ATTORNEY PAUL A. KSICINSKI 414-530-5214
ATTORNEY PAUL A. KSICINSKI
TOP 100 WISCONSIN CRIMINAL DEFENSE LAWYER
​414-530-5214
  • Home
  • References
  • PEER ENDORSEMENTS
  • PAST CASES
  • Blog
  • Contact
  • KNOW YOUR RIGHTS
  • How to deal with police
  • Practice Areas
  • About
  • Criminal Law Links
  • News

Discussion of current legal issues

Henry Nellum case selected by USA Network as a compelling homicide trial to keep an eye on in 2018

Button Text

REPUBLICAN SENATORS ARE IGNORANT: THE NEED TO LEARN THE HISTORY OF SUPREME COURT DECISIONS INVOLVING RACE

3/25/2022

0 Comments

 
Picture
Dear Senator Cruz and company,
​
Your refusal to acknowledge that race CONFLICT is an important part of US Supreme Court jurisprudence proves the depth of your ignorance and bias.  You would benefit from reading Justice Deferred: Race and the Supreme Court by Orville Vernon Burton which is the first comprehensive accounting of the U.S. Supreme Court’s race-related jurisprudence; a legacy too often blighted by racial injustice.  A short list of US Supreme Court cases dealing with race and ethnicity are as follows:

Dred Scott v. Sandford, 60 U.S. 393 (1857) People of African descent that are slaves or were slaves and subsequently freed, along with their descendants, cannot be United States citizens. Consequently, they cannot sue in federal court. Slavery cannot be prohibited in U.S. territories before they are admitted to the Union as doing so would violate the Due Process Clause of the Fifth Amendment. After the Civil War, this decision was voided by the Thirteenth and Fourteenth Amendments to the Constitution.
Strauder v. West Virginia, 100 U.S. 303 (1880) The exclusion of individuals from juries solely because of their race is a violation of the Equal Protection Clause. This was the first time that the Supreme Court reversed a state criminal conviction due to a violation of a constitutional provision concerning criminal procedure.
Yick Wo v. Hopkins, 118 U.S. 356 (1886) Racially discriminatory application of a racially neutral statute violates the Equal Protection Clause of the Fourteenth Amendment.
Plessy v. Ferguson, 163 U.S. 537 (1896) Segregated facilities for blacks and whites are constitutional under the doctrine of separate but equal. As long as the separate facilities are equal in quality, then such separation is not unconstitutional. (de facto overruled by Brown v. Board of Education (1954))
Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) States with racially segregated educational systems cannot satisfy the "separate but equal" provision of Plessy merely by offering to pay for black students to be educated at an out-of-state institution; they must offer those opportunities in-state.
Smith v. Allwright, 321 U.S. 649 (1944) Primary elections must be open to voters of all races.
Steele v. Louisville & Nashville Railway Co., 323 U.S. 192 (1944) Imposed duty of fair representation on labor unions, requiring that they represent all members of their bargaining unit equally, without regard to race or union membership (later understood to include other protected categories).
Korematsu v. United States, 323 U.S. 214 (1944) President Franklin D. Roosevelt's Executive Order 9066 is constitutional; therefore, American citizens of Japanese descent can be interned and deprived of their basic constitutional rights. This case featured the first application of strict scrutiny to racial discrimination by the government. (Potentially overruled by Trump v. Hawaii (2018))
Morgan v. Virginia, 328 U.S. 373 (1946) A Virginia law that enforces segregation on interstate buses is unconstitutional.
Shelley v. Kraemer, 334 U.S. 1 (1948) Courts may not enforce racial covenants on real estate.
