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Trial Ad (and other) Notes



This blog presents news items and resources relating to trial advocacy and the legal system, with a focus on Washington State. It was developed to support the Trial Advocacy Program at the University of Washington School of Law, but now has a broader cove



Updated: 2017-12-26T07:28:15.305-08:00

 



National Academies reports - Growth of Incarceration

2015-04-13T10:06:08.198-07:00

The Growth of Incarceration in the United States: Exploring Causes and Consequences (2014), packed with research and analysis from social scientists and policy experts, is available as a free PDF from the National Academies Press.

This animated video summarizes the findings:

allowfullscreen="" frameborder="0" height="250" src="https://www.youtube.com/embed/I-kFNDlzL9k" width="400">


And this video summarizes it without the graphics:

   allowfullscreen="" frameborder="0" height="250" src="https://www.youtube.com/embed/oXFBSj9S3D8" width="400">

Other National Academies publications in Law and Justice address topics such as:
  • eyewitness identification
  • the illicit tobacco market
  • juvenile justice reform
  • sex trafficking
  • forensic evidence



Evidence-Based Practice in Criminal Defense

2015-04-09T09:35:50.870-07:00

This interesting paper was recently posted on SSRN:

Jennifer E. Laurin, Gideon by the Numbers: The Emergence of Evidence-Based Practice in Indigent Defense,  Ohio State Journal of Criminal Law, Forthcoming 2015
Abstract: A widespread consensus understands Gideon’s promise to be largely, sadly, unfulfilled. Yet in truth, we possess precious little hard evidence about the state of indigent defense nationally or the actual impact of indigent defense policies on the quality of representation received. A burgeoning but little-noted trend in the field could alter that state of affairs: the push toward adoption of evidence-based practice. Put most simply, evidence-based practice is a paradigm that aims to tether decision-making to empirical, rather than intuitive or experiential, evaluations of practice or policy options. Originating in medicine and already taking hold in isolated sectors of criminal justice policy, evidence-based practice is sprouting in the indigent defense field, spurred on by legislative reform, shifts in federal funding priorities, and the concerted energy of thought leaders in a number of states. The Essay shines a light on this trend through close examination of three states — North Carolina, Texas, and New York — in which indigent defense oversight commissions have placed the development of evidence-based practice at the front and center of their missions. Critically assessing the prospects for evidence-based indigent defense policymaking, the Essay shares in some of the enthusiasm evinced by evidence-based practice’s promoters, but also enumerates significant barriers to a full flowering of the paradigm, and cautions that an expanded evidence base might, ironically, pose barriers to furthering Gideon’s promise of equal access to counsel for the indigent. 



Conviction Reversed Because Expert Testimony re Eyewitness ID Excluded

2015-04-03T14:50:44.978-07:00

Interesting case from New York: Joel Stashenko, Conviction Reversed as Expert Barred from Testifying, N.Y.L.J., April 3, 2015.

The case is People v. McCullough, 11-01614 (N.Y. Sup. Ct., App. Div. March 27, 2015), link to court website



Federal Appellate Brief Word Limit to Change?

2015-04-03T09:14:45.411-07:00

proposed change to Rule 32 of the Federal Rules of Appellate Procedure would put appellate briefs on an enforced diet:
  • a principal brief would max out at 12,500 words (rather than the current 14,000 words)
  • a reply brief would have half that.
Because the Judicial Conference uses Regulations.gov, you can read the comments that have been submitted.

Some of the comments are from individuals. Many are from organizations, for example
  • Seth Waxman submitted a letter on behalf of the appellate practice groups of several large law firms (including his own firm, Wilmer Cutler Pickering Hale and Dorr LLP).
  • EarthJustice, Sierra Club, Defenders of Wildlife, and Western Environmental Law Center submitted joint comments.
  • The American Academy of Appellate Lawyers also weighed in, approving changes to other rules but not Rule 32.
  • Judge Frank Easterbrook (7th Cir.) wrote supporting the current, 14,000-word limit, and also explaining its origin. 
Most of the comments are against the change, but some support it. See Mark Wilson, FRAP 32: Do Federal Appellate Briefs Need to Be Shorter?, Strategist (Feb. 17, 2015).

