Sunday, June 28, 2009


If you needed someone to pitch the 7th game of the World Series, who would you have pitch? Sandy Koufax, Bob Gibson, someone else? If you have a sixth amendment confrontation issue on its way to the Supreme Court, who would you have represent you and argue the case? There is no question but the answer would be Jeffrey Fisher from the Stanford Law School. Jeff first burst on the scene with two huge wins in the Supreme Court in 2004 on behalf of criminal defendants grounded in 6th Amendment jurisprudence. See Blakely v. Washington, 542 US. 296 (2004) (6th Amendment right to trial by jury was violated where facts supporting the sentence were not admitted by the defendant or proven beyond a reasonable doubt to a jury) and Crawford v. Washington, 541 U.S. 36 (2004) (6th Amendment requires that the defendant be provided an opportunity to confront at trial, the declarant of testimonial statements). While he has handled other cases before the Supremes, it is his track record in the 6th Amendment arena which stands out.

Last week provided another case in the win column for Jeff (in the interest of full disclosure I do serve on NACDL's amicus curiae committee of which he is the chair). The Supreme Court in the case of Melendez-Diaz v. Massachusettes, in a 5-4 decision, held that the case involved "little more than the application of our holding in Crawford v. Washington, 541 U.S. 36. The Sixth Amendment does not permit the prosecution to prove its case via ex parte out of court affidavits, and the admission of such evidence...was error." I will leave it to others to analyze the nuances or the significance of the decision being only 5-4 (technically 4-1-4). See The Confrontation Blog.

For immediate practice purposes two points must, however, be made. Justice Scalia, in pointing out the fallacies of the dissent and the state, emphasized that the ability to subpoena a witness is no substitute for the right of confrontation. He further noted that the burden is on the prosecution to present its witnesses and not on the defendant to bring in adverse witnesses. Second, in a serendipitous sort of way, the majority addressed the general overall failings of forensic evidence. The commonwealth had argued that the forensic science affidavits at issue in the case should be treated differently because they were the result of neutral scientific testing in contrast to testimony recounting historical events. All anyone had to do was to have read some portion of the report issued in February of 2009 by the National Academy of Science. With the exception of nuclear DNA analysis, the forensic evidence and its supporting methodology being introduced in criminal cases has failed to meet the necessary standards of certification, peer review, and effective oversight.

Sidenote: Local lawyers still wait for the Governor to make his selections for the Dane County bench. With a number of new judges (including the impending selections) on the criminal rotation there is a fair amount of concern as to who will be making future decisions. And, oh yeah, Brent Favre will never be forgotten.

Sunday, June 21, 2009


The previous discussion about ethically permissible investigative techniques involving FaceBook led to a related question this past week on NACDL's listserve. A question was posted inquiring whether it was permissible to record phone calls by a lawyer with a potential witness without consent or disclosure of the taping to the witness. Assume for a moment that a lawyer or an investigator acting on the lawyer's behalf candidly identifies themselves and their interest in the proceedings; i.e., the party whom they represent. However, they do not disclose that the phone call or the meeting is being tape recorded. Is this deceptive conduct under Rule 8.4? While the ultimate answer is dependent on all of the facts and circumstances of the interview, the conclusion is that the lawyer has probably not violated any ethical canons.

Ethical considerations are not the only problem for the lawyer. Depending on the state in question, the surreptitious recording of the conversation may violate the criminal code. In Wisconsin, Sec. 968.31, Stats., allows the recording of such phone calls as long as one party consents and the recording is not for purposes of furthering a criminal or tortious act.

The former Board of Professional Responsibility for the State of Wisconsin issued a formal ethics opinion on this exact question about 15 years ago. That opinion identified as E-94-5 concluded that there was no outright prohibition of such a recording but the lawyer had to be careful to consider a variety of ramifications when making such a recording. Importantly, the opinion made clear that a lawyer may never record a phone call or meeting with a client without the client's knowledge and consent.

The bottom line is that a lawyer needs to review 968.31 and E-94-5 before deciding to record or directing the investigator to record a witness interview. The lawyer also needs to be aware that such a recording will likely become discoverable evidence!

Sidenote: While much of the local buzz centered around the potential judicial choices for state and federal court, there was an extensive evidentiary hearing on the Amos Mortier case in Federal Court this past week. If there is a practice lesson to learn it is to make sure that any immunity agreements should be court ordered, or as a second choice, written.

Sunday, June 7, 2009


It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. Rompilla v. Beard 545 U.S. 374, 387 (2005) This constitutional duty to thoroughly investigate sometimes comes into conflict or overlaps with an individual lawyer's ethical obligations.

It is well known (especially in a college community such as Madison, WI) that witnesses will post personal information on Facebook or MySpace. This personal information may include not only discussion about the case in question but also potential impeachment material. How far can defense counsel go in attempting to access and secure this data? How does one balance the constitutional requirement of providing effective assistance of counsel with various ethical rules?

Recently, The Philadelphia Bar Association Professional Guidance Committee issued an opinion which impacts on approaching the Facebook/MySpace issue. Counsel asked for an opinion as to the propriety of having a 3rd party (who would truthfully identify himself but would not disclose his relationship to the lawyer) seek to be a "friend" of the witness and thus be able to access the witness's personal Facebook pages and provide any relevant information observed back to counsel. The committee determined that the proposed course of conduct would violate Pennsylvania Rule of Professional Conduct 8.4(c) because the planned communication by the third party with the witness was deceptive. The opinion goes on to find that the conduct would also violate Rule 4.1(a) and cites to a couple of law review articles and state supreme court decisions.

Does this impact on the criminal defense practitioner in Wisconsin? Significantly, the Philadelphia Bar Opinion involves a civil case and not a criminal case. While criminal defense lawyers have the same responsibilities to their clients and the public as do civil counsel, criminal defense lawyers must take into account constitutional criminal procedure and the additional burden that they hold a person's life in their hands. The seriousness of the consequences do not justify ignoring ethical obligations. However, the constitutional considerations definitely impact on the reach and ultimate applicability of the ethical rule in question. Indeed, that was just the finding which caused the OLR case against fellow Madison defense counsel Steve Hurley to be dismissed. Rule 8.4(c) is not infinitely broad and is qualified --especially when it unduly interferes with a criminal defendant's constitutional right to effective assistance of counsel.

OFF TOPIC...recently it was reported that Jerry Koosman of the 'Miracle Mets' pled guilty to a criminal tax charge of failure to file in the Western District of Wisconsin. I show my age by recalling that the Sports Illustrated article celebrating their 1969 World Series victory was entitled "Never Pumpkins Again." Oh the irony! What most older locals really recall is the collapse by the Cubs during September of that year. Koosman, 17-9, was the second pitcher of a rotation featuring Tom Seaver, Gary Gentry and Nolan Ryan. Once again a lesson that we should not put athletes on a pedestal.