Rittenhouse and Race

Check out my guest post, titled Rittenhouse and Race, at the Kenosha County Eye.  In it, I address the surprising claim that Rittenhouse's actions and the jury's acquittal were motivated by "fear of black people."  

Fact checking the fact checkers: State v. Rittenhouse

I really hate—yes, “hate,” which can be a good thing—how social media platforms will censor a person’s political speech for allegedly being “false” when it is really just the expression of an opinion.  And now this practice has crossed the line separating the political and legal arenas.  As a practicing criminal defense lawyer, this hits close to home for me.  Hitting even closer to home, I’ve actually been cited in support of a fact checker’s decision to double down on his earlier fact check which declared someone’s speech as “false.”  This is somewhat ironic, given my love of free speech and my hatred of “speech codes,” censorship, and the asinine phrase “hate speech” which is bandied about by nasty children and freedom-hating bureaucrats on college campuses.

You can read all about it here.  In a nutshell, someone wrote on facebook that it was “perfectly legal” for Kyle Rittenhouse, a 17-year-old boy, to possess the gun he possessed when he shot three white men who separately (1) threatened to kill him and chased him, (2) pointed a gun at him, and (3) struck him with a skateboard, all during the Kenosha riots in 2020.  A fact checker then “fact checked” the claim about “perfectly legal” and determined it was false.  The facebook user was ultimately silenced or censored or deleted or whatever they do on “social media” when someone says something politically unpopular.

New motion to modify Wisconsin’s J.I. 140 on the burden of proof

I’m using a new pretrial motion, usually as part of a motion in limine, to modify J.I. 140, Wisconsin’s burden of proof jury instruction.  This new motion is shorter, it acknowledges SCOW’s Trammel decision, and it incorporates the recent revelation that Wisconsin’s pattern instructions are not authored by judges, but rather by unidentified employees of UW.  This should put to rest the prosecutorial argument that the pattern instruction should not be modified because it was painstakingly written by an imminent judicial committee of great legal minds.

If Wisconsin lawyers want the motion to modify J.I. 140, go to the very bottom of my J.I. 140 page, here.  It’s the last document on the page.  And for more on the jury-instruction committee fiasco, including a sample motion to modify any pattern instruction, see the draft of my forthcoming article in the Albany L. Rev., here.

Thanks for the music and the memories, Diamond Dave!

"Gimme a bottle of anything. And a glazed doughnut. To go!"

Songs like Jump and Panama elevated both David Lee Roth and his band, Van Halen, from mere rock-star fame to household names.  Unfortunately, the dust had barely settled after the Hot for Teacher video when Van Halen started to breakup.  The boys did eventually get back together—albeit way too late and for only one studio album.  But in the 1980s, DLR was king of the rock world.  After releasing four platinum albums that decade with VH, Dave minted another three post-VH platinum records before the 80s ended: Crazy from the Heat, Eat ’Em and Smile, and Skyscraper.  I’m no music historian, but being a hard-rock lead singer with seven platinum albums out of seven tries, in a single decade, no doubt puts Dave in a truly elite class. 

In any case, about a year ago, Eddie Van Halen passed away.  And now, DLR has announced his retirement.  Retirement is not death, of course, though Dave seems to acknowledge that the inevitable isn’t too far way when he said: “Hey Ed, objects in the rearview mirror are probably me.”  (Sounds like Panama-inspired words of wisdom: “right behind in the rearview mirror now!”)  But although DLR still roams the earth, it feels to me like another small piece of my world has died—or at least is slowly fading from existence.  For me, Dave’s post-1984 music was a big part of my life, and is now intertwined with memories of better days.  So to keep those memories alive, and to celebrate his solo career, here are some of my favorite songs from my four favorite DLR albums.

Now in print!

Check out the published version of my law review article, Deal Jumpers, hot off the press at the U. Illinois L. Rev., here.  Defense lawyers in other states are often shocked to learn that Wisconsin judges can take a defendant's plea, jump the plea deal, and sandbag the defendant with a harsher sentence than the parties agreed upon.  And the defendant has no recourse whatsoever.  Absolutely amazing.  We don't call Wisconsin the "hell mouth" for nothin'.  

As always, you can find my other law review articles here, and my books here.

A heap of sand, law review publishing, and the high cost of legal education [updated]

There’s a paradox called Sorites Paradox which takes numerous, related forms.  Here’s one.  You’ve got a heap of sand.  If you take away one grain, do you still have a heap?  Of course.  Therefore, given that Heap – 1 grain = Heap, “[i]t follows, absurdly, that even a single grain makes a heap. Thus soritical reasoning appears to show both that no number of grains make a heap and that any number of grains make a heap.”

