L.A. Law (Review) and Wisconsin Prelims

Check out my new article on preliminary hearings, titled The Preliminary-Hearing Swindle: A Crime Against Procedure, just accepted for publication in the Loyola of Los Angeles Law Review.

I’m very happy that this article will be published in a California journal, as Cali stands in stark contrast to Wisconsin when it comes to prelims.  My favorite example is The People of California v. Frank Carson, et al., where a California prosecutor charged multiple defendants (including a prominent criminal defense lawyer, Frank Carson, his wife and daughter, two local business owners, and, most bizarrely, several police officers) with the murder of a petty scrap-metal thief. 

In the Carson, et al. case, the district attorney’s unhinged conspiracy theory led its prosecutorial crazy train clear off the rails of sanity.  The prelim, though, did its job and saved the day for the defendants.  The hearing took months to complete and some defendants had their entire case dismissed, others won dismissal of their murder charge, and others had their bail dramatically reduced.  (All defendants who had any charges remaining, post-prelim, were ultimately acquitted at jury trial or the prosecutor finally saw the light and dismissed their charges.)

But in Wisconsin, things are quite different.  In stark contrast to California’s prelim—a hearing with some teeth that can actually prevent baseless prosecutions—Wisconsin’s prelim and surrounding activities (such as the appearances, arraignment, and the scheduling of future court dates) have literally been completed in five minutes!  Worse yet, the result is a foregone conclusion, as the defendant has a near zero (if not literally zero) chance of winning or gaining any other benefit from the hearing.  It’s an absolute joke.  Yes, Wisconsin prosecutors and judges have made a laughing stock of our state’s criminal procedure—and I explain it all in my new article.

After the jump, you can read my favorite quote from the article, as well as the article’s abstract.  At the end of this post is a link to the pre-publication draft of the full article.

First, here’s my favorite quote.  It’s a quote within a quote, actually.  It isn’t every day that I get to cite the legendary Ambrose Bierce or my favorite law professor, the late, great J. Gordon Hylton—let alone both in the same article!

Ambrose Bierce, the legendary American newspaper editor, columnist, and author, defined “litigation” as “[a] machine which you go into as a pig and come out of as a sausage.”[1]  And a “litigant,” he wrote, is “[a] person about to give up his skin for the hope of retaining his bones.”[2]  If those cynical definitions don’t adequately convey Bierce’s views, the following anecdote leaves little doubt about his contempt for the American legal system:

Upon learning that a San Francisco woman had filed suit against the city for injuries suffered when she fell into an open sewer, Bierce is said to have remarked, “It is surprising that the lady should have consented to go into Court; we should suppose that one adventure in a cesspool would suffice.”[3]

Although Bierce lived and wrote in the mid-1800s to the early-1900s,[4] he would probably have the same disdain toward our modern criminal justice system.  He might even feel some sympathy for today’s criminal defendants—litigants who, unlike the consenting personal-injury plaintiff in San Francisco, are dragged into the sausage-making machinery against their will, squealing every step of the way.

Second, here’s the abstract to my article:

It is incredibly easy for a prosecutor to file a complaint, thus setting the criminal litigation machinery in motion. But in felony cases, defendants are entitled to a preliminary hearing which serves as a check on prosecutorial power. The “prelim” is an adversarial hearing at which the prosecutor must present evidence and call witnesses who are subject to cross-examination. The prelim’s purpose is to test whether there is probable cause to believe the defendant committed a felony, thus preventing “unlawful detention” and “hasty, malicious, improvident and oppressive prosecutions.”

Nearly all states allow prosecutors to use hearsay, with limitations, at the prelim. Given that, a Machiavellian prosecutor wondered, “If hearsay is admissible at the prelim, and if the complaint consists of hearsay, why don’t we just have someone read the complaint at the prelim and dispense with witnesses and evidence entirely?” The judiciary proved to be an eager coconspirator, and the preliminary-hearing swindle was born. Today, in some places, the prelim has been eliminated in substance and largely in form—a mere shell of its former self.

This Article demonstrates how, exactly, the swindle works, and explains why it is illegal: it defeats all of the policies and purposes underlying the prelim and directly violates clear statutes, case law, and even the Constitution. This Article also explains the intended consequence of the swindle: it is amazingly easy for prosecutors to file, and win bind-over in, felony cases. Interestingly, in one venue that has implemented the swindle, felony cases have risen from less than 38 percent to more than 50 percent of all cases.

The swindle is just the most recent, albeit the most severe, form of prosecutorial and judicial abuse of the prelim. Because of this cumulative abuse, felony defendants now have fewer protections than do misdemeanor defendants—the exact opposite of what the law intended. Given this state of affairs, this Article provides a model motion that challenges bind-over after a defective prelim, preserves these issues for appeal, and protects defense counsel from future claims of ineffectiveness.

Finally, here’s the citation and a link to the full, pre-publication draft of my article: Michael D. Cicchini, The Preliminary-Hearing Swindle: A Crime Against Procedure, 58 Loy. L.A. L. Rev. __ (forthcoming, 2025).

Please send any comments, criticisms, praise, etc., to my email at mdc@CicchiniLaw.com.  Enjoy!

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[1] Ambrose Bierce, The Devil’s Dictionary, in The Collected Works of Ambrose Bierce (1911), at http://www.ambrosebierce.org/dictionary.htm.

[2] Id.

[3] J. Gordon Hylton, The Devil’s Disciple and the Learned Profession: Ambrose Bierce and the Practice of Law in Gilded Age America, 23 Conn. L. Rev. 705, 706 (1991) (internal citation omitted).

[4] See J. E. Luebering, Ambrose Bierce: American Author, Britannica: Arts & Culture (Oct. 6, 2023), at https://www.britannica.com/biography/Ambrose-Bierce.