Monday, December 19, 2016

In Defense of the Bar Exam

When the number of law school applicants plummeted a few years ago, many schools dipped very deep into the applicant pool – as in near open enrollment – to fill seats and boost revenues.  Not surprisingly, three years later when these students graduated, some schools’ bar passage rates dipped – and in some cases went into free-fall.  (You can see the carnage in California, for example, here.)  The problem is that a low enough bar passage rate for a long enough period of time could put the school’s ABA accreditation at risk.  So the natural response of some law schools was to blame the bar exam as being an unfair test – a position that now aligns nicely with their desire to fill their seats with any student loan conduit applicant who can pass the mirror test.  But now, two deans have written an op-ed on the Tax Prof Blog to point out the flaws in law schools’ worn-out arguments.  Kudos to them; you can find their work here.

Friday, December 16, 2016

The Joe Mixon Video

I just saw the Joe Mixon video on Sports Center, and it’s also available here.  I wish they would have discussed two things.  First, Mixon starts to walk away at which point the victim appears to say something to him, pushes him, and then smacks him in the side of the head — all before he strikes her.  Maybe it’s just the criminal defense lawyer in me, but I’d like to hear a debate about what type of response, if any, would have qualified as reasonably necessary to terminate her unlawful interference with his person.  (As an example of a self-defense statute, Wisconsin’s is here.)  Would a shove have been okay?  What if the shove was forceful enough to put her on the ground but did not cause any injury?  Second, according to Sports Center, Mixon “pleaded guilty to the charge without making an admission of guilt.”  How can a person plead guilty without admitting guilt?  Isn’t that what a no contest plea accomplishes?  (This is either bad reporting or a quirk in Oklahoma law.)  Finally, an observation.  From a purely practical standpoint, there’s a lesson here that should not be overlooked: If you don’t push and smack a person in the head, you will dramatically decrease your odds of getting knocked out.  You know, an ounce of prevention and all that.

Thursday, December 15, 2016

A Tale of Two Schools

I just read a Boston Globe article about DeVry University agreeing to pay $100 million to settle a lawsuit.  (Hat tip to “the Chow.”)  The suit alleged that DeVry provided misleading employment data to prospective students.  The school had boasted a 90 percent employment rate.  However, “DeVry was counting students who found jobs outside the fields they studied” including “a graduate who studied in the health care field but found work as a restaurant server and another who worked as a car salesman[.]”

Saturday, December 3, 2016

Knightly to remain at the Legal Watchdog

After a disappointing 3-8 football season, the University of Connecticut Huskies have offered Knightly the position of team mascot.  Although Knightly was honored by the offer, and will continue to support Husky athletics, I am happy to report that he has declined the offer so he can continue his work at the Legal Watchdog.

Saturday, November 5, 2016

Talking out of both sides of their mouths

For the latest in disingenuous judicial babble, read my newest Wisconsin Law Journal post, "Wisconsin Courts as Superlegislatures," available here.  Enjoy!

Sunday, October 23, 2016

Amanda Knox’s Trip to Italy

Let’s face it: It could be many, many months before Season 2 of Making a Murderer is released — although my book on Avery and Dassey will available April 4th.  In the meantime, be sure to watch the Netflix documentary Amanda Knox.  It’s just like Making a Murderer, only set in beautiful Italy instead of Manitowoc, Wisconsin.  Okay, it’s not just like it, but there are numerous, uncanny parallels between the Amanda Knox case and the Avery and Dassey cases, including these:

Tuesday, October 11, 2016

How to fix the presidential debates

These so-called debates are so absurd that I can’t stand to watch them.  Even when I’m at home alone, I get too embarrassed and have to turn the channel.  I try to watch, but I just can’t.  And these debacles don’t in any way resemble an actual debate.  Rather, the participants’ goals seem to be: (1) interrupt your opponent as often as possible; (2) ignore the question whenever possible and instead talk about something completely unrelated; and (3) work in as many sound bites as possible.  And the moderators don’t help either.  Their two biggest problems are: (1) they seem to be participating in the debate rather than moderating it; and (2) they ask absurd questions about topics that are far beyond the reach of the office of the president.  The good news, however, is that there is a simple fix.  Because the Commission on Presidential Debates seems to be really dense, and has no idea how to structure debates to “provide the best possible information to viewers and listeners,” I’ll put this advice in the form of a simple numeric list.

Sunday, September 25, 2016

Convicting Avery (Prometheus Books, 2017)

How often is Wisconsin criminal law and procedure front and center on the national stage? Probably once, and that is thanks to the Netflix documentary Making a Murderer. But of course, a ten-hour documentary about three criminal cases (two for Avery and one for Dassey) doesn't allow much time to explore the laws and procedures behind the convictions. Therefore, I wrote a book titled Convicting Avery: The Bizarre Laws and Broken System behind "Making a Murderer." It is being published by Prometheus Books and will hit the shelves on April 4, 2017. As the title makes clear, the book will expose the numerous flaws in Wisconsin's criminal justice system that contributed to the three convictions. In the meantime, if you're one of the few people in the world yet to see Making a Murderer, watch it now on Netflix. And if you're looking for up-to-the minute links, news, and commentary on Avery and Dassey, check out the Tick Tock Manitowoc group on Reddit. Finally, for my first two books, check out my amazon author page.

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: