It’s bowl season!

It’s that time of year again!  Bowl season is here.  Just yesterday, in fact, the Beef ‘O’ Brady’s Bowl was played in front of a near-empty stadium.  (And for some reason, I now find myself compelled to watch a replay of the game on ESPN.)  But this just means that better, more exciting bowl games are on the way.  And with the heart of bowl season fast-approaching, I thought it would be a good idea to re-post “Area Doctor Launches Don’t Overeat Bowl,” with some updates, after the jump. 

State bar recommends new lawyers do free legal work to reduce their anxiety from not having money or legal training

In November, 2013, a “special task force report” by the State Bar of Wisconsin concluded that a large number of new law grads can’t find jobs to pay off their staggering student debt loads.  In addition, many of those who were fortunate enough to be employed (or underemployed) were afraid to practice law because they didn’t know how.  Here’s a nice excerpt of a summary of the report from the bar association’s e-newsletter: 

“My debt is higher than a mortgage for a nice house. It’s all I think about. And I know I will be strapped in a job I don’t want paying debt for the rest of my life,” said [one new lawyer]. 

“I’m buried under debt. I’m terrified that this is what the rest of my life is going to look like. I’m also scared to start my own practice, because I don’t have the practical litigation experience. I can’t afford a pet, let alone kids. I live paycheck to paycheck. It’s very, very scary and disheartening,” was another response from a new lawyer.

Another lawyer said the job search left the lawyer feeling “suicidal” and “terrified.” The lawyer also feels alone and scared of making a mistake in practice but is hesitant to tell anyone about these mental struggles for fear of being disbarred. 

. . . [A] task force member and past president of the State Bar’s Young Lawyer’s Division[] said the lawyers who made these sorts of comments “are fast becoming your average member of the State Bar.”

So, in short: lots of stress due to high debt loads, no jobs, and the fear of practicing law because of the lack of training and the related risk of disbarment.  So what is the state bar’s solution?

Knightly celebrates the (temporary) revival of the confrontation clause

Knightly's celebratory "play bow" for Mr. Albee

The Sixth Amendment’s confrontation clause is, pretty much, what it sounds like: it gives a criminal defendant the right to cross-examine his accusers. This particular right is not a mere technicality.  We all know that talk is cheap, and criminal accusations should be tested in open court. However, judges have carved away at the right of confrontation by creating numerous exceptions by which it can be satisfied—or, more accurately, ignored—without giving the defendant the opportunity for cross-examination. In addition, our Wisconsin supreme court developed another way to get around this fundamental right: they created a far-reaching exception allowing lower courts to find that the defendant forfeited the right before trial, and therefore is not entitled to confrontation or cross-examination. And even when the United States Supreme Court held that Wisconsin’s far-reaching, pro-prosecutor “forfeiture doctrine” was unconstitutional, Wisconsin simply countered by labeling its prior forfeiture decisions (and the accompanying wrongful convictions) as harmless errors. But now, after Federal Defender Craig Albee’s recent appellate win in a Wisconsin federal court, the government's beloved “harmless error doctrine” has taken a serious hit—at least in one case. But this doesn’t necessarily mean that our state courts will learn their lesson and will stop violating our confrontation rights. It just means that they’ll have to create new ways to do so. So at least they’ll have to work for it. For more about the confrontation clause, its importance, the judicially created exceptions, and the forfeiture doctrine, read Confrontation after Crawford, Judicial (In)Discretion, and, my personal favorite, Dead Again.         

"My client didn't do it, but I know who did."

When lawyers try to defend criminal cases by arguing not only that their client didn't do the crime, but also that the lawyer knows who did it, judges start to panic. (This defense is known as the wrong-person defense or the third-party defense.) Judges don't like it when defense lawyers start questioning the prosecutor's charging decision. They would much rather that the defendant simply take his medicine instead of trying to cast blame on someone else. After all, things get complicated once we entertain the possibility that the prosecutor charged the wrong person. And sometimes, judges get so crazy about this that their thinking process crosses the line that separates the merely irrational from the clinically insane. For example, one judge denied a murder-defendant's right to put on a wrong-person defense, "[e]ven where a third party was seen fleeing from the scene of the crime and admitted to killing other people and burying them in the very woods in which the victims' bodies were later found." Why did the judge exclude this defendant's evidence of innocence and of third-party guilt? It was simply "too threadbare to be admissible." (Interestingly, this defendant's evidence against the third party was much stronger than the prosecutor's evidence against the defendant, yet it was still considered inadequate.) In any case, this stuff makes for interesting reading, as long as it's not happening to you or your client! So check out my newest article, An Alternative to the Wrong-Person Defense, 24 George Mason University Civil Rights Law Journal 1 (2013). For links to my other articles, click here.    

The perfect holiday gift. Seriously.

I'm not a fan of this time of year, mostly due to the holidays and, more specifically, the Christmas music that stores begin playing as early as November.  However, most people feel otherwise, so I might as well try to take advantage of the "general mood."  When you're buying holiday gifts this year, consider stuffing the stockings with a copy of my second book, Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights (Rowman & Littlefield Publishers, 2012).  But don't buy it on my recommendation; I'm somewhat biased.  Instead, listen to Robert Worley at the International Criminal Justice Review, who recently wrote: "Throughout this book, Cicchini argues that Americans should have a healthy distrust of the criminal justice system. . . . I strongly recommend this book.  Once I opened it, I literally could not stop reading."  That is sweet music to an author's ears (or eyes).  Now, buy the book and give it to loved ones so they can learn what really goes on in "the system," starting with the police investigation and moving all the way through trial and even appeal.

Oh, and happy holidays.   

From around the world wide web

I nearly always write original posts, but once in a while I like to share things from around the world wide web.  Let’s start with the incomparable and amazing Popehat and its coverage of the free speech issues at the University of Texas.  It turns out that some students didn’t like a conservative student group’s activities designed to raise awareness (I love that phrase) of immigration issues.  So not only did the academic community shame the conservative group—something that Popehat points out is the proper reaction to unpopular free speech—but many students are also asking the government to step in and punish the conservative group for exercising their free speech rights.  In a nutshell, Popehat points out how ignorant this is.  Don’t these students know that some day—or even today in some contexts—their own speech will be hurtful and unpopular to others?  Do they really want the government stepping in and censoring them?  When reading the post it struck me just how much some people rely on the government today.  They turn to it for nearly everything, even when their feelings are hurt because others are saying unpopular or offensive things.  Man-up, offended students of U.T.!  When you leave the academic bubble and, hopefully, get jobs, people will say and do things all the time to offend you.  Get used to it, and stop running to the government for your every (imagined) need.  Also from around the web . . .

Obama-Care: The worst branding effort in history?

Several years ago, legislators signed off on the Patriot Act in knee-jerk fashion, and many of them hadn’t even read the document.  The reason?  Well, first, the nation was in a state of fear, so obviously some piece of legislation had to be passed immediately—that’s just what lawmakers do.  And second, it was named the Patriot Act.  You would have to be unpatriotic not to get on board, right?  Anyway, that was a case of great branding.  Had it been named the Government Spying Act, or the Invasion of Privacy Act, fewer people would have supported it (although, I think it still would have passed).  And now, this same branding phenomenon is playing out, only in reverse, with Obama-Care, a/k/a the Affordable Care Act.

Sex and Religion

I stole the title of this post from an album by the world’s greatest guitarist, but the idea behind the post came from a recent essay on Minding the Campus, titled The Hyped Campus Rape that Wasn’t. 

"Quote unquote."

When I write blog posts, articles, and even books, I operate largely on intuition and feel. That is, I can't articulate the rules of the English language -- such as where to use a dash or a semicolon -- yet somehow I have a decent idea of what to do. And when it comes to speaking, I, like most people, use language in a fairly sloppy manner, at least compared to my writing. So, given my own imperfections -- which I admit are deep and many -- I am very tolerant of the blogs, articles, and books that I read, and even more tolerant of the podcasts to which I subscribe. But there are a few things that bother me like a fly buzzing around my ear. Let's start with the phrase "quote unquote."

Judging

I've written a lot of posts about judges' inability to grasp basic legal principles, and how frustrating and costly this can be. (For a couple of recent posts, in which you'll find several additional links, see here, here, and here.) I've also speculated, here, that much of this can be traced to the American law schools that produce the graduates who eventually become judges. One of the problems with many of our schools is that they really don't teach a whole lot about legal theory, and even less about lawyering. (They do, however, love to teach social science theory and the law.) One of the reasons law schools don't teach much law is that an increasing number of new law professors -- especially those at elite schools -- have a Ph.D. but no law degree. And, many of the law professors who do have law degrees have never practiced law in the fields they teach; further, many have never practiced law at all, or only in rather sheltered settings for a year or two. The blog Outside the Law School Scam gives an excellent example of this incredibly common law school hiring practice: a law prof teaching criminal procedure who has never practiced criminal law. (The blog post further points out that the prof has "near-zero experience" in legal practice of any kind.) The problem, obviously, is that these law professors can't add anything of value to what a reasonably intelligent law student can do on his or her own: read and think about statutes and case law. And the bigger problem is that these law professors are training -- or, rather, not training -- our future judges. In short, I don't see any improvement on the horizon for the state of our judiciary.      

