May 26, 2007
Recently the Sheboygan police executed a search warrant at the home of a young man who posted photos of himself kneeling in front of his pot plants on the social networking site MySpace. One officer told the Milwaukee Journal-Sentinel that officers had been surfing MySpace for several months collecting information on local posters.
For years I have joked about my fictitious television show, "What Were You Thinking?" I would have guests on who have done remarkably stupid things. I would lay out the specifics of the blunder and then conclude with the question, "What were you thinking?" For a while it was difficult to think of appropriate guests. Now, though, with MySpace, the difficulty is in weeding out the potential guests.
MySpace has become law enforcement fly-paper. It just hangs there in cyberspace and the criminals are attracted to it and get stuck. I guess it is no fun being a criminal unless you can tell people about it- and now you can even publish pictures.
Whenever I am looking for impeachment evidence on a witness in any of my cases the first place my investigator goes is MySpace. We are rarely disappointed.
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May 12, 2007: Can a Twenty Pound Difference Mean a Violation of Civil Rights?
Today, the Milwaukee Journal-Sentinel reports (go to article) that a Milwaukee woman has sued the City of Wauwatosa and two Wauwatosa Police officers because she was detained, for a time, following an armed robbery in Jacobus Park. This was seven minutes after the armed robbery. According to the Journal-Sentinel, the victim described the robber as an African-American woman, "[I]n her 40s, between 5 feet 8 inches and 5 feet10 inches tall, 180 to 200 pounds with short, straight black hair, brown eyes, medium skin tone, wearing a short-sleeved gray top and blue shorts or pants."
The plaintiff in the lawsuit, who is African-American, argues that she is four to six inches shorter, weighed 20 to 40 pounds less and was six years older than the described assailant, and was wearing completely different clothing, the suit says. The woman was release once the victim got to the scene and confirmed that this was not the robber.
As the readers of this column well know, I have never been hesitant to criticize the police when the criticism is deserved; however, here I am forced to ask, "What's the problem?" Does this woman actually believe that where she is in the immediate area of a serious felony, and she matches the gender, the race, and the general age of the robber that her civil rights were violated because she may be as little as twenty pounds lighter and a few inches shorter than the assailant?
Everyone is entitled to their day in court. But when "civil rights" cases such as this one are filed it is insulting to people, like Frank Judge, who truly had their civil rights denied.
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February 13, 2007: Could Avery Have Been Framed?
Steven
Avery's defense lawyer, Dean Strang, told jurors in his opening
statement yesterday that his client had been set up. He explained
that the motive was the lawsuit that Avery had pending against
Manitowoc County for his earlier wrongful conviction for sexual
assault.
Today the unanimous reaction of the
commentators is to ridicule both Avery and his lawyers- some even
suggest that if this is Avery's defense the trial is a monumental
waste of tax dollars. Before you jump on the band wagon, though,
consider a few things.
Firstly, just because a defendant
is probably guilty does not mean that he is not entitled to a fair
trial. All defendants are supposed to be probably guilty before
they are even required to stand trial.
Secondly, first degree intentional
homicide cases are practically impossible to settle short of trial.
There is only one penalty- life in prison- and therefore the
prosecutor cannot encourage a guilty plea by offering a favorable
sentencing recommendation. Likewise, given the gravity of the
crime, the prosecutor (an elected position) would be ridden out of
town on a rail if he were to amend the charge downward in order to
settle the case. So when a client is charged with first degree
intentional homicide the case is most likely going to trial. As a
defense lawyer you put forward your best defense- whatever it may be.
And, finally, it is a mistake to
categorically reject the possibility that Avery was framed. Most
commentators argue from the premise that it is impossible to believe
that police officers would kill an innocent young woman and plant
her body on the Avery farm all because Avery is suing the county for
money. As we all well know from recent events, police officers
are no more or less likely to commit egregious crimes than anyone
else (Milwaukee police officer Steven Lelinski's recent sexual
assault conviction for example; Frank Jude also comes to mind).
History also teaches us that murders are committed over extremely
petty motives (the cheerleader mother murder in Texas for example).
Therefore, it would certainly not be unprecedented if Avery had been
set up.
