Monday, September 12, 2016

Convicting Dassey: Five Easy Steps to a False Confession

Check out my newest Wisconsin Law Journal column on Brendan Dassey's confession -- a confession that was obviously false and now determined to be "involuntary" by the federal district court.  

Friday, September 9, 2016

Henry Fool on Politics and Other-Acts Evidence

Sorry for the lack of posts as of late.  I've been busy writing a law review article on other-acts evidence, and I also find myself spending far more time than expected watching and reading about this ongoing train wreck otherwise known as the presidential race.  (With private servers, political donations, and now "Trump University" lawsuits, there's just so much of substance to take in.)  And both of these things -- other-acts evidence and politics -- remind me of Henry Fool.  With regard to politics, Henry was rather dismissive of the process: "When noble minds shrink from the task of leadership, scoundrels will rush in to fill the void."  And as for other-acts evidence, Henry had firsthand knowledge of its life-long impact: "So my word is not enough; my promise worthless; the fact that I have served my time nothing but the emblem of my continuing guilt."  For more of Henry's wisdom, check out Henry FoolFay Grim, and now part three of the trilogy, Ned Rifle.  And of course, please enjoy the mesmerizing, ongoing media debate about whether Hillary or Trump is the lesser of the two evils, and should therefore be elected president.  

Thursday, August 4, 2016

Ethics rules clash; SCOW flops on free speech

Check out my latest column at the Wisconsin Law Journal, titled All "Riled" up: SCOW flops on ethics rule 1.9. In it, I discuss the Supreme Court of Wisconsin's decision on my petition to change ethics rule 1.9, as well as SCOW's recently published case In Re Riley, 2016 WI 70, where the court found a lawyer acted unethically for not violating rule 1.9! As Prosser stated in his dissent, there is "serious tension" between the ethics rules, and had the attorney decided to violate rules 1.6 and 1.9 in order to comply with the other set of rules, he could have been fired from his job and even sued by his former client.  The lesson is that with Wisconsin's selectively applied, irrational, and conflicting ethics rules, no lawyer is safe from the long arm of the OLR, which, as one of our state's prosecutors noted, is "more concerned with how they look in the zealous pursuit of an attorney pelt, rather than what result should be reached." (2014 WI 31, ¶ 39.)  On Wisconsin!

Wisconsin's Unconstitutional Burden of Proof

Columbia L. Rev. Online
My coauthor Larry White and I just finished a follow-up study to our U. Richmond L. Rev. article about Wisconsin's unconstitutional burden of proof jury instruction. Our follow-up study will be published in the Columbia L. Rev. Online; for now, the abstract and a pre-publication draft of the article can be found on SSRN. In short, we made three findings: (1) we replicated the results of our original study by again finding a statistically significant difference in conviction rates between mock jurors who received a legally proper burden of proof instruction and those who received Wisconsin's "search for the truth" language; (2) we found that mock jurors who received Wisconsin's "search for the truth" language were nearly twice as likely to mistakenly believe it is proper to convict a criminal defendant even if there is reasonable doubt about guilt; and (3) we found that mock jurors who held this mistaken belief (regardless of the jury instruction they actually received) voted to convict the defendant in our study at a rate 2.5 times that of mock jurors who correctly understood the burden of proof. On Wisconsin!

Sunday, July 17, 2016

Getting closer to the associate’s degree in law

More than two years ago I wrote about Community’s Jeff Winger, a fictional character that faked a bachelor’s degree, went straight from high school to law school, graduated, passed the bar, practiced law, was ratted-out, was disbarred, and had to go back for a post-J.D. bachelor’s to be readmitted to the bar.  (Seasons one through six on DVD here; season six online here.)  I also argued that in real-life, the J.D. is nothing more than an associate’s degree, and law schools should recognize this.  First, as the fictional Jeff Winger and every real-life law student prove, law school doesn’t require a single, college-level prerequisite to get in.  So what’s the difference if the student spends four years and $100,000-plus for a B.A. in puppetry or skips college altogether as Jeff Winger did?  And second, I argued, the third year of law school is pure silliness and should be eliminated.  In fact, some schools at the time were designing two-year programs, but were still squeezing three years’ worth of tuition dollars out of their victims students.  But now that would-be law students are better educated about the limited value of the J.D., law schools are forced to look for creative ways to fill their seats so they can pay their faculty to write cutting-edge legal scholarship

Monday, June 27, 2016

On Writing, Publishing, Making Money, and “Making a Murderer”

