Responding to more criticisms of the empirical studies on Wisconsin’s reasonable-doubt jury instruction

Prosecutors insist that Wisconsin’s jury instruction 140 on the burden of proof — which concludes by telling jurors “not to search for doubt” but “to search for the truth” — does not lower the burden of proof.  This raises the question: If it doesn’t lower the burden of proof, then why are you fighting so vigorously to preserve the offending closing mandate?  Why not just join the other 49 states that don’t use such qualifying language when instructing their juries on reasonable doubt?

Truth, doubt, and “whack-a-mole”

Before I can finish debunking one misconception about my studies on Wis. Jury Instruction 140 — studies available here and here — another misconception pops up.  It’s like playing a never-ending game of “whack-a-mole.”  It’s easy and virtually cost-free (in terms of time) for prosecutors and judges to launch these attacks.  But their criticisms are often so far off-base, or even bizarre, that it takes a lot of work to respond to them.  Pretty soon, however, I’ll have written so much on this topic I will simply be able to respond: “See law review article C, page six.”  Later this year I will publish the recently-completed Educating Judges and Lawyers on Social Science Research: A Case Study.  In it, I will address the latest set of attacks.  But if you just can’t wait — or if you can wait but you have a motion hearing coming up to modify J.I. 140 — you’ll find a bullet-point list debunking these new criticisms after the jump. 

Brendan Dassey, Wisconsin state courts, and the state of legal education [updated below]

The 7th Circuit Federal Court of Appeals recently affirmed the reversal of Brendan Dassey’s conviction.  The decision is 128 pages.  The main reason it’s so long is this: the Wisconsin appellate court failed to do any actual analysis when it originally affirmed Dassey’s conviction; instead, it merely repeated the applicable legal standard and then jumped to its conclusion — all in two very short paragraphs.  Therefore, the Seventh Circuit had to analyze everything from scratch.  This is something we Wisconsin criminal defense lawyers have to deal with regularly from some of our state’s trial and appellate courts: judges reaching their decision first, and then saying anything — or in Dassey’s case, nothing — to justify their predetermined outcome.  But what if I’m wrong?  What if the Wisconsin appellate court judges didn’t make up their minds ahead of time and were actually doing their best to reach a reasoned conclusion?

How far does the Wisconsin state bar bureaucracy reach?

After sorting through my email inbox today, I learned that the mandatory-membership Wisconsin state bar has something called a “leadership development committee.”  And for the low, low price of $300.00, Wisconsin lawyers can take part in the “G. Lane Ware Leadership Academy.”  This is the second annual gathering; the inaugural event “was a huge success!” 

Free speech: A message for public universities (and their students)

For the universities, before you spend any more time and money expanding the university bureaucracy to implement that micro-aggression reporting system, read Matal v. Tam.  It doesn't say anything the rest of us didn't already know, but here are some quotes of interest from the decision, along with some concluding remarks to the universities and their students:

Roger Federer, Michael Cicchini, and Pennsylvania’s Burden of Proof

“Roger Federer is a better tennis player than Michael Cicchini.”  While that statement is true, it doesn’t really say anything.  It tells you nothing about how good Roger Federer is (or how bad I am) at tennis.  So at best, it’s a meaningless statement.  And if you don’t know much about the sport to begin with, the sentence is worse than meaningless.  It’s grossly misleading.  Why?  Because it gives the impression that Roger Federer and yours truly are somehow comparable or at least part of the same tennis universe.  If we weren’t, why would we be compared to one another?  After all, no one ever bothers to say that a Ferrari is faster than a Yugo or that Cal Tech offers a better physics education than Wisconsin’s Gateway Tech, even though both claims are true.  Yet, this type of highly misleading comparison is found at the heart of something far more important than tennis, cars, and even physics: Pennsylvania’s burden of proof jury instruction in criminal cases. 

Is the Marquette Golden Eagle an Endangered Species?

Much like the Golden State Warriors of the NBA, the Marquette Warriors were once the coolest name in their sport.  (And Marquette also had a history of being one of the most progressive teams in recruiting, in fashion, and in flat-out sticking it to the man.)  I was a Warrior in my graduate school days, before law school, back in the early 1990s.  But then in 1994, Marquette made the switch to probably the most common, generic nickname in college sports: the Golden Eagles.  Don’t get me wrong, I’ve come to really like the Eagle, particularly after it evolved into its current form (pictured left).  It is probably the best bird logo in college sports: a cool, aggressive, and determined looking bird that is ready to get to business, stat.  And I still love my Marquette hoops—even post-Dwyane Wade, it is the bright spot during our long, cold Wisconsin winters.  But when Marquette changed its name from Warriors to Golden Eagles back in '94, I pointed out the absurdity of the thought process behind the move.  Now, that thought process has spread like a virus and no mascot (or person) is safe.