By the way, the corresponding rule in Washington (RAP 10.4) limits brief length in terms of pages, not words. Its limit is 50 pages for a principal brief, which might work out to be about the same as 14,000 words. Judge Easterbrook says that the old federal rule was 50 pages; to change to a word count, he calculated the number of words in 50-page briefs and found an average of just under 40,000 words.




Right to Counsel at Bail Hearing?

2015-03-23T14:26:49.810-07:00


This report begins with a discussion on the current state of the law concerning access to counsel for criminal defendants, reminding us that because the law presumes everyone innocent unless proven guilty, the law favors pretrial release. It describes the far-reaching and well-documented adverse effects of denying counsel at the earliest stages of a criminal prosecution, a situation that presents numerous constitutional concerns. Without a lawyer at these preliminary stages to marshal resources and advocate on the accused’s behalf, judges are more likely to order a financial condition on release before trial, which results in low income and poor defendants – who are disproportionately people of color – remaining incarcerated, and for longer periods of time. In addition, without the advice of a lawyer, an unrepresented defendant who is unaware of and untrained in the law may speak or remain silent at a bail hearing to his or her later detriment. Defendants incarcerated from the point of arrest also experience substantial prejudice in their ability to conduct an immediate investigation, prepare for trial and build a defense. Collateral consequences also flow from unnecessary pretrial incarceration: the accused may lose a job, his or her home, and the ability to support loved ones. A lawyer’s effective advocacy is a vital safeguard against bail-setting practices that often are excessive for economically disadvantaged people.
The impact is felt not only by the individual, but by society as a whole. State and local governments needlessly add to the taxpayer’s burden by, prior to trial, incarcerating many individuals who pose no public safety risk, but who were simply unable to effectively advocate for themselves. In short, there is no question that early assignment of counsel not only has a significant and positive impact on individual cases, but also promotes better societal outcomes. Thus, when a poor person about to go before the court for the first hearing after arrest asks, “Don’t I need a lawyer?” the unequivocal answer is “Yes.” 
Although early access to counsel has taken hold in some jurisdictions, too many indigent defendants across the country face the daunting specter of representing themselves when courts fail to appoint counsel and then determine whether an accused will remain free or incarcerated in the days, weeks, or months before trial. Accordingly, this report recognizes that a concerted effort from all branches of government is needed to make the early availability of counsel a reality. The report is intended to inform and guide judges, defenders and prosecutors as they carry out their duties to safeguard the rights found in our Constitution. It is also meant to assist policymakers in developing solutions to the problem of absent counsel in first judicial appearances, and sets out six pragmatic recommendations for the local, state and federal governments to bring the promise of effective counsel at the first judicial bail hearing to fruition.
p. 1.



Big-Dollar Judicial Campaigns

2015-03-18T16:53:10.141-07:00

Former Alabama Supreme Court Justice Sue Bell Cobb decries the effect of money on judicial campaigns: I Was Alabama's Top Judge. I'm Ashamed by What I Had to Do to Get There. Politico, March/April 2015.

Cobb cites a 2014 report by Emory law professors Joanna Shepherd and Michael S. Kang that found a strong link between campaign spending and ruling against criminal defendants: Skewed Justice: Citizens United, Television Advertising and State Supreme Court Justices' Decisions in Criminal Cases.

Cobb is one of four former chief justices of Texas and Alabama who submitted an amicus brief urging the Supreme Court to uphold Florida's rule that bans direct solicitation by judicial candidates. The case is Williams-Yulee v. Florida Bar (docket number 13-1499), which was argued in January. On the other side, the ACLU has an amicus brief arguing that the ban infringes free speech. For much more about the case and the arguments, see SCOTUSblog.