Photo by Brenda VanCuick
I was searching the web to see if Prometheus Books had posted any type of announcement about my forthcoming book, Convicting Avery: The Bizarre Laws and Broken System behind "Making a Murderer".  But before I could find anything, I came across a website called Reddit.  (At least I think it’s a website; it really just seemed to be a string of comments.)  There was a discussion of my recent Wisconsin Law Journal article about how the Denny rule prevented Jerry Buting and Dean Strang from putting on a third-party defense at Steven Avery’s trial.  Most people in the thread liked my article.  And so did a guy or gal named “Account1117” who wrote “not a bad column.”  (Given there is a lot of bad writing out there, I’ll take that as praise.)  However, he or she also wrote “$$$” and indicated that the dollar signs “were a criticism over the fact that a random lawyer out of Kenosha with no ties to the case is writing a book with ‘Making a Murderer’ in the title.”  I tried to post a response, but couldn’t figure out how.  (The problem, I’m sure, lies with my technological ineptitude; for example, I’ve never tweeted or snapchatted or pintrested, I’m not even on facebook, and I don’t even know what Reddit is.)  So instead, I decided to write this post to dispel some myths and offer some tips to would-be writers:

Tuesday, June 7, 2016

Avery, Dassey, and Denny

Photo by Rebecca Slye
Check out my newest article in the Wisconsin Law Journal -- a discussion of Wisconsin's Denny rule.  The article, Convicting Avery (and Overturning Denny), explains how the Denny rule was partly responsible for Avery's wrongful, eighteen-year imprisonment in the Beerntsen case, as well as the denial of his right to present a defense in the Halbach case.  In more "Making a Murderer" news, Prometheus Books has just titled my new book, Convicting Avery: The Bizarre Laws and Broken System behind "Making a Murderer", to be published in early 2017.  And yes, there will be a chapter devoted to Wisconsin's Denny rule.    

Friday, May 27, 2016

Bill Clinton appointed as “special prosecutor” to investigate Ken Starr [Updated Below]

In a long-delayed but ironic turn of events, Baylor University has just appointed former United States President Bill Clinton to serve as “special prosecutor” in the internal probe of its alleged mishandling of sexual allegations.  According to Baylor sources, Clinton will be investigating Kenneth Starr — the university’s former president who has since been stripped of that title but remains employed in other capacities.  One of Clinton’s directives, sources say, is to determine what Starr knew, when he knew it, and what actions he took with regard to allegations that certain student athletes had committed sex-related misdeeds.  Decades earlier, of course, the roles were reversed: Starr led a multi-year, multi-million dollar investigation ostensibly into Clinton’s Whitewater real estate transaction; however, that investigation quickly shifted from real estate to Clinton’s sexual indiscretions while in office.  The investigation eventually culminated in the so-called Starr Report, also known as “Kenneth Starr’s $70 million bag of garbage.”

Saturday, May 7, 2016

Hiatus and Bar News

Blogging Hiatus
Sorry, all, for my recent lapse in posting.  The good news is that I've signed another contract with Prometheus Books, the publisher of my first book with Amy Kushner, But They Didn't Read Me My Rights! Myths, Oddities, and Lies About our Legal System.  This time, I'll be publishing a book about the Avery and Dassey convictions featured in the Netflix documentary Making a Murderer.  The book will dive into Wisconsin's irrational criminal law and procedure in much more detail than the filmmakers were able to do.  The book is finished -- thus explaining my lapse in posts -- but I'm in the process of editing it before turning it over to Prometheus; therefore, it will be a while before I get back to posting.  But in the meantime, check out my bar-bashing Wisconsin Law Journal article that explains the ridiculousness of our state bar's continued opposition to our ethics rule 1.9 petition.  Also, read Attorney Rob Henak's latest response to the bar as well.  Our original petition and brief, and all subsequent filings, can be found at the petition's homepage.  And finally, congrats to the Irreverent Lawyer for his amazing efforts battling the Arizona Bar.  Arizona, like Wisconsin, has a mandatory bar.  Last year, the Irreverent One's bill to dismantle the bar fell one vote short in the house.  This year, he passed the house and cleared all committee hurdles in both houses, falling only five votes shy in the state senate.  Thanks to the Irreverent Lawyer, the Arizona Bar is scrambling for its life and could be a thing of the past in the next couple of years -- something the Wisconsin Bar should keep in mind as it continues to try and suppress its memberships' basic free speech rights.  

Wednesday, March 23, 2016

Truth or Doubt?

Here is the link to my latest Wisconsin Law Journal post, which discusses my recent article (coauthored with Larry White, Ph.D.) on Wisconsin's jury instruction 140.  This instruction covers the burden of proof in criminal cases.  In short, the Wisconsin instruction tells the jury to disregard their search for reasonable doubt in favor of a search for what they think the truth is.  Multiple other state courts have warned trial courts not to give this instruction because, quite obviously, it diminishes the burden of proof.  Our article explains this from a logical perspective, and also uses a controlled study to empirically test our hypothesis that jurors who receive Wisconsin's instruction will convict at a higher rate than jurors who receive a standard reasonable doubt instruction.  Spoiler alert: We were right.  You can find the pre-publication version of our article, Truth or Doubt? An Empirical Test of Criminal Jury Instructions, 50 U. Richmond L. Rev. ___ (forthcoming, May 2016) on the Social Science Research Network.    

