Ore. governor bans death penalty for rest of term

Ore. governor bans death penalty for rest of term, Seattle Times (via AP), Nov. 22, 2011.

Cameras in the Supreme Court

C-SPAN has asked to broadcast the arguments in the case testing the constitutionality of the Affordable Care Act. Adam Liptak, a leading legal reporter, writes: Supreme Court TV? Nice Idea, but Still Not Likely (N.Y. Times, Nov. 28, 2011).

Liptak suggests that the Justices are leary of being reduced to sound bites, but he notes that "newspaper reporters use the text equivalent of sound bites all the time. We call them quotations."

TVW has broadcast (on cable, on DVD, and online) Washington Supreme Court oral arguments for many years with no apparent ill effects. You can watch arguments 1997-present here.

Graphic: screen capture from oral argument on TVW, dressed up a little in Paint, by mw.

Second Trial in Civil Sex Abuse Case Because of Juror Misconduct

A Shoreline pediatrician will have a second trial in a civil case brought by young men who allege he engaged in improper sexual conduct with them when they were minors. The doctor admits to much of the conduct but says it was a legitimate part of his mentoring the boys.

Originally there were thee cases filed by four young men and their families. The cases were consolidated. The jury ordered the doctor to pay damages to three young men and their families, but the sum was much lower than the plaintiffs had sought. Now two of the plaintiffs have withdrawn from the suit.

The retrial follows juror misconduct in the first trial:

• a juror failed to disclose that she and her husband had been sued for medical malpractice;
• a juror told other jurors about her experience of sexual abuse but had not disclosed it during voir dire;
• jurors shared newspaper stories and watched television news about the case.

Noted Pediatrician Accused of Preying on Patients Faces Jury ‐ Again, Seattle PI, Nov. 22, 2011.

The Court of Appeals opinion upholding the trial court's declaration of a mistrial is Kuhn v. Schnall, 155 Wn. App. 560 (2010) Legalwa.org link.

Poster Reminds Jurors to Focus on Courtroom

In an effort to keep jurors from going online to discuss cases or look up information outside the trial, the Washington State Courts are introducing a new poster with a picture of a smart phone and the headline "Focus on the Courtroom."

Focus on the Courtroom poster

The Courts' press release (Nov. 22, 2011) is here. 

New Trial Ad Texts from Seattle U Faculty

Marilyn J. Berger, John B. Mitchell, and Ronald H. Clark, our neighbors at Seattle University's Trial Ad Program have been hard at work, creating multimedia teaching materials for their students – and for students and lawyers around the country who want to develop their skills.

cover of Trial Advocacy text

Trial Advocacy: Planning, Analysis, and Strategy (3d ed. 2011) is the basic text that covers all aspects of the trial, from developing a case theory all the way through closing arguments.  It comes with a DVD showing a simulated trial that is discussed throughout the book ("the Freck Point Trial") and a "scene of the crime" video that walks the viewer through a tavern where a crime that's the subject of another mock trial took place.

A companion book, Trial Advocacy: Assignments and Case Files, has (you won't be surprised) assignments and case files.

(My post about the second edition (2009) is here.)

The publisher's page lists the 13 chapters. The catalog record is here.

The publisher's website also has a page of bonus features, such a booklet on voir dire by Karen Koehler (who also teaches in the UW's Trial Ad program), a sample juror questionnaire, and transcripts from the trial in which the City of Seattle tried to keep the Sonics in town.

cover of Evidence text

Evidence: Skills, Strategies, and Assignments for Pretrial and Trial (2012) focuses on the nitty-gritty of handling evidence – objecting to it if you don't want it in, or introducing it and meeting objections if you do. 

Evidence is designed for use in different contexts: as a supplement in a Trial Ad course, as a supplement for an Evidence class, as a text for a stand-alone class, or as a text for a lawyer who wants to improve his or her skills. (I could imagine it being used by college mock trial teams, too.)

Like Trial Advocacy, it includes a DVD with the Freck Point trial. It also has a CD with case files to go with exercises. The publisher's page is here. The catalog record is here. So far, only one document is listed on the Bonus Materials page: a motion in limine in the Seattle Sonics case.

When I went to law school 30 years ago, I think it was typical for Evidence to be taught about the same way as other classes – in a large lecture hall, with a professor at the front and 100 students flipping through casebooks and statutory/rules supplements as they sat at long tables. I'm pretty sure we were never asked to rise and object to or defend proffered testimony. At the end of the semester, we scrawled exam answers in bluebooks, just as we did for all our classes.

This was good preparation for my first post-law-school job, clerking for an appellate judge. But actually handling evidence in a trial? No way.

I think that Evidence pedagogy has advanced considerably. For instance, the text by Peter Nicolas (a UW professor), Evidence: A Problem-Based and Comparative Approach, includes over 100 problems. Publisher's page. Catalog record. Still, though, the problems are meant for class discussion, not for trial simulations.

Berger, Mitchell, and Clark's book devotes all of Chapter 5 to exercises, and they aren't the sort that can be done from the back row of a lecture hall. There are roles for witnesses, prosecutors (or plaintiff's counsel), and defense counsel. (The instructor gets a CD with instructions for the actors who play witnesses.) Students are asked to address evidentiary issues either in motions in limine or as objections during trial.

Evidence goes into more detail about evidence than does Trial Advocacy – but the difference isn't night and day. Chapter 4 in Evidence, "Exhibits: Introducing and Displaying Them," tracks Chapter 7 in Trial Advocacy, "Introducing Exhibits," very closely. In fact, I was surprised when I compared the two chapters that the Trial Advocacy chapter went on longer, discussing evidence issues not in the Evidence chapter. Further examination found that the content was just elsewhere in the book.