It really isn’t much of a paradox.  The problem, of course, is in the vagueness of language—specifically, the word heap.  We all know that if you keep removing grains of sand, one by one, eventually you will no longer have a heap.  People may not agree on the exact point at which that occurs, but we would all agree, for example, that a mere two remaining grains of sand, sitting sadly side by side, is no longer a heap.

Submission angsting is back for Fall 2021!

Knightly broadcasts the news!

Many thanks to Phil Lord for setting up a new angsting thread, HERE, for the Fall 2021 law review article submission cycle!  

As I previously wrote about, here, Prawfs Blawg terminated its much beloved angsting thread due to, I suspect, American law prof hypersensitivity.  I frankly don't know how some of those people function in everyday life, but I do understand why they took shelter in the bubble of the legal academy.  And for many of them, the mere existence of the angsting thread made the academy an "unsafe space."  (Break out the bubbles and Play Doh.)  

But that's all behind us, as Canadian Phil Lord has stepped up to the plate to drive one out of the metaphorical park, much like the Toronto Blue Jays laying lumber to the Boston Red Sox.  So we're back in biz!

And to the law review editors, let's go!  Make an offer to publish my article, Disorderly Conduct: An Investigation Into Police and Prosecutor Practices.

The end of the Legal Watchdog (emails)

Although Knightly and I are both getting older and tire far more easily, we're not done writing blog posts quite yet.  But our email alerts will soon be finito!  If you currently receive an email announcing new posts, I am told that as of August the system will no longer support that feature.  So please bookmark The Dog and check back for new posts periodically.   

In the meantime, if you listen to podcasts, Knightly recommends The Trials of Frank Carson.  What happens when a defense lawyer beats up on the central California police, prosecutors, and judges for more than two decades?  The district attorney's office charges the defense lawyer with murder!

Finally, watch for my new law review article, Disorderly Conduct: An Investigation into Police and Prosecutor Practices.  What's this one about?  Well, in academia, law professors have started complaining that the disorderly conduct statute is being abused by racist police, i.e., the police are "surveilling communities of color for signs of disorder" and using the statute as a means of "social control against people of color."  To some law professors, everything is about race, so I decided to test this claim by analyzing a sample of real life Kenosha County disorderly conduct cases.  In the article, I not only look for police abuse of the statute, but also for prosecutorial abuse.  The results might surprise you.  Stay tuned to The Dog for a pre-publication draft of the article once a journal accepts it for publication.

Law Review Submission Angsting Thread -- Fall 2021

For law geeks like me, late January and early July are among the best times of the year.  These dates mark the beginning of each the two law review article submission cycles.  (For outsiders who are interested in how this bizarre process works, see my article on the subject.)  This Fall cycle I'm submitting my 37th law review article to the journals for publication.  It's titled "Disorderly Conduct: An Investigation into Police and Prosecutor Practices."

In recent years I've found that half the fun of submitting and publishing many of my first 36 articles has been following the "Prawf's Blawg angsting thread" throughout the submission cycle.  It's basically a blog post and comment thread where law professors, wannabe law professors, and even a few actual practicing lawyer-authors (like me) post a wide range of questions, comments, and news about the article submission and publishing process.  Debates and arguments have even broken out from time to time.  (To see what it looks like, you can find last submission cycle's blog post and comment thread here.)

In the News: Real or Satire?

Which of the following news headlines are real and which are satire?  It’s getting harder to tell these days.  Read the headlines, below, and take a guess.  Then learn which ones are the real deal, after the jump.

1. University: Avoid term “trigger warning” because it uses the word “trigger”
2. University class explores whether the vast blackness of the cosmos is racist
3. Female weightlifter suffers testicle injury one week before competition
4. Scholar banned from APA discussion group after suggesting there are only two sexes
5. Pennsylvania election audit shows Benjamin Franklin voted for Biden
6. Chemistry, Biology textbooks over-represent male scientists, educators say
7. Police: Woman briefly identified as man to avoid long bathroom line
8. Professor: White privilege is like getting free Wi-Fi
9. Scholar: Progressive church adopts all the positions popular in modern society
10. Professor: Harry and Meghan’s baby “half oppressed, half privileged”

Branding speech as “misinformation” to shut down debate

The Left loves to brand speech with which it disagrees, or that threatens its political agenda, as racist, hate speech, a conspiracy theory, misinformation, or even the dreaded Russian disinformation.  The goal, of course, is to use these words and their negative connotations to suppress the speech instead of having to debate it.

