Sunday, July 23, 2017

Politics, espionage, and . . . math?

The math is simple:  International intrigue + Wisconsin = Fast-paced fun.  Check out Matthew Flynn's newest book in the Bernie Weber series, Bernie Weber and the Riemann Hypothesis. Flynn's writing style is perfect for the genre, as he brings Midwestern culture and politics to life.  

Tuesday, July 11, 2017

Truth, doubt, and “whack-a-mole”

Before I can finish debunking one misconception about my studies on Wis. Jury Instruction 140 — studies available here and here — another misconception pops up.  It’s like playing a never-ending game of “whack-a-mole.”  It’s easy and virtually cost-free (in terms of time) for prosecutors and judges to launch these attacks.  But their criticisms are often so far off-base, or even bizarre, that it takes a lot of work to respond to them.  Pretty soon, however, I’ll have written so much on this topic I will simply be able to respond: “See law review article C, page six.”  Later this year I will publish the recently-completed Educating Judges and Lawyers on Social Science Research: A Case Study.  In it, I will address the latest set of attacks.  But if you just can’t wait — or if you can wait but you have a motion hearing coming up to modify J.I. 140 — you’ll find a bullet-point list debunking these new criticisms after the jump. 

Monday, June 26, 2017

"Mistakes were made": A reply to Michael Griesbach

Fresh off their defeat in the Seventh Circuit Court of Appeals on Dassey's case, prosecutors are back it.  This time, prosecutor Michael Griesbach claims that Steven Avery is not entitled to a new trial, despite what he concedes were law enforcement and prosecutorial mistakes, because Avery was proved guilty "beyond a shadow of a doubt."  Well, this is a softball I couldn't resist smacking out of the park.  You can read my newest Wisconsin Law Journal column here.  

Saturday, June 24, 2017

Larry White on Brendan Dassey's interrogation

My frequent coauthor and false confession expert Dr. Lawrence T. White was just interviewed on Wisconsin Public Radio about Brendan Dassy's interrogation.  You can listen to the interview here.  You can also see Larry in this excerpt from Making a Murderer.  (For his full appearance, see episode 3 on Netflix.)  And for my own interview on WPR where we discuss Making a Murderer, my research with Larry on Wisconsin's unconstitutionally low burden of proof, and other topics, click here.  Finally, for my book Convicting Avery: The Bizarre Laws and Broken System behind Making a Murderer (Prometheus Books), including a chapter on interrogations and false confessions, click here.

Thursday, June 22, 2017

Brendan Dassey, Wisconsin state courts, and the state of legal education [updated below]

The 7th Circuit Federal Court of Appeals recently affirmed the reversal of Brendan Dassey’s conviction.  The decision is 128 pages.  The main reason it’s so long is this: the Wisconsin appellate court failed to do any actual analysis when it originally affirmed Dassey’s conviction; instead, it merely repeated the applicable legal standard and then jumped to its conclusion — all in two very short paragraphs.  Therefore, the Seventh Circuit had to analyze everything from scratch.  This is something we Wisconsin criminal defense lawyers have to deal with regularly from some of our state’s trial and appellate courts: judges reaching their decision first, and then saying anything — or in Dassey’s case, nothing — to justify their predetermined outcome.  But what if I’m wrong?  What if the Wisconsin appellate court judges didn’t make up their minds ahead of time and were actually doing their best to reach a reasoned conclusion?

Wednesday, June 21, 2017

How far does the Wisconsin state bar bureaucracy reach?

After sorting through my email inbox today, I learned that the mandatory-membership Wisconsin state bar has something called a “leadership development committee.”  And for the low, low price of $300.00, Wisconsin lawyers can take part in the “G. Lane Ware Leadership Academy.”  This is the second annual gathering; the inaugural event “was a huge success!” 

Monday, June 19, 2017

Free speech: A message for public universities (and their students)

For the universities, before you spend any more time and money expanding the university bureaucracy to implement that micro-aggression reporting system, read Matal v. Tam.  It doesn't say anything the rest of us didn't already know, and it involves the government's denial of a person's right to a trademark because of offensive speech, but all of the principles still apply.  (It is, after all, the First Amendment.)  Here are some quotes of interest from the decision, along with some concluding remarks to the universities and their students:

Saturday, June 17, 2017

Roger Federer, Michael Cicchini, and Pennsylvania’s Burden of Proof

Photo by Manolo Guijarro
“Roger Federer is a better tennis player than Michael Cicchini.”  While that statement is technically true, it doesn’t really say anything.  It tells you nothing about how good Roger Federer is (or how bad I am) at tennis.  So at best, it’s a completely meaningless statement.  And if you don’t know much about the sport to begin with, the sentence is worse than meaningless.  It’s grossly misleading.  Why?  Because it gives the impression that Roger Federer and yours truly are somehow comparable or at least part of the same tennis universe.  If we weren’t, why would we be compared to one another?  After all, no one ever bothers to say that a Ferrari is faster than a Yugo or that Cal Tech offers a better physics education than Wisconsin’s Gateway Tech, even though both claims are technically true.  Yet this type of highly misleading comparison is found at the heart of something far more important than tennis, cars, and even physics: Pennsylvania’s burden of proof jury instruction in criminal cases. 

Wednesday, June 7, 2017

Reversing Avery?

