Hearsay 101

The experienced criminal defense lawyer’s worst nightmare is having a great case with great evidence of innocence, and then being shut down by the trial judge who won’t let you present that evidence to the jury.  (Inexperienced criminal defense lawyers, on the other hand, don’t yet have this fear; they still operate under the assumption that judges will know and follow the law.)  The single biggest source of this fear is judicial misunderstanding of the hearsay rule, which was on full display in State v. Prineas. 

Drugs: Another failed war

The thing about wars is that you need enemies in order to have them.  But what if you don’t have any enemies?  No worries; you can just make them up.  That’s what New York police did so they could wage their war on drugs.  Their first tactic was nothing new: they simply stole drugs from real drug busts and then planted those drugs on innocent people.  This helped them make their arrest quotas and kept their war on drugs going.  But their second tactic was a little more creative.

Judges-gone-wild, part 2: The Supreme Court version

Yours truly with Justice David Prosser in 1999.

Judicial shenanigans aren’t limited to circuit court judges; even our lofty Wisconsin supreme court justices have jumped into the act.  While The Dog was on hiatus, journalists reported that Justice David Prosser and Justice Ann Walsh Bradley engaged in a heated debate that, by all accounts, turned physical.  Some who witnessed the throw-down said that Prosser aggressively put his hands around Bradley’s neck, while others reported that Bradley first charged Prosser, causing him to react.  In any case, I have no intention of rehashing what did or didn’t happen, or even discussing the negative effect this incident had on an already battered judiciary.  (The Trial Lawyer magazine [Fall, 2011] has already captured the popular view of this incident: “[Prosser is] certainly a hero to all of the shirtless, beer-swilling, wife-beating men living in trailers across America.  Maybe they too can be elected to Wisconsin’s high court!”)  Instead, what caught my eye were some post-incident acts and comments by the justices that call into question their basic knowledge of the law.

Judges-gone-wild, part I: The circuit court version

On the topic of misbehaving judges, I have to begin with circuit court judge Linda Van De Water.  But I must admit that I have a soft spot for this judge.  After all, it was her outrageous behavior on the bench that motivated me to start The Legal Watchdog about one year ago.  (You can read The Dog’s inaugural post, here.)  And after that, her honor turned out to be the gift that keeps on giving.  Soon she was charged with her own crime for allegedly storming a residential neighborhood in her pajama bottoms, screaming, jumping on moving cars, and chasing down her ex-boyfriend who had, to her honor’s dismay, moved on to another relationship.  So, whatever happened in her criminal case?

The Dog’s hiatus is over

Photo by Amy Kushner

My second book, Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights, is now complete and in the hands of the editors at Rowman & Littlefield, with an expected publication date of September 2012.  I am therefore freed up—at least temporarily—to return to work at The Legal Watchdog for some judge-bashing blog posts.  And it turns out there is plenty of bashing to do.  Several Wisconsin judges have been behaving badly lately and, even worse, they’ve been getting away with it.  Please enjoy the two-part “Judges-Gone-Wild,” with part one following soon after this post.         

A satirical take on conference realignment: “Big East” changes name to “Big”

Big East Conference commissioner Phillip Bray recently announced a planned Big East expansion, and a corresponding change in conference name.  The league will be dropping the word “East,” and will now simply be known as “Big” or "Big Conference."  Bray attributed the name change to recent conference realignment.  “With the Big East likely to pickup the Big Twelve Conference leftovers of Kansas, Kansas State, Iowa State, and Baylor, the name ‘Big East’ is no longer accurate, honest, or ethical,” Bray insisted.

The jury tax

The law states that a criminal defendant cannot be penalized merely for exercising a constitutional right, such as a jury trial.  But as defense lawyers know, penalties can sometimes be harsher if a defendant passes on a plea deal and instead proceeds to trial, and loses.  This isn’t always the case; in fact, because criminal statutes today cover such a broad range of innocuous behavior, it’s sometimes better for a defendant to have a trial, even if he ends up losing.  This way, the judge can see just how mitigated the “crime” actually was, and might take that into account when pronouncing sentence.  But the risk of receiving a harsher penalty for going to trial and losing—also known as the jury tax—is alive and well, at least in Wisconsin.

“It’s a Wall Street government.”

Our criminal justice system has two extremes.  On one end of the spectrum, we imprison people for decades for using marijuana or having consensual sex with their fellow teenagers.  On the other end of the spectrum, we turn the other way for the really harmful stuff.  For example, despite the blatant fraud and the trillions of dollars in public losses, those responsible for the recent financial meltdown were never prosecuted and rarely even investigated; instead, some of them walked away with hundreds of millions in bonuses while we bailed out their companies.  And that’s what the documentary Inside Job is all about.

An alternative to the jury system?

Criticism of the jury system is probably as old as the jury system itself.  But while criticizing is one thing, coming up with a better alternative is another.  And for years, I had thought that the jury system was pretty darn good as it is.  But then I got an idea: Why don’t we just let Nancy Grace decide?

J.D.B. v. North Carolina: Is the Supreme Court obsolete?

