Malleable Memories

William Saletan of
Slate has begun an eight-part series on the work of famed memory researcher Elizabeth Loftus.

Part I, The Ministry of Truth, recounts a memory experiment Slate conducted: readers were shown photos of four actual news events and one faked event and asked to comment on what they remembered. Many "remembered" the events that never happened. Next they were told that four of the events were real and one was faked. Many chose one of the real events as the fake and continued to "remember" the false one.

Part II, Removable Truths, begins profiling Professor Loftus. Still to come:

• Part III, Leading the Witness
• Part IV, The Recipe
• Part V, Truth or Consequences?
• Part VI, The Road to Therapy
• Part VII, Training Humans
• Part VIII, The Future of the Past

I'll fill in those links after the articles appear. [June 25: Just remembered to do this!] In the meantime, if you'd like to read more about Loftus, here is a profile from the Association of Psychological Science Observer: Inside the Psychologist's Studio: The Road Taken.

For a deeper analysis of Loftus's work, see Do Justice and Let the Sky Fall: Elizabeth F. Loftus and Her Contributions to Science, Law, and Academic Freedom (Maryanne Garry & Harlene Hayne eds., 2006), BF109.L64 E45 2006 at Classified Stacks. One of the articles in this volume is Incorporating Elizabeth Loftus's Research on Memory into Reforms to Proect the Innocent, by Prof. Jacqueline McMurtrie, Director of the Innocence Project Northwest Clinic.

Female Advocates' Attire

How should women dress when they appear in court for their clients? Conventional wisdom suggests conservatively: a sober suit with a respectable blouse. But Professor Maureen Howard, Director of the UW's Trial Advocacy Program, suggests that effective advocates need to be credible, and that might mean dressing to reflect one's own personality and tastes.

The biggest risk of adopting "off the rack" clothing advice is ignoring one's own sense of personal authenticity in dress and manner. In such a situation, the clothing "becomes a "costume," undermining the lawyer's credibility and emphasizing the "play within a play" aspect of trial work. . . . A lawyer who maintains her integrity in her dress and emeanor and is consistently genuine -- consistently herself -- is more likely to be perceived as credible and trustworthy.

Maureen A. Howard, Beyond a Reasonable Doubt: One Size Does Not Fit All When It Comes to Courtroom Attire for Women, 45 Gonz. L. Rev. 209, 216 (2009/10), LexisNexis get 45 gonz l rev 209, Westlaw
Find 45 gonz l rev 209. Howard supports her argument with observations from her experience as well as citations to practice guides and scholarly literature.

Not Guilty By Reason Of Insanity: Balancing Public Safety With Disability Rights

This morning Weekday on KUOW looks at Not Guilty By Reason Of Insanity: Balancing Public Safety With Disability Rights, interviewing King County Prosecutor Dan Satterberg and Gonzaga law professor Mary Pat Treuthart.

They discuss Wash. Laws of 2010, ch. 263, which establishes a public safety review panel to advise courts when the state mental hospital recommends the release of someone who had been found not guilty by reason of insanity.

Innocence Project Clients from Clark County Freed

UW's Innocence Project Secures Two More Conviction Reversals, UW Law press release, April 22, 2010. Note links to other stories and video clips in sidebar.

Prosecutor Sleeps with Judge: Conflict of Interest?

Dahlia Lithwick writes about a distressing conflict of interest in a murder trial -- a conflict that does not seem to distress reviewing courts. Courting Disaster: The most outrageous thing about the Texas judge who slept with the prosecutor in a death-penalty case, Slate, April 24, 2010.

You don't even have to take a position on Hood's guilt, innocence, or the efficacy of the death penalty to recognize that when a judge and prosecutor are secret paramours, the integrity of the whole judicial system suffers.

Thanks: Jennifer Wertkin

Corrected 6/25/10

Trial Advocacy Resources Guide

Check out our library's new Trial Advocacy Resources guide. It lists print, video, and online resources for developing skills and finding academic studies. It has links to national and Washington State professional organizations and local courts. And it has information about newsletters and blogs that can help you stay current.

I've added it as a link in the sidebar to the right, so you can find it again easily if you want to.

Judge Franklin Burgess Dies

Judge Franklin D. Burgess, the second African American judge in the Western District of Washington, died last week. Gonzaga star Judge Franklin Burgess a genuine legend, Seattle Times, March 27, 2010.

Court Requires Warning About Deportation Risk

Court Requires Warning About Deportation Risk, N.Y. Times, March 31, 2010:

The Supreme Court ruled on Wednesday that lawyers for people thinking of pleading guilty to a crime must advise their clients who are not citizens about the possibility that they will be deported.

