The Supreme Court of Wisconsin (SCOW) has decided to take this issue up on appeal. You can find the legal briefs and other case details on this public database. And you can also read my latest article on the topic, Spin Doctors: Prosecutor Sophistry and the Burden of Proof, 87 U. Cincinnati L. Rev. 489 (2018). For my previous work on this issue, including my empirical studies demonstrating that Wisconsin's jury instruction (1) causes mock jurors to convict at a higher rate and (2) leads mock jurors to believe that conviction is proper even if they have a reasonable doubt about guilt, go to my JI 140 resource page. Let's hope SCOW gets this right and rules that trial courts may no longer instruct jurors not to perform their constitutionally-mandated duty.
Sunday, December 30, 2018
Spin Doctors: Prosecutor Sophistry and the Burden of Proof, 87 U. Cin. L. Rev. 489 (2018)
The Supreme Court of Wisconsin (SCOW) has decided to take this issue up on appeal. You can find the legal briefs and other case details on this public database. And you can also read my latest article on the topic, Spin Doctors: Prosecutor Sophistry and the Burden of Proof, 87 U. Cincinnati L. Rev. 489 (2018). For my previous work on this issue, including my empirical studies demonstrating that Wisconsin's jury instruction (1) causes mock jurors to convict at a higher rate and (2) leads mock jurors to believe that conviction is proper even if they have a reasonable doubt about guilt, go to my JI 140 resource page. Let's hope SCOW gets this right and rules that trial courts may no longer instruct jurors not to perform their constitutionally-mandated duty.
Saturday, November 24, 2018
Reversing Wisconsin’s “Victim” Culture
Wednesday, October 24, 2018
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.)
Saturday, October 20, 2018
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.
Making a Murderer Season 2
Are you enjoying Making a Murderer season 2 but find it a little high on emotion and light on the law? Do you want to know more about Miranda rights and the rules of the interrogation room? Are you curious about the difficulty that Dean Strang and Jerry Buting faced when trying to present a Denny third-party guilt defense at Avery's trial?
Are you left with more questions than answers about the AEDPA standard that screwed Dassey to the wall? Do you want to know more about the pretrial ethics rules that governed Ken Kratz's disclosures to the media? If so, check out my two books, Convicting Avery (Prometheus) and Anatomy of a False Confession (Rowman & Littlefield) to get some answers!
Thursday, September 27, 2018
Brett Kavanaugh, Steven Avery, and their accusers
In the mid-1980s, Steven Avery was charged with several
crimes after Penny Beerntsen was found raped and beaten. Avery had more than a dozen alibi witnesses and a store
receipt showing he was nowhere near the scene of the crime, yet he was
convicted. Why? The accuser pointed the finger at him and said
she was sure it was him. “I
remember his face very clearly. It’s like a photograph in my memory,” she
testified. (See chapter one, here.)
Tuesday, September 11, 2018
Bubble Reputations
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.
Saturday, September 1, 2018
Anatomy of a False Confession: The Interrogation and Conviction of Brendan Dassey
My new book on the Brendan Dassey interrogation and conviction is available for pre-order, here. It will be published by Rowman & Littlefield on November 8th. In the meantime, read the "spotlight" feature about the book in Publishers Weekly, and subscribe to The Legal Watchdog or keep up with Knightly on Twitter for book reviews as they roll in before publication. One of the world's foremost experts on police interrogations and false confessions has already weighed in on the book:
"Michael Cicchini has written a wonderfully descriptive and insightful book, the definitive account of the interrogations of Brendan Dassey and his coerced, contaminated and (almost certainly) false confessions. Cicchini masterfully describes the tricks of the interrogation trade, how police investigators have adapted to the theoretical Miranda protections and turned them to their advantage, and, more importantly, how and why police interrogation strategies . . . can and sometimes do lead to false confessions from the innocent. Anyone who watched the Netflix series Making a Murdererwith rapt fascination will want to read this book."
— Richard A. Leo, author, Police Interrogation and American Justice; Professor of Law and Psychology, University of San Francisco
"Michael Cicchini has written a wonderfully descriptive and insightful book, the definitive account of the interrogations of Brendan Dassey and his coerced, contaminated and (almost certainly) false confessions. Cicchini masterfully describes the tricks of the interrogation trade, how police investigators have adapted to the theoretical Miranda protections and turned them to their advantage, and, more importantly, how and why police interrogation strategies . . . can and sometimes do lead to false confessions from the innocent. Anyone who watched the Netflix series Making a Murdererwith rapt fascination will want to read this book."
