Criminal Case Dismissed for Discovery Abuse (CT)

Conn. High Court Dismisses Criminal Case for Discovery Abuse, Conn. Law Tribune (via law.com), July 20, 2011. Searching the defendant's computer for child pornography, the prosecutor found a document from defense counsel outlining strategy and key witnesses. On appeal, the Connecticut Supreme Court reversed. State v. Lenarz, No. SC 18561 (July 19, 2011), majority, dissent.

The majority opinion concludes:

This is a case in which the prosecutor clearly invaded privileged communications that contained a detailed, explicit road map of the defendant’s trial strategy. Compounding the problem, the prosecutor not only failed to inform the defendant and the trial court of the invasion immediately, but also continued to handle the case, to meet repeatedly with witnesses and investigators and ultimately to try the case to conclusion more than one year after the invasion occurred. Under these circumstances, any remedy other than the dismissal of the criminal charge of which the defendant was convicted would constitute a miscarriage of justice.

The dissent opens:

Until today, no federal or state court in this country ever has presumed a sixth amendment violation on the basis of a government’s unintentional breach of the attorney-client relationship, and no federal or state court ever has dismissed criminal charges due to such a breach. Indeed, until today, this court never has ordered the dismissal of criminal charges as a remedial
measure.

I haven't read all the pages of argument on each side, but even from this much, it seemed well worth a post.

Implicit Social Cognition

A forthcoming article explores the role of implicit social cognition in police stops. L. Song Richardson, Arrest Efficiency and the Fourth Amendment, 95 Minn. L. Rev. __ (forthcoming 2011), available at http://ssrn.com/abstract=1625755.

UW law professor Mary Fan discusses the article and offers her own reflections: Mary D. Fan, Subconscious Impact, Jotwell, July 18, 2011.

Skagit County suit claims public defenders too busy to defend

A class action suit against the cities of Mount Vernon and Burlington claims that the attorney with the contract to handle public defense of misdemeanor cases has such a high caseload that it violates defendants' right to counsel. Skagit County suit claims public defenders too busy to defend | Seattle Times Newspaper, June 20, 2011.

Public defenders suing Seattle

After 40 years, The Defender Association's contract with the City of Seattle was not renewed, going instead to Northwest Defenders Association. TDA is challenging the decision, because the other group's lower bid was adjusted (at the city's request) to be higher than TDA's. Public defenders suing Seattle | Seattle Times Newspaper, June 21, 2011.

Prosecutor's Comments Questioned

The Washington State Supreme Court overturned a conviction this month because of the white prosecutor's remarks that black witnesses had not testified against the black defendant because of a purported code that "black folk don't testify against black folk." State v. Monday, No. 82736-2 (June 29, 2011), links to opinions on court's website: majority, concurrence, dissent. See Jennifer Sullivan, Seattle murder conviction tossed out over 'racist' comments, Seattle Times, June 9, 2011.

King County Prosecutor Dan Satterberg wrote a guest editorial apologizing for the comments. 'No-snitch' argument untrue, damaging to trust in law enforcement, June 16, 2011.

This statement is untrue and offensive. We know from experience that the "no snitch" ethic is not confined to any particular race or background. We see it commonly across a wide range of cases that we handle. On the other hand, we also see witnesses of all races and backgrounds participate fully in the criminal-justice system, fulfilling an important civic duty that keeps us all safe and protects our constitutional rights.

Compounding the error, the statement has the unfortunate and ironic effect of further eroding trust in the criminal-justice system. By decrying the "no snitch" ethic in this manner, the senior deputy prosecutor created yet another reason for some to believe that our justice system is biased and racist.

Now an appeal is arguing that the same deputy prosecutor (James Konat) made inappropriate comments in his closing argument in the trial of Sebastian Burns who was convicted with Atif Rafay of killing Rafay's parents and sister. Konat said that the crime was worse than a Middle East beheading of a U.S. citizen, a comparison the brief argues was an appeal to nationalism and prejudice. Prosecutor's comments cited in call for new Sebastian Burns trial | Seattle Times Newspaper, June 20, 2011.

Gene Anderson, U.S. Atty, Prosecuted White Collar Crime, Neo-Nazis

Gene S. Anderson, who served as the U.S. Attorney for the Western District of Washington 1981-89, died on March 27, 2011. He was noted for his prosecutions of white collar crime, both in the King County Prosecutor's Office and then on the federal level. He also worked with his counterparts in other jurisdictions to convict 20 members of the Order, a neo-Nazi group. A memorial will be held Friday, June 24, at 4 pm in the U.S. Courthouse, 700 Stewart St. Gene S. Anderson: memorial to honor trailblazing prosecutor, Seattle Times, June 18, 2011.

