Redrafting the preliminary-hearing waiver form

I currently have an article under submission to the law journals that is titled Improvident Prosecutions.  It exposes the various preliminary hearing scams perpetrated by Wisconsin’s prosecutors and judges, and gives interested legislators a roadmap to correct these prosecutorial and judicial abuses.  Once the article is accepted for publication, I’ll post it to SSRN and my website and will notify The Dog’s readers via a new blog post.  But until then, I thought I’d take a shot at redrafting the state’s (or at least Kenosha County’s) preliminary-hearing waiver form.  Given the current prosecutorial practice of using a reader-witness, explained below, the old waiver form is no longer accurate and poses problems for defense lawyers whose clients are thinking about waiving the preliminary hearing. 

The right to (unlicensed) counsel

I recently read this article about a Louisiana public defender’s office that hired a new assistant public defender.  Unfortunately, the new hire wasn’t actually an attorney!  Woops.  Having a law license is, of course, a prerequisite for being a criminal defense lawyer.  In reference to the above story, someone I know rhetorically asked: “Could you just envision the Supreme Court of Wisconsin (SCOW) upholding a defendant’s conviction on appeal even though the defendant’s ‘lawyer’ wasn’t actually a lawyer?”  As the above question implies, if a defendant is represented by a fake lawyer, any conviction in the case should be reversed.  The applicable legal standard is Strickland’s two-part test on the ineffective assistance of counsel (IAC). 

SCOW flops on JI 140; rejects behavioral research in the process

Predictably, SCOW flopped on its chance to change our defective jury instruction on the burden of proof, JI 140.  As the concurrence in the SCOW opinion points out, the instruction engages in a sort of burden-shifting by focusing jurors on the type of doubt the defense must produce (with numerous warnings about what kinds of doubts are not reasonable) rather than what constitutes proof beyond a reasonable doubt.  Worse yet, as most of The Dog’s readers know by now, JI 140 concludes with language that other courts (e.g., Fifth Circuit Ct. App. and Washington Ct. App., among others) have held to be constitutionally defective.  It tells jurors “you are not to search for doubt.  You are to search for the truth.” 

Here’s a summary of the case by SPD’s On Point blog, which also links to the decision itself.  (The post also has a helpful practice tip for defense lawyers, so be sure to read it.)  I’ll have plenty to say about this case in the future—possibly in another law review article.  But for now, I’ll limit my comments to the very small part of the court’s decision discussing the studies I conducted and published with my coauthor Larry White.  These studies demonstrated, unsurprisingly, that when you tell jurors not to search for doubt but instead to search for truth, it will lower the state’s burden of proof.  You can find the studies, along with other JI 140 resources, on my JI 140 resource page (which I’ll be updating soon).   After the jump, I’ll respond to the softballs that SCOW has thrown me. 

Already Gone: Mens rea and the burden of proof in Wisconsin

Liberals are just as likely to take away our freedoms and violate our rights as conservatives.  Many years ago, I wrote an article (here) arguing there was no discernible correlation between a judge’s political party and respect for our constitutional rights.  

When it comes to the legislature, one recent example of a liberal’s expansive, intrusive reach is Sen. Elizabeth Warren’s proposal to ensnare corporate executives in the criminal justice system.  According to this NACDL news release, her Corporate Executive Accountability Act (here) would convict a defendant without a mens rea requirement (guilty mind, intent, knowledge, etc.) and by the lower, civil burden of proof known as the preponderance of the evidence standard.

Reversing Wisconsin’s “Victim” Culture

Maybe this is a trendy thing in other states as well, but Wisconsin has a bizarre, cart-before-the-horse practice of anointing complaining witnesses and deceased persons as “victims” long before the defendant reaches a plea agreement or calls the first witness at his jury trial.  In one example, I represented a defendant in an obvious self-defense case.  It was so obvious that the jury came back “not guilty” in warp speed—under one hour, if memory serves.  Yet, despite the presumption of innocence and the lack of sufficient factual allegations let alone evidence, the judge and prosecutor had repeatedly used terms like “victim’s rights” and even “the victim” throughout the case and even during the jury trial.