Please, no more rules

The legal profession is laughable.  We have endless procedural rules that come in numerous forms, including statutes, supreme court rules, appellate court decisions, local court rules, and scheduling orders, to name a few.  The problem is that judges ignore these rules as fast as they (and the other lawmakers) can dream them up.  For example, you think you have the right to call witnesses at your preliminary hearing just because the statute specifically says you can?  Think again.  You think that evidence against you will be suppressed because your rights were violated?  Unlikely.  You think the prosecutor has to turn over discoverable materials within sixty days of your demand just because the scheduling order commands it?  Not even close.  And how about the most basic thing of all: you think you have the right to testify in your own defense at trial?  Only if the judge is in the mood to hear from you.  No other profession could possibly survive if its professionals were to behave the way judges do.  But where does this judicial disdain for the rule of law come from?

“Judge, have you been studying this at all?”

I’ve written numerous posts—for example, here, here, and here—about defense attorneys trying to put on evidence of innocence during a trial, only to have trial judges shut them down cold. As I explained in those posts, this happens most frequently when the prosecutor objects to a defense lawyer’s line of questioning as calling for “hearsay.” In most cases, however, the testimony isn’t hearsay at all. So the surprised defense lawyer does his best to play educator, and tries to teach the judge about the definition of hearsay. Yet, because many judges just cannot grasp this incredibly important concept, they sustain the prosecutor’s objection in knee-jerk fashion. The defense lawyer—much like a patient whose surgeon doesn’t understand basic human anatomy—is dead in the water (or on the operating table, as it were). 

Now, I don’t mean to make light of this incredibly serious and utterly unacceptable state of affairs in legal education and, consequently, in the judiciary. But when I saw the following short video clip, I couldn’t help but think of physicist Brian Greene as the frustrated defense lawyer, and the other character in the video as the completely uneducated judge, incapable of grasping the lesson. (If the embedded video does not appear below, you can find it on YouTube by clicking here.) Enjoy.

  

Government Shutdowns: A Modest Proposal

All of this federal government shutdown business got me thinking about a possible state of Wisconsin government shutdown.  If that ever happens, which government services would be considered essential, and which would be nonessential and, therefore, suspended or even eliminated?  My modest proposal (for a hypothetical state-government shutdown) is that we could do without the services of many of our appellate courts.  Why?  The story begins with a recent Wisconsin criminal case, where the trial judge prevented the defendant from testifying in her own defense.  If that sounds shocking to you, it should.  Few things (if any) are more fundamental than a defendant’s constitutional right to testify at her own trial.  So why wouldn’t the trial judge let the defendant—here, an eighteen year old girl—take the witness stand?

On the (business) media

I generally enjoy APM’s Marketplace podcast, notwithstanding the host’s all-too-frequent use of the phrase “c’mon, man.”  But in a recent episode, the host interviewed an Ivy League business school professor about “meetings.”  In short, there are about 11 million business meetings in the United States each day.  About half of those surveyed said that about half of their meetings were unproductive or not a good use of their time.  The prof’s conclusion: limit the duration of meetings to force the attendees to be more productive, thus getting more done in less time.  Superficially, that sounds fine.  But on closer inspection, here is my list of complaints about the podcast:

Hiatus (and some fun links)

Knightly is on summer hiatus

Sorry for the delay since my last post, faithful Legal Watchdog readers.  To make matters worse, Knightly and I are tied up with some other projects and need to extend our hiatus a bit.  But in the meantime, I'll do what most other blogs do: link to other posts while adding nothing of value.  First, Atty. Joe Easton tipped me off to this post about a law in Florida that allows criminal defendants to collect litigation costs after they win an acquittal.  (For further analysis, click here to see what Florida's rather striking attorney general says about the law.)  It would be nice to have something like this in Wisconsin to make our hyper-aggressive prosecutors think twice before filing criminal complaints.  Of course, until they got the message and learned their lesson, the taxpayers would ultimately end up paying the tab.  But in the long run, the change in prosecutorial practices would be worth the short-term price.

“This is getting more and more out of control the more we find out about it.”

The title of this post is a quote from Congressman Jared Polis of Colorado, who was weighing in on the NSA and its spying on American citizens. We now know that the NSA’s spy programs covered 75 percent of all domestic internet traffic, and included a special program that targeted love interests—a program the NSA cutely dubbed LOVEINT, for “love intelligence.”

The non-recommendation recommendation (and other government bullshit)

When some prosecutors argue in court, the things they sometimes say are so absurd (and often factually wrong) that I wish the trial judges had some inner Professor Kingsfield and could muster the courage to call bullshit, i.e., tell the prosecutors that they’re offending the concepts of logic, reason, and truth.  The recent case of State v. Locke perfectly illustrates this all too common problem.  In Locke, the prosecutor induced the defendant to plead guilty to some serious felonies, thus saving the prosecutor and the court several days in trial, and taking away all risk that a jury could find the defendant not guilty.  In exchange for the pleas, the prosecutor agreed not to make a specific sentence recommendation.  That is, the prosecutor retained the right to talk about the offenses and say negative things about the defendant, but he promised to leave the specific sentence up to the judge.  So what happened at the sentencing hearing?