Henderson v. United States, 339 U.S. 816 (1950) The Interstate Commerce Act of 1887 makes it unlawful for a railroad that engages in interstate commerce to subject any particular person to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.
Hernandez v. Texas, 347 U.S. 475 (1954) The equal protection of the laws guaranteed by the Fourteenth Amendment covers any racial, national, and ethnic groups of the United States against whom discrimination can be proved.
Brown v. Board of Education, 347 U.S. 483 (1954) Segregated schools in the states are unconstitutional because they violate the Equal Protection Clause of the Fourteenth Amendment. The Court found that the separate but equal doctrine adopted in Plessy "has no place in the field of public education".
Bolling v. Sharpe, 347 U.S. 497 (1954) Segregated schools in the District of Columbia violate the Equal Protection Clause as incorporated against the federal government by the Due Process Clause of the Fifth Amendment.
Sarah Keys v. Carolina Coach Company, 64 MCC 769 (1955) According to the Interstate Commerce Commission, the non-discrimination language of the Interstate Commerce Act of 1887 bans racial segregation on buses traveling across state lines. The Supreme Court later adopted and expanded this decision in Boynton v. Virginia (1960).
Browder v. Gayle, 142 F.Supp. 707 (M.D. Ala. 1956) Bus segregation is unconstitutional under the Equal Protection Clause.
Gomillion v. Lightfoot, 364 U.S. 339 (1960) Electoral district boundaries drawn only to disenfranchise blacks violate the Fifteenth Amendment.
Boynton v. Virginia, 364 U.S. 454 (1960) Racial segregation in all forms of public transportation is illegal under the Interstate Commerce Act of 1887.
Garner v. Louisiana, 368 U.S. 157 (1961) Peaceful sit-in demonstrators protesting segregationist policies cannot be arrested under a state's "disturbing the peace" laws.
Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) The Commerce Clause gives Congress power to force private businesses to abide by Title II of the Civil Rights Act of 1964, which prohibits discrimination in public accommodations.
Loving v. Virginia, 388 U.S. 1 (1967) Laws that prohibit interracial marriage (anti-miscegenation laws) are unconstitutional.
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971) The busing of students to promote racial integration in public schools is constitutional.
Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974) This decision brought an end to the trusty system and flagrant inmate abuse at the Mississippi State Penitentiary in Parchman, Mississippi. It was the first body of law developed in the Fifth Circuit that abolished racial segregation in prisons and held that a variety of forms of corporal punishment against prisoners is considered cruel and unusual punishment in violation of the Eighth Amendment.
Regents of the University of California v. Bakke, 438 U.S. 265 (1978) Racial quotas in educational institutions violate the Equal Protection Clause, but a more narrowly tailored use of race in admission decisions may be permissible.
Batson v. Kentucky, 476 U.S. 79 (1986) Prosecutors may not use peremptory challenges to dismiss jurors based on their race.
Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995) Race-based discrimination, including discrimination in favor of minorities (affirmative action), must pass strict scrutiny.
Grutter v. Bollinger, 539 U.S. 306 (2003) A narrowly tailored use of race in student admission decisions may be permissible under the Equal Protection Clause because a diverse student body is beneficial to all students. This was hinted at in Regents v. Bakke (1978).
Schuette v. Coalition to Defend Affirmative Action, 572 U.S. 291 (2014) A Michigan state constitutional amendment that bans affirmative action does not violate the Equal Protection Clause.
Please in the future senator educate yourself before opening your mouth.
0 Comments

