Law Review Submission Angsting Thread -- Fall 2021

For law geeks like me, late January and early July are among the best times of the year.  These dates mark the beginning of each the two law review article submission cycles.  (For outsiders who are interested in how this bizarre process works, see my article on the subject.)  This Fall cycle I'm submitting my 37th law review article to the journals for publication.  It's titled "Disorderly Conduct: An Investigation into Police and Prosecutor Practices."

In recent years I've found that half the fun of submitting and publishing many of my first 36 articles has been following the "Prawf's Blawg angsting thread" throughout the submission cycle.  It's basically a blog post and comment thread where law professors, wannabe law professors, and even a few actual practicing lawyer-authors (like me) post a wide range of questions, comments, and news about the article submission and publishing process.  Debates and arguments have even broken out from time to time.  (To see what it looks like, you can find last submission cycle's blog post and comment thread here.)

Fear and Excitement at Marquette

I'll start with the excitement.  Firing Coach Wojo was good news.  Seven years is enough time to try and win a single NCAA tournament game, and he failed.  (Don't worry about Wojo; he made enough money at MU to take care of himself for the rest of his life.)  And there's even more excitement: MU hired Shaka Smart as our new head coach.  I am convinced he'll bring an exciting brand of ball to MU, and I think that in many ways MU is more like VCU than UT, so I'm hopeful he'll be able to replicate his early-career success.  Exciting times are ahead!

So what am I afraid of?  The end of Marquette University itself.  It all started when Marquette got rid of its Indian mascot out of fear of possible offensiveness.  There were two problems with that decision.  First, why should offensiveness be the test?  Offensiveness is not discrimination and, for a variety of reasons, universities should not strive to be inoffensive.  Second, the Marquette fans who witnessed the killing of the mascot no doubt rhetorically asked: "If they're getting rid of our mascot, what's next?  Will they get rid of: (1) Our Indian logo?  (2) Our Warrior name?  (3) Our official school seal featuring the explorer Fr. Marquette and his Indian guide? (4) What about the name Marquette University itself?

It's time to drain Wisconsin's jury-instruction swamp

Many of Wisconsin's pattern criminal jury instructions -- now available free of charge -- are incredibly pro-prosecutor.  But when we defense lawyers challenge them, courts almost always deny our requests for modification.  Why?  Not on the merits of our arguments, but out of reverence for the great legal minds on the committee of trial judges that supposedly drafted the instructions.

As I have argued before, one problem with such deference is that the committee is made up almost entirely of former prosecutors and, in its most recent iteration, entirely of former government lawyers -- hardly a group to which we should blindly defer on matters of such importance.  But now, another problem has emerged.  It turns out that the much-ballyhooed committee of trial judges doesn't even write the instructions.  Instead, as has been revealed during the course of a jury-instruction copyright dispute, the instructions are created and written solely by employees of the University of Wisconsin at Madison -- possibly just a single employee.

In my newest article, Criminal Jury Instructions: A Case Study, 84 Albany Law Review __ (forthcoming 2021), I explain what's going on.  And now that the instructions have been stripped of their judicial halo and aura of authority, the article also provides a sample written request for defense lawyers to use to seek modification of the instructions in their own cases.  Finally, because the jury instruction committee is going to have some unspecified level of involvement in this swampy jury-instruction process going forward, I advocate for legal reforms rooted in the principles of transparency and, with regard to the committee's composition, diversity of thought and experience.

"Let's see Paul Allen's card."

 

For a deep dive into the business cards, see here.

A Decade of Daubert in Wisconsin: State 134, Defense 0

Knightly can't believe the numbers
(Photo by Amy Kushner)

Knightly and I haven’t been posting much as we’ve been hard at work on a new article, The Daubert Double Standard.  I’ll be submitting it in late January to the law reviews for publication, but here’s a sneak peek.

About a decade ago in 2010, Wisconsin lawyers learned that our state would soon be switching to the Daubert reliability standard for the admissibility of expert testimony at trial.  In criminal cases, the prosecutor (not the defense lawyer) uses the vast majority of expert witnesses, so this change from mere relevance to the more stringent reliability was supposed to benefit the defense.  It was supposed to end the prosecutor’s use of pro-state advocates masquerading as experts to put the gloss of faux expertise on the state’s cases.

Despite what was supposed to happen, many of us in the criminal defense bar knew better.  In 2010, I complained aloud to anyone that would listen that this new, more stringent Daubert reliability standard would not limit the prosecutor’s use of “experts” in any way; it would only make it more difficult for defendants to use their own, legitimate experts at trial.

