Judge Wants Attorneys to Behave

As Jay Mehring's case against Spokane and the city's chief of police for defamation and wrongful termination approaches its trial date, the judge says she is "sick of" the attorneys' behavior:

Spokane County Superior Court Judge Kathleen O'Connor had choice words Thursday for attorneys on both sides of the Jay Mehring civil case.

* * *

She ordered attorneys Bob Dunn and Ellen O'Hara to appear before her this afternoon "no matter what" with an agreed upon statement in the case and a list of issues that are in dispute and issues that aren't.

She threatened to hold the lawyers in contempt if they weren't able to do so "because I am sick of this."

The judge also warned that she would have no time to look at motions for reconsideration, "so assume that they're all going to be denied."

* * *

The judge also picked up a report she said had been submitted that morning in violation of a previous order.

"See this? The one I got today? In the waste basket!" she said, holding up the waste basket.

Judge Calls Mehring Case 'Dysfunctional,' Spokesman Review, Oct. 7, 2011.

Avoiding Tech Meltdowns in Court

The current issue of Law Technology News features Robyn Weismann, Wrong Way: Preventing (and Recovering From) Courtroom Snafus, Oct. 1, 2011.

Related content:

• David Snow, Don't Let Courtroom Crises Beat You, Law Technology News, Oct. 5, 2011
• Ltn podcast, Wrong Way: How to Recover from (and Prevent) Courtroom Technology Snafus, October 2011.

Just today I was about to give a presentation in a classroom when I discovered that my PowerPoint file was not in the folder where I thought I'd saved it. Fortunately I found it, and it was just a small classroom talk, not a million-dollar trial, but the two minutes when I wasn't sure where the darn slides had gone gave me a taste of what these articles (and podcast) are talking about.

Scientific Evidence Manual

DNA identification, economic estimates of damages, psychiatric evidence of competence to stand trial, engineers' testimony about product defects—there's a lot of scientific testimony in today's courtrooms. How can judges—who are not statisticians, geneticists, economists, epidemiologists, engineers, or psychiatrists—intelligently manage this flood of information?



To address this challenge, the Federal Judicial Center and the National Research Council have published the Reference Manual on Scientific Evidence. The first edition was in 1994, the second in 2000, and the third edition was released this week.

This book would be useful to anyone wanting an introduction to scientific evidence. Chapters include:

• The Admissibility of Expert Testimony
• How Science Works
• Reference Guide on Forensic Identification Expertise
• Reference Guide on DNA Identification Evidence
• Reference Guide on Statistics
• Reference Guide on Multiple Regression
• Reference Guide on Survey Research
• Reference Guide on Estimation of Economic Damages
• Reference Guide on Exposure Science
• Reference Guide on Epidemiology
• Reference Guide on Toxicology
• Reference Guide on Medical Testimony
• Reference Guide on Neuroscience
• Reference Guide on Mental Health Evidence
• Reference Guide on Engineering

The book is available for free reading online; you can also download a PDF of any chapter or of the whole book. And the library will soon order it in paper.

See Science Manual for Judges Updated, Law Technology News, Sept. 29, 2011.

Women on the Federal Bench

Sandra Day O’Connor sworn in, September 25, 1981.

Today is the 30th anniversary of Sandra Day O'Connor being sworn in as a Supreme Court Justice.

The appointment of the first woman to the Supreme Court was very big news back in 1981, when I was a law student. But most of today's law students have always had at least one woman one the Supreme Court. Today's 1Ls are starting law school with three female justices on the Court. (Beloit's Mindset List annually offers reminders of how a younger generation's experience differs from the last's.)

So I thought this might be a good occasion to offer some stats about the representation of women on the federal bench. I'm using a fascinating database from the Federal Judicial Center, The Biographical Directory of Federal Judges.

First, how many women did Justice O'Connor join when she was sworn in?

51 women had been been commissioned before Sept. 25, 1981. Only 23 were still serving. (That is, their commission date was before that date, but their termination date was after it.)

And what were the corresponding numbers for men?

2023 men had been commissioned, and 619 were still serving.

President Reagan made history by appointing the first woman to the Supreme Court. What was his record throughout the federal courts?

court	women	men
U.S. Supreme Court	1	3
courts of appeal	6	77
all federal courts	30	334

An important part of the historical context is that women were a minority in the legal profession. 1972 was the first year when women were over 10% of law school enrollment nationally, so in the 1980s there'd wasn't as large a pool of experienced female lawyer from whom to select judges as there is today.

Speaking of today, what is the makeup of our federal bench now?

All Sitting Federal Judges (including those on senior status)

Race or Ethnicity	women	men
African American	38	81
American Indian	0	1
Asian American	6	10
Hispanic	23	56
White	208	861
Total	278	1015

Photo credit: National Archives Today's Document blog, Sept. 25, 2011.

Future of Miranda

The UW School of Law presents The Future of Miranda: A Dialogue
Featuring:

• The Hon. Betty B. Fletcher, U.S. Court of Appeals for the Ninth Circuit   
• Professor Emeritus Yale Kamisar, University of Michigan School of Law
• Oregon Attorney General John Kroger

With commentary by Todd Maybrown, Partner, Allen, Hansen & Maybrown, PS
Wednesday, October 19, 2011, 5:00 p.m. to 6:30 p.m.  Room 138. Reception to follow in Room 115

The landmark case of Miranda v. Arizona launched one of the best-known aspects of criminal procedure, the Miranda warnings before custodial police interrogation. The controversial case and the rights it vouchsafed have been under siege for decades. The scope of Miranda and availability of remedies are increasingly constricted. Please join our distinguished panelists for a discussion about the past and present of Miranda.