Quality of briefs matters!

2015-04-03T14:59:57.639-07:00

A fascinating study of briefs opposing summary judgment in a particular class of employment discrimination cases—a topic with conflicting cases within the circuit—found that a majority omitted available case law that would have countered the defendants' arguments. And it makes a difference: "while bad brief-writers lose summary judgment at a remarkably high rate (86%), good brief-writers do not (42%)."  Scott A. Moss, Bad Briefs, Bad Law, Bad Markets: Documenting the Poor Quality of Plaintiffs’ Briefs, Its Impact on the Law, and the Market Failure It Reflects, 63 Emory L.J. 59, 65 (2013).

Here's the author's abstract:
For a major field, employment discrimination suffers surprisingly low-quality plaintiffs’ lawyering. This Article details a study of several hundred summary judgment briefs, finding as follows: (1) the vast majority of plaintiffs’ briefs omit available caselaw rebutting key defense arguments, many falling far below basic professional standards with incoherent writing or no meaningful research; (2) low-quality briefs lose at over double the rate of good briefs; and (3) bad briefs skew caselaw evolution, because even controlling for win-loss rate, bad plaintiffs’ briefs far more often yield decisions crediting debatable defenses.

These findings are puzzling. In a major legal service market, how can clients persistently choose bad lawyers, lawyers persistently perform so poorly, and judicial and ethics authorities tolerate this situation? Answers include poor client information, ethics authorities’ limited ability or will to discipline bad lawyers, and two troubling lawyer behaviors: (1) overoptimistically entering the field without realizing, until suffering losses, that it requires intensive research and writing; and (2) knowingly litigating on the cheap, rather than expending briefing effort to maximize case value, because contingency-paid lawyers may profitably run “mills” and live off quick, small settlements. A survey of the worst brief-writers’ law firms hints that the problem may be a mix of the former (nonspecialists in over their heads) and the latter (knowingly litigating cheaply).

This Article offers the following reforms that, while no cure-all for a problem stemming from stubborn market forces, could help: (1) expanding educational efforts, including law school experiential learning, bar resource-sharing, and bar exam reform; (2) enhancing client access to information on lawyers by liberalizing ethics rules restricting expertise claims and public access to court files; (3) broadening the supply of competent lawyers by liberalizing rules restricting the standing to sue of discrimination “testers” and ethics rules on corporations owning law firms; and (4) toughening ethics enforcement against the worst offenders, who almost all go unpunished now.
There's lots to think about here, from many perspectives: employment discrimination law, civil procedure, access to justice, legal ethics, and (of course) legal research and writing.



Innocence Movement: Free Online Course / Video Series

2015-02-02T17:22:52.869-08:00

The University of Illinois Springfield offers a free online course on the Innocence Movement beginning today, Feb. 2, 2015. You can register online at: http://uis.coursesites.com (Click on this link, then click the name of the course, The Innocence Movement, in the box on the right, then self enroll.) You can enroll in the course at any time. It will remain open and accessible indefinitely. The instructor is Prof. Gwen Johnson, from the Legal Studies Department.
This Innocence MOOC (Massive Open Online Course) is a series of videos that feature exonerees, lawyers, students, and advocates from across the country describing their experiences in the Innocence Movement. It includes the stories of Kirk Bloodsworth, Brian Banks, Juan Rivera, Audrey Edmonds, Vanessa Potkin, Justin Brooks, Laura Caldwell, Senator Dick Durbin, Dr. John Plunkett, Scott Turow, and Eric Zorn, among many others.



More Follow-up to #Ferguson Forum

2014-12-05T09:45:17.679-08:00


During the forum on Tuesday, there was discussion about why Darren Wilson was not interviewed for a few days after shooting Michael Brown. Former U.S. Attorney Jenny Durkan said that many police unions have negotiated a term in their contracts that provides for a delay of two or three days before questioning after a shooting incident, based in part on studies that suggest that memory would be better after the delay. Jeffery Robinson observed that civilians who are involved in shooting incidents might also experience psychological stress, but police investigators don't wait three days to interview them.