Steven Avery's post-conviction counsel has just filed a 220-page post-conviction motion.  I look forward to printing it off and diving into the details tomorrow.  In perhaps the most interesting part of the motion, attorney Kathleen Zellner has identified a third-party suspect.  You can see who he is in this clip, where he (sort of) answers questions from a news reporter.  And of course, to learn more about Wisconsin's truth-suppressing third-party defense rule, its unconstitutionally low burden of proof, its weak ethics rules governing prosecutors, and other legal defects that caused Avery to be convicted in the first place, read my newest book, Convicting Avery.  

Saturday, June 3, 2017

Is the Marquette Golden Eagle an Endangered Species?

Much like the Golden State Warriors of the NBA, the Marquette Warriors were once the coolest name in their sport.  (And Marquette also had a history of being one of the most progressive teams in recruiting, in fashion, and in flat-out sticking it to the man.)  I was a Warrior in my graduate school days, before law school, back in the early 1990s.  But then in 1994, Marquette made the switch to probably the most common, generic nickname in college sports: the Golden Eagles.  Don’t get me wrong, I’ve come to really like the Eagle, particularly after it evolved into its current form (pictured left).  It is probably the best bird logo in college sports: a cool, aggressive, and determined looking bird that is ready to get to business, stat.  And I still love my Marquette hoops—even post-Dwyane Wade, it is the bright spot during our long, cold Wisconsin winters.  But when Marquette changed its name from Warriors to Golden Eagles back in ‘94, I pointed out the absurdity of the thought process behind the move.  Now, that thought process has spread like a virus and no mascot (or person) is safe.

Sunday, May 21, 2017

Bases covered

My monthly issue of the State Bar’s Wisconsin Lawyer went in the trash a little sooner than it normally does.  It wasn’t some overused top-ten title — like, “the top ten ways to upset your judge,” or “don’t do these ten things if you want to keep your judge happy” — that turned me off.  In fact, there might have even be some good material in it.  But I wouldn’t know because I never got that far.  Instead, I was completely grossed out by the cover.  For some reason, it featured a child’s bare feet, large as life, and I just couldn’t get beyond that.  To leave this monstrosity sitting out on my coffee table — even if only to collect dust — was simply not an option.

Friday, May 19, 2017

Wisconsin's Unconstitutional Burden of Proof

The Constitution requires the jury in a criminal case to evaluate the state's evidence for reasonable doubt.  After this evaluation, even if the jury concludes that the criminal charge is "probably true," it must find the defendant not guilty.  The reason, of course, is the high burden of proof: "proof beyond a reasonable doubt."  Standards like "might be guilty," "could be guilty," "is possibly guilty," and even "is probably guilty," just doesn't cut it when the state is trying to strip you of your liberty.  But this high burden of proof is only as strong as the burden of proof jury instruction.  And the way that most Wisconsin judges instruct their juries might surprise you.

Wednesday, May 10, 2017

Dassey's Details: Unprompted or Extracted?

I've heard Ken Kratz, on several occasions, complain that "Making a Murderer" left out important details. But I've always dismissed this complaint as just a minor variation on the common prosecutorial refrain that we defense lawyers hear all the time: "He's quoting out of context!"

But in their book, "Avery," Kratz and coauthor Peter Wilkinson criticize the documentary for leaving out Dassey's May 13 interrogation. They claim that, in this interrogation, Dassey provided unprompted details about seeing Halbach's purse, camera, and phone. The problem, however, is that Dassey's statement was not unprompted. More accurately, his interrogators extracted it from him. Read more, including an excerpt from the actual interrogation transcript, in my newest Wisconsin Law Journal column.  

(Warning to prosecutors: The column does include a quotation, and the quotation is taken out of its context. But by definition, a quotation necessarily is out of context.)     

Wednesday, April 19, 2017

WPR - NPR Interview

Click the link to listen to my latest radio interview -- this one on Wisconsin Public Radio's "Central Time."  In it, we discuss my new book, Convicting Avery (Prometheus books, 2017), along with several aspects of Wisconsin's criminal justice system including our unconstitutionally low burden of proof, police interrogation tactics, and false confessions.  One of the callers, a former juror, raised a great point about Wisconsin's jury instruction on reasonable doubt.  Paraphrasing, he said: "The judge told us 'not to search for doubt.'  I had doubts about the case, but they weren't things that the lawyers had brought up.  So was I not supposed to consider those unless the attorneys raised them first?"  Finally, for more on my research and controlled studies on Wisconsin's unconstitutional jury instruction on the burden of proof, visit my articles page of  

Thursday, April 6, 2017

Guest blog post on Criminal Element

Check out my guest blog post, Steven Avery and the Criminal Justice Machinery, over at Criminal Element.  (Many thanks to the folks at Criminal Element for having me on as a guest blogger.)  In the post I give a brief overview of some of the serious flaws in Wisconsin's criminal justice system that led to the conviction of Steven Avery.  Whether you think Avery did it or was framed (or both or something else entirely), one thing is for sure: the jury's irrational, split verdict -- based on Wisconsin's constitutionally defective burden of proof, no less -- tells us absolutely nothing.

And for other true crime stories, including posts on Amanda Knox and excerpts from several books, visit Criminal Element's "True Crime Thursday" section.  Enjoy!