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?  

Friday, January 15, 2016

Robots Rising

I absolutely hate those super trendy commercials showing young people completely enamored with their “apps,” “social media,” and “mobile devices.”  Sure, this “technology” feeds their insatiable appetites for a non-stop stream of mindless “content.”  But what the kids don’t realize is that this same technology, while well-suited to their short attention spans, is also taking away their jobsor preventing them from landing jobs in the first place.  In Rise of the Robots: Technology and the Threat of a Jobless FutureMartin Ford explains how robotsor, more accurately, smart algorithms that know how to teach themselvesare now doing jobs that college grads used to do.  This, in turn, forces a very large percentage of college grads into jobs that do not, in any imaginable way, require a college degree.  Then, the workers that would typically have held those unskilled jobs are forced into long-term or even permanent unemployment or underemployment. 

Friday, January 8, 2016

Goin' mainstream

I recently joined the Wisconsin Law Journal as a monthly columnist.  My first article, A Call to Arms (So to Speak), just came out in print, and is now available on-line.  My monthly column, CRITIC'S CORNER, will archive all of my articles as the months pass.  I'll put a link to that on the right hand side of the blog, near the links to my books, articles, and MU blog posts.  Enjoy!

Thursday, December 31, 2015

Coloring books, case law, and the Devil’s Dictionary

Ambrose Bierce
In my second book, Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights (Rowman & Littlefield), I discussed how the police indoctrinate kids at a young age through “Deputy Friendly.”  The good deputy’s message is clear: the police are your friends and they’re here to help.  Conversely, I lamented, early education excludes anything that runs contrary to that pro-government theme.  If you doubt that, try to imagine anyone teaching young people about how the police are permitted to lie to us, how we have the right to tell them to “pound sand” when they want us to talk, and how we can demand the presence of an attorney to gum-up the government machinery.  (Hard to visualize such an education, isn’t it?)  But as successful as Deputy Friendly has been indoctrinating America’s youth, I think the judiciary has just topped him with the publication of Learning about Judges: A Coloring Book.

Tuesday, December 8, 2015

When Ethics Rules Attack: A Real-Life Example

I recently published an article criticizing ethics rule 1.9(c), and also filed a petition and memorandum (coauthored with Terry Rose) asking our state supreme court to change the rule.  The rule, which prevents attorneys from discussing even public aspects of their closed cases, not only violates our right of free political speech, but is an absolute disaster on every imaginable level.  I wrote in the article that the rule is nonsensical and indecipherable, leaving us lawyers at the mercy and whims of anti-lawyer bar associations and regulators. 

Thursday, December 3, 2015

Changing Rule 1.9

Current state of attorney free speech
There's been some progress on our petition to modify Wisconsin's SCR 1.9 (c), the rule that prevents attorneys from talking about even the public aspects of their closed cases.  In a nutshell, Terry Rose and I are trying to restore some sanity to the situation.  We are asking the supreme court to define "generally known" to include information that is publicly available or has been disclosed in a public forum, and further to recognize that, by definition, generally known information has already been "revealed."

Friday, November 6, 2015

Hiatus

Sorry for the lull in the posts.  I've got about ten good topics lined up in the writing queue, but they're all going to have to wait.  Even though Knightly is currently resting up, I've been working on a new project with coauthor Larry White.  More specifically, many Wisconsin criminal defense lawyers have lamented that our state's burden of proof instruction allows conviction with far less than proof beyond a reasonable doubt. (I've always thought that the prosecutor's burden in our state was more like a preponderance of the evidence standard.)  So our new study and soon-to-be law review article tested that hypothesis.  And sure enough, mock jurors that were given the Wisconsin jury instruction convicted at a much higher, statistically significant rate than did mock jurors given a straight reasonable doubt instruction.  We plan to start submitting the article for publication to journals in February, and, historically, I've received offers on my articles by mid-March if not sooner.  Hopefully at that time the publishing journal will let us post a pre-publication version of the article to SSRN.  This should give defense lawyers some ammunition when filing pretrial motions to modify Wisconsin's burden of proof instruction.  Ultimately, the article should convince our jury instruction committee to modify Wisconsin's instruction to the constitutionally guaranteed beyond-a-reasonable-doubt standard.  Stay tuned!  

Monday, October 12, 2015

The lawyer advertising double standard

Unemployed and under-employed law graduates have sued several law schools, claiming the schools used false or misleading employment data to induce them to enroll and spend $150,000-or-so of their yet-to-be-earned dollars.  One law school advertising tactic, for example, was to label jobless graduates as “not seeking” employment; this allowed a school to hide the abysmally high unemployment rate of its graduates.  Another, more common tactic was to count graduates as “employed” even when their jobs had absolutely nothing to do with law (e.g., working at Starbucks), or were only temporary jobs created by the law school to artificially boost its employment statistics.  Another was to say that, for example, 92 percent of all grads were employed, when in fact only 92 percent of the 40 percent who responded to the survey were employed.  In sum, law school advertising at many schools took tremendous liberties in spinning the facts.    

Sunday, October 4, 2015

Free speech today [Updated]

Many people — especially people at colleges and universities — have come to believe they have a right not to be offended.  The only explanation for this oversensitivity is the complete misunderstanding of the First Amendment.  (Click here for a First Amendment primer.)  This is particularly obvious when someone claims that another person’s speech isn’t free speech, but offensive speech.  Of course, the First Amendment protects offensive speech.  And, as a practical matter, if the speech weren’t offensive, it probably wouldn’t need constitutional protection in the first place.  The most recent incident of this came when a college newspaper published an op-ed questioning whether the tactics of a particular political movement were really effective.  What followed after the publication of the “controversial” essay was predictable: offense was taken; outrage was expressed; punishment was demanded; apologies were issued; and, likely, the college newspaper has learned not to publish any articles that express a contrarian viewpoint or question today’s politically correct stances.  But how did we become such a bunch of spineless, mealy-mouthed worms who insist that free speech has to take a backseat to our imagined right not to be offended?  Ken White at Popehat explains how this happened in his post titled “Safe Spaces” and the Mote in America’s Eye.  The post is also filled with links to numerous other posts, essays, and related works — a must read for anyone interested in the current state of free speech.  In sum, there is a real risk that the First Amendment, at least in some settings, will soon go the way of the Fourth Amendment — so enjoy this constitutional right while it lasts.  [UPDATE: Richard Dawkins on free speech on campuses, here.]

Monday, September 28, 2015

Citizenfour

In her Oscar-winning documentary Citizenfour, Laura Poitras exposes the extent and impact of our government’s domestic spying operations.  Her documentary focuses on Edward Snowden, and includes many of the things you’d expect to see in great filmmaking.  For example, there is the early congressional testimony of an NSA bureaucrat who repeatedly denied that the government intercepts our emails, phone calls, texts, and google searches.  But later, another NSA bureaucrat testified and tried to spin it: The NSA does not intercept such data “wittingly.”  It does so “inadvertently, perhaps,” but not “wittingly.”  (This type of statement makes the testimony of cigarette company executives — “I believe that nicotine is not addictive” — appear truthful by comparison.)