The right to a jury trial is a fundamental check on “arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions.”  THE FEDERALIST PAPERS, No. 83 at 543 (A. Hamilton)(E.Earle ed. 1937).  In Duncan v. Louisiana, 391 U.S. 145, 155-56(1968) the United States Supreme Court emphasized that the primary purpose of a jury is to act as an “inestimable safeguard” against a  “biased or eccentric judge.”

Now science may be validating the faith our Founding Fathers put in juries.

In a study published recently in Proceedings of the National Academy of Sciences (PNAS), http://www.pnas.org/content/112/24/7460.abstract, finds that groups are consistently more accurate in distinguishing truths from lies than one individual.

In "Group Discussion Improves Lie Detection," by University of Chicago Booth School of Business Professor Nicholas Epley and Chicago Booth doctoral student Nadav Klein, the researchers designed four experiments in which groups consistently distinguished truth from lies more accurately, demonstrating that the group advantage in lie detection comes through the process of group discussion, not the product of a "wisdom of crowds" effect.  Groups were not simply maximizing the small amounts of accuracy contained among individual members but were instead creating a unique type of accuracy altogether.  Group discussion alters how individuals evaluate a given statement to increase accuracy. Because individuals already possess some accuracy in detecting truths, unique improvement from group discussion would increase accuracy in detecting lies.

"We find a consistent group advantage for detecting small 'white' lies as well as intentional, high-stakes lies told for personal gain," says Epley. "This group advantage seems to come through the process of group discussion rather than statistical aggregation of individual opinions."

The available psychological and sociological research and analysis clearly indicates that a jury is a more reliable factfinder than a judge.  A judge is more likely to have a cognitive bias against a defendant and a 12-person jury has the benefit of a diverse range of experience that enhances fairness.  Ballew v. Georgia, 435 U.S. 223, 232-39(1978)(opinion of Blackmun, J.)(Research findings that “raise doubts about the accuracy of the results achieved by smaller and smaller panels” of factfinders used to decide that a five member jury does not satisfy the constitutional jury trial guarantee.); Lambright v. Stewart, 191 F.3d 1181, 1184(9th Cir. 1999)(lower number of jurors leads to inaccurate factfinding and incorrect application of the common sense of the community to the facts); Guggenheim & Hertz, Reflections on Judges, Juries, and Justice: Ensuring the Fairness of Juvenile Delinquency Trials, 33 Wake Forest L. Rev. 553, 571-82(1998).

The natural extension to the Ballew court’s finding that a five-member jury is not reliable is that one factfinder is even worse – especially one that must deal with a court calendar and make factual findings.  Ballew, 435 U.S. at 232-33(“[A] positive correlation exists between group size and the quality of both group performance and group productivity.”); Guggenheim & Hertz, at 578.  Simply put, one judge cannot compete with a 12-person jury for reliability of the factfinding function that is “critical to the accurate application of the common sense of the community to the facts.”  Ballew, 435 U.S. at 234.

When people pay me money to hire me as their criminal lawyer or defense attorney, they may ask something like, “If I pay you this money, can you guarantee me you will get me off on these charges?”

It is an understandable question but a question any honest lawyer cannot answer.  Not because they do not want to answer a client’s question.  But because it is impossible for anyone to guarantee what will happen in the future.  Any lawyer or attorney who guarantees what will happen in the future is trying to make a quick buck off a client without regard to effective representation of the client on their drug, assault, OWI or DWI charges, felony or misdemeanor.  I explain that any lawyer who tells a client they know the future about their case should have a crystal ball or magic wand in their briefcase rather than law books.

I tell every person who comes to see me that I cannot guarantee the future but I can guarantee I have a history of taking what others thought to be losing cases and winning those cases.  I guarantee them that as their defense attorney or criminal attorney, I will work hard on their case to protect all their rights.  When I review the facts of a case, I guarantee I will look for any issue to file a legal challenge to the prosecution.

In other words, I guarantee you to exert my best efforts to defend you and your rights which has helped most people.

