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2 EDITOR Teresa Mathis ASSOCIATE EDITOR Christie Hedman COPY EDITOR Fred Rice, Sarah White EDITORIAL COMMITTEE Anne Daly, Maggie Smith Evansen, Todd Harms, Terry Mulligan, Fernanda Torres, Keith Tyne DESIGN Fred Rice ILLUSTRATIONS Steve Konz WASHINGTON ASSOCIATION OF CRIMINAL DEFENSE LAWYERS Teresa Mathis, Executive Director 1511 Third Avenue, Suite 503 Seattle, WA OFFICERS Doug Hyldahl, President Wade Samuelson, President Elect Kailey Moran, Vice President/East Louis Frantz, Vice President/West Brit Mercer, Secretary Amy Muth, Treasurer Kim Gordon, Immediate Past President BOARD OF GOVERNORS Edwin Aralica, Chris Black, Jeri Bonkoski John M. Brangwin, Robert Butler, Jonathan Dichter, Larry Jefferson, Mike Kelly, James Kirkham, Kathy Knox, Therese Lavallee, Stacey MacDonald, Jon McMullen, Robert Perez, Kari Reardon, Brian Roach, Greg Scott, Damon Shadid, Merwin Moe Spencer Paul Strophy, Phillip Thornton, Fernanda Torres, Tom Weaver WASHINGTON DEFENDER ASSOCIATION Christie Hedman, Executive Director 110 Prefontaine Place South, Suite 610 Seattle, WA OFFICERS Michael Kawamura, President Dan McGreevy, President Elect Dan Fessler, Vice President East Keith Tyne, Vice President West Les Tolzin, Secretary Jeremy Ford, Treasurer Kevin Curtis, Immediate Past President BOARD OF DIRECTORS Edwin Aralica, Jodi Backlund, Eileen Farley Natalie Findley-Wolf, Harry Gasnick, Kathy Knox Jon Komorowski, Greg Link, Erin Lovell Scott Mason, Floris Mikkelsen, Dennis Morgan Terry Mulligan, Daryl Rodrigues Washington Criminal Defense is published four times a year. We welcome contributions from our members. For information about submitting articles contact Teresa Mathis, For advertising information, contact Fred Rice, FEATURES W A S H I N G T O N C R I M I N A L Sentencing p BY DHYANA FERNANDEZ 3 Using mitigation evidence to promote fair sentencing. Juvenile Clients and Language p BY NICOLE MCGRATH 8 How to spot and raise language impairment issues in juvenile court. Uncertainty in the Quest for Justice p BY TED VOSK 12 Division I says breath testing is exempt from requirements of science... but the fight continues. Legal Motions p BY STACEY MACDONALD 17 Writing to persuade. COLUMNS Briefs 21 WDA News, WACDL News, Passages, CLE Calendar Views and opinions expressed in articles published are the authors and are not attributed to the Washington Association of Criminal Defense Lawyers, the Washington Defender Association, their editors, or members unless expressly stated. Authors are solely responsible for the accuracy of all citations and quotations.

3 Sentencing Using mitigation evidence to promote fair sentencing. BY DHYANA FERNANDEZ In his speech to the annual meeting of the American Bar Association last August, U.S. Attorney General Eric Holder admitted that we can t incarcerate our way to a safer society. In acknowledging the need to reform our dysfunctional criminal justice system Holder said that too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason. Holder proposed expansion of indigent defense programs and funding; reduction of racial disparities; reform of mandatory minimum sentencing regimes and charging guidelines; expansion of compassionate release; tackling issues related to juvenile justice and low-level, non-violent drug offenders; studying and identifying best practices for the use of diversion programs as alternatives to incarceration; focusing on prevention and reentry issues; and eliminating unnecessary collateral consequences of conviction. What motivates a judge to select a particular punishment? Selection of an appropriate sentence is one of the most important decisions to be made in the life of a case. The most important tool in aiding the sentencing court in achieving an appropriate sentence is the bio-psycho-social history report compiled by a mitigation specialist. What is Mitigation? Mitigation investigation has its roots in death penalty defense but is increasingly used in non-capital criminal defense work. Mitigation is integral to achieving more just and individualized sentencing. Selection of an appropriate sentence is one of the most important decisions to be made in the life of a case. The Eighth Amendment provides that cruel and unusual punishment [shall not be] inflicted. (U.S. Const. amend. VIII) The U.S. Supreme Court has asserted that this amendment stands to assure that a state s power to punish is exercised within the limits of civilized standards. Trop v. Dulles, 356 U.S. 86, 100 (1958) In Woodson v. North Carolina, 428 U.S. 280 (1976) the Court expanded on this earlier decision, holding that in capital cases, the fundamental respect for humanity underlying the Eighth Amendment... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death. 1 Preparing such a report focuses on revealing any mitigating evidence in your client s life. Mitigation assists the sentencer to apportion a more thoughtful and appropriate sentence. The mitigation memo paints a picture of how a defendant came to make the choices that landed him or her in the criminal justice system and in turn argues for a more fitting sentence. There is no limit to what can be considered mitigating evidence. The goal of mitigation is to instill empathy and inspire compassion without justifying the crime. Mitigating evidence does not constitute an excuse for the offense, but a prosecutor or judge or may find, in light of the defendant s background, that imposing the most severe punishment is not necessary or appropriate. Explanatory mitigating evidence covers an array of life circumstances that provide cogent and compelling reasons for the sentencer to impose a lesser sentence. Why Use a Mitigation Specialist? The individualized mitigation sentencing memoranda are used by defense attorneys offered to prosecutors during plea negotiations or to the courts at sentencing to support an alternative to lengthy incarceration. Mitigation offers courts a costeffective way to sentence offenders. The work of compiling client social history information is generally unfamiliar to criminal defense attorneys and a mitigation specialist is better equipped to carry out a mitigation investigation. DEFENSE NOVEMBER 2013 p 3

