Friday, November 15, 2019

In defense of the defense lawyer

Yours truly (L) with Terry Rose (R); photo by Leo Martin

In Wisconsin, possession of child pornography carries with it a three year mandatory minimum sentence.  In other words, when the statute applies, the judge must put you in prison for at least three years upon conviction for possessing a single image.  (Yes, the legislature usurped the much-hyped “judicial discretion” in sentencing.)  And actually, you don’t even have to “possess” the image or even have it on your computer’s hard-drive!  Merely seeing the image on the web could be enough to lock you up in the state pen.  It’s a good thing, therefore, that mere child nudity might not be enough to constitute child pornography.  If it was, then every mother with a picture of her kid taking a bubble bath would be guilty and sentenced to prison.  And every major cable network would be guilty of distributing child porn for showing the movie Pretty Baby, starring a 12-year-old Brook Shields who played a child prostitute and appeared naked in the film. 

In a recent criminal case in Kenosha, my fellow criminal defense attorney Terry Rose got a child porn case dismissed on those very grounds: the image allegedly possessed by the defendant did not constitute child pornography.  This upset some Kenosha residents who took to “social media” to condemn Terry and express their uninformed and dangerous opinions.  I’ll address their specific complaints below, while incorporating some basic lessons about our criminal justice system. 

Friday, November 8, 2019

Former prosecutor doesn’t like the burden of proof

David Lat, a former prosecutor, has weighed in on the Dan Markel murder trial.  For those who don’t know about the case, Markel was a law prof at FSU who got into a nasty divorce and child custody battle with his wife.  There was plenty of vitriol flying in both directions.  And when Markel was shot point-blank in the head while pulling into his garage, the police suspected the wife’s family of setting up the hit.  For those who enjoy true crime, the podcast Over My Dead Body did an excellent job covering the case.  (Click here and scroll down to season one, called Tally.)  I found everyone involved in the saga to be very unlikable, yet I couldn’t stop listening to the podcast and, in fact, listened twice.

Tucker Carlson, Roger Stone, and Judicial Bias

In a recent episode of his evening talk show, Tucker Carlson used the Roger Stone case to shed some light on the inner workings of our criminal justice system.  Tucker’s analysis was very informative; however, his viewers should know that the legal absurdities he identified aren’t limited to Federal judges gunning to take down Trump’s supporters.  Instead, the problems he exposed are ingrained in our state courts as well, and they are ruining the lives of ordinary Americans in run-of-the-mill cases.

Sunday, September 22, 2019

Another Wisconsin judge misunderstands hearsay


In State v. Yost (decision here, On Point summary here), the defendant allegedly committed disorderly conduct, inside a jail, by his manner of speech, i.e., a speech crime.  One jailhouse inmate testified the defendant said X.  The defendant called his own eyewitness to the crime, another jailhouse inmate, who was prepared to testify that he was there at the time and didn’t hear the defendant say X.

Some privacy, please


Not for me, but for you.  I’m talking to you three: Megan Fox, some dude named Mark Ronson, and the actor who plays the (really) dorky character on Silicon Valley.  If you three could be a little more private with the intimate details of your personal lives, that would be great for me (and for your children and spouses). 

Wednesday, September 18, 2019

Wisconsin’s post-Trammell burden of proof: links, strategies, and updates


This is a reminder to Wisconsin’s criminal defense lawyers to continue to litigate the JI 140 issue, even after SCOW’s decision in Trammell.  Although SCOW refused to reverse defendant Trammell’s conviction, the Trammell majority was very clear: “The circuit court has the authority to modify the language [of JI 140], and the comment to the jury instruction even provides optional language.” Trammell, ⁋ 23.  Consistent with SCOW’s reminder, trial judges throughout the state are, in fact, continuing to modify JI 140, even post-Trammell. 
                                                                                             
Toward that end, I have drafted a request to modify JI 140 that I use in all of my trials.  It includes, as Exhibit A, a proposed, modified instruction that eliminates the truth-not-doubt mandate.  It also includes, as Exhibit B, an alternative proposal which is less than ideal but still better than the current JI 140.  All Wisconsin lawyers are free to use parts of it or the entire document—no attribution is necessary as far as I am concerned.  Just go to the JI 140 resource page and scroll to the very bottom.  It is in MS Word format and is titled “POST-TRAMMELL request to trial court to modify JI 140.”  

Saturday, August 24, 2019

Bar Meetings: Drinking Tips from an Expert

Back in the early years of my law practice, a group of Kenosha lawyers used to gather on Wednesdays after work for the weekly Bar Meeting, i.e., a meeting of the bar at a bar.  Our group was comprised of criminal defense lawyers and others generally interested in protecting individual rights and liberties from the government’s ever-expanding reach.  Unfortunately, these meetings dwindled and eventually disappeared, I think, because lawyers began to get older and marry and do other things. 

I’ve never understood why a member of the criminal defense bar would want to go on weekend jaunts to Bed Bath & Beyond, do home-improvement projects, go on vacations, read to their children, or do whatever else married people are supposed to do.  But to each of us, his or her own, I suppose.  In any case, children get older and marriages inevitably crumble, so maybe it’s possible to bring back the weekly Bar Meeting.  Toward that end, I came upon these drinking tips from a true expert on the subject, Christopher Hitchens, in his book Hitch 22: A Memoir.