Why judges should read The Legal Watchdog

Back in 2011 I wrote a post titled Hearsay 101, and begged trial judges to take the time to learn the rules on hearsay.  I reasoned that trial judges wouldn’t want to have surgery at the hand of a surgeon who doesn’t know basic human anatomy, and defendants don’t want to have their freedom ripped from them because a trial judge doesn’t understand basic rules of evidence.  Unfortunately, after reading the recent decision of United States v. Stern, it is painfully obvious that at least one federal trial judge missed my earlier post.     

Back to the 80s?

I would love to go back to the 80s.  We had Al Bundy and Married with Children, style like LA Gear, movies like Back to School, and actual music videos like Rio on MTV.  Oh, yeah, and most importantly, our government used to spy on the Soviets, instead of spying on its own citizens. Of course we can't really go back to the 80s, but maybe the 80s will be coming back to us. Now that Russia ironically gave shelter to NSA whistle-blower Edward Snowden, I hear that even the Cold War is coming back into fashion.

    

Why law schools should line up to pay LST for honesty certification

Not many people like lawyers.  By extension, not many people care for the law schools that produce the law graduates that become lawyers.  To make matters worse, the last few years have been exceptionally tough on the law school industry.  For example:

• Numerous law schools have been sued for false advertising about their graduates’ employment outcomes.  And even when those lawsuits are dismissed, judges sometimes do so because the reported numbers were so obviously false, it wasn’t reasonable for prospective students to rely on them—not exactly a “win” for law schools in the court of public opinion. 

• Worse yet, several mainstream media outlets (for example, here and here), and even several current law school professors (for example, here, here, and here) have been highly critical of law schools, especially with regard to the cost of earning the degree and the limited employment opportunities that are really available for graduates.       

• These events are at least partly responsible for the dramatic decline in law school applicants.  And with demand for product way down, many law schools have now moved to a near open enrollment policy to try to keep revenues up. 

Even if you disagree with the claims in the lawsuits, and feel that the law degree is still well worth its price, and think that the drop in applications is just a temporary glitch, there is no denying that it has been rough going for the law school industry.  Further, with schools just starting to feel the hit of lower enrollments, it is undisputed that revenues will be down and times will be tough for at least a couple of years.  So, given that, what can a law school dean do to improve his school’s fortunes? 

Lower court overturns higher courts so it can affirm conviction

The United States Supreme Court recently held that when government agents attach GPS trackers to our cars to follow our every move, that is a “search” and, if done without a warrant, violates the Fourth Amendment.  It’s amazing that we really needed a Supreme Court case to tell us that, but in this age of constant, mass, shameless government surveillance of its own citizens, well . . .   Worse yet, even in the rare case, like this one, that the Supreme Court actually speaks out against a government spying practice, its words mean nothing.

The limits of empirical studies (updated)

When I write law review articles my arguments are generally rooted in things like “logic,” “consistency,” “analogies,” the admittedly-vague concept of “fairness,” and sometimes even “economic reasoning.”  (Other times, the things I criticize are so absurd that it would be more accurate to say my arguments are rooted in “anti-stupidity.”)  However, sometimes hard data combined with basic statistical techniques—see, for example, here and here—can do wonders for effectively demonstrating a point.  But as a rule, I’m not a fan of empirical studies, and the recent “value of a law degree” debate shows why.

That’s one helluva student-faculty ratio! (Updated)

Law schools are obsessed with rankings, and therefore love to pander to the US News, aka “the surviving rump of an otherwise defunct news magazine[.]” And because US News says that one of the factors used to determine the best law schools is student-faculty ratio—more faculty members per student is better—law schools hired faculty at a torrid pace, at least until the recent layoffs and buyouts due to dramatically declining law student applications.  (At some point, economic reality has to kick in.) 

Dexter and the Insanity Defense: "I Really Need to Kill Somebody"

[First read the introductory post, Meet Dexter Morgan.]  Several times throughout the series, Dexter finds himself just a hair—or fiber or blood drop—away from getting caught.  In season two, for example, FBI Special Agent Frank Lundy comes close to discovering that Dexter is the Bay Harbor Butcher.  And if the Feds and Miami Metro were able to link all of those dead bodies to Dexter, what defense could he possibly have?  More specifically, could Dexter successfully argue that he was insane and therefore not legally responsible for his multiple homicides?

