Thursday, August 4, 2016

Ethics rules clash; SCOW flops on free speech

Check out my latest column at the Wisconsin Law Journal, titled All "Riled" up: SCOW flops on ethics rule 1.9. In it, I discuss the Supreme Court of Wisconsin's decision on my petition to change ethics rule 1.9, as well as SCOW's recently published case In Re Riley, 2016 WI 70, where the court found a lawyer acted unethically for not violating rule 1.9! As Prosser stated in his dissent, there is "serious tension" between the ethics rules, and had the attorney decided to violate rules 1.6 and 1.9 in order to comply with the other set of rules, he could have been fired from his job and even sued by his former client.  The lesson is that with Wisconsin's selectively applied, irrational, and conflicting ethics rules, no lawyer is safe from the long arm of the OLR, which, as one of our state's prosecutors noted, is "more concerned with how they look in the zealous pursuit of an attorney pelt, rather than what result should be reached." (2014 WI 31, ¶ 39.)  On Wisconsin!

Wisconsin's Unconstitutional Burden of Proof

Columbia L. Rev. Online
My coauthor Larry White and I just finished a follow-up study to our U. Richmond L. Rev. article about Wisconsin's unconstitutional burden of proof jury instruction. Our follow-up study will be published in the Columbia L. Rev. Online; for now, the abstract and a pre-publication draft of the article can be found on SSRN. In short, we made three findings: (1) we replicated the results of our original study by again finding a statistically significant difference in conviction rates between mock jurors who received a legally proper burden of proof instruction and those who received Wisconsin's "search for the truth" language; (2) we found that mock jurors who received Wisconsin's "search for the truth" language were nearly twice as likely to mistakenly believe it is proper to convict a criminal defendant even if there is reasonable doubt about guilt; and (3) we found that mock jurors who held this mistaken belief (regardless of the jury instruction they actually received) voted to convict the defendant in our study at a rate 2.5 times that of mock jurors who correctly understood the burden of proof. On Wisconsin!