Bases covered

My monthly issue of the State Bar’s Wisconsin Lawyer went in the trash a little sooner than it normally does.  It wasn’t some overused top-ten title — like, “the top ten ways to upset your judge,” or “don’t do these ten things if you want to keep your judge happy” — that turned me off.  In fact, there might have even be some good material in it.  But I wouldn’t know because I never got that far.  Instead, I was completely grossed out by the cover.  For some reason, it featured a child’s bare feet, large as life, and I just couldn’t get beyond that.  To leave this monstrosity sitting out on my coffee table — even if only to collect dust — was simply not an option.

Wisconsin's Unconstitutional Burden of Proof

The Constitution requires the jury in a criminal case to evaluate the state's evidence for reasonable doubt.  After this evaluation, even if the jury concludes that the criminal charge is "probably true," it must find the defendant not guilty.  The reason, of course, is the high burden of proof: "proof beyond a reasonable doubt."  Standards like "might be guilty," "could be guilty," "is possibly guilty," and even "is probably guilty," just doesn't cut it when the state is trying to strip you of your liberty.  But this high burden of proof is only as strong as the burden of proof jury instruction.  And the way that most Wisconsin judges instruct their juries might surprise you.

Dassey's Details: Unprompted or Extracted?

I've heard Ken Kratz, on several occasions, complain that "Making a Murderer" left out important details. But I've always dismissed this complaint as just a minor variation on the common prosecutorial refrain that we defense lawyers hear all the time: "He's quoting out of context!"

But in their book, "Avery," Kratz and coauthor Peter Wilkinson criticize the documentary for leaving out Dassey's May 13 interrogation. They claim that, in this interrogation, Dassey provided unprompted details about seeing Halbach's purse, camera, and phone. The problem, however, is that Dassey's statement was not unprompted. More accurately, his interrogators extracted it from him. Read more, including an excerpt from the actual interrogation transcript, in my newest Wisconsin Law Journal column.  

(Warning to prosecutors: The column does include a quotation, and the quotation is taken out of its context. But by definition, a quotation necessarily is out of context.)     

WPR - NPR Interview

Click the link to listen to my latest radio interview -- this one on Wisconsin Public Radio's "Central Time."  In it, we discuss my new book, Convicting Avery (Prometheus books, 2017), along with several aspects of Wisconsin's criminal justice system including our unconstitutionally low burden of proof, police interrogation tactics, and false confessions.  One of the callers, a former juror, raised a great point about Wisconsin's jury instruction on reasonable doubt.  Paraphrasing, he said: "The judge told us 'not to search for doubt.'  I had doubts about the case, but they weren't things that the lawyers had brought up.  So was I not supposed to consider those unless the attorneys raised them first?"  Finally, for more on my research and controlled studies on Wisconsin's unconstitutional jury instruction on the burden of proof, visit my articles page of CicchiniLaw.com.  

Anything you say (or don't say) can be used against you

We all know that people confess to the police because they think they're helping themselves.  Sometimes these confessions are true and sometimes they're false, but in both cases people confess because they are (wrongly) convinced that doing so is in their best interest.  For example, the police often minimize the event by saying, "If you admit your involvement now, everything will be okay and it's not a big deal; but if you keep lying to us by denying it, then you'll really be in trouble."  Or, sometimes the police present the classic false dichotomy: "You have only two choices: (1) You did this, you meant to do it, you're a monster, and you're going to prison for the rest of your life; or (2) You didn't mean to do this, so-and-so is really the one who did it, you're involvement was minimal, and if you help us out we'll take care of you and you'll be just fine."

Convicting Avery: The Bizarre Laws and Broken System behind "Making a Murderer" (Prometheus Books)

My new book, Convicting Avery, is now available.  You can find the book at retailers everywhere, including at amazon.  The book has received several positive reviews, including those from the New York Journal of Books, Publishers Weekly, Kirkus, and Blog Critics.  Enjoy!