Churches Against ‘Jim Crow’

For many black congregations, this weekend’s celebration of Juneteenth will feature a special emphasis on exposing the racial biases of our nation’s criminal justice system.

Since attorney Michelle Alexander wrote The New Jim Crow: Mass Incarceration in the Age of Colorblindness, a network of churches has joined her in the fight against a criminal justice system that targets poor minority communities and locks up a disproportionate percentage of African American men.

The Samuel DeWitt Proctor Conference, a group of thousands of black churches involved in local and global social justice issues, is coming together for Juneteenth to galvanize faith-based action against the new Jim Crow that Alexander writes about in her book.

Catherine Newhouse, Churches Against ‘Jim Crow’ | Urban Faith, June 17, 2011.

See earlier posts on The New Jim Crow. See also the Gallagher Law Library (UW Law) guide, Race in the Criminal Justice System and the website for the state Task Force on Race and the Criminal Justice System.

Juneteenth is a celebration of African American freedom and accomplishment. The Washington State legislature declared:

The legislature recognizes that on June 19, 1865, Union soldiers landed at Galveston, Texas with news that the Civil War had ended and the slaves were now free; that this was two and a half years after President Lincoln signed the Emancipation Proclamation on January 1, 1863; that the end of slavery brought on new challenges and realities in establishing a previously nonexistent status for African-Americans in the United States; that racism and continued inequality is the legacy of slavery and acknowledging it is the first step in its eradication; and that since 1980 June 19th has been celebrated as Juneteenth across the United States as a day for people to come together in the spirit of reconciliation to commemorate the contributions of African-Americans to this country's history and culture.

The legislature declares that an annual day of recognition be observed in remembrance of the day the slaves realized they were free as a reminder that individual rights and freedoms must never be denied.

The legislature declares that an annual day of recognition be observed in remembrance of the day the slaves realized they were free as a reminder that individual rights and freedoms must never be denied.

Laws of 2007 ch. 61 § 1, codified at RCW 1.16.050.

Emotional Testimony in Murder-Rape Trial

The cover story in The Stranger describes in some detail the painful and moving testimony by a Seattle woman who was raped and stabbed and whose partner was raped, stabbed, and killed. The Bravest Woman in Seattle, June 14, 2011.

The reporter, Eli Sanders, has followed this case since the crime was committed, nearly two years ago. See his earlier feature stories: While South Park Slept: A Gruesome Murder, a Beloved Bar, and a Week on the Edge, The Stranger, July 28, 2009, and The Mind of Kalebu, Sept. 22, 2009. The second article describes incidents showing the mental instability and possible dangerousness of the defendant, Isaiah Kalebu.

Conference on Forensic Inference Statistics in Seattle Next Month

8th International Conference on Forensic Inference Statistics
Date:  July 18-21, 2011.

Location: University of Washington School of Law, William H. Gates Hall, 4293 Memorial Way, Seattle, WA

The area of statistical reasoning applied to forensic science has undergone a rapid growth and development both theoretically but also in applied research, becoming a highly interdisciplinary field. This conference is the only forum where police officers, forensic scientists, jurists, scholars from related disciplines and statisticians meet to discuss the constraints, mechanisms and opportunities to provide statistical and inferential support to the decision making process either at level of the investigation or in court.

The Washington State Bar Association has approved the July 18, 2011 ICFIS program for 7 hours of general CLE credit, and the July 19-21 ICFIS conference for 18 hours of general CLE credit.

More details on the program are here.

Miranda and Kids

Marcia Coyle, In Miranda Calculus, Age Should Be a Factor, Court Says, Nat'l L.J., June 16, 2011.

Stressing that children are not "miniature adults," a divided U.S. Supreme Court on Thursday held that the police must consider a juvenile suspect's age in deciding whether the child is in custody and must be given Miranda warnings.

"It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave," wrote Justice Sonia Sotomayor for the 5-4 majority. "Seeing no reason for police officers or courts to blind themselves to that commonsense reality, we hold that a child's age properly informs the Miranda custody analysis."

J. D. B. v. North Carolina, No. 09-11121 (June 16, 2011)

For more on the vulnerability of children to coercive interrogation, see this video from the Center on Wrongful Convictions of Youth (Northwestern Law in Chicago).