A landmark 2014 report, “The Growth of Incarceration in the United States: Exploring Causes and Consequences,” from the National Research Council of the National Academies — the preeminent research body in the United States, part of the National Academy of Sciences and chartered by Congress — was authored by a committee of leading criminal justice scholars from across the country. The project’s chair and vice chair were Jeremy Travis of the John Jay College of Criminal Justice at City University of New York and Bruce Western of the Department of Sociology and Kennedy School of Government at Harvard University.

The report’s findings and insights can credibly and authoritatively anchor coverage and debate about this issue. The following are key statements within the 464-page document.

Empirical findings:

• The report’s authors provide many recommendations, chief among them: “Given the small crime prevention effects of long prison sentences and the possibly high financial, social, and human costs of incarceration, federal and state policy makers should revise current criminal justice policies to significantly reduce the rate of incarceration in the United States. In particular, they should reexamine policies regarding mandatory prison sentences and long sentences. Policy makers should also take steps to improve the experience of incarcerated men and women and reduce unnecessary harm to their families and their communities.”
• “The U.S. penal population of 2.2 million adults is the largest in the world. In 2012, close to 25% of the world’s prisoners were held in American prisons, although the United States accounts for about 5% of the world’s population. The U.S. rate of incarceration, with nearly 1 of every 100 adults in prison or jail, is 5 to 10 times higher than rates in Western Europe and other democracies.”
• “During the 1980s, the U.S. Congress and most state legislatures enacted laws mandating lengthy prison sentences — often of 5, 10, and 20 years or longer — for drug offenses, violent offenses, and ‘career criminals.’ In the 1990s, Congress and more than one-half of the states enacted ‘three strikes and you’re out’ laws that mandated minimum sentences of 25 years or longer for affected offenders. A majority of states enacted ‘truth-in-sentencing’ laws requiring affected offenders to serve at least 85% of their nominal prison sentences.”
• “From 1980 to 2000, the number of children with incarcerated fathers increased from about 350,000 to 2.1 million — about 3% of all U.S. children. From 1991 to 2007, the number of children with a father or mother in prison increased 77% and 131%, respectively.”
• “Among white male high school dropouts born in the late 1970s, about one-third are estimated to have served time in prison by their mid-30s. Yet incarceration rates have reached even higher levels among young black men with little schooling: among black male high school dropouts, about two-thirds have a prison record by that same age — more than twice the rate for their white counterparts. The pervasiveness of imprisonment among men with very little schooling is historically unprecedented, emerging only in the past two decades.”

Conclusions based on the scientific evidence:

• “The growth in incarceration rates in the United States over the past 40 years is historically unprecedented and internationally unique.”
• “The unprecedented rise in incarceration rates can be attributed to an increasingly punitive political climate surrounding criminal justice policy formed in a period of rising crime and rapid social change. This provided the context for a series of policy choices — across all branches and levels of government — that significantly increased sentence lengths, required prison time for minor offenses, and intensified punishment for drug crimes.”
• “The incremental deterrent effect of increases in lengthy prison sentences is modest at best. Because recidivism rates decline markedly with age, lengthy prison sentences, unless they specifically target very high-rate or extremely dangerous offenders, are an inefficient approach to preventing crime by incapacitation.”
• “People who live in poor and minority communities have always had substantially higher rates of incarceration than other groups. As a consequence, the effects of harsh penal policies in the past 40 years have fallen most heavily on blacks and Hispanics, especially the poorest.”

 

Divorce is stressfull.  It sometimes helps to have something to fall back on during the stress of your divorce.   Luckily, that help may be as close as your cell phone!!  Here are some apps you may wish to use as you PEACEFULLY work through your divorce.

same Street Divorce (iOS/Android): By using popular characters from Sesame Street, kids get a  gentle introduction to divorce, including getting used to two homes. The app also offers parenting tips and conversation starters to get kids talking about how they’re feeling during this time of transition.

