It’s that time of year again! Bowl season is here. Just yesterday, in fact, the Beef ‘O’ Brady’s Bowl was played in front of a near-empty stadium. (And for some reason, I now find myself compelled to watch a replay of the game on ESPN.) But this just means that better, more exciting bowl games are on the way. And with the heart of bowl season fast-approaching, I thought it would be a good idea to re-post “Area Doctor Launches Don’t Overeat Bowl,” with some updates, after the jump.
Tuesday, December 24, 2013
Saturday, December 21, 2013
|Knightly's celebratory "play bow" for Mr. Albee|
The Sixth Amendment’s confrontation clause is, pretty much, what it sounds like: it gives a criminal defendant the right to cross-examine his accusers. This particular right is not a mere technicality. We all know that talk is cheap, and criminal accusations should be tested in open court. However, judges have carved away at the right of confrontation by creating numerous exceptions by which it can be satisfied—or, more accurately, ignored—without giving the defendant the opportunity for cross-examination. In addition, our
supreme court developed another way to get around this fundamental right: they created
a far-reaching exception allowing lower courts to find that the defendant forfeited
the right before trial, and therefore is not entitled to confrontation or
cross-examination. And even when the
United States Supreme Court held that Wisconsin’s
far-reaching, pro-prosecutor “forfeiture doctrine” was unconstitutional, Wisconsin
simply countered by labeling its prior forfeiture decisions (and the accompanying
wrongful convictions) as harmless errors. But now, after Federal Defender Craig Albee’s recent appellate win in a Wisconsin
federal court, the government's beloved “harmless error doctrine” has taken a
serious hit—at least in one case. But
this doesn’t necessarily mean that our state courts will learn their lesson and will stop violating our
confrontation rights. It just means that
they’ll have to create new ways to do so. So at least they’ll have to work for it. For more about the confrontation clause, its importance, the judicially created exceptions, and the forfeiture doctrine, read Confrontation after Crawford, Judicial (In)Discretion, and, my personal favorite, Dead Again.
Saturday, December 7, 2013
When lawyers try to defend criminal cases by arguing not only that their client didn't do the crime, but also that the lawyer knows who did it, judges start to panic. (This defense is known as the wrong-person defense or the third-party defense.) Judges don't like it when defense lawyers start questioning the prosecutor's charging decision. They would much rather that the defendant simply take his medicine instead of trying to cast blame on someone else. After all, things get complicated once we entertain the possibility that the prosecutor charged the wrong person. And sometimes, judges get so crazy about this that their thinking process crosses the line that separates the merely irrational from the clinically insane. For example, one judge denied a murder-defendant's right to put on a wrong-person defense, "[e]ven where a third party was seen fleeing from the scene of the crime and admitted to killing other people and burying them in the very woods in which the victims' bodies were later found." Why did the judge exclude this defendant's evidence of innocence and of third-party guilt? It was simply "too threadbare to be admissible." (Interestingly, this defendant's evidence against the third party was much stronger than the prosecutor's evidence against the defendant, yet it was still considered inadequate.) In any case, this stuff makes for interesting reading, as long as it's not happening to you or your client! So check out my newest article, An Alternative to the Wrong-Person Defense, 24 George Mason University Civil Rights Law Journal 1 (2013). For links to my other articles, click here.
Wednesday, November 27, 2013
I'm not a fan of this time of year, mostly due to the holidays and, more specifically, the Christmas music that stores begin playing as early as November. However, most people feel otherwise, so I might as well try to take advantage of the "general mood." When you're buying holiday gifts this year, consider stuffing the stockings with a copy of my second book, Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights (Rowman & Littlefield Publishers, 2012). But don't buy it on my recommendation; I'm somewhat biased. Instead, listen to Robert Worley at the International Criminal Justice Review, who recently wrote: "Throughout this book, Cicchini argues that Americans should have a healthy distrust of the criminal justice system. . . . I strongly recommend this book. Once I opened it, I literally could not stop reading." That is sweet music to an author's ears (or eyes). Now, buy the book and give it to loved ones so they can learn what really goes on in "the system," starting with the police investigation and moving all the way through trial and even appeal.
Oh, and happy holidays.