IN AMERICA, MONEY CAN BUY YOU FREEDOM IN YOUR CRIMINAL CASE

3/23/2022

0 Comments

 
Francis Scott Key is the author of the famous words “the land of the free and the home of the brave.” He wrote those words in 1814 and, ever since 1931, they have been sung as the national anthem of the United States.

​Unfortunately, “the land of the free and the home of the brave” likes to keep people presumed innocent in jail before being found guilty of any crime.  Sadly, it is true that most people in jail are legally innocent.  There are 445,000 people in jail, or 80% of the people, who have not been convicted of any crime.
Picture
SOURCE: https://www.prisonpolicy.org/reports/pie2022.html#myths
​

In fact, the reason why taxpayers have had to pay for the building of more jails is that over the last 25 years, more innocent people have been held in jail.
Picture
​The real crime is that the thickness of someone’s wallet can buy justice in America: people remain on jail awaiting trial because they are not wealthy enough to get out of jail on bail.
Picture
0 Comments

IS U.S. SUPREME COURT JUSTICE SOTOMAYOR THE ONLY JUSTICE WHO CARES ABOUT ATTORNEY ETHICS?

3/1/2022

0 Comments

 
Picture

​The right to effective assistance of counsel is protected by the sixth amendment to the United States Constitution, made applicable to the states through the fourteenth amendment, and by art. 1, sec. 7, of the Wisconsin Constitution. Cuyler v. Sullivan, 446 U.S. 335, 344 (1980); State v. Franklin, 111 Wis.2d 681, 686, 331 N.W.2d 633, 636 (Ct.App. 1983). Counsel for a criminal defendant is per se ineffective if counsel faced a conflict of interest and continues to represent a defendant. Franklin, 111 Wis.2d at 686-87, 331 N.W.2d at 636-37. 
 
There simply is “an intolerable risk that the attorney might sacrifice the goals of his client to serve selfish ends or the interests of another." State v. Franklin, 111 Wis.2d 681, 687, 331 N.W.2d 633, 637 (Ct. App. 1983) (footnote omitted).  An actual conflict or serious potential for conflict of interest imperils the accused's right to adequate representation and jeopardizes the integrity of the adversarial trial process and the prospect of a fair trial with a just, reliable result.  State v. Miller, 160 Wis. 2d 646, 467 N.W.2d 118 (1991).
 
Given that basic law it was amazing to read the dissent in a criminal case by U.S. Supreme Court Justice Sonia Sotomayor.  Holcombe v. Florida, 595 U. S. ____ (2022), https://www.courthousenews.com/wp-content/uploads/2022/02/holcombe-fla.pdf.  Justice Sotomayor was the only justice on Feb. 28, 2022 to publicly reject the court’s decision not to accept for review a Florida case in which one attorney represented all four co-defendants in a racketeering case.  The trial court refused defense counsel’s offer to withdraw from representing the cooperating codefendants and neglected to conduct a detailed inquiry into the nature and extent of the conflict. The case went to trial, and defendant Holcombe’s attorney cross-examined his two cooperating clients, whose sentences depended on the quality of the testimony they provided against Holcombe.  Holcombe was convicted. 
 
The Florida Court of Appeal affirmed the conviction. It concluded that an attorney’s simultaneous representation of both a criminal defendant and two prosecution witnesses, and his cross-examination of those witnesses, does not, without more, create an actual conflict for the purpose of the Sixth Amendment.  The Florida Fifth District Court of Appeal affirmed Holcombes' convictions and sentences in September 2020 and James' motion for rehearing was denied the following month. The Florida Supreme Court declined to hear the case in February 2021.
 
Justice Sotomayor concluded the Florida courts “failed to protect that core constitutional guarantee” of effective assistance of counsel.  She gave a practical explanation of the nature of the conflict: “The codefendants’ pleas put defense counsel in an impossible dilemma:  If the attorney successfully undermined the codefendants’ testimony, he would aid Holcombe’s defense, but potentially jeopardize the codefendants’ ability to obtain lenient sentences. Holding back against the codefendants, on the other hand, would improve their chances at sentencing,  but  allow the State’s key witnesses to provide damning evidence against Holcombe.”
 
Justice Sotomayor wrote it is the court’s responsibility “to assure that criminal defendants are not deprived of their right to the effective assistance of counsel by joint representation of conflicting interests.” Under these circumstances the attorney’s representation, Justice Sotomayor concluded, constituted an “unwaivable” conflict of interest, especially when two of the defendants subsequently accepted plea deals and provided testimony on behalf of prosecutors that incriminated their fellow defendants.
0 Comments

    Author

    These are reflections I have had about our criminal justice system.  Some of it may make sense, some of it might not.

    Archives

    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    October 2021
    September 2021
    August 2021
    July 2021
    June 2021
    May 2021
    April 2021
    February 2021
    January 2021
    November 2020
    October 2020
    August 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    January 2020
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    June 2019
    May 2019
    April 2019
    March 2019
    February 2019
    January 2019
    December 2018
    October 2018
    August 2018
    July 2018
    June 2018
    May 2018
    April 2018
    March 2018
    February 2018
    January 2018
    December 2017
    November 2017
    October 2017
    September 2017
    August 2017
    July 2017
    June 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    May 2016
    April 2016
    March 2016
    February 2016
    January 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    January 2015
    December 2014
    November 2014
    October 2014
    September 2014
    August 2014

    Categories

    All

    RSS Feed

Powered by Create your own unique website with customizable templates.