Our Family Wizard (iOS/Android): Parents can take the stress out of co-parenting by sharing important information about the costs of child support. For example, a parent initiating an expense on the part of the child can create an entry and then attach a receipt. Parents agree to pre-set formulas for how amounts is split (i.e., 50-50 on medical expenses). Once the receipt is approved by the other parent, the share of the payment is transferred from one parent to another through an attached account, like PayPal or a checking account. The popular app provides a shared child custody interface, too!

iSplit Divorce App (iOS/Android): How to split your marital assets? Here is an overview of the asset division process with iSplit, an app that has you assign values to your list of assets, then drag and drop icons to each individual side to see how they stack up — the app keeps a running total of the value of each side’s assets. You can also export the information into a spreadsheet to bring with you to a meeting with your attorney or give a copy to your spouse or financial advisor.

Divorce Coping Tip of the Day (Android): Laughter is the best medicine, right? Get this app packed with positive and practical advice for getting through the divorce process with your good humor intact.

Divorce Log (iOS): This app provides a calendar-based program to help you keep track of divorce-related information (i.e. alimony and child support payment dates, expenses, and time spent with the kids) in one place. All entries stored in the app can be forwarded directly to an email address so that you can send pertinent information to an attorney or ex-spouse. Easy!

 

President Obama, speaking last week at an NAACP convention on the eve of his historic tour of Oklahoma’s El Reno Correctional Institution, outlined the major components of his vision for the future of criminal justice reform. When it came to the issue of juvenile offenders, he called for a shift in perspective: “We’ve got to make sure our juvenile justice system remembers that kids are different. Don’t just tag them as future criminals. Reach out to them as future citizens.”

In 1996 Wisconsin changed the state’s juvenile justice landscape by excluding 17-year-olds entirely from the juvenile court. Initially this was an effort to save resources and improve community safety by incarcerating older teens as adults, under the theory of ”adult crime, adult time.” At the time of the legislative change, there was little research to suggest that trying youth as adults would improve community safety. Since then, research has effectively contradicted the premise that the change would make communities safer.

As a result of this kind of thinking, across the U.S., there are 2,484 persons sentenced for crimes committed under age 18 are serving life without parole in U.S. prisons.  There are none in the rest of the world.  The Rest of Their Lives: Life Without Parole for Youth Offenders in the United States 2008, Human Rights Watch, May 2008.  Forty three states permit the imposition of life with no possibility of parole in some form for children who commit crimes under 18 at the time of the offense. 

Judges impose sentences of life with no parole on black youth at a rate 10 times greater than white youth.  Feld, Unmitigated Punishment: Adolescent Criminal  Responsibility and LWOP Sentences, 10 J.L.& Fam. Studies 11 (2007), at 70.  The Governor’s Commission on Reducing Racial Disparities in the Wisconsin Justice System studied the problem of minority overrepresentation in prison and came up with a number of recommendations. One recommendation was to return 17-year-olds to the juvenile court, while retaining judges’ flexibility to try those accused of more serious crimes in the adult system. 

There is no evidence that placing juveniles in the adult criminal system either through original adult court jurisdiction laws or waiver into adult court diminishes youth violence.  In fact, this may increase crime and diminish community safety.  See e.g. “Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice System”, Morbidity and Mortality Weekly Review, November 30, 2007. www.cdc.gov/ mmwr/preview/mmwrhtml/rr5609al.htm.  Christina DeJong & Eve Schwitzer Merrill, Getting “Tough on Crime:” Juvenile Waiver and the Criminal Court, 27 Ohio N.U.L. Rev. 175, 176 n. 10 (2001); “While incarcerating waived juveniles in adult facilities quenches the public’s thirst for ‘justice’ and provides the community with a sense of security, incarcerating juveniles with adults does not, in fact, increase public safety.  Overwhelming evidence indicates that incarcerating juveniles with adults produces no superior deterrent or incapacitative effects, and instead results in increased recidivism.”  Ellie D. Shefi, Waiving Goodbye, Incarcerating Waived Juveniles in Adult Correctional Facilities Will Not Reduce Crime, 36 U. Mich. J. Law & Reform 653, 665 (2003); citing Donna M. Bishop et al., The Transfer of Juveniles to Criminal Court: Does it Make a Difference?, 42 Crime & Delinq. 171, 184-85 (1996).