A Lawyer Dog in Training

Photo by Brenda VanCuick
Recently, in Louisiana, when the police were interrogating a suspect, the suspect invoked his right to counsel by telling the interrogator, “Just give me a lawyer, dogg.”  The court — twisting and contorting plain language and basic legal principles to reach its predetermined outcome, as courts are known to do — found that such language was not an invocation of the right to counsel.  The interrogator simply would have no way of knowing whether this suspect was asking for “a lawyer, dogg,” or a “lawyer dog.”  One writer for WaPo observed: “It’s not clear how many lawyer dogs there are in Louisiana, and whether any would have been available to represent the human suspect in this case[.]”

Saturday, August 17, 2019

Reasonable Doubt and Relativity, 76 Wash. & Lee L. Rev. __ (forthcoming, 2019)

The empirical evidence demonstrates that, when left undefined and unexplained, the proof beyond a reasonable doubt (BRD) standard offers no more protection than the two civil burdens of proof.  I therefore hypothesized, in a California article in 2017, that BRD jury instructions should define the phrase in the context of the lower burdens of proof, i.e., on a relative basis.  That way, the jury can appreciate just how high the BRD standard actually is.  In this new study turned article, Reasonable Doubt and Relativity, I empirically tested my hypothesis.  This article could be helpful to the Wisconsin Criminal Jury Instruction Committee which, at the request of two SCOW justices, is revisiting our state's jury instruction which completely fails to define or explain the concept of proof beyond a reasonable doubt (and instead focuses only on reasonable doubt, in a very pro-prosecution manner).  You can find a draft of my new study-turned-article on SSRN.  You can also see the article, and all of my articles organized by topic, on my website.  You can learn about the Washington & Lee L. Rev., and read other W&L articles here.  The abstract of Reasonable Doubt and Relativity is posted after the jump.

Combating Judicial Misconduct: A Stoic Approach, 67 Buffalo L. Rev. __ (forthcoming, 2019)

The defense lawyer who steps into court assuming the judge will be competent, even-tempered, and unbiased does his or her client a tremendous disservice.  Read about unethical judges, the problems they pose for the defense, and how the defense lawyer can deal with them in my new article, Combating Judicial Misconduct: A Stoic Approach.  You can find a draft of the article on SSRN.  You can also see the article, and all of my articles organized by topic, on my website.  You can learn about the Buffalo L. Rev. and read other Buffalo articles here.  The abstract of the article is posted after the jump.


Constraining Strickland, 7 Texas A&M L. Rev. __ (forthcoming, 2020)

When a defense lawyer makes a mistake at trial, he or she is blamed for it and is subject to Strickland's ineffective assistance of counsel test.  When a prosecutor cheats or a judge is incompetent at trial, guess what?  The defense lawyer is blamed for not monitoring the prosecutor or doing the judges job for him!  Despite their ethical duties and constitutional obligations to the defendant, the prosecutor and judge skate free, leaving the defense lawyer holding the bag for failing to do three jobs in one: his or her own, the prosecutor's, and the judge's.  Read about this absurd Strickland procedure, and how it should be constrained, in my new article Constraining Strickland.  You can find a draft of the article on SSRN.  You can also see the article, and all of my articles organized by topic, on my website.  You can learn about the Texas A&M L. Rev. and read other Texas A&M articles here.  The abstract of Constraining Strickland is posted after the jump.

Improvident Prosecutions, 12 Drexel L. Rev. __ (forthcoming 2019-20)

In Improvident Prosecutions, I demonstrate the numerous flaws with Wisconsin's preliminary hearing process.  (Prosecutors, and especially judges, should be embarrassed by these.)  I also give the state legislature a blueprint on how to fix these problems.  (Take action, please; I've done the work for you.)  You can find a draft of the article on SSRN.  You can also see the article, and all of my articles organized by topic, on my website.  You can learn about the Drexel L. Rev. and read other Drexel articles here.  The abstract of Improvident Prosecutions is posted after the jump.

Wednesday, August 7, 2019

Ignorance of the law is no excuse (unless you’re a prosecutor)


In this hot-off-the-presses case of State v. Smith (court decision here, On Point summary here), a Wisconsin prosecutor made an improper closing argument to the jury in an effort to win a conviction.  In a “sarcastic” and “belittling” manner, the prosecutor criticized the role of defense lawyers (in this case, public defenders) and also attempted to shift the burden of proof to the defense.  (These are two of the sleaziest, yet most common, tricks in the prosecutor’s bag.)  Then, on the defense lawyer’s motion, the trial judge declared a mistrial.  However, despite the prosecutor’s misconduct, the state was allowed to retry the defendant.  But why?  And how can defense lawyers prevent this from happening in the future?

Saturday, July 27, 2019

Redrafting the preliminary-hearing waiver form

I currently have an article under submission to the law journals that is titled Improvident Prosecutions.  It exposes the various preliminary hearing scams perpetrated by Wisconsin’s prosecutors and judges, and gives interested legislators a roadmap to correct these prosecutorial and judicial abuses.  Once the article is accepted for publication, I’ll post it to SSRN and my website and will notify The Dog’s readers via a new blog post.  But until then, I thought I’d take a shot at redrafting the state’s (or at least Kenosha County’s) preliminary-hearing waiver form.  Given the current prosecutorial practice of using a reader-witness, explained below, the old waiver form is no longer accurate and poses problems for defense lawyers whose clients are thinking about waiving the preliminary hearing. 

Wednesday, July 3, 2019

Just Fly It

Photo by Eric Olson
Celebrate this American holiday by exercising your First Amendment right to free speech -- unless you're studying or working on a college campus, attending an after-hours bar association event, or slaving away in corporate America.

Fortunately, I don't do any of those things.

Happy Fourth of July, everyone!