Federal Judge May Face Impeachment

Yesterday a task force of the House of Representatives voted in favor of four articles of impeachment against Judge G. Thomas Porteous, Jr., Eastern District of Louisiana. The articles allege an improper financial relationship with a firm that handled a case before him, the failure to recuse himself in a case the firm handled, and more. Judge, Facing Impeachment, Mounts His Defense, The BLT: The Blog of the Legal Times, Jan. 22, 2010.

The judge's lawyer argues that some of the alleged misconduct was when Porteous was on the state bench and that, in any event, the Department of Justice investigated similar charges and declined to prosecute. But the Legal Times posted the DOJ's letter to the Fifth Circuit's Chief Judge and it does not paint a pretty picture:

Despite the Department's decision not to charge Judge Porteous with violations of federal criminal law, the investigation has uncovered evidence of pervasive misconduct committed by Judge Porteous. The Department also is aware that Judge Porteous and his medical examiners have concluded that he is mentally and psychologically unfit to serve as a federal judge, and that his incompetency is permanent. Collectively, the evidence indicates that Judge Porteous may have violated federal and state criminal laws, controlling canons of judicial conduct, [and] rules of professional responsibility, and conducted himself in a manner antithetical to the constitutional standard of good behavior required of all federal judges.

Impeaching a federal judge is very unusual. The Federal Judicial Center has a list of all the judicial impeachments from 1803 to 2009 -- just 14 in all. Only 7 of the judges were convicted.

The Federal Judicial Center offers a database that enables you to search profiles of all federal judges in history by characteristics such as nominating president, race or ethnicity, and -- a search I just tried -- termination reason.

Fourth Amendment and Cloud Computing

Fourth amendment doctrine developed in tangible contexts -- do you have an expectation of privacy inside your house? with respect to stuff you zip in a dufflebag? And in the last century, it has had to deal with more technology -- wiretaps, heat sensors, and so on. \

A new law review article explores privacy interests in material in "cloud computing" -- your diary stored in Google docs, your snapshots stored on Flickr, etc. David A. Couillard, Note, Defogging the Cloud: Applying Fourth Amendment Principles to Evolving Privacy Expectations in Cloud Computing, 93 Minn. L. Rev. 2205 (2009).

Tulia: Race, Cocaine, and Corruption in a Small Texas Town

On one morning, members of a drug task force arrested forty-seven people for dealing cocaine. Forty-seven is a lot of drug dealers for a town of 5,000 people, and some people might have been struck by the coincidence that not one of them had cocaine when the surprise busts were made. But still, prosecutions went ahead and most of the suspects were convicted and given substantial sentences.

In Tulia: Race, Cocaine, and Corruption in a Small Texas Town (HV8079.N3 B55 2005 at Good Reads) reporter Nate Blakeslee explores all the things that went wrong -- the dishonest undercover cop, the sheriff who ignored repeated warning signs (even an indictment of the cop for theft from another county), the prosecutor who pressed on and stonewalled anything negative, the court-appointed counsel who didn't do much, the judge who didn't let the defense attorneys question the cop's background, the newspaper who assumed the guilt of all charged, the white community that was eager to believe the worst of the black defendants.

He also explores some things that went right -- a few community members (white and black) who advocated for the defendants, sending out mailings to get some media attention, the Texas Observer story (written by Blakeslee), the national media coverage, the New York drug reform advocate, attorneys from Texas, DC, and New York who handled the habeas case and civil suits.

Blakeslee followed the events in Tulia after his first magazine article. He attended court hearings, interviewed defendants and family members, and pored over trial transcripts. He brings to this legal tale background about the community and the families entangled in the arrests.

Blakeslee gives an inside view of the legal maneuverings -- the judge's decisions to exclude certain evidence from the original trials, the different level of investigation by the different court-appointed attorneys, the involvement of the Texas ACLU (search for "tulia" to learn about advocacy related to the case), the litigation strategy of the habeas team, and some beautiful cross-examination in the habeas hearing. The habeas team was spearheaded by Vanita Gupta, a young lawyer at the NAACP Legal Defense Fund, fresh out of law school and funded by a Soros fellowship. She threw herself into the case and recruited the "dream team" of lawyers from DC and New York law firms.* Blakeslee had access to the team and so could write with immediacy of the "war room" discussions and the teamwork involved in the litigation. Behind one lawyer's brilliant cross-examination, for instance, was another lawyer's painstaking work culling through transcripts to find the undercover officer's previous misstatements.

Blakeslee makes it clear that he does not think that the injustice in Tulia is unique to that time and place, and he discusses more general issues about multi-jurisdictional drug task forces and the indigent defense system. In a closing chapter, he reports some reforms implemented in Texas in response to the Tulia events.

You can preview Tulia on Google Books, and of course you can check the whole book out from the library.