Friday, March 18, 2016

State bar confuses silence with loyalty (again)

The state bar has run an on-line article about our rule petition to change SCR 1.9 so that Wisconsin attorneys can exercise our basic free speech rights with regard to public information about our former clients' cases.  You can find our petition and supporting documents here.  You can find the state bar's article here.  And reproduced below is my comment to the article:

This [state bar] article demonstrates that Rule 1.9 is so unclear, even the state bar ethics committee can't tell us what it means. In addition to the discussion of all of the possibilities of what it might mean, Tim Pierce even gets part of it wrong. For example, the article states (quoting Tim Pierce from the earlier oral arguments on the rule petition) that informed consent does not have to be in writing. Well, wait until you are in front of the OLR for a violation. Here's what the Wisconsin comment to Rule 1.9 reads: "The Wisconsin Supreme Court Rule differs from the Model Rule in requiring informed consent to be confirmed in a writing signed by the client." 

Thursday, February 25, 2016

The Legal Watchdog goes to the Supreme Court of Wisconsin

SCOW
Earlier this week we argued to the Supreme Court of Wisconsin in support of our petition to reform ethics rule 1.9.  We’re trying to change the rule so that attorneys can enjoy basic free speech rights with regard to public information, e.g., published appellate court opinions, about their closed cases.  You can find the arguments at this link — but you have to press “Part 2” on the right hand side of the web page in order to get to us.  Rob Henak and Ellen Henak also spoke in support of the petition.  On the other side, a representative from our state bar opposed our petition, which was disappointing.  The state bar can get away with suppressing its members’ speech because it is compulsory, i.e., we lawyers have no choice but to join.  As I’ve argued before, however, the bar should rethink its position, as it might not always have that guaranteed stream of compulsory bar dues to fund its bureaucracy.  In Arizona, for example, the Irreverent Lawyer’s “house bill 2221” to make their bar voluntary just passed by a vote of 31-29. 

Thursday, February 11, 2016

Educating tomorrow's lawyers

Check out my newest article, Two Rules for Educating Tomorrow's Lawyers, in my Critic's Corner column in this month's edition of the Wisconsin Law Journal.

State Bar News

Here are three pieces of bar related news for The Dog's readers.  FIRST, the ABA is pushing to make state bar exams uniform.  This would allow lawyers to more easily move from state to state to find jobs.  Unfortunately, newly licensed lawyers would know even less about their specific state's law than they currently do -- and that's bad news for would-be clients.

SECOND, our state bar here in Wisconsin opposes our proposed change to ethics rule 1.9 -- color me surprised.  Our bar collects our dues and is supposed to be working for us, yet has chosen to "protect" the public from lawyers' discussion of public information, rather than protecting our basic free speech rights.  If the Wisconsin bar has its way, we lawyers will still be prevented from talking about even the public aspects (e.g., published appellate court decisions) of our former clients' cases -- also known as our cases.  This is clearly unconstitutional, but our bar and other mandatory bars love to be perceived as protecting the public at its lawyer-members' expense.

THIRD, Wisconsin's mandatory bar can get away with taking our money and then working to violate our basic constitutional rights because it's an entrenched bureaucracy that we are forced to join.  But the bar ought to rethink its position, because it might not enjoy this insanely privileged status forever.  In Arizona, for example, the Irreverent Lawyer is leading a movement to dismantle the mandatory bar and turn it into a voluntary organization.  If he is successful, their state bar bureaucracy would shrivel up faster than a grape in the southwest desert summer sun.   (That is, few lawyers would join if they're not forced to do so.)  Good luck, Irreverent One!  Why don't you take care of business in Arizona, and then come to Wisconsin and take on our mandatory bar?  Knightly offers his assistance in the fight for freedom of speech and freedom of association.            

Saturday, January 23, 2016

Another hole in the Fourth Amendment

During the course of The Legal Watchdog’s short-lived but glorious podcast, we discussed the court of appeals case State v. Dumstrey where the court held — despite a scathing dissent — that we don’t have a privacy interest in our locked, underground, enclosed parking garage of our condo or apartment.  The case was obviously so wrongly decided — every single one of the factors in the multifactor balancing test pointed toward the existence of a privacy interest — that the state supremes announced they would be taking the case for review.  At the beginning of this podcast we gave our predictions.  Although “the skeptic in me” was cautious, I said that I was “going out on a limb for our supreme court.” I predicted that “even this supreme court, with these justices, will reverse it.”  So what happened?