Responding to more criticisms of the empirical studies on Wisconsin’s reasonable-doubt jury instruction

Prosecutors insist that Wisconsin’s jury instruction 140 on the burden of proof — which concludes by telling jurors “not to search for doubt” but “to search for the truth” — does not lower the burden of proof.  This raises the question: If it doesn’t lower the burden of proof, then why are you fighting so vigorously to preserve the offending closing mandate?  Why not just join the other 49 states that don’t use such qualifying language when instructing their juries on reasonable doubt?

Truth, doubt, and “whack-a-mole”

Before I can finish debunking one misconception about my studies on Wis. Jury Instruction 140 — studies available here and here — another misconception pops up.  It’s like playing a never-ending game of “whack-a-mole.”  It’s easy and virtually cost-free (in terms of time) for prosecutors and judges to launch these attacks.  But their criticisms are often so far off-base, or even bizarre, that it takes a lot of work to respond to them.  Pretty soon, however, I’ll have written so much on this topic I will simply be able to respond: “See law review article C, page six.”  Later this year I will publish the recently-completed Educating Judges and Lawyers on Social Science Research: A Case Study.  In it, I will address the latest set of attacks.  But if you just can’t wait — or if you can wait but you have a motion hearing coming up to modify J.I. 140 — you’ll find a bullet-point list debunking these new criticisms after the jump. 

Brendan Dassey, Wisconsin state courts, and the state of legal education [updated below]

The 7th Circuit Federal Court of Appeals recently affirmed the reversal of Brendan Dassey’s conviction.  The decision is 128 pages.  The main reason it’s so long is this: the Wisconsin appellate court failed to do any actual analysis when it originally affirmed Dassey’s conviction; instead, it merely repeated the applicable legal standard and then jumped to its conclusion — all in two very short paragraphs.  Therefore, the Seventh Circuit had to analyze everything from scratch.  This is something we Wisconsin criminal defense lawyers have to deal with regularly from some of our state’s trial and appellate courts: judges reaching their decision first, and then saying anything — or in Dassey’s case, nothing — to justify their predetermined outcome.  But what if I’m wrong?  What if the Wisconsin appellate court judges didn’t make up their minds ahead of time and were actually doing their best to reach a reasoned conclusion?

How far does the Wisconsin state bar bureaucracy reach?

After sorting through my email inbox today, I learned that the mandatory-membership Wisconsin state bar has something called a “leadership development committee.”  And for the low, low price of $300.00, Wisconsin lawyers can take part in the “G. Lane Ware Leadership Academy.”  This is the second annual gathering; the inaugural event “was a huge success!” 

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.)