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.