Here's a little more information on that issue:
  • In some states a statute gives officers a period to obtain counsel before they are interrogated. See Kevin M. Keenan & Samuel Walker, An Impediment to Police Accountability? An Analysis of Statutory Law Enforcement Officers' Bills of Rights, 14 B.U. Pub. Int. L.J. 185, 212-14 (2005) (links are to HeinOnline).
  • The Officer-Involved Shooting Guidelinesfrom the International Association of Chiefs of Police Psychological Services Section (2013) provide:
    While officers may be asked to provide pertinent information soon after a shooting to aid the initial investigative process, whenever feasible, officers should have some recovery time before providing a full formal statement. Depending on the nature of the incident, the demands on the agency, and the emotional and physical status of the officers, this can range from a few hours to several days. An officer’s memory will often benefit from at least one sleep cycle prior to being interviewed leading to more coherent and accurate statements.3 4 5 6 7 Providing a secure setting, insulated from the press and curious coworkers, is important during the interview process.
  • p. 6 (citing articles about sleep and memory).



Capital Punishment: Race, Poverty, & Disadvantage—Free Online Course

2014-12-04T17:18:30.097-08:00

Stephen Bright is president and senior counsel at the Southern Center for Human Rights, a public interest law program that deals with human rights in the criminal justice and prison systems. He has also been a visiting lecturer or fellow at Yale Law School for over 20 years. Now Yale has posted Bright's  online course, “Capital Punishment: Race, Poverty, & Disadvantage,” on iTunes U and YouTube.
This course examines issues of poverty and race in the criminal justice system, particularly with regard to the imposition of the death penalty. Topics include the right to counsel for people who cannot afford lawyers, racial discrimination, prosecutorial discretion, judicial independence, and mental health issues. 
There are 40 videos, ranging from 18 to 45 minutes. I haven't figured it out, but that's a lot of instruction from one of the nation's leading authorities on the death penalty. Each video has related readings (from the YouTube description, you just click on a link to Dropbox).

If you're interested in criminal justice, this is a great resource.

allowfullscreen="" frameborder="0" height="189" src="//www.youtube.com/embed/sL7s0TPy-UQ?list=PLh9mgdi4rNez7ZuPRY3KNJ2ef16qebyZe" width="336">



UW Law Forum on #Ferguson

2014-12-02T21:52:09.759-08:00

This afternoon attorney Jeffery Robinson led a discussion on the events in Ferguson, MO—the killing of Michael Brown last summer, the grand jury this fall, and the protests in Ferguson and around the country—and the larger issues of racism, criminal justice, and law enforcement. Justice Sheryl Gordon McCloud and former U.S. Attorney Jenny Durkan were present and contributed to the discussion.

With a nod to Yogi Berra, Robinson titled his presentation "'You Can Observe a Lot Just by Watching': The Killing of Michael Brown and the Transparent Grand Jury Investigation."

This blog post lists some resources.

Washington State Minority and Justice Commission report mentioned by Justice Gordon McCloud: Mark Peffley et al., Justice in Washington State Survey  (2012, revised & updated 2014)

Project Implicit (Harvard website that Robinson mentioned that offers simple tests that reveal implicit bias).
  •   The developers of the Implicit Assocation Test (IAT) are two social psychologists, Mahzarin R. Banaji (now at Harvard) and Anthony G. Greenwald (UW). They have written a very accessible and fascinating book reviewing the research: Blindspot: Hidden Biases of Good People (2013). Catalog record.
  • Jerry Kang, a law professor at UCLA has done a lot of work bringing these studies into law. See his page, Getting up to speed on implicit bias. Kang has a Ted Talk on the topic, too:


    allowfullscreen="" frameborder="0" height="280" src="//www.youtube.com/embed/9VGbwNI6Ssk" width="450">

Robinson showed a powerful spoken word video by Javon Johnson. View it here.