Thank the Marquette Warriors for March Madness

Only fifteen teams have won multiple national titles.  In this year’s Final Four, Oregon will be going for its second, North Carolina for its sixth.  But March wasn't always Mad, and the tournament wasn't always “the tournament.”  When Oregon won its first title in 1939, the Big Dance was anything but: it was an eight-team field played in a tiny gym with only a couple thousand fans in attendance.  And for many decades, the NIT was the more prestigious tournament.  The NIT fielded more teams and better teams, and it was played in a high-profile venue at Madison Square Garden.  Well into the 1970s, getting much-desired media coverage and good recruits depended on getting into the NIT and being seen in New York.

Dirty Little Secrets (of Law Review Publishing)

The vast majority of law review articles are written by law professors and professor-wannabes.  And among this group, prestige is the most important thing when placing an article.  Many professors admit that few people will ever read their writing, but their colleagues will read their CVs.  Therefore, a publication in the Duke Law Journal means an article is really good, the Washington Law Review means it's okay, the Hastings Law Journal means it barely earns a passing grade, and anything below that, well, many professors believe their work is better left unpublished than to associate it with journals of schools ranked below 60 in the US News & World Report.

Remaking a Murderer (by Bill Lueders)

Fans of Making a Murderer should be sure to read Bill Lueders new article in the Isthmus, Remaking a Murderer.  In it he discusses the four books on the subject, including my soon-to-be-released Convicting Avery (Prometheus Books, April 4, 2017).  For other reviews of my book see Publishers Weekly and Kirkus Reviews.  And stay tuned for my forthcoming guest blog post on the Criminal Element blog, as well as one more Avery-related column at the Wisconsin Law Journal.  

Is the Wisconsin State Bar’s conflict of interest self-imposed?

The Irreverent Lawyer just wrote about the current bill in Arizona that would turn their bloated and pricey state bar from a mandatory organization into a voluntary one.  One of the problems with these mandatory bars, he explains, is that they have an inherent conflict of interest.  And by separating the lawyer regulation function from the trade association function (in which membership would become voluntary) the conflict of interest disappears.  That is, a voluntary bar, separated from the lawyer regulation function, would no longer be torn between serving the general public and working on behalf of its membership.  But in Wisconsin, the lawyer regulation function (OLR) is already separate from the mandatory bar (although the bar seems to keep its fingers, to some extent, in the lawyer regulation pie).  So given its separation from the OLR, why does the Wisconsin State Bar consistently work with the OLR and against its own membership?  The bar does claim to also work for its dues-paying membership, so it does operate under an obvious conflict of interest.  Yet, given its supposed independence from the OLR, it seems that the Wisconsin State Bar’s conflict of interest is self-imposed.

State Bar of Wisconsin seeks donations to honor executive director’s “service”

I recently got an email from the Wisconsin Law Foundation (an arm of the state bar) signed by the bar’s president.  The bar is seeking donations so it can host three separate send-offs to honor its retiring executive director (E.D.).  Donations correspond to increasingly hierarchical titles.  For example, a $250 donation buys me the title of American Counselor, whereas $1,000 buys me the far more prestigious title of English Barrister.  (The titles of “landed gentry” and “aristocrat” are apparently not available.)  Donors’ names, along with their newly acquired titles, will appear on the party invites for all to see.  From what I can tell, the donations fund the three retirement parties and these parties, in turn, “will focus on raising support for the good work of the Law Foundation.”  So I’m not sure if the bar will hit up the party-goers for additional donations or if there will be some sort of raffle — the email isn’t entirely clear.  Equally unclear is how much we lawyers have been paying the E.D. for his years of “service” that the bar is so eager to celebrate.    

Bill would protect free speech on UW campuses

I used to think that the only constitutional rights in danger were those associated with criminal law.  A classic example is the Fourth Amendment.  When a defendant moves to suppress physical evidence (typically a small amount of marijuana) in a criminal case that was set in motion by an illegal search, courts will bend over backwards to find that no Fourth Amendment violation occurred.  And even when they are forced to concede that the defendant’s rights were, in fact, violated, they insanely conclude that the defendant is not entitled to suppression of the illegally obtained evidence.  (For more on this mind-boggling state of affairs, see this article.)

"Fourth-Tier" Legal Education

A common trend among law schools was to hire professors who had very little or no experience practicing law, but who had graduated from elite law schools.  Then the trend became hiring JDs who also had a PhD — preferably in the field of economics.  Then the trend became hiring candidates with PhDs only.  That’s right: law professors who never went to law school.  And unfortunately, the lower ranked schools, in a desperate attempt to keep up their peer-reputation scores in the US News law school rankings, followed suit and copied the trend.  In a 2012 essay titled Three Rules for Educating Tomorrow’s Lawyers, I argued that these fourth-tier schools should instead go in the opposite direction of the elites:

State Bar of Wisconsin to the rescue!