Upon close examination of a jail’s ability to serve 17-year-olds, it is not surprising that youth with jail sentences are the least likely to stay out of trouble after their release. According to data presented in the Legislative Audit Bureau’s analysis of 17-year-olds in the adult system, few services are available in the adult jail system.  Legislative Audit Bureau, Report 08-3, A Review: 17-Year-Old Offenders in the Adult Criminal Justice System, February 2008, page 7  Significantly, the recidivism rate for 17-year-olds incarcerated in adult prisons was nearly double that of younger teens treated in the juvenile system, despite the longer follow up period for the juvenile offenders. 

In Whren v. United States, 517 U.S. 806 (1996), the US Supreme Court clarified that “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Id. at 813. “[A]s long as the circumstances, viewed objectively, justify [the police officer's] action,” the officer's subjective state of mind is irrelevant. Id. (quoting Scott v. United States, 436 U.S. 128, 136, 138 (1978)).  The logic of Whren v. United States, is inherently two-sided: if an officer's subjective motive or belief cannot invalidate an objectively justified traffic stop, then it cannot save an objectively unjustified one. In other words, Whren grants officers “broad leeway to conduct searches and seizures regardless of whether their subjective intent corresponds to the legal justification for their actions. But the flip side of that leeway is that the legal justification must be objectively grounded.” United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998) (footnote omitted). Where the actions the officer observes provide no basis for concluding that any law, as properly construed, has been violated, an officer's subjective misunderstanding of the law cannot create the suspicion the Fourth Amendment requires.

The Eighth Circuit has found that an officer's “subjective good faith belief about the content of the law is irrelevant,” United States v. Washington, 455 F.3d 824, 827 (8th Cir. 2006). According to the Eighth Circuit, “the constitutionality of [a] traffic stop … depends on whether [the officer's] belief that a state law was violated was objectively reasonable.” Id.; accord United States v. Martin, 411 F.3d 998, 1001 (8th Cir. 2005).

Ordinary people are charged with knowledge of substantive criminal law, and if they make mistakes of law, they may not (absent special statutory exceptions) assert such mistakes as a defense to liability. This is so no matter how “objectively reasonable” a mistake may be. As has been said time and again, “ignorance of the law is no excuse.” Bryan v. United States, 524 U.S. 184, 196 (1998). Indeed, as Justice Holmes famously explained, “to admit the excuse at all would be to encourage ignorance where the law-maker has determined to make men know and obey.” Oliver Wendell Holmes, The Common Law 48 (1881).  The expectation that the law is “definite and knowable” is no more tenable for police today than it is for the lay public.

It takes little reflection to see “the fundamental unfairness” of holding citizens to strict compliance with the law “while allowing those entrusted to enforce the law” to interpret and apply the law more flexibly. United States v. Chanthasouxat, 342 F.3d 1271, 1280 (11th Cir. 2003) (internal quotation marks omitted). “Reciprocal expectations of law-abidingness between government and its citizens can scarcely be expected to endure if one party - the government - need not uphold its end of the bargain.” Wayne A. Logan, Police Mistakes of Law, 61 Emory L.J. 69, 91 (2011) (footnotes omitted). Indeed, if anything, those charged with enforcing the law should be expected to have a better - not worse - understanding than the general public. Any rule that undermines this actuality, and that rewards police officers with more authority when they are ignorant of the law they are supposed to be enforcing, flouts our most basic constitutional values.

On June 1, 2015 the U.S. Supreme Court in Elonis v. U.S., overturned the conviction of a man who had made violent threats on Facebook against his estranged wife.  The court ruled that it was not enough — as prosecutors had argued — to convict someone on the basis that the language used could be regarded as a threat by a reasonable person. The justices said there had to be proof that the writer actually intended the words to be a threat to warrant criminal charges.  Chief Justice John G. Roberts Jr., noting that Anthony Douglas Elonis had said he intended his postings to be fictitious and even therapeutic, said a defendant’s state of mind had to be considered.  The narrow opinion said it was not necessary to address whether the First Amendment’s guarantee of free speech protected Elonis’s Facebook statements. The opinion also declined to take a position on whether it would be enough for a conviction to show that a defendant had been reckless in making inflammatory statements, as Alito proposed.  It was sufficient for now, Roberts wrote, to correct a misinterpretation by most lower courts that the poster’s intent is immaterial and what matters only is how the message is received.

