Supreme Court Dodges Long-Running Dispute Over Defendant’s Right to Psychiatric Expert

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A photo of the Supreme CourtThree decades ago, in Ake v. Oklahoma, the Supreme Court held that indigent criminal defendants have a constitutional right of access to a psychiatric expert in some cases. More specifically, the Court stated, “[W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” 470 U.S. 68, 83 (1985).

This seemingly straightforward holding has spawned a number of long-running disputes in the lower courts. Among the more important lingering questions is this: May a state satisfy its obligation under Ake by supplying the defendant with access to a neutral expert who is equally available to both sides, or must the state engage an expert who will truly serve as a member of the defense team? Of course, a wealthy defendant would almost always be well-advised to hire his own expert, rather than merely relying on a neutral, but Ake does not necessarily guarantee that poor defendants will have all of the advantages of their rich counterparts.

With the lower courts split on this question, the Supreme Court finally seemed poised to provide a definitive answer this term in McWilliams v. DunnHowever, when the Court issued its McWilliams decision earlier this week, the justices actually ruled in the defendant’s favor on quite narrow, case-specific grounds, leaving the big question about the acceptability of a neutral expert unanswered.

Whenever the Court gets around to answering the question — and, given the way that matters were resolved this week, McWilliams itself could well provide the vehicle on a return trip to the Court — the justices will confront a difficult issue that touches more generally on the role of experts in an adversarial system of justice, and even on the very nature of scientific knowledge.

Our ideal for science is objective knowledge. We hope that scientists will develop analytical methods that will invariably yield the same conclusion as to the same subject, regardless of who is doing the analysis.

If tests for mental illness are “scientific” in this sense, then there seems little unfairness in limiting the defendant to a neutral psychiatrist. The only way in which having an expert on the defense team might change the outcome would be if the defendant’s “hired gun” were dishonest or incompetent — and there surely cannot be a constitutional right to mislead the jury with bad science.

Thus, the claim that the defendant should have his own expert seems implicitly grounded in a belief — accurate, I should think — that psychiatric diagnosis does not always fit that ideal of wholly objective and indisputable conclusions. In the American legal tradition, of course, we look to adversarial process to determine the truth when there are two conflicting, but both still plausible, versions of reality available. Thus, if reasonable psychiatrists could differ over a defendant’s diagnosis, it seems natural to fall back on adversarial process and give each side an opportunity to make the best case possible for its version of reality, including with its own expert witness. We are accustomed to think that the truth will emerge from such an adversarial clash.

And, yet, there is something disquieting about this picture. When we ask a jury to choose between two competing stories about what a defendant did, we count on the jury to use its common sense and life experience to decide which version of reality is more plausible. But, when the question instead relates to what was going on in the defendant’s head, it is not so clear that common sense and life experience are up to the challenge. After all, the essence of the defendant’s claim is that his brain was not working in a way that is familiar to most lay people in their day-to-day lives. The very reason we bring experts to bear to try to deal with the issue makes lay jurors seem unqualified to pick between the two different versions of reality being presented.

There does seem a dilemma here. If we use only a single, nominally neutral expert, then the jury may be left with a sense in some cases that the science is more certain and one-sided than it really is. On the other hand, if we arm each side with its own expert, then we implicitly ask the jury to perform a task for which it is ill-equipped — adjudicating the scientific quality of competing expert opinions. There may be ways of alleviating the concerns — e.g., through use of a neutral panel of experts — but such approaches tend to raise cost and other practical difficulties.

Perhaps the conundrum helps to explain why the Court has not seemed anxious to resolve the big question that was posed by McWilliams.




Saving by Investing in Civil Legal Aid

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Category: Civil Rights, Family Law, Legal Profession, Poverty & Law, Pro Bono, Public
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Kara is a single parent with two children. She works full-time, but still makes less than $1,500 each month. Kara’s boyfriend Jay, the father of one of Kara’s two children, lives with her, but does not always contribute to the household. In addition, he’s physically abusive to the family cat and to Kara. After the most recent incident where Jay pushed Kara into the wall and grabbed her arm so hard he left a bruise, Kara wants him to leave. And she wants a restraining order. But knowing who to call and where to go—and, most of all, how to pay for services she’ll need—is overwhelming her. If Kara lives in a state that invests in civil legal aid, she’ll have no problem finding resources and will be able to have a lawyer represent her—at little to no cost to her—at any court hearing she needs to get a domestic violence injunction.

