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.    

Saturday, February 18, 2017

More praise for "Convicting Avery"

Dana Heyde at Goodreads wrote:  “This book prompted me to engage in yet another round of discussions about Avery and the injustice of the legal system. [Cicchini] made dull laws fascinating to discuss, and I would recommend it to everyone who thinks they could never be wrongfully accused of a crime and then convicted of it.

Also read the earlier reviews from Publishers Weekly and Kirkus Reviews. 

Bill would protect free speech on UW campuses

I used to think that the only constitutional rights in danger were those associated with criminal law.  A classic example is the Fourth Amendment.  When a defendant moves to suppress physical evidence (typically a small amount of marijuana) in a criminal case that was set in motion by an illegal search, courts will bend over backwards to find that no Fourth Amendment violation occurred.  And even when they are forced to concede that the defendant’s rights were, in fact, violated, they insanely conclude that the defendant is not entitled to suppression of the illegally obtained evidence.  (For more on this mind-boggling state of affairs, see this article.)

"Fourth-Tier" Legal Education

A common trend among law schools was to hire professors who had very little or no experience practicing law, but who had graduated from elite law schools.  Then the trend became hiring JDs who also had a PhD — preferably in the field of economics.  Then the trend became hiring candidates with PhDs only.  That’s right: law professors who never went to law school.  And unfortunately, the lower ranked schools, in a desperate attempt to keep up their peer-reputation scores in the US News law school rankings, followed suit and copied the trend.  In a 2012 essay titled Three Rules for Educating Tomorrow’s Lawyers, I argued that these fourth-tier schools should instead go in the opposite direction of the elites:

Friday, February 17, 2017

Follow Knightly on email (and other gadgets)

If you're not already subscribed, be sure to sign up for The Legal Watchdog via email -- or via the little orange icons, if that's more your thing -- on the right-hand column of the blog.  And please share your favorite posts on the facebook or twitter or the other "social medias" that the kids are using.  (I still watch television on my television, surf the web on my computer, and communicate via email and telephone, so I need the help of the more tech-savvy readers to spread The Dog's wisdom to a wider audience.)

I've also changed the blog's font color to make it darker and, hopefully, easier to read.  And now the hyperlinks and blog titles won't go dim once you've clicked on them.  As for finding specific posts, scroll down and in the right-hand column you'll find a gadget that lets you filter posts by subject matter, e.g., criminal law, free speech, state bar, etc.  If you're viewing The Dog on your phone and can't see the right-hand column, scroll to the bottom and click "web version," and all of these features will appear out of nowhere.

Finally, don't forget about Knightly's reading list at the bottom of the right-hand column.  There you'll find links to all sorts of chocolately cookie goodness, including The Dog's longtime friends The Irreverent Lawyer (bar news and first amendment) and Life Sentences (criminal law and sentencing), as well as newcomers On Point (Wisconsin criminal law case summaries) and The College Fix (free speech on campus).

Thursday, February 16, 2017

State Bar of Wisconsin to the rescue!

Donald Trump recently criticized a federal judge by calling him a “so-called judge” and arguing that the judge’s suspension of Trump’s executive order put the country at risk.  So of course, the Wisconsin State Bar’s “52-member Board of Governors” had to swing into action and adopt “a unified statement” to protect the federal judiciary from the impact of free speech.  Personally, I have no opinion as to whether Trump’s criticism is accurate, but I have serious problems with our state bar — an organization that we Wisconsin lawyers are forced to join and fund — making this so-called unified statement.