Dexter, Miami Metro, and the Broken Chain of Custody

[First read the introductory post, Meet Dexter Morgan.]  In “Dex Takes a Holiday,” Dexter uses his three-day mini-vacation away from Rita to target his next victim, Zoey Kruger.  (This, Dexter explains, is a serial killer’s way of recharging his batteries.)  But Zoey isn’t Dexter’s typical victim.  Instead, she’s one of his own: a cop.  Granted, she’s a bad cop—one that killed her husband and child to escape the unbearable suffocation of domesticity—but a cop nonetheless.  Dexter begins, as he usually does, by gathering solid evidence.  While prosecutors like Miguel Prado may go after defendants by filing a criminal complaint first, and then creating evidence later, Dexter is more careful.  He knows that his targets face a stiffer penalty than all but a handful of Miami’s criminal defendants.  So when Zoey puts her house on the market—after all, who needs four bedrooms and a big yard when you’ve just murdered your husband and daughter?—Dexter attends the open house.  While there, he gets what he needs: physical evidence.  He finds a small part of the glove that Zoey wore when she did the deeds.  The glove fragment has the gunshot residue and the blood evidence necessary to link Zoey to the double murder—the proof that Dexter’s moral code requires before he can drug Zoey, immobilize her, stab her, slice her into neat little pieces, and send her to her final home below sea level.

Meet Dexter Morgan

Not all book ideas grow up to be books.  I recently wrote a proposal for a law-related book about Showtime’s Dexter.  As a Miami Metro Police Department blood analyst by day, and a serial killer by night, Dexter Morgan found himself buried in legal issues—a lawyer-writer’s dream.  Although several publishers really liked the proposal, so far they’ve all passed on the project.  It turns out that in publishing, as in much of life, timing is everything.  Because Showtime recently announced that Dexter will end its eight-year run later this year, and because books can take nearly a full calendar year to get to print, the publishers thought that my Dexter-themed book would be too late to the dance.  (I respectfully disagree, as the season eight DVD won't be released until next summer.  Besides, academics are still writing about Buffy the Vampire Slayer a full decade after Sarah Michelle Gellar hung up her stake.)  But blogs, unlike books, are near instantaneous.  And with Dexter’s final season now in full swing, I thought that fans of the show might enjoy the two short chapters that I wrote for the book proposal.  The chapters—one on Dexter and the chain of custody and one on Dexter the insanity defense—are, obviously, about a fictional show, not legal advice, and purely for entertainment purposes (unless, of course, any of you Dexter fans and Legal Watchdog readers are also publishers, in which case you should contact my agent Janet Rosen for a copy of the book proposal).  So enjoy the two chapters that will follow immediately after this post.  Related links:  An earlier post on Dexter, DNA, and Maryland v. King; my first published book; and my second published book.    

Legal academia shakeup

Nearly one year ago, I wrote a blog post titled Law School Management 101 (or how to deal with your school’s looming fiscal crisis).  In it I reminisced how, by the time I graduated in 1999, law school tuition had risen from about $13,000 per year to nearly $20,000 per year.  Sitting there in my cap and gown with tuition payments behind me, I then wondered, “who would want to go to law school at these prices?”  In that post I conceded that my price-sensitive way of thinking back then was at least ten years premature.  Why?  Because between then and now, tuition continued to rise (eventually into the $40,000-plus range at many private schools), yet the number of applicants rose right along with it.  In other words, applicants were willing to pay those prices and a whole lot more.  But as it turns out, I may not have been ten years ahead of my time after all.  Today, the market for legal education has corrected, and some schools are now lowering tuition back to 1999 levels.

Relief from the media

I've complained about journalists completely dropping the ball when reporting on legal issues.  And the Popehat blog does a great job of demonstrating that many legal journalists are completely incapable of doing their jobs, even when they try.  Yet all of this is nothing compared to the miserable coverage of Edward Snowden’s whistle-blowing on our government’s massive spying operation.  So if you want journalists that fall in line behind the government bureaucrats and repeat their brain-dead platitudes about how the spying is good for us, then stick with the media-as-usual.  But for real, critical journalism that gets to the underlying issues, follow RT News coverage.  

On Probation: The Dangers of Assuming a “General Rule” [UPDATED below]

In criminal law, we typically start with a general constitutional rule that was designed to protect individuals from the coercive power of the government.  But then, judges decide that the rule is giving too much protection at the government’s expense, and they spend years chipping away at it in court decisions.  They create multiple bizarre, hyper-technical exceptions to the rule, based on factual distinctions without a meaningful difference, until the original rule becomes unrecognizable.  The best and most extreme example of this phenomenon—an example that has unfolded over several decades—is what the courts have done to our Fifth Amendment rights, including our right to remain silent and our right to an attorney before and during police interrogation (see pp. 915-28 of this article).  But it doesn’t end with police interrogations.  Thanks to a new Wisconsin case, it appears that the Fifth Amendment is on the ropes in the probationary context as well.

Prosecutors might not control the world after all

Sometimes, judges will impose rules and deadlines on prosecutors, especially when they get the sense that the prosecutor is pursuing a frivolous case.  For example, “You hid this evidence from the defense lawyer until now, the morning of trial?  I’m excluding it from the trial because you violated the discovery rules and my scheduling order, and the defendant wouldn’t have the necessary time to prepare his case.”  Or, “This case has been pending for three years, and you want to completely change the charges the morning of trial?  No dice; you’re going to trial on the charges that you've filed.”  Granted, this doesn’t happen often, but even when it does, judges quickly learn that it’s the prosecutor, and not the judge, that controls the courtroom.