4 Mitigation specialists will have experience in recognizing signs of mental illness and know how to screen for mental illness. Defense attorneys often do not have the experience to recognize every potential mitigating factor when examining the client s records or interviewing the client and collateral witnesses. See United States v. Thomas, M.J. 644, 647 (N.M.C.M.R. 1991) ( a psychosocial investigation is not within the ken of a competent attorney. ) A mitigation specialist will have the skills to recognize and overcome barriers to disclosure and to help the client cope with the emotional effect of such painful disclosures. Gathering social history from family members involves persuading them to reveal painful secrets: e.g., mental illness, abuse within a family, and addictions. Mitigation specialists can conduct both diagnostic interviews and collect information in sensitive collateral interviews. The mitigation specialist can serve as a liaison between the client s family and defense counsel. Using a mitigation specialist is a significant cost savings to the court. The fees of a court-appointed mitigation specialist are well below those of court-appointed attorney. Engaging a mitigation specialist on the team allows the defense attorney more time to adequately focus on the legal case. Judges desire thorough information on the background of the individual they are about to sentence. Effective mitigation entails accessing a variety of sources as collateral information to make a persuasive argument in sentencing. Typically there are more collateral sources of information that can be accessed than time and resources allow. Collateral information can be culled from immediate and extended family, friends, Mitigation recognizes that sentencing must be individualized to the defendant and the particular charges. coworkers, supervisors, teachers, current and former neighbors, clergy, probation officers, counselors, etc. A good mitigation specialist will prioritize those sources and maximize resources. Mitigation recognizes that sentencing must be individualized to the defendant and the particular charges. In early client conferences, we may talk about the hope that the work will be in vain that they will be found innocent rather than sentenced. It is important that the client understand that having a mitigation specialist on the team is not an indication that the attorney is moving toward a guilty finding, but rather that having such a sentencing advocate on the defense team demonstrates the efforts of a good attorney who has assembled a strong defense team. Methods Ideally, mitigation is a multi-generational inquiry focused on discovering the environmental influences and genetic predispositions that had an impact on a client s life. These factors greatly limited the scope of the client s choices. Mitigation begins with the client interview. Preparation for a mental health evaluation requires careful observation of the client. Social history interviews are sensitive and inherently invasive of privacy. They seek to uncover some of the darkest secrets of the client s life. Often a client with a mental health issues may not reveal symptomatic behaviors to members of her defense team. Whether the result of years of masking symptoms or an observer s inclination to normalize them, the challenge of uncovering mental illness, if present, remains. The skilled mitigation specialist will know when and what to ask regarding basic mental health issues. The mitigation specialist becomes an observational caretaker as impairments may interfere with accurate self-disclosure. Attorneys using a mitigation specialist should convey to the client that the role of the mitigation specialist is to give the judge an opportunity to get to know them as an individual, even though the judge and defendant may never share a conversation. Building trust and credibility during client conferences are the first steps to revealing vital information. The first meetings may reveal little but are the beginnings of building a relationship which hopefully leads to later disclosure. The tone of this first meeting may be the most important feature. Typically clients are not accustomed to having anyone interested in their personal background. Having a professional on their team who is listening, demonstrating empathy and asking follow-up questions builds rapport. Slow disclosure comes from the difficulty of revealing painful history about oneself and it can be intrusive in a way that most of cannot understand. Records Early in the process, as many records about your client as can be identified must be requested. Records can often be a goldmine of information revealing additional life history 4 p DEFENSE NOVEMBER 2013

5 Examples of Mitigation Information Following is a list of potentially mitigating factors meriting inquiry. Most of these are life history factors that the client did not and could not choose. Do not mistake this for a comprehensive list of mitigators. Anything can be a mitigating circumstance. The list is simply meant to provide some examples of what is considered mitigating. Addiction andsubstance abuse Adolescence/juvenile history Amicus brief cited by Supreme Court in Graham v. Florida, 2010 WL (May 17, 2010); filed by the American Psychological Association. pp (discussing important differences between adolescents and adults in terms of brain development, culpability and potential reform; helpful to arguing a client s early criminal history was due to lack of maturity, vulnerability to outside influences, poor judgment). Age Adolescence Old behind bars Alcohol use and alcoholism Attention-Deficit Disorder / Attention-Deficit- Hyperactivity Disorder(ADHD) Brain injury or impairment and head injuries Bully victimization and peer rejection Chemical imbalances and impulsive behavior Childhood maltreatment or abuse (physical, verbal, emotional) Childhood exposure to violence and the negative effects that may arise from exposure to violence Childhood sexual abuse Children and families of the incarcerated. What effect will [prolonged] parent and child separation have? Circumstances of the offense Circumstances of offense no longer present Circumstances of prior offense(s) Collateral consequences of conviction Co-morbid conditions (substance abuse and other mental illnesses) Community supervision Competency to stand trial and effectively engage with defense Concentration of delinquent peer groups and circumstances around association with deviant peers Culturally competent investigation of client s background: What knowledge does the sentencer have about growing up on the reservation? How did growing up first generation Somalian influence the defendant s choices? Etc. Deterrence and evaluating certainty versus severity of punishment Displacement and immigration; sentencing hardships and undocumented immigrants Disorganized neighborhoods and neighborhood disadvantage Duress, coercion, desperation Education/literacy Employment Evidence-based programs and practices (See National Registry of Evidence-Based Programs and Practices) Extraordinary acceptance of responsibility and allocution Failures of the system or client s support system Factors contributing to decompensation in the time leading to current offense First Offender Fetal Alcohol Syndrome and Fetal Alcohol Effect Gang affiliation. What were the causes that led to client gang involvement? Genetic predisposition to psychiatric disorders Good character Good deeds Community service Good behavior before or after offense DEFENSE NOVEMBER 2013 p 5

6 Homelessness. What conditions led to a client being homeless? Impaired decision making due to mental health or cognitive issues Intellectual disability (formerly known as mental retardation) Immigration stressors Lack of protective factors during developmental stage Learning disabilities and language deficits Masking of psychiatric symptoms and cognitive impairments Medical conditions Medical conditions with psychiatric consequences Medications Mental health medications and side effects Neurological deficits including exposure to environmental toxins, pesticides, lead exposure No indication of sexual deviance or sexual predator Offense specific mitigating factors Patterns/repetitions/themes (family violence, alcoholism, schizophrenia repeat across generations and affect how a person has developed and functions) Parental abandonment Parental neglect Psychiatric illness Bipolar Disorder Depression Post-Traumatic Stress Disorder Schizophrenia Mental health issues in Native American populations Poverty and effects of poverty Proportionality in sentencing Race, ethnicity, gender Racial disparities, judicial discretion, and the United States Sentencing Guidelines U.S. Sentencing Commission 15-Year Report (finding average sentence for a black defendant to be 25% higher than for a white defendant) Reentry challenges faced by African American women Women in prison and collateral consequences Mental Health: culture, race, and ethnicity Redemption and potential for rehabilitation; value of rehabilitative sentence Relationships and the impact of marital and relationship status on social outcomes for returning prisoners Religious background Remorse Restitution Sobriety assessment Trauma history Traumatic bonding Treatment Cognitive Behavioral Therapy effectiveness (cocaine addiction)(depression) Drug treatment advances Veterans issues Army wants PTSD clinicians to stop screening for fakers Army s new PTSD guidelines fault Madigan s screening tests Policy guidance on the assessment and treatment of Post-Traumatic Stress Disorder (PTSD) Veterans and brain disease Mental health treatment needs/evidence-based Military Service 5H1-11 Departures Booker Variances Victim s sentiments regarding punishment Vulnerability in prison Youthful lack of guidance 6 p DEFENSE NOVEMBER 2013

