Fact checking the fact checkers: State v. Rittenhouse

I really hate—yes, “hate,” which can be a good thing—how social media platforms will censor a person’s political speech for allegedly being “false” when it is really just the expression of an opinion.  And now this practice has crossed the line separating the political and legal arenas.  As a practicing criminal defense lawyer, this hits close to home for me.  Hitting even closer to home, I’ve actually been cited in support of a fact checker’s decision to double down on his earlier fact check which declared someone’s speech as “false.”  This is somewhat ironic, given my love of free speech and my hatred of “speech codes,” censorship, and the asinine phrase “hate speech” which is bandied about by nasty children and freedom-hating bureaucrats on college campuses.

You can read all about it here.  In a nutshell, someone wrote on facebook that it was “perfectly legal” for Kyle Rittenhouse, a 17-year-old boy, to possess the gun he possessed when he shot three white men who separately (1) threatened to kill him and chased him, (2) pointed a gun at him, and (3) struck him with a skateboard, all during the Kenosha riots in 2020.  A fact checker then “fact checked” the claim about “perfectly legal” and determined it was false.  The facebook user was ultimately silenced or censored or deleted or whatever they do on “social media” when someone says something politically unpopular.

Thanks for the music and the memories, Diamond Dave!

"Gimme a bottle of anything. And a glazed doughnut. To go!"

Songs like Jump and Panama elevated both David Lee Roth and his band, Van Halen, from mere rock-star fame to household names.  Unfortunately, the dust had barely settled after the Hot for Teacher video when Van Halen started to breakup.  The boys did eventually get back together—albeit way too late and for only one studio album.  But in the 1980s, DLR was king of the rock world.  After releasing four platinum albums that decade with VH, Dave minted another three post-VH platinum records before the 80s ended: Crazy from the Heat, Eat ’Em and Smile, and Skyscraper.  I’m no music historian, but being a hard-rock lead singer with seven platinum albums out of seven tries, in a single decade, no doubt puts Dave in a truly elite class. 

In any case, about a year ago, Eddie Van Halen passed away.  And now, DLR has announced his retirement.  Retirement is not death, of course, though Dave seems to acknowledge that the inevitable isn’t too far way when he said: “Hey Ed, objects in the rearview mirror are probably me.”  (Sounds like Panama-inspired words of wisdom: “right behind in the rearview mirror now!”)  But although DLR still roams the earth, it feels to me like another small piece of my world has died—or at least is slowly fading from existence.  For me, Dave’s post-1984 music was a big part of my life, and is now intertwined with memories of better days.  So to keep those memories alive, and to celebrate his solo career, here are some of my favorite songs from my four favorite DLR albums.

A heap of sand, law review publishing, and the high cost of legal education [updated]

There’s a paradox called Sorites Paradox which takes numerous, related forms.  Here’s one.  You’ve got a heap of sand.  If you take away one grain, do you still have a heap?  Of course.  Therefore, given that Heap – 1 grain = Heap, “[i]t follows, absurdly, that even a single grain makes a heap. Thus soritical reasoning appears to show both that no number of grains make a heap and that any number of grains make a heap.”

It really isn’t much of a paradox.  The problem, of course, is in the vagueness of language—specifically, the word heap.  We all know that if you keep removing grains of sand, one by one, eventually you will no longer have a heap.  People may not agree on the exact point at which that occurs, but we would all agree, for example, that a mere two remaining grains of sand, sitting sadly side by side, is no longer a heap.

The end of the Legal Watchdog (emails)

Although Knightly and I are both getting older and tire far more easily, we're not done writing blog posts quite yet.  But our email alerts will soon be finito!  If you currently receive an email announcing new posts, I am told that as of August the system will no longer support that feature.  So please bookmark The Dog and check back for new posts periodically.   

In the meantime, if you listen to podcasts, Knightly recommends The Trials of Frank Carson.  What happens when a defense lawyer beats up on the central California police, prosecutors, and judges for more than two decades?  The district attorney's office charges the defense lawyer with murder!

