"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.

Now in print!

Check out my new article, now in print, Under the Gun: Plea Bargains and the Arbitrary Deadline, 93 Temple L. Rev. 89 (2020), which you can find here.  This article addresses one of the rare situations when a prosecutor and a defense lawyer will be aligned.  (You can read the abstract after the jump.)  All of my articles, organized by topic, are available here.  My books, including critics' reviews, are here.  Enjoy!

Free Advice to College Kids: “Don’t be Nuts”

Things have gotten really crazy on most college campuses these days.  And the focal point of the craziness is often race.  To get a taste of what I mean, just read the College Fix for a week.  After you get past the initial shock of what colleges now call racist, you’ll likely conclude that when everything is allegedly racist, then nothing is really racist as the word loses all meaning.  And a recent fiasco at Georgetown University demonstrates this point.

Georgetown—a truly “elite” college, ranked in the top 25 of all colleges—has a “minority fellowship program . . . designed to mentor students of color” and give them a leg up in the real world.  It is one of many such programs at Georgetown, and is housed in the school’s “Center for Multicultural Equity & Access.”  Sidebar: It’s never enough to have programs; the programs also need to be administered by numerous highly-paid bureaucrats, who are usually employed through a “center,” which in turn drives up tuition and fees, which in turn puts most students deeper in debt.

Yet I wonder how much value this minority fellowship program actually delivers.  According to the College Fix article, “every current member” has resigned, citing, among other complaints, that the “minority fellowship program” is guilty of racism, sexism, classism, and elitism.  A phobia was also alleged, but I’ll focus on these complaints.  But before we begin, go ahead: soak in the irony of students at a truly elite college complaining of elitism.  Okay, finish laughing at their expense, and let’s get down to brass tax.

A Decade of Daubert in Wisconsin: State 134, Defense 0

Knightly can't believe the numbers
(Photo by Amy Kushner)

Knightly and I haven’t been posting much as we’ve been hard at work on a new article, The Daubert Double Standard.  I’ll be submitting it in late January to the law reviews for publication, but here’s a sneak peek.

About a decade ago in 2010, Wisconsin lawyers learned that our state would soon be switching to the Daubert reliability standard for the admissibility of expert testimony at trial.  In criminal cases, the prosecutor (not the defense lawyer) uses the vast majority of expert witnesses, so this change from mere relevance to the more stringent reliability was supposed to benefit the defense.  It was supposed to end the prosecutor’s use of pro-state advocates masquerading as experts to put the gloss of faux expertise on the state’s cases.

Despite what was supposed to happen, many of us in the criminal defense bar knew better.  In 2010, I complained aloud to anyone that would listen that this new, more stringent Daubert reliability standard would not limit the prosecutor’s use of “experts” in any way; it would only make it more difficult for defendants to use their own, legitimate experts at trial.

Now that nearly a full decade has passed, what happened?

Recapturing my lost youth: Five underrated Van Halen songs

When Eddie Van Halen died, Electric Agora wrote that “EVH's death has brought back a recurring feeling I've been having since I entered middle age over a decade ago. The world I love is dying bit by bit.”  I’ve often had that sinking realization as well, not only after big events, such as the death of a parent, but also after far less personal events, such Van Halen’s passing.  I didn’t know Eddie Van Halen, of course, but his music is intertwined with my youth, with memories of better days.

The Electric Agora also saw a sliver lining in this reality of dying worlds.  When one’s world dies, “bit by bit,” there’s actually a consolation: when death comes for the individual, that person will be ready to go, ready to leave behind what little is left of his or her world.  That’s true and, at least for me, oddly comforting.  But in the meantime, having just passed a physical and dental exam with flying colors, I’m (most likely) not yet at death’s door.  I am therefore writing this post to enjoy an even better, though admittedly temporary, silver lining: I’m recapturing my lost youth by celebrating and sharing some of Van Halen’s most underrated songs.

Below are five such songs—one from each Van Halen (not Van Hagar) album, except for the band’s two mega hit records: the self-titled debut Van Halen and the band’s sixth album, 1984.  Those records achieved such success on every imaginable level that there are no overlooked gems, no hidden nuggets to unearth.  But their other five albums are goldmines of under-appreciated songs.  Here are my top five:

The next Republican VP candidate?

I don't pretend to know what's going to happen on November 3rd.  Although, I do expect and have braced for the worst-case scenario: A Harris-Biden administration.  Why?  Because if things go south for the GOP, you won't catch me sniveling and reaching for the bubbles and Play-Doh.  But regardless of what happens in 2020, the next Republican presidential candidate might want to take a long, hard look at Kim Klacik as a potential running mate.  She's loaded for bear -- or, in this case, for donkey -- with straight-talk and no political gibberish.  This woman is streets ahead.

Criminal Repeater Statutes: Occasions, Convictions, and Absurd Results

Ever wonder how Wisconsin prosecutors and judges turn a statute that reads "convicted on 2 or more separate occasions" into merely "2 or more convictions" in order to brand more defendants as repeat offenders?  Well, okay, unless you're a Wisconsin criminal defense lawyer, you probably haven't.  But if you are a Wisconsin criminal defense lawyer, or if you just want to learn how prosecutors and judges torture the plain meaning of ordinary words to get what they want, read my hot-off-the-press article, Criminal Repeater Statutes: Occasions, Convictions, and Absurd Results, 11 Hous. L. Rev. Off Rec. 1 (2020).  And for all of my articles, including this one, go to my articles page.  Enjoy! 

