"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."

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.      

Please, no more rules

The legal profession is, in some ways, laughable.  We have endless procedural rules that come in numerous forms, including statutes, supreme court rules, appellate court decisions, local court rules, and scheduling orders.  The problem is that judges ignore these rules as fast as they (and the other lawmakers) can dream them up.  For example, you think you have the right to call witnesses at your preliminary hearing just because the statute specifically says you can?  Think again.  You think that evidence against you will be suppressed because your rights were violated?  Unlikely.  You think the prosecutor has to turn over discoverable materials within sixty days of your demand just because the scheduling order commands it?  Not even close.  And how about the most basic thing of all: you think you have the right to testify in your own defense at trial?  Only if the judge is in the mood to hear from you.  No other profession could possibly survive if its professionals were to behave the way judges do.  But where does this judicial disdain for the rule of law come from?

“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?