What’s Your Motive?

Criminal law is riddled with double standards.  For example, suppose that two seventeen-year-olds get into fisticuffs in the state of Wisconsin, and one of them gets a bruise on the cheek.  Typically, the winner of the fight gets prosecuted regardless of who started it, so let’s further suppose that the kid without the bruise gets charged with felony child abuse.  How can this be?  In Wisconsin, he’s considered an adult because he’s seventeen, and therefore can be charged criminally in adult court.  But wait: the kid who got the bruise on his cheek is also seventeen, so how can this be “child” abuse?  Because there’s a double standard: when considering the age of the accuser, seventeen-year-olds are considered to be mere children, rather than adults.  But as absurd as this double standard is, it pales in comparison the double standard for motive and the third-party defense.  

I see grooming behavior

As I sat on my couch watching the latest edition of Sports Center, I happened to catch a Kay Jeweler’s commercial.  You know the ones: “Every kiss begins with Kay.”  Well, this one was marketing jewelry for kids.  A handsome chap was presenting a little gem to, well, a little gem, and he told her “I’m so happy to be marrying your mom, and I’m really happy that you’re gonna be in my life, too.”  And, because it’s a commercial, the child absolutely loved the gift, and the mom looked on lovingly from the background. 

I wasn’t able to find this commercial on YouTube, so I can’t link to it.  But most people who watch this commercial will see a brilliant marketing campaign (after all, they’re opening up a whole new market for their product), or maybe the frivolous side of capitalism (does a child really need jewelry?), or maybe even a sweet moment (there’s no way this marriage will end in divorce).  You wanna know what I see?  I see grooming behavior. 

I don’t care about your child

As a criminal defense lawyer, I fear cases where children are the ones making the accusations.  The reason is that no matter how bizarre, implausible, or flat-out false the accusation might be, some people seem to have an inherent pro-child bias which can, in some cases, cause them to suspend reality.  It also enables them to see and hear things that don’t exist.  But this pro-child bias is not limited to jury trials; rather, it infects most aspects of our lives, and was on full display when a nice looking couple went to a baseball game and caught a foul ball.  Because of this, they made national news and were demonized for failing to cater to a nearby crying child that wasn’t theirs, and that they didn’t even see.

Socrates goes to law school

The legal profession is littered with lawyers and judges that are unprepared to do their jobs.  Some of us are incapable of understanding even the simplest legal doctrines.  Yet others among us have the ability, but simply are not interested in gaining a deep, working knowledge of our craft.  And many of us are just lazy beyond belief.  All of this manifests itself in inefficiencies and astronomical costs – costs that are borne by the litigants and the taxpaying public.

I recently wrote about one such case in Milwaukee where the judge went to great lengths to avoid giving the defendant his trial.  In the process, he completely botched the law, and, twenty-three court hearings and an appeal later, the case was still unresolved.  (Update: after a few more hearings – about thirty in total – the prosecutor finally dismissed the case.)  More recently, defense lawyers in a Racine case had to spend an astronomical amount of time researching, briefing, litigating, and appealing a simple legal issue, just because the prosecutor and the judge didn’t understand (or refused to accept) the law. 

And these examples are far from anomalous; rather, they are common occurrences.  But where does this incompetence, laziness, disinterest, and cavalier disregard for the law come from?  I’ve given it a great deal of thought, and I think we can blame the ancient Greek philosopher Socrates.

What’s going on with the Supreme Court?

SCOTUS

Benjamin Barton’s recent empirical study explores the pre-appointment legal experience of our Supreme Court justices.  One of the things Barton looks at is the justices’ actual years of private practice experience, which is defined as the number of years a justice actually served clients, including not just real people, but also corporations and not-for-profits.  It turns out that the current Court has the lowest number of years ever of private practice experience per justice (six years), and two of the justices have never served any client in the practice of law.  And just because a justice may have some experience working in private practice, the experience is typically at a large law firm or corporation, where the justice probably never actually handled a real case (of any kind) from start to finish.  