It’s really more of a suggestion than a rule

Because I practice criminal defense in state courts, I really don’t keep up with cases on the federal rules of criminal procedure.  But a recent post on Michael O’Hear’s Life Sentences Blog caught my eye.  O’Hear writes about a federal rule that prohibits judges from getting involved in the plea bargaining process.  (Wisconsin state courts have a similar rule, so I’m quite familiar with it.  Further, there is at least one good reason behind the rule: sometimes judges don’t understand the law, so it’s best if they just stay out of the way.)  But what happens in federal court when a judge breaks this rule?  What if he sticks his nose into the parties’ plea negotiations, bullies the defendant to take a deal, and the defendant later regrets it and wants to withdraw the plea?  Is he entitled to take back his plea and start fresh?  Not quite.  It turns out that the federal “rule” against judges pokin’ around in the parties’ business is really more of a “suggestion” than a rule.

The death of books?

I love movies about writing.  Whether it’s a movie about short fiction and book clubs (Kicking and Screaming), book-length poems and multi-volume “confessions” (Henry Fool), investigative reporting pieces (Safety Not Guaranteed), the great American novel (Sideways), academic journal articles (Tenure), or even magazine restaurant reviews (The Trip), these writing-themed movies are often smart, witty, engaging, and far more interesting than any summer blockbuster.  But in the newest movie (Wonder Boys) to make my DVD collection, the old, nearly used-up novelist character laments: “Books.  They don’t mean anything.  Not to anybody.  Not anymore.”

Kenosha government: Walking over dollars to pickup pennies

Kenosha, the city where I live and practice law, is situated right on Lake Michigan and is located between two world-class cities: Chicago and Milwaukee.  (Well, okay, one world-class city and one nice city with a lot of fun restaurants and a great college basketball program.)  But despite these incredible geographic advantages, Kenosha—especially downtown Kenosha—is often described as grossly underdeveloped, stagnant, and having few meaningful employment opportunities.  Pictured is 56^th Street—the heart of downtown Kenosha where my office is located—on a weekday at around 2:00 p.m.  This gives a good snapshot of downtown Kenosha's desolate state of affairs.  I don’t know why Kenosha has been a perennial underachiever, although I suspect it has something to do with local government’s general anti-business attitude, its unwillingness to adapt to a post-Chrysler world, and our insanely high property taxes.  I’ve also been told that our artificially-inflated crime rate—a rate controlled by prosecutorial practices rather than what people would describe as “real crime”—signals to prospective companies that we don’t have an adequate, qualified workforce, thus keeping employers away.  But regardless of the reasons, I recently had a parking-ticket experience on 56^th Street (pictured) that epitomizes Kenosha’s general mindset and the reason why it will likely always be what it is.

Dexter, DNA, and Maryland v. King

Dexter is a blood analyst for the Miami Metro Police Department by day, and, unbeknownst to nearly everyone, is also a serial killer by night.  With that type of work, it’s no wonder that television’s most beloved murderer, and his workaday colleagues at Miami Metro, are buried in legal issues.  Take, for example, the time that both Miami Metro and Dexter were tracking the Trinity Killer—the mysterious killer that always took three victims in each of his murderous cycles.  Miami Metro had a great idea: employ the “DNA sweep.”  The cops simply set up “DNA roadblocks” on the highway, stopped all of the cars, and forced everyone to submit their DNA to be tested against the DNA left behind at one of Trinity’s crime scenes.  (In the end, that’s not what caught Trinity—Dexter got to him first and delivered his own brand of serial-killing justice.)  I remember laughing aloud when seeing this Miami Metro police practice.  Even in today’s over-the-top, short-sighted, hysterically tough-on-crime society, these DNA sweeps would never be allowed—or so I thought.  And then our Supreme Court decided Maryland v. King.

“I didn’t intend to become a criminal defense attorney.”

Read my recent interview with Laws.com, here, about how I accidentally drifted into the world of criminal defense.  And while I never intended to become a criminal defense attorney, The Dog’s next post (following shortly) is a good example of why I can’t seem to escape.

Kaitlyn Hunt 101: Lessons in criminal law

The news is buzzing about 18-year-old Kaitlyn Hunt, who is being prosecuted in Florida for allegedly having sex with a 14-year-old female.  Many people are focusing on the same-sex nature of the teens' relationship; however, from a news standpoint, this completely misses the point.  The point is—or at least should be—that this type of prosecution is extremely common throughout our country, and the consequences are devastating.  In fact, if this CNN report is accurate, even the worst-case scenario for Kaitlyn Hunt is far better than what other young defendants are facing.  The situation is so bad that I recently published an entire book on our country’s overreaching, hyper-aggressive, and overly-punitive criminal justice system.  However, the Kaitlyn Hunt story will reach far more readers than my book ever will—so let’s take a closer look for some important lessons in criminal law.    

