Sunday, May 21, 2017

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.

Friday, May 19, 2017

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.

Wednesday, May 10, 2017

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.)     

Wednesday, April 19, 2017

WPR - NPR Interview

Click the link to listen to my latest radio interview -- this one on Wisconsin Public Radio's "Central Time."  In it, we discuss my new book, Convicting Avery (Prometheus books, 2017), along with several aspects of Wisconsin's criminal justice system including our unconstitutionally low burden of proof, police interrogation tactics, and false confessions.  One of the callers, a former juror, raised a great point about Wisconsin's jury instruction on reasonable doubt.  Paraphrasing, he said: "The judge told us 'not to search for doubt.'  I had doubts about the case, but they weren't things that the lawyers had brought up.  So was I not supposed to consider those unless the attorneys raised them first?"  Finally, for more on my research and controlled studies on Wisconsin's unconstitutional jury instruction on the burden of proof, visit my articles page of  

Thursday, April 6, 2017

Guest blog post on Criminal Element

Check out my guest blog post, Steven Avery and the Criminal Justice Machinery, over at Criminal Element.  (Many thanks to the folks at Criminal Element for having me on as a guest blogger.)  In the post I give a brief overview of some of the serious flaws in Wisconsin's criminal justice system that led to the conviction of Steven Avery.  Whether you think Avery did it or was framed (or both or something else entirely), one thing is for sure: the jury's irrational, split verdict -- based on Wisconsin's constitutionally defective burden of proof, no less -- tells us absolutely nothing.

And for other true crime stories, including posts on Amanda Knox and excerpts from several books, visit Criminal Element's "True Crime Thursday" section.  Enjoy!        

Wednesday, April 5, 2017

New York Journal of Books: Review of Convicting Avery

More praise for Convicting Avery (Prometheus Books), this time from the New York Journal of Books:

"Cicchini skillfully examines and explains the legal how’s and why’s of these controversial convictions . . . while convincingly demonstrating that the injustices perpetrated against Avery and others were not an unusual occurrence.   . . . [T]he author’s writing style and concise analysis allows those not familiar with legal terminology to easily comprehend the complexities of the case.  Overall, Convicting Avery is a revealing and fascinating read that will interest readers of true crime, criminal law, or American legal procedures."

Anything you say (or don't say) can be used against you

We all know that people confess to the police because they think they're helping themselves.  Sometimes these confessions are true and sometimes they're false, but in both cases people confess because they are (wrongly) convinced that doing so is in their best interest.  For example, the police often minimize the event by saying, "If you admit your involvement now, everything will be okay and it's not a big deal; but if you keep lying to us by denying it, then you'll really be in trouble."  Or, sometimes the police present the classic false dichotomy: "You have only two choices: (1) You did this, you meant to do it, you're a monster, and you're going to prison for the rest of your life; or (2) You didn't mean to do this, so-and-so is really the one who did it, you're involvement was minimal, and if you help us out we'll take care of you and you'll be just fine."

Tuesday, April 4, 2017

Convicting Avery: The Bizarre Laws and Broken System behind "Making a Murderer" (Prometheus Books)

My new book, Convicting Avery, is now available.  You can find the book at retailers everywhere, including at amazon.  The book has received several positive reviews, including those from the New York Journal of Books, Publishers Weekly, Kirkus, and Blog Critics.  Enjoy!

Saturday, April 1, 2017

Thank the Marquette Warriors for March Madness

Only fifteen teams have won multiple national titles.  In this year’s Final Four, Oregon will be going for its second, North Carolina for its sixth.  But March wasn’t always Mad, and the tournament was always “the tournament.”  When Oregon won its first title in 1939, the Big Dance was anything but: it was an eight-team field played in a tiny gym with only a couple thousand fans in attendance.  And for many decades, the NIT was the more prestigious tournament.  The NIT fielded more teams and better teams, and it was played in a high-profile venue at Madison Square Garden.  Well into the 1970s, getting much-desired media coverage and good recruits depended on getting into the NIT and being seen in New York.

Friday, March 24, 2017

Dirty Little Secrets (of Law Review Publishing)

The vast majority of law review articles are written by law professors and professor-wannabes.  And among this group, prestige is the most important thing when placing an article.  Many professors admit that few people will ever read their writing, but their colleagues will read their CVs.  Therefore, a publication in the Duke Law Journal means an article is really good, the Washington Law Review means it's okay, the Hastings Law Journal means it barely earns a passing grade, and anything below that, well, many professors believe their work is better left unpublished than to associate it with journals of schools ranked below 60 in the US News & World Report.