* For profiles of and interviews with Gupta see New York Times (April 16, 2003), NYU Law (Jan. 2004)), Rediff India Abroad (Dec. 8, 2004), and Wikipedia.

For Judges on Facebook, Friendship Has Limits

For Judges on Facebook, Friendship Has Limits, N.Y. Times, Dec. 10, 2009.

Judges and lawyers in Florida can no longer be Facebook friends.

In a recent opinion, the state’s Judicial Ethics Advisory Committee decided it was time to set limits on judicial behavior online. When judges “friend” lawyers who may appear before them, the committee said, it creates the appearance of a conflict of interest, since it “reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”

. . . A minority of the panel would have allowed Facebook friendship, which it characterized as more like “a contact or acquaintance” without conveying the notion of “feelings of affection or personal regard.”

Admissibility of Past Acts of Sexual Abuse

RCW 10.58.090, added in 2008, allows trial courts to admit evidence of prior sexual misconduct in sex offense cases, even if it would be excluded under ER 404(b). The evidence must still be admissible under ER 403.

Last month, Division I upheld the statute's constitutionality over a variety of objections by a man convicted of molesting his granddaughter after a trial that included the testimony of several other relatives he had molested when they were girls. State v. Scherner, No. 62507-1-I, Findlaw (Dec. 21, 2009).

The court cited (n. 12) a comment by a current UW student: Blythe Chandler, Comment, Balancing Interests Under Washington's Statute Governing the Admissibility of Extraneous Sex-Offense Evidence, 84 Wash. L. Rev. 259 (2009) (abstract). See UW Law news release.

The bulk of the opinion discusses the constitutional challenges to the statute. An unpublished part, at the end, deals with a few other claims, including whether the jury was tainted by seeing a Seattle Times article, Rape trial lets family share decades of pain, secrets, Seattle Times, Aug. 19, 2008 (four jurors saw the headline and picture; none said they read it).

Other coverage of this case in the Seattle Times:

• Child-rape suspect, 79, can't be found, March 4, 2008.
• Child-rape suspect, 79, arrested in Florida, March 6, 2008.
• Man fleeing child-rape trial here is arrested in Florida, March 7, 2008.
• Past abuse acknowledged in molestation case, Aug. 21, 2008 (reports on defendant's testimony).
• Jury finds California man guilty of molesting young relative, Aug. 21, 2008.
• Man found guilty of molesting 7-year-old relative, Aug. 22, 2008.
• Sex offender sentenced to prison for molesting young relative, Oct. 3, 2008.
• Scherner, 79, sentenced to prison for molesting young relative, Oct. 4, 2008.

4 U.K. Men Face Precedent-Setting Non-Jury Trial

4 U.K. Men Face Precedent-Setting Non-Jury Trial, NPR, Jan. 12, 2010.

For the past 400 years, all criminal trials in Britain have taken place in front of a jury. But Tuesday, that precedent was broken as a trial began before only a judge for four men accused of a major robbery at Heathrow Airport. Recent legislation allows non-jury trials in exceptional circumstances. And in this case, the police convinced a higher court that there had been attempts to intimidate or bribe potential jurors.

The crime was exceptional: In February 2004, masked gunmen held up a warehouse at Heathrow Airport and got away with $3 million. Since then over $30 million has been spent trying to try the suspects; the third trial ended after the judge found "a serious attempt at jury tampering."

Thanks: Nick Marritz.

US Atty Guidelines for Discovery

The Attorney General has new issued guidance memorandums to U.S. Attorneys on criminal discovery. Memos to United States Attorneys: Establishing Guidance for Prosecutors Regarding Criminal Discovery, The Justice Blog, Jan. 4, 2010. This post is on the DOJ's own blog and links to the three memos.
One of the guidance memos explains:

There are times when providing discovery broader than that required even by current Department policy serves the interests of justice. Providing broad and early discovery often promotes the truth-seeking mission of the Department and fosters a speedy resolution of a case. On the other hand, there are times when countervailing considerations counsel against broad and early disclosure. For these reasons, the discovery guidance is intended to assure that prosecutors make considered decisions about whether to disclose information beyond the requirements of law and policy and when to disclose it.

DOJ Report: Better Security for Prosecutors and Judges

The Blog of the Legal Times reports that a Justice Department report "found continued deficiencies in the protection of federal judges and prosecutors even as threats and the like targeting the judiciary and law enforcement increased substantially in recent years." DOJ: Better Effort Needed to Protect Judges, Prosecutors, BLT, Jan. 4, 2010.

The 109-page report is Review of the Protection of the Judiciary and the United States Attorneys (Redacted Version), Evaluation and Inspections Report I-2010-002-R, December 2009.