— Richard A. Leo, author, Police Interrogation and American Justice; Professor of Law and Psychology, University of San Francisco
Monday, August 27, 2018
Is Reasonable Doubt Self-Defining?, 64 Villanova L. Rev. __ (forthcoming, 2019)
But what about states that don't attempt any definition of RD? States that decline to do so contend that RD is self-defining and therefore needs no further explanation. On the plus-side, jury instructions that leave the term undefined can't do anything blatantly unconstitutional, such as telling jurors "not to search for doubt." But is RD really self-defining? Published studies demonstrate that it is not, as jurors fail to distinguish between it and the two lower, civil burdens of proof. But these studies are old and used small, unrepresentative samples. Therefore, Larry White and I conducted a new study with more statistical power to see if RD, when left undefined, offers defendants any more protection than two lower standards of proof, preponderance of the evidence (POE) and clear and convincing evidence (CCE).
Our article is forthcoming in the Villanova L. Rev., and you can find a pre-publication draft on SSRN or on my website's articles page. Read the abstract, after the jump, which includes our findings. (And scroll to the bottom of the post for a bonus video.) Spoiler alert: the earlier studies were confirmed. RD is not self-defining, i.e., when left undefined, there is no statistically significant difference in conviction rates between test participants who received a RD jury instruction, a POE instruction, or a CCE instruction.
Sunday, August 19, 2018
The Manafort trial and confusion over reasonable doubt
But leaving BRD undefined is a huge problem. Studies that compare juror decision-making across the three burdens of proof -- preponderance, clear and convincing, and BRD -- demonstrate that jurors do not differentiate between / among the three standards. That is, in controlled studies, mock jurors' conviction rates are not affected by different burden of proof instructions.
Lawrence T. White and I just replicated those experiments, and found the same thing: when BRD is left undefined, the three burdens of proof do not produce significantly different conviction rates, all else being equal. Our study / article is currently under submission and we expect to finalize a publication agreement by the end of this week, so stay tuned for our pre-publication draft of our article, Is Reasonable Doubt Self-Defining? In the meantime, read my article in the Calif. L. Rev. Online for a proper definition of reasonable doubt -- one that puts the high burden of proof in context by comparing it to the lower, civil burdens of preponderance and clear and convincing.
But despite all of this, leaving BRD undefined is still better than what Wisconsin does. Wisconsin defines it in such a way as to completely demolish the burden of proof. As Larry White and I demonstrated in this Richmond study, and again in this Columbia study, Wisconsin's BRD instruction (JI 140) is so bad that it would be better for defendants if the term were not defined at all.
Wednesday, August 1, 2018
Spin Doctors: Prosecutor Sophistry and the Burden of Proof
Defense lawyers have long complained about Wisconsin's defective, burden-lowering jury instruction (J.I. 140) on the "beyond a reasonable doubt" standard of proof. Prosecutors replied that our complaints were nothing more than mere "opinion," unsupported by actual evidence. So in response, psychology professor Lawrence T. White and I provided them with the evidence they supposedly wanted: two controlled experiments testing the effect of J.I. 140's closing mandate ("not to search for doubt" but "to search for the truth") on mock juror decision-making. (Prosecutors never really wanted this evidence; they just demanded it because they never imagined anyone would actually produce it.) Not surprisingly, telling jurors "not to search for doubt" creates misconceptions about the burden of proof and produces higher conviction rates. These studies were published in law reviews at Richmond and Columbia.
Saturday, July 21, 2018
Who can save Marquette University?
Inexplicably, Marquette leaders thought that Gold was “strong” and “competitive,” and “contained all the
elements of a Warrior.” That’s
the kind of nonsensical babble you might expect from a twelve year old who got
into his dad’s bottle of Vodka, not from the leaders of a university with a
multi-million dollar endowment and budget.
It doesn’t make sense in any imaginable way. A color doesn’t have strength nor does it
compete—not even with other colors, let alone with other schools.
Tuesday, July 17, 2018
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.
