Idaho and Wisconsin: A Tale of Two Preliminary Hearings

In the Idaho quadruple homicide case, defendant Bryan Kohberger is accused of murdering University of Idaho students Ethan Chapin, Xana Kernodle, Kaylee Goncalves, and Madison Mogen.  The defense waived the right to a timely preliminary hearing (14 days in Idaho) and set the hearing in June so it has enough time to go through all of the evidence.  The judge cleared five days on the calendar for the hearing itself.  This indicates that the defense gets the discovery materials (e.g., police reports, witness statements, etc.) before the prelim and the state has to call actual witnesses at the evidentiary hearing in order to establish probable cause.

By comparison, in Wisconsin, the courts at all levels of the system have managed to super-legislate from the bench; they have somehow turned an evidentiary hearing, which was designed to prevent improvident prosecutions, into a prosecutorial weapon for charging anything and everything without probable cause and, certainly, without the presentation of any evidence.

What do I mean?  Well, if pre-hearing discovery and actual witnesses are the hallmark of Idaho’s preliminary hearing, then these are the hallmarks of Wisconsin’s preliminary hearing:

Yellow pages advertising: a blast from the past

2010 was a simpler time, as there was only ONE place worth advertising: the phone book! This might have been my last year advertising in "the yellow pages." And I no longer advertise anywhere -- I've always found it distasteful, hence the simple, straightforward approach to my old yellow pages ad. But I liked this old ad; it always reminded me of Van Halen's Diver Down album cover.

Enjoy "Secrets" from Diver Down, and re-live the 80s:

"You know how sometimes, you got to run?

You're runnin' blind, but you jumped the gun."

No tests, no papers -- you get an A!

Jeff Winger, a nontraditional student at the fictional Greendale Community College, was always in search of the easy A.  He just needed to replace his fake bachelor’s degree so he could get readmitted to the Colorado Bar and return to the practice of law.  (He had, apparently, legitimately completed law school and passed the bar – just without going to college first.  This is theoretically possible in real-life, as law school is, in reality, nothing more than an associate’s degree: it can be completed in two years and, although you need a bachelor’s degree, it can be in anything – including majors like “puppetry.”)

In one of the show’s best exchanges, a professor at Greendale, whom Winger once successfully defended in a drunk-driving case, said to Winger: “I thought you had a bachelor’s from Columbia.”  Winger replied: “And now I have to get one from America; and it can’t be an email attachment.”

As has happened often in the years since Community first debuted, the absurdity of “higher education” has proven Community to be prescient.  Read this College Fix article about a UC San Diego professor who gave everyone As just for showing up!  No kidding.  There was no homework, and everyone got an A. 

But if you don’t want to read the article, just watch Community’s Professor Whitman.  He liked to handout As, too—and long before the real-life UCSD professor did.  Unreal.  Absolutely unreal.  You want an A?  “No tests, no papers.  Just live in the moment.”

Once again, fiction becomes reality.

In a rush to virtue signal, law schools say the darndest things!

Law schools are falling all over themselves to copy Yale by withdrawing from the US News law school rankings.  As I explained earlier, they are not actually “withdrawing”; rather, they are just not going to submit data anymore.  And of course, they will still get ranked.  (If refusing to submit data meant being removed from the premier list of law schools, they would all keep submitting data.)  This move of not submitting data has been done before—most notably, by my alma mater, Marquette Law, in the 1990s. (See MU L. Rev. p. 310.)  So this is a well-beaten path that leads nowhere new.

In any case, law schools are just following their strong urge to copy Yale.  (Yale and Harvard grads run, and teach at, virtually every law school in the country.)  But rather than admitting this, the law schools are instead virtue signaling.  They are rushing to get their statements out, proclaiming to the world how morally awesome they are!  But in some cases, these schools might be rushing just a little too fast.

Take UC-Irvine’s Austen Parish, who recently issued this statement, claiming the moral high ground over the dastardly US News: “Collectively we have determined that continuing to participate in the U.S. News rankings is not consistent with our founding ideals.”

Law School Nonsense and the U.S. News [Updated below]

The WSJ recently reported that Yale, and then Harvard, withdrew from the US News law school rankings.  My initial reaction was, of course Harvard is going to copy Yale.  They’ve been chasing Yale ever since those rankings came out.  They didn’t have the guts to withdraw first, but they quickly jumped on Yale’s bandwagon.  A Harvard spokesperson said that his school had been “deliberating the move for several months.”  At best, that’s typical academic navel-gazing; more likely, Harvard was waiting for its law-school superior, Yale, to pull the trigger first.

My second reaction was that these schools aren’t actually withdrawing; they’re just not cooperating with the US News.  Marquette Law did this many years ago, i.e., it stopped cooperating and submitting data, and the school still got ranked.  And the WSJ later confirmed in a follow-up article that, of course, Harvard and Yale will still get ranked.  So these two institutions aren’t even doing anything novel; they certainly are not ground-breakers or trend-setters.  In reality, they’re walking a path beaten long ago by Marquette Law.  (Note: post-rebellion, under new "leadership," MU has since rejoined the US News fold.)  And that already-beaten path leads absolutely nowhere new.  

Anyway, why did Y. and H. decide to stop cooperating?  Here’s the part of the original WSJ article that caught my eye:

Court-approved drinking mugs?

David Lee Roth, et al.

The judge in Racine County who allegedly threatened a lawyer with contempt for not having his shirt's top button buttoned has also issued special court-approved drinking mugs, according to a short story in the ABA Journal.  

What kind of soft, liberal nonsense is that?  Any hard-liner worth his salt would prohibit in-court hydration entirely!  I remember a "professor" at MU Law many years ago when I brought out my plastic water bottle in class.  He asked, "What are you going to do if you get thirsty in court? Pull out a water bottle?"  I replied, "Um, yes?"