Friday, November 22, 2013
Several years ago, legislators signed off on the Patriot Act in knee-jerk fashion, and many of them hadn’t even read the document. The reason? Well, first, the nation was in a state of fear, so obviously some piece of legislation had to be passed immediately—that’s just what lawmakers do. And second, it was named the Patriot Act. You would have to be unpatriotic not to get on board, right? Anyway, that was a case of great branding. Had it been named the Government Spying Act, or the Invasion of Privacy Act, fewer people would have supported it (although, I think it still would have passed). And now, this same branding phenomenon is playing out, only in reverse, with Obama-Care, a/k/a the Affordable Care Act.
Thursday, November 7, 2013
Sunday, October 27, 2013
When I write blog posts, articles, and even books, I operate largely on intuition and feel. That is, I can't articulate the rules of the English language -- such as where to use a dash or a semicolon -- yet somehow I have a decent idea of what to do. And when it comes to speaking, I, like most people, use language in a fairly sloppy manner, at least compared to my writing. So, given my own imperfections -- which I admit are deep and many -- I am very tolerant of the blogs, articles, and books that I read, and even more tolerant of the podcasts to which I subscribe. But there are a few things that bother me like a fly buzzing around my ear. Let's start with the phrase "quote unquote."
Tuesday, October 1, 2013
I’ve written numerous posts—for example, here, here, and here—about defense attorneys trying to put on evidence of innocence during a trial, only to have trial judges shut them down cold. As I explained in those posts, this happens most frequently when the prosecutor objects to a defense lawyer’s line of questioning as calling for “hearsay.” In most cases, however, the testimony isn’t hearsay at all. So the surprised defense lawyer does his best to play educator, and tries to teach the judge about the definition of hearsay. Yet, because many judges just cannot grasp this incredibly important concept, they sustain the prosecutor’s objection in knee-jerk fashion. The defense lawyer—much like a patient whose surgeon doesn’t understand basic human anatomy—is dead in the water (or on the operating table, as it were).
Now, I don’t mean to make light of this incredibly serious and utterly unacceptable state of affairs in legal education and, consequently, in the judiciary. But when I saw the following short video clip, I couldn’t help but think of physicist Brian Greene as the frustrated defense lawyer, and the other character in the video as the completely uneducated judge, incapable of grasping the lesson. (If the embedded video does not appear below, you can find it on YouTube by clicking here.) Enjoy.
All of this federal government shutdown business got me thinking about a possible state of
Wisconsin government shutdown. If that ever happens, which government
services would be considered essential, and which would be nonessential and,
therefore, suspended or even eliminated?
My modest proposal (for a hypothetical state-government shutdown) is
that we could do without the services of many of our appellate courts. Why? The story begins with a
recent Wisconsin criminal case, where the trial judge prevented the defendant from testifying in her
own defense. If that sounds shocking to
you, it should. Few things (if any) are
more fundamental than a defendant’s constitutional right to testify at her own
trial. So why wouldn’t the trial judge
let the defendant—here, an eighteen year old girl—take the witness stand?
Sunday, September 29, 2013
I generally enjoy APM’s Marketplace podcast, notwithstanding the host’s all-too-frequent use of the phrase “c’mon, man.” But in a recent episode, the host interviewed an Ivy League business school professor about “meetings.” In short, there are about 11 million business meetings in the
United States each day. About half of those surveyed said that about half of their meetings were unproductive or not a good use of their time. The prof’s conclusion: limit the duration of meetings to force the attendees to be more productive, thus getting more done in less time. Superficially, that sounds fine. But on closer inspection, here is my list of complaints about the podcast:
Saturday, August 24, 2013
The title of this post is a quote from Congressman Jared Polis of Colorado, who was weighing in on the NSA and its spying on American citizens. We now know that the NSA’s spy programs covered 75 percent of all domestic internet traffic, and included a special program that targeted love interests—a program the NSA cutely dubbed LOVEINT, for “love intelligence.”
Saturday, August 17, 2013
When some prosecutors argue in court, the things they sometimes say are so absurd (and often factually wrong) that I wish the trial judges had some inner Professor Kingsfield and could muster the courage to call bullshit, i.e., tell the prosecutors that they’re offending the concepts of logic, reason, and truth. The recent case of State v. Locke perfectly illustrates this all too common problem. In Locke, the prosecutor induced the defendant to plead guilty to some serious felonies, thus saving the prosecutor and the court several days in trial, and taking away all risk that a jury could find the defendant not guilty. In exchange for the pleas, the prosecutor agreed not to make a specific sentence recommendation. That is, the prosecutor retained the right to talk about the offenses and say negative things about the defendant, but he promised to leave the specific sentence up to the judge. So what happened at the sentencing hearing?
