Breaking the bank: JP Morgan Chase needs to stop paying off the government

JP Morgan Chase just agreed to pay another $1.7 billion to the government as part of a criminal settlement agreement.  So what was Chase’s alleged crime this time around?  The government alleges Chase violated the Bank Secrecy Act by failing to file a “suspicious activity report” for certain “suspicious transactions” in Bernie Madoff’s bank account. (Source: WSJ.)  I find this absolutely hilarious, given that the Securities and Exchange Commission (SEC) did absolutely nothing to stop Madoff, even though a Wall Street Analyst named Harry Markopolos did all of the SEC’s work for it, mathematically proved that Madoff was running a ponzi scheme, notified the SEC repeatedly in writing, and begged the SEC to put a stop Madoff’s then ongoing crimes. 

State bar recommends new lawyers do free legal work to reduce their anxiety from not having money or legal training

In November, 2013, a “special task force report” by the State Bar of Wisconsin concluded that a large number of new law grads can’t find jobs to pay off their staggering student debt loads.  In addition, many of those who were fortunate enough to be employed (or underemployed) were afraid to practice law because they didn’t know how.  Here’s a nice excerpt of a summary of the report from the bar association’s e-newsletter: 

“My debt is higher than a mortgage for a nice house. It’s all I think about. And I know I will be strapped in a job I don’t want paying debt for the rest of my life,” said [one new lawyer]. 

“I’m buried under debt. I’m terrified that this is what the rest of my life is going to look like. I’m also scared to start my own practice, because I don’t have the practical litigation experience. I can’t afford a pet, let alone kids. I live paycheck to paycheck. It’s very, very scary and disheartening,” was another response from a new lawyer.

Another lawyer said the job search left the lawyer feeling “suicidal” and “terrified.” The lawyer also feels alone and scared of making a mistake in practice but is hesitant to tell anyone about these mental struggles for fear of being disbarred. 

. . . [A] task force member and past president of the State Bar’s Young Lawyer’s Division[] said the lawyers who made these sorts of comments “are fast becoming your average member of the State Bar.”

So, in short: lots of stress due to high debt loads, no jobs, and the fear of practicing law because of the lack of training and the related risk of disbarment.  So what is the state bar’s solution?

Knightly celebrates the (temporary) revival of the confrontation clause

Knightly's celebratory play bow

The Sixth Amendment’s confrontation clause is, pretty much, what it sounds like: it gives a criminal defendant the right to cross-examine his accusers. This particular right is not a mere technicality.  We all know that talk is cheap, and criminal accusations should be tested in open court. However, judges have carved away at the right of confrontation by creating numerous exceptions by which it can be satisfied—or, more accurately, ignored—without giving the defendant the opportunity for cross-examination. In addition, our Wisconsin supreme court developed another way to get around this fundamental right: they created a far-reaching exception allowing lower courts to find that the defendant forfeited the right before trial, and therefore is not entitled to confrontation or cross-examination. And even when the United States Supreme Court held that Wisconsin’s far-reaching, pro-prosecutor “forfeiture doctrine” was unconstitutional, Wisconsin simply countered by labeling its prior forfeiture decisions (and the accompanying wrongful convictions) as harmless errors. 

But now, after Federal Defender Craig Albee’s recent appellate win in a Wisconsin federal court, the government's beloved “harmless error doctrine” has taken a serious hit—at least in one case. But this doesn’t necessarily mean that our state courts will learn their lesson and will stop violating our confrontation rights. It just means that they’ll have to create new ways to do so. So at least they’ll have to work for it. 

For more about the confrontation clause, its importance, the judicially created exceptions, and the forfeiture doctrine, read my articles Confrontation after Crawford, and Judicial (In)Discretion, and my personal favorite Dead Again.  You can find all of my articles, organized by topic, by simply going to my articles page.

"My client didn't do it, but I know who did."

When lawyers try to defend criminal cases by arguing not only that their client didn't do the crime, but also that the lawyer knows who did it, judges start to panic. (This defense is known as the wrong-person defense or the third-party defense.) Judges don't like it when defense lawyers start questioning the prosecutor's charging decision. They would much rather that the defendant simply take his medicine instead of trying to cast blame on someone else. After all, things get complicated once we entertain the possibility that the prosecutor charged the wrong person. And sometimes, judges get so crazy about this that their thinking process crosses the line that separates the merely irrational from the clinically insane. 

For example, one judge denied a murder-defendant's right to put on a wrong-person defense, "[e]ven where a third party was seen fleeing from the scene of the crime and admitted to killing other people and burying them in the very woods in which the victims' bodies were later found." Why did the judge exclude this defendant's evidence of innocence and of third-party guilt? It was simply "too threadbare to be admissible." (Interestingly, this defendant's evidence against the third party was much stronger than the prosecutor's evidence against the defendant, yet it was still considered inadequate.) In any case, this stuff makes for interesting reading, as long as it's not happening to you or your client! So check out my newest article, An Alternative to the Wrong-Person Defense, 24 George Mason U. Civil Rights L.J. 1 (2013). For links to my other articles, simply go to my articles page.

