Saturday, August 24, 2019

Bar Meetings: Drinking Tips from an Expert

Back in the early years of my law practice, a group of Kenosha lawyers used to gather on Wednesdays after work for the weekly Bar Meeting, i.e., a meeting of the bar at a bar.  Our group was comprised of criminal defense lawyers and others generally interested in protecting individual rights and liberties from the government’s ever-expanding reach.  Unfortunately, these meetings dwindled and eventually disappeared, I think, because lawyers began to get older and marry and do other things. 

I’ve never understood why a member of the criminal defense bar would want to go on weekend jaunts to Bed Bath & Beyond, do home-improvement projects, go on vacations, read to their children, or do whatever else married people are supposed to do.  But to each of us, his or her own, I suppose.  In any case, children get older and marriages inevitably crumble, so maybe it’s possible to bring back the weekly Bar Meeting.  Toward that end, I came upon these drinking tips from a true expert on the subject, Christopher Hitchens, in his book Hitch 22: A Memoir.

A Lawyer Dog in Training

Photo by Brenda VanCuick
Recently, in Louisiana, when the police were interrogating a suspect, the suspect invoked his right to counsel by telling the interrogator, “Just give me a lawyer, dogg.”  The court — twisting and contorting plain language and basic legal principles to reach its predetermined outcome, as courts are known to do — found that such language was not an invocation of the right to counsel.  The interrogator simply would have no way of knowing whether this suspect was asking for “a lawyer, dogg,” or a “lawyer dog.”  One writer for WaPo observed: “It’s not clear how many lawyer dogs there are in Louisiana, and whether any would have been available to represent the human suspect in this case[.]”

Saturday, August 17, 2019

Reasonable Doubt and Relativity, 76 Wash. & Lee L. Rev. __ (forthcoming, 2019)

The empirical evidence demonstrates that, when left undefined and unexplained, the proof beyond a reasonable doubt (BRD) standard offers no more protection than the two civil burdens of proof.  I therefore hypothesized, in a California article in 2017, that BRD jury instructions should define the phrase in the context of the lower burdens of proof, i.e., on a relative basis.  That way, the jury can appreciate just how high the BRD standard actually is.  In this new study turned article, Reasonable Doubt and Relativity, I empirically tested my hypothesis.  This article could be helpful to the Wisconsin Criminal Jury Instruction Committee which, at the request of two SCOW justices, is revisiting our state's jury instruction which completely fails to define or explain the concept of proof beyond a reasonable doubt (and instead focuses only on reasonable doubt, in a very pro-prosecution manner).  You can find a draft of my new study-turned-article on SSRN.  You can also see the article, and all of my articles organized by topic, on my website.  You can learn about the Washington & Lee L. Rev., and read other W&L articles here.  The abstract of Reasonable Doubt and Relativity is posted after the jump.

Combating Judicial Misconduct: A Stoic Approach, 67 Buffalo L. Rev. __ (forthcoming, 2019)

The defense lawyer who steps into court assuming the judge will be competent, even-tempered, and unbiased does his or her client a tremendous disservice.  Read about unethical judges, the problems they pose for the defense, and how the defense lawyer can deal with them in my new article, Combating Judicial Misconduct: A Stoic Approach.  You can find a draft of the article on SSRN.  You can also see the article, and all of my articles organized by topic, on my website.  You can learn about the Buffalo L. Rev. and read other Buffalo articles here.  The abstract of the article is posted after the jump.


Constraining Strickland, 7 Texas A&M L. Rev. __ (forthcoming, 2020)

When a defense lawyer makes a mistake at trial, he or she is blamed for it and is subject to Strickland's ineffective assistance of counsel test.  When a prosecutor cheats or a judge is incompetent at trial, guess what?  The defense lawyer is blamed for not monitoring the prosecutor or doing the judges job for him!  Despite their ethical duties and constitutional obligations to the defendant, the prosecutor and judge skate free, leaving the defense lawyer holding the bag for failing to do three jobs in one: his or her own, the prosecutor's, and the judge's.  Read about this absurd Strickland procedure, and how it should be constrained, in my new article Constraining Strickland.  You can find a draft of the article on SSRN.  You can also see the article, and all of my articles organized by topic, on my website.  You can learn about the Texas A&M L. Rev. and read other Texas A&M articles here.  The abstract of Constraining Strickland is posted after the jump.