Likening deportation to the punishments of banishment and exile, Justice John Paul Stevens, writing for five justices, said the Constitution guaranteed competent legal advice on at least some collateral consequences of guilty pleas.

“It is our responsibility under the Constitution to ensure that no criminal defendant — whether a citizen or not — is left to the mercies of incompetent counsel,” Justice Stevens wrote.

Padilla v. Kentucky, No. 08-651 (March 31, 2010) is here. SCOTUS Blog has links to other stories here.

Bridging the Gap CLE

KCBA and WSBA YLD present Bridging the GAP 2010, a CLE that offers "Low-cost practical skills to help prepare new lawyers for success in their legal careers, regardless of practice area," Friday, March 26.

7:30-8:00am Registration and Coffee Service

8:00-9:00am 15 Key Elements of a Successful Law Practice - Ann Guinn, G&P Associates

9:00-10:00am Basic Rules of Motion Practice - Lisa M. Marchese, Dorsey & Whitney LLP

10:15-11:30pm Transactions and Litigation - Brian C. Park, Dorsey & Whitney LLP; David M. Byers, Starbucks Corporation

11:30-12:30pm Top 10 Reasons Lawyers Get Sued - Colin J. Folawn, Schwabe Williamson & Wyatt; Christopher H. Howard, Schwabe Williamson & Wyatt

12:30-1:30pm Lunch Provided

1:30-3:00pm Effective Legal Writing from the Judicial and the Law Firm Perspective - The Honorable Elaine Houghton, Washington Court of Appeals; Robert C. Cumbow, Graham & Dunn PC

3:15-4:15pm Ethics and Professionalism - Irene Leonard, Coaching for Change; Molly Kenny, Law Offices of Molly B. Kenny

4:15-5:00pm Negotiation and Mediation - Jeff Bean, Beyond the Courthouse Mediation; Rina Goodman, Transforming Conflict, LLC

5:00-6:00pm Networking Social Hour

This is a bargain -- $95 for attorneys and just $25 for students (limited spaces available).

This program sold out last year, and the student spaces are limited, so register soon!

Banished

A new book by two UW faculty members explores geographic restrictions that are placed on people in the city -- often homeless people and people of color. Katherine Beckett & Steve Herbert, Banished: The New Social Control in Urban America (2007).

The book would be interesting and important for anyone concerned about the law and the urban poor, but it's especially interesting locally because the city the authors study is Seattle. They use a variety of sources: records from the police and the courts, archives from the city council, interviews with prosecutors, defenders, and judges, and -- most vividly -- interviews with people who are subject to the restrictions.

SOAP and SODA aren't just items on a shopping list: they're tools for restricting where an individual may go in Seattle. Very often probation (or a deferred sentence) for a minor offense includes an order to Stay Out of Areas of Prostitution (SOAP) or to Stay Out of Drug Areas (SODA). Hundreds of people are also given trespass admonishments, with orders not to go to one or many parks or not to go to one or many businesses.

Violating these orders subjects a person to arrest, trial, and jail. And yet obeying the orders often isolates the person from his or her community and makes it difficult to get social services, and so most people covered by the orders do not obey them.

The scope of the system is large (and therefore costly). For example, criminal trespass charges led to over 10,000 jail days in 2005. And the city attorney estimated that jailing SODA violators cost the city about $1 million from March 2006 to December 2007.

For more, see the publisher's page or check the book out: HN80.S54 B43 2010 at Good Reads.

A Judge’s Unusual Request: Don’t Print This in Westlaw or Lexis - News - ABA Journal

Judge A. Howard Matz (C.D. Cal.) has issued orders marked: "This order is not intended for publication or for inclusion in the databases of Westlaw or Lexis." That is, "really, really unpublished." A Judge’s Unusual Request: Don’t Print This in Westlaw or Lexis - News - ABA Journal, March 11, 2010.

Stephen Montes, Matz’s courtroom deputy clerk, says the language is intended as a signal—and is not a command to Westlaw or Lexis.

“On the occasions when the judge has added that language, it was designed to signal to the reader that he knew that the analysis in the order was not necessarily definitive or exhaustive--that the order should not be viewed as something he intended to contribute to developing jurisprudence,” Montes writes in an e-mail to the ABA Journal.

Critics decry the creation of "secret" law and say it's useful for attorneys to learn how a judge has ruled even if the past decision lacks precedential value. And they also note that opinions can show up in many other online services besides the big two.