Saturday, August 10, 2013
Back in 2011 I wrote a post titled Hearsay 101, and begged trial judges to take the time to learn the rules on hearsay. I reasoned that trial judges wouldn’t want to have surgery at the hand of a surgeon who doesn’t know basic human anatomy, and defendants don’t want to have their freedom ripped from them because a trial judge doesn’t understand basic rules of evidence. Unfortunately, after reading the recent decision of United States v. Stern, it is painfully obvious that at least one federal trial judge missed my earlier post.
I would love to go back to the 80s. We had Al Bundy and Married with Children, style like LA Gear, movies like Back to School, and actual music videos like Rio on MTV. Oh, yeah, and most importantly, our government used to spy on the Soviets, instead of spying on its own citizens. Of course we can't really go back to the 80s, but maybe the 80s will be coming back to us. Now that Russia ironically gave shelter to NSA whistle-blower Edward Snowden, I hear that even the Cold War is coming back into fashion.
Saturday, July 27, 2013
recently held that when government agents attach GPS trackers to our cars to follow our every move, that is a “search” and, if done without a warrant, violates the Fourth Amendment. It’s amazing that we really needed a Supreme Court case to tell us that, but in this age of constant, mass, shameless government surveillance of its own citizens, well . . . Worse yet, even in the rare case, like this one, that the Supreme Court actually speaks out against a government spying practice, its words mean nothing.
Tuesday, July 9, 2013
[First read the introductory post, Meet Dexter Morgan.] Several times throughout the series, Dexter finds himself just a hair—or fiber or blood drop—away from getting caught. In season two, for example, FBI Special Agent Frank Lundy comes close to discovering that Dexter is the Bay Harbor Butcher. And if the Feds and Miami Metro were able to link all of those dead bodies to Dexter, what defense could he possibly have? More specifically, could Dexter successfully argue that he was insane and therefore not legally responsible for his multiple homicides?
[First read the introductory post, Meet Dexter Morgan.] In “Dex Takes a
Dexter uses his three-day mini-vacation away from Rita to target his next
victim, Zoey Kruger. (This, Dexter
explains, is a serial killer’s way of recharging his batteries.) But Zoey isn’t Dexter’s typical victim. Instead, she’s one of his own: a cop. Granted, she’s a bad cop—one that killed her
husband and child to escape the unbearable suffocation of domesticity—but a cop
nonetheless. Dexter begins, as he
usually does, by gathering solid evidence.
While prosecutors like Miguel Prado may go after defendants by filing a
criminal complaint first, and then creating evidence later, Dexter is more
careful. He knows that his targets face
a stiffer penalty than all but a handful of Miami’s
criminal defendants. So when Zoey puts
her house on the market—after all, who needs four bedrooms and a big yard when
you’ve just murdered your husband and daughter?—Dexter attends the open house. While there, he gets what he needs: physical
evidence. He finds a small part of the
glove that Zoey wore when she did the deeds.
The glove fragment has the gunshot residue and the blood evidence
necessary to link Zoey to the double murder—the proof that Dexter’s moral code
requires before he can drug Zoey, immobilize her, stab her, slice her into neat
little pieces, and send her to her final home below sea level.
Not all book ideas grow up to be books. I recently wrote a proposal for a law-related book about Showtime’s Dexter. As a Miami Metro Police Department blood analyst by day, and a serial killer by night, Dexter Morgan found himself buried in legal issues—a lawyer-writer’s dream. Although several publishers really liked the proposal, so far they’ve all passed on the project. It turns out that in publishing, as in much of life, timing is everything. Because Showtime recently announced that Dexter will end its eight-year run later this year, and because books can take nearly a full calendar year to get to print, the publishers thought that my Dexter-themed book would be too late to the dance. (I respectfully disagree, as the season eight DVD won't be released until next summer. Besides, academics are still writing about Buffy the Vampire Slayer a full decade after Sarah Michelle Gellar hung up her stake.) But blogs, unlike books, are near instantaneous. And with Dexter’s final season now in full swing, I thought that fans of the show might enjoy the two short chapters that I wrote for the book proposal. The chapters—one on Dexter and the chain of custody and one on Dexter the insanity defense—are, obviously, about a fictional show, not legal advice, and purely for entertainment purposes (unless, of course, any of you Dexter fans and Legal Watchdog readers are also publishers, in which case you should contact my agent Janet Rosen for a copy of the book proposal). So enjoy the two chapters that will follow immediately after this post. Related links: An earlier post on Dexter, DNA, and Maryland v. King; my first published book; and my second published book.