Jurors Online Discussed in New Journal

The Reynolds National Center for Courts and Media and Donald W. Reynolds School of Journalism (University of Nevada Reno) launched a new journal in February: the Reynolds Courts and Media Law Journal.

The first issue, Winter 2011, included articles on venue after Enron, guidelines for unmasking in public figure libel cases, and a summary guide on courts and media for judges.

The Spring 2011 issue has four articles on "Modern Media in the Courts":

• Judge Dennis M. Sweeney, When Worlds Collide: Digital Natives Enter the Jury Box, p. 121
• Genelle I. Belmas, That's What "Friend" Is for?: Judges, Social Networks and Standards for Recusal, p. 147
• Gareth S. Lacy,* Untangling the Web: How Courts Should Respond to Juries Using the Internet for Research, p. 169
•  Stacy Blasiola, Say "Cheese!": Cameras and Bloggers in Wisconsin's Courtrooms, p. 197

*Gareth is a 2011 graduate of the University of Washington School of Law.

Miranda Anniversary

Miranda v. Arizona, 384 U. S. 436, Justia, was decided 45 years ago today (June 13, 1966). For a quick summary and the oral arguments, see (or hear) the Oyez Project.

Here are some recent books discussing Miranda and its impact:

• Lawrence S. Wrightsman & Mary L. Pitman, The Miranda Ruling: Its Past, Present and Future (2010) (publisher's page)
• Gary L. Stuart, Miranda: The Story of America's Right to Remain Silent (2004) (publisher's page)
• G. Daniel Lassiter, Interrogations, Confessions, and Entrapment (2006) (publisher's page)
• Sara Catherine Benesh, The U.S. Court of Appeals and the Law of Confessions: Perspectives on the Hierarchy of Justice (2002)

Cameras in Federal District Courts

The federal courts are beginning an experiment to have some trial court proceedings videorecorded and made public. The Western District of Washington is one of the fourteen districts in the pilot project. See Courts Selected for Federal Cameras in Court Pilot Study, U.S. Courts, June 8, 2011; Restrictive Rules Announced for Federal Courts Camera Experiment, The BLT: Blog of the Legal Times, June 8, 2011.

Update (June 10): One commentator rues the restrictions in the experiment (e.g., recording of only civil cases, and only cases where the parties consent): Sean Doherty, No Fly-on-the-Wall Effect From Cameras in U.S. District Courts, Law Technology News, June 10, 2011.

High-Level DOJ Mistakes - Recent and Historic

BLT, the Blog of the Legal Times, today discusses mistakes made at the highest levels of the Justice Department -- the recent politicization of hiring within the department and the historic injustice of defending of the removal of 120,000 Japanese Americans and Japanese residents from their homes during World War II.

•  Former AG Gonzales 'Disappointed' in His Own Conduct in DOJ Hiring. In a deposition for an employment case against DOJ, Alberto Gonzales "said for the first time that "I am disappointed that I didn't do things differently" to stop the politicization of the system of hiring career Justice Department attorneys through its honors program during his time in office."
• In DOJ Speech, Katyal Addresses Japanese Internment Cases. Neal Katyal, Acting Solicitor General, criticized the actions of the solicitor general during World War II who urged the Supreme Court to uphold Japanese American internment, failing to disclose a report from the Office of Naval Intelligence that undercut the rationale for the internment. See also yesterday's post, Katyal Speaks of SG 'Mistakes' in Japanese Internment Cases (linking to a post by Katyal on DOJ's blog).

Personal Jurisdiction Over Foreign Law Firm

BLT, The Blog of Legal Times reports Judge Rules Swedish Law Firm Can Be Named In Local Malpractice Suit, May 24, 2011 "In a 120-page opinion . . ., a Washington federal judge affirmed that a foreign-based law firm with few physical ties to Washington and limited involvement in an underlying case could still be the target of a legal malpractice suit in Washington based on its communications and visits over the years." The plaintiff is suing both a DC firm and the Swedish firm for malpractice in their handling his his patent infringement cases.

Jury Selection and the Coase Theorem

The Coase Theorem says that parties will negotiate to an efficient distribution of goods—if they have perfect information and there are no transaction costs. Dru Stevenson takes this basic premise about an idealized economic world and uses it to frame his observations of jury selection, a phase of litigation where negotiation is typically absent: the rules and traditions of voir dire make the transactions costs very high.

Dru Stevenson, Jury Selection and the Coase Theorem (March 4, 2011), available at http://ssrn.com/abstract=1777278.