"Quote unquote."

When I write blog posts, articles, and even books, I operate largely on intuition and feel. That is, I can't articulate the rules of the English language -- such as where to use a dash or a semicolon -- yet somehow I have a decent idea of what to do. And when it comes to speaking, I, like most people, use language in a fairly sloppy manner, at least compared to my writing. So, given my own imperfections -- which I admit are deep and many -- I am very tolerant of the blogs, articles, and books that I read, and even more tolerant of the podcasts to which I subscribe. But there are a few things that bother me like a fly buzzing around my ear. Let's start with the phrase "quote unquote."

Judging

I've written a lot of posts about judges' inability to grasp basic legal principles, and how frustrating and costly this can be. (For a couple of recent posts, in which you'll find several additional links, see here, here, and here.) I've also speculated, here, that much of this can be traced to the American law schools that produce the graduates who eventually become judges. One of the problems with many of our schools is that they really don't teach a whole lot about legal theory, and even less about lawyering. (They do, however, love to teach social science theory and the law.) One of the reasons law schools don't teach much law is that an increasing number of new law professors -- especially those at elite schools -- have a Ph.D. but no law degree. And, many of the law professors who do have law degrees have never practiced law in the fields they teach; further, many have never practiced law at all, or only in rather sheltered settings for a year or two. The blog Outside the Law School Scam gives an excellent example of this incredibly common law school hiring practice: a law prof teaching criminal procedure who has never practiced criminal law. (The blog post further points out that the prof has "near-zero experience" in legal practice of any kind.) The problem, obviously, is that these law professors can't add anything of value to what a reasonably intelligent law student can do on his or her own: read and think about statutes and case law. And the bigger problem is that these law professors are training -- or, rather, not training -- our future judges. In short, I don't see any improvement on the horizon for the state of our judiciary.      

Please, no more rules

The legal profession is, in some ways, laughable.  We have endless procedural rules that come in numerous forms, including statutes, supreme court rules, appellate court decisions, local court rules, and scheduling orders.  The problem is that judges ignore these rules as fast as they (and the other lawmakers) can dream them up.  For example, you think you have the right to call witnesses at your preliminary hearing just because the statute specifically says you can?  Think again.  You think that evidence against you will be suppressed because your rights were violated?  Unlikely.  You think the prosecutor has to turn over discoverable materials within sixty days of your demand just because the scheduling order commands it?  Not even close.  And how about the most basic thing of all: you think you have the right to testify in your own defense at trial?  Only if the judge is in the mood to hear from you.  No other profession could possibly survive if its professionals were to behave the way judges do.  But where does this judicial disdain for the rule of law come from?

“Judge, have you been studying this at all?”

I’ve written numerous posts—for example, here, here, and here—about defense attorneys trying to put on evidence of innocence during a trial, only to have trial judges shut them down cold. As I explained in those posts, this happens most frequently when the prosecutor objects to a defense lawyer’s line of questioning as calling for “hearsay.” In most cases, however, the testimony isn’t hearsay at all. So the surprised defense lawyer does his best to play educator, and tries to teach the judge about the definition of hearsay. Yet, because many judges just cannot grasp this incredibly important concept, they sustain the prosecutor’s objection in knee-jerk fashion. The defense lawyer—much like a patient whose surgeon doesn’t understand basic human anatomy—is dead in the water (or on the operating table, as it were). 

Now, I don’t mean to make light of this incredibly serious and utterly unacceptable state of affairs in legal education and, consequently, in the judiciary. But when I saw the following short video clip, I couldn’t help but think of physicist Brian Greene as the frustrated defense lawyer, and the other character in the video as the completely uneducated judge, incapable of grasping the lesson. (If the embedded video does not appear below, you can find it on YouTube by clicking here.) Enjoy.

  

Government Shutdowns: A Modest Proposal

All of this federal government shutdown business got me thinking about a possible state of Wisconsin government shutdown.  If that ever happens, which government services would be considered essential, and which would be nonessential and, therefore, suspended or even eliminated?  My modest proposal (for a hypothetical state-government shutdown) is that we could do without the services of many of our appellate courts.  Why?  The story begins with a recent Wisconsin criminal case, where the trial judge prevented the defendant from testifying in her own defense.  If that sounds shocking to you, it should.  Few things (if any) are more fundamental than a defendant’s constitutional right to testify at her own trial.  So why wouldn’t the trial judge let the defendant—here, an eighteen year old girl—take the witness stand?

On the (business) media

I generally enjoy APM’s Marketplace podcast, notwithstanding the host’s all-too-frequent use of the phrase “c’mon, man.”  But in a recent episode, the host interviewed an Ivy League business school professor about “meetings.”  In short, there are about 11 million business meetings in the United States each day.  About half of those surveyed said that about half of their meetings were unproductive or not a good use of their time.  The prof’s conclusion: limit the duration of meetings to force the attendees to be more productive, thus getting more done in less time.  Superficially, that sounds fine.  But on closer inspection, here is my list of complaints about the podcast: