Judge Posner vs. Professor Dorf on Legal Writing

In the Autumn issue of the Journal of Legal Education, Professor Michael Dorf reviews Judge Richard Posner’s Divergent Paths. And Judge Posner responds. Judge Posner’s book, Professor Dorf’s review, and Judge Posner’s response are all worth reading in full, but I’d like to highlight a few parts that might be of particular interest to legal writing professors.

Judge Posner’s book is highly critical of legal writing professors, who he claims teach law students to write in a jargon-filled, Latin-peppered, opaque style. This was news to me, and contrary to the way I teach, the way my colleagues at UW School of Law teach, every legal writing text I’ve ever read, and every discussion I’ve had with other legal writing instructors. I’ve yet to meet someone who tells their students to end a memo with quod erat demonstrandum. Continue reading

Adventures in Assigning Peer-Review Partners (Warning: Contains Math)

I like to assign peer reviews for my 1L Legal Writing class. Generally, the course’s collaboration rules don’t let students help each other with their final graded assignments. But I make an exception for in-class peer review.

Anyway, this quarter I wanted to try something different: I wanted each student to have two peer review partners, instead of just one. So at the end of the class before the peer review I randomly assigned each student two different partners. Everyone exchanged papers with their two partners and read their two partners’ papers before the next class. My plan was to then break the peer-review class into two separate periods. During the first half of class each student would meet with one partner and discuss each other’s papers. And then during the second half of class each student would meet with the other partner and discuss each other’s papers.

The idea was that everyone would be discussing papers during the entire class, and no student would need to meet with their partner after class. Nice and easy! But perhaps you can see the problem. I’d like to think I would have seen it if I’d thought about it for a second. Oh well.  Continue reading

New Details Call Washington’s Carceral “Take-Backs” into Question

We have new information on exactly how the Washington Department of Corrections is rounding up people it had mistakenly released from prison. This excellently reported article in the Seattle Times by Lewis Kamb and Joseph O’Sullivan provides the details, which answer some of my previous questions. Whether the answers are comforting…. that’s another matter. Here’s how the article starts:

The phone call came midway through her shift as a waitress at a roadside casino. Three armed officers had shown up at her mother’s Issaquah home, looking for Rachel Patterson. Now, a state corrections officer was telling her to surrender.
“He explained we miscalculated your time and basically told me if I don’t turn myself in immediately, I would be in more trouble,” Patterson said.
For three months, Patterson, 29, had been free; a three-year prison sentence for felony assault was behind her. And she’d been doing well, she said: She landed a job, passed all drug tests, hadn’t committed any new crimes.
Then came the call, and within a few hours, Patterson was wearing a red jail uniform and under a “no-bail hold.”

On the process she received before her re-incarceration:

“They didn’t fingerprint me, gave me no paperwork, nothing,” Patterson said last week of her return to state custody. “Now I’m sitting here and no one’s answering my questions. They haven’t told me where I’m going, or how long I’ll be in for.”

On the legal authority for these “arrests,” according to the Washington DOC:

The warrants are technically “escape warrants” that don’t require a judge’s order, [a DOC official] said. While “there’s no intention on our part of prosecuting an escape,” the warrants can go nationwide and allow for extradition from other states . . . . (emphasis added).

So no judge is involved in the issuance of a warrant. But what about after the arrest? Does the re-incarcerated person get counsel, a hearing, anything? No. As the DOC official explained:

Once apprehended, offenders do not get a due-process hearing or legal counsel, [the official] said.
“These (cases) have already been adjudicated,” she said. “You’re under our jurisdiction and we need to apprehend you.”

On its own, that lack of process and judicial oversight may sound unfair. But the biggest legal issue might come from another information revealed by Kamb and O’Sullivan regarding the statements made by DOC officials to individuals before their release.

When the DOC first started rounding folks up, I wrote generally about the law of carceral take-backs. Whether the government has a right to re-apprehend a person it released might depend, not on the fairness of the re-incarceration process, but on the representations the government made to the person while he was in prison. Here’s what I wrote then, based on a review of the case law:

So can the government be estopped from re-incarcerating a prisoner after release? Maybe, if the government’s own wrongdoing caused a mistaken representation to the individual that he was entitled to release, if the individual had no reason to doubt the government’s representations, and if the individual relied on those representations in resuming his normal life.

At the time, I didn’t have any information about the sorts of representations the released individuals had previously received. But now I do. Again, from Kamb and O’Sullivan:

Patterson . . . was transferred in March to the Washington Corrections Center for Women in Purdy, where she said a DOC employee went over her remaining sentence with her. Patterson said the staffer told her she’d be out in about six months — almost a year early.
“I asked, are you sure? I’ve got two enhancements, 24 months. I have to do hard time on that,” she said she told him. “ I asked him like three or four times, and he got annoyed and was like, ‘Yeah, yeah, yeah, I’m sure.’ ”
. . . . Patterson said she didn’t think twice about being released without conditions.
“As far as they told me,” she said, “I was done.” (emphasis added).