Improvident Prosecutions, 12 Drexel L. Rev. __ (forthcoming 2019-20)

In Improvident Prosecutions, I demonstrate the numerous flaws with Wisconsin's preliminary hearing process.  (Prosecutors, and especially judges, should be embarrassed by these.)  I also give the state legislature a blueprint on how to fix these problems.  (Take action, please; I've done the work for you.)  You can find a draft of the article on SSRN.  You can also see the article, and all of my articles organized by topic, on my website.  You can learn about the Drexel L. Rev. and read other Drexel articles here.  The abstract of Improvident Prosecutions is posted after the jump.

Wednesday, August 7, 2019

Ignorance of the law is no excuse (unless you’re a prosecutor)


In this hot-off-the-presses case of State v. Smith (court decision here, On Point summary here), a Wisconsin prosecutor made an improper closing argument to the jury in an effort to win a conviction.  In a “sarcastic” and “belittling” manner, the prosecutor criticized the role of defense lawyers (in this case, public defenders) and also attempted to shift the burden of proof to the defense.  (These are two of the sleaziest, yet most common, tricks in the prosecutor’s bag.)  Then, on the defense lawyer’s motion, the trial judge declared a mistrial.  However, despite the prosecutor’s misconduct, the state was allowed to retry the defendant.  But why?  And how can defense lawyers prevent this from happening in the future?

Saturday, July 27, 2019

Redrafting the preliminary-hearing waiver form

I currently have an article under submission to the law journals that is titled Improvident Prosecutions.  It exposes the various preliminary hearing scams perpetrated by Wisconsin’s prosecutors and judges, and gives interested legislators a roadmap to correct these prosecutorial and judicial abuses.  Once the article is accepted for publication, I’ll post it to SSRN and my website and will notify The Dog’s readers via a new blog post.  But until then, I thought I’d take a shot at redrafting the state’s (or at least Kenosha County’s) preliminary-hearing waiver form.  Given the current prosecutorial practice of using a reader-witness, explained below, the old waiver form is no longer accurate and poses problems for defense lawyers whose clients are thinking about waiving the preliminary hearing. 

Wednesday, July 3, 2019

Just Fly It

Photo by Eric Olson
Celebrate this American holiday by exercising your First Amendment right to free speech -- unless you're studying or working on a college campus, attending an after-hours bar association event, or slaving away in corporate America.

Fortunately, I don't do any of those things.

Happy Fourth of July, everyone!

Friday, June 28, 2019

The right to (unlicensed) counsel


I recently read this article about a Louisiana public defender’s office that hired a new assistant public defender.  Unfortunately, the new hire wasn’t actually an attorney!  Woops.  Having a law license is, of course, a prerequisite for being a criminal defense lawyer.  In reference to the above story, someone I know rhetorically asked: “Could you just envision the Supreme Court of Wisconsin (SCOW) upholding a defendant’s conviction on appeal even though the defendant’s ‘lawyer’ wasn’t actually a lawyer?”  As the above question implies, if a defendant is represented by a fake lawyer, any conviction in the case should be reversed.  The applicable legal standard is Strickland’s two-part test on the ineffective assistance of counsel (IAC). 

Monday, June 17, 2019

JI 140, Post-Trammell

Over at the JI 140 Resource Page of my website, I've added a new, post-Trammell "brief" asking Wisconsin trial courts to change the burden of proof jury instruction (JI 140).  The document is located at the very bottom / end of the page.  The document is a requested modification of JI 140, and I'll be submitting it in all of my cases that get set for trial.  Wisconsin criminal defense lawyers are free to use it in their cases, subject to the cover page / disclaimer page.  What's in the new document?

First, citing Trammell, it spells out the trial court's authority to change JI 140, and the reminds the trial court of its objective, which is not to adopt an instruction just because it will later be upheld (at least in state court).  Rather, the goal of the trial judge (and of any jury instruction) is to clearly, accurately, and succinctly explain the relevant legal concept.