7 witnesses, or detailing events the client may not have a clear memory of, or corroboration of a compelling story in the client s past. Contemporaneous records speak for themselves and are therefore intrinsically credible. These records may offer information the client or other retrospective reporters were too young to remember and provide the mitigation specialist with follow up questions. Records can include military, medical, pharmacy, employment, supplemental security income, IRS, educational, criminal history, correctional history, medical, foster care, and other institutional records. These records provide excellent sources for collateral information and unbiased observers (correctional personnel, medical staff, teachers, etc.). Use Research to Bolster the Presentencing Mitigation Report Tapping into the vast supply of scholarly literature across broad disciplines will bolster a mitigation memorandum. Google scholar is one effective search tool that accesses articles, theses, books, abstracts and court opinions, academic publishers, professional societies, online repositories, universities, and other sites. The online list of sources seem limitless. Often persuasive data come from government sources such as the Congressional Research Service or the Department of Justice. An agency within DOJ, The Office of Juvenile Justice and Delinquency Prevention, has published research surrounding risk and protective factors. Suppose you wish to argue that your client s mental illness is not a predictor of reoffending. Some articles to support that claim: Predicting Recidivism by Mentally Disordered Offenders Using the LSI- R; SV, 36 Criminal Justice and Behavior 5, 6 (2009) Recidivism of Successful Mental Health Court Participants (Apr. 2007), available at publicsafety.ohio.gov/links/ocjs_researchbriefing7.pdf. See USSC, Recidivism and the First Offender 8 (2004), available at Don t wait until the last minute to engage a mitigation specialist. Most clients aren t going to be thrilled with the prospect of a plea early in the case. Yet the earlier counsel engages a mitigation specialist for sentencing purposes, the more effective his or her efforts will be. Rapport-building does not generally occur in one client conference. Clients familiar with the criminal justice system have rarely dealt with a mitigation specialist or the revelation of their life history as an element in their defense. Even when a defendant trusts the mitigation specialist it will take time for the most compelling background information to be disclosed. Dhyana Fernandez has conducted mitigation investigations for the Cook County Public Defender s Office in Chicago and the Texas Appellate and Education Resource Center. Dhyana Fernandez Investigations LLC is based in Olympia; her practice focuses on capital and non-capital mitigation investigations. She can be reached at DEFENSE NOVEMBER 2013 p 7

8 Juvenile Clients and Language How to spot and raise language impairment issues in juvenile court. BY NICOLE MCGRATH Juvenile lawyers thrive on sarcasm, the written word, and fighting the good fight in court. These gifts require a lawyer to possess an extensive knowledge of language and its meaning, and to understand how to use the right words to persuade and prevail for juvenile clients in court. By stark contrast, children at juvenile court often lack these gifts. Juvenile clients and language impairment issues often go hand-in-hand to impede a child s ability to assist in his or her own defense. This article is a review of language impairment issues and how to spot them in juvenile cases. Since 2004, a line of seminal U.S. Supreme Court juvenile cases have irrevocably linked juvenile law with the science of adolescent brain development. 1 With this great line of cases paving the way, juvenile attorneys can have a field day documenting adolescent brain development issues in order to craft a zealous defense or mitigate the consequences that children face in court including language impairment issues. Language Impairment 101 Language impairment (or disorder) has been described as the failure to acquire competency in language and language use. 2 During their early development years (birth to age three), what language children grasp and understand is related to how many words their parents and caregivers use with them. A 1995 study found that children whose families were on welfare heard 600 words per hour as compared to children from higher income families who heard as many as up to 2,100 words per hour. 3 By age three, the low-income child had heard 30 million fewer words than the child lucky enough to grow up in the wealthier family! Lack of exposure to words is one of the many causes of language impairment issues. Children may also demonstrate communication disorders in conjunction with other difficulties assessed or diagnosed by their school or medical teams. 4 It may frequently co-exist where a child has been diagnosed with issues such as Attention Deficit Hyperactive Disorder (ADHD) or learning disabilities. 5 Environmental factors, such as growing up in poverty 6 and exposure to abuse or neglect, often co-exist with this kind of impairment. 7 Children with speech issues, hearing issues, or whose native language is not English may also have a co-existing language impairment issue. How can you tell if the kid client you are speaking with has problems understanding what is said at juvenile court? An excellent law review article, Breakdown in the Language Zone: The Prevalence of Language Impairments among Juveniles and Adult Offenders and Why it Matters, provides a thorough summary of the different kinds of language impairments and how to use them in competency proceedings, confession hearings, and as mitigation at juvenile disposition hearings. In practice, a child who jokes easily with his or her attorney or continually nods and agrees may simply be masking an inability to make sense of what the lawyer just said or meant. Children need their lawyers to scrutinize how these deficiencies interfere with the ability to understand juvenile proceedings and assist them. 8 During a busy, chaotic juvenile court proceeding, a client with these difficulties may feel like a traveler to Lack of exposure to words is one of the many causes of language impairment issues. a foreign country, where the client s limited understanding of legalese collides with trying to communicate with a highly educated, talkative juvenile attorney: Juvenile lawyer: Yeah, so remember how last week we talked about the plea offer? Child client: Uh-huh Juvenile lawyer: And you said you were cool with pleading to the assault 3 because getting found guilty at trial of an assault 2 will get you JRA juvenile prison time? Child client: Uh-huh. That means I get to go home. Right? 8 p DEFENSE NOVEMBER 2013

9 Juvenile lawyer: No! Remember how I told you it will be up to the judge and she can impose as much time as she wants to punish you. way, in their own words, in their own time. A thoughtful juvenile attorney uses plain language, takes the time to explain legal concepts like the attorney-client privilege, and checks in periodically with the client to deter- Child client: But I didn t do it. He was on me. I had to beat him to get him off me. Juvenile lawyer: (Sigh) Pop quiz if you plead guilty, do you understand what that really means? Let your clients tell their stories in their own way, their own words, in their own time. Juvenile clients deserve a high level of engagement in their own cases. For the attorney, spending extra time explaining legal concepts can be a burden especially when juggling high caseloads and a court that needs you to move things along. However, by doing so, the client benefits by being able to understand the consequences of making big choices at court. Spotting and Raising Language Impairment Issues Spotting language impairment issues needs to begin the first time a lawyer meets his or her child client at court. The attorney should conduct a thorough interview of the client, listening to the kind of words the client uses and noticing if he or she is tracking what the attorney is saying. In addition, the attorney should determine whether there are identifying clues in a client s education and medical/mental health records. Conducting a thorough interview of your child client provides clues that will help you spot language impairment issues. An interview may need to take place over multiple meetings. It requires that the juvenile attorney establish a professional trust with the client. If the client cannot trust the juvenile attorney, the client is not going to be able to tell her or his life story or admit an inability to understand. Questioning should always include the client s social history, family life, education history, medical history and mental health history. Let your clients tell their stories in their own DEFENSE NOVEMBER 2013 p 9