Not really into law and economics? The article is still worth reading for Stevenson's comments on jury selection. For instance:

the peremptory strike system actually maximizes uncertainty about the jury, rather than neutrality or fairness, by allowing lawyers on each side to deselect jurors who seem favorable to their opponent. In other words, we merely remove those whose biases seem most evident. Given the relationship between predictability and settlement, this means the peremptory strike system has a temporary chilling effect on settlements immediately following the voir dire segment of the litigation.

Id. at 6.

If you'd like to read more about the Coase Theorem—a lot more—see Steven G. Medema & Richard O. Zerbe, Jr., The Coase Theorem (1999), in Encyclopedia of Law and Economics. This huge, scholarly encyclopedia is on the web, free! By the way, Dick Zerbe, from the UW's Evans School of Public Affairs is an adjunct professor in the law school.

If you think that it would be worthwhile to know a little more about economics and you need an introduction (or a refresher), consider Grady Klein & Yoram Bauman, The Cartoon Introduction to Economics. (This excerpt has a little about the Coase Theorem on page 182.) By the way, Yoram Bauman teaches in the UW's Program on the Environment.

Judging in Black and White

Do judges vary in their treatment of race?

That's the question investigated by three researchers (David S. Abrams, Marianne Bertrand, and Sendhil Mullainathan) who studied thousands of felony cases in Cook County, IL, initiated between 1995 and 2001. Cases were assigned to judges randomly (and the researchers did some statistical checking to confirm that).

Controlling for a wide range of variables, it turned out that race did make a difference across all judges, and, with some judges it made a very big difference. Black defendanats were more likely to be incarcerated than non-Hispanic white defendants. (This paper does not address Hispanic defendants.)

Comparable defendants had different likelihoods of incarceration depending on which judge they were assigned.

With a judge at the lenient end of the spectrum,
a black male defendant had a 45% chance of incarceration
while a white male defendant had at 35% chance of incarceration.



Facing a judge at the harsh end of the spectrum, a black male
defendant had a 68% chance of incarceration, compared with
his white counterpart's 40% chance.

There were also differences in the length of sentences imposed (blacks got longer sentences) but these differences weren't statistically significant.

The researchers did not find significant differences based on race of the judge or whether the judge had experience as a public defender.

David S. Abrams, Marianne Bertrand & Sendhil Mullainathan, Do Judges Vary in Their Treatment of Race? (Univ. of Pa. Law Sch. Inst. for Law & Econ. Research Paper No. 11-07), available at http://ssrn.com/abstract=1800840, J. Legal Studies (forthcoming). The examples about the black and white defendants are drawn from pp. 22-23.

By the way, Cook County gives a very large sample to study. "Cook County is the largest unified court system in the country, with over 2.4 million cases processed per year in both civil and criminal courts." (p. 8). For comparison, consider that all of Washington's superior courts handled a total of 752,082 cases in 2010. Caseloads of the Courts of Washington: Total Proceedings by Type of Case - 2010 Annual Report at 2.

Jury Appreciation Month

According to the Administrative Office of the U.S. Courts, May is Jury Appreciation Month.

Although many people consider jury service on a par with waiting at the DMV, jurors are essential to our judicial processes. The federal Courts website's Educational Resources includes several items about jury service, including jury service basics and two videos on jury service. One of the videos--aimed at high school students--features two judges from the U.S. District Court for the Western District of Washington, Judge Richard Jones and Chief Judge Robert Lasnik.

If you are looking for books in the Gallagher Law Library on juries and jury service, try these subjects: Jury--United States and Jury selection--United States.

The National Center for State Courts website includes many sources on Jury Selection, Trial & Deliberations, including a link to its Center for Jury Studies.

Whether you have served on a jury, intend to practice law before a jury, or care about our fundamental freedoms, take a minute to appreciate jurors and juries.

This post, by Cheryl Nyberg, originally appeared in Gallagher Blogs. Reposted with permission.

Death Penalty Mitigation Specialist; Death Penalty Stories

Jeffrey Toobin profiles Danalynn Recer, a lawyer who specializes in death penalty mitigation in Texas: The Mitigator, The New Yorker, May 9, 2011, at 32.

