Wisconsin Democrats Target Minorities with New Criminalization Expansion

Brueghel's The Blind Leading the Blind

Dems throw sober analysis out the window as new Evers regime wants a more pervasive police state

Madison, Wisconsin —  State Sen. Chris Larson (D-Milwaukee) and Gov Tony Evers are calling for new criminalization laws against dangerous activity already illegal in another effort aimed at minorities.

In a recent weekly Democratic Party radio address, Larson said she wants to change Wisconsin's drinking "culture," and expand Wisconsin's criminal code to include drunk-driving laws, a current situation in which to be accused is to be convicted.

Larson's assumed role as culture warrior-temperance movement activist echoes Kathleen Falk's failed crusade a decade ago, when Falk called for armed roadblocks and police "checkpoints," as well as a war against any activity in which Wisconsinites drink beer, for example, (Mal Contends, Mal Contends).

Democrats are completely out-of-touch with realty in metro Wisconsin where municipalities often function as mini-police states aimed at black and brown residents, or more likely approve of the results of criminalization.

Liberties go out the window, and Larson and Evers surely know the truism that any expansion of the criminal code is used first and viciously against minorities, already targeted in the worst state to be black.

Noone advocates drunk driving. But Larson needs a straw-man and proclaims, "We cannot rest until we change our culture around drinking and driving."

Really? After 55 years in Wisconsin, I know of not one person, institution, movement or Party or culture that defends drunk driving.

But when it comes to being white and clueless, Larson and Evers share the features of an authoritarian Democratic Party with a disdain for the Fourth Amendment.

From 2009, below is reprint of a pro-Fourth Amendment dissent from a United States Supreme Court case (1990) that should give the new culture warriors and police-state advocates pause.

Former Dane County Executive Kathleen Falk's strong advocacy of police roadblocks in her self-proclaimed effort to change the drinking "culture" of Wisconsin in 2009 should have put an end to this foolishness.

Too many liberals are all too happy to aid the effort of Chief Justice William H. Rehnquist (1994–2005) who was never hesitant to weaken the Bill of Rights during his tenure on the court as he did in Michigan Department of State Police v. Sitz (1988) (decided in 1990) that enables states to enact roadblocks to battle drunk drivers, no matter the Fourth Amendment for those drivers who are doing absolutely nothing wrong or illegal.

You say you are an innocent, but you drive a car. Well, your Fourth Amendment rights go out the window like so many gas fumes out of your tailpipe is the effect of the Rehnquist decision.

In 2009, one news daily's column (online) spoke out for the Fourth Amendment on the police roadblock/Kathleen Falk question in the Capital Times:

No matter how they are operated, checkpoints where motorists are forced to pull over even where there is no indication of impaired driving are a form of unreasonable search and seizure that cannot be sanctioned in Wisconsin. Other states, with less regard for basic liberties, may allow checkpoints. But there is insufficient legal or scientific justification to warrant such an intrusion by state and local authorities in a state that has always set a higher standard when it comes to protecting the right to privacy.

Others should speak out today.

So it's worth reviewing the three dissents in the Michigan Department of State Police v. Sitz (1988) decision written by John Paul Stevens, William J. Brennan, Jr. and that most uppity of black men, Thurgood Marshall, who recall the maxim of brother Brandeis.

Liberty-destroying efforts ought not be defended.

Below are links to the Brennan-Marshall and the Stevens dissents, and the text of the Brennan-Marshall dissent.

- Brennan and Marshall's dissenting opinion in Michigan Department of State Police v. Sitz (1988)
- John Paul Stevens' dissenting opinion (joined by Marshall and Brennan) in Michigan Department of State Police v. Sitz (1988)
---
BRENNAN, J., Dissenting Opinion SUPREME COURT OF THE UNITED STATES
496 U.S. 444 Michigan Department of State Police v. Sitz
CERTIORARI TO THE COURT OF APPEALS OF MICHIGAN
No. 88-1897 Argued: Feb. 27, 1990 --- Decided: June 14, 1990

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

Today, the Court rejects a Fourth Amendment challenge to a sobriety checkpoint policy in which police stop all cars and inspect all drivers for signs of intoxication without any individualized suspicion that a specific driver is intoxicated. The Court does so by balancing the State's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped. Ante at 455.
For the reasons stated by JUSTICE STEVENS in Parts I and II of his dissenting opinion, I agree that the Court misapplies that test by undervaluing the nature of the intrusion and exaggerating the law enforcement need to use the roadblocks to prevent drunken driving. See also United States v. Martinez-Fuerte, 428 U.S. 543, 567 (1976) (BRENNAN, J., dissenting). I write separately to express a few additional points.

