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

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

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

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

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

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

Recapturing my lost youth: Five underrated Van Halen songs

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

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

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

Does character matter?

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

That's Absurd!

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

Wordplay

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

Strickland’s IAC standard and Brendan Dassey

When a defendant is convicted of a crime, his or her appellate lawyer will often attack the defendant’s trial counsel for ineffective assistance of counsel (IAC) in an attempt to win a new trial.  The applicable legal standard is (usually) found in Strickland v. Washington.  However, Strickland’s IAC standard is both too broad and too narrow.

Strickland is too broad in the sense that it’s often used to go after the defendant’s trial counsel not for his or her own conduct, decisions, and errors, but rather for failing to correct the trial judge’s errors or to properly monitor the prosecutor’s misconduct during trial.  In other words, it unfairly requires the defense lawyer to do three jobs in one.

But on the other hand, Strickland is too narrow, as the standard often fails to provide any remedy for true defense-lawyer ineffectiveness, such as failing to consult with the client, showing up to trial drunk, or even falling asleep in court (which, in fairness, could be due to being drunk).

Getting tough with UW and Wisconsin’s Jury Instruction Committees

Knightly studies copyright law

I’ve long complained that eleven sitting Wisconsin judges write our criminal jury instructions (JIs) and then somehow take and transfer a copyright in those JIs to the University of Wisconsin (UW), which then turns around and sells them back to us after we’ve already paid the judges’ salaries!  Worse yet, we lawyers have to pay annual update fees or the instructions quickly go out of date.  As I wrote in a recent blog post, I don’t think this is legal:

The “government edicts doctrine” states that court decisions and even “non-binding, explanatory legal materials are not copyrightable when created by judges who possess the authority to make and interpret the law.” (Georgia v. Public Resource, P. 4.)

Now, the UW-JI Committee gravy train could be coming to an end.  A non-profit California group called Public Resource just wrote a letter to the JI Committee members and UW stating this:

Wordplay: How the Government Uses “Truth” and “Science” Against Us

As a criminal defense lawyer, I’ve seen government wordplay designed to violate our rights and take our freedoms.  For example, before a jury may convict a defendant of a crime, the government must prove guilt beyond a reasonable doubt.  Yet, instead of simply instructing juries on this burden of proof, the prosecutors-turned-judges who comprise Wisconsin’s jury-instruction committee drafted a statewide instruction that concludes by telling jurors: “you are not to search for doubt. You are to search for the truth.”  Prosecutors then parrot this language during closing arguments to the jury.  

Sounds good on its surface, doesn’t it?  Who doesn’t want “the truth”?  It’s like when the government names something “the Patriot Act” or calls itself “the Department of Justice.”  The citizenry shouldn’t question what’s going on beneath the surface; the label tells us everything we’re supposed to know.

But it’s rarely that simple.  

How is Wisconsin able to copyright its criminal jury instructions?

I’m familiar with Wisconsin Criminal Jury Instructions (JIs) partly because I’ve advocated for reforming one of them: JI 140 on the burden of proof.  I’m also familiar with the JIs because I’m a criminal defense lawyer and I’m required to use them in every single jury trial.  Trial court judges adopt them verbatim nearly 100 percent of the time.  And except for a single jury instruction (JI 140) out of hundreds of instructions, I’ve only rarely seen a trial court judge modify them.

But I’m also familiar with the JIs because I have to pay for them every year.  And thanks to some clever marketing by the seller, most lawyers have to buy both the digital version for use in court and the print version for research purposes.  Why?  Because the seller includes valuable notes and commentary in the print version but not in the digital version.  Conversely, the digital version is needed so the instructions can be tailored for in-court use.  The cost is $235 for the print version and $210 for the digital version.  Once you buy them, however, the expenses are just beginning.  There are recurring annual update costs for each, which can run one or two hundred dollars per year.  (This is, admittedly, less than the initial outlay of $445.)

I’ve always wondered why we have to pay for JIs when they are written by a committee of sitting trial court judges.  We’re already paying the judges’ salaries with our tax dollars, so why do we have to pay for their labor on jury instructions as well?  I’ve asked this question several times of several people over several years, and no one seems to know the answer.  Well, it turns out the answer may have been settled back in 1834 and affirmed again in 1888.  And it’s bad news for those who claim copyright in the JIs and sell them to us for a profit.

Paul Campos on the evolution of law schools and their professors

Knightly studies the law

This excerpt is from a larger blog post by Paul Campos.  Campos, of Inside the Law School Scam fame, first takes aim at a typical law school professor.  I don’t know this particular prof or his work, but from what I know about the academy, Campos’s target is indeed the prototypical, modern law prof.  Campos writes:

[His] career path is this: he was an undergrad, then he was a law student, then he was a law professor. That’s it. That’s all he’s ever done. He’s never had a job as a lawyer, or indeed as anything but a professor, at least not as an adult anyway.

But it wasn’t always that way at American law schools.  There was a time, before I went to law school, where law profs had actually practiced law before joining the academy to teach.  And law schools embraced their role as professional schools or trade schools — much the way medical schools do. 

Speaking and Writing Tips from The Legal Watchdog

Being stuck at home has caused me to watch more TV than I usually do.  This, in turn, has exposed me to more talking heads than usual.  And this has given me the opportunity to compile a list of things that everyone should immediately stop saying.  Plus, there's a bonus tip for writers:

1.  As a general rule, don't begin sentences with "so."

2.  Stop asking whether you're "right?" in the middle of a sentence or even between sentences.

3.  Don't overuse the word "space."  E.g., you are not a leader in the fashion space; rather, you are a leader in the fashion industry.

4.  Stop trying to start a "national conversation" or "raise awareness."  Find new labels to exaggerate the scope of your endeavors.

5.  Don't begin a new point with "that said" or "having said that."  It's a sure sign you're about to contradict yourself and it makes me want to punch you. 

6.  Stop saying "again" as a preface to sentences.  Often, the information that follows isn't even repetitive.  And if it is, stop repeating yourself.

7.  Don't say "not to mention" before you mention the thing that you just said you weren't going to mention. 

8.  Don't say "it goes without saying."  Because apparently it doesn't.  See also #7. 

9.  Things don't center around other things, they center on other things; they do, however, revolve around other things.  E.g., The President’s existence doesn't center around the Corona-Chinese-Wuhan-Covid19 virus; it revolves around it, or centers on it.

10. Don't "reach out" to me.  Call, email, or put a letter in the U.S. Mail.

11. BONUS WRITING TIP: On a related note, always use your Oxford comma. See, e.g., #10 and #12.

12. Stop referring to someone's position, claim, or argument as a "narrative."

This public service has been brought to you by Knightly.

How Cozy is Wisconsin’s Jury Instruction Committee with State Prosecutors?

The law — whether a crime such as “possession of marijuana,” the burden of proof to be applied by the jury, or the meaning of key legal terms such as “intent” or “possession” or “knowledge” — is defined by jury instructions.  For example, despite the label we put on the prosecutor’s burden of proof in a criminal case, the burden is only as formidable as the jury instruction the trial judge reads and submits to the jury.  To demonstrate this point, while a North Carolina prosecutor and a Wisconsin prosecutor must, in theory, both prove their cases “beyond a reasonable doubt” to win convictions, consider the dramatic differences between the two states’ jury instructions.