Robinson also had a powerful infographic with data on police stops from Racism Still Exists (which also has several other infographics).

The Cato Institute's National Police Misconduct Reporting Project is here.


1L Martina Kartman spoke about her experience going to Ferguson with a team from a Freedom School here in Seattle, the Tyree Scott Leadership Institute.

 You can find more resources in our guide, Race in the Criminal Justice System.



Bryan Stevenson's Memoir, Just Mercy

2014-11-03T12:42:26.490-08:00

Bryan Stevenson, executive director of the Equal Justice Initiative in Montgomery, AL, and a professor at NYU Law, has written a memoir about his work: Just Mercy: A Story of Justice and Redemption.

A very warm review, by Seattle lawyer Kevin J. Hamilton, was in yesterday's Seattle Times. You can read more on the publisher's webpage.

And you can hear Bryan Stevenson himself at 7 pm Tues. Nov. 4 at the Seattle Public Library Central Library.

The book was just published Oct. 21, so we don't have it in the library yet, but we hope to have it soon.





Videos of U.S. Supreme Court Arguments—at Last!

2014-10-23T10:42:54.782-07:00

On the HBO program Last Week Tonight, John Oliver observed that without video Supreme Court oral arguments are pretty dry, even with courtroom sketches as backdrops. So he proposed that the audio be livened up with video. What video? Dogs!


allowfullscreen="" frameborder="0" height="200" src="//www.youtube.com/embed/fJ9prhPV2PI?list=UU3XTzVzaHQEd30rQbuvCtTQ" width="380">

Clip from Last Week Tonight with John Oliver, Oct. 19, 2014.

Oliver and his team didn't stop with a cute video of their own. They went further, posting clips of nine canine justices and two lawyers that others could mash up with oral argument recordings. Some of the casting is apt: Justice Ginsburg, played by a Chihuahua, is petite; Justice Scalia, played by a Bulldog, is assertive and jowly.

The YouTube community has responded. Just a few days after the original broadcast, you can now watch the canine Court hear arguments in:
. . . and more!

I can't be alone in finding these amusing (otherwise, why would so many people have gone to the trouble of making the mash-ups?). Love the dogs. I also like the court reporter pecking at her stenotpe machine.




Conflicts Among Wash. Court of Appeals Divisions

2014-08-07T17:01:15.363-07:00

Unlike the federal circuits, the Washington Court of Appeals is a "unitary system"—one court that sits in three divisions, not three separate courts. But sometimes panels from two divisions disagree with each other, so there can be conflicting precedent. What's a trial judge to do? And how should counsel frame their arguments to the trial court?

Learn more about the problem and possible solutions in: Mark DeForrest, In the Groove or in a Rut? Resolving Conflicts Between the Divisions of the Washington State Court of Appeals at the Trial Court Level, 48 Gonz. L. Rev. 431 (2013).

(image)
Map of Washington Court of Appeals divisions from Washington Courts website
For practical help on working with precedent in Washington, see Kelly Kunsch, Stare Decisis—Everything You Never Realized You Need to Know, 52 Wash. St. B. News, Oct. 1998, at 31, HeinOnline



Ethics of Advising Marijuana Users and Businesses

2014-06-20T09:39:23.023-07:00

Under RPC 1.2(d), a "lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal . . ."  Does this cover lawyers advising clients under Washington's new marijuana law, when possession is still a crime under federal law?



To address this, the Washington Supreme Court is considering a new comment to RPC 1.2:
Special Circumstances Presented by Washington Initiative 502
[18]  At least until there is a change in federal enforcement policy, a lawyer may counsel a client regarding the validity, scope, and meaning of Washington Initiative 502 and may assist a client in conduct that the lawyer reasonably believes in permitted by this initiative and the statutes, regulations, orders and other state and local provisions implementing them.
Anyone may comment on the proposal and, as the court receives comments, you can read what others have sent.



