Free speech: A message for public universities (and their students)

For the universities, before you spend any more time and money expanding the university bureaucracy to implement that micro-aggression reporting system, read Matal v. Tam.  It doesn't say anything the rest of us didn't already know, but here are some quotes of interest from the decision, along with some concluding remarks to the universities and their students:

Roger Federer, Michael Cicchini, and Pennsylvania’s Burden of Proof

“Roger Federer is a better tennis player than Michael Cicchini.”  While that statement is true, it doesn’t really say anything.  It tells you nothing about how good Roger Federer is (or how bad I am) at tennis.  So at best, it’s a meaningless statement.  And if you don’t know much about the sport to begin with, the sentence is worse than meaningless.  It’s grossly misleading.  Why?  Because it gives the impression that Roger Federer and yours truly are somehow comparable or at least part of the same tennis universe.  If we weren’t, why would we be compared to one another?  After all, no one ever bothers to say that a Ferrari is faster than a Yugo or that Cal Tech offers a better physics education than Wisconsin’s Gateway Tech, even though both claims are true.  Yet, this type of highly misleading comparison is found at the heart of something far more important than tennis, cars, and even physics: Pennsylvania’s burden of proof jury instruction in criminal cases. 

Is the Marquette Golden Eagle an Endangered Species?

Much like the Golden State Warriors of the NBA, the Marquette Warriors were once the coolest name in their sport.  (And Marquette also had a history of being one of the most progressive teams in recruiting, in fashion, and in flat-out sticking it to the man.)  I was a Warrior in my graduate school days, before law school, back in the early 1990s.  But then in 1994, Marquette made the switch to probably the most common, generic nickname in college sports: the Golden Eagles.  Don’t get me wrong, I’ve come to really like the Eagle, particularly after it evolved into its current form (pictured left).  It is probably the best bird logo in college sports: a cool, aggressive, and determined looking bird that is ready to get to business, stat.  And I still love my Marquette hoops—even post-Dwyane Wade, it is the bright spot during our long, cold Wisconsin winters.  But when Marquette changed its name from Warriors to Golden Eagles back in '94, I pointed out the absurdity of the thought process behind the move.  Now, that thought process has spread like a virus and no mascot (or person) is safe.

Bases covered

My monthly issue of the State Bar’s Wisconsin Lawyer went in the trash a little sooner than it normally does.  It wasn’t some overused top-ten title — like, “the top ten ways to upset your judge,” or “don’t do these ten things if you want to keep your judge happy” — that turned me off.  In fact, there might have even be some good material in it.  But I wouldn’t know because I never got that far.  Instead, I was completely grossed out by the cover.  For some reason, it featured a child’s bare feet, large as life, and I just couldn’t get beyond that.  To leave this monstrosity sitting out on my coffee table — even if only to collect dust — was simply not an option.

Wisconsin's Unconstitutional Burden of Proof

The Constitution requires the jury in a criminal case to evaluate the state's evidence for reasonable doubt.  After this evaluation, even if the jury concludes that the criminal charge is "probably true," it must find the defendant not guilty.  The reason, of course, is the high burden of proof: "proof beyond a reasonable doubt."  Standards like "might be guilty," "could be guilty," "is possibly guilty," and even "is probably guilty," just doesn't cut it when the state is trying to strip you of your liberty.  But this high burden of proof is only as strong as the burden of proof jury instruction.  And the way that most Wisconsin judges instruct their juries might surprise you.

Dassey's Details: Unprompted or Extracted?

I've heard Ken Kratz, on several occasions, complain that "Making a Murderer" left out important details. But I've always dismissed this complaint as just a minor variation on the common prosecutorial refrain that we defense lawyers hear all the time: "He's quoting out of context!"

But in their book, "Avery," Kratz and coauthor Peter Wilkinson criticize the documentary for leaving out Dassey's May 13 interrogation. They claim that, in this interrogation, Dassey provided unprompted details about seeing Halbach's purse, camera, and phone. The problem, however, is that Dassey's statement was not unprompted. More accurately, his interrogators extracted it from him. Read more, including an excerpt from the actual interrogation transcript, in my newest Wisconsin Law Journal column.  

(Warning to prosecutors: The column does include a quotation, and the quotation is taken out of its context. But by definition, a quotation necessarily is out of context.)     

WPR - NPR Interview

Click the link to listen to my latest radio interview -- this one on Wisconsin Public Radio's "Central Time."  In it, we discuss my new book, Convicting Avery (Prometheus books, 2017), along with several aspects of Wisconsin's criminal justice system including our unconstitutionally low burden of proof, police interrogation tactics, and false confessions.  One of the callers, a former juror, raised a great point about Wisconsin's jury instruction on reasonable doubt.  Paraphrasing, he said: "The judge told us 'not to search for doubt.'  I had doubts about the case, but they weren't things that the lawyers had brought up.  So was I not supposed to consider those unless the attorneys raised them first?"  Finally, for more on my research and controlled studies on Wisconsin's unconstitutional jury instruction on the burden of proof, visit my articles page of CicchiniLaw.com.  

Anything you say (or don't say) can be used against you

We all know that people confess to the police because they think they're helping themselves.  Sometimes these confessions are true and sometimes they're false, but in both cases people confess because they are (wrongly) convinced that doing so is in their best interest.  For example, the police often minimize the event by saying, "If you admit your involvement now, everything will be okay and it's not a big deal; but if you keep lying to us by denying it, then you'll really be in trouble."  Or, sometimes the police present the classic false dichotomy: "You have only two choices: (1) You did this, you meant to do it, you're a monster, and you're going to prison for the rest of your life; or (2) You didn't mean to do this, so-and-so is really the one who did it, you're involvement was minimal, and if you help us out we'll take care of you and you'll be just fine."

Convicting Avery: The Bizarre Laws and Broken System behind "Making a Murderer" (Prometheus Books)

My new book, Convicting Avery, is now available.  You can find the book at retailers everywhere, including at amazon.  The book has received several positive reviews, including those from the New York Journal of Books, Publishers Weekly, Kirkus, and Blog Critics.  Enjoy!

Thank the Marquette Warriors for March Madness

Only fifteen teams have won multiple national titles.  In this year’s Final Four, Oregon will be going for its second, North Carolina for its sixth.  But March wasn't always Mad, and the tournament wasn't always “the tournament.”  When Oregon won its first title in 1939, the Big Dance was anything but: it was an eight-team field played in a tiny gym with only a couple thousand fans in attendance.  And for many decades, the NIT was the more prestigious tournament.  The NIT fielded more teams and better teams, and it was played in a high-profile venue at Madison Square Garden.  Well into the 1970s, getting much-desired media coverage and good recruits depended on getting into the NIT and being seen in New York.