10 mine whether he or she understands the conversation. Clues will reveal themselves in the client s interviews. Words the child client uses are clues. Your client may not use terms of art such as Individual Education Plan (also called IEP ). Yet, if she or he tells you about how being in a self-contained classroom with only a few students, then your client may be describing a special education plan called IEP. When children mention disliking medications because they cause sluggishness and sleepiness, they have just given the attorney a big clue that they are under the care of a medical or mental health provider. Once the lawyer has picked up on these clues, the next step is to obtain and review the education, medical, and mental health records. These records contain a gold mine of information such as cognitive functioning assessments, speech therapy evaluations, mental health and medical clinician notes, and evaluations. Records Contain Obvious and Not-so- Obvious Information A records review can be viewed as a thankless task; it may seem unclear how the results will bolster the child s defense. However, a thorough records review is critical. Here is how to do it and why it often yields information beneficial to juvenile defense work. Education and special education records: If a child receives special education services, the special education records are held by the school district. Attendance, school discipline and grade records are held at the building level (e.g., the last school the child attended). A records request should be made at both the district and building levels to secure all education records. The following sources of information, while not exhaustive, may yield valuable information about potential language impairment issues. Within the special education records, identify and locate the Individual Education Plan (IEP) the initial plan as well as re-evaluations and subsequent IEPs. The IEP Initial Evaluation documents the first time a child is assessed and found eligible for special education services. Thereafter, an IEP re-evaluation must be conducted at least every three years in accordance with federal and state special education law, and every two years for students with intellectual disability (also previously called mental retardation). An IEP must be renewed, at a minimum, once a year. The records may also include supplemental records called a functional behavior assessment, behavior intervention plan, or manifestation determinations (in the event the child was the subject of a discipline incident). A comprehensive IEP evaluation should contain cognitive intellectual function testing (e.g., IQ tests). A full-scale IQ at or below 70 indicates intellectual disability. Other relevant testing may include testing for speech disorders and adaptive functioning skills (e.g., daily living skills). If a special education student is diagnosed with an emotional behavior disorder, then look for testing regarding behavioral needs. A popular test in this arena is the Behavior Assessment System for Children (BASC). The BASC is also used to assess behaviors related to ADHD and other attention deficit disorders. The BASC tests in a variety of areas including the area of functional communication. If a child s test scores are documented to be at-risk or clinically significant in functional communication, this is a clue that the child client has limited communication abilities. As to speech and language issues, school teams may have also conducted their own speech evaluations and testing of the child. Such assessments include the Clinical Evaluation of Language Fundamentals (CELF) or Expressive One-Picture Vocabulary Test (EOWPVT). These tests are used to document the level of a child s receptive language and expressive language. Receptive language indicates what a child hears and When a child feels heard and understood, that child is more likely to have ownership of the big choices made at juvenile court. understands (i.e., language comprehension). Expressive language is the child s ability to communicate with others using language. In addition to testing, the evaluations and IEPs will often contain observations by school staff about any academic and behavior deficits. The child s reading and written expression levels may suggest language impairment issues. If the client is a 16-yearold and reads and writes at a first grade level, the juvenile attorney s language impairment radar should be buzzing. The discipline history and report cards may also hold clues about whether a child is able to communicate or understand a teacher s instructions. For example, if the child is constantly written up or disciplined for an inability to pay attention, disrupting the class, or failing to finish homework assignments, then crosscheck whether the child has been diagnosed with any mental health issues or learning disabilities. On a student s report card, look for any mention of such issues documented by teachers or staff. Medical and Mental Health Records: Identifying which medical and 10 p DEFENSE NOVEMBER 2013

11 mental health records to obtain will be driven by the interview with the child client and information provided by the child s parent or caregiver, dependency foster care social worker, school teacher or psychologist, or juvenile probation counselor. Particular attention to the child s medical history between birth and age three is critical. If there are reports the child was exposed to or the victim of violence or a traumatic event, you should seek the medical records from the child s pediatrician or hospital of birth. If there are accounts the child suffered a brain injury at any time, then that is another reason to order these records. Other records to seek include the child s community-based mental health agencies (current and past providers), current pediatrician, and hospitals (current or past) where the child was hospitalized for mental health or medical issues. When a child has been or is currently in the dependency foster care system, their Department of Social and Health Services (DSHS) records should hold a wealth of information documenting the child s medical and mental health history. If the child has ever been assessed or treated for hearing loss difficulties, seek those records. When there is mention the child was treated in an auditory clinic or provided an auditory or speech evaluation, then it indicates a medical team assessed and treated a child for suspected hearing or speech issues, diagnosed and documented the issues, and recommended services and treatment to accommodate and aid the child. During times when a child is hospitalized, it may be that the medical team conducted speech and hearing assessments, similar to the kinds used by special education teams, to ascertain the child s level of speech and language use. Once the records are catalogued and suspected language impairment issues are documented, then the juvenile attorney should confer with a social worker and/or defense expert to discuss whether the clues amount to a sufficient basis to raise competency, 9 challenge a child s confession, 10 or support a basis for mitigating the juvenile disposition. 11 Alternatively, the information could assist in plea negotiations. Conclusion When juvenile children do not have the words to express what they mean or understand what is said at court, the juvenile attorney is in the unique position to level the playing field for that child. This may entail helping educate others about a child client s language impairments and how to better communicate with that child. When a child feels heard and understood, that child is more likely to have ownership of the big choices made at juvenile court. When a juvenile attorney identifies language impairments, the attorney is in a good position to decide whether to pursue a finding of incompetency, a basis to establish an involuntary confession, or provide juvenile staff an awareness to choose their own words differently in encouraging the child that she can succeed in the community. Nicole McGrath is the TeamChild Snohomish County staff attorney providing juvenile justice affected youth civil legal aid advocacy in the areas of education, health, and housing. She has worked for The Defender Association in King County practicing juvenile law and dependencies. Judith Baskin, Assistant General Counsel, the School District of Philadelphia, assisted with editing this article, which was inspired by a young client who is hard of hearing but a master of the card game Uno. Notes 1. Roper v. Simmons, 543 U.S. 551 (2005); Graham v. Florida, 130 S.Ct (2010); JDB v. North Carolina, 131 S.Ct (2011); and Miller v. Alabama, 132 S.Ct (2012). 2. See Michele LaVigne and Gregory J. Van Rybroek, Breakdown in the Language Zone: The Prevalence of Language Impairments Among Juveniles and Adult Offenders and Why it Matters, 15 U.C. Davis J. Juv. L. & Pol y 37, (Winter 2011). 3. Tina Rosenberg, The Power of Talking to Your Baby, New York Times, April 10, (referencing research by Betty Hart and Todd R. Risley, University of Kansas, published in 1995 book entitled Meaningful Differences in the Everyday Experiences of Young American Children ). 4. Breakdown in the Language Zone at page Id. at pages 50-51; see also Marty Beyer, What s Behind Behavior Matters: The Effects of Disabilities, Trauma, and Immaturity on Juvenile Intent and Ability to Assist Counsel, The Guild Practitioner 58, no. 2: 112 (2001). 6. Id. at pages Id. at pages Id. at pages See also Mark Larrañaga, The Dangers in Raising Competence, Washington Criminal Defense 24, no. 2:20-27 (2010) and Washington Defender Association, Juveniles are Different: Using Adolescent Brain Science Representing Youth in Adult Court, Technical Assistance Practice Advisory (April 27, 2012). 10. In New Hampshire, the Supreme Court of New Hampshire overturned a juvenile s arson conviction and remanded the matter to juvenile court on the grounds of finding sufficient evidence, including language and speech issues, that the child may have given an involuntary confession. In re Wesley B., 145 N.H. 428 (2000). 11. See also Ronald Roesch, Kaitlyn Thomsen, and Jodi L. Viljoen, The Capacity of Juveniles to Understand and Waive Arrest Rights, in Learning Forensic Assessment, ed. Rebecca L. Jackson, (New York: Taylor and Francis Group, 2008). DEFENSE NOVEMBER 2013 p 11

