The Jensen Defense

Many people watched with bemusement as Illinois governor Rod Blagojevich stood at his news conference last Friday and proclaimed his resolve to fight the criminal charges against him as he expressed his confidence that the truth will set him free.  Is this man mentally ill or is he an extremely shrewd politician?

Reading between the lines of how the case has developed in the news recently, it is very likely that the truth will set him free.  A deal may have already been struck, and it will come quickly, and it will be very favorable to the embattled governor.

How do we  know this?    Firstly, there is one obvious truth overshadowing the entire affair.  There is no chance that Rod Blagojevich is the lone corrupt policitician in Illinois government.  This being the case, there are certainly many present and former Illinois politicians who have been lying awake recently worrying about what Blagojevich might tell federal authorities.   In federal court, information is king- it is the currency that buys freedom.   Under Rule 5K1.1 of the Federal Sentencing Guidelines, the government handsomely rewards those who provide “substantial assistance” to the government.   So, in a very real sense, the “truth” will set Blagojevich free- that is, if he is forced to rely upon “substantial assistance” to help himself.

There are many people in positions of power who would like to make sure it never comes to that.  Blagojevich’s proclaimation that the truth would set him free was a threat, and those who were the object of the threat heard it loud and clear.   This is why the Illinois United States Attorney who is prosecuting Blagojevich stalled the state impreachment proceedings on the grounds that it would “compromise the criminal proceedings.”      State impreachment proceedings would be a disaster- and Blagojevich knows it.   The lax rules of evidence and the wide-ranging rules of relevance would permit Blagojevich to tell all he knows about everyone he knows in Illinois government.   Consequently, Blagojevich knows, too, that his resignation as governor is a “valuable thing”.   He is not just going to just give it away.   

So, we can all expect Blagojevich to go away quietly with little or no criminal consequences in federal court.   When it happens, those involved will hold a news conference and proudly proclaim that a costly, uncertain, and divisive criminal trial of the sitting governor of Illinois has been avoided.  Governor Blagojevich has agreed to resign.   In return for this “valuable thing” the criminal charges have gone away.  

Business as usual.

As a criminal defense lawyer I usually view new laws and “government programs” with a healthy dose of skepticism.  For example, I am still scratching my head over Missouri’s new “cyberbullying” law.   However,  when one of these programs provides objective and tangible results it deserves to be recognized.

One such program is the “Amber alert.”     The program had fatal results yesterday when Walworth County sheriff’s deputies, responding to an Amber alert shot dead a man who had abducted his young daughter from her home in Kenosha.    Two points must be made: (1) As tragic as the results may have been for the man’s family the child, and the child’s mother, are probably very grateful; and, (2)  The program plainly works.    He got barely thirty miles away before he was stopped by police.

I have long wanted to have a television show called, “What Were You Thinking?”  Each episode of the show would feature a person who has made famously stupid decision.  First I would set the stage by asking questions establishing the relevant factors the person should have considered.  Then I would recite the person’s blunder and ask, “What were you thinking?”

I already know who my first guests would be- they would be the judge and the prosecutor in Clintonville who, in effect, testified against a 71 year old man during his fifth offense drunk driving trial.   On Friday, June 13, 2008 the Wisconsin Supreme Court reversed the conviction of Donald Jorgensen.   The reversal was required because on the occasion of his sentencing for his fourth offense in 2004  Jorgensen showed up drunk before the Hon. James Habek.  The prosecutor at the time was Catharine White.      Later, at the trial of Jorgensen’s fifth offense, White (with Judge Habek’s approval) thought it would be a good idea to read to the jury the transcript of Jorgensen’s fourth offense sentencing.    

The Supreme Court found a few problems with this including the fact that it made the judge and the prosecutor witnesses against Jorgensen- and witnesses who could not be cross-examined to boot.    What were they thinking?