Thursday, March 9, 2017

Remaking a Murderer (by Bill Lueders)

Fans of Making a Murderer should be sure to read Bill Lueders new article in the Isthmus, Remaking a Murderer.  In it he discusses the four books on the subject, including my soon-to-be-released Convicting Avery (Prometheus Books, April 4, 2017).  For other reviews of my book see Publishers Weekly and Kirkus Reviews.  And stay tuned for my forthcoming guest blog post on the Criminal Element blog, as well as one more Avery-related column at the Wisconsin Law Journal.  

Tuesday, March 7, 2017

Convictions Based on Character: An Empirical Test of Other-Acts Evidence (forthcoming, Florida L. Rev.)

When it comes to the state using other-acts evidence at a defendant’s trial, the words of Henry Fool ring true: “So my word is not enough; my promise worthless; the fact that I have served my time nothing but the emblem of my continuing guilt.”  In other words, despite the courts’ assurances that “we try cases, rather than persons,” a defendant never really gets a fresh start; he is always haunted by his past.  And the other-acts evidence doesn’t have to be in the form of a prior conviction.  Even a decades-old, uncharged allegation can be used against a defendant.  And even if the defendant went to trial and beat the prior case, the other acts might still be used against him.  (Here, prosecutors abandon their “trials are about truth” mantra and instead argue that a prior acquittal only means that the other acts weren't proved beyond a reasonable doubt.)

But don’t worry for the defendant who must fight not only a current allegation but also age-old unproven, or even disproved, allegations.  The trial judge will give a cautionary instruction which is presumed to wipe all prejudice from the jury’s mind.  So in our most recent controlled-study-turned-law-review-article, my coauthor Lawrence White and I tested this claim.  In so doing, we found that cautionary instructions are not effective and jurors will use other-acts evidence for impermissible purposes, including the forbidden character inference.  To learn more, including some possible approaches to countering other-acts evidence on behalf of your clients, see the pre-publication draft of our article, forthcoming in the Florida Law Review, titled Convictions Based on Character: An Empirical Test of Other-Acts Evidence.

Saturday, February 25, 2017

Robot Lawyers

Summer Glau as "Cameron"
When I was recently writing a brief on a complex and nuanced constitutional issue, I couldn’t help but think how much faster and better “Cameron” could have done the job.  Cameron is the (for now) fictional A.I. from the outstanding but short-lived Sarah Connor Chronicles.  Within mere seconds she could have read and understood every statute, court opinion, and law review article ever written on the issue.  And in just a few minutes more she could have assimilated the relevant sources into a persuasive legal brief that would have put even my best writing to shame.  For now, Cameron is fictional.  But two other robots named ROSS and RAVIN are real.  And here’s a newsflash: ROSS and RAVIN are not coming for lawyer jobs; rather, they’ve already taken them.  

Is the Wisconsin State Bar’s conflict of interest self-imposed?

The Irreverent Lawyer just wrote about the current bill in Arizona that would turn their bloated and pricey state bar from a mandatory organization into a voluntary one.  One of the problems with these mandatory bars, he explains, is that they have an inherent conflict of interest.  And by separating the lawyer regulation function from the trade association function (in which membership would become voluntary) the conflict of interest disappears.  That is, a voluntary bar, separated from the lawyer regulation function, would no longer be torn between serving the general public and working on behalf of its membership.  But in Wisconsin, the lawyer regulation function (OLR) is already separate from the mandatory bar (although the bar seems to keep its fingers, to some extent, in the lawyer regulation pie).  So given its separation from the OLR, why does the Wisconsin State Bar consistently work with the OLR and against its own membership?  The bar does claim to also work for its dues-paying membership, so it does operate under an obvious conflict of interest.  Yet, given its supposed independence from the OLR, it seems that the Wisconsin State Bar’s conflict of interest is self-imposed.

Friday, February 24, 2017

State Bar of Wisconsin seeks donations to honor executive director’s “service”

I recently got an email from the Wisconsin Law Foundation (an arm of the state bar) signed by the bar’s president.  The bar is seeking donations so it can host three separate send-offs to honor its retiring executive director (E.D.).  Donations correspond to increasingly hierarchical titles.  For example, a $250 donation buys me the title of American Counselor, whereas $1,000 buys me the far more prestigious title of English Barrister.  (The titles of “landed gentry” and “aristocrat” are apparently not available.)  Donors’ names, along with their newly acquired titles, will appear on the party invites for all to see.  From what I can tell, the donations fund the three retirement parties and these parties, in turn, “will focus on raising support for the good work of the Law Foundation.”  So I’m not sure if the bar will hit up the party-goers for additional donations or if there will be some sort of raffle — the email isn’t entirely clear.  Equally unclear is how much we lawyers have been paying the E.D. for his years of “service” that the bar is so eager to celebrate.