Sunday, June 30, 2013
I've complained about journalists completely dropping the ball when reporting on legal issues. And the Popehat blog does a great job of demonstrating that many legal journalists are completely incapable of doing their jobs, even when they try. Yet all of this is nothing compared to the miserable coverage of Edward Snowden’s whistle-blowing on our government’s massive spying operation. So if you want journalists that fall in line behind the government bureaucrats and repeat their brain-dead platitudes about how the spying is good for us, then stick with the media-as-usual. But for real, critical journalism that gets to the underlying issues, follow RT News coverage.
Saturday, June 22, 2013
In criminal law, we typically start with a general constitutional rule that was designed to protect individuals from the coercive power of the government. But then, judges decide that the rule is giving too much protection at the government’s expense, and they spend years chipping away at it in court decisions. They create multiple bizarre, hyper-technical exceptions to the rule, based on factual distinctions without a meaningful difference, until the original rule becomes unrecognizable. The best and most extreme example of this phenomenon—an example that has unfolded over several decades—is what the courts have done to our Fifth Amendment rights, including our right to remain silent and our right to an attorney before and during police interrogation (see pp. 915-28 of this article). But it doesn’t end with police interrogations. Thanks to a new
case, it appears that the Fifth Amendment is on the ropes in the probationary
context as well.
Saturday, June 15, 2013
Sometimes, judges will impose rules and deadlines on prosecutors, especially when they get the sense that the prosecutor is pursuing a frivolous case. For example, “You hid this evidence from the defense lawyer until now, the morning of trial? I’m excluding it from the trial because you violated the discovery rules and my scheduling order, and the defendant wouldn’t have the necessary time to prepare his case.” Or, “This case has been pending for three years, and you want to completely change the charges the morning of trial? No dice; you’re going to trial on the charges that you've filed.” Granted, this doesn’t happen often, but even when it does, judges quickly learn that it’s the prosecutor, and not the judge, that controls the courtroom.
Because I practice criminal defense in state courts, I really don’t keep up with cases on the federal rules of criminal procedure. But a recent post on Michael O’Hear’s Life Sentences Blog caught my eye. O’Hear writes about a federal rule that prohibits judges from getting involved in the plea bargaining process. (
courts have a similar rule, so I’m quite familiar with it. Further, there is at least one good reason behind
the rule: sometimes judges don’t understand the law, so it’s best if they just stay out of the way.) But what happens in
federal court when a judge breaks this rule?
What if he sticks his nose into the parties’ plea negotiations, bullies the
defendant to take a deal, and the defendant later regrets it and wants to
withdraw the plea? Is he entitled to
take back his plea and start fresh? Not
quite. It turns out that the federal “rule”
against judges pokin’ around in the parties’ business is really more of a “suggestion”
than a rule.
I love movies about writing. Whether it’s a movie about short fiction and book clubs (Kicking and Screaming), book-length poems and multi-volume “confessions” (Henry Fool), investigative reporting pieces (Safety Not Guaranteed), the great American novel (Sideways), academic journal articles (Tenure), or even magazine restaurant reviews (The Trip), these writing-themed movies are often smart, witty, engaging, and far more interesting than any summer blockbuster. But in the newest movie (Wonder Boys) to make my
DVD collection, the old, nearly used-up novelist character laments: “Books. They don’t mean anything. Not to anybody. Not anymore.”
Tuesday, June 11, 2013
Saturday, June 8, 2013
Dexter is a blood analyst for the Miami Metro Police Department by day, and, unbeknownst to nearly everyone, is also a serial killer by night. With that type of work, it’s no wonder that television’s most beloved murderer, and his workaday colleagues at Miami Metro, are buried in legal issues. Take, for example, the time that both Miami Metro and Dexter were tracking the Trinity Killer—the mysterious killer that always took three victims in each of his murderous cycles. Miami Metro had a great idea: employ the “
sweep.” The cops simply set up “ DNA
roadblocks” on the highway, stopped all of the cars, and forced everyone to
submit their DNA to be tested against the DNA left behind at
one of Trinity’s crime scenes. (In the
end, that’s not what caught Trinity—Dexter got to him first and delivered his
own brand of serial-killing justice.) I
remember laughing aloud when seeing this Miami Metro police practice. Even in today’s over-the-top, short-sighted, hysterically
tough-on-crime society, these DNA sweeps would never be allowed—or so I
thought. And then our Supreme Court
decided Maryland v. King.