CLE Program: 1.5 credits approved.
This event is free and open to the general public.
The cost of CLE credits is $15.
RSVP here.
Contact Kathy Kline at (206) 543-8881 or email.

How Do Lay People React to Judicial Decision-Making?

A new study looks at how lay people respond to the judicial reasoning. Dan Simon & Nicholas Scurich, Lay Judgments of Judicial Decision-Making (July 18, 2011), J. Empirical Legal Stud. (forthcoming 2011), available at http://ssrn.com/abstract=1888630

This exploratory study examined lay people’s evaluations of judicial decision-making, specifically of the judicial decision-making process and the judiciary’s legitimacy. Seven hundred participants were presented with three judicial decisions, which were portrayed as following on the heels of solid and appropriate legal procedure.

Each decision was accompanied by one of four types of reasoning. Participants were asked to evaluate the acceptability of the decisions, focusing on the manner in which they were made and the legitimacy of the decision-maker, regardless of their outcomes. The study yielded four findings.

• First, lay people’s judgments were highly contingent on the outcome of the judges’ decisions. Consistent with the theory of motivated reasoning, participants found the decisions highly acceptable when they agreed with the judges’ decision, but deemed them relatively unacceptable when they disagreed with them.
• Second, participants were indifferent to the modes of reasoning when they agreed with the outcomes of the decisions, but were differentially sensitive to the modes of reasoning when the judges’ decisions frustrated their preferred outcomes.
• Third, when participants were sensitive to the modes of reasoning, they gave higher ratings of acceptability to decisions that openly admitted to good reasons on both sides of the case as compared with decisions accompanied by reasons that supported one side of the case exclusively. Giving no reasons at all was found to be more acceptable than giving a single, curt reason.
• Fourth, the findings replicated the coherence effect. Implications for the legitimacy of the judiciary are discussed.

Sealing Cases - Federal

Judicial Conference Urges Restraint In Sealing Civil Cases, BLT: The Blog of Times, Sept. 13, 2011.

The policy-making body of the federal judiciary approved a new standard today that instructs judges to limit sealing entire civil cases to only extraordinary circumstances. The Judicial Conference of the United States said the new policy emphasizes that sealing an entire case should be the last resort. Judges should first explore narrower alternatives, such as blacking out information or sealing particular documents, the panel said.

Federal Rules Go Mobile!

Wouldn't it be great to have the Federal Rules of Civil Procedure, the Federal Rules of Evidence, or the Federal Rules of Criminal Procedure with you without toting the bound books? Now you can: CALI and the Legal Information Institute have released Federal Rules Ebooks, with the rules and official comments, in a format compatible with iPhone, iPad, and Nook. (Kindle support is coming soon.)

The books are free, but you are encouraged to donate to the Legal Information Institute, a nonprofit based at Cornell that puts a lot of resources into making law accessible.

New California Law Prohibits Jurors' Social Media Use

New California Law Prohibits Jurors' Social Media UsE, Citizen Media Law Project, Sept. 1, 2011.

California has adopted a new statute which clarifies that jurors may not use social media and the Internet – such as texting, Twitter, Facebook, and Internet searches – to  research or disseminate information about cases, and can be held in criminal or civil contempt for violating these restrictions. 

The new statute, 2011 Cal. Laws chap. 181, expands the state's existing jury instructions which currently, at the start of trial and prior to any recesses or breaks, admonish jurors not to discuss the case they are sitting on with each other or anyone else before deliberations. The current instructions make no specific mention of electronic research or communications.

Juror Held in Contempt, Gets Community Service for Effort to Friend Defendant on Facebook - News - ABA Journal

Juror Held in Contempt, Gets Community Service for Effort to Friend Defendant on Facebook - News - ABA Journal, Aug. 29, 2011. The headline summarizes it; I'll just add that it was a civil case, the young juror was male, and the defendant was female.

Good Lawyers Settle

Jay Shepard writes about the importance to litigation of motions practice and settlement negotiations: Small Lawyers, Big Lawyers: Real Lawyers Settle Cases, Above the Law, Aug. 31, 2011.

I once was at a CLE seminar where one of the deans of our local employment bar said that if you ever have the opportunity to try a case, you should leap at it — they’re a lot of fun.

Fun? Yes, actually they are. But I’m pretty sure that my fun was not one of the guiding factors in my clients’ decision to hire me.

The truth of the matter is that your job as a civil litigator is not to win at all costs. Instead, it is to make your client’s problem go away. And making your client’s problem go away often involves settlement. The deal is to get a good deal.

Batson for GLBT Challenge?

A ninth circuit appeal, argued Thursday, raises the issue of whether the peremptory challenge of a lesbian should receive Batson-type scrutiny. Potential jurors shouldn't be dismissed for being gay, court told, L.A. Times, Aug. 5, 2011.

Daniel Osazuwa, an inmate serving time for bank fraud, was convicted of assaulting a guard. His defense was that he was only trying to embrace the other man—a common way to greet someone in his home country of Nigeria;mdash;and that the guard reacted badly because the inmate is gay.

The prosecution says that its reason for challenging the juror "because she told the court she had close Nigerian friends when the panel was asked if anyone had positive or negative attitudes toward that nationality." Id. To me this stated reason seems at least as shaky as if the challenge were based on sexual orientation. Should an immigrant should be deprived of a juror who has friends of his nationality?

See also  How a Fight over Jury Selection Could Advance Gay Rights, Time, Aug. 8, 2011.

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.