A Response to Brian Leiter: First, Don’t Kill All the Law Reviews

Okay, okay.  I know I just announced my blogging hiatus a few hours ago, but something on the web just caught my eye and I had to write a post.  (Then, it’s back to my hiatus.)  Brian Leiter, a law professor, recently wrote Four Changes to the Status Quo in Legal Education That Might Be Worth Something.  Leiter has a Ph.D. in philosophy (which is one of my favorite subjects), so I like him already.  However, I strongly disagree with the third of his proposed legal education reforms, which is to “[c]ut the number of law reviews by 75%, and turn the remaining ones over to faculty supervision[.]”  It’s true, as Brian contends, there is a lot of “worthless scholarship” out there.  However, those extra articles aren’t really hurting anyone, and there are at least three good reasons to keep law reviews out of faculty hands. 

Hiatus

The Legal Watchdog is going on a brief hiatus.  I have a lot of editing and proofing to do on my forthcoming book, Tried and Convicted (Roman & Littlefield Publishers, Inc.), and a lot of preparing to do for an upcoming jury trial.  During the hiatus, Knightly (pictured) will rest and gather his strength for The Dog’s next post, which is expected early to mid-April.  In the meantime, you can read some advance praise for Tried and Convicted, which is due out this summer, after the jump.

Happy March Madness!

Ring Out Ahoya!

Welcome, once again, to the most wonderful time of the year!  The NCAA tournament is the greatest sporting event in the world.  Heroes will be born.  Hearts will break.  Cinderellas will rise.  Giants will fall.  And Bill Raftery will, at some point, say “Lingerie on the deck!” “Square the puppies!” and “A little nylon!”  (And his able partner-in-crime, Verne Lundquist, will laugh heartily.)  Meanwhile, Knightly (left) celebrates Marquette’s 3-seed and picks the Final Four:

#1 Kentucky (South).  The question isn’t whether Coach Cal will get to the Final Four again, but rather, will the appearance later be vacated?  His two previous Final Four appearances (with U-Mass and Memphis) have been wiped from the books due to later-discovered NCAA violations, though he, personally, was not “directly implicated in anything.” 

#3 Florida State (East).  After knocking off both Duke and North Carolina, the ACC tournament champion Seminoles (and their ACC coach of the year Leonard Hamilton) are a tough out.

#2 Kansas (Midwest).  North Carolina is too erratic.  The Big Twelve’s regular season champion will emerge from the Midwest.  Now all they need is a new fight song.

#4 Louisville (West).  Kentucky might not even be the best team in, well, Kentucky.  Slick Rick has the Cardinals' press in high gear, and Peyton Siva might be the fastest man on the planet, with or without a basketball in his hand.

Champion: Louisville Cardinals.

Miranda: Custody within Custody?

Is this man in custody?

When the police have a suspect “in custody” and they want to interrogate him, they must first read him his Miranda rights, which still include (arguably) the right to remain silent.  And the test for whether a suspect is “in custody” has produced some very interesting cases.  For example, assume that the police are questioning a suspect at his home, but while pointing their guns at him; is the suspect “in custody”?  Or what if the police use the old bait-and-switch and “invite” a suspect to come to the police station under false pretenses, and then start interrogating him once he gets there; is the suspect “in custody” in that situation?  You might be able to formulate good arguments on both sides of these coins.  But, when a suspect has been formally imprisoned and put in a jail cell, and the police go to question him, surely that prisoner is “in custody” and entitled to the Miranda warning, right?  Not so fast.  The Supreme Court says that we have to look at whether there was "custody within custody."

Are you in the “Top 14”?

Sorry, number fifteen.

Reading about the legal “academy” is pretty fun (unless you’re a recent J.D. grad who is still fuming over your high student debt load and your poor job prospects).  One of the things I’ve always chuckled at is their reference to the “Top 14” law schools.  The schools (and graduates of the schools) that fall just inside of this cutoff like to refer to it, because it’s better to be in the “Top 14” than the “Top 15" (sorry, UCLA).  And of course, those outside of it like to refer to the “Top 20,” or even the “Top 25.”  (Anything beyond that is sacrilegious in the academy; sorry, Boston College.)  And for some purposes (e.g., landing a federal clerkship) the more meaningful cutoff is probably the “Top 5” or maybe the “Top 10.”  But where does the “Top 14”—mathematically an even number, but rather odd for ranking purposes—come from?