Will Kenosha ever recover from Trump’s visit?

Recently, President Trump sent Federal resources to my city, Kenosha, to put an end to the fires, looting, and violence.  He then announced a planned visit to survey the destruction and meet with law enforcement and others.  Predictably, our Governor and other Democratic politicians tried to stop his visit.  They uttered the usual weak, buzzword-laden blather that masquerades as political discourse today.  Governor Evers wrote, “I am concerned your presence will only hinder our healing. I am concerned your presence will only delay our work to overcome division and move forward together.”

What?!  That’s incredibly childish nonsense.  “Hinder our healing”?  What does that even mean?  And how, exactly, are we currently “overcom[ing] division” to “move forward together”?  And how would Trump’s visit “delay” that?  This is just nonsensical word vomit—that's the most accurate way to put it.

A Tour of Kenosha

Check out this citizen's driving tour of Kenosha, showcasing some of the destruction including a couple of the buildings that were burned to the ground by rioters.  And check out Terry Rose's speech (at the 6:15 mark) outside of a decimated building in Kenosha.  Rose rightfully gives some credit to the Governor for accepting President Trump's offer of federal assistance -- while pointing out that politics initially got in the way of truly swift and timely action.  Wisconsin's Governor waited too long, but, as Rose accurately points out, better late than never.  

Other than Fox, major news outlets won't be covering this accurately, or at all, so for those who don't know, a woman called 911 on a man called Jacob Blake.  Completely unrelated to that incident, Blake also a had an outstanding warrant for felony sexual assault.  Police arrived, and Blake resisted and obstructed officers causing them to use a taser gun, which had no impact.  Blake then got up off the ground and walked from the passenger side of his SUV to the driver's side.  After officers drew their guns, Blake again refused to comply with their commands and went into his vehicle.  Blake also had a large knife, although it was unclear if he had it with him or if he was going to retrieve it -- it was found on the driver's side of his SUV's floorboard.  The end result: the police shot Blake multiple times in the back as he was getting into the vehicle.

There is a legitimate debate about whether the police should have done something differently, such as tackling Blake as he walked around the car to the driver's side door or even letting him drive away to do whatever it is he might do next.  But the mob descended on Kenosha and began rioting.  Some of the facts I've outlined above weren't known at the time the rioting started.  Nonetheless, I suspect they wouldn't have mattered.  Why not?  Because rioters riot for any or no reason.  In Minneapolis, for example, rioting started up again over reports of cops shooting another black man.  Problem is, there was no police shooting.  The man actually killed himself as the police were about to arrest him for murder.

Facts, I suppose, be damned.  At least in Kenosha there was a real-life (rather than imaginary) shooting by police that triggered the rioters.  In either case, as Attorney Rose said in the above clip, "Kenosha isn't going to be another Portland."

Does character matter?

If you're charged with a crime, it's very possible that the prosecutor will find some way to use -- either directly or indirectly -- your prior criminal record as evidence of your bad character.  This, of course, is likely to make you look guilty in the eyes of the jury.  But what if you've got a squeaky-clean record and have never even been accused of -- let alone arrested for, charged with, or convicted of -- a crime?  Can you use your clean record as evidence of your good, law-abiding character?  The law actually (generally) prohibits you from doing so.  Talk about double standards!  In my new article, I debunk the prosecutorial and judicial justifications for hiding your clean record from the jury, argue for legal reform, and provide defense lawyers with a possible strategy under the existing rules: A Clean Record as Character Evidence, 90 Mississippi Law Journal __ (forthcoming, 2021).  Or read the abstract after the jump.

That's Absurd!

Assume you're a sheriff's deputy and you arrest a mail-carrier pursuant to an outstanding murder warrant.  Can you be charged criminally for "interfering with the delivery of the mail"?  What if you rescue a baby squirrel from certain death by giving it food and water -- are you guilty of a crime for "keeping a game quadruped" in your home?  What if you are convicted of a crime that has nothing to do with sex and isn't related to sex in any imaginable way -- can the government still make you register as a sex offender?  Technically, yes.  But a legal principle called "the absurdity doctrine" is supposed to protect you when statutes would otherwise produce an absurd result, like the ones discussed above.  Unfortunately, the doctrine doesn't always work.  Read about my proposed legal reform in The New Absurdity Doctrine, 125 Penn State Law Review __ (forthcoming, 2021).  Or read the abstract after the jump.

Wordplay

In Wisconsin, you could be a "domestic abuse repeater" if you have been convicted, "on 2 or more separate occasions," of domestic abuse crimes.  Yet prosecutors are branding defendants as repeaters, thus transforming misdemeanors into felonies and increasing jail sentences to prison sentences, whenever defendants have been convicted only on ONE prior occasion.  How is this possible?  Read my new article explaining this governmental wordplay, Criminal Repeater Statutes: Occasions, Convictions, and Absurd Results, 11 Hous. L. Rev. Off Rec. 1 (2020).  Or read the abstract after the jump.