Reversing Wisconsin’s “Victim” Culture

Maybe this is a trendy thing in other states as well, but Wisconsin has a bizarre, cart-before-the-horse practice of anointing complaining witnesses and deceased persons as “victims” long before the defendant reaches a plea agreement or calls the first witness at his jury trial.  In one example, I represented a defendant in an obvious self-defense case.  It was so obvious that the jury came back “not guilty” in warp speed—under one hour, if memory serves.  Yet, despite the presumption of innocence and the lack of sufficient factual allegations let alone evidence, the judge and prosecutor had repeatedly used terms like “victim’s rights” and even “the victim” throughout the case and even during the jury trial.

Wiegert, Fassbender, and Dassey: "Getting to know all about you"

Interrogators like Mark Wiegert and Tom Fassbender have tactics to get suspects to waive their Miranda rights, and they have a different set of ploys to get suspects to tell them what they want to hear—or, in Brendan Dassey’s case, to get him to agree with whatever they, the interrogators, are saying.  (I love it when they get Dassey to agree to something, but then later discover that what they made him agree with doesn’t make any sense after all.  The dynamic duo then gets frustrated with the kid, as if he was the one who gave the bad information to them.)  

But before the interrogation begins, detectives like to warm their suspects up a bit—you know, feign interest in them and build some rapport before getting too hot and heavy.  To see how Wiegert and Fassbender did this, read chapter 10, “Getting to Know All About You,” from my soon-to-be-released book, Anatomy of a False Confession: The Interrogation and Conviction of Brendan Dassey (Rowman & Littlefield).[1]  Order today for delivery by Halloween; but until then, enjoy a sneak peek of chapter 10, after the jump.  (Reprinted with permission of the publisher; citations to interrogation transcripts omitted for this post.)

Making a Murderer season 2: In defense of the defense lawyers

I’m greatly enjoying Making a Murderer season 2.  As expected, however, it’s a little heavy on the emotional angle—how much footage can we watch of Avery’s mother painfully traipsing through her house?—and a little light on the law, at least for my taste.  But so far it’s quite good, and Kathleen Zellner’s theory of what really happened makes a lot more sense than the state’s theory presented at trial.  Nonetheless, MaM2 is painting an inaccurate picture of the criminal justice system in at least one respect.

The documentary includes some direct and implied criticism of Avery’s trial lawyers, Jerry Buting and Dean Strang.  And this criticism is coupled with action scenes of Dassey’s and Avery’s new attorneys doing all sorts of extraordinary things in their clients’ defense.  For example, Dassey’s appellate lawyer has an entire team around her to simulate oral argument at the Seventh Circuit.  And Avery’s new lawyer, Kathleen Zellner, has a team of paralegals and is shown traveling around the country to consult with experts in a variety of fields; they then conduct several tests, experiments, and recreations of events.

Bubble Reputations

Mark Twain wrote that if you “give a man a reputation as an early riser, he can sleep til noon.”

These types of bubble reputations are how Christopher Hitchens picked his targets, including Mother Teresa and Princess Diana.  Well, there are two other bubble reputations that need to be pricked, as Hitchens would say. Those reputations belong to basketball star LeBron James and women's tennis great Serena Williams.

Where's the crime?

In Tried and Convicted I wrote about how Wisconsin’s criminal injustice industrial complex spends staggering sums of money to arrest, charge, prosecute, convict, lockup, and then supervise its citizens—often for the better part of their lives.  Our state’s love of punishment and perpetual monitoring is well-known, and stands in stark contrast to other states like our neighbor to the west, Minnesota.  Even conservative states like Idaho are coming to terms with the “evils of big government” associated with such irrational policies; the Red States appear downright progressive when compared to Wisconsin.  But what crimes, exactly, are Wisconsinites committing?  What justifies such massive expenditures, year after year, that could otherwise be put to better use?

In an excellent law review article titled The Use of Wisconsin’s Bail Jumping Statute: A Legal and Quantitative Analysis, 2018 Wis. L. Rev. 619, 636, Amy Johnson includes a table listing the “top ten charged offenses in 2016.”  I’ve combined a couple of categories to list the top five, below.

Anatomy of a False Confession

My new book, Anatomy of a False Confession: The Interrogation and Conviction of Brendan Dassey (Rowman & Littlefield), is now available for pre-order at R&L and Amazon.  The book will be published in November of this year.  The chapters are divided into several sections, including "inside the interrogation room," "trials, tribulations, and appeals," and "making a federal case of it."  The book also includes several introductory chapters on false confession basics, and concluding chapters on how we should reform the system to better protect ourselves from government agents like Wiegert and Fassbender.