The majority opinion creates the impression that the Court generally engages in a balancing test in order to determine [p457] the constitutionality of all seizures, or at least those "dealing with police stops of motorists on public highways." Ante at 450. This is not the case. In most cases, the police must possess probable cause for a seizure to be judged reasonable. See Dunaway v. New York, 442 U.S. 200, 209 (1979). Only when a seizure is "substantially less intrusive," id. at 210, than a typical arrest is the general rule replaced by a balancing test. I agree with the Court that the initial stop of a car at a roadblock under the Michigan State Police sobriety checkpoint policy is sufficiently less intrusive than an arrest so that the reasonableness of the seizure may be judged, not by the presence of probable cause, but by balancing the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.

Brown v. Texas, 443 U.S. 47, 51 (1979). But one searches the majority opinion in vain for any acknowledgment that the reason for employing the balancing test is that the seizure is minimally intrusive.

Indeed, the opinion reads as if the minimal nature of the seizure ends rather than begins the inquiry into reasonableness. Once the Court establishes that the seizure is "slight," ante at 451, it asserts without explanation that the balance "weighs in favor of the state program." Ante at 455.
The Court ignores the fact that, in this class of minimally intrusive searches, we have generally required the Government to prove that it had reasonable suspicion for a minimally intrusive seizure to be considered reasonable. See, e.g., Delaware v. Prouse, 440 U.S. 648, 661 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 882-883 (1975); Terry v. Ohio, 392 U.S. 1, 27, (1968). Some level of individualized suspicion is a core component of the protection the Fourth Amendment provides against arbitrary government action. See Prouse, supra, 440 U.S. at 654-655; Martinez-Fuerte, supra, 428 U.S. at 577 (BRENNAN, J., dissenting) ("Action based merely on [p458] whatever may pique the curiosity of a particular officer is the antithesis of the objective standards requisite to reasonable conduct and to avoiding abuse and harassment"). By holding that no level of suspicion is necessary before the police may stop a car for the purpose of preventing drunken driving, the Court potentially subjects the general public to arbitrary or harassing conduct by the police. I would have hoped that before taking such a step, the Court would carefully explain how such a plan fits within our constitutional framework.

Presumably, the Court purports to draw support from Martinez-Fuerte, supra, which is the only case in which the Court has upheld a program that subjects the general public to suspicionless seizures. But as JUSTICE STEVENS demonstrates, post at 463-466, 471-472, the Michigan State Police policy is sufficiently different from the program at issue in Martinez-Fuerte that such reliance is unavailing. Moreover, even if the policy at issue here were comparable to the program at issue in Martinez-Fuerte, it does not follow that the balance of factors in this case also justifies abandoning a requirement of individualized suspicion. In Martinez-Fuerte, the Court explained that suspicionless stops were justified because

[a] requirement that stops . . . be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens.

428 U.S. at 557. There has been no showing in this case that there is a similar difficulty in detecting individuals who are driving under the influence of alcohol, nor is it intuitively obvious that such a difficulty exists. See Prouse, supra, 440 U.S. at 661. That stopping every car might make it easier to prevent drunken driving, but see post at 469-471, is an insufficient justification for abandoning the requirement of individualized suspicion.

The needs of law enforcement stand in constant tension with the Constitution's protections [p459] of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards.

Alameida-Sanchez v. United States, 413 U.S. 266, 273 (1973). Without proof that the police cannot develop individualized suspicion that a person is driving while impaired by alcohol, I believe the constitutional balance must be struck in favor of protecting the public against even the "minimally intrusive" seizures involved in this case.

I do not dispute the immense social cost caused by drunken drivers, nor do I slight the government's efforts to prevent such tragic losses. Indeed, I would hazard a guess that today's opinion will be received favorably by a majority of our society, who would willingly suffer the minimal intrusion of a sobriety checkpoint stop in order to prevent drunken driving. But consensus that a particular law enforcement technique serves a laudable purpose has never been the touchstone of constitutional analysis.

