Sunday, June 21, 2020

The Police: Systemic Crookedness and Systemic Stupidity

In calling for defunding of the police, many Democrats claim—usually without argument—that the police across our country are “systemically racist.”  Instead of trying to convince us of this claim, proponents just condemn or shout-down anyone who dares to question it.  But outside of fantasy land, this claim is a nonstarter.  In other words, there’s virtually no chance of it being true.

First, there are dozens if not many hundreds of police departments in every state, and every department is different.  Therefore, it would be one thing to point to a specific, department-wide practice, and then argue that the particular department employing the practice is systemically racist.  But even if you could make such a case without further evidence, it says absolute nothing about “the police,” i.e., the other 99.99 percent of police departments across the country. 

Second, the individual police departments under fire right now are nearly always under the control of Democratic police chiefs, mayors, and governors—and in many cases these bureaucrats and politicians are themselves black—which makes this Democratic claim of systemic racism even more bizarre.  If the police department in Minneapolis, for example, is systemically racist, then voters should not reelect the Democratic “leadership” that is crying about systemic racism. 

But all of this focus on systemic racism is detracting from a real problem.  Regardless of your race, when it comes to your individual rights the police are systemically crooked.  They are literally trained, often by national consultants and trainers, to lie, cheat, and bully their way to get what they want at your expense.  When it comes to the laws that protect your rights, the cops are literally trained to be lawless.  This is a true systemic problem (in which prosecutors and judges are complicit), and it affects all of us.

Saturday, June 13, 2020

Bullying, intimidation replace reasoned debate in the “fake news” media

Trump (Public Domain)
Why would anyone read the New York Times (NYT) ever again?  It no longer maintains even the pretense of being a newspaper.  Instead, it has joined the mob.

The paper recently published an Op Ed by U.S. Senator Tom Cotton arguing for Trump's use of troops to quell mass rioting across the country.  This is a response supported by the majority of registered voters and something previous presidents have done under the Insurrection Act. 

But instead of responding to this Op Ed with argument and debate, the NYT employees responded like tantrum-throwing children in what has been described as an "open revolt."  The staff flew into a moral outrage, as they are highly offended by any ideas that deviate even slightly from their leftist thinking.  Such ideas make them feel "unsafe."  The end result was that the NYT Opinion Editor promptly resigned under intense pressure from the mob.

Monday, June 8, 2020

Where is #MeToo in all of this chaos?

Oddly, in the wake of massive rioting, property damage, injuries, and even deaths in Democratic-controlled cities across America, there is a lot of discussion about reduced funding for, and even de-funding of, police departments. 

Now, few people have been as critical of the police as yours truly.  I’ve written a book titled Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights.  And all of my books, entirely or at least in part, have been very critical of the police.  But de-funding the police is an idea that’s so ridiculous even the hyper-liberal, floppy-haired Mayor of Minneapolis can’t get behind it.  (Watch this video to see the absurdity of it all.) 

Tuesday, June 2, 2020

Getting tough with UW and Wisconsin’s Jury Instruction Committees

Knightly studies copyright law
I’ve long complained that eleven sitting Wisconsin judges write our criminal jury instructions (JIs) and then somehow take and transfer a copyright in those JIs to the University of Wisconsin (UW), which then turns around and sells them back to us after we’ve already paid the judges’ salaries!  Worse yet, we lawyers have to pay annual update fees or the instructions quickly go out of date.  As I wrote in a recent blog post, I don’t think this is legal:

The “government edicts doctrine” states that court decisions and even “non-binding, explanatory legal materials are not copyrightable when created by judges who possess the authority to make and interpret the law.” (Georgia v. Public ResourceP. 4.)

Now, the UW-JI Committee gravy train could be coming to an end.  A non-profit California group called Public Resource just wrote a letter to the JI Committee members and UW stating this:

Thursday, May 28, 2020

Are multiple race-related investigations a problem in the George Floyd case?


Everyone knows the story by now.  A Minneapolis cop subdued an arrestee, George Floyd, and kept his knee on Floyd’s neck for an extended period of time, allegedly despite Floyd’s protestations that he couldn’t breathe.  Other cops stood by and watched.  Soon thereafter, Floyd died, presumably of suffocation.  Few people are surprised that the incident caused protests, which turned into riots and looting, which in turn caused many millions of dollars in property damage and at least one death.  While the riots and looting are nonsensical, such criminal behavior grew out of the protests which, it appears, were rooted in claims of racism.

Based on this, politicians and multiple levels of law enforcement were quick to jump into the mix, declare not only the cop’s guilt but also his racial motivation, and then kick-start their investigations.  There’s even a federal probe into this alleged homicide, which is normally a routine state matter.  But could all of the mayhem and millions of dollars in damage have been avoided if, instead of launching an investigation, the local Minneapolis prosecutors simply treated this case like a run-of-the-mill homicide? 

