Wednesday, February 21, 2024

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.

Sunday, February 4, 2024

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. 

Saturday, January 27, 2024

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. 

Saturday, January 6, 2024

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.)

Sunday, December 31, 2023

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!

Friday, October 27, 2023

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:

Friday, October 6, 2023

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.

Wednesday, October 4, 2023

What will the next generation of criminal defense lawyers look like?

No, I’m not talking about their race or gender.  Only rich, elite corporate clients care about such things.  My clients, on the other hand, don’t care about my skin color or whether I run a BIPOC-compliant operation.  Rather, they want to know if I can draft and argue a motion to dismiss, negotiate a favorable plea deal, and, most importantly, effectively try a case to a jury.

Instead, the question I’m asking is this: What will the next generation of criminal defense lawyers look like in the courtroom?  Unfortunately, law schools are doing their best to turn out lawyers who are as sensitive and fragile as humanly possible.  It almost seems as if it’s their primary goal to do so.

Sunday, August 20, 2023

Plea Bargains, Prosecutorial Breach, and the Curious Right to Cure, 89 Brooklyn L. Rev. __ (2024)

Check out my new article on prosecutorial breaches of plea bargains and the rather curious "right to cure."  The article exposes this doctrine as another pro-prosecutor tool of the courts, and provides ways for defense counsel to respond to prosecutorial breaches of the sentence concession component of plea bargains.  It will be published next year in the Brooklyn Law Review, but you can find a pre-publication draft of the article here.  All of my articles, organized by topic, are available here.  Finally, you can find the new article's abstract after the jump.

Preliminary-Hearing Waivers and the Contract to Negotiate, 2023 Pepperdine L. Rev. __ (2023)

Check out my new article on preliminary-hearing waivers and how they create the prosecutorial obligations to respond to defense lawyers' plea offers and to use good faith in plea negotiations—something defense lawyers either aren't aware of or typically forget about.  It will be published later this year in the Pepperdine Law Review, but you can find a pre-publication draft of the article here.  All of my articles, organized by topic, are available here.  Finally, you can find the new article's abstract after the jump.

Saturday, July 15, 2023

Beyond mission creep: law schools and mission explosion (or the big bang of nonsense)

Mission creep is when original objectives gradually expand into other areas until, before you know it, those original objectives are a distant memory.  If you’re not alert, mission creep can go unnoticed until it’s too late.  It’s sort of like the metaphorical frog sitting in a pan of water on the stove.  If the temperature is raised gradually enough, the frog doesn’t even realize what’s happening.  Soon he’s a goner, and his cooked legs wind up on some Frenchman’s plate.

But what law schools are doing seems to go beyond a gradual creep.  It’s more like a mission explosion, or a big bang of nonsense, that instantly obliterates the original mission parameters.  More specifically, rather than sticking to their original mission of trying to educate and train future lawyers, law schools have become obsessed with a sudden explosion of goofy objectives.

UC Berkeley law dean Erwin Chemerinsky at it again

Erwin Chemerinsky, the dean of the UC-Berkeley law school, has made some ridiculous statements, including once uttering “the worst analogy in the long and storied history of analogies.”  But it’s not just that some of his statements are goofy—most people slip up from time to time, and the more a person talks the more opportunities he will have to make nonsensical gaffs.  The problem is that, in the Dean’s case, he often utters nonsense when advancing an agenda.  And when there’s an agenda driving the statements, we should be less tolerant of the nonsense. 

Tuesday, May 23, 2023

Writing tip from the Legal Watchdog (or, don’t write like a law professor)

This is my second law professor-bashing post today.  This one will be especially valuable to soon-to-be One-Ls, but hopefully will be useful to lawyers as well. 

For those of you starting law school this fall, you’ll soon learn that, if you play the game correctly and educate yourselves before walking into class, the law profs don’t really add anything to your education.  Many of them will have no experience practicing that particular area of law (or any area of law), some won’t be admitted to a bar, and some won’t even have a law degree.  In other words, after properly preparing for class, you will know nearly as much about the law as they do. 

The good news, though, is that while profs don’t add much, they are also largely harmless – some might even be funny, thus making the class time pass more quickly.  But there is one area where professors can cause you true harm, and that area is legal writing. 

Law profs just virtue-signaled their way toward irrelevance

This is the first of two law prof-bashing posts today.

I have previously explained how several law schools copied Yale and “boycotted” the US News law school rankings.  I use quotes around that word because the schools weren’t really boycotting – or even withdrawing from – the rankings.  Rather, they were just succumbing to the irresistible urge to copy Yale and signal their virtue in the process, often to the point of sheer absurdity.  They just can’t help themselves.  And US News responded to all of this professorial griping by changing its ranking methodology.  The new rankings are available here.

Copying Yale and virtue signaling are two things that the wormy legal academy loves doing, so it was pretty easy to spot these events as they unfolded.  However, what I didn’t see happening was that the legal academy was, rather hilariously, screwing itself in the process.

Monday, April 24, 2023

Pseudo-Events

In Daniel Boorstin’s book The Image: A Guide to Pseudo-Events in America, he argues that, given the wealth of news outlets in America, there are an awful lot of pages that reporters have to fill.  Therefore, “[t]he successful reporter is one who can find a story . . . If he cannot find a story, then he must make one . . .”

If the reporter’s digging and imagination both come up dry, then the news that gets reported may be nothing more than a “think piece” or “speculation about startling things to come”—or, worse yet, a rankings puff piece.  In sum, “news” is now “anything that makes a reader say, ‘Gee whiz!’”

In light of his words, I couldn’t help but notice two pieces of pseudo-news recently—Boorstin would call them stories about “pseudo-events.”  These two current examples fall under the heading of “career news”—a category that is now a big business in itself—and involve my former career (accounting) and my current career (law).