Of course, the next guest on my program would be Jorgensen himself.   Q:  You were going to court to be sentenced for your fourth offense OWI?  A:  Yes.    Q:  And so you go out drinking on your way to court?   A: Yes.     

What were you thinking?

Michael McGee’s trial started today almost one year since the time he was arrested and charged.    During all this time McGee has attempted live like Schrodinger’s Cat.   Schrodinger’s Cat is a theoretical situation in which there is a cat in a box along with a vial of poison.  The poison will be released under certain circumtances and, presumably, the cat will die.  However, until we open the box to check on the cat the cat continues to live in this dual state of being both dead and alive.

 McGee, like Schrodinger’s cat, has being living in this dual state of being both guilty and not guilty.   This week the jury will open the box and we will find out which one it is.

Professors in law school are fond of saying, “Tough cases make bad law.”

It is difficult to imagine a more tragic case than the Mark Benson case.   Benson, of course, is a disgraced surgeon who, allegedly while high on prescription drugs, crashed into a another car killing a beloved Oconomowoc teacher and her unborn daughter.   Of course, it took the politicians approximately 24 hours to introduce new OWI laws in response to the incident.    They want to make a third offense OWI a felony.    Today’s Milwaukee Journal-Sentinel reports that area district attorneys are concerned with the law because it will further burden and already over-burdened prison system.   

This is just another case of a tough case making bad law.   If we, as a community, were truly serious about putting a halt to operating under the influence of drugs or alcohol then we would pass an absolute sobriety law.   In other words, if you are operating an automobile on a public roadway you must not have any drugs or alcohol in your system-  just as the law for airplane pilots requires.

The present state of the law is truly unfair.   The reason why it is against the law to drive an automobile while you are under the influence is because the alcohol impairs one’s judgment.    It is preposterous, then, to have a law that requires a person to make a life-or-death judgment call (i.e. whether to drive or not) after they have already been drinking.   This is not fair to the person making the decision and it is not fair to the other people on the road who may be endangered by a poor judgment call.

It is the fashion to blame the powerful Wisconsin Tavern League for lobbying against any effort to pass an absolute sobriety law.   As the argument continues, we abide a certain amount of carnage on our highways just because a group of tavern owners do not want to lose a little business.    I don’t think this is the complete explanation, though.  If the voters really wanted an absolute sobriety law we would have such a law.   The lawmakers would not fear the Tavern League if the lawmakers felt sure that a vast majority of the voters favored an absolute sobriety law.  So the only fair conclusion is that a majority of the voters do not favor such a law.  The voters prefer to drink at a tavern, or a restaurant, or at a Brewer’s game, and to then drive home.    These same people then profess to be shocked by cases like the Benson case.   When they go to bed at night, though, they have to be thinking that, “But for the grace of God there go I . . .”

Today was quite a day for police news.  Al Sharpton was arrested for protesting the acquittal of the New York City police officers who shot unarmed Sean Bell fifty times on his wedding day.   Meanwhile, video of the Philadelphia police beating was all over the air.

What is remarkable is that the people who appear in the “man-on-the-street” interviews always seem surprised.   Whether or not unreasonable police violence against citizens has been on the increase is beside the point.  The citizens of this country bear a share of the responsibility for these incidents.   Why?

The Founding Fathers, fresh from the governmental abused heaped on them by the King of England, took great pains to create buffers between the awesome power of the government and the people the government is supposed to serve.  Some of the buffers are “jury trials”, “search warrants”, and ”judges”.

Nonetheless, we consistently have juries convicting innocent people- usually because there is a sympathetic victim.   We have police officers, all wrapped up in the “War on Drugs”, barging through the doors to people’s home on the flimsiest of probable cause provided by confidential informants.  And, worst of all, we have candidates for the Wisconsin Supreme Court running ads on television suggesting that there is something morally wrong about a lawyer defending persons who are charged with crimes. 

So, when you come across the stories of police abuse, it is unseemly to act surprised.  What did you expect?