The Fourth Amendment was designed not merely to protect against official intrusions whose social utility was less as measured by some "balancing test" than its intrusion on individual privacy; it was designed in addition to grant the individual a zone of privacy whose protections could be breached only where the "reasonable" requirements of the probable cause standard were met. Moved by whatever momentary evil has aroused their fears, officials -- perhaps even supported by a majority of citizens -- may be tempted to conduct searches that sacrifice the liberty of each citizen to assuage the perceived evil. But the Fourth Amendment rests on the principle that a true balance between the individual and society depends on the recognition of "the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men." Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

New Jersey [p460] v. T.L.O., 469 U.S. 325, 361-362 (1985) (BRENNAN, J., concurring in part and dissenting in part) (footnote omitted).

In the face of the "momentary evil" of drunken driving, the Court today abdicates its role as the protector of that fundamental right. I respectfully dissent. #

Increased criminalization means giving local police more power to attack black and brown people. @GovEvers has no clue what he is doing. Defense against bogus citations and cowboy judges is impossible, and @GovEvers wants "to send a message"? This guy is a dolt. https://t.co/ixr3HFC51d

— Michael Leon (@mal644) January 2, 2019

Texas Conviction Integrity Unit Hailed as Model

Goya, Saturn devouring a child

As prosecutor-politicians and police advance their careers over the shattered lives of the wrongfully convicted, from Texas comes a report on the success of the country's first conviction integrity unit.

Noah Fromson, (Medill News Service), reports in the Texas Tribune in Austin, Texas:

In 2007, the new district attorney of Dallas County partnered with the Innocence Project of Texas to review over 400 old cases, many involving denied requests for DNA testing, because the county had the highest number of wrongful convictions in the country.

To ensure such mistaken convictions never happened again, District Attorney Craig Watkins established the first conviction integrity unit in the United States later that year.

'We made history ... I still get calls to my private office for individuals that want me to do that,' Watkins said this week of reviewing old cases, 'but I don't have the power to do that anymore.' ...

While they exist in less than 1 percent of the nation’s 3,007 counties, such units were responsible for 39 percent of overturned wrongful convictions in the U.S. last year, according to a report by the National Registry of Exonerations. That’s 58 of the record-high 149 exonerations in 2015.

The work of reporters and innocence projects has led to a series of exonerations involving the misuse of forensic information by law enforcement, said James Liebman, director of the Center for Public Research and Leadership at the Columbia Law School.

'There is a huge sensitivity now to the misuse of prosecutorial and police processes to convict people who are innocent,' Liebman said. 'Officials have become sensitive to those (innocence) claims and are taking responsibility to do something about it.' ...

As a result, more district attorneys are starting their own units, said John Hollway, executive director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School.

“As information has spread and (units) have gotten more praise and done more good, you see a rapid uptick,” Hollway said. “More than half of them were started in the last 24 months.”

The units spend a lot of time sorting through requests from the convicted parties, innocence projects and other sources to decide what to review, said Inger Chandler, chief of the Conviction Review Section at the Harris County District Attorney’s Office in Houston.

'We try to give every case its due diligence because the last thing you want to do is miss that needle in a haystack,' Chandler said. 'Where we carve people out of eligibility for our review is that you have to be making a claim of actual factual innocence. In other words, 'I wasn’t there' or 'I was misidentified.' Not a justification, not a lesser role, but factual innocence.'

Working to free the innocent. Sounds like a good idea.

Innocence

While the Innocence Project notes some systemic causes of wrongful convictions—Eyewitness misidentification, Unvalidated or improper forensic science, False confessions or admissions, Government misconduct, Informants, Inadequate defense—the fact is the government, the Constitutional Sovereign, in the criminal justice system is implemented by fallible and not-always-decent people.

As such, every base motivation and imperfection to which the human mind is subject—prejudice, hate, complacency, career opportunity, convenience, lassitude, intellectual laziness, tunnel vision—are inflicted onto the suspect and accused.

Conviction integrity units 

Conviction integrity units independent from the District Attorney's office are critical, emphatically when one considers police and prosecutors often stand in the way of exoneration and freedom for the innocent in the face of exculpatory evidence, (Gould, Leo; The Path to Exoneration).

Our local democracies must embrace the fact many in law enforcement will take a conviction of the innocent over the truth, or tragedy results.

When victims, whom police and prosecutors know to be innocent, are impelled onto the criminal justice conveyor belt, law enforcement personnel convince themselves they're just doing their jobs.

As for the innocent people sent into exile to the leviathan about which Robert Jackson presciently warned us about 75 years, their lives are taken and easily forgotten.