So that classes can use Evidence without having to research rules and caselaw, the authors insert a text within a text. Morgan's Evidence Handbook is an 83-page chapter (itself divided into chapters) summarizing the law of evidence in the fictional state of Major. (Major's evidence rules, like Washington's and many other states', are modelled on the Federal Rules of Evidence.) 

I'm ambivalent about this. I like the idea of giving the students enough law so they can focus on the skills of submitting evidence, objecting, and so on. But as a librarian, I would like more classes to encourage students to look things up. Research is a skill they'll need too, even as trial lawyers. Of course, an instructor could choose to have the students do their exercises in a real jurisdiction or a hybrid of Major and a real jurisdiction. Students could be told to use Morgan's Evidence Handbook and to deepen their knowledge of evidence with works from their own state, such as The Law of Evidence in Washington by Robert H. Aronson and the Washington Practice volumes Evidence Law and Practice and Courtroom Handbook on Washington Evidence and by Karl B. Tegland.

Both books are very accessible. The font is a little larger than is typical in lawbooks. Checklists, pointers, and practice notes abound, indicated with consistent icons (e.g., a painter at an easel for illustrations, a bewigged judge or barrister pointing at the text for pointers).

Chapters are introduced with quotations drawn from a wide range of sources, from Shakespeare's Julius Caesar to the recent classic, My Cousin Vinny.

The books are practical, giving them impression that the authors are sharing wisdom they have accumulated through years of experience. There are some citations to the Federal Rules of Evidence and cases, but these books are guides, not treatises. You won't find footnotes, bibliographies, tables of authorities, or recommendations for further reading.

This is part of what makes the books accessible: they can be read easily, without wading through dense citations. I'm curious, though, so when I read "Studies show that we retain less than 15 percent of what we hear, but we remember over 80 percent of what we see and hear" (Evidence at 118; Trial Advocacy at 26), I wonder: what studies? where?

I think the publisher probably could have done a better job with the photographs: they should be sharper.

The Freck Point case is set up to be either a criminal case (murder) or a civil case (wrongful death). Within one class, students could be working on criminal or civil examples, using the same fact pattern, exhibits, and witnesses. The case is adapted from a story that was sensational enough to merit a true crime reporting by Ann Rule (see A Rose for Her Grave and Other True Cases) – a choice that must be intended to hold students' interest for a semester.


Thanks to Ron Clark's giving me review copies, these two books will soon be available in the library.

And for current commentary on trial advocacy issues, see Ron Clark's blogs, Pretrial, Trial, Appellate & Evidence Blog and Cross-Examination Blog.

Skype in Drug Court

Judge Thomas Larkin (Pierce County) has started using Skype in drug court. Some drug offenders make their appearances from in-patient clinics using the online tool. Judge gets money saving idea from grandkids, KING5.com, Nov. 17, 2011.

Federal Sentencing News

There's a big new study of federal sentencing AND the federal government has begun reviewing the sentences of people serving time for crack cocaine offenses.

Study

Yesterday the United States Sentencing Commission submitted to Congress a huge (645 pages!) assessing the impact of statutory minimum mandatory sentences. Here are a few excerpts from the press release:

"While there is a spectrum of views on the Commission regarding mandatory minimum penalties, the Commission unanimously believes that certain mandatory minimum penalties apply too broadly, are excessively severe, and are applied inconsistently across the country. The Commission continues to believe that a strong and effective guideline system best serves the purposes of sentencing established by the Sentencing Reform Act of 1984.”
. . .
The Commission also addresses the overcrowding in the federal Bureau of Prisons, which is over-capacity by 37 percent.
. . .
The report was undertaken pursuant to a directive from Congress to examine mandatory minimum penalties, particularly in light of the Supreme Court’s 2005 decision in Booker v. United States, which rendered the federal sentencing guidelines advisory.
. . .

• More than 75 percent of those offenders convicted of an offense carrying a mandatory minimum penalty were convicted of a drug trafficking offense.
• Hispanic offenders accounted for the largest group (38.3%) of offenders convicted of an offense carrying a mandatory minimum penalty, followed by Black offenders (31.5%), White offenders (27.4%), and Other Race offenders (2.7%).
• Almost half (46.7%) of all offenders convicted of an offense carrying a mandatory minimum penalty were relieved from the application of such penalty at sentencing for assisting the government, qualifying for "safety valve" relief, or both.
• Black offenders received relief from a mandatory minimum penalty least often (in 34.9% of their cases), compared to White (46.5%), Hispanic (55.7%) and Other Race (58.9%) offenders. In particular, Black offenders qualified for relief under the safety valve at the lowest rate of any other racial group (11.1%), compared to White (26.7%), Hispanic (42.8%) and Other Race (36.6%), either because of their criminal history or the involvement of a dangerous weapon in connection with the offense.
• Receiving relief from a mandatory minimum penalty made a significant difference in the sentence ultimately imposed. . . .

The report is here. The executive summary is here.

Crack Sentences

Crack Cocaine Case Review May Free Inmates, All Things Considered, NPR, Nov. 1, 2011.

Across the country on Tuesday, federal judges began reviewing the prison sentences of thousands of men and women jailed on crack cocaine charges. Many inmates could be released or see their sentences sharply reduced.

Congress voted last year to ease federal sentencing guidelines for crack cocaine. But a decision this summer to revisit old drug cases has sparked new controversy.

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.