Sniffing out police perjury

Police perjury in the Fourth Amendment context is widespread and well-documented.  (Read pages 547-48 of this article, and pages 472-73 of this article, for details.)  In a nutshell, if a cop tells a judge that he saw, heard, or smelled something that aroused his suspicion, judges will uphold any police search and look the other way on Fourth Amendment violations.  But not Judge Guolee of Milwaukee.  He’s not afraid to “call bullshit” when he sees (or smells) it.  In State v. Jackson, the defendant challenged a police search of his vehicle's trunk and the judge held a hearing.  At that hearing, the cop testified that he was legally justified in searching the trunk because he could smell the marijuana.  But instead of rubber-stamping the testimony and automatically finding that there was no Fourth Amendment violation, Judge Guolee had about enough.  Here’s what he said:

George Mason is this year’s George Mason

With the Big Dance fast approaching, everyone is asking, “Who will be this year’s George Mason?”  Well, I guess it won’t be George Mason, as they lost a heart-breaker in their conference tourney.  But they do have good taste in law review articles.  Stay tuned for my newest article, “An Alternative to the Wrong-Person Defense” which will appear in the George Mason University Civil Rights Law Journal this fall.  In the meantime, check out the blog post on which the article was based, and check out GMU’s Civil Rights Law Blog, which is full of chocolatey cookie goodness for the libertarian-minded reader.  Oh, and enjoy March Madness.       

Paul Campos: “Damn it feels good to be a gansta”

Paul Campos is a law professor who started and, sadly, recently ended a blog titled “Inside the Law School Scam.”  The title of the blog speaks for itself, and there is little I can write about Campos that hasn’t already been written.  But a little is better than nothing, so here goes:

The next bubble is here

We all know about the housing bubble.  Lenders gave out money willy-nilly, people accepted it to buy homes, this increased demand and artificially drove up prices, and then the housing market crashed.  (I’m sure an economist would quibble with much of that phraseology, but you get the point.)  And while our economy is still feeling the effects, the next bubble is already here.  Unfortunately, it could easily have been prevented.  And although much of the damage is already done, it’s still possible to rein it in.  The new bubble, if you haven’t guessed, is educational debt. 

Lies, damned lies, and the statistics that expose them

I’m generally not a huge fan of empirical studies on the law.  (There are one or two exceptions, of course.)  But sometimes, the numbers have an uncanny way of exposing lies.  Consider this tale of two groups: police officers and law school bureaucrats.  With regard to the police, one famous study on police-officer behavior revealed that, before the Fourth Amendment was imposed on the states, the police would simply write in their reports what really happened: they stopped people on the street for no reason, searched them, found drugs, and arrested them.  In fact, the police admitted to this in 33 percent of their police reports.  Only in 14 percent of their reports did they write that the drugs magically fell out of the defendants’ pockets.

The wrong kind of theory

Legal education has come under a great deal of fire lately.  One criticism that has been around long before the recent legal education crisis, however, is that law schools teach only theory, and not practical skills.  The debate, in a nutshell, boils down to two competing camps.  The practicing-lawyer camp mocks theory, while praising the value of a practical education.  After all, we lawyers are licensed to practice law, and clients deserve some basic level of competence, even from new graduates.  The law-professor camp, on the other hand, elevates theory to heavenly heights, singing its praises along with the importance of teaching students “how to think like a lawyer”—whatever that phrase may mean.  Unfortunately, the two sides are only preaching to their respective choirs.  In fact, the debate never gets off the ground because the word theory means something different to each camp.

Law review publishing: In search of a useful ranking system

I’ve published ten articles in law reviews, with an eleventh on the way.  Basically, the system works like this: I write an article, submit it to 50–100 different law journals, and wait for offers of publication. Then, after a series of emails with the editors of some of the journals, I have to decide which offer I should accept.  (After that, the article goes through a lengthy, and sometimes painful, editing process before it’s eventually published.)  My initial decision on where to publish has typically been guided by the US News rankings of law schools, which, in legal publication circles, is used as a proxy for the quality of a law school’s journal.  For example, the UCLA Law Review is published by the UCLA School of Law, which US News says is the fifteenth best law school in the land.  This means that authors would love to publish in the UCLA Law Review and, as a result, that journal may receive 2,000 or more annual submissions for about 12-15 available publication slots.  As we slide down the US News rankings—say, to the bottom fifty-or-so of our nation’s 200-plus law schools—the journals may receive only a couple hundred submissions for their 12-15 publication slots.