Steven J. Phillips published No Heroes, No Villains (Vintage) in 1978, explaining the procedures of criminal law in a gripping account and chronicling of a true-crime murder case in New York. Phillips' thoughtful book no longer bears any relevancy to criminal law procedure in the police-prosecutor-prison-state America.

Today, the villains often wear badges redolent with the myth of purity, defenders against the dangerous class. Prosecutors, judges and court services are bureaucrats working busily like something out of Terry Gilliam's film, Brazil.

Penny Brummer 

In Dane County (Wisconsin), advocates working to free an innocent woman, Penny Brummer—convicted in 1994 and inflicted a life sentence behind bars by an unholy convergence of bigotry, tunnel vision, careerism and demonetization—are cautious to adopt an oops-could-accidents-will-happen and passive-accomplices-just-doing-their-jobs-should-be-excused account of law enforcement in the wrongful conviction and malicious prosecution of Brummer.

The ethics and efficacy of this moral-immunity approach to freeing the innocent Brummer convicted by hatred of lesbians, among other pathologies, are not convincing.

Indifference

But there is another perpetrator beyond law enforcement in Brummer's case: Indifference.

To borrow from a critical study of totalitarian systems edited by Alan L. Berger:

If the many viewed indifference as an neutral act, [Norman] Cohn, on the other hand, points out its lethal quality. It was, he says, 'precisely the mixture of fanaticism of a minority with the indifference of the many that made possible the whole development from the first restrictions to the final extermination.' Indifference, far from being neutral, is always on the side of the executioner. (Cohn, Warrant for Genocide: The Myth of the Jewish World Conspiracy and the Protocols of the Elders of Zion, (p. 200). Cited by Roger W. Smith, in Fantasy, Purity, Destruction: Norman Cohn's Complex Witness to the Holocaust in "Bearing Witness to the Holocaust 1939-1989" (p. 121), edited by Alan L. Berger.)

If the reader considers studies of totalitarianism in 1930s-40s Germany and conquered nations not relevant to Brummer's case, consider what a life sentence of incarceration would mean to someone you know wrongfully convicted of first degree intentional homicide in her young 20s, just months home after a five-year stint serving her country, (straight out of high school), in the U.S. Air Force.

As a Brummer advocate's signature on her emails reads: "There is no crueler tyranny than that which is exercised under cover of law, and with the colors of justice ..." - U.S. v. Jannotti, 673 F.2d 578, 614 (3d Cir. 1982)

An independent conviction integrity unit would have and still can free Penny Brummer and who knows how many other wrongfully convicted (and finally exonerated) Forest Shombergs, Ralph Armstrongs, Anthony Hicks, and Audrey Edmunds, or anyone black and in the wrong place at the wrong time in Dane County.

White papers on conviction integrity units include Conviction Integrity Units: Vanguard of Criminal Justice Reform and An Epidemic of Prosecutor Misconduct.

Writes Mark Godsey, (Daniel P. and Judith L. Carmichael Professor of Law, University of Cincinnati College of Law; Director, Center for the Global Study of Wrongful Conviction; Director, Rosenthal Institute for Justice/Ohio Innocence Project) on police, prosecutors as passive accomplices (my words):

What’s scary is how tenaciously police and prosecutors cling to their initial assumptions—and how much this reflects basic human tendencies. ...

It’s natural for police and prosecutors to want to ease public fears. And it’s also natural for them to stick with the evidence that supported their preferred explanations. As University of Wisconsin clinical law professor Keith Findley shows in his excellent 2010 article Tunnel Vision, the phenomenon 'is the product of a variety of cognitive distortions,' chief among them confirmation bias. In other words, we tend to give weight to evidence that confirms our existing beliefs. 'Although such confirmation-biased information is often less probative than disconfirming information might be, people fail to recognize the weakness of the confirming feedback they receive or recall,' Findley writes. He cites studies finding that 'police officers who are convinced that a suspect is lying are very resistant to changing their minds' and often 'rate disconfirming or exonerating evidence as less reliable or credible than guilt-confirming evidence that supports their initial hypotheses.'

I called Brandon Garrett, the law professor who wrote the book on wrongful convictions and why they happen, and he pointed out that police and prosecutors have no obligation to pursue alternative explanations, or even to follow a particular method of investigation or keep a record explaining the course they’re taking. Which means it’s close to impossible to hold them accountable for their errors. 

Errors and the indifference of the many. These features of American society ought instruct the creation of independent integrity units in every territorial law enforcement jurisdiction in the nation.