Sunday, May 17, 2020

Wordplay: How the Government Uses “Truth” and “Science” Against Us


As a criminal defense lawyer, I’ve seen government wordplay designed to violate our rights and take our freedoms.  For example, before a jury may convict a defendant of a crime, the government must prove guilt beyond a reasonable doubt.  Yet, instead of simply instructing juries on this burden of proof, the prosecutors-turned-judges who comprise Wisconsin’s jury-instruction committee drafted a statewide instruction that concludes by telling jurors: “you are not to search for doubt. You are to search for the truth.”  Prosecutors then parrot this language during closing arguments to the jury.  

Sounds good on its surface, doesn’t it?  Who doesn’t want “the truth”?  It’s like when the government names something “the Patriot Act” or calls itself “the Department of Justice.”  The citizenry shouldn’t question what’s going on beneath the surface; the label tells us everything we’re supposed to know.

But it’s rarely that simple.  

Saturday, May 9, 2020

How is Wisconsin able to copyright its criminal jury instructions?

I’m familiar with Wisconsin Criminal Jury Instructions (JIs) partly because I’ve advocated for reforming one of them: JI 140 on the burden of proof.  I’m also familiar with the JIs because I’m a criminal defense lawyer and I’m required to use them in every single jury trial.  Trial court judges adopt them verbatim nearly 100 percent of the time.  And except for a single jury instruction (JI 140) out of hundreds of instructions, I’ve only rarely seen a trial court judge modify them.

But I’m also familiar with the JIs because I have to pay for them every year.  And thanks to some clever marketing by the seller, most lawyers have to buy both the digital version for use in court and the print version for research purposes.  Why?  Because the seller includes valuable notes and commentary in the print version but not in the digital version.  Conversely, the digital version is needed so the instructions can be tailored for in-court use.  The cost is $235 for the print version and $210 for the digital version.  Once you buy them, however, the expenses are just beginning.  There are recurring annual update costs for each, which can run one or two hundred dollars per year.  (This is, admittedly, less than the initial outlay of $445.)

I’ve always wondered why we have to pay for JIs when they are written by a committee of sitting trial court judges.  We’re already paying the judges’ salaries with our tax dollars, so why do we have to pay for their labor on jury instructions as well?  I’ve asked this question several times of several people over several years, and no one seems to know the answer.  Well, it turns out the answer may have been settled back in 1834 and affirmed again in 1888.  And it’s bad news for those who claim copyright in the JIs and sell them to us for a profit.

Wednesday, April 29, 2020

“Fake news” can have multiple, tasty layers [Updated below]

Trump (public domain)
As I wrote in my last post, I’ve been reading and watching more news thanks to the shut-down, and I’ve come to appreciate Trump’s complaint that the media produces “fake news.”  A great example is Trump’s recent touting of Hydroxychloroquine as a possible treatment for the Chineese / Wuhan / Covid-19 Virus (“the Virus”).  After allegedly seeing one of the President’s press conferences, a guy in Arizona took cholorquine.   He died, and the media was all over it, giddily reporting that Trump was defying the medical experts, that he was dispensing medical advice, and that the man (an alleged Trump supporter) took Trump’s recommended drug and died.  One of my favorite headlines read as follows: “Arizona man dies after attempting to take Trump coronavirus cure.”  (You can find a montage of similar news headlines in this video clip.)  Now, this was obviously fake news from the get-go.  Here’s the top layer:

Friday, April 24, 2020

Trump-haters giddy over new Hydroxy study, except . . .

Trump (public domain photo)
With more time on my hands thanks to the lock-down, I recently subscribed to the Washington Post.  I won’t be renewing.  WaPo, like CNN and numerous other “news” outlets, is obsessed with a prescription drug called Hydroxychloroquine (“Hydroxy”).  Why?  Because Trump touted it as a possible treatment for the Chinese / Wuhan / Covid-19 Virus (“the Virus”).  It’s a drug that’s so old it’s available in generic form and therefore is cheap, has been used for malaria, is currently used for arthritis and other ailments, and was even used to treat SARS.  It also has few side effects, and can even be used by pregnant women.  Trump was very enthusiastic about the drug, but also somewhat guarded, describing it as “encouraging” and “exciting” and saying it “could be a game-changer but maybe not” and “we really hope” this is going to work as we move toward a vaccine.  Nor did Trump pull the drug out of thin air: doctors were already prescribing Hydroxy for the Virus in other countries and even in the U.S.  (Remember, this is a prescription drug; individuals can’t run out and buy it at the local pharmacy.)  And there was even a published French study showing its benefits.  