For example, remember when Sen. Tom Cotton (R) said that the virus could have originated at, and been negligently released from, the nearby Wuhan Lab?  The media jumped all over that as a racist conspiracy theory—never mind that a negligent leak is the exact opposite of a conspiracy and that Cotton’s hypothesis had nothing to do with race (i.e., if it is racist to say it escaped from a Chinese lab then it must also be racist to say, as the Left was contending, that it came from a Chinese wet market).  In short, our nation’s prestigious media outlets, like the NYT and WaPo, were just spewing nonsense to advance their political agenda.  As we now know, the evidence has piled up in support of Sen. Cotton’s position.

But don’t take my word for it.  Listen to this NY Times senior writer explain why the Left is so closed-minded and anti-evidence, and read about how the Wash. Post now has to edit its articles to remove its previous claims that Sen. Cotton was spreading a “debunked conspiracy theory.”  Unfortunately, the beat goes on.  The latest example of branding speech as “misinformation” is arguably even more harmful, as the dreaded label is now being used to suppress valuable information about the vaccine.

Now in print at Ole Miss!

My new article, A Clean Record As Character Evidence, 90 Miss. L.J. 315 (2021), is now available on my website.  (For all of my articles, organized by topic, go to my articles page.)  And here's the abstract, after the jump:

Fear and Excitement at Marquette

I'll start with the excitement.  Firing Coach Wojo was good news.  Seven years is enough time to try and win a single NCAA tournament game, and he failed.  (Don't worry about Wojo; he made enough money at MU to take care of himself for the rest of his life.)  And there's even more excitement: MU hired Shaka Smart as our new head coach.  I am convinced he'll bring an exciting brand of ball to MU, and I think that in many ways MU is more like VCU than UT, so I'm hopeful he'll be able to replicate his early-career success.  Exciting times are ahead!

So what am I afraid of?  The end of Marquette University itself.  It all started when Marquette got rid of its Indian mascot out of fear of possible offensiveness.  There were two problems with that decision.  First, why should offensiveness be the test?  Offensiveness is not discrimination and, for a variety of reasons, universities should not strive to be inoffensive.  Second, the Marquette fans who witnessed the killing of the mascot no doubt rhetorically asked: "If they're getting rid of our mascot, what's next?  Will they get rid of: (1) Our Indian logo?  (2) Our Warrior name?  (3) Our official school seal featuring the explorer Fr. Marquette and his Indian guide? (4) What about the name Marquette University itself?

It's time to drain Wisconsin's jury-instruction swamp

Many of Wisconsin's pattern criminal jury instructions -- now available free of charge -- are incredibly pro-prosecutor.  But when we defense lawyers challenge them, courts almost always deny our requests for modification.  Why?  Not on the merits of our arguments, but out of reverence for the great legal minds on the committee of trial judges that supposedly drafted the instructions.

As I have argued before, one problem with such deference is that the committee is made up almost entirely of former prosecutors and, in its most recent iteration, entirely of former government lawyers -- hardly a group to which we should blindly defer on matters of such importance.  But now, another problem has emerged.  It turns out that the much-ballyhooed committee of trial judges doesn't even write the instructions.  Instead, as has been revealed during the course of a jury-instruction copyright dispute, the instructions are created and written solely by employees of the University of Wisconsin at Madison -- possibly just a single employee.

In my newest article, Criminal Jury Instructions: A Case Study, 84 Albany Law Review __ (forthcoming 2021), I explain what's going on.  And now that the instructions have been stripped of their judicial halo and aura of authority, the article also provides a sample written request for defense lawyers to use to seek modification of the instructions in their own cases.  Finally, because the jury instruction committee is going to have some unspecified level of involvement in this swampy jury-instruction process going forward, I advocate for legal reforms rooted in the principles of transparency and, with regard to the committee's composition, diversity of thought and experience.

Talkin' Avery, Dassey, and Wisconsin criminal law with Paul Capaldi

 

More Daubert!

It's a B1G Ten sort of submission season for me, so far.  I placed my first article of the submission cycle, The Daubert Double Standard, with the Michigan State Law Review.  I just placed my second article, Daubert Strategies for the Criminal Defense Bar, with the U. Illinois Law Review Online.  The links are to pre-publication drafts.  Stay tuned for the real deal, to be posted later this year.

I have one more article under submission this cycle.  It's a critical analysis of Wisconsin's swampy jury-instruction process.  It deserves its own post, and I expect to post the pre-publication draft and abstract of that article later tonight or tomorrow.  Stay tuned!

"Let's see Paul Allen's card."

 

For a deep dive into the business cards, see here.

"Never be a spectator of unfairness or stupidity."