Law & Psych Conference in Vancouver

The 2010 American Psychology-Law Society will be held in Vancouver, BC, March 18-20. There are some interesting topics on the program -- for instance, the open plenary:

Detecting Deception

• Outsmarting the Liars: Towards a Cognitive Lie Detection Approach - Aldert Vrij, University of Portsmouth
• A New, Countermeasure-Resistant, Accurate, P300-Based Method for Detection of Concealed Information: Forensic and Anti-Terror Applications - Peter Rosenfeld, Northwestern University
• Potential and Limitations of Neuroimaging Methods for Veracity Assessment - Giorgio Ganis, Harvard Medical School
• The New Science of Detecting Deception: Too Wide an "Analytic Gap" Between Laboratory and Courtroom? - Jane Moriarty, University of Akron Law School

If you're feeling interdisciplinary, take a trip up I-5. As we saw during the Olympics, Vancouver is a beautiful city -- and for this conference, it doesn't matter if there isn't much of a snow pack in the mountains!

Bar Prep Scholarships for Future Plaintiff's Attorneys

The Washington State Association for Justice (WSAJ) is now offering scholarships to law students to offset the cost of bar preparation courses.

There are two scholarship programs available to future plaintiff’s attorneys: the Women of WSAJ Bar Preparation Scholarship and the WSAJ Diversity Bar Preparation Scholarship. Deadlines for both scholarships are coming up fast: March 25 and 17th, respectively.

WSAJ's various scholarships are listed here.

News release (March 9, 2010)

At the Supreme Court, An Hour Can Last 66 Minutes - The BLT: The Blog of Legal Times

At the Supreme Court, An Hour Can Last 66 Minutes, The BLT: The Blog of Legal Times, March 3, 2010. Chief Justice Roberts is not as rigid about oral argument time limits as Chief Justice Rehnquist was -- good news for some advocates (but not a privilege to be abused, I reckon).

Evaluating Whether to Settle

Why would an attorney's assessment of a case change between filing and the eve of trial? Why recommend settling when the case looked pretty good? See How Attorneys Value Your Claim When Making a Recommendation to Settle or Proceed to Trial: An Explanation for the Parties, Settle It Now Negotiation Blog, Feb. 20, 2010.

The author recommends a new book, Randall Kiser, Beyond Right and Wrong: The Power of Effective Decision Making for Attorneys and Clients. According to the publisher,

This book guides attorneys and clients through legal decision making. It analyzes 11,306 attorney-client decisions in actual cases and summarizes decades of research regarding judge, jury, litigant and attorney decision making. To explain why many litigation outcomes are suboptimal, the book describes the psychological and institutional factors that impede sound decision making. The roles of attorneys and clients in legal decision making and the legal malpractice and disciplinary consequences of ineffective legal representation also are discussed. To rapidly promote better financial outcomes in civil litigation and to assist attorneys and clients in becoming expert decision makers, the book presents more than 65 ideas, methods and systems for improving personal and group decision making.

Another interesting blog post on litigation and settlement decisions: Decision Tree Analysis in Litigation: The Basics, Settlement Perspectives, Jan. 4, 2009.

Thanks: #djillpugh

Does a Judge's Race Make a Difference?

The ABA Journal reports on some research presented at the mid-year meeting: Race & Gender of Judges Make Enormous Differences in Rulings, Studies Find, Feb. 6, 2010.

But the cited studies are just a start. One of the commenters posted a critique of their methodology. To see the critique, you can skim the comments or go to the Law Librarian blog post quoting it.

Cop Murders Spark Legal Overhaul in Washington - WSJ.com

Cop Murders Spark Legal Overhaul in Washington - WSJ.com, Feb. 4, 2010.

Washington state lawmakers on Wednesday passed five bills aimed at increasing safety for law-enforcement officials in the wake of the slayings of six police officers, in a big overhaul of the state's criminal justice system.
* * *
[T]he revamp has stirred opposition from the American Civil Liberties Union, public defenders and criminal defense associations. They say the bail proposals could curtail a basic protection of the legal system against individuals accused but not convicted of crimes.

Still, Wednesday's measures are expected to pass in the Senate in the coming weeks and be signed by Gov. Christine Gregoire.

NWIRP Is Blog's Non Profit of the Week

Illinois lawyer Matthew Broderick, who blogs about nonprofit law and sustainable construction, names a "non profit of the week" -- and this week chose the Northwest Immigrant Rights Project. Nice recognition for some of our local heroes -- and an interesting blog to check out, too. Vox Viridis: The Sustainable Legal Voice.

Innocence Project Client Found Not Guilty

Ted Bradford, of Yakima, the first person in Washington to win a new trial based on DNA evidence, was found not guilty in that second trial this week.

“We’re obviously thrilled. We believed in Ted’s innocence all along,” said defense attorney Felix Luna of Seattle. Luna handled the case for Innocence Project Northwest, a legal clinic based at the University of Washington.

Jurors find Bradford innocent of rape, Yakima Herald, Feb. 11, 2010.

Congratulations to the Innocence Project Northwest Clinic and to pro bono lawyer (and Trial Ad instructor) Felix Luna.

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.