Friday, October 16, 2020

Recapturing my lost youth: Five underrated Van Halen songs

When Eddie Van Halen died, Electric Agora wrote that “EVH's death has brought back a recurring feeling I've been having since I entered middle age over a decade ago. The world I love is dying bit by bit.”  I’ve often had that sinking realization as well, not only after big events, such as the death of a parent, but also after far less personal events, such Van Halen’s passing.  I didn’t know Eddie Van Halen, of course, but his music is intertwined with my youth, with memories of better days.

The Electric Agora also saw a sliver lining in this reality of dying worlds.  When one’s world dies, “bit by bit,” there’s actually a consolation: when death comes for the individual, that person will be ready to go, ready to leave behind what little is left of his or her world.  That’s true and, at least for me, oddly comforting.  But in the meantime, having just passed a physical and dental exam with flying colors, I’m (most likely) not yet at death’s door.  I am therefore writing this post to enjoy an even better, though admittedly temporary, silver lining: I’m recapturing my lost youth by celebrating and sharing some of Van Halen’s most underrated songs.

Below are five such songs—one from each Van Halen (not Van Hagar) album, except for the band’s two mega hit records: the self-titled debut Van Halen and the band’s sixth album, 1984.  Those records achieved such success on every imaginable level that there are no overlooked gems, no hidden nuggets to unearth.  But their other five albums are goldmines of under-appreciated songs.  Here are my top five:

Friday, October 2, 2020

The next Republican VP candidate?

I don't pretend to know what's going to happen on November 3rd.  Although, I do expect and have braced for the worst-case scenario: A Harris-Biden administration.  Why?  Because if things go south for the GOP, you won't catch me sniveling and reaching for the bubbles and Play-Doh.  But regardless of what happens in 2020, the next Republican presidential candidate might want to take a long, hard look at Kim Klacik as a potential running mate.  She's loaded for bear -- or, in this case, for donkey -- with straight-talk and no political gibberish.  This woman is streets ahead.

Wednesday, September 9, 2020

Criminal Repeater Statutes: Occasions, Convictions, and Absurd Results

Ever wonder how Wisconsin prosecutors and judges turn a statute that reads "convicted on 2 or more separate occasions" into merely "2 or more convictions" in order to brand more defendants as repeat offenders?  Well, okay, unless you're a Wisconsin criminal defense lawyer, you probably haven't.  But if you are a Wisconsin criminal defense lawyer, or if you just want to learn how prosecutors and judges torture the plain meaning of ordinary words to get what they want, read my hot-off-the-press article, Criminal Repeater Statutes: Occasions, Convictions, and Absurd Results, 11 Hous. L. Rev. Off Rec. 1 (2020).  And for all of my articles, including this one, go to my articles page.  Enjoy! 

Tuesday, September 1, 2020

Will Kenosha ever recover from Trump’s visit?


Recently, President Trump sent Federal resources to my city, Kenosha, to put an end to the fires, looting, and violence.  He then announced a planned visit to survey the destruction and meet with law enforcement and others.  Predictably, our Governor and other Democratic politicians tried to stop his visit.  They uttered the usual weak, buzzword-laden blather that masquerades as political discourse today.  Governor Evers wrote, “I am concerned your presence will only hinder our healing. I am concerned your presence will only delay our work to overcome division and move forward together.”

What?!  That’s incredibly childish nonsense.  “Hinder our healing”?  What does that even mean?  And how, exactly, are we currently “overcom[ing] division” to “move forward together”?  And how would Trump’s visit “delay” that?  This is just nonsensical word vomit—that's the most accurate way to put it.

Friday, August 28, 2020

A Tour of Kenosha


Check out this citizen's driving tour of Kenosha, showcasing some of the destruction including a couple of the buildings that were burned to the ground by rioters.  And check out Terry Rose's speech (at the 6:15 mark) outside of a decimated building in Kenosha.  Rose rightfully gives some credit to the Governor for accepting President Trump's offer of federal assistance -- while pointing out that politics initially got in the way of truly swift and timely action.  Wisconsin's Governor waited too long, but, as Rose accurately points out, better late than never.  

Other than Fox, major news outlets won't be covering this accurately, or at all, so for those who don't know, a woman called 911 on a man called Jacob Blake.  Completely unrelated to that incident, Blake also a had an outstanding warrant for felony sexual assault.  Police arrived, and Blake resisted and obstructed officers causing them to use a taser gun, which had no impact.  Blake then got up off the ground and walked from the passenger side of his SUV to the driver's side.  After officers drew their guns, Blake again refused to comply with their commands and went into his vehicle.  Blake also had a large knife, although it was unclear if he had it with him or if he was going to retrieve it -- it was found on the driver's side of his SUV's floorboard.  The end result: the police shot Blake multiple times in the back as he was getting into the vehicle.

