When lawyers try to defend criminal cases by arguing not only that their client didn't do the crime, but also that the lawyer knows who did it, judges start to panic. (This defense is known as the wrong-person defense or the third-party defense.) Judges don't like it when defense lawyers start questioning the prosecutor's charging decision. They would much rather that the defendant simply take his medicine instead of trying to cast blame on someone else. After all, things get complicated once we entertain the possibility that the prosecutor charged the wrong person. And sometimes, judges get so crazy about this that their thinking process crosses the line that separates the merely irrational from the clinically insane. For example, one judge denied a murder-defendant's right to put on a wrong-person defense, "[e]ven where a third party was seen fleeing from the scene of the crime and admitted to killing other people and burying them in the very woods in which the victims' bodies were later found." Why did the judge exclude this defendant's evidence of innocence and of third-party guilt? It was simply "too threadbare to be admissible." (Interestingly, this defendant's evidence against the third party was much stronger than the prosecutor's evidence against the defendant, yet it was still considered inadequate.) In any case, this stuff makes for interesting reading, as long as it's not happening to you or your client! So check out my newest article, An Alternative to the Wrong-Person Defense, 24 George Mason University Civil Rights Law Journal 1 (2013). For links to my other articles, click here.
Saturday, December 7, 2013
Wednesday, November 27, 2013
I'm not a fan of this time of year, mostly due to the holidays and, more specifically, the Christmas music that stores begin playing as early as November. However, most people feel otherwise, so I might as well try to take advantage of the "general mood." When you're buying holiday gifts this year, consider stuffing the stockings with a copy of my second book, Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights (Rowman & Littlefield Publishers, 2012). But don't buy it on my recommendation; I'm somewhat biased. Instead, listen to Robert Worley at the International Criminal Justice Review, who recently wrote: "Throughout this book, Cicchini argues that Americans should have a healthy distrust of the criminal justice system. . . . I strongly recommend this book. Once I opened it, I literally could not stop reading." That is sweet music to an author's ears (or eyes). Now, buy the book and give it to loved ones so they can learn what really goes on in "the system," starting with the police investigation and moving all the way through trial and even appeal.
Oh, and happy holidays.
Saturday, November 23, 2013
I nearly always write original posts, but once in a while I like to share things from around the world wide web. Let’s start with the incomparable and amazing Popehat and its coverage of the free speech issues at the
. It turns out that some students didn’t like a
conservative student group’s activities designed to raise awareness (I love
that phrase) of immigration issues. So
not only did the academic community shame the conservative group—something that
Popehat points out is the proper reaction to unpopular free speech—but many
students are also asking the government to step in and punish the conservative
group for exercising their free speech rights.
In a nutshell, Popehat points out how ignorant this is. Don’t these students know that some day—or
even today in some contexts—their own speech will be hurtful and
unpopular to others? Do they really want
the government stepping in and censoring them? When reading the post it struck me just how much
some people rely on the government today.
They turn to it for nearly everything, even when their feelings are hurt
because others are saying unpopular or offensive things. Man-up, offended students of U.T.! When you leave the academic bubble and, hopefully,
get jobs, people will say and do things all the time to offend you. Get used to it, and stop running to the
government for your every (imagined) need.
Also from around the web . . . University of Texas
Friday, November 22, 2013
Several years ago, legislators signed off on the Patriot Act in knee-jerk fashion, and many of them hadn’t even read the document. The reason? Well, first, the nation was in a state of fear, so obviously some piece of legislation had to be passed immediately—that’s just what lawmakers do. And second, it was named the Patriot Act. You would have to be unpatriotic not to get on board, right? Anyway, that was a case of great branding. Had it been named the Government Spying Act, or the Invasion of Privacy Act, fewer people would have supported it (although, I think it still would have passed). And now, this same branding phenomenon is playing out, only in reverse, with Obama-Care, a/k/a the Affordable Care Act.
Thursday, November 7, 2013
Sunday, October 27, 2013
When I write blog posts, articles, and even books, I operate largely on intuition and feel. That is, I can't articulate the rules of the English language -- such as where to use a dash or a semicolon -- yet somehow I have a decent idea of what to do. And when it comes to speaking, I, like most people, use language in a fairly sloppy manner, at least compared to my writing. So, given my own imperfections -- which I admit are deep and many -- I am very tolerant of the blogs, articles, and books that I read, and even more tolerant of the podcasts to which I subscribe. But there are a few things that bother me like a fly buzzing around my ear. Let's start with the phrase "quote unquote."