12 Uncertainty in the Quest for Division I says breath testing is exempt from requirements of science... BY TED VOSK Over half a decade ago the Washington State Supreme Court recognized that [i]f the citizens of the State of Washington are to have any confidence in the breath-testing program, that program has to have some credence in the scientific community as a whole. 1 On July 29, 2013, Division I of the Washington Court of Appeals turned its back on this principle. 2 Overruling a panel of King County District Court judges who required breath test results be accompanied by their uncertainty when offered by the state in prosecutions for DUI, the appellate court decided that basic scientific requirements don t apply to forensic breath alcohol testing. 3 Division I s fatally flawed analysis undermines the search for truth in the courtroom, guaranteeing that there will continue to be innocent citizens who are found guilty of DUI based on breath alcohol content (BrAC) results which don t support that conclusion. According to the National Academy of Sciences, [t]he law s greatest dilemma in its heavy reliance on forensic evidence concerns the question of whether and to what extent there is science in any given forensic science discipline. 4 In particular, [t]here is a critical need in most fields of forensic science to raise the standards for reporting and testifying about the results of investigations. 5 As a general matter, laboratory reports generated as the result of a scientific analysis should identify, as appropriate, the sources of uncertainty in the procedures and conclusions along with estimates of their scale (to indicate the level of confidence in the results) to allow the nonscientist reader to understand what has been done and permit informed, unbiased scrutiny of the conclusion. 6 For example, [n]umerical data The important question was what conclusions this accurate and reliable result supported. reported in a scientific paper include not just a single value (point estimate) but also a range of plausible values (e.g., a confidence interval, or interval of uncertainty). 7 This is done to ensure that the conclusions drawn from the [results] are valid. 8 Likewise, [f]orensic reports, and any courtroom testimony stemming from them, must include clear characterizations of the limitations of the analyses, including associated probabilities where possible. 9 Accordingly, [a]ll results for every forensic science method should indicate the uncertainty in the measurements that are made Some forensic laboratory reports meet this standard of reporting, but most do not most reports do not discuss measurement uncertainties or confidence limits. 11 Doing so is critical because: As with all other scientific investigations, laboratory analyses conducted by forensic scientists are subject to measurement error. Such error reflects the intrinsic strengths and limitations of the particular scientific technique. For example, methods for measuring the level of blood alcohol in an individual can do so only within a confidence interval of possible values 12 For these reasons, the academy specified that breath test results need to be reported, along with a confidence interval that has a high probability of containing the true [breath]-alcohol level. 13 The same is true for measurement results throughout the scientific community. As explained by the International Organization for Standardization (ISO), it is necessary to include a measurement s uncertainty when reporting a result because: Knowledge of the uncertainty associated with measurement results is essential to the interpretation of the results. Without quantitative assessments of uncertainty, it is impossible to decide whether laws based on limits have been broken. Without information on uncertainty, there is a risk of misinterpretation of results. Incorrect 12 p DEFENSE NOVEMBER 2013

13 Justice but the fight continues. decisions taken on such a basis may result in unnecessary expenditure in industry, incorrect prosecution in law, or adverse health or social consequences. 14 It is recognized throughout the scientific community that when reporting a measured result, its uncertainty must be estimated and reported along with the result. 15 Although Division I recognized that the determination and reporting of the uncertainty of breath alcohol results was recognized under Frye, it chose to ignore both the National Academy of Sciences and the greater scientific community when it came to requiring that this be done. Rather, it ruled that while the uncertainty of breath test results is admissible and may be offered by the defense, the state is not required to do so. The Washington State Supreme Court recognized the necessity of providing fact-finders with the information necessary to properly understand and weigh scientific results two decades ago. Addressing DNA analysis, the court held that evidence of a DNA match was not admissible under ER 702 unless it was accompanied by the likelihood that such a match could occur randomly. 16 The court s concern was not that DNA results were somehow inaccurate but rather that absent the likelihood a jury could not determine the appropriate weight to give to such a result. Without the probability assessment, the jury does not know what to make of the fact that the patterns match: the jury does not know whether the patterns are as common as pictures with two eyes, or as unique as the Mona Lisa. 17 The same is true with breath test results. During the district court hearing, Rod Gullberg, former head of the Washington Breath Test Program, was provided with the results of a breath test whose values exceeded the per se limit (0.08). Because the results had been obtained in compliance with all statutory and Washington State Toxicology Lab Division (WTLD) requirements, Gullberg testified that they were accurate and reliable. The defense conceded this point. The important question was what conclusions this accurate and reliable result supported. Gullberg stated that, based solely on the result and the fact that it had been obtained in compliance with the aforementioned requirements, he could say beyond a reasonable doubt that this citizen s true BrAC exceeded the per se limit. Gullberg was subsequently provided the result s uncertainty. After examining it briefly, he admitted that his prior testimony had been incorrect the test result did not support the conclusion that this citizen s true BrAC exceeded 0.08 beyond a reasonable doubt. The uncertainty revealed what the results of this test actually meant. And what it revealed was that, despite how accurate and reliable the results were, there was a 44% probability that this citizen s true BrAC was less than 0.08! 18 Like the DNA cases, the accuracy and reliability of breath test results was not at issue. Rather, the issue is that a jury cannot properly weigh an accurate and reliable breath test result absent its uncertainty. In fact, informing a jury that a result is accurate and reliable without also providing its uncertainty is misleading because it invites a jury to place greater confidence in the result than is justified by the science it is based upon. This plays directly into [t]he major danger of scientific evidence [which] is its potential to mislead the Like the DNA cases, the accuracy and reliability of breath test results was not at issue. Such reasoning would permit almost any sin as long as all in the particular community sin alike. jury; an aura of scientific infallibility may shroud the evidence and thus lead the jury to accept it without critical scrutiny. 19 A breath test result s uncertainty provides the range of values that can actually and reasonably be attributed to an individual s true BrAC based upon the result(s) obtained. State Toxicologist Fiona Couper admitted that no juror would have any way of knowing these values unless they were provided to them. In fact, [a]bsent the reporting of uncertainty, there is a substantial possibility that even an expert would not make a meaningful analysis of a particular breath reading. 20 The state supreme court established for the first time in Jensen that breath test evidence is to be treated like all other scientific evidence, in- DEFENSE NOVEMBER 2013 p 13