The recent Supreme Court case of J.D.B. v. North Carolina has generated all sorts of hoopla.  The Wall Street Journal Law Blog, for example, even claims that the ruling “expands juveniles’ Miranda rights”—an outcome that would be celebrated by some and condemned by others, no doubt.  A closer inspection, however, reveals that the case will have zero impact on juvenile rights, and, more significantly, that our Supreme Court is fast becoming obsolete in the area of constitutional criminal law.   

The criminal defense lawyer

On a few occasions I’ve been asked: “How can you defend someone that you know is guilty?”  Sometimes the questioner is thoughtful and genuinely inquisitive, in which case I’m more than happy to give a serious and thorough explanation.  (For starters, I’m not arrogant enough to believe that I can know what really happened or who is really guilty.)  Other times the person is simply condemning me and my profession, and really isn’t asking a question at all.  These instances call for more creative answers, e.g., “I like putting ax murderers back on the street.”  But reprinted below—with permission, of course—is a slightly edited version of a list-serve post by a fiery drunk-driving defense lawyer, Michele Tjader.  Her eloquent rant captures, in many ways, the essence of the criminal defense lawyer’s role in our democracy.

Why judges shouldn’t give legal advice

The law on plea bargaining can vary wildly from state to state.  But in some states, judges are not allowed to participate in the plea bargaining process; instead, the prosecutor and the defendant (usually through defense counsel) are left to negotiate a deal.  If a deal is reached, it is presented to the judge; if no deal is reached, the case can be set for a jury trial instead.  But not all judges like to have trials, especially when they’ve got a lot of other cases on their docket or they want to be somewhere else—“Fore!”—instead.  So if plea negotiations bog down, a judge might subtly nudge one side or the other to get the parties closer to an agreement. 

Does the jury find the defendant guilty, guiltier, or guiltiest?

In State v. Hansbrough, the prosecutor charged the defendant with first-degree murder.  When the case went to the jury for deliberation, they were given the option of convicting on that charge, as well as the “lesser included” charge of “felony murder.”  The jury eventually convicted the defendant of felony murder, but there was one problem: the judge never gave the jury a verdict form for the option of finding the defendant not guilty.  Instead, the judge only gave one option—guilty—on the felony murder charge.

On the media: Milwaukee journalists fail miserably; kudos to Kenosha News

I recently represented Mary Hein, a therapist who was accused of drugging, hypnotizing, and brainwashing a male patient in order to have sex with him and to convince him to murder her husband.  As you might expect, the Milwaukee news force was all over it: FOX6, TMJ4, WISN12, and CBS58 were all here in Kenosha with video camera in hand, running salacious stories on the “bizarre murder-for-hire plot.”  Local residents were interviewed (of course) and said “you don’t expect this close to home”; one was even “shocked something like this could happen.”  One station also went to the trouble of interviewing another psychotherapist about Mary Hein’s “abuse of power”: as a fellow therapist, he found her behavior “pretty offensive.”  Another station threw out a teaser for future stories: “The prosecution says there is more evidence and more witnesses to prove the allegations are true.”

Therapist Mary Hein cleared of “murder for hire” and “sex with patient” charges

I represent Mary Hein, a local therapist who was recently accused of hypnotizing, drugging, and brainwashing a patient in order to have sex with him, and then soliciting him to murder her husband.  The case was covered by the Associated Press, Milwaukee’s NBC and Fox affiliates, and other news organizations.  After several months of litigation, including motions in limine and other pretrial motions, all felony charges against Ms. Hein have been dismissed.  Our press release is reprinted below.

In defense of a defense: Lessons from Burns and Bvocik

In jury trials, judges often give prosecutors an incredibly wide berth in proving their cases.  Not only can they introduce direct evidence of the defendant’s guilt and motive, but they can also dredge-up the ancient past in the form of “other acts” evidence.  This places a dual burden on defendants: defend the charged crime and answer for decades-old allegations that often were never even charged, let alone proved.  But even more alarming, there is a double standard at work: when defendants have powerful and direct evidence of their innocence, courts will often go to great lengths to deny them the right to present a defense.  Two recent cases demonstrate this double standard, and teach us some valuable lessons in the process. 

Kenosha unveils “safe haven for crime victims and witnesses”

KenoWi.com recently reported that Kenosha County has created a new victim-witness room in the courthouse.  The room was created because “crime victims and witnesses felt intimidated by friends and family members of the defendants as they waited in hallways or in the courtroom” before testifying.  The new digs come complete with a flat-screen television, a DVD player, movies, toys, games, wall art, new furniture, and even a refrigerator.  (It’s unclear whether the fridge is stocked.)

Anthony Cotton on over-criminalization

Attorney Anthony Cotton recently published an excellent essay, “On the defensive: Wisconsin needs to address over-criminalization,” in the Wisconsin Law Journal.  Tony argues that we have criminalized way too much behavior, including a lot of behavior that doesn't even involve a bad intent, or mens rea, and yet other behavior that would be more effectively dealt with through measures other than punishment.