Now that nearly a full decade has passed, what happened?

Recapturing my lost youth: Five underrated Van Halen songs

When Eddie Van Halen died, Electric Agora wrote that “EVH's death has brought back a recurring feeling I've been having since I entered middle age over a decade ago. The world I love is dying bit by bit.”  I’ve often had that sinking realization as well, not only after big events, such as the death of a parent, but also after far less personal events, such Van Halen’s passing.  I didn’t know Eddie Van Halen, of course, but his music is intertwined with my youth, with memories of better days.

The Electric Agora also saw a sliver lining in this reality of dying worlds.  When one’s world dies, “bit by bit,” there’s actually a consolation: when death comes for the individual, that person will be ready to go, ready to leave behind what little is left of his or her world.  That’s true and, at least for me, oddly comforting.  But in the meantime, having just passed a physical and dental exam with flying colors, I’m (most likely) not yet at death’s door.  I am therefore writing this post to enjoy an even better, though admittedly temporary, silver lining: I’m recapturing my lost youth by celebrating and sharing some of Van Halen’s most underrated songs.

Below are five such songs—one from each Van Halen (not Van Hagar) album, except for the band’s two mega hit records: the self-titled debut Van Halen and the band’s sixth album, 1984.  Those records achieved such success on every imaginable level that there are no overlooked gems, no hidden nuggets to unearth.  But their other five albums are goldmines of under-appreciated songs.  Here are my top five:

Does character matter?

If you're charged with a crime, it's very possible that the prosecutor will find some way to use -- either directly or indirectly -- your prior criminal record as evidence of your bad character.  This, of course, is likely to make you look guilty in the eyes of the jury.  But what if you've got a squeaky-clean record and have never even been accused of -- let alone arrested for, charged with, or convicted of -- a crime?  Can you use your clean record as evidence of your good, law-abiding character?  The law actually (generally) prohibits you from doing so.  Talk about double standards!  In my new article, I debunk the prosecutorial and judicial justifications for hiding your clean record from the jury, argue for legal reform, and provide defense lawyers with a possible strategy under the existing rules: A Clean Record as Character Evidence, 90 Mississippi Law Journal __ (forthcoming, 2021).  Or read the abstract after the jump.

That's Absurd!

Assume you're a sheriff's deputy and you arrest a mail-carrier pursuant to an outstanding murder warrant.  Can you be charged criminally for "interfering with the delivery of the mail"?  What if you rescue a baby squirrel from certain death by giving it food and water -- are you guilty of a crime for "keeping a game quadruped" in your home?  What if you are convicted of a crime that has nothing to do with sex and isn't related to sex in any imaginable way -- can the government still make you register as a sex offender?  Technically, yes.  But a legal principle called "the absurdity doctrine" is supposed to protect you when statutes would otherwise produce an absurd result, like the ones discussed above.  Unfortunately, the doctrine doesn't always work.  Read about my proposed legal reform in The New Absurdity Doctrine, 125 Penn State Law Review __ (forthcoming, 2021).  Or read the abstract after the jump.

Wordplay

In Wisconsin, you could be a "domestic abuse repeater" if you have been convicted, "on 2 or more separate occasions," of domestic abuse crimes.  Yet prosecutors are branding defendants as repeaters, thus transforming misdemeanors into felonies and increasing jail sentences to prison sentences, whenever defendants have been convicted only on ONE prior occasion.  How is this possible?  Read my new article explaining this governmental wordplay, Criminal Repeater Statutes: Occasions, Convictions, and Absurd Results, 11 Hous. L. Rev. Online 1 (2020).  Or read the abstract after the jump.

Strickland’s IAC standard and Brendan Dassey

When a defendant is convicted of a crime, his or her appellate lawyer will often attack the defendant’s trial counsel for ineffective assistance of counsel (IAC) in an attempt to win a new trial.  The applicable legal standard is (usually) found in Strickland v. Washington.  However, Strickland’s IAC standard is both too broad and too narrow.

Strickland is too broad in the sense that it’s often used to go after the defendant’s trial counsel not for his or her own conduct, decisions, and errors, but rather for failing to correct the trial judge’s errors or to properly monitor the prosecutor’s misconduct during trial.  In other words, it unfairly requires the defense lawyer to do three jobs in one.

But on the other hand, Strickland is too narrow, as the standard often fails to provide any remedy for true defense-lawyer ineffectiveness, such as failing to consult with the client, showing up to trial drunk, or even falling asleep in court (which, in fairness, could be due to being drunk).