14 cluding forensic DNA analysis. 21 The likelihood of a match in the DNA context plays the same role as the uncertainty in the context of a breath test: each conveys the conclusions, or the limitations thereof, that the science behind the result permits the result to support. As in the DNA context, then, the defense argued that absent their uncertainty breath test results could not be adequately understood or weighed by any fact-finder. The district court s unchallenged findings of fact declared this unequivocally. Thus, applying the same principles adhered to in the context of DNA evidence, the district court concluded that BrAC results unaccompanied by their uncertainty were not helpful, and therefore inadmissible, under ER 702. Division I went to great lengths to get around this conclusion. This included: 1. Framing the issue as one of accuracy and reliability which the law requires to be handled at trial as a matter of weight. As explained above, however, the accuracy and reliability of breath tests was never challenged. The only question was whether jurors could properly weigh accurate and reliable breath test results absent their uncertainty. 2. Misstating the holding of the DNA cases to require a Frye analysis. While the courts in those cases did state that reporting a DNA match absent a likelihood was not generally accepted, they also made clear that it was not helpful to the trier of fact under ER 702 and that ER 702 has independent force and effect [and plays] a significant role in admissibility of scientific evidence aside from Frye Limiting the relevant scientific community to that of forensic toxicologists as if the normal laws of nature don t apply in that realm. This misstates the standard, artificially limiting the scientific community subject to consideration. In essence, it permits those engaged in breath testing to do whatever they please and, as long as they all act in unison, Division I will bless it. Regularly relied upon, such reasoning would permit almost any sin as long as all in the particular community sin alike. It simply is not 14 p DEFENSE NOVEMBER 2013

15 credible to argue that general acceptance may be premised simply on the opinion of forensic scientists. While views of forensic scientists have weight and must be considered, members of the relevant scientific field [] include those whose scientific background and training are sufficient to allow them to comprehend and understand the process and form a judgment about it 23 In fact, acceptance by a community of unbiased experts outside the particular forensic discipline under consideration carries greater weight Distinguishing DNA and BrAC results on the basis that the former are qualitative while the latter are quantitative. The report from the National Academy of Sciences makes no such distinction. 25 The reason the scientific community requires the uncertainty of measurement results (such as BrAC results) to be reported along with the measured values themselves is the same as the reason the scientific community requires the likelihood of a DNA match (or other qualitative results) to be provided along with a resulting match itself: They convey to decision makers the conclusions, or the limitations thereof, that the science behind the results indicates the result can support. This permits a judge or jury to appropriately weigh the significance of a result and make valid inferences therefrom Assuring the public that [w]ithout a confidence interval, test results obtained in The decision by the court of appeals does violence to this to this simple truth. conformance with the WTLD and statutor y quality assurance procedures remain the best estimate of the measurement s true value. This statement is false and misleading. Like all measurements, BrAC results are accompanied by bias. Unless the bias is corrected for, all BrAC results are artificially elevated or depressed. Although uncorrected results may yield values in excess of a critical limit, once bias is accounted for the results may reveal that it is actually more likely than not that the true BrAC is less than that limit. The bias corrected mean provides the scientifically recognized best estimate of the true BrAC. Unfortunately, WTLD does not correct breath test results for their bias. Because the uncertainty of breath test results is based on their bias corrected mean, though, the district court decision solved this problem. Division I now provides authority for the lie that results known to be in error are the best estimate of an individual s BrAC. According to Rod Gullberg, decisions such as Division I s that fail to require forensics to adhere to standard scientific practices have helped to create the types of problems identified by the National Academy of Sciences. Case law ignoring the requirements of science enables breath test practitioners to ignore science while providing little incentive for them to adhere to its requirements. 27 Division I concedes that while breath tests are not subject to blanket suppression, courts can apply ER 702 on a case-by-case basis and suppress due to uncertainty where appropriate. This implies that a court may find a BrAC result s uncertainty large enough to render it in admissible under ER 702 in certain circumstances. But this is contrary to case law in both the DNA and DUI context. The requirement that a DNA match be accompanied by its likelihood holds regardless of how large or small it is and, as long as the likelihood accompanies the result, the magnitude of the likelihood has no impact on the result s admissibility. The reason is that the magnitude of the uncertainty associated with a result goes to weight, not admissibility. Whether the uncertainty of a result is so great as to preclude a finding of guilt beyond a reasonable doubt or so small as to be inconsequential to such a determination is a matter for a jury to decide. The defense only seeks to ensure that the fact finder is given the information necessary to rationally weigh such a result so that a determination actually supported by the evidence can be arrived at. 28 Writing about the district court decision, legal scholar Edward Imwinkelried explained that reporting the uncertainty of forensic measurements: promotes honesty in the courtroom. It is axiomatic that measurements are inherently uncertain. As the Washington cases emphasize, it is misleading to present the trier of fact with only a single point value. There is a grave risk that without the benefit of qualifying testimony, the trier will mistakenly treat the point value as exact and ascribe undue weight to the evidence. The antidote the necessary qualification is a quantitative measure of the margin of error or uncertainty. 29 Similarly, Thomas Bohan, [] past president of the American Academy of Forensic Sciences, hailed the King County Court opinion as a landmark decision, engendering a huge ad- DEFENSE NOVEMBER 2013 p 15