Alabama Lawmakers Propose Conviction Integrity Unit

Alabama, that's Al . a . bama has introduced legislation to review the integrity of felony convictions.

Reports Tim Lockette of the Anniston Star from Montgomery: A Republican member of the Alabama State Senate, (Sen. Dick Brewbaker, R-Montgomery), wants to create an Innocence Inquiry Commission to review felony convictions.

Time for my county, Dane County, to catch up to reformist Republican lawmakers in Alabama. Indeed, statewide, especially Milwaukee and Dane County, the need for conviction integrity units is clear, (Mal Contends).

Lots of talk behind the scenes among jurists of the necessity of an independent Conviction Integrity Unit (CIU) in Dane County enacted by the Dane County Board of Supervisors.

See Conviction Integrity Units: Vanguard of Criminal Justice Reform and An Epidemic of Prosecutor Misconduct, and the Innocence Project's Conviction Integrity Unit Best Practices for white papers.

Consider the cases from Dane County and the wrongful convictions such as Penny Brummer, and Forest Shomberg, and Ralph Armstrong, and Anthony Hicks, and Audrey Edmunds. These people had decades taken from the lives, and the toll on their families is incalculable.

An independent Conviction Integrity Unit (CIU) analyzing and providing recommendations to the District Attorney's office could have taken years off their wrongful sentences and returned these innocents to their families. CIU recommends X because of Y, Z. Easy to contemplate how facts and science would reveal the rush to judgement and tunnel vision all too common in law enforcement.

Consider Penny Brummer.

Any examination of the integrity of the 1994 conviction of Penny Brummer would lead to the exoneration of Ms. Brummer as there is literally no case against Brummer who was convicted anyway by a jury, most of whom were admitted homophobes.

If you have not signed the petition calling for a new trial, please do.

An observer of Ms. Brummer's case remarked if Wisconsin had a death penalty, the resulting necessary scrutiny of Brummer's case would have already led to her exoneration. Instead Brummer has fallen through the cracks of the criminal justice system, like an untold number of others.

Consider Dane County.

With the analytical resources available in the Dane County citizenry, staffing a Conviction Integrity Unit with retired jurists, scholars, students, journalists, intellectuals from labor, business and myriad other segments of the community, a low-cost check on the criminal justice system could result in avoiding tragedy. Finding CIU staff who would happily work for a stipend would be easy.

We must ask ourselves the question: How cheap are lives in Dane County?

"There is no crueler tyranny than that which is exercised under cover of law, and with the colors of justice ... ."
 - U.S. v. Jannotti, 673 F.2d 578, 614 (3d Cir. 1982)

Why Prosecutors Go after Innocent People

Penny Brummer v. Wisconsin is test case of the integrity of Wisconsin's criminal justice system

"John Pfaff is a professor of law at the Fordham University School of Law in New York City. His research focuses on explaining the causes of mass incarceration, especially the central role prosecutors have played in the process," as noted in the Washington Post.

In one of Professor Pfaff's academic essays on empirical evidence at trial, Pfaff notes of the adversarial character of the trial process in American criminal law, "the US Supreme Court said in Tehan v United States, 383 US 406, 416 (1966), '[t]he basic purpose of a trial is the determination of truth,'" (Phaff, PrawfsBlawg).

This stated purpose is ironic to the 1,000s of wrongfully convicted Americans.

As it stands now, the purpose of the trial, the distribution of resources, and the culture of the prosecutor is to obtain as many convictions as possible, and for those charged and wrongfully convicted with decades-long sentence, well, that would be a Your Problem.

There are careers at stake, so innocents spending their lives incarcerated is not of the moment.

Exonerations, wrongful convictions, rampant Brady violations are met with anti-intellectualism among smug bureaucratic careerists and the Sovereign, the state as embodied in the American prosecutor, even as calls ring out across the country for "humility" and reform. And prosecutors are licensed to lie.

Professor Pfaff has a piece in the Post this week discussing why prosecutors go after innocent people, a phenomenon that does not trouble the body politic much unless the accused or investigated happens to be backed by the Koch brothers and other moneyed interests, Wisconsin's Scott Walker, for instance.

In Wisconsin even an investigation or audit is met with askance at best from the quasi-fascist Party now holding power.

In this week's Post, Praff writes:

Clearly, prosecutors do file charges against innocent defendants. The instances that receive media attention tend to be intentionally wrongful, those where the evidence of innocence is overwhelming but prosecutors storm ahead anyway, out of malice or blind ambition.