Saturday, July 14, 2018
A creative explanation of reasonable doubt
[T]he judge placed a rubber band around a glass of water
and told [the jury] that the rubber band represented reasonable doubt. He then
explained metaphorically, the defendant is like a chip of wood in the bottom of
the glass and the prosecution must pour in enough evidence, like water, to
float the defendant to the rubber band to prove his guilt.
Saturday, June 30, 2018
What have educators learned from Brendan Dassey’s conviction? [updated with a postscript]
Years
before Making a Murderer hit the airwaves, I explained in my 2012 book, Tried and Convicted, how the police indoctrinate kids at an early age in order to
win their trust. (Think Deputy
Friendly.) This, in turn, pays dividends
down the road.
Many
of my clients—not only my 17-year-old clients whom Wisconsin considers “adults”
for criminal prosecutions, but much older clients as well—tell me how they’re
in utter disbelief that they’re sitting in jail facing criminal charges. At the time of their interrogations—or, as
the police call them, “interviews”—the clients were convinced that the police were
on their side and were there to help.
I
explain in my forthcoming book, Anatomy of a False Confession, that while suspects like Brendan Dassey don’t realize it at the time, the police use several tricks of the
interrogation trade to lull their targets into this delusional state. And in a recent radio interview, a teacher called in and said how horrified she was
by what Mark Wiegert and Tom Fassbender did to Brendan Dassey. She explained: “I could see that happening to
any one of my students. Being brainwashed
like that. I thought it was shameful.”
Sunday, June 17, 2018
Who’s to blame for the opiate crisis?
As 60 Minutes convincingly demonstrates, Big
Pharma and the United States Congress are the cause of the problem. Watch the investigative report, here. Learn how legislation was passed to permit
Big Pharma to push their drugs—including shipping 11 million pills to a town of
5,000 residents with utter disregard for how those pills would later be distributed
on the black market. (No wonder Big
Pharma opposes marijuana legalization: they want the drug market all to
themselves.) Meanwhile, local
prosecutors get to bully drug users and small-time drug “suppliers,” while the
courts allow the police to trample our Fourth Amendment rights in the name of
crime prevention. Yeah, nice work; prosecutors and judges get to sleep well, pretending they’re “tough
on crime.” In reality, money and
influence rule the day, while the poor sap (who relies on an overworked public
defender) is made the scapegoat. Kudos
to all involved. Big business and big
government have created and perpetuated a problem that the citizenry pays for
while executives and government fat cats reap the benefits. But don’t take my word for it – watch the episode,
do your own research, and reach your own conclusions. P.S., I also like the episode’s reference to
the Marquette Law Review (where I toiled away for two credits) and
Quarles & Brady, LLP (where I sometimes toiled, and sometimes surfed the web,
for much greater compensation).
Tuesday, May 22, 2018
Early praise for "Anatomy of a False Confession"
The publisher has just received the first review of my forthcoming book, Anatomy of a False Confession: The Interrogation and Conviction of Brendan Dassey (Rowman & Littlefield, Nov. 2018). False confession expert, author, and professor Richard Leo writes:
Michael Cicchini has written a wonderfully descriptive and insightful book, the definitive account of the interrogations of Brendan Dassey and his coerced, contaminated and (almost certainly) false confessions. Cicchini masterfully describes the tricks of the interrogation trade . . . Anyone who watched the Netflix series Making a Murderer with rapt fascination will want to read this book.
— Richard A. Leo, author, Police Interrogation and American Justice; Hamill Family Professor of Law and Psychology, University of San Francisco
Pre-order your copy of Anatomy of a False Confession today!
Michael Cicchini has written a wonderfully descriptive and insightful book, the definitive account of the interrogations of Brendan Dassey and his coerced, contaminated and (almost certainly) false confessions. Cicchini masterfully describes the tricks of the interrogation trade . . . Anyone who watched the Netflix series Making a Murderer with rapt fascination will want to read this book.
— Richard A. Leo, author, Police Interrogation and American Justice; Hamill Family Professor of Law and Psychology, University of San Francisco
Pre-order your copy of Anatomy of a False Confession today!
Monday, May 21, 2018
Matt Flynn for Governor!
Join us at a "Meet and Greet" for Matt Flynn, this FRIDAY MAY 25th from 6-8 pm near downtown Kenosha. Details on the flyer (left). Learn more about Matt and his stance on the issues, including criminal justice reform, here.