While Kara’s story is merely illustrative—though many people experience circumstances like Kara’s every day—its larger point is important. Civil legal aid is a combination of services and resources that helps Americans of all backgrounds—including those who face the toughest legal challenges: children, veterans, seniors, ill or disabled people, and victims of domestic violence—to effectively navigate the justice system. Civil legal aid helps ensure fairness for all in the justice system, regardless of one’s ability to pay. It provides access to legal help for people to protect their livelihoods, their health, and their families. Civil legal aid makes it easier to access information through court forms; legal assistance or representation; and legal self-help centers. Civil legal aid also helps streamline the court system and cuts down on court and other public costs. When we say the Pledge of Allegiance, we close with “justice for all.” We need civil legal aid to ensure that the very principle our founders envisioned remains alive: justice for all, not the few who can afford it.

Our state has had a rocky history of funding civil legal aid programs. While the state did begin such funding, of late, that funding has since dropped precipitously. In 2007, for the first time in Wisconsin history, the legislature included nearly $2 million in the state budget for civil legal aid. In 2009, the funding was increased to just over $2.5 million. But in 2011, the funding was eliminated completely from the state budget. From 2012-2015, Wisconsin was one of just three states that did not provide any funding for civil legal aid for low income people. (The other two are Florida and Idaho.) Read more »




Juvenile Court or Adult? New Research on the Consequences of the Decision

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Juvenile courts were invented at the end of the nineteenth century and spread rapidly across the U.S. Proponents argued that juvenile offenders were more readily rehabilitated than adults, and should be handled through a different court system that focused on treatment and spared offenders the permanent stigma of a criminal conviction. By the 1990s, though, attitudes toward juvenile offenders had grown more pessimistic and punitive. Although juvenile courts were not eliminated, most states adopted reforms that either reduced the maximum age for juvenile court jurisdiction or facilitated the transfer of some juveniles to adult court.

More recently, the pendulum of public opinion has begun to swing back in favor of juvenile courts. Connecticut, Illinois, Louisiana, Massachusetts, Mississippi, New Hampshire, and South Carolina have all expanded the jurisdiction of their juvenile courts. There has also been a push in Wisconsin to raise the age of majority and keep some seventeen-year olds in juvenile court. A few states are even considering raising the age of majority to twenty-one.

Two intriguing new articles explore some of the social consequences of channeling more young offenders into juvenile court.   Read more »




Calling 911 in the Wake of Police Violence

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Category: Civil Rights, Criminal Law & Process, Human Rights, Media & Journalism, Milwaukee, Political Processes & Rhetoric, Poverty & Law, Public, Race & Law
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black_lives_matter_sign_-_minneapolis_protest_22632545857Amanda Seligman is a Visiting Fellow in Law and Public Policy at Marquette University Law School.

How does racially-tinged police violence toward civilians affect city residents’ willingness to summon aid in an emergency? A study in the October 2016 American Sociological Review asks what happened to the number of 911 calls after the public revelation that off-duty white Milwaukee police officers beat Frank Jude in 2004. In “Police Violence and Citizen Crime Reporting in the Black Community,” Matthew Desmond, Andrew V. Papachristos, and David S. Kirk find that in the year after the initial publicity around the beating, Milwaukee residents placed 22,000 fewer 911 calls than might have been expected, resulting in a total of 110,000 calls. Although white neighborhoods saw a spike in 911 calls and then a long but shallow dip, the loss of calls was especially pronounced in black neighborhoods. The authors found no such loss of calls reporting traffic accidents.

Desmond et al.’s 911 study received extensive mass media coverage. Juleyka Lantigua-Williams wrote about the study in The Atlantic, and the New York Times’sThe Upshot” column reported the findings. The study was the subject of two articles in the Milwaukee Journal Sentinel, one reporting on the findings and one offering responses from District Attorney John Chisholm and Milwaukee Police Chief Edward Flynn. Two of the authors, Desmond and Papachristos, also published an Op-Ed piece in the New York Times commenting on the significance of their research. A small host of other reports suggest broad interest in the study’s implications in the context of the Black Lives Matter movement and widespread coverage of police shootings of African American civilians.

