Sunday, December 30, 2018

Spin Doctors: Prosecutor Sophistry and the Burden of Proof, 87 U. Cin. L. Rev. 489 (2018)

Readers of The Dog may remember from previous posts that Wisconsin's pattern jury instruction on the burden of proof concludes by telling jurors "not to search for doubt" but "to search for the truth."  It's difficult to imagine how this language could do anything except lower the burden of proof.  The Fifth Circuit Court of Appeals has said that telling jurors "to search for the truth," even without explicitly telling them "not to search for doubt," lowers the burden to a mere preponderance of evidence standard, i.e., if the charge is merely probably true, and if the jury is searching for the truth, it would be obligated to convict even if there is reasonable doubt about guilt.  And in response to a prosecutor's argument that the jury should search for truth instead of doubt, a Washington Court of Appeals stated that "truth is not the jury's job."  Rather, the jurors' duty is to evaluate the evidence for reasonable doubt -- the exact thing Wisconsin's instruction tells them not to do.

The Supreme Court of Wisconsin (SCOW) has decided to take this issue up on appeal.  You can find the legal briefs and other case details on this public database.  And you can also read my latest article on the topic, Spin Doctors: Prosecutor Sophistry and the Burden of Proof, 87 U. Cincinnati L. Rev. 489 (2018).  For my previous work on this issue, including my empirical studies demonstrating that Wisconsin's jury instruction (1) causes mock jurors to convict at a higher rate and (2) leads mock jurors to believe that conviction is proper even if they have a reasonable doubt about guilt, go to my JI 140 resource page.  Let's hope SCOW gets this right and rules that trial courts may no longer instruct jurors not to perform their constitutionally-mandated duty. 

Saturday, November 24, 2018

Reversing Wisconsin’s “Victim” Culture

Maybe this is a trendy thing in other states as well, but Wisconsin has a bizarre, cart-before-the-horse practice of anointing complaining witnesses and deceased persons as “victims” long before the defendant reaches a plea agreement or calls the first witness at his jury trial.  In one example, I represented a defendant in an obvious self-defense case.  It was so obvious that the jury came back “not guilty” in warp speed—under one hour, if memory serves.  Yet, despite the presumption of innocence and the lack of sufficient factual allegations let alone evidence, the judge and prosecutor had repeatedly used terms like “victim’s rights” and even “the victim” throughout the case and even during the jury trial.

Wednesday, October 24, 2018

Wiegert, Fassbender, and Dassey: "Getting to know all about you"

Interrogators like Mark Wiegert and Tom Fassbender have tactics to get suspects to waive their Miranda rights, and they have a different set of ploys to get suspects to tell them what they want to hear—or, in Brendan Dassey’s case, to get him to agree with whatever they, the interrogators, are saying.  (I love it when they get Dassey to agree to something, but then later discover that what they made him agree with doesn’t make any sense after all.  The dynamic duo then gets frustrated with the kid, as if he was the one who gave the bad information to them.)  

But before the interrogation begins, detectives like to warm their suspects up a bit—you know, feign interest in them and build some rapport before getting too hot and heavy.  To see how Wiegert and Fassbender did this, read chapter 10, “Getting to Know All About You,” from my soon-to-be-released book, Anatomy of a False Confession: The Interrogation and Conviction of Brendan Dassey (Rowman & Littlefield).[1]  Order today for delivery by Halloween; but until then, enjoy a sneak peek of chapter 10, after the jump.  (Reprinted with permission of the publisher; citations to interrogation transcripts omitted for this post.)

Saturday, October 20, 2018

Making a Murderer season 2: In defense of the defense lawyers

I’m greatly enjoying Making a Murderer season 2.  As expected, however, it’s a little heavy on the emotional angle—how much footage can we watch of Avery’s mother painfully traipsing through her house?—and a little light on the law, at least for my taste.  But so far it’s quite good, and Kathleen Zellner’s theory of what really happened makes a lot more sense than the state’s theory presented at trial.  Nonetheless, MaM2 is painting an inaccurate picture of the criminal justice system in at least one respect.

The documentary includes some direct and implied criticism of Avery’s trial lawyers, Jerry Buting and Dean Strang.  And this criticism is coupled with action scenes of Dassey’s and Avery’s new attorneys doing all sorts of extraordinary things in their clients’ defense.  For example, Dassey’s appellate lawyer has an entire team around her to simulate oral argument at the Seventh Circuit.  And Avery’s new lawyer, Kathleen Zellner, has a team of paralegals and is shown traveling around the country to consult with experts in a variety of fields; they then conduct several tests, experiments, and recreations of events.

Making a Murderer Season 2

Are you enjoying Making a Murderer season 2 but find it a little high on emotion and light on the law?  Do you want to know more about Miranda rights and the rules of the interrogation room?  Are you curious about the difficulty that Dean Strang and Jerry Buting faced when trying to present a Denny third-party guilt defense at Avery's trial?  

Are you left with more questions than answers about the AEDPA standard that screwed Dassey to the wall?  Do you want to know more about the pretrial ethics rules that governed Ken Kratz's disclosures to the media?  If so, check out my two books, Convicting Avery (Prometheus) and Anatomy of a False Confession (Rowman & Littlefield) to get some answers!   

