California's Death Penalty: A Year in Review

By Adjunct Professor Paula Mitchell

This op-ed originally appeared on Justia.com.

On November 6, 2012, California voters narrowly defeated Proposition 34, a measure that would have replaced the state's death penalty with the sentence of life without the possibility of parole (LWOP) as the state's most severe punishment. Prop 34 failed to pass by about 250,000 votes.

Opponents of Prop 34 used a classic political technique to defeat the measure: fear mongering. They told voters that "instead of justice, killers [would] get lifetime housing/healthcare benefits" if Prop 34 passed. Voters were urged to keep the current system of capital punishment in place to "Protect California." They convinced voters that the death penalty was needed to punish people like "Richard 'The Night Stalker' Ramirez [who] kidnapped, raped, tortured and mutilated 14 people and terrorized 11 more including children and senior citizens."

The voters were duped. On June 17, 2013, after nearly a quarter of a century on death row at great expense to taxpayers, Richard Ramirez died peacefully at Marin General Hospital in Greenbrae, California, where he was receiving treatment for B-cell lymphoma.

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Introducing Guest Alumni Blogger Katherine Macfarlane

Katherine Macfarlane '06, our newest Guest Alumni Blogger, was a standout student at Loyola Law School, where she was chief articles editor of the Loyola of Los Angeles Law Review and received the Dean's Service Award. She later clerked for the Hon. Frederick J. Martone of the U.S. District Court for the District of Arizona, and for the Hon. Arthur L. Alarcón of the United States Court of Appeals for the Ninth Circuit. She is now teaching fellow and assistant professor of professional practice at LSU Law Center. And her scholarship is getting noticed. Her law review article, "The Danger of Nonrandom Case Assignment: How the Southern District of New York's 'Related Cases' Rule has Shaped the Evolution of Stop-and-Frisk Law," is forthcoming in Volume 19.2 of the Michigan Journal of Race and Law and is quoted in theWall Street Journal Law Blog.

-Associate Dean Michael Waterstone

Procedure Takes Center Stage in Stop-and-Frisk Litigation

By Katherine A. Macfarlane '06, Guest Alumni Blogger

Teaching Fellow and Assistant Professor of Professional Practice, LSU Law Center

On October 31, 2013, the Second Circuit took the unusual step of removing Southern District of New York Judge Shira Scheindlin from two high-profile stop-and-frisk cases: Ligon v. City of New York and Floyd v. City of New York. Ligon is a Section 1983 class action challenging the NYPD's trespass arrest policy, or "Operation Clean Halls," a program through which NYPD officers patrol private apartment buildings across New York City. Judge Scheindlin oversaw Ligon since its filing in March 2012. Floyd, also a Section 1983 class action, challenged the NYPD's street-level stop-and-frisk practices, arguing that they amounted to racial profiling. Floyd was filed in January 2008, and immediately assigned to Judge Scheindlin.

The Floyd trial began in March and lasted nine weeks. Thirteen days before the Floyd trial began, the Floyd plaintiffs withdrew all claims for damages, and as a result, Floyd was tried to Judge Scheindlin, not to a jury. Floyd was decided in an August 12, 2013 order spanning 193 pages. Therein, the judge granted a sweeping injunction against the NYPD that ordered changes to NYPD policies and activities, appointed a monitor to oversee stop-and-frisk practices, required a "community-based joint remedial process to be conducted by a court-appointed facilitator," and ordered that one precinct in each of New York City's boroughs place body-worn cameras on their police officers. On the same date, Judge Scheindlin entered a similar decision in Ligon, ordering changes to the NYPD's trespass arrest policies, oversight by the same monitor appointed in Floyd, and revision of NYPD training materials and programs. In its October 31 order, in addition to removing Judge Scheindlin from Floyd and Ligon, the Second Circuit stayed the orders in Floyd and Ligon pending appeal.

But why was Judge Scheindlin removed? In its October 31 order, the Second Circuit found that Judge Scheindlin violated the Code of Conduct for United States Judges due to the appearance of partiality created by her "improper application" of the Southern District's "related cases rule," as well as "by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court."

Multiple Choice Exams are (a) good assessment tools, (b) bad assessment tools, (c) all of the above.

By Associate Professor Kevin Lapp

This post originally appeared on EvidenceProf Blog.

Multiple choice testing is a popular assessment format in Evidence courses, more popular in my experience in Evidence than in other courses. Some professors use it exclusively, while others mix multiple-choice testing with essay questions on their exams. There's good reason for using multiple choice testing in Evidence courses. For one, the MBE portion of the bar exam contains multiple choice Evidence questions, so doing so as part of a final exam helps prepare students for the bar exam format. In addition, multiple choice testing has been around, and is widely accepted as a credible format to assess student knowledge. Evidence is also a heavily rule-based class that lends itself to an assessment format that requires students to identify a single correct answer. Finally, multiple choice questions allow professors to assess more topics than can be squeezed into an essay question, reducing the chances that a student performs well on an exam because he happened to know the issues covered by the essay questions.

But there can be a large gap between good multiple choice questions and bad multiple choice questions. This post is about how those of us who do use multiple choice questions can know if we are doing it in a way that makes for good assessment. The credibility of our multiple choice questions as sound assessment tools is particularly important given the high stakes testing that goes on in so many law school classrooms. When the great bulk, if not the entire portion, of a student's grade hinges on a single 3 or 4 hour exam, it is our duty to take advantage of the available tools to ensure that our exams function as credible assessment tools.

The Weight of Capital Punishment on Jurors, Justices, Governors, & Executioners

By Adjunct Professor Paula Mitchell

This op-ed originally appeared on Justia.com.