But I bet most wrongful convictions aren’t the product of such decisions. Prosecutors generally deal with ambiguous cases. What incentives do they face, when acting in good faith, to err on the side of 'safety' and file the charges vs. erring on the side of 'caution' and dropping the case? Locally elected prosecutors surely do think about innocence, and not just because they don’t want a wrongful conviction scandal to derail a reelection campaign, but there aren’t many restrictions keeping them from filing charges beyond increasingly weakened trial protections and personal ethics.

Prosecution in the United States is a highly local affair. Almost all criminal cases are handled by one of the nation’s approximately 2,400 prosecutor offices, and in 46 states these prosecutors are elected in county-level elections. While prosecutors almost always win their reelection campaigns and often run unopposed, electoral victory isn’t guaranteed. Data indicate that prosecutors running for reelection win 95 percent of the time, but only 69 percent of the time when facing opposition (although that rate rises to almost 80% in larger districts). And several people have reminded me that prosecutors are political creatures, and thus they are sensitive to electoral pressures even when victory seems assured.

So who applies this pressure?

Only a small group: Not very many people vote in these elections. In 2013, for example, a bitterly contested primary battle in Kings County, N.Y., resulted in barely 20 percent voter turnout. And in the 2012 general election in Cuyahoga County, Ohio, 34 percent of those who voted simply skipped voting for prosecutor altogether, despite being in the polling booth already.

Moreover, those who do vote tend to be wealthier, whiter and more suburban, while those who are prosecuted are disproportionately poor, minority and urban. Most cities, for example, are parts of bigger counties that include rings of wealthier suburbs. And these suburbs, as legal scholar William Stuntz has pointed out, tend to wield disproportionate power when it comes to prosecutor elections, even though crime is concentrated in the cities.

Thus the costs of wrongful convictions are disproportionately borne by the group with less political power, or at least a weaker political voice. (Urban minorities are also the biggest beneficiaries of effective crime-fighting by prosecutors, which makes their reduced political voice all the more troubling.)

In Wisconsin, an anthology of most everything that is wrong with the police-prosecutor state, this April 5 Election Day will likely see a 50-some percent turn-out for the open Wisconsin Supreme Court seat but this is because the Court election will be on the same ballot as the Presidential Preference Primary election.

Typically, the top appellate court in Wisconsin election will bring out 20-some percent of voters with candidates presenting their police and sheriffs' endorsements as credentials critical to impartial judicial scholarship on the bench in their political ads, as open corruption is now SOP on the Court.

At some point, when the Sovereign surpasses a tipping point, when a politically ambitious district attorney like Brian Blanchard (2001-2010) files a criminal charge against an eminent University of Wisconsin-Madison historian, Stanley Kutler (1934-2015), the slow-reacting political system will begin to ask what the hell is going on.

Hon. Alex Kozinski on the Prosecutor

CRIMINAL LAW 2.0

From the Georgetown Law Journal:

Hon. Alex Kozinski (1)

Although we pretend otherwise, much of what we do in the law is guesswork. For example, we like to boast that our criminal justice system is heavily tilted in favor of criminal defendants because we’d rather that ten guilty men go free than an innocent man be convicted. (2) There is reason to doubt it, because very few criminal defendants actually go free after trial. (3) Does this mean that many guilty men are never charged because the prosecution is daunted by its heavy burden of proof? Or is it  because jurors almost always start with a strong presumption that someone wouldn’t be charged with a crime unless the police and the prosecutor were firmly convinced of his guilt? We tell ourselves and the public that it’s the former and not the latter, but we have no way of knowing. They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape.

1. The  author  is  a  judge  on  the  Ninth  Circuit.  He  wishes  to  acknowledge  the  extraordinary  help provided by his law clerk, Joanna Zhang. © 2015, Alex Kozinski.
2. Actually, as Sasha Volokh points out, the  number of guilty men we are willing to free to save an innocent one is somewhat indeterminate.
See Alexander “Sasha” Volokh, n Guilty Men, 146 U. PA. L. REV. 173, 187-92 (1997).
3. According  to  the  most  recent  United  States Attorneys’ Annual  Statistical  Report, out of the  3424 federal criminal cases that went to trial in 2013, only 228, or about 6.7 percent, resulted in acquittals. See Dep’t  of  Justice, U.S. Attorneys’ Annual  Statistical  Report:  Fiscal  Year  2013,  at  51-56, Tables 2 & 2A (Sept. 22, 2014),
available at http://ww stice.gov/sites/default/files/usao/legacy/2014/09/22/13statrpt.pdf

Conviction Integrity from St. Clair County Illinois to Dane County

News from this weekend comes from St. Clair County, Illinois.