He didn't find it humorous.  But neither did I.  Nor did he offer a better alternative to the time-tested H2O in a bottle.  He was indeed a hard-liner.  (He was also lazy.  Who gives a commercially available, multiple choice final in law school?  If you don't want to grade issue-spotter questions, at least make up your own multiple choice.)

In any case, I don't practice in Racine so I don't have one of those special, court-approved mugs.  And for you out-of-county lawyers who also lack the court-approved drinkware, but may be venturing into Judge Gene Gasiorkiewicz's court room in the future, The Legal Watchdog has obtained "inside information" that he will also permit you to drink out of a Van Halen mug.  

Don't research that.  Just trust me on this one.

Judicial Bias, the Top Button, and the Criminal Case Backlog [Updated 9-17-22]

As a criminal defense lawyer, judicial bias is a subject of great interest to me.  In 2019, I published a law review article titled Combating Judicial Misconduct: A Stoic Approach.  (You can find all of my law review publications, organized by topic, here.)  In that article, I described how judges can be incompetent, hostile, biased, and in some cases flat-out unhinged.  I also provided strategies for combating such misconduct, including the defense motion to recuse the offending judge.  I have filed such motions in the past, and I included a sample motion in the article for criminal defense lawyers to adapt and use in their own cases.

While I have no reason to believe he ever read my article, I was very interested to learn that another defense attorney, Christopher Carson, recently filed his own motion to recuse a criminal court judge.  Carson alleges in his motion that Racine, Wisconsin trial-court jurist Eugene A. Gasiorkiewicz conducted himself so poorly in the courtroom that it constituted judicial bias against the defense, thus requiring recusal.

The entertaining facts alleged by Carson in his motion include these.  In front of a packed courtroom—i.e., “lawyers, defendants, members of the public and court staff”—the judge became “emotionally triggered” and publicly lambasted Carson for not buttoning the top button of his dress shirt.  However, Carson “could not comply with the Court’s novel interpretation of the lawyer’s dress code” because, possibly due to recent weight gain, “his shirt’s collar was too small for buttoning at the top, given the melancholy thickness of [his] neck.”  After yelling at Carson, the judge then allegedly threatened him with a contempt finding should he ever repeat this fashion misstep.

Miranda Madness

Judge Bruce Schroeder’s scolding of the prosecutor during the Ritttenhouse trial drew a great deal of media attention.  Unfortunately, media outlets were less interested in discussing the underlying problem that caused the judge’s eruption. 

The underlying problem is a common one.  Prosecutors frequently—some, routinely—will comment on defendants’ post-arrest, post-Miranda silence.  In the Rittenhouse trial, the prosecutor did this in two ways.  FIRST, he asked Rittenhouse on cross-exam to admit that this is the first time he’s chosen to talk about the incident, thus implying that he had declined to talk to police upon his arrest.  SECOND, because the state has to go first at the trial, the prosecutor also got Rittenhouse to admit that he had the “benefit” of listening to the state’s witnesses and seeing the state’s video evidence before finally talking about the incident.

Fact checking the fact checkers: State v. Rittenhouse

I really hate—yes, “hate,” which can be a good thing—how social media platforms will censor a person’s political speech for allegedly being “false” when it is really just the expression of an opinion.  And now this practice has crossed the line separating the political and legal arenas.  As a practicing criminal defense lawyer, this hits close to home for me.  Hitting even closer to home, I’ve actually been cited in support of a fact checker’s decision to double down on his earlier fact check which declared someone’s speech as “false.”  This is somewhat ironic, given my love of free speech and my hatred of “speech codes,” censorship, and the asinine phrase “hate speech” which is bandied about by nasty children and freedom-hating bureaucrats on college campuses.

You can read all about it here.  In a nutshell, someone wrote on facebook that it was “perfectly legal” for Kyle Rittenhouse, a 17-year-old boy, to possess the gun he possessed when he shot three white men who separately (1) threatened to kill him and chased him, (2) pointed a gun at him, and (3) struck him with a skateboard, all during the Kenosha riots in 2020.  A fact checker then “fact checked” the claim about “perfectly legal” and determined it was false.  The facebook user was ultimately silenced or censored or deleted or whatever they do on “social media” when someone says something politically unpopular.

Thanks for the music and the memories, Diamond Dave!

"Gimme a bottle of anything. And a glazed doughnut. To go!"

Songs like Jump and Panama elevated both David Lee Roth and his band, Van Halen, from mere rock-star fame to household names.  Unfortunately, the dust had barely settled after the Hot for Teacher video when Van Halen started to breakup.  The boys did eventually get back together—albeit way too late and for only one studio album.  But in the 1980s, DLR was king of the rock world.  After releasing four platinum albums that decade with VH, Dave minted another three post-VH platinum records before the 80s ended: Crazy from the Heat, Eat ’Em and Smile, and Skyscraper.  I’m no music historian, but being a hard-rock lead singer with seven platinum albums out of seven tries, in a single decade, no doubt puts Dave in a truly elite class. 

In any case, about a year ago, Eddie Van Halen passed away.  And now, DLR has announced his retirement.  Retirement is not death, of course, though Dave seems to acknowledge that the inevitable isn’t too far way when he said: “Hey Ed, objects in the rearview mirror are probably me.”  (Sounds like Panama-inspired words of wisdom: “right behind in the rearview mirror now!”)  But although DLR still roams the earth, it feels to me like another small piece of my world has died—or at least is slowly fading from existence.  For me, Dave’s post-1984 music was a big part of my life, and is now intertwined with memories of better days.  So to keep those memories alive, and to celebrate his solo career, here are some of my favorite songs from my four favorite DLR albums.