O'Connor Leads Effort to End Judicial Elections

A group of judges, political officials and lawyers, led by the retired Supreme Court Justice Sandra Day O’Connor, has begun a campaign to persuade states to choose judges on the basis of merit, rather than their ability to win an election.

Effort Begun to End Voting for Judges, N.Y. Times, Dec. 23, 2009.

O'Connor is working with the University of Denver's Institute for the Advancement of the American Legal System.

Has the Supreme Court Undermined Civil Rights Enforcement?

Congress is considering legislation to undo the Supreme Court's holdings in Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009). The Washington Independent reports:

Does a House bill about legal civil procedures provide a way to restore the protection of civil rights in America, or is it an unwarranted gift to trial lawyers that could be “paralyzing if not deadly” to the federal government?

* * *

As in the Senate, House lawmakers appear divided along party lines. Democrats and their witnesses say that the Supreme Court’s recent decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal have gutted the civil rights and antitrust laws and imposed an unfair and often insurmountable burden that will doom many valid claims. Republicans and their witnesses, meanwhile, say the court did the right thing to help reduce frivolous lawsuits that destroy small businesses and drag busy government officials into court unnecessarily.

Has the Supreme Court Undermined Civil Rights Enforcement?, Washington Independent, Dec. 17, 2009.

One of the witnesses was Prof. Eric Schnapper of the University of Washington, who argued that Congress should act quickly to overturn Iqbal and Twombly. whose prepared statement is here. The bill being considered in the House is H.R. 4115, the Open Access to Courts Act of 2009.

Jurors in Trial of Baltimore Mayor Friend Each Other on Facebook

Judges confounded by jury's access to cyberspace, Baltimore Sun, Dec. 13, 2009:

On Friday, lawyers for Baltimore Mayor Sheila Dixon asked for a new trial in part because five of the jurors who convicted her of embezzlement Dec. 1 were communicating among themselves on Facebook during the deliberations period - and at least one of them received an outsider's online opinion of what the verdict should be. The "Facebook Friends," as Dixon's lawyers call them in court documents, became a clique that the lawyers argue altered jury dynamics.

The article discusses a number of cases affected by jurors who go online.

Concern has grown so much nationwide that legal experts, including in Maryland, are rewriting model jury instructions to specifically tell jurors that online searches, texting and social media - the things they routinely do on laptops, cell phones and BlackBerrys - are out. Maryland's rules are expected to be published next year, and the ones on that subject are still being drafted.

Forensic Facebook

A New York Times blog reports (Nov. 11, 2009) on a Harlem teenager whose Facebook status update helped confirm an alibi and get burglary charges dropped. The post says that this is the first time Facebook helped the accused, and lists times when Facebook and MySpace posts have been used against defendants.

Comments list different ways that someone could scam the system. Sure, a 19-year-old could call home and say, "Dad! Quick! Log in to my Facebook account and post something. I'm going to need to prove that I was in your apartment right now! Oh, and when the police ask you if I was there, lie for me, OK?" But I think the prosecutor probably made a good call.

Representing Hamdan - Free CLE

The Trial of Salim Ahmed Hamdan:
Constitutional Challenge to Executive Power and the
First War Crimes Trial of a Guantanamo Detainee

Monday, December 7, 2009
Benaroya Hall, 2nd & Union Streets, Downtown Seattle
Nordstrom Recital Hall
4:00 p.m. to 5:30 p.m.

Perkins Coie lawyers Harry Schneider, Joe McMillan and Charles Sipos will provide a behind-the-scenes account of their experience as part of the defense team of lawyers appointed to defend Salim Ahmed Hamdan, widely known as Osama bin Laden's personal driver. The presentation will include a review of the federal court litigation filed in Seattle that eventually led to the United States Supreme Court 2006 landmark Hamdan v. Rumsfeld decision on the limits of presidential power. Messrs. Schneider, McMillan and Sipos will also provide an in-depth analysis of the 2008 trial at Guantanamo Bay in which Mr. Hamdan became the first defendant accused by the United States of committing war crimes in the war on terror and tried before a Military Commission.

To Attend
This is a complimentary seminar offered by Perkins Coie; however, pre-registration is required.
You may register here for this program.
Public parking is available at several parking lots near Benaroya Hall. Parking will not be validated.

CLE
This program has been granted CLE credits in Washington and California. If you are admitted to practice in another state, we will provide information to allow you to apply for credit in your state of admittance.

Questions?
Please contact our Registrar, Linda Gordon, at LGordon [at] perkinscoie.com or 206.359.8420 if you have questions.

JP Morgan Drops Arbitration Clauses

Parties to a contract often like arbitration clauses because they offer a cheaper and easier resolution to disputes than formal litigation. However, credit-card companies typically dictate the terms of the agreement for consumer debts and hire arbitration companies to handle all of their customer's disputes.