Econ Talk and the Environment

The Electric Car

I’ve never been too swayed by movements to save “the environment.”  After all, the only reason we enjoy the quality of life that we do is that our species has been able to keep nature in check, at least for the most part, most of the time.  But whether it’s a tsunami, a volcanic eruption, a deadly mutating virus, a near-miss asteroid, a dangerous solar flare, a flesh eating bacteria, an earthquake, a deadly spider, the ice age that’s right around the corner, or even our own highly imperfect evolution, nature and “the environment” are aligned against us and could kill us at any time in any number of terrifying ways.  True, I live in Wisconsin where I happen to be shielded from many, but not all, of these completely natural but deadly creatures and phenomenon.  Also true, I’ve yet to fall victim to my aging and disease-prone genes (although I likely have lived more years than I have left in front of me).  But my point is that “the environment” strikes me as more of an adversary than a thing worthy of my charity or concern. 

"Hot for Teacher" and Free Speech

In a recent post I wrote about a college student who was kicked out of school for engaging in "unlawful individual activity."  His crime?  In a free-writing exercise in a creative writing class at a public university, he wrote that his teacher was attractive.  A few days after The Dog's post, ABC News picked up the story, and you can now see a video of the student explaining his side of things.  Even the Van Halen News Desk is paying attention.  (Scroll down the VH News Desk link and you can enjoy Hot for Teacher—quite possibly the greatest rock video ever made.)  You can also find the student's actual journal entries, as well as a letter written by the hot teacher, all on the Foundation for Individual Rights in Education website.  I love it when education and Van Halen come together.  (Pictured left: Eddie Van Halen's guitar.)   

Spin Doctors

Dealing with prosecutors on a daily basis, I often get to hear some pretty outlandish spin on both facts and law.  But even the most motivated prosecutor would get dizzy from the spin put on these two former Duke University employees.

First, there’s the case of a former Duke medical research doctor.  As 60 Minutes just reported in Deception at Duke, the doctor was involved in what might turn out to be one of the “biggest medical research frauds ever.”  In a nutshell, the doctor claimed to have decoded the genetic makeup of cancer tumors which allowed him to match a person’s cancer to the best treatment with 80 percent accuracy.  His work was hailed as groundbreaking, but when two Houston doctors analyzed the results, they found something odd: the Duke doctor’s data was riddled with what were thought to be errors.  Duke ultimately concluded (many years later) that far from being filled with errors, the data was being manipulated to reach the desired outcome.  The result, unfortunately, was that patients in the Duke clinical trials might have been receiving “not the best drug for their tumor, but the worst.”  You can imagine what happened to them.

"I want to believe."

Poster available at
Zazzle.com

While wanting to believe may be necessary for the religious and Fox Mulder, I think society could benefit from a healthy attitude shift toward the don’t-rush-to-judgment end of the spectrum.  An objective, skeptical, cautious, and even indifferent approach to life has its rewards.  Unfortunately, however, the attitude on some college campuses these days seems to be leaning—or, more accurately, falling over—in the opposite direction. 

We all know what happened in the Duke Lacrosse case a few years ago.  I’m not referring to the false allegation itself; that sort of thing happens all the time.  Even a poorly constructed web search will reveal hundreds of proven false allegation cases, including those at Duke University, in small town Port Washington, WI, and at Northeast High School in Macon, GA.  And of all the false allegations that are levied, only a fraction of those can be conclusively proven false, and only a fraction of that fraction are ever reported by the media.  In reality, then, there is good reason (and evidence) to believe that a very large percentage of all accusations are, in fact, false.  But again, that’s not my point.

MBA or JD?

One business executive makes a compelling case for B-School.  (Apparently, it's too cumbersome to say "business school.")  Click here to see the hilarious video.