This southwestern county in Illinois was not a place on my radar screen, for anything. It is now.

George Pawlaczyk and Beth Hundsdorfer report in the Belleville News-Democrat (Illinois) a new Conviction Integrity unit begun in 2013 as a check on wrongful prosecutions and wrongful convictions has already exonerated a full nine people.

"[N]ine defendants accused in eight cases have been freed in prosecutions that involved murder, armed robbery, predatory criminal sexual assault, reckless homicide, possession of a weapon by a felon and felony retail theft," note Pawlaczyk and Hundsdorfer.

Nine more innocents exonerated from a county roughly half as populous as Dane County Wisconsin in some two years.

As Wisconsin (and the nation) comes to grips with the fact police routinely lie, coerce innocents and cook reports, prosecutors' prime objective remains to achieve statistics of convictions over truth. Reforms in district attorney's offices are as common as a 50-degree January day in Wisconsin, and the question arises what is to be done.

The criminal justice sensation chronicling the moral and legal disgrace in Manitowoc County Wisconsin, Making of Murderer, has provoked a reaction among law enforcement jurists.

This reaction from Wisconsin law enforcement, I'm told, is one of smug arrogance, inappropriate from the prosecutorial offices holding so much power over the liberty of American citizens in a Constitutional democracy.

Then again most jurists don't become prosecutors to serve the citizenry, and the district attorney's office is not a fountain of soul-searching intellectuals who stay up nights pondering what went wrong when another innocent is exonerated after losing decades of his or her life.

This isn't grade school, folks: Let's acclaim a truism, the district attorney's office (or the state's attorney's office) is typically a stepping stone to enhance a legal career; maybe a lucrative position as a partner in as a defense attorney in a mid-sized firm, (unless your were drummed out of office like the fetid, ethics-free Ken Kratz who runs a small firm exiled up north in Superior, Wisconsin) or maybe a cushy, tax payer-financed judgeship awaits.

Dane County's Penny Brummer

In Dane County, readers are familiar with the wrongful conviction of Penny Brummer, as the Innocence Project, journalists, jurists, scholars and advocates know well this woman is innocent and they cannot, to this point, get Ms. Brummer out of prison, much less exonerate her. No evidence plus no motive equals no justice for Penny Brummer, but hey, she is a lesbian and served in the military right out of high school. By the way, please consider signing this new petition RE getting Ms. Brummer a new trial.

The reason Brummer remains in prison, to be candid, is the obstinance of the district attorney's office, and the absence of an independent county Conviction Integrity Unit.

Considering the analytical resources in Dane County and the University of Wisconsin-Madison's Frank J. Remington Center, there is every citizen resource in place to draft a mission statement, policies and procedures, criteria and scope of an independent Conviction Integrity Unit as a check on wrongful prosecutions and convictions in Dane County such as Penny Brummer, and Forest Shomberg, and Ralph Armstrong, and Anthony Hicks, and Audrey Edmunds, perhaps you notice a pattern forming: These are human beings. And this is just a partial list in Dane County where being exonerated is very difficult and takes a lot of luck along with the dedication of the Innocence Project, for example.

Most of the growing number of Conviction Integrity units across America are part of the district attorney's office and their efficacy is under debate.

But in St. Clair County, Illinois, State's Attorney Brendan Kelly's Conviction Integrity unit works before conviction and a case's inception into Conviction Integrity protocol is begun at the request of defense attorneys to the state's attorney.

No reason Dane County cannot establish a Conviction Integrity Unit, independent from the district attorney's office, and staff it with retired jurists, journalists, students and other scholars.

Ask Brummer, Shomberg, Armstrong, Hicks, and Edmunds (and an untold number other citizens) if this might be a good idea.

To end on a positive note, $16.8 Million was awarded by the State of Connecticut to four wrongfully convicted men last week. Good thing those guys don't live in Manitowoc County, or Dane County.

"The quest for a conviction cannot outweigh the Constitution rights of an accused," wrote Commissioner J. Paul Vance, Jr., Claims Commissioner of the State of Connecticut.

Dare to dream.

