The jury tax

The law states that a criminal defendant cannot be penalized merely for exercising a constitutional right, such as a jury trial.  But as defense lawyers know, penalties can sometimes be harsher if a defendant passes on a plea deal and instead proceeds to trial, and loses.  This isn’t always the case; in fact, because criminal statutes today cover such a broad range of innocuous behavior, it’s sometimes better for a defendant to have a trial, even if he ends up losing.  This way, the judge can see just how mitigated the “crime” actually was, and might take that into account when pronouncing sentence.  But the risk of receiving a harsher penalty for going to trial and losing—also known as the jury tax—is alive and well, at least in Wisconsin.

“It’s a Wall Street government.”

Our criminal justice system has two extremes.  On one end of the spectrum, we imprison people for decades for using marijuana or having consensual sex with their fellow teenagers.  On the other end of the spectrum, we turn the other way for the really harmful stuff.  For example, despite the blatant fraud and the trillions of dollars in public losses, those responsible for the recent financial meltdown were never prosecuted and rarely even investigated; instead, some of them walked away with hundreds of millions in bonuses while we bailed out their companies.  And that’s what the documentary Inside Job is all about.

An alternative to the jury system?

Criticism of the jury system is probably as old as the jury system itself.  But while criticizing is one thing, coming up with a better alternative is another.  And for years, I had thought that the jury system was pretty darn good as it is.  But then I got an idea: Why don’t we just let Nancy Grace decide?

J.D.B. v. North Carolina: Is the Supreme Court obsolete?

The recent Supreme Court case of J.D.B. v. North Carolina has generated all sorts of hoopla.  The Wall Street Journal Law Blog, for example, even claims that the ruling “expands juveniles’ Miranda rights”—an outcome that would be celebrated by some and condemned by others, no doubt.  A closer inspection, however, reveals that the case will have zero impact on juvenile rights, and, more significantly, that our Supreme Court is fast becoming obsolete in the area of constitutional criminal law.   

The criminal defense lawyer

On a few occasions I’ve been asked: “How can you defend someone that you know is guilty?”  Sometimes the questioner is thoughtful and genuinely inquisitive, in which case I’m more than happy to give a serious and thorough explanation.  (For starters, I’m not arrogant enough to believe that I can know what really happened or who is really guilty.)  Other times the person is simply condemning me and my profession, and really isn’t asking a question at all.  These instances call for more creative answers, e.g., “I like putting ax murderers back on the street.”  But reprinted below—with permission, of course—is a slightly edited version of a list-serve post by a fiery drunk-driving defense lawyer, Michele Tjader.  Her eloquent rant captures, in many ways, the essence of the criminal defense lawyer’s role in our democracy.

Why judges shouldn’t give legal advice

The law on plea bargaining can vary wildly from state to state.  But in some states, judges are not allowed to participate in the plea bargaining process; instead, the prosecutor and the defendant (usually through defense counsel) are left to negotiate a deal.  If a deal is reached, it is presented to the judge; if no deal is reached, the case can be set for a jury trial instead.  But not all judges like to have trials, especially when they’ve got a lot of other cases on their docket or they want to be somewhere else—“Fore!”—instead.  So if plea negotiations bog down, a judge might subtly nudge one side or the other to get the parties closer to an agreement. 

Does the jury find the defendant guilty, guiltier, or guiltiest?

In State v. Hansbrough, the prosecutor charged the defendant with first-degree murder.  When the case went to the jury for deliberation, they were given the option of convicting on that charge, as well as the “lesser included” charge of “felony murder.”  The jury eventually convicted the defendant of felony murder, but there was one problem: the judge never gave the jury a verdict form for the option of finding the defendant not guilty.  Instead, the judge only gave one option—guilty—on the felony murder charge.

On the media: Milwaukee journalists fail miserably; kudos to Kenosha News

I recently represented Mary Hein, a therapist who was accused of drugging, hypnotizing, and brainwashing a male patient in order to have sex with him and to convince him to murder her husband.  As you might expect, the Milwaukee news force was all over it: FOX6, TMJ4, WISN12, and CBS58 were all here in Kenosha with video camera in hand, running salacious stories on the “bizarre murder-for-hire plot.”  Local residents were interviewed (of course) and said “you don’t expect this close to home”; one was even “shocked something like this could happen.”  One station also went to the trouble of interviewing another psychotherapist about Mary Hein’s “abuse of power”: as a fellow therapist, he found her behavior “pretty offensive.”  Another station threw out a teaser for future stories: “The prosecution says there is more evidence and more witnesses to prove the allegations are true.”

Therapist Mary Hein cleared of “murder for hire” and “sex with patient” charges

I represent Mary Hein, a local therapist who was recently accused of hypnotizing, drugging, and brainwashing a patient in order to have sex with him, and then soliciting him to murder her husband.  The case was covered by the Associated Press, Milwaukee’s NBC and Fox affiliates, and other news organizations.  After several months of litigation, including motions in limine and other pretrial motions, all felony charges against Ms. Hein have been dismissed.  Our press release is reprinted below.

In defense of a defense: Lessons from Burns and Bvocik

In jury trials, judges often give prosecutors an incredibly wide berth in proving their cases.  Not only can they introduce direct evidence of the defendant’s guilt and motive, but they can also dredge-up the ancient past in the form of “other acts” evidence.  This places a dual burden on defendants: defend the charged crime and answer for decades-old allegations that often were never even charged, let alone proved.  But even more alarming, there is a double standard at work: when defendants have powerful and direct evidence of their innocence, courts will often go to great lengths to deny them the right to present a defense.  Two recent cases demonstrate this double standard, and teach us some valuable lessons in the process.