In
three of my books and in many of my law review articles (most recently, this one), I explain in plain language how judges routinely disregard the law to
reach their predetermined outcomes. I have
also repeatedly demonstrated how these predetermined outcomes nearly always
benefit the state, thus making the judge the chief prosecutor (a/k/a the
“prosecutor in a robe” or the “prosecutor on the bench”). But now, dear reader, you don’t have to take
my word about the level of disdain many of our almighty judges hold for the law. Retired judge Dick Posner has broken the
judicial code of silence and fessed-up.
Saturday, December 28, 2019
Monday, December 23, 2019
Combating Judicial Misconduct: A Stoic Approach (Buffalo L. Rev.)
Now in print: my new article, Combating Judicial Misconduct: A Stoic Approach, published in the Buffalo Law Review. Here's a link to the article. (You can find all of my articles here.) Here's the abstract, after the jump:
Reasonable Doubt and Relativity (Wash. & Lee L. Rev.)
Now in print: my new article, Reasonable Doubt and Relativity, published in the Washington & Lee Law Review. Here's a link to the article. Here's the abstract, after the jump:
Friday, November 15, 2019
In defense of the defense lawyer
Yours truly (L) with Terry Rose (R); photo by Leo Martin |
In Wisconsin ,
possession of child pornography carries with it a three year mandatory minimum sentence. In other words, when
the statute applies, the judge must put you in prison for at least three years
upon conviction for possessing a single image.
(Yes, the legislature usurped the much-hyped “judicial
discretion” in sentencing.) And actually, you don’t
even have to “possess” the image or even have it on your computer’s
hard-drive! Merely seeing the image on the web could be enough to lock you up in the state pen. It’s a good thing, therefore, that mere child
nudity might not be enough to constitute child pornography. If it was, then every mother with a picture of her kid taking a bubble bath would be guilty and sentenced to prison. And every major cable network would be guilty
of distributing child porn for showing the movie Pretty Baby, starring
a 12-year-old Brook Shields who played a child prostitute and appeared naked in
the film.
In a recent criminal case in Kenosha ,
my fellow criminal defense attorney Terry Rose got a child porn case dismissed
on those very grounds: the image allegedly possessed by the defendant did not
constitute child pornography. This upset
some Kenosha residents who
took to “social media” to condemn Terry and express their uninformed and dangerous opinions. I’ll address their specific complaints below,
while incorporating some basic lessons about our criminal
justice system.
Friday, November 8, 2019
Former prosecutor doesn’t like the burden of proof
David
Lat, a former prosecutor, has weighed in on the Dan Markel murder trial. For those who don’t know about the case,
Markel was a law prof at FSU who got into a nasty divorce and child custody
battle with his wife. There was plenty
of vitriol flying in both directions. And
when Markel was shot point-blank in the head while pulling into his garage,
the police suspected the wife’s family of setting up the hit. For
those who enjoy true crime, the podcast Over My
Dead Body did an excellent job covering the case. (Click here and scroll down to season one, called Tally.) I found everyone involved in the saga to be
very unlikable, yet I couldn’t stop listening to the podcast and, in fact,
listened twice.
Tucker Carlson, Roger Stone, and Judicial Bias
In a
recent episode of his evening talk show, Tucker Carlson used the Roger Stone
case to shed some light on the inner workings of our criminal justice system. Tucker’s analysis was very informative;
however, his viewers should know that the legal absurdities he identified
aren’t limited to Federal judges gunning to take down Trump’s supporters. Instead, the problems he exposed are
ingrained in our state courts as well, and they are ruining the lives of ordinary
Americans in run-of-the-mill cases.
Sunday, September 22, 2019
Another Wisconsin judge misunderstands hearsay
In State
v. Yost (decision here, On Point summary here), the defendant allegedly committed
disorderly conduct, inside a jail, by his manner of speech, i.e., a speech
crime. One jailhouse inmate testified
the defendant said X. The defendant called
his own eyewitness to the crime, another jailhouse inmate, who was prepared to
testify that he was there at the time and didn’t hear the defendant say
X.
Some privacy, please
Not
for me, but for you. I’m talking
to you three: Megan Fox, some dude named Mark Ronson, and the actor who plays
the (really) dorky character on Silicon Valley . If you three could be a little more private
with the intimate details of your personal lives, that would be great for me
(and for your children and spouses).
Wednesday, September 18, 2019
Wisconsin’s post-Trammell burden of proof: links, strategies, and updates
This is a reminder to Wisconsin ’s
criminal defense lawyers to continue to litigate the JI 140 issue, even after
SCOW’s decision in Trammell. Although SCOW
refused to reverse defendant Trammell’s conviction, the Trammell majority was
very clear: “The circuit court has the authority to modify the language [of JI
140], and the comment to the jury instruction even provides optional
language.” Trammell, ⁋ 23.
Consistent with SCOW’s reminder, trial judges throughout the state
are, in fact, continuing to modify JI 140, even post-Trammell.
Toward
that end, I have drafted a request to modify JI 140 that I use in all of my trials. It includes, as Exhibit A, a proposed, modified
instruction that eliminates the truth-not-doubt mandate. It also includes, as Exhibit B, an
alternative proposal which is less than ideal but still better than the current
JI 140. All Wisconsin
lawyers are free to use parts of it or the entire document—no attribution is
necessary as far as I am concerned. Just go to the JI 140 resource page and scroll to the very bottom. It is in MS Word format and is titled “POST-TRAMMELL
request to trial court to modify JI 140.”
Saturday, August 24, 2019
Bar Meetings: Drinking Tips from an Expert [updated for the 2020 KCBA meeting]
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. (Back then I would have described this general mindset as left-leaning, but today it is probably considered right-leaning.) Unfortunately, these meetings dwindled and eventually
disappeared because, I think, lawyers began to get older and marry and do other
things.
I never understood why anyone who practiced something as addictive as criminal defense 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 often crumble, so maybe it’s possible to bring back the weekly
Bar Meeting.
But in the meantime, the Kenosha County Bar Association is about to have its annual bar meeting. Alcohol will be served. To promote a more enjoyable bar-going experience, I offer these drinking tips from a true expert on the subject, Christopher Hitchens. From his book Hitch 22: A Memoir:
But in the meantime, the Kenosha County Bar Association is about to have its annual bar meeting. Alcohol will be served. To promote a more enjoyable bar-going experience, I offer these drinking tips from a true expert on the subject, Christopher Hitchens. From his book Hitch 22: A Memoir:
A Lawyer Dog in Training
Photo by Brenda VanCuick |
Saturday, August 17, 2019
Reasonable Doubt and Relativity, 76 Wash. & Lee L. Rev. __ (forthcoming, 2019)
Combating Judicial Misconduct: A Stoic Approach, 67 Buffalo L. Rev. __ (forthcoming, 2019)
Constraining Strickland, 7 Texas A&M L. Rev. __ (forthcoming, 2020)
Improvident Prosecutions, 12 Drexel L. Rev. __ (forthcoming 2019-20)
Wednesday, August 7, 2019
Ignorance of the law is no excuse (unless you’re a prosecutor)
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 |
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.
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.
Update: The Wisconsin State Public Defender's amicus brief has now been added to the supreme court and appellate court access system. See here.
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