Dick Posner Breaks the Judicial Code of Silence

In three of my books and in many of my law review articles (most recently, this one), I explain in plain language how judges routinely disregard the law to reach their predetermined outcomes.  I have also repeatedly demonstrated how these predetermined outcomes nearly always benefit the state, thus making the judge the chief prosecutor (a/k/a the “prosecutor in a robe” or the “prosecutor on the bench”).  But now, dear reader, you don’t have to take my word about the level of disdain many of our almighty judges hold for the law.  Retired judge Dick Posner has broken the judicial code of silence and fessed-up.

In defense of the defense lawyer

Yours truly (L) with Terry Rose (R); photo by Leo Martin

In Wisconsin, possession of child pornography carries with it a three year mandatory minimum sentence.  In other words, when the statute applies, the judge must put you in prison for at least three years upon conviction for possessing a single image.  (Yes, the legislature usurped the much-hyped “judicial discretion” in sentencing.)  And actually, you don’t even have to “possess” the image or even have it on your computer’s hard-drive!  Merely seeing the image on the web could be enough to lock you up in the state pen.  It’s a good thing, therefore, that mere child nudity might not be enough to constitute child pornography.  If it was, then every mother with a picture of her kid taking a bubble bath would be guilty and sentenced to prison.  And every major cable network would be guilty of distributing child porn for showing the movie Pretty Baby, starring a 12-year-old Brook Shields who played a child prostitute and appeared naked in the film. 

In a recent criminal case in Kenosha, my fellow criminal defense attorney Terry Rose got a child porn case dismissed on those very grounds: the image allegedly possessed by the defendant did not constitute child pornography.  This upset some Kenosha residents who took to “social media” to condemn Terry and express their uninformed and dangerous opinions.  I’ll address their specific complaints below, while incorporating some basic lessons about our criminal justice system. 

Former prosecutor doesn’t like the burden of proof

David Lat, a former prosecutor, has weighed in on the Dan Markel murder trial.  For those who don’t know about the case, Markel was a law prof at FSU who got into a nasty divorce and child custody battle with his wife.  There was plenty of vitriol flying in both directions.  And when Markel was shot point-blank in the head while pulling into his garage, the police suspected the wife’s family of setting up the hit.  For those who enjoy true crime, the podcast Over My Dead Body did an excellent job covering the case.  (Click here and scroll down to season one, called Tally.)  I found everyone involved in the saga to be very unlikable, yet I couldn’t stop listening to the podcast and, in fact, listened twice.

Tucker Carlson, Roger Stone, and Judicial Bias

In a recent episode of his evening talk show, Tucker Carlson used the Roger Stone case to shed some light on the inner workings of our criminal justice system.  Tucker’s analysis was very informative; however, his viewers should know that the legal absurdities he identified aren’t limited to Federal judges gunning to take down Trump’s supporters.  Instead, the problems he exposed are ingrained in our state courts as well, and they are ruining the lives of ordinary Americans in run-of-the-mill cases.

Another Wisconsin judge misunderstands hearsay

In State v. Yost (decision here, On Point summary here), the defendant allegedly committed disorderly conduct, inside a jail, by his manner of speech, i.e., a speech crime.  One jailhouse inmate testified the defendant said X.  The defendant called his own eyewitness to the crime, another jailhouse inmate, who was prepared to testify that he was there at the time and didn’t hear the defendant say X.

Wisconsin’s post-Trammell burden of proof: links, strategies, and updates

This is a reminder to Wisconsin’s criminal defense lawyers to continue to litigate the JI 140 issue, even after SCOW’s decision in Trammell.  Although SCOW refused to reverse defendant Trammell’s conviction, the Trammell majority was very clear: “The circuit court has the authority to modify the language [of JI 140], and the comment to the jury instruction even provides optional language.” Trammell, ⁋ 23.  Consistent with SCOW’s reminder, trial judges throughout the state are, in fact, continuing to modify JI 140, even post-Trammell. 

                                                                                             

Toward that end, I have drafted a request to modify JI 140 that I use in all of my trials.  It includes, as Exhibit A, a proposed, modified instruction that eliminates the truth-not-doubt mandate.  It also includes, as Exhibit B, an alternative proposal which is less than ideal but still better than the current JI 140.  All Wisconsin lawyers are free to use parts of it or the entire document—no attribution is necessary as far as I am concerned.  Just go to the JI 140 resource page and scroll to the very bottom.  It is in MS Word format and is titled “POST-TRAMMELL request to trial court to modify JI 140.”  

Bar Meetings: Drinking Tips from an Expert [updated for the 2020 KCBA meeting]

Back in the early years of my law practice, a group of Kenosha lawyers used to gather on Wednesdays after work for the weekly Bar Meeting, i.e., a meeting of the bar at a bar.  Our group was comprised of criminal defense lawyers and others generally interested in protecting individual rights and liberties from the government’s ever-expanding reach.  (Back then I would have described this general mindset as left-leaning, but today it is probably considered right-leaning.)  Unfortunately, these meetings dwindled and eventually disappeared because, I think, lawyers began to get older and marry and do other things. 