Donald Trump recently criticized a federal judge by calling him a “so-called judge” and arguing that the judge’s suspension of Trump’s executive order put the country at risk.  So of course, the Wisconsin State Bar’s “52-member Board of Governors” had to swing into action and adopt “a unified statement” to protect the federal judiciary from the impact of free speech.  Personally, I have no opinion as to whether Trump’s criticism is accurate, but I have serious problems with our state bar — an organization that we Wisconsin lawyers are forced to join and fund — making this so-called unified statement.

"Roger that"

I don't care much (or at all) for the NFL, and I didn't have much of an opinion on Tom Brady until the super bowl when he threw that pick-six.  The impressive thing was that, after he threw it, he dove to try to stop the much more athletic defensive player from scoring.  As a viewer, I genuinely appreciated the effort.  And even though Brady didn't come close to stopping the touchdown -- he looked well out of his depth trying tackle a superior athlete -- he did go on to win the super bowl MVP (again) by leading the biggest comeback in the game's history.

Despite not being a fan of Brady's until (oddly) that pick-six, I had been routing for him in his fight against Roger Goodell in the deflate-gate fiasco.  And there was good reason to do so, as there was certainly a lot of evidence on Brady's side.  Granted, a Brady win in court would not have been like an indigent defendant winning a criminal jury trial.  Rather, a Brady win in court would have been more like "the man" sticking it to "THE MAN."  But still . . .

Anyway, Brady did beat Roger but only temporarily -- or so it seemed.  It turns out that Brady got the last laugh in the end.  Despite serving a four-game suspension earlier this year, he won the super bowl.  He won the MVP in the super bowl.  Roger was forced to praise him in public and present him with his trophies.  And then Brady got to run this post-game commercial. 

         

An open letter to our next state bar president

I recently received a mailing from Jon P. Axelrod who is running for state bar president.  He provides a bullet-point list of some things he wants to accomplish.  I have an opinion on three of those things.  First, Axelrod wants to “provid[e] money to forgive student loans” to encourage law school graduates to practice in “underserved areas of Wisconsin.”  I’m not sure where this money would come from, but this debt-forgiveness frolic had better not be funded by our bar dues.  As the Irreverent Lawyer has shown us, Wisconsin’s state bar bureaucracy is already one of the most expensive in the country.  Also, there’s simply no need to encourage new lawyers to take jobs.  There is a glut of lawyers in Wisconsin already, and they’re scrambling to find work. Only 64 percent of UW grads and 62 percent of MU grads from the class of 2015 found long-term, full-time legal jobs.  

The Battle over the Burden of Proof: A Report from the Trenches, 79 U. Pitt. L. Rev. __ (2017)

I've recently coauthored two articles with Psychology Professor Lawrence White on Wisconsin's burden of proof jury instruction. The articles (available here) are based on our two controlled studies that empirically prove what was already obvious from a linguistic and logical perspective. That is, when a burden of proof instruction concludes by telling jurors "not to search for doubt" but instead "to search for the truth," the court is lowering the burden of proof below the constitutionally guaranteed reasonable-doubt standard. In both studies, mock jurors who were so instructed convicted the defendant at significantly higher rates than jurors who were simply and properly instructed on reasonable doubt.

Advance Praise for "Convicting Avery"

My forthcoming book, “Convicting Avery: The Bizarre Laws and Broken System behind Making a Murderer,” recently received two great reviews. 

Publishers Weekly writes: “Cicchini convincingly demonstrates that the Kafkaesque criminal justice in Avery’s case was not an anomaly, and his work is an accessible entree into the debate over how defendants’ rights should be protected.”

Kirkus Reviews writes:  “Overall, Cicchini makes his case clearly. . . . [Convicting Avery] will engage fans of the series and readers who wonder if prosecutors really do cut corners in their campaigns against serious criminals.”

The book will be released on April 4th, and can be pre-ordered on amazon.com.

Weird Science in Wisconsin Courts

Click here to read my latest column at the Wisconsin Law Journal, which is an excerpt from the chapter titled "Weird Science" in my forthcoming book Convicting Avery.  (The book will be published by Prometheus Books on April 4th, and is available for pre-order here.)