In the wake of today’s decision by the U.S. Supreme Court in Missouri v. McNeely, DUI defense attorneys across the land are doing the “happy dance.” Prosecutors (both state and federal) on the other hand are rending their garments and hair trying to figure out how to deal with the high court’s ruling that forced blood draws in most DUI cases will now require warrants, and the flood of “refusals” sure to follow as the implications of the case filter out to the public.
Wisconsin’s approach, first established in 1993 in State v. Bohling and then reinforced in 2004 in State v. Faust had been to allow warrantless blood draws in drunk driving cases after several criteria were met, including the presence of probable cause for the officer to believe the driver under investigation had indeed been driving under the influence of alcohol. The key factor that drove the Wisconsin interpretation was the fact that the blood alcohol level of a drunk driving suspect is continually shifting and dissipating from the time the driver is apprehended, and the extra time it takes to procure a warrant incontrovertibly causes BAC evidence to be lost.
Wisconsin’s rationale had recently served as a kind of dividing line in the national debate about warrantless blood draws. Continue reading “SCOTUS Weighs in on Forced Blood Draws in DUI Cases”
I had my “eureka” moment about appellate advocacy when I was still a law student. With too few credits to even apply for the Milwaukee District Attorney’s “prosecutor clinic,” I still made an appointment to meet with a deputy DA to see if there was some way I could still volunteer and be useful.
I was stashed aside in a room with a table, lots of books and stacks of papers to wait for the meeting, but as I waited my eye was drawn to a slip opinion sitting on the table. I started to read, of course. The case, as I recall, had something to do with how much Spanish language interpretation was due to a defendant at a particular point in the process. I never got to the end of the opinion, so I don’t know how it turned out.
But I remember feeling the light turn on in my head, recognizing in an instant that this was an area of the law where, if you believed passionately in something and gave it your all in the higher courts, win or lose, your words and your efforts had a resonance beyond just a single case.
Of course, at that time I don’t think I even realized that there was a difference between “published” and “unpublished” opinions. Too late now, the fuse was lit! Continue reading “For Love of the Game…”
Just like the prospect of being hanged in the morning, there’s nothing like having fourteen people over to Thanksgiving dinner to concentrate the mind. In my case, it’s also the galvanizing principle to buckle down and clean house.
This year, the task was truly daunting — the family room had become nearly impassible, swamped by pile after pile of paper and other detritus related to serial family emergencies and funerals of the past few years. And let’s face it, if the laws of physics dictate a that an object in motion tends to remain in motion, the rules of law and gravity at my house dictate that clutter tends to remain in place, and magnetically attracts more of the same. Exponentially.
Still, the pool table and foosball tables weren’t going to excavate themselves for company, and so I parked the puppy in “doggie day-care” and rolled up my sleeves. Continue reading “Advice on Appeals from Howard Eisenberg”
The burly blond with the gold chains nestled in his chest hairs sits in the stuffy conference room across the wood table, mulling his options. His wife, short, pert, neatly coiffed and crisply dressed, sits beside him, supportive, argumentative, loyal to a fault.He has been charged with disorderly conduct stemming from a violent evening a month ago when, according to her three-page hand-written statement to police, he scared the living daylights out of her and roughed her up, making her—at least temporarily—regret the presence of his many guns in their house. She sits in front of me now to explain it away, to put the incident in context, to describe their solid marriage, and to express her dismay that the State of Wisconsin would think of holding this wonderful man accountable for his actions that terrifying night.
We are engaged in what’s called a “pretrial conference.” At this point in a criminal case, the accused or an attorney sits down with a prosecutor to discuss the case and see if it can be settled short of a trial. The options are pretty simple: either accept the state’s offer—here a guilty plea in exchange for a recommendation of probation as a first-offender, no gun possession during the probationary period, and counseling—or roll the dice and take the case to trial. In this case, a conviction could potentially trigger a federal law barring him from owning guns in the future.
