Judges-gone-wild, part I: The circuit court version

On the topic of misbehaving judges, I have to begin with circuit court judge Linda Van De Water.  But I must admit that I have a soft spot for this judge.  After all, it was her outrageous behavior on the bench that motivated me to start The Legal Watchdog about one year ago.  (You can read The Dog’s inaugural post, here.)  And after that, her honor turned out to be the gift that keeps on giving.  Soon she was charged with her own crime for allegedly storming a residential neighborhood in her pajama bottoms, screaming, jumping on moving cars, and chasing down her ex-boyfriend who had, to her honor’s dismay, moved on to another relationship.  So, whatever happened in her criminal case?

The Dog’s hiatus is over

Photo by Amy Kushner

My second book, Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights, is now complete and in the hands of the editors at Rowman & Littlefield, with an expected publication date of September 2012.  I am therefore freed up—at least temporarily—to return to work at The Legal Watchdog for some judge-bashing blog posts.  And it turns out there is plenty of bashing to do.  Several Wisconsin judges have been behaving badly lately and, even worse, they’ve been getting away with it.  Please enjoy the two-part “Judges-Gone-Wild,” with part one following soon after this post.         

A satirical take on conference realignment: “Big East” changes name to “Big”

Big East Conference commissioner Phillip Bray recently announced a planned Big East expansion, and a corresponding change in conference name.  The league will be dropping the word “East,” and will now simply be known as “Big” or "Big Conference."  Bray attributed the name change to recent conference realignment.  “With the Big East likely to pickup the Big Twelve Conference leftovers of Kansas, Kansas State, Iowa State, and Baylor, the name ‘Big East’ is no longer accurate, honest, or ethical,” Bray insisted.

The jury tax

The law states that a criminal defendant cannot be penalized merely for exercising a constitutional right, such as a jury trial.  But as defense lawyers know, penalties can sometimes be harsher if a defendant passes on a plea deal and instead proceeds to trial, and loses.  This isn’t always the case; in fact, because criminal statutes today cover such a broad range of innocuous behavior, it’s sometimes better for a defendant to have a trial, even if he ends up losing.  This way, the judge can see just how mitigated the “crime” actually was, and might take that into account when pronouncing sentence.  But the risk of receiving a harsher penalty for going to trial and losing—also known as the jury tax—is alive and well, at least in Wisconsin.

“It’s a Wall Street government.”

Our criminal justice system has two extremes.  On one end of the spectrum, we imprison people for decades for using marijuana or having consensual sex with their fellow teenagers.  On the other end of the spectrum, we turn the other way for the really harmful stuff.  For example, despite the blatant fraud and the trillions of dollars in public losses, those responsible for the recent financial meltdown were never prosecuted and rarely even investigated; instead, some of them walked away with hundreds of millions in bonuses while we bailed out their companies.  And that’s what the documentary Inside Job is all about.

An alternative to the jury system?

Criticism of the jury system is probably as old as the jury system itself.  But while criticizing is one thing, coming up with a better alternative is another.  And for years, I had thought that the jury system was pretty darn good as it is.  But then I got an idea: Why don’t we just let Nancy Grace decide?

J.D.B. v. North Carolina: Is the Supreme Court obsolete?

The recent Supreme Court case of J.D.B. v. North Carolina has generated all sorts of hoopla.  The Wall Street Journal Law Blog, for example, even claims that the ruling “expands juveniles’ Miranda rights”—an outcome that would be celebrated by some and condemned by others, no doubt.  A closer inspection, however, reveals that the case will have zero impact on juvenile rights, and, more significantly, that our Supreme Court is fast becoming obsolete in the area of constitutional criminal law.   

The criminal defense lawyer

On a few occasions I’ve been asked: “How can you defend someone that you know is guilty?”  Sometimes the questioner is thoughtful and genuinely inquisitive, in which case I’m more than happy to give a serious and thorough explanation.  (For starters, I’m not arrogant enough to believe that I can know what really happened or who is really guilty.)  Other times the person is simply condemning me and my profession, and really isn’t asking a question at all.  These instances call for more creative answers, e.g., “I like putting ax murderers back on the street.”  But reprinted below—with permission, of course—is a slightly edited version of a list-serve post by a fiery drunk-driving defense lawyer, Michele Tjader.  Her eloquent rant captures, in many ways, the essence of the criminal defense lawyer’s role in our democracy.

Why judges shouldn’t give legal advice

The law on plea bargaining can vary wildly from state to state.  But in some states, judges are not allowed to participate in the plea bargaining process; instead, the prosecutor and the defendant (usually through defense counsel) are left to negotiate a deal.  If a deal is reached, it is presented to the judge; if no deal is reached, the case can be set for a jury trial instead.  But not all judges like to have trials, especially when they’ve got a lot of other cases on their docket or they want to be somewhere else—“Fore!”—instead.  So if plea negotiations bog down, a judge might subtly nudge one side or the other to get the parties closer to an agreement. 

Does the jury find the defendant guilty, guiltier, or guiltiest?

In State v. Hansbrough, the prosecutor charged the defendant with first-degree murder.  When the case went to the jury for deliberation, they were given the option of convicting on that charge, as well as the “lesser included” charge of “felony murder.”  The jury eventually convicted the defendant of felony murder, but there was one problem: the judge never gave the jury a verdict form for the option of finding the defendant not guilty.  Instead, the judge only gave one option—guilty—on the felony murder charge.