I never understood why anyone who practiced something as addictive as criminal defense would want to go on weekend jaunts to Bed Bath & Beyond, do home-improvement projects, go on vacations, read to their children, or do whatever else married people are supposed to do.  But to each of us, his or her own, I suppose.  In any case, children get older and marriages often crumble, so maybe it’s possible to bring back the weekly Bar Meeting. 

But in the meantime, the Kenosha County Bar Association is about to have its annual bar meeting.  Alcohol will be served.  To promote a more enjoyable bar-going experience, I offer these drinking tips from a true expert on the subject, Christopher Hitchens.  From his book Hitch 22: A Memoir:

A Lawyer Dog in Training

Photo by Brenda VanCuick

Recently, in Louisiana, when the police were interrogating a suspect, the suspect invoked his right to counsel by telling the interrogator, “Just give me a lawyer, dogg.”  The court — twisting and contorting plain language and basic legal principles to reach its predetermined outcome, as courts are known to do — found that such language was not an invocation of the right to counsel.  The interrogator simply would have no way of knowing whether this suspect was asking for “a lawyer, dogg,” or a “lawyer dog.”  One writer for WaPo observed: “It’s not clear how many lawyer dogs there are in Louisiana, and whether any would have been available to represent the human suspect in this case[.]”

Ignorance of the law is no excuse (unless you’re a prosecutor)

In this hot-off-the-presses case of State v. Smith (court decision here, On Point summary here), a Wisconsin prosecutor made an improper closing argument to the jury in an effort to win a conviction.  In a “sarcastic” and “belittling” manner, the prosecutor criticized the role of defense lawyers (in this case, public defenders) and also attempted to shift the burden of proof to the defense.  (These are two of the sleaziest, yet most common, tricks in the prosecutor’s bag.)  Then, on the defense lawyer’s motion, the trial judge declared a mistrial.  However, despite the prosecutor’s misconduct, the state was allowed to retry the defendant.  But why?  And how can defense lawyers prevent this from happening in the future?

Redrafting the preliminary-hearing waiver form

I currently have an article under submission to the law journals that is titled Improvident Prosecutions.  It exposes the various preliminary hearing scams perpetrated by Wisconsin’s prosecutors and judges, and gives interested legislators a roadmap to correct these prosecutorial and judicial abuses.  Once the article is accepted for publication, I’ll post it to SSRN and my website and will notify The Dog’s readers via a new blog post.  But until then, I thought I’d take a shot at redrafting the state’s (or at least Kenosha County’s) preliminary-hearing waiver form.  Given the current prosecutorial practice of using a reader-witness, explained below, the old waiver form is no longer accurate and poses problems for defense lawyers whose clients are thinking about waiving the preliminary hearing. 

The right to (unlicensed) counsel

I recently read this article about a Louisiana public defender’s office that hired a new assistant public defender.  Unfortunately, the new hire wasn’t actually an attorney!  Woops.  Having a law license is, of course, a prerequisite for being a criminal defense lawyer.  In reference to the above story, someone I know rhetorically asked: “Could you just envision the Supreme Court of Wisconsin (SCOW) upholding a defendant’s conviction on appeal even though the defendant’s ‘lawyer’ wasn’t actually a lawyer?”  As the above question implies, if a defendant is represented by a fake lawyer, any conviction in the case should be reversed.  The applicable legal standard is Strickland’s two-part test on the ineffective assistance of counsel (IAC). 

SCOW flops on JI 140; rejects behavioral research in the process

Predictably, SCOW flopped on its chance to change our defective jury instruction on the burden of proof, JI 140.  As the concurrence in the SCOW opinion points out, the instruction engages in a sort of burden-shifting by focusing jurors on the type of doubt the defense must produce (with numerous warnings about what kinds of doubts are not reasonable) rather than what constitutes proof beyond a reasonable doubt.  Worse yet, as most of The Dog’s readers know by now, JI 140 concludes with language that other courts (e.g., Fifth Circuit Ct. App. and Washington Ct. App., among others) have held to be constitutionally defective.  It tells jurors “you are not to search for doubt.  You are to search for the truth.” 

Here’s a summary of the case by SPD’s On Point blog, which also links to the decision itself.  (The post also has a helpful practice tip for defense lawyers, so be sure to read it.)  I’ll have plenty to say about this case in the future—possibly in another law review article.  But for now, I’ll limit my comments to the very small part of the court’s decision discussing the studies I conducted and published with my coauthor Larry White.  These studies demonstrated, unsurprisingly, that when you tell jurors not to search for doubt but instead to search for truth, it will lower the state’s burden of proof.  You can find the studies, along with other JI 140 resources, on my JI 140 resource page (which I’ll be updating soon).   After the jump, I’ll respond to the softballs that SCOW has thrown me. 

Already Gone: Mens rea and the burden of proof in Wisconsin

Liberals are just as likely to take away our freedoms and violate our rights as conservatives.  Many years ago, I wrote an article (here) arguing there was no discernible correlation between a judge’s political party and respect for our constitutional rights.  

When it comes to the legislature, one recent example of a liberal’s expansive, intrusive reach is Sen. Elizabeth Warren’s proposal to ensnare corporate executives in the criminal justice system.  According to this NACDL news release, her Corporate Executive Accountability Act (here) would convict a defendant without a mens rea requirement (guilty mind, intent, knowledge, etc.) and by the lower, civil burden of proof known as the preponderance of the evidence standard.