You can sign up here to get email notifications of proposed court rule changes. You can also sign up for new opinions, caseload reports, and other information from the Washington Courts.



Perceptions of Justice—Olympia, June 9

2014-05-21T10:36:25.269-07:00

The Washington State Minority and Justice Commission presents a half-day program, Perceptions of Justice, reviewing a report on Washingtonians' perceptions of how they are treated by the police and the courts.
June 9, 2014, 8:45 a.m.-noon
OB2 Auditorium DSHS, 115 Washington Street SE, Olympia
Registration is free and lunch is provided.
Email cynthia.delostrinos[at]courts.wa.gov with "Perceptions of Justice" in the subject line.
3 CLE credits
Speakers are:




Adolescent Brain Development & Juvenile Justice

2014-05-21T09:57:42.472-07:00

The Washington Supreme Court hosted "Looking to the Future: Adolescent Brain Development and the Juvenile Justice System" May 20, 2014. The symposium materials are here.



Can Lawyers Look up Jurors on Social Media

2014-04-28T11:02:49.484-07:00

Is it permissible for a lawyer to look for information about jurors on social media? A new ABA ethics opinion (Formal Opinion 466) says yes (subject to local rules and court orders)—but lawyers shouldn't ask to connect with the jurors. See this article from ABA Journal online (April 24, 2014).


Graphic: Drawing of jury by Charles Edmund Brock taken from: Thomas Hood, Humorous Poems ... With a preface by A. Ainger, and ... illustrations by C. E. Brock. L.P (1893); available in the British Library's Photostream here. Blogger, Facebook, Instagram, LinkedIn, and Twitter logos added by Mary Whisner.



What Makes Lawyers Happy?

2014-03-28T11:05:01.816-07:00

What makes lawyers happy? Apparently people want to know, because an article on that topic was the most downloaded paper on SSRN last week. You can read it yourself:


Lawrence S. Krieger & Kennon M. Sheldon, What Makes Lawyers Happy? Transcending the Anecdotes with Data from 6200 Lawyers, 83 Geo. Wash. U. L. Rev. (forthcoming 2015), available at http://ssrn.com/abstract=2398989.
Attorney well-being and depression are topics of great concern, but there has been no theory-driven empirical research to guide lawyers and law students seeking well-being. This article reports a unique study establishing a hierarchy of five tiers of factors for lawyer well-being, including choices in law school, legal career, and personal life, and psychological needs and motivations established by Self-Determination Theory.
Data from several thousand lawyers in four states show striking patterns, repeatedly indicating that common priorities on law school campuses and among lawyers are confused or misplaced. Factors typically afforded most attention and concern, those relating to prestige and money (income, law school debt, class rank, law review, and USNWR law school ranking) showed zero to small correlations with lawyer well-being. Conversely, factors marginalized in law school and seen in previous research to erode in law students (psychological needs and motivation) were the very strongest predictors of lawyer happiness and satisfaction.
Lawyers were grouped by practice type and setting to further test these findings. The group with the lowest incomes and grades in law school, public service lawyers, had stronger autonomy and purpose and were happier than those in the most prestigious positions and with the highest grades and incomes. Additional measures raised concerns: subjects did not broadly agree that judge and lawyer behavior is professional, nor that the legal process reaches fair outcomes. Specific explanations and recommendations for lawyers, law teachers, and legal employers are drawn from the data, and direct implications for attorney productivity and professionalism are explained.
(emphasis added)

Graphic: original drawing by Mary Whisner, photograph by Grace Feldman, Civil Procedure Hornbook by Friedenthal, Kane, and Miller



How Damaging Is a Prior Conviction as Impeachment in a Civil Trial?