Saturday, October 26, 2013
I've written a lot of posts about judges' inability to grasp basic legal principles, and how frustrating and costly this can be. (For a couple of recent posts, in which you'll find several additional links, see here, here, and here.) I've also speculated, here, that much of this can be traced to the American law schools that produce the graduates who eventually become judges. One of the problems with many of our schools is that they really don't teach a whole lot about legal theory, and even less about lawyering. (They do, however, love to teach social science theory and the law.) One of the reasons law schools don't teach much law is that an increasing number of new law professors -- especially those at elite schools -- have a Ph.D. but no law degree. And, many of the law professors who do have law degrees have never practiced law in the fields they teach; further, many have never practiced law at all, or only in rather sheltered settings for a year or two. The blog Outside the Law School Scam gives an excellent example of this incredibly common law school hiring practice: a law prof teaching criminal procedure who has never practiced criminal law. (The blog post further points out that the prof has "near-zero experience" in legal practice of any kind.) The problem, obviously, is that these law professors can't add anything of value to what a reasonably intelligent law student can do on his or her own: read and think about statutes and case law. And the bigger problem is that these law professors are training -- or, rather, not training -- our future judges. In short, I don't see any improvement on the horizon for the state of our judiciary.
Thursday, October 17, 2013
Only if the judge is in the mood to hear from you. No other profession could possibly survive if its professionals were to behave the way judges do. But where does this judicial disdain for the rule of law come from?
Tuesday, October 1, 2013
I’ve written numerous posts—for example, here, here, and here—about defense attorneys trying to put on evidence of innocence during a trial, only to have trial judges shut them down cold. As I explained in those posts, this happens most frequently when the prosecutor objects to a defense lawyer’s line of questioning as calling for “hearsay.” In most cases, however, the testimony isn’t hearsay at all. So the surprised defense lawyer does his best to play educator, and tries to teach the judge about the definition of hearsay. Yet, because many judges just cannot grasp this incredibly important concept, they sustain the prosecutor’s objection in knee-jerk fashion. The defense lawyer—much like a patient whose surgeon doesn’t understand basic human anatomy—is dead in the water (or on the operating table, as it were).
Now, I don’t mean to make light of this incredibly serious and utterly unacceptable state of affairs in legal education and, consequently, in the judiciary. But when I saw the following short video clip, I couldn’t help but think of physicist Brian Greene as the frustrated defense lawyer, and the other character in the video as the completely uneducated judge, incapable of grasping the lesson. (If the embedded video does not appear below, you can find it on YouTube by clicking here.) Enjoy.
All of this federal government shutdown business got me thinking about a possible state of
Wisconsin government shutdown. If that ever happens, which government
services would be considered essential, and which would be nonessential and,
therefore, suspended or even eliminated?
My modest proposal (for a hypothetical state-government shutdown) is
that we could do without the services of many of our appellate courts. Why? The story begins with a
recent Wisconsin criminal case, where the trial judge prevented the defendant from testifying in her
own defense. If that sounds shocking to
you, it should. Few things (if any) are
more fundamental than a defendant’s constitutional right to testify at her own
trial. So why wouldn’t the trial judge
let the defendant—here, an eighteen year old girl—take the witness stand?
Sunday, September 29, 2013
I generally enjoy APM’s Marketplace podcast, notwithstanding the host’s all-too-frequent use of the phrase “c’mon, man.” But in a recent episode, the host interviewed an Ivy League business school professor about “meetings.” In short, there are about 11 million business meetings in the
United States each day. About half of those surveyed said that about half of their meetings were unproductive or not a good use of their time. The prof’s conclusion: limit the duration of meetings to force the attendees to be more productive, thus getting more done in less time. Superficially, that sounds fine. But on closer inspection, here is my list of complaints about the podcast:
Tuesday, September 3, 2013
|Knightly is on summer hiatus|
Saturday, August 24, 2013
The title of this post is a quote from Congressman Jared Polis of Colorado, who was weighing in on the NSA and its spying on American citizens. We now know that the NSA’s spy programs covered 75 percent of all domestic internet traffic, and included a special program that targeted love interests—a program the NSA cutely dubbed LOVEINT, for “love intelligence.”
Saturday, August 17, 2013
When some prosecutors argue in court, the things they sometimes say are so absurd (and often factually wrong) that I wish the trial judges had some inner Professor Kingsfield and could muster the courage to call bullshit, i.e., tell the prosecutors that they’re offending the concepts of logic, reason, and truth. The recent case of State v. Locke perfectly illustrates this all too common problem. In Locke, the prosecutor induced the defendant to plead guilty to some serious felonies, thus saving the prosecutor and the court several days in trial, and taking away all risk that a jury could find the defendant not guilty. In exchange for the pleas, the prosecutor agreed not to make a specific sentence recommendation. That is, the prosecutor retained the right to talk about the offenses and say negative things about the defendant, but he promised to leave the specific sentence up to the judge. So what happened at the sentencing hearing?
Saturday, August 10, 2013
Back in 2011 I wrote a post titled Hearsay 101, and begged trial judges to take the time to learn the rules on hearsay. I reasoned that trial judges wouldn’t want to have surgery at the hand of a surgeon who doesn’t know basic human anatomy, and defendants don’t want to have their freedom ripped from them because a trial judge doesn’t understand basic rules of evidence. Unfortunately, after reading the recent decision of United States v. Stern, it is painfully obvious that at least one federal trial judge missed my earlier post.