Finally, watch for my new law review article, Disorderly Conduct: An Investigation into Police and Prosecutor Practices.  What's this one about?  Well, in academia, law professors have started complaining that the disorderly conduct statute is being abused by racist police, i.e., the police are "surveilling communities of color for signs of disorder" and using the statute as a means of "social control against people of color."  To some law professors, everything is about race, so I decided to test this claim by analyzing a sample of real life Kenosha County disorderly conduct cases.  In the article, I not only look for police abuse of the statute, but also for prosecutorial abuse.  The results might surprise you.  Stay tuned to The Dog for a pre-publication draft of the article once a journal accepts it for publication.

Law Review Submission Angsting Thread -- Fall 2021

For law geeks like me, late January and early July are among the best times of the year.  These dates mark the beginning of each the two law review article submission cycles.  (For outsiders who are interested in how this bizarre process works, see my article on the subject.)  This Fall cycle I'm submitting my 37th law review article to the journals for publication.  It's titled "Disorderly Conduct: An Investigation into Police and Prosecutor Practices."

In recent years I've found that half the fun of submitting and publishing many of my first 36 articles has been following the "Prawf's Blawg angsting thread" throughout the submission cycle.  It's basically a blog post and comment thread where law professors, wannabe law professors, and even a few actual practicing lawyer-authors (like me) post a wide range of questions, comments, and news about the article submission and publishing process.  Debates and arguments have even broken out from time to time.  (To see what it looks like, you can find last submission cycle's blog post and comment thread here.)

Fear and Excitement at Marquette

I'll start with the excitement.  Firing Coach Wojo was good news.  Seven years is enough time to try and win a single NCAA tournament game, and he failed.  (Don't worry about Wojo; he made enough money at MU to take care of himself for the rest of his life.)  And there's even more excitement: MU hired Shaka Smart as our new head coach.  I am convinced he'll bring an exciting brand of ball to MU, and I think that in many ways MU is more like VCU than UT, so I'm hopeful he'll be able to replicate his early-career success.  Exciting times are ahead!

So what am I afraid of?  The end of Marquette University itself.  It all started when Marquette got rid of its Indian mascot out of fear of possible offensiveness.  There were two problems with that decision.  First, why should offensiveness be the test?  Offensiveness is not discrimination and, for a variety of reasons, universities should not strive to be inoffensive.  Second, the Marquette fans who witnessed the killing of the mascot no doubt rhetorically asked: "If they're getting rid of our mascot, what's next?  Will they get rid of: (1) Our Indian logo?  (2) Our Warrior name?  (3) Our official school seal featuring the explorer Fr. Marquette and his Indian guide? (4) What about the name Marquette University itself?

It's time to drain Wisconsin's jury-instruction swamp

Many of Wisconsin's pattern criminal jury instructions -- now available free of charge -- are incredibly pro-prosecutor.  But when we defense lawyers challenge them, courts almost always deny our requests for modification.  Why?  Not on the merits of our arguments, but out of reverence for the great legal minds on the committee of trial judges that supposedly drafted the instructions.

As I have argued before, one problem with such deference is that the committee is made up almost entirely of former prosecutors and, in its most recent iteration, entirely of former government lawyers -- hardly a group to which we should blindly defer on matters of such importance.  But now, another problem has emerged.  It turns out that the much-ballyhooed committee of trial judges doesn't even write the instructions.  Instead, as has been revealed during the course of a jury-instruction copyright dispute, the instructions are created and written solely by employees of the University of Wisconsin at Madison -- possibly just a single employee.

In my newest article, Criminal Jury Instructions: A Case Study, 84 Albany Law Review __ (forthcoming 2021), I explain what's going on.  And now that the instructions have been stripped of their judicial halo and aura of authority, the article also provides a sample written request for defense lawyers to use to seek modification of the instructions in their own cases.  Finally, because the jury instruction committee is going to have some unspecified level of involvement in this swampy jury-instruction process going forward, I advocate for legal reforms rooted in the principles of transparency and, with regard to the committee's composition, diversity of thought and experience.

"Let's see Paul Allen's card."

 

For a deep dive into the business cards, see here.