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
Monday, December 23, 2013
State bar recommends new lawyers do free legal work to reduce their anxiety from not having money or legal training
In
November, 2013, a “special task force report” by the State Bar of Wisconsin
concluded that a large number of new law grads can’t find jobs to pay off their
staggering student debt loads. In
addition, many of those who were fortunate enough to be employed (or
underemployed) were afraid to practice law because they didn’t know how. Here’s a nice excerpt of a summary of the
report from the bar association’s e-newsletter:
“My
debt is higher than a mortgage for a nice house. It’s all I think about. And I
know I will be strapped in a job I don’t want paying debt for the rest of my
life,” said [one new lawyer].
“I’m
buried under debt. I’m terrified that this is what the rest of my life is going
to look like. I’m also scared to start my own practice, because I
don’t have the practical litigation experience.
I can’t afford a pet, let alone kids. I live paycheck
to paycheck. It’s very, very scary and disheartening,”
was another response from a new lawyer.
Another
lawyer said the job search left the lawyer feeling “suicidal” and “terrified.” The
lawyer also feels alone and scared of making a mistake in practice but is
hesitant to tell anyone about these mental struggles for fear of being
disbarred.
.
. . [A] task force member and past president of the State Bar’s Young Lawyer’s
Division[] said the lawyers who made these sorts of comments “are fast becoming
your average member of the State Bar.”
So,
in short: lots of stress due to high debt loads, no jobs, and the fear of
practicing law because of the lack of training and the related risk of
disbarment. So what is the state bar’s
solution?
Saturday, December 21, 2013
Knightly celebrates the (temporary) revival of the confrontation clause
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 Wisconsin
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
"My client didn't do it, but I know who did."
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
The perfect holiday gift. Seriously.
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.
Saturday, November 23, 2013
From around the world wide web
I nearly always write original posts, but once in a while I like
to share things from around the world wide web. Let’s
start with the incomparable and amazing Popehat and its coverage of the free speech issues at the University of Texas . It turns out that some students didn’t like a
conservative student group’s activities designed to raise awareness (I love
that phrase) of immigration issues. So
not only did the academic community shame the conservative group—something that
Popehat points out is the proper reaction to unpopular free speech—but many
students are also asking the government to step in and punish the conservative
group for exercising their free speech rights.
In a nutshell, Popehat points out how ignorant this is. Don’t these students know that some day—or
even today in some contexts—their own speech will be hurtful and
unpopular to others? Do they really want
the government stepping in and censoring them? When reading the post it struck me just how much
some people rely on the government today.
They turn to it for nearly everything, even when their feelings are hurt
because others are saying unpopular or offensive things. Man-up, offended students of U.T.! When you leave the academic bubble and, hopefully,
get jobs, people will say and do things all the time to offend you. Get used to it, and stop running to the
government for your every (imagined) need.
Also from around the web . . .
Friday, November 22, 2013
Obama-Care: The worst branding effort in history?
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
Sex and Religion
I stole the title of this post from an album by the world’s greatest guitarist, but the idea behind the post came from a recent essay on
Minding the Campus, titled The Hyped Campus Rape that Wasn’t.
Sunday, October 27, 2013
"Quote unquote."
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."
Saturday, October 26, 2013
Judging
I've written a lot of posts about judges' inability to grasp basic legal principles, and how frustrating and costly this can be. (For a couple of recent posts, in which you'll find several additional links, see here, here, and here.) I've also speculated, here, that much of this can be traced to the American law schools that produce the graduates who eventually become judges. One of the problems with many of our schools is that they really don't teach a whole lot about legal theory, and even less about lawyering. (They do, however, love to teach social science theory and the law.) One of the reasons law schools don't teach much law is that an increasing number of new law professors -- especially those at elite schools -- have a Ph.D. but no law degree. And, many of the law professors who do have law degrees have never practiced law in the fields they teach; further, many have never practiced law at all, or only in rather sheltered settings for a year or two. The blog Outside the Law School Scam gives an excellent example of this incredibly common law school hiring practice: a law prof teaching criminal procedure who has never practiced criminal law. (The blog post further points out that the prof has "near-zero experience" in legal practice of any kind.) The problem, obviously, is that these law professors can't add anything of value to what a reasonably intelligent law student can do on his or her own: read and think about statutes and case law. And the bigger problem is that these law professors are training -- or, rather, not training -- our future judges. In short, I don't see any improvement on the horizon for the state of our judiciary.
Thursday, October 17, 2013
Please, no more rules
Tuesday, October 1, 2013
“Judge, have you been studying this at all?”
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.
Government Shutdowns: A Modest Proposal
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
On the (business) media
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:
Tuesday, September 3, 2013
Hiatus (and some fun links)
Knightly is on summer hiatus |
Saturday, August 24, 2013
“This is getting more and more out of control the more we find out about it.”
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
The non-recommendation recommendation (and other government bullshit)
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
Why judges should read The Legal Watchdog
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.
Back to the 80s?
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, August 3, 2013
Why law schools should line up to pay LST for honesty certification
Not many people like lawyers. By extension, not many people care for the law
schools that produce the law graduates that become lawyers. To make matters worse, the last few years have
been exceptionally tough on the law school industry. For example:
- Numerous law schools have been sued for false advertising about their graduates’ employment outcomes. And even when those lawsuits are dismissed, judges sometimes do so because the reported numbers were so obviously false, it wasn’t reasonable for prospective students to rely on them—not exactly a “win” for law schools in the court of public opinion.