Wisconsin law on cyberstalking seems to pass the non-First Amendment test set forth in Elonis v. U.S.  Wisconsin statute § 947.0125, Unlawful use of computerized communication systems, makes it a criminal offense to message another person by electronic mail or other computerized communication system with intent to frighten, intimidate, threaten, abuse or harass another person.  This seems to specifically require consideration of the sender’s state of mind and not simply the sender’s words alone.  Note, however, "computerized communication system" is a legislative term of art and must have the same meaning in all 3 instances where the legislature has used it, ss. 48.825 and 948.075 and this section. A cell phone or other device, itself, can never constitute a computerized communication system. State v. McKellips, 2015 WI App 31, ___ Wis. 2d ___.  But see, Wis. Stat. Ann. § 947.012, unlawful use of telephone

Racism as a conscious belief can limit our understanding of that bias. The conscious belief in racial inferiority with acts in furtherance of those beliefs, via discrimination or worse, may be not as frequent today.  Most of us would never treat anyone differently due to race, and in the perceived absence of conscious bigotry from others, we're tempted to believe that for most people in most circumstances, racism is a previous generation's problem, not ours. 

Not so. While racism can be expressed in conscious beliefs and actions, but it also can be expressed through unconscious bias. For example, millions have taken the Implicit Association Test developed by researchers at Harvard University and the University of Washington and most have been surprised at the extent to which the test can reveal implicit social cognition - thoughts and feelings outside of conscious awareness and control. The test documents a common form of racism that extends beyond the beliefs and attitudes that we're aware of. This research has far ranging implications for a lawyer during voir dire (where a court is really concerned with having effective voir dire and not just court conducted “get it over” voir dire).  This test recognizes that people don’t always say what’s on their minds. One reason is that they are unwilling. For example, someone might report smoking a pack of cigarettes per day because they are embarrassed to admit that they smoke two. Another reason is that they are unable. A smoker might truly believe that she smokes a pack a day, or might not keep track at all. The difference between being unwilling and unable is the difference between purposely hiding something from someone and unknowingly hiding something from yourself.  The Implicit Association Test (IAT) measures attitudes and beliefs that people may be unwilling or unable to report. The IAT may be especially interesting if it shows that you have an implicit attitude that you did not know about. For example, you may believe that women and men should be equally associated with science, but your automatic associations could show that you (like many others) associate men with science more than you associate women with science.

Psychologists who study this racism related to unconscious bias refer to the term as “aversive racism.”  “Aversive racism” is thought to be a phenomenon in which people believe they harbor no prejudice toward minorities, when in fact they have a subconscious bias. Russ Espinoza, “The Impact of Ethnicity, Immigration Status, and Socioeconomic Status on Juror Decision Making,” 13 Journal of Ethnicity in Criminal Justice 3 (2015)http://www.tandfonline.com/doi/abs/10.1080/15377938.2014.984044#preview  In an article in The Orange County Register, Cal State Fullerton psychologist Russ Espinoza found that mock jurors are motivated to find reasons other than race in order to justify greater punitiveness toward minority defendants. “When jurors can find other reasons besides race to place blame, such as low socioeconomic status, they will tend to be more punitive toward minority defendants and feel that they are not being prejudicial,” he said in explaining the theory.  Liliana Mota, “CSUF researcher uncovers subconscious bias among jurors” The Orange County Register, http://www.ocregister.com/articles/espinoza-669017-jurors-penalty.html.  Compared to a group of students in their 20s, the older jury pool was harsher in its sentencing, he said. “We found that the mock jurors with the average of age 38 tended to throw the book at minorities,” he said.  Id.  Moreover, regardless of the belief of Justice Scalia about the fairness of the death penalty, the study found that African Americans and Latinos with a low socioeconomic status and weak mitigating factors were more likely to receive the death penalty.

So as trial lawyers, maybe we should watch potential jurors either who avoid eye looking at you or your client, or instead simply burns holes by staring at you or client since that would seem to indicate they are showing aversion toward you or your client. It might be easier to ask about experience, rather than an attitude. Maybe ask the potential juror how often she/he has interacted with members of a minority group, for example, might be a window into aversive behavior.