Wisconsin Adopts Daubert and Federal Rule 702

While the recent legislative activity ( passage of special session bill #1) caused a fair amount of controversy, a section of the bill specifically addressed a long time concern for criminal practitioners. Wisconsin amended its rule of evidence governing expert testimony (907.02) to come into conformity with Federal Rule 702, effectively adopting the Daubert standard. Due to an adherence to the relevancy standard since the decision in State v. Walstad, 119 Wis. 2d 483 (1984), Wisconsin trial courts have routinely admitted 'expert testimony' in criminal cases that I would characterize as 'junk science." Police or other law enforcement advocates would be qualified as experts and be allowed to describe the character traits of undefined third parties (defendants or complaining witnesses/victims) in other cases (undefined and undisclosed) they were involved in and opine that the present case was 'consistent' was those character traits. Simply put, they were allowed to opine that the facts of the present case fit the same pattern of other cases involving guilty defendants. Hopefully, the above change will encourage trial judges to exercise some independent judgment and scrutinize this type of testimony with some skepticism.

For those unfamiliar with the Federal Rule and its potential impact, a good case to read as a starting point is the 2nd Circuit's decision in U. S. v. Mejia, 545 F.3d 179 (2nd Cir. 2008). The court begins the decision with a survey of the development of officer expert testimony in the 1980s and court's generally favorable response to the same. It noted that courts had analogized the testimony of agents regarding gangs similar to that of anthropologists. Such an analogy is flawed because social science research is subjected to peer review, sometimes with a contrary viewpoint that examine the methodologies used. In sharp contrast, police experts are generally seeking information that will bolster the likelihood of conviction and their methodology and opinions are not objectively critiqued.

Bottom line is that this provides an opportunity for good counsel to do good work on behalf of one's client.

Jeff Fisher at it Again

Heads up....a petition for cert is pending in the case of Barbour v. State of Louisiana. Petitioner was convicted of attempted second degree murder by a less than unanimous jury. On behalf of the petitioner, Jeff Fisher seeks to have the court revisit its decision in Apocada v. Oregon, 406 U.S. 404 (1972) which held that state criminal convictions are not required by the U.S. Constitution to be unanimous. Jeff's petition simply states the issue as follows: "Whether the Sixth Amendment right to jury trial, as applied to the States through the Fourteenth Amendment, allows a criminal conviction based on a nonunanimous jury verdict." Jeff is joined by two powerful amici; the National Association of Criminal Defense Lawyers and the American Bar Association. It is time that this anomaly be corrected.

Jeff after you finish this issue, how about joining me in taking on the lack of a reasonable doubt instruction (and a prohibition on arguing its meaning) in the Seventh Circuit?

Holiday Wish List

Some wishes for the upcoming year:

1. A good competent replacement is found for Nick Chiarkis as head of the state public defender.

2. The private bar rate is raised...very unlikely in light of today's economic realities

3. More jury trials occur in federal court....hopefully the jury system will be revitalized

4. Strip searches of defense counsel entering the federal building finally end

5. Judge Crabb can finally retire as a second judge is confirmed for the Western District

Feliz Navidad

I can't help it--UW Embarrasses Alum

While I have dedicated this blog to the advancement and protection of the 6th Amendment, this past weekend has weighed on my thoughts. The UW football team beat Indiana 83-20. I was embarrassed by the behavior of our head coach. For the third time this season, he made extraordinary efforts to run up the score on lesser opponents. Can we say sportsmanship? Or perhaps the complete lack of sportsmanship? While the pros and cons of college sports are outside the scope of this blog, the conduct of my alma mater is not. Well Biddy are you going to take a stand or keep quiet because of the $$$$?

Can 6th amendment help with wrongful convictions -- Massiah Issues

In State v. Lewis 2010 WI App 52, District II of the Wisconsin Court of Appeals faced the issue of a jail house informant providing information to the state in return for leniency about supposed inculpatory statements made by his cellmate while awaiting trial. Obviously, the cellmate (defendant Lewis) was represented by counsel during the time period that the conversations supposedly took place. In rejecting Lewis's Massiah (see Massiah v. United States, 377 U.S. 201 (1964)) claim (jailhouse inmate was acting at the direction of the state to elicit the statements circumventing his right to counsel); Judge Brown thoroughly analyzed the multifactor test for Massiah violations set forth in United States v. Henry, 447 U.S. 264 (1980). He found that 1) Lewis was in custody and 2) the informant was a fellow cellmate. However, as to the third factor, he concluded that the informant was not under the direction or control of the state and that the informant did not receive direction from the state. An informant's hope to receive a benefit does not create an implicit agreement that is a predicate for a Massiah violation. (see paragraph 23).