Just when I think I have put the Wisconsin Supreme Court election behind me I read and hear things that bring it all back.   I just can’t help myself.

Today the “Proof and Hearsay” blog in the Milwauke Journal-Sentinel reports that United States Circuit Court of Appeals Judge Terrence Evans said of Justice Gableman, “We may be giving a wristwatch to fish.  Who knows?”

Yesterday on my drive home from work I heard Mark Belling talking about how the “libs” are just miffed because their guy lost (referring to the suggestion that justices should not be elected).  Belling went so far as to say that Butler lost the election because of one case- Butler wrote the majority opinion in the infamous lead paint case (as though Butler decided that case by himself).    According to Belling, this prompted the business community to recruit “their guy” from northern Wisconsin. 

Belling was probably ignorant of the fact that his comments on the issue were the best possible argument  for not electing justices.  

We simply should not elect justices because they have promised during their election campaigns to decide an issue in a certain way.   The legislature is elected to make laws according to the will of the people.  The Supreme Court interprets and applies those laws.  We need competent jurists on the court- not a politician who has promised his wealthy benefactors to decide issues in a certain way. 

And just so Belling knows, I have no reservations about conservative justices on the Supreme Court.   The United States Supreme Court proved again today that a strict construction of the law is best.   The court held that “operating under the influence of alcohol” is not a “violent crime” for the purposes of the federal armed career criminal statute.   The court resisted the temptation to jump on the “nobody-likes-a-drunk-driver” bandwagon.  They just applied the law as it was written.   Good for them.  I hope Justice Gableman took note.  

The Milwaukee Police Department now has its own page on YouTube.   Apparently they plan to post all of the video they have collected of crime scenes in the hope that the perpetrators can be identified by the YouTube Nation. 

I hope it works.   But I must say that it is interesting to me that in fifteen short months the MPD has gone from not knowing how to work a video camera to posting on YouTube.

Before January 1, 2007 we defense lawyers used to spent hours and hours working our way through “Miranda-Goodchild Hearings.”   These are the hearings that are required before a defendant’s confession to police may be used as evidence.  The point of such a hearing is to determine whether the defendant’s statement was voluntary and whether he was properly given the Miranda Warning (”You have the right to remain silent . . . blah-blah-blah).    In the bad old days the defendants would consistently claim that they were not read their rights, that  they asked for an attorney and weren’t given one, and that  the police beat the confession out of them.

The detectives, for their part, would always testify that none of this was true.   

Then I would cross-examine them about why the interrogation was not video recorded or audio recorded.   Remarkably, they would answer that it was not their policy to record interrogations.  Then, if pressed, they might say something like, “We don’t have any video cameras” or “Nobody knows how to manage that.”

The Supreme Court eventually held that in this day-and-age, where you can’t walk down the street without being video-recorded several times, police interrogations must be recorded starting January 1, 2007.    Since then I have had exactly zero Miranda-Goodchild hearings.    I have spent a lot of time, though, watching these video-recorded interrogations.

It turns out that the defendants usually don’t ask for an attorney.  I have not seen the police beat a confession out of any suspects.   The detectives always read the Miranda Warning. 

 And it seems like there are remarkably fewer “confessions.”

Now that the dust has settled from last week’s Wisconsin Supreme Court elections we should ask ourselves a hard question:  Should Wisconsin elect judges- and, in particular, should we elect Supreme Court justices?

It sounds patriotic to proclaim “power to the people”- don’t take away our right to vote-  but in the case of the last judicial election is Wisconsin Supreme Court really better off now that Justice Gableman has been elected?   Because of the campaigns run by both candidates it is likely that many people in the state thought that no matter whom they voted for they were going to get a judge who was dishonest, cowardly, and friendly to sexual predators. 