Check out my new law review article, hot of the press: The New Absurdity Doctrine, 125 Penn State L. Rev. 353 (2021).  You can read the abstract after the jump.

The Daubert Double Standard, 2021 Mich. St. L. Rev. __ (forthcoming, 2021)

Check out my new article, The Daubert Double Standard, just accepted for publication in the Michigan State Law Review.  You can find the pre-publication draft of the article here, or look for it on the articles page of my website.  Here's the abstract: 

In theory, the Daubert reliability standard for the admissibility of expert testimony requires the judge to act as gatekeeper and prevent pseudo-expertise from reaching the jury. And in criminal cases, Daubert is supposed to benefit the defense, as prosecutors employ the vast majority of such witnesses—many of whom are merely pro-state advocates masquerading as experts. However, many defense lawyers believe that, in practice, Daubert does nothing to protect defendants from these pseudo-experts and instead makes it more difficult for defendants to call their own, legitimate experts. 

To test this informal hypothesis, I conducted an intra-state analysis of all Daubert appellate cases since Wisconsin adopted this federal standard nearly a decade ago. In the 68 cases consisting of 134 judicial decisions across all levels of the court system— trial courts, appellate courts, and the state supreme court—prosecutors have amassed an undefeated 134-0 record. Shockingly, regardless of the type of case, the type of expert, and the party calling the expert, the defense has never won a single Daubert decision at any level of the court system. 

How can a standard that is supposed to benefit the defense produce a record where the prosecutor never loses? This Article goes inside the numbers and identifies eight pro-state judicial tactics on which the government’s towering 134-0 record is built. After exposing and explaining these blatant abuses, this Article makes easy-to-implement reform recommendations to restore defendants to equal footing with the state.

Joe Biden: Unifier or Divider?

Joe Biden’s inaugural address was dominated by calls for unity.  But this seems naïve or even disingenuous to me, as the divide between Americans seems impossible to bridge.  Our division now goes beyond the traditional stuff of politics—e.g., the tax code, how to reduce the national debt, the foreign policy best for America, etc.—to include things like abolishing the police, allocating voting rights based on race, and even attacking the nuclear family.

Given this state of affairs, on what could Americans possibly unite?  We can’t even agree on who is to blame for the Wuhan Virus (or what it should be called), and the Left even wants to strangle the most American of our fundamental values: free speech.  In today’s environment, I find the once insightful words of the late Christopher Hitches to be less insightful than they are obvious:

If you say you're a unifier, you expect and usually get applause. I'm a divider. Politics is division by definition, if there was no disagreement there would be no politics. The illusion of unity isn't worth having, and is anyways unattainable.

But to make matters even worse, Joe Biden might actually be dividing the nation even further while disingenuously acting under the banner of unification.  How?  Paradoxically, he could be doing it by waging a new, seemingly unobjectionable war.

Political correctness, virtue signaling, and masks

I really hate political correctness and virtue signaling.  And in 2020, there was no bigger symbol of either of those things than the mask.  Now, because I am concerned with health, I wear a mask religiously and properly.  (I never believed Saint Fauci when he said in early 2020 that we don't need to wear masks.  By insisting on empirical data before recommending masks, he dangerously ignored logic, reason, and common sense to worship at the alter of science.)  However, I’ve accepted that I will get the Wuhan Virus, but I’m doing everything in my power not to get it, including living like a hermit.  I pessimistically predict I will get it right before the vaccine becomes available to me. 

But at first, I hated wearing a mask, and was even embarrassed to do so, as Democrats had turned the mask into a political weapon.  And today, many people wear them only for political, virtue signaling purposes.  You know what I mean: the woman with the mask under her nose, or the guy wearing the mask as a “chin bib,” i.e., under both the nose and mouth.  (I love that one; see photo above.)  They may as well not wear them at all.  But they do, because just having that piece of cloth draped under the nose or chin makes a political statement.  It’s as bad as the Democrat politician who demands that you wear a mask or even quarantine, but is then caught at the beauty salon or the French Laundry restaurant, without a mask, no less.  Then, to top it all off, these half-assed mask wearers preach about “following the science.”  (This gibberish reminds me of when the Left divides the country and then calls for unity or, worse yet, accuses the Right of being divisive.)  

Unfortunately, this virtue signaling exercise of half-assed mask wearing has infected one of my favorite things: college football.  I just shake my head as I sit alone in my condo, as the politicians demand, watching game after game after game.  Don't misunderstand; I’m very grateful to have college football.  But I could do without the virtue signaling.  Please share my pain by viewing some college football photographs and commentary, after the jump.