And another example of repeated DOC representations:

Likewise, David Jennings, an offender let go at least seven months early and returned to custody last week, said he “triple-checked” his sentence with corrections staff before his release in August. (emphasis added).

Are these sorts of representations sufficient to estop the government from re-incarcerating folks under Johnson and Green (discussed here)? I’m not sure. But so far, no court has had a chance to answer that question, and the re-incarceration process does not seem to permit any judicial involvement. Time will tell.

Some Questions About Washington’s Carceral Take-Backs

Earlier today I looked at the legal basis (or lack thereof) for Washington to re-incarcerate individuals who had been released from state prison early due to a computer glitch. Regardless of the legality, these “take-backs” are happening. Some questions:

  1. If police officers are going to individual homes to notify people they need to return to prison, what is the process to create those orders? Does the chain of information go directly from the Department of Corrections to the police departments? Is there a judicial intermediary?
  2. Do the individuals have a right to counsel during the re-incarceration process?
  3. If the individuals have a right to counsel, are they ever told they have a right to counsel?
  4. Who would that counsel be? Would the individual’s lawyer be his same lawyer from the initial proceeding that led to the incarceration? A new lawyer?
  5. If federal habeas relief is the proper vehicle to test these detentions, is there an organization in Washington looking into habeas claims for any of these individuals?
  6. If state collateral proceedings are the proper vehicle, is there a state organization looking into those claims?
  7. Even if improperly released prisoners have no right to avoid re-incarceration, shouldn’t there be some process to determine whether an individual is in fact an improperly released prisoner before he gets re-incarcerated?

I’m sure more questions will come to mind. But so far much (all?) of the press on this issue has focused on (1) the fact of the glitch, (2) the state’s assertion that early released prisoners will be re-incarcerated, and (3) individuals who committed crimes after early release. I’ve yet to read anything about the administrative and judicial process operating here.

Washington’s Prison Glitch and the Law of Carceral Take-Backs

Apparently, a computer glitch at the Washington State Department of Corrections caused a number of prisoners to be released early–i.e., before the properly calculated term of their sentences had expired. As soon as the story broke, state officials have “assured” the public that police will quickly round up these not-yet-ready-for-society folks and put them back in prison. I put “assured” in quotes because I imagine that announcement is not at all assuring to recently released folks who now must be wondering if and when the state will be coming back for them.

Here’s one such story:

Officers showed up at David Jennings’ Renton home Sunday near the end of the Seahawks game.

Even though the soft-spoken 33-year-old had been free since July, they had a warrant to bring him back to prison.

Turns out Jennings — who says he served a decade in prison in connection with a drive-by shooting — is one of the state’s mistakes.

He’s among up to 3,200 prisoners released early since 2002 due to a software error.

Now, law-enforcement officials are rounding up offenders who still have time to serve.

Even though he’s reconnected with his family and two children and has been working hard and saving money while living with his parents, he was told he’d have to surrender Monday night to go back to prison until March.

But wait a minute… Is that legal!? Well, it depends. The law of carceral take-backs is a bit muddled, but there appear to be two different questions. Continue reading

Why Wasn’t the Jury in the Porter Trial Allowed to Review a Transcript of Witness Testimony?

The Judge presiding over the trial of William Porter (one of the officers charged in the death of Freddie Gray) announced yesterday that the jury was hopelessly deadlocked. He therefore declared a mistrial. Earlier that same day, the jury had requested a transcript of a witness’s testimony from the trial. Apparently, the jurors thought that reviewing some portion of the trial testimony might have helped them come to a decision. But the judge denied the jury’s request.

Why? I have two answers to that question. First: I don’t know. I wasn’t in the courtroom when the jury’s request was read, nor did I hear the Judge’s reasons for denying the request. I don’t even know what testimony was requested. Press accounts have not filled in these gaps. So I can’t say.


Image from CNN.ccom

But second: Though it may sound strange to deny a jury’s request to review trial testimony, there are a number of reasons why a judge might–and in some cases perhaps should–deny such a request. Continue reading

The Chief Justice’s Brand of Textualism

If you’re reading this, you already know that the Supreme Court issued King v. Burwell today and that it was a 6-3 win for the government, with Chief Justice Roberts writing for the majority. The Chief’s opinion focused on the text, context, structure, and “scheme” of the statute in concluding that the phrase “established by the State under section 1311” includes exchanges established by the federal government under section 1321. Rick Hasen writes that this aspect of the Court’s opinion “rehabilitates a focus on the law’s purpose as a touchstone to interpretation, over a rigid and formalistic textualism that ignores real-world consequences.”

I agree generally with this sentiment. King shows that textualism can be flexible. But I want to use this post to put a bit of a finer point on it. Continue reading