If you'd like to attend and meet Matt, please RSVP to Michael Cicchini at mdc@CicchiniLaw.com or (262) 652-7109.
(Regretably, due to other commitments, Knightly will not be able to attend the event.)
Monday, May 14, 2018
In Halen and Ex Halen (and Waiting)
Monday, May 7, 2018
Anatomy of a False Confession
Friday, May 4, 2018
Now in print: Combating Prosecutorial Misconduct in Closing Arguments
Saturday, April 14, 2018
Concept of burden of proof too nuanced for SCOW
SCOW |
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
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.
Wednesday, April 4, 2018
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.
Sunday, April 1, 2018
Baseball, Subs, and F-Bombs
Knightly enjoys a sub |
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.
Saturday, March 31, 2018
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.
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.
Sunday, March 4, 2018
Apology Nation
When,
exactly, did we Americans become so wimpy, pathetic, and flat-out obsessed with
demanding and issuing “apologies”? I
first wrote about this phenomenon more than five years ago in a blog post
titled Speaking Freely. Since then, I’ve
noticed that the apology problem has become even worse — particularly at
schools where the adults of tomorrow are supposedly being educated and/or
trained. In fact, apologies have been
multiplying like rats and are now everywhere we look.
Monday, February 19, 2018
Now in print: The Battle over the Burden of Proof
I previously posted a draft of my article that identifies and debunks twenty different prosecutor arguments about the burden of proof (and the related jury instruction) in criminal cases. The article exposes prosecutorial wordplay and sophistry, and debunks such classic government arguments as "verdict means to say the truth" and "trials are about searching for the truth." The final version of the article has now been published, and you can find it here: The Battle over the Burden of Proof: A Report from the Trenches, 79 U. Pitt. L. Rev. 61 (2017). Stay tuned to The Legal Watchdog for soon-to-be-published articles on behavioral research and the law (with L. White), a test of other-acts evidence and curative instructions (with L. White), and prosecutor misconduct in closing arguments. Or if you just can't wait to set your eyes on these works, you can find the pre-publication drafts, along with all of my previously-published articles, here. Enjoy!
Wednesday, February 7, 2018
Anatomy of a False Confession: The Interrogation and Conviction of Brendan Dassey (Rowman & Littlefield, Nov. 2018)
Photo by Rebecca Slye |
Saturday, February 3, 2018
More law review fun
Sunday, January 28, 2018
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.
Monday, January 22, 2018
"Convicting Avery" named among "best true crime books of 2017"
My third book, Convicting Avery: The Bizarre Laws and Broken System behind Making a Murderer (Prometheus Books) was just named to this short list of the best books in the genre. Author and critic Joseph Farley writes: ". . . This book shows us exactly how it all happened . . . definitely among the best true crime books of 2017." Other books on the list include Edgar Award finalists The Road to Jonestown, Killers of the Flower Moon, and Mrs. Sherlock Holmes.
Order Convicting Avery here to bone up on the legalities before Making a Murderer Season 2 is released. And go here for more reviews of Convicting Avery and links to all three of my books.
Order Convicting Avery here to bone up on the legalities before Making a Murderer Season 2 is released. And go here for more reviews of Convicting Avery and links to all three of my books.
Wednesday, January 10, 2018
When does a “White Russian” become an “Anna Kournikova”?
It is well-known that academics have ruined legal
education. Law schools routinely hire professors
who have never or barely practiced law, and who write about topics of no
value to any practicing lawyer. See
here for an example. (In so doing, the law profs
perpetuate a false dichotomy between theory and practice, essentially
claiming they are better at theory simply because they have never practiced.) A better kept secret, however, is that law
schools are increasingly hiring Ph.D.s in economics and similar disciplines who
don’t even have a law degree, let alone any legal practice experience, let alone even a
license to practice law. See here and here for more details on this absolutely pathetic state of affairs in legal education.
Similarly, professors at the college level have ruined the
study of philosophy. Back in
the day of Socrates and the Hellenistic schools of philosophy that followed in his
footsteps, philosophy was focused on how to live a good life. Today, however, academics have turned
philosophy into pure semantics. The
Stoic philosopher Seneca saw this coming about 2,000 years ago, and
explained it, in Letters from a Stoic, this way:
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