Read my recent interview with Laws.com, here, about how I accidentally drifted into the world of criminal defense. And while I never intended to become a criminal defense attorney, The Dog’s next post (following shortly) is a good example of why I can’t seem to escape.
Saturday, May 25, 2013
Saturday, April 20, 2013
Police perjury in the Fourth Amendment context is widespread and well-documented. (Read pages 547-48 of this article, and pages 472-73 of this article, for details.) In a nutshell, if a cop tells a judge that he saw, heard, or smelled something that aroused his suspicion, judges will uphold any police search and look the other way on Fourth Amendment violations. But not Judge Guolee of Milwaukee. He’s not afraid to “call bullshit” when he sees (or smells) it. In State v. Jackson, the defendant challenged a police search of his vehicle's trunk and the judge held a hearing. At that hearing, the cop testified that he was legally justified in searching the trunk because he could smell the marijuana. But instead of rubber-stamping the testimony and automatically finding that there was no Fourth Amendment violation, Judge Guolee had about enough. Here’s what he said:
Friday, March 15, 2013
Big Dance fast approaching, everyone is asking, “Who will be this year’s George Mason?” Well, I guess it won’t be George Mason, as they lost a heart-breaker in their conference tourney. But they do have good taste in law review articles. Stay tuned for my newest article, “An Alternative to the Wrong-Person Defense” which will appear in the George Mason University Civil Rights Law Journal this fall. In the meantime, check out the blog post on which the article was based, and check out GMU’s Civil Rights Law Blog, which is full of chocolatey cookie goodness for the libertarian-minded reader. Oh, and enjoy March Madness.
Tuesday, February 5, 2013
I exercise my free speech rights nearly continually, and the government is my biggest target. Fortunately for me, “criticism of the government and advocacy of unpopular ideas . . . are almost always permitted” under the First Amendment. So whether it’s my books, articles, blogs, or podcasts, my keyboard is rarely at rest, and my big mouth is rarely shut. (In fact, my contrarian jabbering as a child led my mother to accurately predict my careers as both lawyer and writer.) But I sometimes forget how lucky I am – lucky not only compared to citizens of other countries who can be imprisoned or even killed for speaking out against their governments, but also compared to others here in the United States.
Saturday, February 2, 2013
Thursday, January 17, 2013
Monday, January 14, 2013
The authors analyzed the Miranda portions of electronically recorded police interrogations in serious felony cases. The objectives were to determine what percentage of suspects waived their rights, whether the suspects understood their rights before waiving them, and whether the police employed any tactics to induce the suspects to waive their rights. The results of the study revealed that 93% of suspects waived their Miranda rights and talked to the police. Further, it is unlikely that those suspects understood their rights; in fact, the police used a version of the Miranda warning that required a reading level that far exceeded that of most suspects, and the police did very little to ensure that suspects actually understood their rights before waiving them. Finally, the police spoke significantly faster when reading suspects their Miranda rights, and, in more than half of the interrogations, also minimized the importance of the rights. Both of these tactics likely limited the suspects’ comprehension of the rights and their importance, and likely induced them to waive, rather than invoke, their rights. These findings are largely consistent with the limited number of other social science studies that have been published, and raise serious doubt about whether suspects’ waivers are truly voluntary, knowing, and intelligent, as required by Miranda. Based on these findings, the authors also recommend specific reforms to the Miranda process. Full article available here.
Saturday, January 5, 2013
Criminal procedure can be incredibly harsh and unforgiving for defendants and their lawyers. If a defense lawyer makes the smallest misstep, or fails to do or say just the right thing at just the right time, he can inadvertently “waive” his client’s rights and protections, often with disastrous outcomes. But, when it comes to judges, the law is much more forgiving. In State v. Robinson the judge sentenced the defendant to a multi-year term of confinement. The defendant was hauled out of the courtroom and straight to jail to begin serving her time. But the judge slept on it, had second thoughts, and decided that he wanted a “do over.” So the next day he had the deputies haul the defendant out of jail and back into court, where he re-sentenced her and gave her an additional nine months.