- Worse yet, several mainstream media outlets (for example, here and here), and even several current law school professors (for example, here, here, and here) have been highly critical of law schools, especially with regard to the cost of earning the degree and the limited employment opportunities that are really available for graduates.
- These events are at least partly responsible for the dramatic decline in law school applicants. And with demand for product way down, many law schools have now moved to a near open enrollment policy to try to keep revenues up.
Even if you disagree with the claims in the lawsuits, and
feel
that the law degree is still well worth its price, and think that the drop in applications is just a temporary glitch, there is no denying that it
has been rough going for the law school industry. Further, with schools just starting to feel
the hit of lower enrollments, it is undisputed that revenues will be down and times
will be tough for at least a couple of years.
So, given that, what can a law school dean do to improve his school’s
fortunes?
Saturday, July 27, 2013
Lower court overturns higher courts so it can affirm conviction
The limits of empirical studies (updated)
When I write law review articles my arguments
are generally rooted in things like “logic,” “consistency,” “analogies,” the admittedly-vague
concept of “fairness,” and sometimes even “economic reasoning.” (Other times, the things I criticize are so
absurd that it would be more accurate to say my arguments are rooted in
“anti-stupidity.”) However, sometimes
hard data combined with basic statistical techniques—see, for example, here and
here—can do wonders for effectively demonstrating a point. But as a rule, I’m not a fan of empirical
studies, and the recent “value of a law degree” debate shows why.
That’s one helluva student-faculty ratio! (Updated)
Law schools are obsessed
with rankings, and therefore love to pander to the US News, aka “the surviving rump of an otherwise defunct news magazine[.]” And because US News
says that one of the factors used to determine the best law schools is student-faculty ratio—more faculty members per student is better—law schools hired faculty at a torrid pace, at least until the recent layoffs and buyouts due to dramatically declining law student applications. (At some point, economic reality has to kick
in.)
Tuesday, July 9, 2013
Dexter and the Insanity Defense: "I Really Need to Kill Somebody"
[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?
Dexter, Miami Metro, and the Broken Chain of Custody
[First read the introductory post, Meet Dexter Morgan.] In “Dex Takes a Holiday ,”
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.
Meet Dexter Morgan
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.
Saturday, July 6, 2013
Legal academia shakeup
Nearly one year ago, I wrote a blog post titled Law School Management 101 (or how to deal with your school’s looming fiscal crisis). In it I reminisced how, by the time I
graduated in 1999, law school tuition had risen from about $13,000 per year to nearly $20,000
per year. Sitting there in my cap and
gown with tuition payments behind me, I then wondered, “who would want to go to law school at these prices?” In that
post I conceded that my price-sensitive way of thinking back then was at least ten years premature. Why? Because between then and now, tuition
continued to rise (eventually into the $40,000-plus range at many private schools),
yet the number of applicants rose right along with it. In other words, applicants were willing to
pay those prices and a whole lot more. But as it
turns out, I may not have been ten years ahead of my time after all. Today, the market for legal education has corrected, and some
schools are now lowering tuition back to 1999 levels.
Sunday, June 30, 2013
Relief from the media
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
On Probation: The Dangers of Assuming a “General Rule” [UPDATED below]
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 Wisconsin
case, it appears that the Fifth Amendment is on the ropes in the probationary
context as well.
Saturday, June 15, 2013
Prosecutors might not control the world after all
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.
It’s really more of a suggestion than a rule
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. (Wisconsin state
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.
The death of books?
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
Kenosha government: Walking over dollars to pickup pennies
Saturday, June 8, 2013
Dexter, DNA, and Maryland v. King
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 “DNA
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.
“I didn’t intend to become a criminal defense attorney.”
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
Kaitlyn Hunt 101: Lessons in criminal law
Saturday, April 20, 2013
Sniffing out police perjury
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
George Mason is this year’s George Mason
With the 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.
Saturday, March 2, 2013
Paul Campos: “Damn it feels good to be a gansta”
Paul Campos is a law professor who started and, sadly,
recently ended a blog titled “Inside the Law School Scam.” The title of the blog speaks for itself, and there
is little I can write about Campos
that hasn’t already been written. But a
little is better than nothing, so here goes:
The next bubble is here
Saturday, February 23, 2013
Lies, damned lies, and the statistics that expose them
Friday, February 15, 2013
The wrong kind of theory
Legal education has come under a great deal of fire
lately. One criticism that has been
around long before the recent legal education crisis, however, is that law
schools teach only theory, and not practical skills. The debate, in a nutshell, boils down to two
competing camps. The practicing-lawyer
camp mocks theory, while praising the value of a practical education. After all, we lawyers are licensed to
practice law, and clients deserve some basic level of competence, even from new
graduates. The law-professor camp, on
the other hand, elevates theory to heavenly heights, singing its praises along
with the importance of teaching students “how to think like a lawyer”—whatever that phrase may mean. Unfortunately, the
two sides are only preaching to their respective choirs. In fact, the debate never gets off the
ground because the word theory means something different to each camp.
Saturday, February 9, 2013
Law review publishing: In search of a useful ranking system
Tuesday, February 5, 2013
Speaking Freely
Saturday, February 2, 2013
Sports and Courts: What Judges Can Learn from the NCAA
Thursday, January 17, 2013
The New Miranda Warning (Cicchini)
Monday, January 14, 2013
Overcoming Miranda (Domanico, Cicchini & White)
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
Judicial do over
Lawyer salaries: going, going . . . gone
Double Standards in Legal Ethics
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