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?

Knightly celebrates the (temporary) revival of the confrontation clause

Knightly's celebratory play bow

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 my articles Confrontation after Crawford, and Judicial (In)Discretion, and my personal favorite Dead Again.  You can find all of my articles, organized by topic, by simply going to my articles page.

"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 U. Civil Rights L.J. 1 (2013). For links to my other articles, simply go to my articles page.