Tuesday, July 5, 2022

The Daubert Double Standard -- Now In Print!

Check out my newest article, The Daubert Double Standard, now in print at the Michigan State Law Review.  Daubert has been an absolute disaster for the defense.  The now decade-plus old law was supposed to make it tougher to use so-called expert testimony at trial.  But the actual outcome was easy to predict: with regard to the state's evidence, nothing has changed.  The courts simply rubberstamp any pseudo-expert the state tries to use.  Worse yet, the courts impose the high Daubert hurdle on the defense, thus turning Daubert into a pro-state double standard.  In my study of all appellate and SCOW cases in roughly the first decade of Daubert, the state is 134-0 against the defense.  

You can find the article here.  You can find all of my articles here.  You can read the abstract for the article after the jump.  And for more on Daubert, see my U. Illinois L. Rev. Online article, Daubert Strategies for the Criminal Defense Bar.

Tuesday, June 7, 2022

Make-Work at Georgetown? [Updated Below]

When I was employed in the corporate world as a cost accountant, I sometimes had work that was interesting on a theoretical level, and sometimes even enjoyable on a practical level.  But the worst part of those corporate gigs was that there wasn’t enough actual work to fill most days.  The result was a bunch of make-work, particularly inter-departmental meetings and special projects dominated by corporate lingo about stakeholders, internal customers, thinking outside of the box, and driving the business.  The exact language changes over time, of course, so that consultants can keep selling their schemes to corporate management.  (You can learn about that scam in this wonderful book.)  But the make-work was enough to make me sick to my stomach or put me to sleep—depending on my mood on any given day.

On the other hand, one of the best things about being a self-employed criminal defense lawyer is that every bit of the work has real meaning.  If it didn’t, I wouldn’t do it because I don’t have to do it.  Some days require 12 or even 14 hours of work.  On other days, there’s very little work to do.  And when that’s the case, I don’t have to create any make-work to look busy.  Instead, I can write, take a nap, watch TV, or (rarely) do something healthy like go for a walk.  (I really should do more of that, my doctor tells me.)

Tuesday, February 1, 2022

Beware of Democrats crying “misinformation”

I’ve written before how the word “misinformation” is used to justify silencing (or at least discrediting) speech that the Left doesn’t like.  (See here and here.)  As if we needed another example, consider the former Mayor of New York, the freedom-hating, BLM-loving Bill de Blasio.

This article reports that de Blasio was criticizing “vaccine misinformation, which he called a national disease.”  As an example of such “misinformation,” the article cited one Ms. Green, another politician, who tweeted that the virus “is not dangerous for non-obese people and those under 65.”  For that tweet, she faced consequences from twitter.

But interestingly, the CDC says that obesity is a huge factor in virus-related hospitalizations and deaths.  Similarly, the CDC says there is also a strong correlation between age and outcomes, with those over 65 facing dramatically greater health risks—at least 65 times that of 18-29-year-olds. 

So was Ms. Green’s statement really “misinformation”?

Friday, January 14, 2022

“Whatever it is that I have said here today”


In one of my favorite movies (Back to School), Dean Martin, dean of the fictional Thornton Melon School of Business, gives a speech during the groundbreaking ceremony at the site of the school’s future, state-of-the-art building.  He said:

The business of America is business.  And the business of an educational institution such as ours is to create young minds that understand that the business of America is the kind of business that it actually is.

Perhaps acknowledging the nonsensical nature of what he’s spewing, Dean Martin concludes: “Whatever it is that I have said here today . . .”  The Dean’s circle speak then provokes a humorous, headshaking response from Thornton Melon.

Monday, January 3, 2022

Miranda Madness

Judge Bruce Schroeder’s scolding of the prosecutor during the Ritttenhouse trial drew a great deal of media attention.  Unfortunately, media outlets were less interested in discussing the underlying problem that caused the judge’s eruption. 

The underlying problem is a common one.  Prosecutors frequently—some, routinely—will comment on defendants’ post-arrest, post-Miranda silence.  In the Rittenhouse trial, the prosecutor did this in two ways.  FIRST, he asked Rittenhouse on cross-exam to admit that this is the first time he’s chosen to talk about the incident, thus implying that he had declined to talk to police upon his arrest.  SECOND, because the state has to go first at the trial, the prosecutor also got Rittenhouse to admit that he had the “benefit” of listening to the state’s witnesses and seeing the state’s video evidence before finally talking about the incident.

Disorderly Conduct

Check out my recently published article, Disorderly Conduct: An Investigation into Police and Prosecutor Practices.  I wrote the article in response to some pretty outlandish claims by law professors about how the police are allegedly using the disorderly conduct statute.  You can read my article's abstract after the jump.  You can also read my Q&A / interview about the article at the Kenosha County Eye.  And you can find the article itself on the LMU website.  All of my articles, organized by topic, are available on the articles page of my website.  Enjoy!

Saturday, December 18, 2021

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."  

Wednesday, November 17, 2021

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.

Sunday, November 14, 2021

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.

Sunday, October 17, 2021

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.

Monday, August 23, 2021

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.

Wednesday, August 18, 2021

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.

Friday, July 30, 2021

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.

Monday, July 19, 2021

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.

Thursday, July 8, 2021

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.)