On Wrongful Convictions and Penny Brummer

Updated - Here is a strong recommendation for Christmas weekend binge watching: The Making of a Murderer (Ricciardi and Demos, Netflix). Wisconsin viewers will recognize many of the players, the chilling police and prosecutor duplicity, the cover-ups, the lies, and the pathological lack of conscience of Wisconsin law enforcement. Raves are pouring in, this is a masterpiece that ought to shake the foundations of the state criminal law system. It won't.
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Wrapping up for Christmas Day weekend early, we note here again the findings of the first, systematic empirical study on actual innocence, wrongful convictions and exonerations.

"Police and prosecutors maintain their roles ... serving as the largest combined source of opposition to exonerations," conclude Jon B. Gould and Richard A. Leo in their important Path to Exoneration research paper.

Noted here at this site and across the Madison, Wisconsin press has been the case study of a wrongful conviction: Penny L. Brummer v. Wisconsin (Dane County Case Number 1994CF000617) (1994).

Standing in the way of exoneration are the police and the District Attorney's office.

There have been numerous exonerations in Wisconsin and in Dane County, (Wisconsin Innocence Project) and only a fool can doubt more innocent people remain behind bars today.

Yet, as we read of the exoneration of one Wisconsin citizen after another (Barton, Milwaukee Journal-Sentinel), there is not widespread outrage from jurists, no public demand for accountability from the police and prosecutors, no call for change in the police-prosecutor state about which the prescient 20th century jurist (and chief prosecutor for the Allied Forces at Nuremberg), Robert H. Jackson, warned our country about 75 years ago.

Instead, we find local police and prosecutors serving as the largest combined source of opposition to exonerations, and as eager foes of liberty.

To Penny Brummer and many other victims, please note in this holiday season: You are not forgotten.

As for Dane County Wisconsin, one step should be the establishment of a Conviction Integrity Unit independent of the District Attorney's office (acting in an advisory capacity) that can serve as a political check on cases such as the shabby investigation, the retrograde bigotry, passive compliance and careerism of law enforcement that caused Penny Brummer to serve year 21 now of a life sentence for an alleged homicide of which I believe prosecutors, police and many others know she is innocent.

To state what should be obvious: The careers of law enforcement officials are trivial in comparison to the life and liberty of the Wisconsin citizenry.

Looking for justice in Wisconsin—Penny Brummer

Research Report: Prosecutors, Police Protect Wrongful Convictions; Ignore Facts

Jon B. Gould and Richard A. Leo have a Research Paper out studying exonerations and wrongful convictions.

The conclusions drawn from the empirical study of exonerations indict the American criminal justice system, and show police and prosecutors will stand by convictions and arrests in the face of any exculpatory evidence.

Not many exonerated Georgia Thompson v. United States and Forest Shomberg v. Wisconsin cases around the nation, in which judges toss out cases and vacate convictions, (Cohen, NYT; Davidoff, Isthmus). Prosecutors can be counted on to defend wrongful convictions, seeking 'wins' over justice. Not many Robert H. Jackson fans around today.

Gould and Leo's abstract from their paper reads as follows:    

This article is the first systematic empirical study of how the American criminal justice system discovers and responds to factual error based on actual innocence. The study analyzes a data set of 260 cases of wrongful conviction of the innocent and 200 near misses (i.e., dismissals and acquittals involving an innocent defendant) to better understand the sources of and bases for exoneration; who is responsible for, as well as who opposes, exoneration; the statistical correlates of exoneration; and the primary methods and mechanisms involved in the path to exoneration.

This study leads to several findings. First, wrongful convictions are difficult to reverse in the absence of dispositive evidence of innocence. The vast majority of exonerations relied on one or two bases, and even then most required DNA evidence. Second, the adversarial nature of the criminal justice system continues from the trial level to subsequent efforts to exonerate the innocent. Police and prosecutors maintain their roles, infrequently playing a central part in investigating or advocating for exoneration and serving as the largest combined source of opposition to exonerations. Finally, exonerations take a long time, even longer when based on DNA evidence, which appears to be the primary basis for clearing defendants.

After examining these findings, the authors advocate for the following changes in the United States criminal justice system: 1) police and prosecutors must take a more active role in the review and reversal of factually erroneous convictions; 2) additional juridical proceedings are needed for the wrongly convicted to prove their innocence even after conviction; 3) efforts must be made to prevent wrongful convictions at the front end because the resources for freeing the wrongly convicted are so limited and the path to exoneration following conviction is filled with formidable challenges.