Time’s up, Einstein: The Legal Watchdog wrestles with dark matter and the theory of general relativity

I was supposed to be in trial all week, but the case settled last Friday.  Therefore, I decided to dedicate a few days to solving the mysteries of the universe.  True, I've only begun exploring the relevant issues, but the week is young. 

Have you ever heard of dark matter and wondered what it was?  It turns out that we can't verify its existence, and the only reason we created it—that’s right, we created it—is to allow us to cling to Einstein's theory of general relativity.  More specifically, when we use Einstein's equations (built on Newton's laws) to back into a measurement of "mass" by first looking at orbital speeds of the planets outside of our solar system, the equations produce more mass than we can actually observe.  So, observational mass and computational mass just don't match up.  Therefore, to make the two balance we created dark matter, i.e., matter that we can't see, but that must be there in order to make Einstein's equations work.  If Einstein’s theories weren’t already so well accepted in the physics community, this would be like assuming the very thing that we are trying to prove.  But because Einstein is a—or the—physics god, most physicists seem to try and substantiate, rather than question, his work.

Our withering Constitution: The right to a public trial takes a hit

Our constitutional rights are easily and routinely manipulated both in and out of the courtroom.  But among the few fundamental rights that seemed unassailable, I thought that the right to an open and public trial was high on the list.  As a practical matter, attempts to close the courtroom during a trial are rare; in fact, I’ve only argued this issue in one trial, and the judge agreed with me and kept the courtroom open to all comers.  And the published decisions that I’ve read on this issue, at least to my memory, have been equally protective of this incredibly basic and important right.  But the recent case of State v. Carpenter demonstrates just how wrong I was.

“That’s justice.”

Attorney Dennis Melowski recently defended a female driver on a group of traffic cases, including a charge of operating while intoxicated, commonly known as drunk driving.  The cases went to a bench trial, and the evidence showed that the arresting deputy had been “amorous” with the female defendant during the traffic stop.  Also, it turned out that the deputy’s squad camera worked fine for every traffic stop he made that evening, except—you guessed it—this one.  But in the middle of the Deputy’s testimony, the bench trial was adjourned for what turned out to be a two year delay.  Here’s what happened when the case finally made it back to court:

Linda Van De Water: Poor Judge(ment)?

In November, 2010 I launched The Legal Watchdog specifically to criticize State v. DeVera, an unpublished case where a trial judge “created facts out of thin air (and contrary to the evidence) to justify sending an autistic defendant to prison.”  I wrote about the case because while I’ve seen and read about bizarre sentences before, this one was beyond the pale.  And, as it turns out, The Legal Watchdog was actually on to something bigger.

State v. DeVera update (and a solution to Wisconsin’s fiscal woes)

In The Legal Watchdog’s first post, I wrote about a judge that made up facts out of thin air to justify sending a developmentally disabled, twenty-one-year-old defendant to prison for having a “non-coercive” sexual relationship with his minor girlfriend.  Even the prosecutor had asked for probation, but the judge justified her draconian sentence by citing DeVera’s poor performance while released on bond during the case, and while on probation in a previous case.  What the judge overlooked, however, was that DeVera was never released on bond, nor had he ever been placed on probation.  Therefore, because the judge’s sentence was built on pure fiction, the appellate court “was constrained to reverse and remand for resentencing.”  So what happened next?

What ever happened to Omot?

I recently wrote a blog post, titled Guilt by association, where I discussed two defendants in two different cases who were convicted not for what they did, but for what their roommates did.  One of those defendants was Cham Omot, who was convicted of a felony drug crime because his roommate had marijuana in his (the roommate’s) dresser drawer.  Then, on appeal, the rarest of events occurred: The appellate court reversed the conviction because, even after giving the state every benefit and every inference, there simply was no evidence whatsoever to support the jury’s guilty verdict. 

To most of us, Mr. Omot was just another faceless defendant who had been ground-up in the criminal justice system and wrongfully convicted.  However, from my perspective, Mr. Omot “came to life” when I got a letter from Tyler Wickman, the outstanding appellate attorney who won Omot’s appeal.

Guilt by association

These days, more than ever, you have to be leery of the company you keep.  Two defendants found this out the hard way when they were convicted of felony crimes not for what they did, but rather for what their roommates allegedly did.

You’re damned if you do . . .

Criminal law is an incredibly malleable beast.  It is designed (or perhaps has evolved) to allow a judge to distort any given fact, or set of facts, to reach a predetermined outcome.  In my articles, I have exposed these judicial gymnastics in the Sixth Amendment context and in the Fourth Amendment context.  However, nowhere is this judicial slight-of-hand more evident than at sentencing hearings.

Capacious crimes and creative prosecutors

A recent opinion piece in The Wall Street Journal argued that it’s dangerous to own or manage a business these days.  Our government’s ever expanding maze of laws, including many strict and vicarious liability crimes, puts businesses and their managers at high risk for criminal prosecution.  More pointedly, prosecutors are able to “exploit vague laws to criminalize behavior that no one thought was illegal.”  But this dangerous trend isn’t limited to Wall Street; it’s happening on Main Street too.