Tuesday, December 24, 2013

It’s bowl season!

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. 

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 CrawfordJudicial (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.