Monthly Archives: June 2012

Now Offering CLE for Oregon Attorneys

By Jason Castillo, Director of Legal Education

We are extremely pleased to now be offering CLE courses for attorneys in Oregon.  Oregon attorneys will now have access to many of our best courses – from email in litigation to writing for the trial court.  And Oregon attorneys may fulfill all 45 units with Attorney Credits online and offline courses.

“This could not be more easy – click! ” – Albert (El Monte, CA)

As part of CLE Your Way, we also offer a number of different media formats for Oregon attorneys to complete the required CLE units before the December 31 MCLE deadline.  If you would like to study online we offer both streaming audio and video.  If you prefer to study offline we offer both MP3 and downloadable video courses.  We also offer MP3 players and USB Drives that come pre-loaded with all 45 CLE credit hours.  Further, we feature a number of specialty courses in legal ethics, access to justice and mandatory statutory child abuse reporting.[1]

Oregon attorneys must attain 45 credit hours every three years.  See below for more information on the Oregon MCLE requirement.

Specialty Requirements:

  • General – 36 hours
  • Legal Ethics – 5 hours
  • Child Abuse Reporting Obligations – 1 hours
  • Access to Justice – 3 hours (alternate reporting periods)

Compliance Requirements:

  • Reporting Cycle: 3 years
  • Compliance Deadline: 31-Dec
  • Reporting Deadline: 31-Jan

State Bar MCLE Website:

If get started now on your MCLE you have plenty of time until the December 31 deadline.  Since your courses are online, you may take Attorney Credit’s courses twenty-four hours a day, seven days a week.  You may also access your courses from any home or office computer, tablet, smartphone – or any other modern electronic device with a Internet connection.

Choose from the following specialty courses:

To view our Oregon course list click here.

To view our one-click 45 uint state bundles offered in Oregon click here.

To view our Testimonials page click here.

For more information on the Oregon MCLE requirements click here.


[1] The Oregon MCLE rules require that attorneys complete forty-five hours of approved continuing legal education activities in each 3 year reporting period.  See Oregon MCLE Rule 5.5(b) for more details.

Bias … or Just Mistaken Identity?

Guest post by Myer Sankary

Foreword by Jason Castillo

We recently had the pleasure of working with attorney and mediator Myer Sankary to produce an incredibly excellent course on bias in the legal system.  In addition to being a full time mediator, Mr. Sankary has had the privilege of studying with renowned neuroscientists around the world on the subject of bias.

We videotaped Myer’s course a little over a month ago and we have already received a number of incredibly positive comments about the course.  Myer also had a viewer email him in regards to a case example he used to illustrate how bias plays out in the legal system.  The case example involved Ronald Cotton, an African American man who was wrongfully convicted of murder.  The viewer posed the following question:

Question: How is the Cotton case a study in BIAS, instead of mistaken identity?

I wanted to include Myer’s response for our readers who have viewed the course or anyone interested in the subject.  Myer’s response is very insightful and articulate, and I think it does a great job of framing and discussing the issues of bias in the legal system.  Below is Myer’s response:

You have posed an excellent question about the Ronald Cotton conviction.  Wasn’t it just a matter of “mistaken identity?”  Yes, indeed it was about mistaken identity.  The witness, Jennifer Thompson, made a dreadful mistake in identifying Cotton in the photo array, at the lineup, and then in court – at two separate trials.  After Cotton was in jail over 10 years (serving a life sentence for rape and robbery) it was conclusively proven by DNA tests that Cotton could not have been the person who raped Thompson How is this possible that an innocent man could be convicted in a North Carolina court and sent off to serve a life sentence?  What lessons can we learn from this case so it won’t happen again?

To begin my answer, it is important that you hear from the witness herself about how she came to become so confident that Cotton was the perpetrator.  You can see an interesting videotape of Jennifer and Ronald Cotton, along with the chief of police who investigated this case at the Innocence Project website: http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php  You will hear how the photo identification was made and then how Thompson chose Cotton in the lineup.  There is also a very interesting comment from Cotton who graciously acknowledged that it was just a case of “mistaken identity!” 

