to avoid the eviction.

Thanks: Michele Storms.

Jailing Kids for Cash

Truthdig - Reports - Jailing Kids for Cash, Feb. 17, 2009:

As many as 5,000 children in Pennsylvania have been found guilty, and up to 2,000 of them jailed, by two corrupt judges who received kickbacks from the builders and owners of private prison facilities that benefited. The two judges pleaded guilty in a stunning case of greed and corruption that is still unfolding. Judges Mark A. Ciavarella Jr. and Michael T. Conahan received $2.6 million in kickbacks while imprisoning children who often had no access to a lawyer. The case offers an extraordinary glimpse into the shameful private prison industry that is flourishing in the United States.

Thanks: Michele Storms, Jill Mullins.

Federal District Judge "Retires" Under Indictment

Federal judge pleads to obstruction of justice, steps down, Nat'l L.J. web only, Feb. 24, 2009.

Federal Judge Samuel B. Kent, indicted in January on six counts of alleged sexual abuse of two court staff members and obstruction of the investigation, pleaded guilty to obstruction and "retired" his lifetime post Monday.

He is the first federal judge ever indicted for alleged sexual crimes.

Judge Kent achieved some fame for his use of humor to chastise attorneys who practiced before him. For instance, in one case, he said that the lawyers had written their motions in crayon on grease-stained place mats. That case was sent around the Internet and appeared in reading lists in the U.S. law schools -- and even in an Australian judicial training program. For a thoughtful essay on this, see Steven Lubet, Bullying from the Bench, 5 Green Bag 2d 11 (2001). For other examples of judges criticizing lawyers (generally with less hyperbole and fewer cheap shots), see Mary Whisner, When Judges Scold Lawyers, 96 Law Libr. J. 557 (2004).

Once Kent wrote

Manifestly, any person with even a correspondence-course level understanding of federal practice and procedure would recognize that Defendant’s Motion is patently insipid, ludicrous, and utterly and unequivocally without any merit whatsoever. Worse it is just plain blatantly wrong in light of the unambiguous language of a decades old federal statute and veritable mountains of case law addressing venue propriety.

Kent Doesn’t Mince Words, Texas Lawyer, July 16, 2001, at 5, 5 (quoting order in Labor Force v. Jacintoport Corp., No. G-01-058 (S.D. Tex. June 7, 2001)). The order was published in the advance sheet of 144 F. Supp.2d 740 but withdrawn from the bound volume at the request of the court. It was also "Removed from the LEXIS Service at the Request of the Court July 18, 2001." In that case, someone (his colleagues?) persuaded the judge to withdraw the case from publication (but it is still available --it's hard to kill these things once they're out).

Given these examples of Judge Kent's lack of decorum and poor sense of boundaries -- or, as Lubet termed it, his bullying -- it's not too surprising that he also believed that the rules of sexual propriety and workplace respect also did not apply to him. It says something that the conduct was serious enough to end his lifetime appointment.

National Academies of Sciences Slams Crime Labs

National Academy of Sciences Finds 'Serious Deficiencies' in Nation's Crime Labs, Nat'l Acad. Crim. Defense Lawyers press release, Feb. 18, 2009:

A much anticipated report by the National Research Council (NRC) of the National Academy of Sciences (NAS) on the state of forensic science in the U.S. and its recommendations to fix a broadly flawed system was released today. Finding an inconsistent system rife with “serious deficiencies,” lacking practitioner and laboratory independence, standards, oversight, and certification, the NRC called today for major reforms, including the establishment of a wholly independent federal agency, the National Institute of Forensic Science (NIFS), to address the manifold problems with the current science and system.

This page from the National Academies of Sciences has the NAS press briefing and the full report (Strengthening Forensic Science in the United States). You can view the report free but need to pay to download it.

Costco Decision Could Significantly Change Scope of Attorney-Client Privilege

Michael A. Sands and Dan Ko ObuhanychJD Supra: Legal Articles - Costco Decision Could Significantly Change Scope of Attorney-Client Privilege, Jan. 13, 2009.

Costco (in California) asked counsel review its classification of its managers (bakery manager, meat manager, et al.) under wage and hour laws. To do so, the lawyer interviewed a couple of managers, gathered facts, and wrote a 22-page opinion letter. A year later, Costco reclassified the managers to be non-exempt so they would be eligible for overtime. Over a year after that, some managers filed a class action alleging that Costco's previous classification had been wrong. And the plaintiffs' attorneys sought the 22-page opinion letter in discovery.

The trial judge had a discovery referee read the letter, redact what was privileged, and let the plaintiffs the "factual information."

The California Court of Appeals denied writ relief because the company couldn't show "irreparable harm" because the parts of the opinion letter disclosed

were “inconsequential and do not infringe on the attorney-client relationship.” The appellate
court noted that the unredacted portions of the letters were “factual statements about the employees’ responsibilities” and did not reveal legal knowledge, advice or impressions, and stated that the information “is hardly startling and can easily be obtained from interviews, depositions, or from a production request.”

And now the case is pending before the California Supreme Court.

The authors of this newsletter article predict that this decision could have a big effect. Will clients be less forthcoming to their attorneys? Will attorneys start delivering more advice orally?

Think about how you weave facts into a memo or opinion letter. Can the way you order and state facts really be separated from your legal analysis?

UW mock trial team succeeds in Oregon, qualifies for nationals - The Daily of the University of Washington

The undergraduate mock trial club, founded just last year, has entered the competition circuit with a splash. UW mock trial team succeeds in Oregon, qualifies for nationals - The Daily of the University of Washington, Feb. 17, 2009. Congratulations!