This decision does not mention nor make any reference to a study completed by the ABA Criminal Justice section discussing the problems of jailhouse informants and the frequency of wrongful convictions as a result of such testimony. An entire chapter is dedicated to jailhouse informants and the problems they present in the report entitled: Achieving Justice: Freeing the Innocent , Convicting the Guilty.

In other words what I am suggesting is that practical considerations and the reality surrounding the misuse of jailhouse informant testimony calls for a revisit to the parameters set forth in Henry with the goal of making the use of this type of testimony more difficult unless reliability is determined in advance in a Daubert type setting. The next time trial counsel faces the use of jailhouse snitch testimony...perhaps some use can be made of the social cost of wrongful convictions as justification to modify the Henry parameters

Stimulus Package for the Sixth Amendment: Part II and Farewell to William B. Moffitt

Haven't we imprisoned enough people? Haven't we deprived enough folks of their civil and human rights?...The war continues. As such, those of us who believe that fairness and due process are the cornerstones of any criminal justice system must continue to soldier on, hoping that human dignity and justice will prevail over ignorance. The struggle is never ending.

William B. Moffitt; April 2000

His defense of Dr. Sani al-Arian spokes volumes of his commitment to and belief in the effective assistance of counsel. He will be sorely missed. This acknowledgment is late but timely in our efforts to promote and protect the 6th amendment. Let us rededicate ourselves to working hard on behalf of our clients and not backing down to those who promote political expediency and momentary gain.

Remember, the Supreme Court has ruled that those who cannot afford to retain private counsel have the right to court appointed counsel in the following circumstances:
1. almost all contexts in which the state seeks to deprive liberty via the criminal justice system on direct appeal; Douglas v. California 372 U.S. 353 (1963)
2. in juvenile cases with risk of confinement; In re Gault 387 U.S. 1 (1967)
3. at critical stages of the process; Coleman v. Alabama 399 U.S. 1 (1970)
4. for an appeal of a sentence where the accused entered a guilty plea Halbert v. Michigan 545 U.S. 605 (2005)
Let us remember we are the holders of a great legacy and that we should work hard everyday. Not only for our own individual clients but also on behalf of those who do not have the financial resources to hire private counsel. Help your local PDs and appointed counsel whenever possible. The war continues. Go forth and fight.

Update: Attorney Rob Henak has filed supplemental motion seeking the recusal of Justice Gableman in the appeal of State v. Allen, 2007AP795 based in part on comments made by Gableman's counsel, James Bopp, at the disciplinary proceedings. As the motion states: "As such, Justice Gableman’s views and defense in his judicial ethics proceeding, as expressed through his attorney, reflect an absolute inability to be impartial in a criminal appeal such as this."
Enough said.

Stimulus Package for the Sixth Amendment

While the rest of the country is focused on health care, the adverse state of the economy has had an impact on the criminal justice system. More people out of work leads to more property crimes and other spontaneous acts of random violence. The WH has decided to stimulate the economy by the infusion of money. How can we stimulate the 6th Amendment?

As a starting point, all criminal defense lawyers need to reaffirm their own commitment to the profession. Do not speak ill of your clients. If you don't respect them how can the prosecution or the courts? Two, work every file. Your client expects it and so does the system. You're cheating yourself if don't work the file. Three, be proud of who you are and what you do. There are not a lot of people out there speaking for the first ten amendments and who they protect.

Congrats. U.S. District Court Judge Joan Lefkow from the ND Ill recently issued a decision criticizing the US Atty's office for knowingly presenting false testimony. All counts of conviction related to the witness in question were thrown out and a new trial was ordered.

It's refreshing to see a federal district court judge actually exercise some independence. We can only hope that the three nominees for the Western District of Wisconsin (Louis Butler, William Conley and David Jones) will demonstrate the same intestinal fortitude. BTW, congrats to those three. Let's help them do their job by being strong advocates.