2014-03-28T10:11:02.455-07:00

Kathryn Stanchi & Deirdre M. Bowen, This is Your Sword: How Damaging are Prior Convictions to Plaintiffs in Civil Trials?, 89 Wash. L. Rev. (forthcoming 2014), http://ssrn.com/abstract=2412110:
The conventional wisdom in law is that a prior conviction is one of the most powerful and damaging pieces of evidence that can be offered against a witness or party. In the legal lore, prior convictions seriously undercut the credibility of the witness and can derail the outcome of a trial. This paper suggests that may not always be true.

This paper details the results of an empirical study of juror decision-making that challenges the conventional wisdom about prior convictions. In our study, the prior conviction evidence did not have a direct impact on the outcome of the civil trial or the credibility of the witness with the conviction. Moreover, we tested prior conviction evidence with a white witness and an African-American witness and saw no difference in results.

The prior conviction evidence did, however, change the trial in a substantial, but indirect, way. Rather than the direct effect on outcome that we might have expected, the introduction of the prior conviction evidence changed the mental decision-making process of the jurors. Specifically, the evidence seemed to subconsciously lead the jurors to conclude that to decide liability, they had to believe one party over the other. The prior conviction evidence thus turned the trial into a zero sum credibility contest in which believing the plaintiff’s story meant disbelieving the defendant’s (and vice versa). This “zero sum” effect did not appear in the control version of the trial.

In sum, the results of our experiment suggest that while prior convictions are highly noticeable and powerful pieces of evidence, they may not always be the bane that lawyers think they are. Nevertheless, the introduction of this evidence has the potential to change a civil trial by changing the juror decision-making process.



Alaska Bill Would Allow Jury Nullification

2014-03-28T10:03:49.509-07:00

A House bill promoting the notion that jurors can ignore Alaska's criminal code and let a lawbreaking defendant off the hook had a brief hearing Wednesday in the House Judiciary Committee, then was held for later. The bill, fostering "jury nullification," has been a bipartisan favorite of some Fairbanks-area House members, with identical versions introduced in 2002 and 2009.Richard Mauer, House bill pushed by Fairbanks lawmakers promotes ‘jury nullification', Anchorage Daily News, March 26, 2014. H.B. 315 is here. The bill information page has more links. The sponsor, Rep. Tammie Wilson, states:Before one is able to understand why jury nullification is a good idea, one must understand the importance of a trial by jury. Our Founding Fathers considered them to be a powerful weapon in the war against tyranny. Thomas Jefferson wrote, “I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution”. In the Federalist Papers, Alexander Hamilton wrote that trial by jury was the “very palladium of free government” and a “valuable check upon corruption”.  Given the strength of these opinions, then, it is no surprise that the denial of trials by jury was one of the foremost acts of despotism listed by Thomas Jefferson in the Declaration of Independence.  As for the concept that juries have not only the power but the obligation to nullify unjust rulings of a judge, John Adams wrote, “It is not only (the juror’s) right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court”.  Our Founding Fathers zealously defended this right and recognized that only an informed and empowered jury could effectively protect a defendant from the potentially harmful effects of autocratic judges. Jury nullification allows citizens to have the final say on what is fair in a court of law.  Therefore, I ask for your support of HB 315. Jury nullification is a good idea and one supported by Constitutional principles of freedom.Jur-E Bulletin from the National Center for State Courts reports:The state attorney general's office opposes the bill, indicating it would lead to “unfair and disorderly trials.”  Additionally, Doug Gardner, director of the Legislature's legal services division wrote a memo which expressed concern that the bill may not comply with U.S. Supreme Court precedent that "it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence."  Additionally, he wrote another memo comparing the provisions in House Bill 315 to New Hampshire Revised Statute 519:23-b, which is New Hampshire’s statutory authority for jury nullification.  The Fiscal Note Analysis prepared by the Department of Law includes some interesting commentary.  It states:Passage of this bill would result in more cases brought to trial by jury because even though the offender does not dispute that he or she broke the law, the offender could argue for the jury not to follow the law. [...]