Thursday, September 27, 2018

Brett Kavanaugh, Steven Avery, and their accusers

In the mid-1980s, Steven Avery was charged with several crimes after Penny Beerntsen was found raped and beaten.  Avery had more than a dozen alibi witnesses and a store receipt showing he was nowhere near the scene of the crime, yet he was convicted.  Why?  The accuser pointed the finger at him and said she was sure it was him.  “I remember his face very clearly. It’s like a photograph in my memory,” she testified.  (See chapter one, here.)

Tuesday, September 11, 2018

Bubble Reputations

Mark Twain wrote that if you “give a man a reputation as an early riser, he can sleep til noon.”

These types of bubble reputations are how Christopher Hitchens picked his targets, including Mother Teresa and Princess Diana.  Well, there are two other bubble reputations that need to be pricked, as Hitchens would say. Those reputations belong to basketball star LeBron James and women's tennis great Serena Williams.

Saturday, September 1, 2018

Anatomy of a False Confession: The Interrogation and Conviction of Brendan Dassey

My new book on the Brendan Dassey interrogation and conviction is available for pre-order, here.  It will be published by Rowman & Littlefield on November 8th.  In the meantime, read the "spotlight" feature about the book in Publishers Weekly, and subscribe to The Legal Watchdog or keep up with Knightly on Twitter for book reviews as they roll in before publication.  One of the world's foremost experts on police interrogations and false confessions has already weighed in on the book:

"Michael Cicchini has written a wonderfully descriptive and insightful book, the definitive account of the interrogations of Brendan Dassey and his coerced, contaminated and (almost certainly) false confessions. Cicchini masterfully describes the tricks of the interrogation trade, how police investigators have adapted to the theoretical Miranda protections and turned them to their advantage, and, more importantly, how and why police interrogation strategies . . . can and sometimes do lead to false confessions from the innocent. Anyone who watched the Netflix series Making a Murdererwith rapt fascination will want to read this book."

— Richard A. Leo, author, Police Interrogation and American Justice; Professor of Law and Psychology, University of San Francisco

Monday, August 27, 2018

Is Reasonable Doubt Self-Defining?, 64 Villanova L. Rev. __ (forthcoming, 2019)

In Wisconsin, our pattern burden of proof instruction in criminal cases concludes by telling jurors "not to search for doubt" but "to search for the truth."  It is obvious to everyone who is not a prosecutor or former prosecutor that such language lowers or diminishes the reasonable doubt (RD) standard.  And if it wasn't obvious, my coauthor Larry White and I twice demonstrated the instruction's burden-lowering effect in controlled studies published in journals at Richmond and Columbia.  (And to to their credit, more than twenty trial court judges now recognize the pattern instruction's defect and have modified the language.)

But what about states that don't attempt any definition of RD?  States that decline to do so contend that RD is self-defining and therefore needs no further explanation.  On the plus-side, jury instructions that leave the term undefined can't do anything blatantly unconstitutional, such as telling jurors "not to search for doubt."  But is RD really self-defining?  Published studies demonstrate that it is not, as jurors fail to distinguish between it and the two lower, civil burdens of proof.  But these studies are old and used small, unrepresentative samples.  Therefore, Larry White and I conducted a new study with more statistical power to see if RD, when left undefined, offers defendants any more protection than two lower standards of proof, preponderance of the evidence (POE) and clear and convincing evidence (CCE).

Our article is forthcoming in the Villanova L. Rev., and you can find a pre-publication draft on SSRN or on my website's articles page.  Read the abstract, after the jump, which includes our findings.  (And scroll to the bottom of the post for a bonus video.)  Spoiler alert: the earlier studies were confirmed.  RD is not self-defining, i.e., when left undefined, there is no statistically significant difference in conviction rates between test participants who received a RD jury instruction, a POE instruction, or a CCE instruction.

Sunday, August 19, 2018

The Manafort trial and confusion over reasonable doubt

In the ongoing Paul Manafort trial, the jury asked the judge to define the term beyond a reasonable doubt (BRD).  (Actually, jurors may have just asked about reasonable doubt, which indicates they were shifting their focus to the quality of doubt the defendant could produce, rather than focusing on whether the state proved guilt beyond a reasonable doubt.  But that's a story for another day.)  Of course, this has prompted much hand-wringing, including the usual claims from pontificating law professors and judges that there is no way to define BRD without creating further confusion.

But leaving BRD undefined is a huge problem.  Studies that compare juror decision-making across the three burdens of proof -- preponderance, clear and convincing, and BRD -- demonstrate that jurors do not differentiate between / among the three standards.  That is, in controlled studies, mock jurors' conviction rates are not affected by different burden of proof instructions.

Lawrence T. White and I just replicated those experiments, and found the same thing: when BRD is left undefined, the three burdens of proof do not produce significantly different conviction rates, all else being equal.  Our study / article is currently under submission and we expect to finalize a publication agreement by the end of this week, so stay tuned for our pre-publication draft of our article, Is Reasonable Doubt Self-Defining?  In the meantime, read my article in the Calif. L. Rev. Online for a proper definition of reasonable doubt -- one that puts the high burden of proof in context by comparing it to the lower, civil burdens of preponderance and clear and convincing.

