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Critic's Corner

Dec 5, 2017

CRITIC’S CORNER: Defense of jury instruction 140 falls flat

Wisconsin’s criminal jury instruction 140 describes the prosecutor’s burden of proof as “beyond a reasonable doubt.” However, it then contradicts itself by telling the jury “not to search for doubt” but instead “to search for the truth.”

Jun 26, 2017

CRITIC’S CORNER: ‘Mistakes were made’: A reply to Michael Griesbach

Wisconsin prosecutor Michael Griesbach recently wrote, “To be sure, mistakes were made in the Avery case.”

May 10, 2017

CRITIC’S CORNER: Critical omissions in ‘Making a Murderer’?

Whenever I write a motion or a brief on behalf of a client, it inevitably requires that I quote language from a published case, the criminal complaint, or some other document.

Apr 4, 2017

Anything you say (or don’t say) can be used against you

When confronted by the police, innocent suspects often want to talk in order to clear up things on the spot. But in many cases, the police will only hear what they want to hear, and will spin an innocent person’s denial into evidence of guilt.

Jan 31, 2017

CRITIC’S CORNER: Weird science in Wisconsin courts

Steven Avery was convicted of murder in 2007. At his trial, the state called numerous scientific experts to help seal his fate. Then, a few years later, Wisconsin adopted the stricter Daubert standard for the admissibility of expert testimony. Had this supposedly tougher standard been in effect earlier, how would it have affected Avery’s trial?

Dec 14, 2016

CRITIC’S CORNER: Law schools, lawyers, and dead philosophers

Many law schools have let their students down over the past decade.

Oct 31, 2016

CRITIC’S CORNER: Wisconsin courts as ‘superlegislatures’

Wisconsin courts have a long history of acting as a “superlegislature” and ignoring — and even contradicting — the Legislature’s words when doing so benefits the state.

Sep 12, 2016

CRITIC’S CORNER: Convicting Dassey: Five easy steps to a false confession

The trouble with torture as an interrogation tactic is that the suspect will say whatever the interrogator wants to hear — regardless of whether it’s true. Unfortunately, this problem also plagues today’s softer, more sophisticated interrogation tactics.

Aug 3, 2016

CRITIC’S CORNER: All ‘Riled’ Up: SCOW flops on ethics rule 1.9

In two previous columns I’ve discussed my rule 1.9 petition (written with my fellow attorney Terry Rose and supported by the attorneys Rob and Ellen Henak), in which I asked the Wisconsin Supreme Court to amend ethics rule 1.9.

Jul 1, 2016

CRITIC’S CORNER: The truth (about jury instruction 140) is out there

In my column from March, I wrote about Wisconsin’s criminal jury instruction 140. This instruction explains the notion of reasonable doubt, but then, strangely, concludes by telling jurors “not to search for doubt” when rendering their verdict but instead “to search for the truth.”

Jun 6, 2016

CRITIC’S CORNER: Convicting Avery (and overturning Denny)

The wildly popular Netflix documentary “Making a Murderer” chronicles the two convictions of Steven Avery. The bulk of the documentary concentrated on Avery’s second case — his trial for the murder of Teresa Halbach — in which there was a great deal of evidence that someone else, other than Avery, committed the crime.

May 2, 2016

Open letter to next State Bar president-elect: Lawyers should be allowed to discuss public aspects of closed cases

The next president of the Wisconsin State Bar, Paul Swanson, has promised to serve the organization's members in a variety of ways. I take him at his word, and am writing this open letter to suggest a starting point.


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