Faced with the possible gun ban, he decides to take his chances with a jury. When all is said and done, he feels that nothing that he did that night violated any law. His wife is equally obstinate. She will not testify against him, period. Women, she states passionately, should become more educated about what unfair consequences could befall their mates if they call 911 during a domestic incident. I walk them to the conference room door, promise them copies of the police reports, wish them luck. I hope he doesn’t kill her when he reads her statement to the police, written when the incident was still fresh. I feel like I’ve gone through the looking glass. But there’s no time to think more deeply about it, because it’s time to call the next defendant in for a chat.
I am an assistant district attorney for the State of Wisconsin. Welcome to my world. I love my job. Continue reading “Law & Disorder”
I’m going to start this post with the words “when I was in law school…” and hope that they don’t inspire a collective eye-rolling and a quick click to another link. Sort of the way selective hearing kicks in when some old-timer starts a harangue about dissolute modern youth with “when I was a youngster, I had to walk to school in the snow . . . for five miles . . . and it was uphill both ways . . . .”
At any rate, this is a passionate plea for those budding soon-to-be lawyers to PAY ATTENTION IN YOUR CRIMINAL LAW CLASSES!!
Not all that long ago I was as guilty as the next 1L or 2L of paying really rapt attention in the classes that I figured would be my bread and butter after I graduated, and paying enough attention in the other ones to get good grades. Followed by massive mental “information dumps” after the final exams.
I knew I wanted a career in criminal prosecution, and I knew that I would be drawn to appellate advocacy, so I leaned forward intently and absorbed as much as I could, and committed to memory as much as my fading hard-drive of brain cells could assimilate.
As for the rest—trusts and estates, contracts, civil procedure, secured transactions—I figured that if I ever had a legal problem in those areas, I could always hire me a good lawyer. Continue reading “The Real Deal”
“May it please the court.”
The words are enough to strike terror into the hearts of most attorneys I know. They are the first words you speak when you address the Wisconsin Supreme Court in an oral argument. The words are ritual, as standardized and formulaic as Kabuki theater. And I was about to say them myself . . . if I just didn’t faint.
I have a framed photo on my desk at work. It dates from perhaps a year before I started law school at the age of forty, and only a few months before I would break my back in a riding accident, spend three painful months in a body cast, and have the world as I knew it divide into “before” and “after.”
In the photo, I’m standing in a winter woods, with my four children gathered around me. They range, in that picture, from about three years old to thirteen. We are surrounded by pristine snow and bare trees, and framed in a pretty fieldstone archway. I am beaming, and my entire universe revolves around keeping them safe and warm and out of harm’s way. If you had walked up to me then and told me that in just a few short years I would not only be a criminal prosecutor but find myself arguing cases before the state supreme court, I would have given you the same stare as if you’d told me a genealogical search had just revealed that I was really the Queen of England, and a Lear jet was standing by to whisk me back across the pond. Oh, and the roof at Buckingham Palace needs fixing.
I might have smiled pleasantly, rolled my eyes . . . and then called the police. Continue reading “May It Please the Court…”
I brought a chocolate sheet cake to work the other day. I’d asked for an “outer space” theme for the decoration, and the cake decorator at my favorite bakery didn’t disappoint. There was a quarter moon, and a sky full of stars, and even the planet Earth in blue and green frosting, showing the Western Hemisphere side of things.
The reason for the celebration was to mark the ten-year anniversary of my joining the staff of the Sheboygan District Attorney’s office as a state prosecutor.
The “outer space” theme was to mark the fact that in those ten years, I’ve driven more than 130,000 miles back and forth from home to office. If you look that up, you’ll find it’s more than half the distance from the earth to the moon.
Gives a whole new meaning to the phrase “going the distance”! Continue reading “Going the Distance”
The scene in the courtroom still haunts me ten years later.
I remember the tears that sprang hot to my eyes as I shut the door behind me and walked down the corridor, thinking “I am not tough enough to do this job.” I was a law student then, a seasoned criminal prosecutor now. And from time to time, out of nowhere, still comes that memory. It is seared into my consciousness, a testament to “collateral damage,” and a mother’s grief — two mothers, in fact — and consequences reaped by horrific acts, and how nothing in life, either evil or good, ever happens in a vacuum.
But first, a bit about my job. Continue reading “Tough Enough?”