Sociologist Desmond is one of our most thoughtful observers of the cultural significance of the 911 emergency call system. In Evicted, his 2015 ethnographic study of housing and poverty in Milwaukee, Desmond observed how victims of domestic violence put themselves at risk for losing their homes if they call the police too often. Read more »




Author Says Urban Progress Requires “Durable” Policy

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A few phrases provide a taste of the serious serving of thoughts about urban centers in America offered by Patrick Sharkey, a sociology professor at New York University, at an “On the Issues with Mike Gousha” program at Marquette Law School on Tuesday.

“Multi-generational cumulative exposure.” Sharkey is author of the book, Stuck in Place: Urban Neighborhoods and the End of Progress Toward Racial Equality, and is working currently on issues related to violence and low-income communities. A key to his findings is that the problems facing people who live in poor, predominantly minority areas have built up for generations and show themselves in multiple serious ways, including the educational success and future prospects of children.

“A durable urban policy agenda.” Sharkey said that one thing that has shown positive results is sustained effort to help people with housing, jobs, education, and other matters – with the emphasis on the word “sustained.” So many initiatives are launched and then dropped, he said. He said he doesn’t see durable policy coming from the federal government. The waning of such efforts after the late 1960s is one of the main reasons progress in closing racial gaps stopped, he said. But durable efforts have been undertaken on more local levels, and that gives him some cause for optimism. Read more »




MVLC Receives Two Awards for Service to Low-Income People

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Through efforts such as the Marquette Volunteer Legal Clinic (MVLC), “we are chipping away at poverty by bringing greater access to justice,” says Angela Schultz, Marquette Law School’s assistant dean for public service.

The documentable record of the clinic in providing thousands of low-income people with access to legal help earned honors at two events this week.

On Tuesday, Milwaukee Archbishop Jerome E. Listecki presented a “Treasures of the Church” award to the clinic in recognition of the success of the Mobile Legal Clinic, which was launched in 2014 as a joint project of Marquette LMobileLegalClinic-noblueaw School, the Milwaukee Bar Association, and Milwaukee County. The recognition came as part of Archbishop’s Lenten Luncheon. The Treasures of the Church awards recognize those who have shown steadfast commitment in response to the needs of poor people.

On Thursday, the United Community Center, a large social service and education provider on the south side, recognized the MVLC as its “group volunteer of the year.” Read more »




Metcalfe Fellow Calls for Renewed Pursuit of Martin Luther King’s Goals

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A grim assessment of current realities in central cities and some optimism about how things can and ultimately will get better.

That is what Sheryll Cashin, a professor of law at Georgetown University and Marquette University’s 2016 Ralph Metcalfe Fellow, offered in a talk last Thursday in the Appellate Courtroom of Eckstein Hall. The session was part of Marquette’s observance of Dr. Martin Luther King’s birthday.

“The thing I liked about Dr. King is that he always appealed to our betters angels. I believe there are a lot of better angels out there,” Cashin said in response to a pessimistic question from an audience member.

“Change is inevitable,” she said. “Nothing is permanent.”  She urged people not to limit their imagination of a better future for the nation and for those whose lives now are shaped by “a nasty othering” at the hands of those with power and wealth.

Cashin, a former law clerk for Supreme Court Justice Thurgood Marshall, focused on a set of lectures that Dr. King delivered in 1967 on Canadian public radio. She compared what King said then to circumstances now, saying little has improved in central cities, and some things have gotten worse. Read more »




Urban Poverty Conference Offers Insights and Some Bits of Hope

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“Urban Men in Poverty: Problems and Solutions” – that was the name of a morning-long conference at Eckstein Hall on Friday. Not surprisingly, the content of the gathering, which featured presentations from five professors from four universities, shed more light on the problems than the solutions. The problems are large and urgent, and good research illuminates them. The solutions are much more difficult to identify and implement.

That gave the conference a lot of content but a sobering tone. On the other hand, hope was present too.

For one thing, the fact that such a gathering occurred was a promising sign, Marquette University President Mike Lovell told the audience of more than 200. This was the first collaboration between the University of Wisconsin-Madison La Follette School of Public Affairs and Marquette Law School. Lovell suggested this was an example of the kind of partnerships that are needed to create change.