Speaking Freely

I exercise my free speech rights nearly continually, and the government is my biggest target.  Fortunately for me, “criticism of the government and advocacy of unpopular ideas . . . are almost always permitted” under the First Amendment.  So whether it’s my books, articles, blogs, or podcasts, my keyboard is rarely at rest, and my big mouth is rarely shut.  (In fact, my contrarian jabbering as a child led my mother to accurately predict my careers as both lawyer and writer.)  But I sometimes forget how lucky I am – lucky not only compared to citizens of other countries who can be imprisoned or even killed for speaking out against their governments, but also compared to others here in the United States.

Sports and Courts: What Judges Can Learn from the NCAA

In the criminal justice system, our government agents—police, prosecutors, and judges—are supposed to follow certain rules when trying to convict us of crimes.  However, when they break those rules, there are usually no consequences for the rule-breakers.  The result, of course, is that there is little incentive for government agents to know and follow the rules that supposedly govern them.  And, as every five-year-old child in America knows, a rule without a consequence really isn’t a rule at all.  As some prosecutors mockingly say, “It’s more of a suggestion.”

The New Miranda Warning (Cicchini)

Miranda has one foot in the grave.  Even a casual read of the Miranda warning reveals that it is incomprehensible to most suspects, lawyers, and even judges.  The warning is also grossly inaccurate and incomplete with regard to the rights it purports to describe.  Further, the warning makes it incredibly difficult for a suspect to actually invoke any of the underlying rights, and provides the police with numerous ways to circumvent the law.  My newest article  describes these problems, and rewrites the Miranda warning in order to make it clear, accurate, and complete.  The new proposed warning also provides suspects with a way to actually invoke their rights, and prevents governmental abuse of the Fifth Amendment.  Full article available here.  

Overcoming Miranda (Domanico, Cicchini & White)

The authors analyzed the Miranda portions of electronically recorded police interrogations in serious felony cases.  The objectives were to determine what percentage of suspects waived their rights, whether the suspects understood their rights before waiving them, and whether the police employed any tactics to induce the suspects to waive their rights.  The results of the study revealed that 93% of suspects waived their Miranda rights and talked to the police.  Further, it is unlikely that those suspects understood their rights; in fact, the police used a version of the Miranda warning that required a reading level that far exceeded that of most suspects, and the police did very little to ensure that suspects actually understood their rights before waiving them.  Finally, the police spoke significantly faster when reading suspects their Miranda rights, and, in more than half of the interrogations, also minimized the importance of the rights.  Both of these tactics likely limited the suspects’ comprehension of the rights and their importance, and likely induced them to waive, rather than invoke, their rights.  These findings are largely consistent with the limited number of other social science studies that have been published, and raise serious doubt about whether suspects’ waivers are truly voluntary, knowing, and intelligent, as required by Miranda.  Based on these findings, the authors also recommend specific reforms to the Miranda process.  Full article available here.  

Judicial do over

Criminal procedure can be incredibly harsh and unforgiving for defendants and their lawyers.  If a defense lawyer makes the smallest misstep, or fails to do or say just the right thing at just the right time, he can inadvertently “waive” his client’s rights and protections, often with disastrous outcomes.  But, when it comes to judges, the law is much more forgiving.  In State v. Robinson the judge sentenced the defendant to a multi-year term of confinement.  The defendant was hauled out of the courtroom and straight to jail to begin serving her time.  But the judge slept on it, had second thoughts, and decided that he wanted a “do over.”  So the next day he had the deputies haul the defendant out of jail and back into court, where he re-sentenced her and gave her an additional nine months. 

Lawyer salaries: going, going . . . gone

A couple of years ago, some members of the Wisconsin Bar were putting up a stink about the low hourly wage paid to appointed attorneys who represent indigent citizens accused of crimes.  I wrote about it on the MU Faculty Blog, and made the prediction that the state government would not raise this pay rate, which has been unchanged for decades.  And not only was that prediction correct—I’m not taking credit for reading the future; the prediction was easy and obvious—but since that time, lawyer wages have fallen even further.  Many employers, including the government, are now advertising lawyer jobs where the salary is—you guessed it—zero.

Double Standards in Legal Ethics

When reading my $500 per year Wisconsin Lawyer Magazine—which appears to be free to everyone who does not pay bar dues—I saw an article about an out-of-state lawyer discipline case.  The lawyer was publicly censured, fined, and got stuck with “the cost of the proceeding” for some advertising claims that were confusing, probably misleading, and, in some cases, false.  Here’s an example: “the lawyer stated that attorneys in the firm focused their practice in one area of law, but the firm’s web page listed 27 distinct practice areas.”  Obviously, the word “focused” could have different meanings to different people.  For example, some attorneys in the firm may spend half of their time in a single area, thus qualifying as a “focus,” while still practicing in multiple other areas of law for the other half of their work.  Alternatively, maybe some of the firm’s lawyers do “focus” exclusively on one area, while other members don’t focus and instead practice multiple areas of law.  So why was the lawyer disciplined?