It is my contention that none of the players in this drama were fully aware of how their biases influenced the outcome of Cotton’s double conviction. Advances in social psychology reveal how this case is a study in bias and not simply mistaken identity.  To support my contention I refer to two authoritative sources by a number of well respected social scientists.  The first is an insightful book by Tavris and Aronson, called “Mistakes Were Made (but not by me); Why We Justify Foolish Beliefs, Bad Decisions and Hurtful Acts,” (Harcourt 2007) Chapter 5 is called “Law and Disorder” and details how preconceived commitments (biases either express or implied) to the guilt of a defendant by witnesses, investigators, prosecutors, judges, juries and even some defense attorneys lead to the conviction of innocent defendants.  Another important resource is the work of a team of noted social scientists found at www.implicit.harvard.edu which I mentioned in my presentation.  Research has shown that people are unaware that there is a type of bias that the person in position of power does not even know influences their decision – this is known as “implicit bias” and is revealed by the implicit association test which has been administered to substantial numbers of persons online.  This means that if you were to ask the investigator, the prosecutor, the judge, the jury or the witness if they had any bias against Ronald Cotton because he was a young black man, they would all vehemently deny such a claim and would more likely be offended by anyone who might accuse them of such behavior.

In this case, Thompson the witness was sure that Cotton was the perpetrator. Her decision to select Cotton from the photo array was biased by the investigator and the process used.  They should have given her several arrays that did not include Cotton, the person the investigator suspected of the crime.  Instead, Thompson was given a limited number of photos to choose from, all black men, including Cotton. When she chose Cotton, the investigator confirmed that he thought Cotton was the guilty party.  When she picked him out of the lineup, again the investigator who conducted the photo selection, conducted the lineup, and confirmed that she picked the right man. When Thompson testified, she was confident that she had accurately identified the perpetrator (because of the encouragement of the investigator).  The investigator meanwhile was aware of the possibility of another perpetrator of similar appearance, but was now convinced that Cotton was the guilty party because Thompson was so sure.  The investigator  was unaware that he was the  reason the witness was so sure.  When the real perpetrator confessed to his cellmate that he committed the crime, and a second trial was ordered for Cotton, Thompson again was sure it was Cotton and not the real guilty perpetrator.  This is called confirmation bias. Once she made a decision that this was the perpetrator, the victim was not willing to consider any other person could be guilty. Our brain functions to compel us to find reasons to support our commitment to our first decision. particularly when the commitment is open, voluntary and public (her testimony at trial was a public commitment) – that Cotton was the perpetrator. 

The victim had several biases operating to identify the wrong perpetrator. (She is white, the perpetrator was black)   But more importantly, the bias of the investigating officers affected their handling of the photo array and the lineup.  Believing that they had the perpetrator, and unwilling to consider any other possibility, they skewed the information provided to the victim who was guided to select the person the investigators believed to be the perpetrator.  Bias of the investigators also led them to disbelieve Cotton’s confirmed alibis.  The prosecutor’s bias also came into play – accepting without critical review the conclusions of the investigators and the biased witness.  At the core of all this was the fact that Cotton was black and the victim was white, a higher than normal likelihood that he would be convicted in that jurisdiction at that time.  Bias contaminated the judicial process throughout – probably including the jury who were more likely to convict an innocent  black man in that county in North Carolina in the 1980’s than believe in the possibility of his innocence.  This is the important lesson from this case.  If we believe it was just a case of mistaken identity, we will not address the underlying reality of flaws in the judicial system. 

Bias occurs when we have a predisposition to the way things are in our set of experiences and values influenced by our environment. Here, the facts were a victim of the biases of those in charge of the system.  No one was willing to review the case objectively and to ask whether Cotton’s story could be true – they had formed their conclusion that he was guilty based on preconceived notions about the behavior of a young black man.  To compound everything, when the real perpetrator confessed to the crime and a second trial was held, the victim again because of bias would not accept the fact that someone else confessed to the crime, and she became more committed to her mistaken belief that Cotton was guilty and wanted to see him punished.  She was outraged that Cotton was trying to claim his innocence by pointing to someone else who confessed to the crime.  When you read the facts of the case and particularly the victim’s recantation after she was faced with the reality of DNA evidence that Cotton could not have been the perpetrator, and the DNA of the real perpetrator was confirmed, she had to realize that she should have done things differently.