Monday, June 3, 2019

SCOW flops on JI 140; rejects behavioral research in the process

Predictably, SCOW flopped on its chance to change our defective jury instruction on the burden of proof, JI 140.  As the concurrence in the SCOW opinion points out, the instruction engages in a sort of burden-shifting by focusing jurors on the type of doubt the defense must produce (with numerous warnings about what kinds of doubts are not reasonable) rather than what constitutes proof beyond a reasonable doubt.  Worse yet, as most of The Dog’s readers know by now, JI 140 concludes with language that other courts (e.g., Fifth Circuit Ct. App. and Washington Ct. App., among others) have held to be constitutionally defective.  It tells jurors “you are not to search for doubt.  You are to search for the truth.” 

Here’s a summary of the case by SPD’s On Point blog, which also links to the decision itself.  (The post also has a helpful practice tip for defense lawyers, so be sure to read it.)  I’ll have plenty to say about this case in the future—possibly in another law review article.  But for now, I’ll limit my comments to the very small part of the court’s decision discussing the studies I conducted and published with my coauthor Larry White.  These studies demonstrated, unsurprisingly, that when you tell jurors not to search for doubt but instead to search for truth, it will lower the state’s burden of proof.  You can find the studies, along with other JI 140 resources, on my JI 140 resource page (which I’ll be updating soon).   After the jump, I’ll respond to the softballs that SCOW has thrown me. 

Saturday, May 11, 2019

Inmates running the asylum (and the demise of higher education)

Ronald Sullivan is a law professor at Harvard who also works as “Winthrop House faculty dean”—which, apparently, is an undergraduate residence hall at Harvard College.  Sullivan is quite an impressive guy.  He is the first African-American to have obtained this “faculty dean” title at Harvard.  (They used to call them “masters” but that was changed because it was insensitive or non-inclusive or in some way upset the students.)  Even more impressive, Sullivan makes quite an impact in the real world—a rare occurrence among modern law professors, most of whom have never or barely practiced law even before they entered the academy.  According to his bio: “Professor Sullivan, to be sure, spends the lion’s share of his work . . . in service of underserved communities around the country and world. In fact, the Huffington Post dubbed him ‘The Man Who Dealt the Biggest Blow to Mass Incarceration,’ noting that several media reported that Professor Sullivan won the release of more wrongfully incarcerated persons . . . than anyone in U.S. history.”

Saturday, May 4, 2019

Already Gone: Mens rea and the burden of proof in Wisconsin

Liberals are just as likely to take away our freedoms and violate our rights as conservatives.  Many years ago, I wrote an article (here) arguing there was no discernible correlation between a judge’s political party and respect for our constitutional rights.  

When it comes to the legislature, one recent example of a liberal’s expansive, intrusive reach is Sen. Elizabeth Warren’s proposal to ensnare corporate executives in the criminal justice system.  According to this NACDL news release, her Corporate Executive Accountability Act (here) would convict a defendant without a mens rea requirement (guilty mind, intent, knowledge, etc.) and by the lower, civil burden of proof known as the preponderance of the evidence standard.

Tuesday, March 12, 2019

JI 140 in the News and in the Courts [Updated]

As readers of The Dog likely know, Wisconsin's jury instruction 140 on the burden of proof concludes by telling jurors "not to search for doubt" but "to search for the truth."  Only in Wisconsin!  Other states and federal jurisdictions have warned that such language is highly defective in a burden of proof jury instruction.  Why?  First, it is a jury's duty to examine the evidence for reasonable doubt.  Second, telling the jury to search for the truth implies a much lower preponderance of evidence standard.  That is, in a search for the truth, if the jury thinks a charge is merely probably true, it would be obligated to convict.

Things are now heating up on this issue.  Less than three years after Larry White and I published our first empirical study demonstrating the burden-lowering effect of JI 140's closing mandate, the issue is now in the mainstream media and is pending before the Supreme Court of Wisconsin (SCOW) in State v. Trammell.  You can find a recent Milwaukee Journal-Sentinel article here.  You can find the Trammell appellate briefs, including WACDL's amicus brief, here.  I have also incorporated all of this new information into my JI 140 resource page.  We're expecting a SCOW decision sometime this summer.  Let's hope SCOW joins the rest of the country and condemns this blatantly unconstitutional, burden-lowering language in JI 140.

Update: The Wisconsin State Public Defender's amicus brief has now been added to the supreme court and appellate court access system.  See here