Rap Lyrics as Evidence in a Criminal Case

2014-03-26T18:39:47.253-07:00

Should a jury hear (or read) violent lyrics written by a criminal defendant? Even if they were written years before the crime? The issue has come up in a number of cases, including one that was recently argued in the New Jersey Supreme Court (State v. Skinner).

Two professors argue that rap lyrics should be entitled to protection as artistic expression. Erik Nielson & Charles E. Kubrin, Rap Lyrics on Trial, N.Y. Times Jan. 13, 2014.

The lower judges disagreed: the majority remanded, holding that the admission of the lyrics was prejudicial; a dissenter would have upheld the admission of the lyrics, finding that the trial judge appropriately applied New Jersey's four-part test for admission of extrinsic "bad-act" evidence. State v. Skinner, No. A-2201-08T2 (N.J. Super. Ct. App. Div. Aug. 31, 2012). The opinions offer extensive analysis and factual context. The ACLU of New Jersey's amicus brief is here link to the organization's amicus brief.

While we Seattleites can be proud of our hometown rappers Macklemore and Ryan Lewis who won four Grammys and are white, it is clear that attitudes toward rap are tied to attitudes about young black men. Some commentary by bloggers and two radio programs:
This reminds me of an article Prof. Helen Anderson wrote several years ago: The Freedom to Speak and the Freedom to Listen: The Admissibility of the Criminal Defendant's Taste in Entertainment, 83 Or. L. Rev. 899-943 (2005).



Juvenile Justice Resources

2014-03-26T18:38:13.719-07:00

The Models for Change initiative "supports a network of government and court officials, legal advocates, educators, community leaders, and families working together to ensure that kids who make mistakes are held accountable and treated fairly throughout the juvenile justice process." Models for Change is supported by the MacArthur Foundation.Models for Change selected four strategic states "for their leadership and commitment to change, geographic diversity, differing needs and opportunities, and likelihood to influence reforms in other locations." The states are Illinois, Louisiana, Pennsylvania, and Washington. Within our state, five projects are underway in six counties (Benton and Franklin, Clark, King, Pierce, and Spokane). Our state's projects are coordinated by the Center for Children & Youth Justice. Twelve more states are involved in the Models for Change initiative through the Action Networks. (The four core states participate in all Action Networks.)Maryland, Wisconsin, Kansas, North Carolina (Disproportionate Minority Contact Action Network)California, Florida, Massachusetts, New Jersey (Juvenile Indigent Defense Action Network)Connecticut, Colorado, Ohio, Texas (Mental Health/Juvenile Justice Action Network)So there's a lot going on in a lot of places. One more component is sharing information. The Natural Resource Bank is a group of "16 leading national juvenile justice research, reform, and advocacy organizations that provide expert advice, training, and technical assistance to the core states and action network sites." Recently Models for Change launched a Resource Center Partnership, in which four different groups  focus on four areas to "provide administrators, practitioners and policymakers with technical assistance, trainings, and proven tools and resources."Mental Health & Juvenile Justice Collaborative for Change (mental health issues)National Juvenile Defender Center (public defense for indigent youth)Status Offense Reform Center (status offenses include truancy and running away)Robert F. Kennedy National Resource Center for Juvenile Justice (dual status youth are involved in both the foster care system and the juvenile justice system)If you're interested in juvenile justice issues, wander through these websites: you'll find a wealth of reports describing problems and describing and evaluating projects that seek to alleviate them.[...]



Top 5 Things to Look for in a Legal Job

2014-03-26T18:36:55.859-07:00

How do you figure out what sort of job to look for? Experienced lawyers and law teachers Jennifer Fan and Deborah Maranville say the main focus shouldn't be on the substantive area (bankruptcy vs. environmental law, for instance). Instead consider
  • people
  • tasks
  • case or project features
  • demands
  • rewards
Top Five Things to Look for in a Legal Job: People, Tasks, Case/Project Features, Demands & Rewards is available on SSRN.