The Devil's Dictionary of Criminal Procedure

What's the definition of "Charge-Stacking"?

Charge Stacking, v., Made possible by the legislature’s obsession with creating overlapping, largely duplicative criminal statutes, charge-stacking is the prosecutorial practice of charging a defendant with multiple counts for a single incident or even a single act. This practice gives the prosecutor the necessary leverage to coerce a guilty plea in exchange for the dismissal of some duplicative charges, thereby ensuring a conviction without having to do any actual work. [Footnotes and quotation marks omitted.]

For more highly-entertaining, excessively footnoted dictionary entries, check out my newest article, The Devil's Dictionary of Criminal Procedure, recently published in the Denver Law Review Forum.  You can find the article on Denver Law Review website, here, or on the articles page of my own website, here.

Enjoy!

Join me in the revolution

I always use the Oxford comma.  Not only does it look better—why anyone ever thought that removing it was a good idea is beyond me—but not using it can lead to confusion.  Here's a specific example of why I always use it.  

A recent article’s subtitle from the WSJ reads: “The group is in discussions with Israel over releasing 40 women, children, elderly and sick captives.”  We don't know if “the group” would be releasing only men who are "elderly and sick," or "men who are elderly" and "men who are sick," but not necessarily both.   That’s a dramatic difference—especially if you are, say, the parent of a man being held captive who is sick but not elderly.

Don’t worry, the FBI is on it!

Sass wards off the FBI
Photo by Kristi Storz

I suspect that most people view the FBI the way they view the IRS—yes, those organizations have some legitimate functions, but both are highly politicized.  The IRS has already established this to be true.  Don’t take my word for it; read the IRS’s own confession in this mildly-worded, apologetic NPR story.

Sure, you’ll still find hack media organizations calling any criticism of the IRS a “conspiracy theory”—but at this point, that kind of tired, reactionary name-calling will only persuade the most politically entrenched, pro-government readers among us.

But now, the FBI has taken things to a new level.  It has gone from a highly political organization to, well, a bit of a joke.  Why?  To begin, some female law professors received anonymous text messages that stated the following:

1. “Law school isn’t fair for us men anymore, women always outperform us nowadays”;
2. “I admit you women have clearly won the battle of the sexes, us [sic] men are the losers”; and
3. “It’s not fair.”

Business and Campus Speak

As I wrote in my newest article, The Preliminary-Hearing Swindle (forthcoming), I’m sometimes embarrassed, for my profession, by the judiciary’s blatant disregard of the law.  But despite that, the law is still, sort of, a profession.  And in that regard it stands in stark contrast to “business” and “academia,” which are not professions.  What differentiates a profession from a faux or wanna-be profession?  One thing is that the wanna-be crowd often uses unnecessary, nonsensical language and goofy buzzwords to give the impression of specialized knowledge.  

Where does all the money go?

Sass is looking for the money

Whenever a defendant gets convicted of a crime in Wisconsin, the judge will soak the defendant with seemingly innumerable fines, costs, fees, and surcharges.  There’s the DNA surcharge (even if the defendant has already given a DNA sample and has already paid the fee in a previous case), a Domestic Violence surcharge in many cases, “victim-witness” fees, of course fines, and a plethora of other financial hits.  These things will appear on the judgment of conviction in acronym form—no one even knows what the acronyms stand for, and few people care because there’s not much we can do about it anyway.  In addition to fines, examples include the imposition of the CCFP, CLD, VW, DNAAS, GT, SFOTH, PEN, and DOMAB costs, fees, and surcharges!

What?!  What the hell are those things?  But, more importantly, where does all of that money go?  Are our criminal courts actually profit centers?  Does that create a conflict of interest?  I don’t know.  But I did just learn where the money goes when Louisiana’s criminal courts impose such financial hits. 

Can you be “released from custody” when you’re in jail?