“The only way we’re going to face and overcome the problems of urban men in poverty is by working together,” Lovell said. He said there are no easy answers. The problems related to urban men in poverty are rooted in events of decades. Solutions will not come quickly.  But, he said, he was excited so many people with serious interest gathered to show commitment to pursing solutions. Read more »




MULS Conference to Consider Human Trafficking and Restorative Justice

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Category: Criminal Law & Process, Human Rights, Immigration Law, International Law & Diplomacy, Labor & Employment Law, Marquette Law School, Milwaukee, Poverty & Law, Public
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MartinaVImage_0On Thursday and Friday, Marquette Law School will host an important conference, “Restorative Justice and Human Trafficking — From Wisconsin to the World.”  As the title suggests, human trafficking — for sex or labor — is a both a global human rights problem and a significant issue locally.  Hundreds of cases have been reported in Wisconsin, mostly in the Milwaukee area.  The conference is designed to raise awareness about trafficking and to help concerned citizens get involved in efforts to address the problem.

The Conference kicks off at 4:30 on Thursday with a keynote address by Martina Vandenberg (pictured above), who leads the Human Trafficking Pro Bono Legal Center in Washington, D.C.  Vandenberg has worked on cases involving trafficking and other humans rights violations around the world.

On Friday, the Conference will continue with a full schedule of speakers and panels.  A panel of victim-survivors will share their experiences.  Local leaders and activists will discuss the impact of trafficking and current efforts to help victims.  Other speakers will cover the existing legal framework, potential legal reforms, and the international context of trafficking.

The Conference is sold out, but there will be a live feed that can be viewed by clicking on the “Watch Now” tabs in the pages linked to above.




Mercenary Justice?

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Earlier this week, the United States Department of Justice released a scathing report on police and court practices in Ferguson, Missouri. Figuring prominently in the DOJ’s criticisms, Ferguson criminal-justice officials were said to be overly concerned with extracting money from defendants. For instance, the DOJ charges:

Ferguson has allowed its focus on revenue generation to fundamentally compromise the role of Ferguson’s municipal court. The municipal court does not act as a neutral arbiter of the law or a check on unlawful police conduct. Instead, the court primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the City’s financial interests. This has led to court practices that violate the Fourteenth Amendment’s due process and equal protection requirements. The court’s practices also impose unnecessary harm, overwhelmingly on African-American individuals, and run counter to public safety. (3)

I don’t know how fair these particular criticisms are, but they echo numerous other criticisms made in recent years about the increasing tendency of the American criminal-justice system to rely financially on a burgeoning array of surcharges, fees, forfeitures, and the like.

Professors Wayne Logan and Ron Wright have a fine recent article on this subject, appropriately entitled “Mercenary Criminal Justice” (2014 Ill. L. Rev. 1175).   Read more »




Violence in the Heartland, Part VI: Cities Within the City

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My most recent posts in this series have compared violent crime data from different cities. However, focusing on a single crime-rate number from a city may mask wide neighborhood-to-neighborhood variations within the city.

Consider Milwaukee. A helpful on-line data tool permits interesting comparisons among the city’s seven police districts. The data reveal that rates of violent crime vary within the city by about as much as they do across cities. Here, for instance, are the homicides per 100,000 district residents since 2010:

district homicide

District 5, encompassing the north-central portion of the city, has easily had the highest homicide rate each year, while Districts 1 (downtown and northeast) and 6 (far south) have easily had the lowest. (District boundaries are described in more detail here.)

Robbery rates reflect a similar pattern:   Read more »




Impact of Reductions in Poverty-Fighting Increasingly Affecting Policing, Flynn Says

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“Think big, folks,” Milwaukee Police Chief Ed Flynn urged a full-house audience in the Appellate Courtroom of Eckstein Hall on Tuesday. And Flynn did that himself during an “On the Issues with Mike Gousha” program, taking a broad view of the role of police in protecting and enhancing the quality of life of people and communities in the city.

Flynn’s perspective focused frequently on how police have become the ones dealing with a gamut of social problems, as well as criminal problems, as public investment in programs aimed at helping people, especially those in poverty, have declined across the United States.

Over the last 25 years, Flynn said, “we have seen a consistent and unrelenting disinvestment in the social network, OK?” He gave mental health as an example: “Right now, the response of our society to issues of mental health is the criminal justice system. I’ve seen this for years and it’s becoming more so. . . . If you have a mental health problem, we can guarantee you a jail cell.” He said substance abuse problems are another example. “What is our social network dealing with substance abuse? Jail.”

Flynn, who is in his sixth year as Milwaukee’s police chief, said, “I’ve got 1,800 men and women out there who are being asked to deal with virtually every single social problem that presents as an inconvenience, discomfort or issue. . . . It is this one group that right now has the weight of every single social problem on it. And maybe we should start asking ourselves, do we need to double back and see what else we’re doing?” Read more »