Believing that this was just a case of  ”mistaken identity” is not a sufficent explanation for the results in this case. It is only a surface explanation which can be excused.  We will not learn about how such grievous wrongs are perpetrated if we do not realize that it is bias, expressed or implied, that influences those who were responsible for the legal system .  If the perpetrator were white, or if Cotton had no alibi, or if he had been seen in the area at that time by other reliable witnesses, one may excuse the conviction based on mistaken identity.  But mistaken identity in this case was a product of bias.  For more details and information about mistaken identity as a main cause of about 75% of wrongful convictions of innocent defendants, visit www.innocenceproject.org.  

I hope this case stimulates thinking and discussion about how we can recognize and manage bias that affects all the participants in the legal system.  

– Myer Sankary

 

You can access Myer’s course — Elimination of Bias in the Legal System — by clicking here.

Juror Privacy … Or a Fair Trial?

By Jason Castillo, Director of Legal Education

There is a major conflict brewing in our American legal system.  The conflict pits the electronic privacy rights of jurors against the Sixth Amendment and the right to a fair trial for criminal defendants.  And last week a California Appeals Court decision bolstered the Sixth Amendment – while possibly undermining the SCA and juror privacy.[1] 

In Juror Number One v. Superior Court (Royster) a Third District Court of Appeal panel ruled that a juror who wrote on his Facebook page about the criminal trial must consent to having his online postings turned over to the trial judge for review to determine whether his misconduct was prejudicial against the defendant.  Juror No. 1 argued unsuccessfully that the compelled consent to the release of his Facbook postings violated his Fourth & Fifth Amendment rights, as well as the Stored Communications Act (SCA).  The SCA is a federal law that limits government access to online communications.

Many commentators believe that the Third Circuit’s decision is the first of its kind.  In reaching the decision the Third District reasoned that the SCA only protects third parties like Facebook from being compelled to disclose information such as Juror No. 1’s postings.  Therefore, Juror No. 1 has no protections under the statute. Many privacy advocates claim that this ruling violates the spirit of the SCA – a statute Congress enacted “to fill a gap in the protections afforded by the Fourth Amendment.”[2]

“With smartphones and mobile devices now ever present in our society, jurors around the country simply can’t resist Google mapping the crime scene or updating their Twitter and Facebook accounts with information about the trial.”

However, it does seem as though many jurors have a problem resisting the urge to tweet, blog and Facebok facts and opinions about their case.[3]  Frustrated judges around the country have watched numerous trials compromised by juror’s electronic misconduct.  These judges have turned tried a few different actions to try and preserve defendants Sixth Amendment rights – including contempt findings, confiscating smartphones and enhanced jury instructions.

The Third District’s ruling may present California judges with a new opportunity during jury instructions to warn jurors not to post to social media websites during trial, and that if they do their writings may be subject to inquiry.  But will this be enough?  New York recently amended its jury instructions to advise against electronic communications in criminal cases, but these provisions do not necessarily apply in civil cases.[4]

“… the extent of Juror Number One‟s ‘legitimate expectation of privacy’ under the Fourth Amendment would depend on the extent to which his wall postings are disseminated to others or are available to Facebook or others for targeted advertising.” – Justice Hall

The court dismissed the Fourth Amendment claims because Juror No. 1 had no “legitimate expectation of privacy in the records.”  While many privacy advocates feel this ruling unfairly intrudes into a juror’s privacy and the SCA, the defendant’s Sixth Amendment right to a fair trial trumps these minor instrusions.[5]  Further, if Juror No. 1 did not want the government delving into his electronic affairs he should have listened to the jury instructions – and stayed off Facebook!

I previously blogged about this case back in April (See: Should One Facebook Post Merit a New Trial?)


[1] The appeals court concluded that the juror’s “privacy rights do not trump [the defendant’s] right to a fair trial free from juror misconduct.”

[2] Juror Number One v. Superior Court (Royster).

[3] See Commonwealth v. Werner, 2012 Mass. App. LEXIS 183 (Ct. App. Mass 2012) (new trial denied without waiting for Facebook to respond to subpoena); People v. Wilson, 93 AD 3d 483 (1st Dept. 2012) (juror made Facebook postings advising she was on a jury and her friends made “foolish” replies relating to trials in general but juror said she was not affected by these comments and decided the case impartially).

[4] See CPL §270.40, Rev’d Jury Admonitions, (Rev’d May 5, 2009) (revised to include warning regarding use of electronic devices).

[5] Further, you would have to be a fool to think you have privacy in a social network in today’s day and age.  There is almost no reasonable expectation of privacy for things you post online.