Sass can't believe the state's argument
(photo by John Storz)  

The question seems paradoxical, if not outright nonsensical.  And the answer to the question can be equally goofy—enough to flummox even the sharpest legal watchdog.  Take for example, the Miranda warnings.  The police must read them before they interrogate an in-custody suspect.  Certainly a person in jail is in custody, right?  Not necessarily.  The police might be able to legally interrogate an imprisoned defendant without Miranda warnings unless the defendant can later show that he was “in custody within custody.”  (Very clever.)  In other words, he was in custody, sure, but he was out of custody regarding the subject matter of the interrogation!  Therefore, Miranda warnings might not be required!

Prosecutors and courts like to pay this game with bond conditions, too.  Assume that a defendant’s signature bond has a “no contact with Ms. Smith” condition, he signs the bond, but he remains in custody because he’s also being held on another case for which he can’t post the cash bail.  In this scenario, if he calls Ms. Smith from inside the jail, he’s committing bail jumping because, even though he’s locked away and literally can’t get out, he’s technically “released from custody” on the case for which he signed the signature bond that includes the “no contact with Ms. Smith” condition!  See State v. Dewitt, 2008 WI App 134.  Most prosecutors and some judges live for this kind of sneaky, form-over-substance, somewhat clever, “gotcha” approach to criminal law.

But recently, in State v. Jacobs, prosecutors tried to extend the application of this ploy and went a bit too far.  Sure, the trial court judge, Katherine Sloma, proved to be an eager coconspirator, and bought the prosecutor’s argument hook, line, and sinker.  But the appellate court couldn’t quite stomach it and had to reverse. 

Logjam: An Unintended Consequence of the Preliminary-Hearing Swindle

One of my new articles, which is currently under submission for publication, is titled The Preliminary-Hearing Swindle: A Crime Against Procedure.  In it, I explain a swindle happening in criminal cases throughout Wisconsin.  The preliminary hearing, or simply the “prelim,” has been replaced with a mere in-court reading of the prosecutor’s unchallenged allegations in the complaint.  In some Wisconsin counties, the prosecutors are a bit more straightforward about what they’re doing.  They don’t carry on with the pretense of calling a “witness” to read the complaint or answer questions about it from the “witness” stand.  Instead, because the magistrate is capable of reading the document for him or herself, and in fact has already read the document, the prosecutors in some counties will simply “move” the complaint into “evidence.”  (There is, quite paradoxically, a certain Machiavellian honesty to this streamlined approach, I have to admit.)

Organization that created the accountant shortage forms “advisory group” to fix the accountant shortage

I remember back when I was an accounting major, the AICPA was pushing its 150-credit requirement to sit for the CPA exam.  It just wasn’t enough, apparently, to get a bachelor’s degree in accounting; another 30 credits were needed.  But instead of requiring additional courses like accounting theory, the history of accounting, accounting systems, or case studies in accounting fraud, for example, the additional 30 credits could be in . . . anything!

Bernoulli, Bearnaise, and Statistics for Lawyers

I’m no statistician, but I do like mathematics, statistics, and quantitative methods in general.  That’s why I hate to see lawyers use confusing language when writing or talking about these subjects.  Take this recent quote from an article on the US News website about lawyer salaries.  Here’s the part that’s troublesome (emphasis added):

Law school graduates “can expect a starting salary in the range of anywhere from a low of $50,000 all the way up to $205,000, and those are median salaries,” says NALP executive director Nikia Gray.

Is that wrong?  I’m not talking about merely being misleading.  That's another matter entirely, as only the very top students at the most “prestigious” law schools will have a realistic chance of making a $205,000 salary upon graduating and passing the bar.  Rather, I'm wondering if that quote is wrong.  Here’s what I mean:

The LL.B., the J.D., and the C.P.A.

The law degree used to be called the LL.B., or bachelor of laws.  Pictured below is the relevant portion of a re-issued J.D. degree, or Juris Doctor, replacing an LL.B. that had been awarded earlier, back in 1940, by Marquette Law School.  (The re-issued J.D. degree belonged to the now-deceased William Rose, and still hangs in the law offices of Rose & Rose, Attorneys, in Kenosha.) 

The now-deceased J. Gordon Hylton, a former law professor of mine at MU Law, explained in this blog post that the law degree used to be called the LL.B. because it was recognized for what it was: a bachelor’s degree.