There is a legitimate debate about whether the police should have done something differently, such as tackling Blake as he walked around the car to the driver's side door or even letting him drive away to do whatever it is he might do next.  But the mob descended on Kenosha and began rioting.  Some of the facts I've outlined above weren't known at the time the rioting started.  Nonetheless, I suspect they wouldn't have mattered.  Why not?  Because rioters riot for any or no reason.  In Minneapolis, for example, rioting started up again over reports of cops shooting another black man.  Problem is, there was no police shooting.  The man actually killed himself as the police were about to arrest him for murder.

Facts, I suppose, be damned.  At least in Kenosha there was a real-life (rather than imaginary) shooting by police that triggered the rioters.  In either case, as Attorney Rose said in the above clip, "Kenosha isn't going to be another Portland."

Thursday, August 27, 2020

Does character matter?

If you're charged with a crime, it's very possible that the prosecutor will find some way to use -- either directly or indirectly -- your prior criminal record as evidence of your bad character.  This, of course, is likely to make you look guilty in the eyes of the jury.  But what if you've got a squeaky-clean record and have never even been accused of -- let alone arrested for, charged with, or convicted of -- a crime?  Can you use your clean record as evidence of your good, law-abiding character?  The law actually (generally) prohibits you from doing so.  Talk about double standards!  In my new article, I debunk the prosecutorial and judicial justifications for hiding your clean record from the jury, argue for legal reform, and provide defense lawyers with a possible strategy under the existing rules: A Clean Record as Character Evidence, 90 Mississippi Law Journal __ (forthcoming, 2021).  Or read the abstract after the jump.

That's Absurd!

Assume you're a sheriff's deputy and you arrest a mail-carrier pursuant to an outstanding murder warrant.  Can you be charged criminally for "interfering with the delivery of the mail"?  What if you rescue a baby squirrel from certain death by giving it food and water -- are you guilty of a crime for "keeping a game quadruped" in your home?  What if you are convicted of a crime that has nothing to do with sex and isn't related to sex in any imaginable way -- can the government still make you register as a sex offender?  Technically, yes.  But a legal principle called "the absurdity doctrine" is supposed to protect you when statutes would otherwise produce an absurd result, like the ones discussed above.  Unfortunately, the doctrine doesn't always work.  Read about my proposed legal reform in The New Absurdity Doctrine, 125 Penn State Law Review __ (forthcoming, 2021).  Or read the abstract after the jump.

Wordplay

In Wisconsin, you could be a "domestic abuse repeater" if you have been convicted, "on 2 or more separate occasions," of domestic abuse crimes.  Yet prosecutors are branding defendants as repeaters, thus transforming misdemeanors into felonies and increasing jail sentences to prison sentences, whenever defendants have been convicted only on ONE prior occasion.  How is this possible?  Read my new article explaining this governmental wordplay, Criminal Repeater Statutes: Occasions, Convictions, and Absurd Results, 11 Hous. L. Rev. Off Rec. 1 (2020).  Or read the abstract after the jump.

Sunday, July 12, 2020

Strickland’s IAC standard and Brendan Dassey


When a defendant is convicted of a crime, his or her appellate lawyer will often attack the defendant’s trial counsel for ineffective assistance of counsel (IAC) in an attempt to win a new trial.  The applicable legal standard is (usually) found in Strickland v. Washington.  However, Strickland’s IAC standard is both too broad and too narrow.  

Strickland is too broad in the sense that it’s often used to go after the defendant’s trial counsel not for his or her own conduct, decisions, and errors, but rather for failing to correct the trial judge’s errors or to properly monitor the prosecutor’s misconduct during trial.  In other words, it unfairly requires the defense lawyer to do three jobs in one.

But on the other hand, Strickland is too narrow, as the standard often fails to provide any remedy for true defense-lawyer ineffectiveness, such as failing to consult with the client, showing up to trial drunk, or even falling asleep in court (which, in fairness, could be due to being drunk).

Friday, July 10, 2020

The Left's Message to the Right: No Speech for You!

Most people I know and with whom I associate embrace free speech, even when they disagree with its message.  It’s a founding value on which the country is based.  People are free to verbally bash the president, praise socialism or communism, and basically say whatever they want with limited exceptions.  I would never dream of trying to shut down such speech, even when I think it’s nonsensical. 

Yet that’s not the view of the Left.  The Left loves to suppress speech that doesn’t conform precisely to today’s “woke” messaging, and they’re doing it in corporations, on sports teams, at universities, and, perhaps most alarmingly, even in government.  (And you might even be punished for someone else’s speech.)  Let’s take a look across our land to see what’s happening at a couple of colleges and in one west coast city. 

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?