But despite all of this, leaving BRD undefined is still better than what Wisconsin does.  Wisconsin defines it in such a way as to completely demolish the burden of proof.  As Larry White and I demonstrated in this Richmond study, and again in this Columbia study, Wisconsin's BRD instruction (JI 140) is so bad that it would be better for defendants if the term were not defined at all.

Wednesday, August 1, 2018

Spin Doctors: Prosecutor Sophistry and the Burden of Proof

Defense lawyers have long complained about Wisconsin's defective, burden-lowering jury instruction (J.I. 140) on the "beyond a reasonable doubt" standard of proof.  Prosecutors replied that our complaints were nothing more than mere "opinion," unsupported by actual evidence.  So in response, psychology professor Lawrence T. White and I provided them with the evidence they supposedly wanted: two controlled experiments testing the effect of J.I. 140's closing mandate ("not to search for doubt" but "to search for the truth") on mock juror decision-making.  (Prosecutors never really wanted this evidence; they just demanded it because they never imagined anyone would actually produce it.)  Not surprisingly, telling jurors "not to search for doubt" creates misconceptions about the burden of proof and produces higher conviction rates.  These studies were published in law reviews at Richmond and Columbia.

Saturday, July 21, 2018

Who can save Marquette University?

Other than poking fun at Marquette Law School’s space-eating, $85 million building featuring a massive “library without borders”—a structure erected in the internet age when nearly every legal document and law review article is available online—I don’t think I’ve ever said anything too negative about my alma mater Marquette (MBA ’94, JD ’99).  Well, on second thought, that’s not true.  I was highly critical of the university’s response to alumni requests to bring back the name Warriors.  The bureaucrats didn’t just deny the request.  Instead, they changed our name to Gold.  It’s as if they wanted to punish us just for asking.

Inexplicably, Marquette leaders thought that Gold was “strong” and “competitive,” and “contained all the elements of a Warrior.”  That’s the kind of nonsensical babble you might expect from a twelve year old who got into his dad’s bottle of Vodka, not from the leaders of a university with a multi-million dollar endowment and budget.  It doesn’t make sense in any imaginable way.  A color doesn’t have strength nor does it compete—not even with other colors, let alone with other schools.   

Tuesday, July 17, 2018

Where's the crime?

In Tried and Convicted I wrote about how Wisconsin’s criminal injustice industrial complex spends staggering sums of money to arrest, charge, prosecute, convict, lockup, and then supervise its citizens—often for the better part of their lives.  Our state’s love of punishment and perpetual monitoring is well-known, and stands in stark contrast to other states like our neighbor to the west, Minnesota.  Even conservative states like Idaho are coming to terms with the “evils of big government” associated with such irrational policies; the Red States appear downright progressive when compared to Wisconsin.  But what crimes, exactly, are Wisconsinites committing?  What justifies such massive expenditures, year after year, that could otherwise be put to better use?

In an excellent law review article titled The Use of Wisconsin’s Bail Jumping Statute: A Legal and Quantitative Analysis, 2018 Wis. L. Rev. 619, 636, Amy Johnson includes a table listing the “top ten charged offenses in 2016.”  I’ve combined a couple of categories to list the top five, below.

Saturday, July 14, 2018

A creative explanation of reasonable doubt

My favorite explanation of reasonable doubt came from a Nevada prosecutor during closing arguments to the jury: “you have a gut feeling hes guilty; he’s guilty.”  But I just came across this explanation from an Illinois judge.  It’s pretty creative.  A recently published law review article (here, p. 943-44) describes it this way:  

[T]he judge placed a rubber band around a glass of water and told [the jury] that the rubber band represented reasonable doubt. He then explained metaphorically, the defendant is like a chip of wood in the bottom of the glass and the prosecution must pour in enough evidence, like water, to float the defendant to the rubber band to prove his guilt.

Saturday, June 30, 2018

What have educators learned from Brendan Dassey’s conviction? [updated with a postscript]

Years before Making a Murderer hit the airwaves, I explained in my 2012 book, Tried and Convicted, how the police indoctrinate kids at an early age in order to win their trust.  (Think Deputy Friendly.)  This, in turn, pays dividends down the road.

Many of my clients—not only my 17-year-old clients whom Wisconsin considers “adults” for criminal prosecutions, but much older clients as well—tell me how they’re in utter disbelief that they’re sitting in jail facing criminal charges.  At the time of their interrogations—or, as the police call them, “interviews”—the clients were convinced that the police were on their side and were there to help. 

I explain in my forthcoming book, Anatomy of a False Confession, that while suspects like Brendan Dassey don’t realize it at the time, the police use several tricks of the interrogation trade to lull their targets into this delusional state.  And in a recent radio interview, a teacher called in and said how horrified she was by what Mark Wiegert and Tom Fassbender did to Brendan Dassey.  She explained: “I could see that happening to any one of my students.  Being brainwashed like that.  I thought it was shameful.”