Saturday, April 11, 2020

Under the Gun: Plea Bargains and the Arbitrary Deadline, 93 Temple L. Rev. __ (2021)

Check out my new article, Under the Gun: Plea Bargains and the Arbitrary Deadline, 93 TEMPLE L. Rev. __ (forthcoming, 2021) on SSRN or my website.  You can read the abstract after the jump:

Tuesday, March 31, 2020

Paul Campos on the evolution of law schools and their professors

Knightly studies the law

This excerpt is from a larger blog post by Paul Campos.  Campos, of Inside the Law School Scam fame, first takes aim at a typical law school professor.  I don’t know this particular prof or his work, but from what I know about the academy, Campos’s target is indeed the prototypical, modern law prof.  Campos writes:

[His] career path is this: he was an undergrad, then he was a law student, then he was a law professor. That’s it. That’s all he’s ever done. He’s never had a job as a lawyer, or indeed as anything but a professor, at least not as an adult anyway.

But it wasn’t always that way at American law schools.  There was a time, before I went to law school, where law profs had actually practiced law before joining the academy to teach.  And law schools embraced their role as professional schools or trade schools — much the way medical schools do. 

Thursday, March 26, 2020

Speaking and Writing Tips from The Legal Watchdog

Being stuck at home has caused me to watch more TV than I usually do.  This, in turn, has exposed me to more talking heads than usual.  And this has given me the opportunity to compile a list of things that everyone should immediately stop saying.  Plus, there's a bonus tip for writers:
1.  As a general rule, don't begin sentences with "so."
2.  Stop asking whether you're "right?" in the middle of a sentence or even between sentences.
3.  Don't overuse the word "space."  E.g., you are not a leader in the fashion space; rather, you are a leader in the fashion industry.
4.  Stop trying to start a "national conversation" or "raise awareness."  Find new labels to exaggerate the scope of your endeavors.
5.  Don't begin a new point with "that said" or "having said that."  It's a sure sign you're about to contradict yourself and it makes me want to punch you. 
6.  Stop saying "again" as a preface to sentences.  Often, the information that follows isn't even repetitive.  And if it is, stop repeating yourself.
7.  Don't say "not to mention" before you mention the thing that you just said you weren't going to mention. 
8.  Don't say "it goes without saying."  Because apparently it doesn't.  See also #7. 
9.  Things don't center around other things, they center on other things; they do, however, revolve around other things.  E.g., The President’s existence doesn't center around the Corona-Chinese-Wuhan-Covid19 virus; it revolves around it, or centers on it.
10. Don't "reach out" to me.  Call, email, or put a letter in the U.S. Mail.
11. BONUS WRITING TIP: On a related note, always use your Oxford comma. See, e.g., #10 and #12.
12. Stop referring to someone's position, claim, or argument as a "narrative."

This public service has been brought to you by Knightly.

Wednesday, March 18, 2020

The Great Divide

I saw an exchange during Trump’s press conference today on the Corona virus that is emblematic of the divide in politics.  I realize that if Christopher Hitchens was still alive, he’d be the first to correct me: “Politics is division by definition, if there was no disagreement there would be no politics.”  But I’m talking about a new divide—call it the great divide.

Monday, March 2, 2020

Deal Jumpers


Wisconsin judges are allowed to accept a defendant's plea pursuant to a plea agreement, then disregard the state's sentence concession that induced the defendant to plead in the first place, and then slam the defendant with any sentence the judge wishes to impose.  Worse yet, the hapless defendant is left without recourse.  

This is one of those things to which we criminal defense lawyers in Wisconsin get conditioned, yet is surprising to many outsiders.  Read all about it, including how defense lawyers might be able to constrain this insidious practice in certain circumstances, in my new article Deal Jumpers, 2021 U. Illinois L. Rev. __ (forthcoming, 2021).  You'll find the abstract after the jump.  You'll find all of my articles on the articles page of my website.

Saturday, February 1, 2020

How Cozy is Wisconsin’s Jury Instruction Committee with State Prosecutors?

The law — whether a crime such as “possession of marijuana,” the burden of proof to be applied by the jury, or the meaning of key legal terms such as “intent” or “possession” or “knowledge” — is defined by jury instructions.  For example, despite the label we put on the prosecutor’s burden of proof in a criminal case, the burden is only as formidable as the jury instruction the trial judge reads and submits to the jury.  To demonstrate this point, while a North Carolina prosecutor and a Wisconsin prosecutor must, in theory, both prove their cases “beyond a reasonable doubt” to win convictions, consider the dramatic differences between the two states’ jury instructions.