16 vance toward rationality in our justice system and a victory for both forensic science and the pursuit of truth. 30 Justice Stephen Breyer tells us that [i]n this age of science we must build legal foundations that are sound in science as well as in law. 31 This means that where scientific evidence is relied upon, [t]he law should seek verdicts consistent with scientific reality 32 This can only be achieved, however, by requiring scientific evidence to conform to the standards and criteria to which scientists themselves adhere. The decision by the court of appeals does violence to this to this simple truth. The state supreme court is now being asked to reaffirm the principle that if forensic science is to be relied upon to deprive a citizen of his/her liberty, then it must adhere to the same fundamental principles that science itself adheres to. After all, [i] f the citizens of the State of Washington are to have any confidence in the breath-testing program, that program has to have some credence in the scientific community as a whole. 34 Ted Vosk has an undergraduate degree in theoretical physics and mathematics and a JD from the Harvard Law School. He is of counsel to the Cowan Kirk Gaston Law Firm, a legal and science writer, criminal defense attorney, and legal/forensic consultant. Notes 1. City of Seattle v. Clark-Munoz, 152 Wn.2d 39, 47 (2004) (quoting Ruling by District Court Panel). 2. State of Washington v. King County District Court, et al, # I; filed July 29, The District Court heard five days of testimony from four experts, received 93 exhibits and issued a 31 page ruling that included 10 pages of findings of fact all of which are unchallenged on appeal. State v. Fausto, No. C Order Suppressing Defendant s Breath Alcohol Measurements in the Absence of a Measurement for Uncertainty (King Co. Dist. Ct. WA 9/20/10). 4. National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward (Washington, D.C.: National Academies Press, 2009), Id. at Id. at 186 (emphasis added). 7. Id. at Id. at 116 (emphasis added). 9. Id. at Id. at 184 (emphasis added). 11. Id. at 186 (emphasis added). 12. Id. at 116 (emphasis added). 13. Id. at (emphasis added). 14. International Organization for Standardization, Guidance for the use of repeatability, reproducibility and trueness estimates in measurement uncertainty estimation, ISO/TS 21748: See, i.e., International Organization for Standardization, General requirements for the competence of testing and calibration laboratories, ISO 17025: , , and C. D. Faison, J. Horlick, W. R. Merkel, V. R. White, eds. Procedures and General Requirements, NIST Handbook 150: National Voluntary Laboratory Accreditation Program (National Institue of Standards and Technology, 2006), , , State v. Cauthron, 120 Wn.2d 879 (1993); State v. Copeland, 130 Wn.2d 244 (1996). 17. U.S. v. Yee, 134 F.R.D. 161, 181 (N.D.Ohio 1991). 18. The State Toxicologist Fiona Couper and the Lab s quality control manager had similar difficulties when they were provided different breath test results absent the associated uncertainty. 19. Paul C. Gianelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later, 80 Colum.L.Rev. 1197, 1237 (1980); Reese v. Stroh, 74 Wn.App. 550, 558 (1994). Under ER 702 Scientific evidence may be helpful and appropriate only as long as it does not mislead the jury to the prejudice of the opposing party. State v. Guilliot, 106 Wn.App. 355, 363 (2001). 20. Supra, fn Prior to this, the admissibility of breath test evidence was governed by rules enacted by the State Toxicologist,. 22. State v. Copeland, 130 Wn.2d 244, (1996); State v. Cauthron, 120 Wn.2d 879, 907 (1993); Ludvigsen, 162 Wash.2d 660, 681 (2007)(Madsen, J., concurring). 23. US v. Porter, 618 A.2d 629, 634 (D.C. 1992). 24. US v. Baines, 573 F.3d 979, 991 (10th Cir. 2009). 25. Nor does the scientific community at large. 26. See, National Research Council of the National Academies, DNA Technology in Forensic Science (Washington, D.C.: National Academy Press, 1992),44, Rod C. Gullberg, Estimating the Measurement Uncertainty in Forensic Breath Alcohol Analysis, Accreditation and Quality Assurance 11: 562, 563 (2006). 28. See State v. Keller, 36 Wn.App. 110 (1983). 29. Edward J. Imwinkelried, Forensic Metrology: The New Honesty about the Uncertainty of Measurements in Scientific Analysis Research Paper No. 317 (UC Davis Legal Studies Research Paper Series, December 6, 2012). 30. Ted Vosk, Trial by Numbers: Uncertainty in the Quest for Truth and Justice, The Champion 56, no. 10: 48, 54 (2010). 31. Justice Stephen Breyer writing the introduction to National Research Council of the National Academies, Reference Manual on Scientific Evidence, (Washington, D.C.: National Academies Press 2011), B. Black, Evolving Legal Standards for the Admissibility of Scientific Evidence, Science 239, no. 1508: 1512 (1988).. Id. 34. City of Seattle v. Clark-Munoz, 152 Wn.2d 39, 47 (2004) (quoting Ruling by District Court Panel). 16 p DEFENSE NOVEMBER 2013

17 Legal Motions Writing to persuade. BY STACEY MACDONALD A lawyer s true medium is words. It makes no difference whether those words are written or spoken. As criminal defense lawyers, we often view ourselves as trial lawyers focused on building our skills in a courtroom. But to do the most justice for our clients we need to focus on building our skills of persuasion in both the spoken and written form. We need to study and practice writing so we can succeed in writing persuasive motions. Simply finding the law and getting it written down is not good enough. As legal writing guru Bryan Garner, has written, few lawyers seem to think of their work as being essentially creative. They often think that writing well is simply a matter of finding the law and getting it down. 1 This mindset can be fatal in close cases where the decision may very well turn on the persuasiveness of your brief and thus the quality of your writing. Even when oral argument is available, many judges read briefs and make up their minds about who should win before hearing oral arguments. Furthermore, oral argument is limited in time and thus in effectiveness. Your motion, however, often arrives at the court days or weeks before oral argument and is available for reference by the judges and clerks after oral argument is completed. But even with the added time and access that judges have to written motions, they are still busy with many forces competing for their attention. It serves no purpose to submit a poorly written motion to the court. In this article I will address stylistic principles of persuasive writing Simply finding the law and getting it written down is not good enough. including brevity, simplicity, and clarity. I will also discuss how to use elements of fiction writing to make the facts sections of our motions more persuasive. Persuasion by written communication depends on the fragile relationship between writers and readers. As William Strunk and E.B. White wrote in The Elements of Style, [T]he reader [is] in serious trouble most of the time, floundering in a swamp it [is] the duty of anyone attempting to write English to drain this swamp quickly and get the reader up on dry ground, or at least to throw a rope. Houston attorney William Pannill writes that a lawyer should put the kind of effort into writing a brief that a poet or novelist puts into his [or her] art, for when [a lawyer] write[s] a brief [he or she] is a professional writer. 2 Writing is persuasive when it makes a reader s job easy. We have to be aware of our audience. Trial judges are busy handling many different calendars, cases, and obligations. To succeed in persuasive writing you have to imagine a highly skeptical, impatient reader and then ask yourself how you can grab this reader s attention and sustain it page after page. If you can make the motion easy to understand and tell an intriguing story, you will go a long way toward sustaining your audience. Stylistic principles of persuasive writing include brevity, simplicity, and clarity. As Scalia and Garner write in Making Your Case, the Art of Persuading Judges 3, The overarching objective of a brief is to make the court s job easier. Every other consideration is subordinate. What achieves that objective? Brevity. Brevity is the key precept taught in The Elements of Style: Omit needless words. Or as Strunk and White wrote: Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences This requires not that the writer make all sentences short, or avoid all detail and treat subjects only in outline, but that every word tell. 4 To write with simplicity, we must replace the academic style of writing we learned in law school with plain English. The secret of good writing is to strip every sentence down to its cleanest components. 5 Simplify. A clear sentence is not an accident. It doesn t necessarily happen in the first draft or even the third. Good writing DEFENSE NOVEMBER 2013 p 17

18 is hard work and strong revision. When writing your sentences ask yourself What am I trying to say? and Have I said it? Open any page of Walden and you will see Thoreau was a man who could say in a very simple and coherent way what was on his mind: I went to the woods because I wished to live deliberately, to front only the essential facts of life, and see if I could not learn what it had to teach, and not, when I came to die, discovered I had not lived. A plain style of writing has an added benefit, as Bryan Garner explains: If the same idea can be expressed in a simple way or in a complex way, the simple way is better and, paradoxically, it will typically lead readers to conclude that the writer is smarter. 6 To be viewed as smarter is to be viewed as credible and thus persuasive. When you focus on brevity and simplicity in your writing, you will also get clarity. But true clarity will also require a coherent train of thought. It allows the reader to easily follow along with the writer s thought process. Readers may understand individual sentences, but if they cannot see how that series of sentences hangs together, then no matter how clear individual sentences are, readers will not feel that they add up to a cumulatively coherent passage. 7 The example below illustrates the clear, concise, economical and elegant prose of then-judge Benjamin Cardozo in the facts section of his opinion in Palsgraf v. Long Island Railroad Co.: Plaintiff was standing on a platform of defendant s railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform 18 p DEFENSE NOVEMBER 2013

