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.

New motion to modify Wisconsin’s J.I. 140 on the burden of proof

I’m using a new pretrial motion, usually as part of a motion in limine, to modify J.I. 140, Wisconsin’s burden of proof jury instruction.  This new motion is shorter, it acknowledges SCOW’s Trammel decision, and it incorporates the recent revelation that Wisconsin’s pattern instructions are not authored by judges, but rather by unidentified employees of UW.  This should put to rest the prosecutorial argument that the pattern instruction should not be modified because it was painstakingly written by an imminent judicial committee of great legal minds.

If Wisconsin lawyers want the motion to modify J.I. 140, go to the very bottom of my J.I. 140 page, here.  It’s the last document on the page.  And for more on the jury-instruction committee fiasco, including a sample motion to modify any pattern instruction, see the draft of my forthcoming article in the Albany L. Rev., here.