The Wall Street Journal reported last weekend that JP Morgan is removing arbitration clauses from their credit-card agreements. This change comes in the wake of several court cases addressing the close relationship the banks enjoy with arbitration companies.

Businessweek reported this summer that the Minnesota Attorney General filed suit against the industy-leading National Arbitration Forum. As Business week reports, "[The Minnesota suit] follows a bias case brought against NAF last year by the San Francisco city attorney in California state court."

THANKS to Patrick Flanagan for this guest post. -- mw

Defendants Gone Missing

Two current stories about defendants on the loose:

• The Blotter | Seattle man skips bail, costs family $100,000 | Seattle Times Newspaper, Oct. 30, 2009. The man is accused of shooting well-known Black Diamond sound engineer Tom Pfaeffle.


• Seattle 911 | Men skip out on trial; jury says guilty, not goodbye | Seattle P-I, Oct. 30. Two men fled during their trial for conspiracy to distribute ecstasy. The jury convicted them and now they also face penalties for fleeing during trial.

Transcripts Aren't Enough

Surprisingly, in most U.S. jurisdictions, court proceedings, which can dramatically affect people‟s lives or property, are rarely recorded accurately or in their entirety because only a small percentage of courts regularly create a video record of court proceedings. Of those courts that do, most do not preserve the video record but simply turn it into a transcript.

Keith A. Gorgos, Comment, Lost in Transcription: Why the Video Record Is Actually Verbatim, 57 Buff. L. Rev. 1057, 1058 (2009)(footnotes omitted). The author analyzes ways that transcripts can be inadequate records of trials -- for instance because the text does not include all the non-verbal cues a witness can give or because the court reporter simply did not capture the speech accurage -- and argues that video records be kept and made the official.

Pro Bono Practice CLE: Hope & Help In Hard Times

As part of the ABA's National Pro Bono Celebration next week, the University of Washington School of Law and Seattle University School of Law are sponsoring a full-day CLE at Seattle U: Pro Bono Practice Workshops and CLE: Hope & Help In Hard Times on Friday, Oct. 30. Registration is just $25 for new lawyers, young lawyers, and recent graduates, $125 for others.

A reception at the end of the day will honor William H. Gates, Sr., who was awarded the American Bar Association Medal in August. WSBA president Salvador Mungia and Harry Schneider, Jr. (pro bono counsel in Hamdan v. Rumsfeld), will speak.

Lower Awards for Spanish-Speaking Plaintiffs

Lost in Translation | ABA Journal - Law News Now, Jan. 2009:

After compiling 17 years of data from his own practice, Dallas lawyer Angel Reyes had a hunch that Spanish-speaking plaintiffs who required the use of a translator in the courtroom received smaller awards than those who did not.

Last fall Reyes and two professors from Texas Tech University's Rawls College of Business confirmed his suspicion: Spanish speakers who relied on a translator during court testimony were 15 percent less likely to obtain a jury verdict that exceeded their last settlement offer than were English speakers.

The article is: Bradley T. Ewing, Angel L. Reyes, III, & James C. Wetherbe, Estimating the Effect of Non-English Speaking Hispanic on Personal Injury Jury Trial Outcomes, Texas Tech University, Rawls College of Business, ISQS Working Paper (2008); it will appear in Social Science Quarterly.

Thanks: @djillpugh.

Limiting Secret Settlements - the Florida Experience

Parties often agree to keep settlements confidential -- defendants will often pay extra for the secrecy and plaintiffs are willing to promise quiet in exchange for the settlement. But it's a public concern if the confidentiality keeps the public from learning of unsafe products or conduct that could affect them as well as the particular plaintiff who settled.

Florida attempted to limit the number of such settlements with the Sunshine in Litigation Act, that required openness if the information related to a public hazard. But in the decade or more since the act, the courts and parties in Florida have still allowed secret settlements.

Prof. Roma Perez reviews Florida's experience and suggests improvements in Two Steps Forward, Two Steps Back: Lessons to Be Learned from How Florida's Initiative to Curtail Confidentiality in Litigation Have Missed Their Mark, 10 Fla. Coastal L. Rev. 163 (2009).

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Another Cautionary Facebook Tale

I got the Davis Law Group's September 2009 newsletter in my email and took a look. Christopher Davis tells about a client who had been injured in a car accident. There was evidence about the young man's injuries and the likelihood that his back would give him trouble from time to time for years to come. The defense, though, found pictures and videos on his Facebook and Myspace pages showing him snowboarding. And that led to a lower settlement, because of how those images would play with the jury. Even if the plaintiff had considerable pain over long stretches and always would, just a few carefree minutes on the slopes would make it look like the accident hadn't had much impact. And that's why Davis says that he always cautions his clients to be careful what they post.

Graphic from Washington State Department of Licensing.