A greater emphasis on mitigation evidence is one factor in the decline of death sentences in recent years:

The expectations for capital defense practice have also changed over the past twenty years, and it has become less common (and less acceptable) for capital defense lawyers to devote their energies primarily or exclusively to the guilt-innocence phase of capital trials. Capital trial lawyers are more aware of the importance of developing and presenting mitigating evidence and of the need to embrace trial strategies that weave the defense mitigation theory into the guilt-innocence phase of the proceedings. The emergence of "mitigation specialists" as a distinct class of capital trial participants, who coordinate the investigation and presentation of a defendant's family, social, psychological and psychiatric history, represents a marked departure from capital litigation in the immediate post-Furman era; during that period, "generalist" criminal defense lawyers would try capital cases without sufficient attention to the distinctive need to focus their energies toward the fundamental moral question of life-or-death rather than merely to challenge the state's burden of proof on the underlying offense. The changes in expectations regarding the duties of capital trial counsel are reflected in the Court's recent decisions finding ineffective assistance of counsel . . ..

John H. Blume & Jordan M. Steiker, Introduction, in Death Penalty Stories 10 (John H. Blume & Jordan M. Steiker eds., 2009).

Death Penalty Stories  is a fascinating collection of thoughtful and research-packed essays on landmark cases in U.S. death penalty law. Chapters are:

• Deborah Denno, When Willie Francis Died: The "Disturbing" Story Behind One of the Eighth Amendment's Most Enduring Standards of Risk
• Carol S. Steiker, Furman v. Georgia: Not an End, but a Beginning 
• Hugo Adam Bedau, Gregg v. Georgia and Allied Cases: Protecting the Death Penalty from Abolition
• Sheri Lynn Johnson, Coker v. Georgia: Of Rape, Race, and Burying the Past
• John H. Blume, Gilmore v. Utah: The Persistent Problem of "Volunteers" 
• David C. Baldus et al., McCleskey v. Kemp: Denial Avoidance, and the Legitimization of Racial Discrimination in the Administration of the Death Penalty
• Jordan M. Steiker, Penry v. Lynaugh: The Hazards of Predicting the Future
• Austin Sarat, The Story of Payne v. Tennessee: Victims Triumphant 
• David Bruck, Simmons v. South Carolina and the Myth of Early Release
• David R. Dow, Bell v. Cone: The Fatal Consequences of Incomplete Failure 
• Scott W. Howe, Roper v. Simmons: Abolishing the Death Penalty for Juvenile Offenders in the Wake of International Consensus
• Joseph L. Hoffmann,  House v. Bell and the Death of Innocence

I recommend it highly.

Growing Nose, Pants on Fire, or What?

You can easily tell when Pinocchio is lying because his nose grows longer. But it's a lot harder with flesh-and-blood people.

A recent article in a psychology journal reviews the literature and explains why many standard "rules" are basically hooey. People who are lying don't fidget or avert their gaze more than others, for instance.

The authors go on to propose interviewing techniques for spotting lies. They say it's better to use an information-gathering approach than an accusatory approach. Among other things, they encourage asking temporal questions, using evidence strategically, and asking questions to increase the potential liar's cognitive load (i.e., make it harder for the liar to keep his or her story straight).

Aldert Vrij, Pär Anders Granhag & Stephen Porter, Pitfalls and Opportunities in Nonverbal and Verbal Lie Detection, Psychological Science in the Public Interest, vol. 11 no. 3, at 89-121.

Elizabeth F. Loftus has a brief editorial introducing this article: Catching Liars, Psychological Science in the Public Interest, vol. 11 no. 3, at 87-88. One interesting observation, of concern for social justice as well as spotting individual lies:

Using gaze aversion to decide that someone is lying can be dangerous for that someone’s health and happiness. And—what was news to me—some cultural or ethnic groups are more likely to show gaze aversion. For example, Blacks are particularly likely to show gaze aversion. So imagine now the problem that might arise when a White police officer interviews a Black suspect and interprets the gaze aversion as evidence of lying. This material needs to be put in the hands of interviewers to prevent this kind of cross-racial misinterpretation.

It's interesting to me that, steeped in social psychology as she is, Loftus hadn't before focused on cultural differences like this.

(I'm currently reading The Warmth of Other Suns: The Epic Story of America's Great Migration, by Isabel Wilkerson, which piles layer upon layer of incidents when African Americans were slapped down–in small ways and large–for failing to look away and defer to anyone in power, so it's not at all surprising that Blacks would "show gaze aversion." I'm also reminded the passage in David Copperfield, which I just read, where the toadying Uriah Heep explained that his family had been taught "a deal of umbleness--not much else that I know of, from morning to night. We was to be umble to this person, and umble to that; and to pull of our caps here, and to make bows there; and alwasy to knowo our place, and abase ourselves before our betters. And we had such a lot of betters!" It's hard to like Heep, but this passage explained that his damage had causes beyond himself. Heep often was lying, of course, but you couldn't have told that by his "umbleness" alone.)