Wiegert, Fassbender, and Dassey: "Getting to know all about you"

Interrogators like Mark Wiegert and Tom Fassbender have tactics to get suspects to waive their Miranda rights, and they have a different set of ploys to get suspects to tell them what they want to hear—or, in Brendan Dassey’s case, to get him to agree with whatever they, the interrogators, are saying.  (I love it when they get Dassey to agree to something, but then later discover that what they made him agree with doesn’t make any sense after all.  The dynamic duo then gets frustrated with the kid, as if he was the one who gave the bad information to them.)  

But before the interrogation begins, detectives like to warm their suspects up a bit—you know, feign interest in them and build some rapport before getting too hot and heavy.  To see how Wiegert and Fassbender did this, read chapter 10, “Getting to Know All About You,” from my soon-to-be-released book, Anatomy of a False Confession: The Interrogation and Conviction of Brendan Dassey (Rowman & Littlefield).[1]  Order today for delivery by Halloween; but until then, enjoy a sneak peek of chapter 10, after the jump.  (Reprinted with permission of the publisher; citations to interrogation transcripts omitted for this post.)

Making a Murderer season 2: In defense of the defense lawyers

I’m greatly enjoying Making a Murderer season 2.  As expected, however, it’s a little heavy on the emotional angle—how much footage can we watch of Avery’s mother painfully traipsing through her house?—and a little light on the law, at least for my taste.  But so far it’s quite good, and Kathleen Zellner’s theory of what really happened makes a lot more sense than the state’s theory presented at trial.  Nonetheless, MaM2 is painting an inaccurate picture of the criminal justice system in at least one respect.

The documentary includes some direct and implied criticism of Avery’s trial lawyers, Jerry Buting and Dean Strang.  And this criticism is coupled with action scenes of Dassey’s and Avery’s new attorneys doing all sorts of extraordinary things in their clients’ defense.  For example, Dassey’s appellate lawyer has an entire team around her to simulate oral argument at the Seventh Circuit.  And Avery’s new lawyer, Kathleen Zellner, has a team of paralegals and is shown traveling around the country to consult with experts in a variety of fields; they then conduct several tests, experiments, and recreations of events.

Bubble Reputations

Mark Twain wrote that if you “give a man a reputation as an early riser, he can sleep til noon.”

These types of bubble reputations are how Christopher Hitchens picked his targets, including Mother Teresa and Princess Diana.  Well, there are two other bubble reputations that need to be pricked, as Hitchens would say. Those reputations belong to basketball star LeBron James and women's tennis great Serena Williams.

Where's the crime?

In Tried and Convicted I wrote about how Wisconsin’s criminal injustice industrial complex spends staggering sums of money to arrest, charge, prosecute, convict, lockup, and then supervise its citizens—often for the better part of their lives.  Our state’s love of punishment and perpetual monitoring is well-known, and stands in stark contrast to other states like our neighbor to the west, Minnesota.  Even conservative states like Idaho are coming to terms with the “evils of big government” associated with such irrational policies; the Red States appear downright progressive when compared to Wisconsin.  But what crimes, exactly, are Wisconsinites committing?  What justifies such massive expenditures, year after year, that could otherwise be put to better use?

In an excellent law review article titled The Use of Wisconsin’s Bail Jumping Statute: A Legal and Quantitative Analysis, 2018 Wis. L. Rev. 619, 636, Amy Johnson includes a table listing the “top ten charged offenses in 2016.”  I’ve combined a couple of categories to list the top five, below.

Anatomy of a False Confession

My new book, Anatomy of a False Confession: The Interrogation and Conviction of Brendan Dassey (Rowman & Littlefield), is now available for pre-order at R&L and Amazon.  The book will be published in November of this year.  The chapters are divided into several sections, including "inside the interrogation room," "trials, tribulations, and appeals," and "making a federal case of it."  The book also includes several introductory chapters on false confession basics, and concluding chapters on how we should reform the system to better protect ourselves from government agents like Wiegert and Fassbender.