19 of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform many feet away. The scales struck the plaintiff, causing injuries for which she sues. 8 In this example we see economical use of words, varied sentence length, a use of the active voice making sentences easily understandable. We, lawyers, are prone to use more words than are necessary or advisable to express an idea. Avoid using any words that the reader is unlikely to understand immediately. Forget the legalese and write in plain English. Avoid using surplus words. Once your motion is written it is good to have another lawyer, or better yet a nonlawyer, read it. If a non-lawyer can read and understand your motion, it is a well-written brief. Use the active voice. It is the preferred voice for clear, persuasive writing. The major difference between the active voice and the passive voice is that in the former, the subject of the sentence acts, whereas in the latter, the subject is acted upon. A benefit of the active voice is that it is clearer than the passive voice, because it specifics who is doing what to whom. This helps with clarity in your writing. Write short sentences. The shorter a sentence is, the more the emphasis its idea will get. 9 As seen in Cardozo s fact statement in Palsgraf, short sentences aid in comprehension as they include one main thought. And to hold the reader s attention, vary Writing is persuasive when it makes a reader s job easy. the lengths of the sentences. Along with short sentences, use familiar words and not obscure or pretentious ones. Simple words can convey powerful thought. For example: Our Constitution is colorblind and neither knows nor tolerates classes among citizens. John Marshall Harlan, Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896) We can also turn to basic elements of fiction writing as guidance on how to write persuasively and tell a story in our legal motions. The basic building blocks of fiction that can assist us in creating our story are: 1. Character, 2. Conflict, 3. Resolution, and 4. Point of View. A good story is essential to a good facts section. A good story evokes emotion and brings a reader in. We should never simply rewrite what the police reports state in the facts section. This is our opportunity to bring the reader into our story, to get them to start understanding our client and the issues our client is facing. To understand how our resolution of the issue/conflict fits best. If your facts section sounds like an argument, it is likely to be dismissed as spin by our impatient and skeptical readers. Judges, like other readers, don t want to be told what happened but shown what happened. They want to become involved in the story. The bottom line is that we are inclined to believe our own conclusions, but we resist conclusions that someone else is trying to force on us. As Sol Stein writes, [L]ike fiction, nonfiction accomplishes its purpose better when it evokes emotion in the reader. We might prefer everyone on earth to be rational, but the fact is that people are moved more by what they feel than by what they understand. Stein concludes, Great orators as well as great nonfiction writers have always understood that. 10 Fiction 101 courses bombard aspiring writers with the teaching that stories all require three things: character, conflict and resolution. Stories are about characters. The characters have a goal. And as readers we want to see characters fight for their goals and we want to find out how it all ends. The goal of the lawyer is to portray the characters and conflict in such a way that the resolution the lawyer seeks fits, so the judges will naturally choose that resolution over the opposing counsel s resolution. In order to create this story, the lawyer must have enough facts. She or he must investigate and learn as much as possible about the client, and about the client s motivation and goals. In fiction, the more the reader understands and likes a character, DEFENSE NOVEMBER 2013 p 19

20 the more the reader will root for that character. Given enough facts we want to humanize our clients to the court. When we really spend the time to learn about who our clients are and their story, we will find information that can help us in how to present the client to the reader. But in those cases where are clients are just not sympathetic, we can also make the story about an ideal such as the insidious erosion of our constitutional rights when police violate the Fourth Amendment. Stories need conflict. How the writer defines the conflict defines the theme. In criminal cases some of these themes might be Man Against Machine, Man Against Institution, Man Against Powerful Entity, Man Against Leader or Man Against Self. 11 (An example of the latter would be a client charged with possession who is in a struggle with his addiction, his self.) In fiction it s all about the who, thus lawyers must learn more about their clients to breathe life into their conflict and make the cases more meaningful to the judge. This WACDL Amicus Committee WACDL s Amicus Committee files amicus curiae briefs in cases of importance to the defense bar. If you are working on a case where amicus support might be helpful, please contact one of the co-chairs of the Amicus Committee: Suzanne Elliott Lila Silverstein (206) may help whether the motion is one to suppress or to persuade the court in sentencing. What you do not want is for the judge to look at your client and not see your client as a unique individual, or for the judge to disassociate himself or herself with the control the judge has over your client and the case. The key in resolution is to make the judge want to resolve the conflict in the favor of your client. Unlike the fiction writer, here it is the judge who writes the ending of the story. No one likes to be told what to do. It s more effective for a reader to feel that they, on their own, have come to the resolution that you want. The reader is then invested in the outcome. Using the principles of persuasive writing, making it easy for the reader to understand, and telling a story assists us in bringing the reader along to a resolution that fits. When deciding which point of view to use in fiction, the question is whose story is it? Then you tell it from that viewpoint. The point of view can be: first-person (with an I or we as telling the story); third person unlimited or omniscient, where the writer is considered god like ; third-person limited like a fly on the wall; or second-person point of view, addressing a you which is sometimes the reader. In general, our motions will be told from the point of view of our clients. But that may not always be the case. Consider the circumstances of your case through the eyes of all the players: your client, the witnesses, police officers. Whose view provides the most compelling observations for the resolution you are seeking? Try telling the facts through that point of view. Writing takes hard work and practice. It is a skill that we as criminal defense lawyers must seek to master if we want to do the best for our clients. Persuasive writing takes shape only after careful study and frequent practice. What is written without effort, Samuel Jackson admonished, is in general read without pleasure. 12 Notes 1. Bryan A. Garner, The Winning Brief: 100 Tips for Briefing in Trial and Appeal Courts (New York: Oxford University Press, 1999), William Pannill, Appeals: The Classic Guide, Litigation 25, no. 2:6-7 (1999). 3. Bryan A. Garner and Antonin Scalia, Making Your Case: The Art of Persuading Judges (St. Paul: Thomason/West, 2008), William Strunk Jr. and E.B. White, The Elements of Style, 3rd Edition, William Zinsser, On Writing Well: The Classic Guide to Writing Nonfiction (New York: HarperCollins, 2001), Bryan A. Garner, A Dictionary of Modern American Usage (New York: University of Oxford Press, 1998). 7. Joseph M. Williams and Gregory G. Colomb, Style: Ten Lessons in Clarity and Grace, 6th ed. (Longman, 1999), Palsgraf v. Long Island Railroad Co., 248 N. Y. 9, 162 N. E. 99 (1928). 9. Paul Marx, The Modern Rules of Style (American Bar Association, 2007), Chpt Sol Stein, Stein on Writing: A Master Editor of Some of the Most Successful Writers of Our Century Shares his Craft Techniques and Strategies (New York: St. Martin s Press, 1995), Brian J. Foley and Ruth Anne Robbins, Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Facts Sections, 32 Rutgers L. Rev. 2, Bryan A. Garner, Legal Writing in Plain English: A Text with Exercises (Chicago: University of Chicago Press, 2001), p DEFENSE NOVEMBER 2013


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