Capital punishment in the United States is often considered in terms of its constitutional vulnerability. Does it violate the Eighth Amendment's prohibition on cruel and unusual punishment? Is the delay in the appeal and post-conviction remedy process cruel and unusual? Are condemned inmates provided with adequate representation during capital trials? Is the death penalty evenly applied? These are some of the legal issues at the heart of longstanding legal debates over our use of capital punishment.

But on a more practical level, any debate over the efficacy of the death penalty should also include a discussion of the enormous psychological toll capital punishment takes on jurors, Justices, Governors, and even executioners. These individuals have been speaking out with greater force recently about how it feels when the responsibility of taking the life of another person falls on the shoulders of an individual.

Perhaps that is what Justice John Paul Stevens (Retired) had in mind when he stated last year:

"I really think that in regard to the death penalty . . . I'm not sure that the democratic process won't provide the answers sooner than the court does, because I do think there is a significantly growing appreciation of the basic imbalance in cost-per-person benefit analysis. And the application of the death penalty does a lot of harm, and does really very little good."

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Policing L.A.'s Sheriff

By Professor and David W. Burcham Chair in Ethical Advocacy Laurie Levenson

This op-ed originally appeared in the Los Angeles Times.

It is time to seriously consider a civilian oversight board for the Los Angeles County Sheriff's Department. The Board of Supervisors is scheduled to consider such a proposal next week. If approved, it could be a big step toward remedying some of the ongoing problems in our county jails.

The last few years have been tough for the department, which has been plagued by jail scandals, committee inquiries and even a federal investigation. Despite the efforts of committed professionals within and outside the department to monitor abuses in the jail system, the problems have continued. Meanwhile, the public has only been invited into the process once the situation has reached crisis dimensions.

A citizen oversight board has the advantage of providing a constant outsider view of the operations of the Sheriff's Department, very much in the same way that the Los Angeles Police Commission monitors the Los Angeles Police Department. Rather than gearing up to deal with the next inevitable crisis, the Board of Supervisors should focus on what monitoring will be the most effective in preventing scandals in the first place.

In Teaching Evidence, Making the Case for Cases

By Associate Professor Kevin Lapp

I've previously stated my enthusiasm for the problem-based approach to teaching evidence. Embracing the use of problems necessarily means that my students are not reading a lot of cases. Indeed, the textbook that I use has only a few case excerpts that are longer than a paragraph, and does not contain a single case that is reproduced in its entirety. Despite my preference for using problems, I recognize that there are drawbacks to not assigning cases for reading. In this post, therefore, I want to push back against myself a bit and make the case for using judicial opinions in Evidence class.

First, though, a few brief thoughts on what I like about problems. One distinct advantage is that problems are shorter than judicial opinions. Instead of procedural history, or factual recitations, or statements of the governing law, problems get right to work, providing students with all the information that I want them to have in order to focus their attention on the things I want them to focus on (and nothing more). It's much cleaner to have a crafted problem that is one paragraph long than it is to have a 2 page case that includes facts that aren't relevant or important to the rule that the case discusses. Another advantage is that I craft problems that allow me to change the facts very easily to illustrate the critical elements and nuances of a particular rule's application. With cases, the fact set-up is often messier, and it can be harder to offer simple factual adjustments that might change the result or bring into play a particular foundational element of hearsay exception. Finally, presenting the students with problems, instead of cases, allows me to treat the material as a puzzle to be solved (as compared to judicial opinions, which are puzzles already solved).

But there are downsides to teaching by problems. Perhaps the biggest one I've identified thus far is that my students do not get the benefit of reading a judge's organized analysis of a particular legal issue. For all their warts (which themselves can be teaching tools), judicial opinions provide models for legal analysis. They typically start with the facts, outline the relevant law (including its rationale), and then apply the specific words of the law and the underlying rationales to the facts. It's often exactly what I want my students to learn how to do. And while our class discussions about problems involve the students identifying the relevant rule and its elements, and then making arguments about the proper application of the law to the facts, the result is rarely so clean. A student may jump right to the conclusion without explaining how she got there, a student may begin with a justification (I think it should be kept out because it's not reliable) without deciding whether it was even admissible, or a student may fumble with the specifics of the applicable rule. There are, of course, teaching techniques to deal with these situations, if not reduce their occurrence. But the legal analysis we conduct in class for a problem is rarely as organized as a judicial opinion.

And that's the biggest advantage I'm discovering to using judicial opinions. Having the students state and apply the law without reading cases leaves students without models for good legal analysis. Because good legal reasoning (be it writing or oral advocacy) comes not just from practice with problems, but also from reading and hearing good examples of legal analysis, one big benefit of assigning judicial opinions is that the students are able to see an organized application of a given rule to a set of facts. That this is done as the students are first getting to know the terms of a particular rule and its rationale has me convinced that reading cases is even more valuable.

There are plenty of others benefits to using cases, such as allowing me to introduce the students to individual judges (and thus remind them that the law is applied by humans who had prior experiences before they came to the bench, and who decided other cases, etc., etc.) and giving them authority that they can reference throughout the semester.

The upshot of this is that I've found myself slowly gathering case excerpts and assigning them as supplemental reading, not because I think the factual scenarios of the cases provide particularly excellent starting points for learning the rules (I almost universally think that my problems are more finely tuned as instruments of teaching the content of the law) but because I am recognizing the benefit that my students get from the example of the judge's analysis.

One question that lingers - is it better to have the students read 3-4 short cases, or 1 case with a richer discussion/analysis? Would it be better to find cases that I can assign in their entirety, or are case excerpts acceptable? As always, your insights are welcome.