Beyond that, though, only lawyers could appreciate just how dishonest Michael Gableman was in his campaign rhetoric.   On the morning of the election I turned on the television and was treated to the theater of the absurd.  It was Judge Gableman proclaiming at a news conference that we need judges who will follow the law and who are not “activists” from the bench.  Just after that a Gableman campaign ad came on depicting “Loophole Louie” and then implying that Butler was somehow personally responsible for a child who was sexually assaulted after Butler successfully argued a “loophole” in the law.

Firstly, let us define our terms.  A “loophole” is nothing more than a provision of law- or, more precisely, a gap in the law.    Strip away Gableman’s emotional rhetoric and his ad would merely point out that Louis Butler, while working as a public defender, successfully argued a provision of law that a judge followed and the defendant was released.    But to hear Gableman’s campaign say it you would think that Butler secretly gave the judge a lunch bag full of cash to secure his client’s release.

Maybe it is just that the law operated to the defendant’s benefit that irritates Judge Gableman.   But if that is the case how, exactly, will Justice Gableman “follow the law” if it benefits the defendant?  How will he refrain from being an activist judge if there is a gap in the law (i.e. a loophole) that benefits a defendant?  Will he (God forbid) legislate from the bench to close that gap in the law to assist his “allies” in law enforcement?

The point is not to rehash the campaign.  The point is that the campaigns played on the ignorance of the public when it comes to matters of criminal law.   It is for precisely that reason that the governor should appoint judges.   The public simply does not know what, or whom, they are voting for.

The Wisconsin Supreme Court race is one of the few judicial elections that could make a profound difference- but there is another.  It is the race for an open position on the Milwaukee County Circuit Court.   This election presents such a stark contrast between the qualifications of the candidates that if the voters make a misake it could have an equally profound impact on the residents of Milwaukee County.  

The candidates are Rebecca Dallet, currently a Milwaukee County court commissioner and formerly a prosecutor with the district attorney’s office, and Jeffrey Norman, currently working as a City of Milwaukee police detective. 

Dallet is the only choice.

In order to be a good and effective judge one must have  broad experience in the law, one must have have trial experience, and one must have the ability to weigh the legal merits of an argument fairly and impartially.  Dallet meets all of these criteria by virtue of her work as a prosecutor.

Norman, on the other hand, has virtually no courtroom experience except for a brief stint as an assistant district attorney.  My observations of him in court during that period convince me- and I am struggling for a nice way to express this- that he is utterly unqualified in his knowledge of the law.   

Neither is Norman impartial in his approach.  Prosecutors, as lawyers, operate under the rules of ethics that provide, among other things, that a prosecutor’s role is not to seek convictions.  Rather, the prosecutor is to seek the truth and she may only charge a person with a crime if she in good faith believes that she can prove the charge beyond a reasonable doubt.

Police, on the other hand, tend to be suspicious of everyone and they work under a world-view where all people fall into one of two categories: the good guys and the bad guys.    Whatever the good guys do  (a gutteral grunt at this point helps) is “g00000000d.”   Whatever the bad guys do is (louder grunt) ”baaaaaad.”   Consequently, the good guys are allowed to do whatever they please so long as it is directed against a bad guy. 

So, electing Jeffrey Norman as a circuit court judge is about like taking a long-time veteran of the Green Bay Packers, who has no special expertise in the rules of football, and making him the sole referee for all future Packer games.   This m make even the most die-hard Packers fans blush a little.   If you subscribe to the cave-man logic that requires criminal defendants to lose all the time in court because they are “baaaaad” I am surprised that you are able to read this blog (and even more surprised that you know how to operate a computer).   Nonetheless, if you are one of the higher functioning cavemen or cavewomen, and if you are interested in another perspective on this issue, I am able to give you the names of some Duke University lacrosse players who, at one time, were in that despised category of people known as “accused rapists.”    They may be able to give you some perspective about the importance of due process of law and the need for our judges to be fair and impartial (as opposed to being an “ally” of the prosecution as Judge Gableman fashions himself).

 Don’t be a caveman or a cavewoman.  Come into the light.  Vote for Dallet.