I am a firm believer that in most
cases the simplest explanation is most likely to be true. But we
should not denigrate our criminal justice system by ridiculing the
defense lawyers nor by suggesting that Steven Avery's trial is a
waste of time and money. If the systems works as it it designed to
work justice will be served.
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January 25, 2007: Nifong In Deep Trouble
There is a saying among criminal defense lawyers that, innocent or not, if you are charged with sexual assault you may as well put a "for sale" sign up in front of the house and move. This saying reflects the sentiment that when it comes to sexual offenses the public could not care less about the presumption of innocence.
This is a particularly thorny problem since sexual assault- particularly of children- is an odious crime. But, of all criminal offenses, it is the easiest for a alleged "victim" to claim falsely, but it is, by far, the most difficult charge for a prosecutor to prove. There are usually no outside witnesses. Even if there is biological evidence, unless the accused is a total stranger (which is rarely the case), there is almost always the issue of consent.
Because of this, and especially with well-known defendants, it is not unusual for the prosecutor to "try the case in the media." It is this tactic by the State that leads to public bewilderment when in high-profile cases, where it "appears" that the defendant is obviously guilty, the jury returns not guilty verdicts.
This tactic is particularly unfair to the defendant, though, because in most instances the defendant cannot respond in the media. The criminal complaint is a public document that summarizes the State's case. As a public record, the lawyers may comment on it to the media. What lawyers are not allowed to do, though, is to argue their respective cases to the media. Thus, what typically happens is that the media report this summary of the State's evidence and from the defendant there is silence- giving the unfair impression that the case is a slam-dunk.
This is why prosecutors, especially in sexual assault cases, ought to have a special duty to refrain from commenting on the case in the media. It is refreshing to see that the North Carolina Bar is firmly dealing with the district attorney in the "Duke Rape Case", Michael Nifong, for what appears to be his strategy of "trying the case in the media." Nifong is facing numerous ethics charges arising primarily from comments he made to the media. The Wisconsin Office of Lawyer Regulation should take notice.
VIEW THE OFFICIAL ETHICS COMPLAINT AGAINST MICHAEL NIFONG
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January 13, 2007: Chisholm is Saying All The Right Things
John Chisholm recently took over the reigns as Milwaukee County District Attorney. This is a rare event and a rare opportunity. I have been practicing law for twenty-two years myself but I clearly remember E. Michael McCann as the district attorney when I was a seven year-old child.
It was fitting twist of fate that McCann's swan song was the humiliation of the Frank Jude trial- McCann claims it was the first and only trial that he ever "lost". It is fitting because McCann shares a lion's share of the blame for what the Milwaukee Police Department has become.
As law students we were taught that the prosecutors play a critical role as "gatekeepers" to the criminal justice system. They are not to charge a case unless they believe in good faith and beyond a reasonable doubt that the evidence was seized in a constitutional manner and that the evidence proves the defendant's guilt beyond a reasonable doubt. The prosecutors are not to be advocates for the police.
Throughout the years, though, in the name of supporting the "men in blue" McCann's prosecutors seemed utterly incapable of telling the police "no"- unable, even if the worst of circumstances, to tell them that any dog of a case does not pass the smell test. And this emboldened the police. They could plausibly threaten to "put a case" on any person unless that person cooperated. The net result is police officers of the kind involved in the Frank Judge beating- lawless thugs who have become absolutely corrupted by the unchecked power put in their hands by prosecutors unwilling to ask the awkward questions.
It is truly unfortunate then, that Chisholm's first meeting with the sharp end of the media stick was to explain why his office decided not to charge Gregory C. "Bourgeois" Banks after police found five grams of heroin in Banks' car. The decision was based on the fact that the police search of Banks' car was unreasonable. It was based solely on an anonymous tip with no supporting details. The decision was the correct one. The police took a short cut in shaking down Banks immediately.
Banks, of course, is alleged to gone back to the scene of his arrest and executed a person he must have believed was a snitch. And the radio talk-show pundits and their minions went ballistic.
The brave man dies but once. The coward dies a thousand painful deaths. Chisholm's decision not to charge Banks was the correct one. It was the decision required by law. He should have no regrets. Over his forty years in office, though, McCann must have died a thousand painful deaths.
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