Tuesday, February 14, 2017

Convicting Avery (and Dassey)

I've heard a lot of nonsense come out of the mouths of government agents, but this is rich.  You can hear the oral arguments in the state's appeal of Dassey's case here.  The government's lawyer is trying to sell the same nonsense to the Seventh Circuit that the agents sold to Dassey in their interrogation, e.g., "they were just after 'the truth' your honors."  The lawyer also claims there were not even implied promises of leniency made to Dassey.  (I guess promising Dassey that he wouldn't be arrested if he agreed to confess doesn't count as a direct or even implied promise of leniency.)  If you go to Netflix and watch episode three of Making a Murderer, you can see part of the interrogation as well as Larry White's explanation of how the interrogators' repeated directives to "tell us the truth" really meant "tell us what we want to hear."  (And, to guide Dassey in the right direction, they even told him what, specifically, they wanted to hear.)

Monday, February 13, 2017

"Roger that"

I don't care much (or at all) for the NFL, and I didn't have much of an opinion on Tom Brady until the super bowl when he threw that pick-six.  The impressive thing was that, after he threw it, he dove to try to stop the much more athletic defensive player from scoring.  As a viewer, I genuinely appreciated the effort.  And even though Brady didn't come close to stopping the touchdown -- he looked well out of his depth trying tackle a superior athlete -- he did go on to win the super bowl MVP (again) by leading the biggest comeback in the game's history.

Despite not being a fan of Brady's until (oddly) that pick-six, I had been routing for him in his fight against Roger Goodell in the deflate-gate fiasco.  And there was good reason to do so, as there was certainly a lot of evidence on Brady's side.  Granted, a Brady win in court would not have been like an indigent defendant winning a criminal jury trial.  Rather, a Brady win in court would have been more like "the man" sticking it to "THE MAN."  But still . . .

Anyway, Brady did beat Roger but only temporarily -- or so it seemed.  It turns out that Brady got the last laugh in the end.  Despite serving a four-game suspension earlier this year, he won the super bowl.  He won the MVP in the super bowl.  Roger was forced to praise him in public and present him with his trophies.  And then Brady got to run this post-game commercial. 

         

An open letter to our next state bar president

I recently received a mailing from Jon P. Axelrod who is running for state bar president.  He provides a bullet-point list of some things he wants to accomplish.  I have an opinion on three of those things.  First, Axelrod wants to “provid[e] money to forgive student loans” to encourage law school graduates to practice in “underserved areas of Wisconsin.”  I’m not sure where this money would come from, but this debt-forgiveness frolic had better not be funded by our bar dues.  As the Irreverent Lawyer has shown us, Wisconsin’s state bar bureaucracy is already one of the most expensive in the country.  Also, there’s simply no need to encourage new lawyers to take jobs.  There is a glut of lawyers in Wisconsin already, and they’re scrambling to find work. Only 64 percent of UW grads and 62 percent of MU grads from the class of 2015 found long-term, full-time legal jobs.  

The Battle over the Burden of Proof: A Report from the Trenches, 79 U. Pitt. L. Rev. __ (2017)

I've recently coauthored two articles with Psychology Professor Lawrence White on Wisconsin's burden of proof jury instruction. The articles (available here and here) are based on our two controlled studies that empirically prove what was already obvious from a linguistic and logical perspective. That is, when a burden of proof instruction concludes by telling jurors "not to search for doubt" but instead "to search for the truth," the court is lowering the burden of proof below the constitutionally guaranteed reasonable-doubt standard. In both studies, mock jurors who were so instructed convicted the defendant at significantly higher rates than jurors who were simply and properly instructed on reasonable doubt.

Sunday, February 12, 2017

Advance Praise for "Convicting Avery"

My forthcoming book, “Convicting Avery: The Bizarre Laws and Broken System behind Making a Murderer,” recently received two great reviews. 

Publishers Weekly writes: “Cicchini convincingly demonstrates that the Kafkaesque criminal justice in Avery’s case was not an anomaly, and his work is an accessible entree into the debate over how defendants’ rights should be protected.”

Kirkus Reviews writes:  “Overall, Cicchini makes his case clearly. . . . [Convicting Avery] will engage fans of the series and readers who wonder if prosecutors really do cut corners in their campaigns against serious criminals.”
The book will be released on April 4th, and can be pre-ordered on amazon.com.