Concept of burden of proof too nuanced for SCOW

SCOW

In State v. Bell, 2018 WI 28, the defendant appealed his conviction because the prosecutor improperly lowered the state’s burden of proof and even shifted it to the defendant.  The jury trial was essentially a credibility battle.  And the prosecutor argued to the jury that, in order to find the defendant not guilty, the jury would have to believe that the accusers were liars. ⁋ 34.  The prosecutor further argued that the defendant’s trial counsel was unable to provide the jury with a motive for the accusers to lie, so therefore the jury must convict. ⁋ 35.  The Supreme Court of Wisconsin (SCOW) upheld the conviction.  Its reasoning: “Even now, [defendant’s appellate counsel] does not tell us how the jury could have acquitted him if it nonetheless believed the victims.” ⁋ 47.  Actually, appellate counsel did tell the court—repeatedly, in fact—how the jury could acquit the defendant even if it believed “the victims.”

Prosecutors in robes

There are countless examples of biased judges who rule for prosecutors despite the rules of evidence.  Sometimes, judges will even make up evidence out of thin air to help out the state.  This is problematic, of course, because judges are supposed to be — or at least should pretend to be — neutral and detached.  This newest example of judicial bias comes courtesy of an email from The Dog’s compatriot, The Irreverent Lawyer.  It’s pretty good, and exposes yet another judge who is merely a prosecutor in judicial clothing.

Look to your left; look to your right

Back in the days of The Paper Chase, there was a little speech that, at least according to legend, the Dean made during law school orientation.  “Look to your left; look to your right. One of you won’t be here next year.”  The message, of course, was that law school was not only tough to get in to, but would also be tough to complete.  And one out of every three of you will fail.  But in today’s softer, gentler world, the calculus has changed.  Well, sort of. 

Today, almost everyone gets admitted to law school, and even students with a mere 2.0 GPA in college can get scholarship money at some law schools.  Several forces have conspired to create this state of affairs.  Law schools have expanded in number to over 200, the student applicant pool has shrunk due to sliding demand and plummeting pay for lawyers, and a greater number of law schools are therefore competing for the smaller number of student loan conduits prospective students.

The Appearance of (In)Justice

As fans of Making a Murderer know, a 16-year-old kid named Brendan Dassey was railroaded into confessing to a murder that, by every measure, he had nothing to do with.  Not surprisingly, the elected Wisconsin trial court judge found that his “confession” was “voluntary” and therefore admissible against him at trial.  (Never mind the interrogators’ dozens of threats and false promises of leniency.)  Equally unsurprising, the jury bought the prosecutor’s sophistry — he famously but falsely claimed that innocent people don’t confess — and convicted Dassey as a “party to the crime” of murder and other offenses.  And once again, unsurprisingly, the state appellate court rubber-stamped Dassey’s conviction in a superficial, two-paragraph “analysis” of the facts and law.  But after that, things got really interesting. 

Baseball, Subs, and F-Bombs

Knightly enjoys a sub

I absolutely loved Tommy Lasorda subs in the late 90s.  With all due respect to Hungry Head -- Kenosha's oldest and finest sub shop -- few things were as enjoyable as going to Tommy Lasorda's Dugout on 22nd Avenue for a delicious sub made fresh, right in front of your eyes.  I recently tried to replicate the experience from memory using store-bought ingredients, but my attempt fell flat.  My effort was, at best, a foul tip.

Much like a home run ball, Tommy Lasorda's Dugout is long gone.  Last I read, the chain went out of business which proves, much like the old Betamax, that the best products don't necessarily survive.  But thanks to two email attachments I recently received from the Irreverent Lawyer, we can still enjoy some absolutely amazing clips of the legend Tommy Lasorda himself.  

Enough of Sister Jean

Surprisingly, I find my March Madness experience being dampened by an underdog.  Not an underdog that knocked my beloved Marquette out of the tournament.  (My Warrior-Eagles didn't even make the Big Dance this year).  Rather, it's eleven-seed Loyola-Chicago, an underdog I would normally cheer for if not for the media's constant and inane coverage of "Sister Jean."

Today, for example, the babbling Dick Vitale took the hype to a new level.  Of course there was the usual allusion to "the power of prayer," as if the woman who didn't even pick her own team, Loyola-Chicago, to get past the Sweet 16 somehow has the ear of a supreme being.  But Dick -- an annoying but knowledgeable college basketball analyst -- now says (hopefully jokingly) that he relies on her for "scouting reports" and even wants to cast his wife aside so he can "date" Sister Jean.  And of course, Dick declares that she'll be a "major factor in the game" tonight against Michigan.

More law review fun

My last post discussed a new -- well, new to me -- law professor publishing trick: the bait and switch.  And now for some more law review fun.  Over at Outside the Law School Scam (OTLSS), there's a post about a Kentucky law prof who not only denies that professor scholarship raises the cost of legal education for students, but who also wrote this on the twitter:

The Law Professor Bait-and-Switch Trick

I’m convinced that law professor misbehavior is driven by the group’s rather unhealthy obsession with rank and prestige.  More specifically, many law profs have never practiced law, and most of those who have practiced have done so for very short periods of time (1.4 years, according to one study) in very sanitized settings (e.g., writing briefs but never meeting a real-life client, let alone representing one in a business transaction or jury trial).  Without any law practice experience to draw upon, this leaves the law profs to judge each other by the U.S. News ranking of their law schools and of the law journals in which they publish.