Racial Discrimination in Wisconsin Jury Pool Practices

Posted on Categories Alumni Contributor, Civil Rights, Constitutional Law, Criminal Law & Process, Federal Criminal Law & Process, Judges & Judicial Process, Poverty & Law, Prisoner Rights, Public, Race & Law, Wisconsin Criminal Law & Process1 Comment on Racial Discrimination in Wisconsin Jury Pool Practices
A courtroom is filled with women dressed in long black dresses and wearing hats.
Crowd of women register for jury duty after gaining the right to vote, Portland, Oregon, 1912.

“It requires little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that state laws might be enacted or enforced to perpetuate the distinctions that had before existed.” – Strauder v. West Virginia, 100 U.S. 303, 306 (1879)

As ominously foreshadowed by the Supreme Court in 1879, current state and federal laws and practices continuously present disadvantages to people of color. Removed from enslavement and the oppressive nature of the Jim Crow Era, today many of the participants in our justice system and in politics are blind to discrepancies within this nation’s criminal justice system and erroneously believe that the black defendant enjoys the same rights as the white defendant.  The black defendant is seldom given a jury that racially represents him or her, and this lack of representation is a product of case precedent, judicial reasoning, and discriminatory practices. In Wisconsin, these discriminatory practices take the form of both state and federal jury pooling procedures. As such, the purpose of this blog post is to draw attention to the disproportionate jury pooling practices in Wisconsin circuit courts as well as federal district courts in our state, and to provide a forum for debate on this important issue.

Federal Jury Pooling in Wisconsin and the Depleted African American Voting Population

The right to a jury is so critical to the makeup of our system of justice that the Constitution mentions juries in four different sections. However, while individuals have a constitutional right to a jury, the pooling and selection of such juries is not always constitutionally executed. Both the Eastern and Western District Courts of Wisconsin have jury pooling practices that raise constitutional concerns due to the disproportional impact that those practices have on black criminal defendants. Continue reading “Racial Discrimination in Wisconsin Jury Pool Practices”

Meet Our December Guest Blogger

Posted on Categories Alumni Contributor, PublicLeave a comment» on Meet Our December Guest Blogger

Photo headshot of attorney Nicole Muller.We are pleased to welcome Nicole Muller as our Alumni Blogger for the month of December.

Attorney Nicole A. Muller, of Birdsall Law Offices, S.C., graduated from Marquette University Law School in May 2018, and now spends her hours zealously advocating for her clients as a private criminal defense attorney. Before coming to Milwaukee, she received a Bachelors Degree in Political Science and Studio Art from The Catholic University of America and a Masters Degree from Columbia University. During her time at Marquette, Attorney Muller worked on issues surrounding the impact  that cash bail programs have on Milwaukee’s and Wisconsin’s  urban poor, as well as ways to address racial discrepancies in American courtrooms.  A native of New York,  Attorney Muller states that she decided to stay and practice law in Wisconsin because “the beer was just too good to leave behind . . . oh, and due to the serious issues that need to be addressed within the criminal ‘justice’ systems of Milwaukee and greater Wisconsin.”

We look forward to reading your posts!

A Bible for AI: The Need for Ethics in AI and Emerging Technologies

Posted on Categories Alumni Contributor, Business Regulation, Computer Law, Legal Ethics, PublicLeave a comment» on A Bible for AI: The Need for Ethics in AI and Emerging Technologies

Photo of a model of a human skull with the top of the skull removed, revealing computer circuitry inside.Recently, I attended the Compliance & Ethics Institute of the SCCE in Las Vegas. One of the keynote speakers was Amber Mac, a well-known public speaker for business innovation, internet of things, online safety, artificial intelligence (AI), and other topics. That morning, her keynote address was titled “Artificial Intelligence: A Day in Your Life in Compliance & Ethics.”

It was completely mind-blowing.

From her comments, I had a profound realization that ethics will be extremely important for AI and other emerging technologies as society progresses towards integrating these technologies into our daily lives. Note that this integration is starting to be, or is already, in our homes and workplaces. “Alexa” might already be part of your family. This development is growing in an exponential rate, and there’s no slowing it down. In fact, Waymo (the self-driving subsidiary of Google parent Alphabet) is launching the first ever commercial driverless car service next month. Yet, have we stopped to consider if an ethical “backbone” to all of this progress should be put in place as a guide for AI and all emerging technologies?

For example, a few years ago Microsoft released an AI chatbot on Twitter where the AI robot named Tay would learn from conversations it had. The goal was that the AI would progressively get “smarter” as it discussed these topics with regular people over the Internet. However, the project was an embarrassment. In no time, Tay blurted out racist slurs, defended white supremacists and even advocated for genocide.  So, how did this happen? Well, the problem was that Tay’s learning was not supported with proper ethical guidance. Without proper guidance, such as the difference between truth and falsehood or the general knowledge of the existence of racism, it was vulnerable to learning unethical thought and behavior. Continue reading “A Bible for AI: The Need for Ethics in AI and Emerging Technologies”

Compliance: The Emerging Career Path for Lawyers

Posted on Categories Alumni Contributor, Business Regulation, Corporate Law, Legal Practice, Legal Profession, PublicLeave a comment» on Compliance: The Emerging Career Path for Lawyers
Political cartoon from Puck Magazine in 1908 showing Moses holding the Ten Commandments and various business and Wall Street figures reacting with alarm.
From Puck Magazine, 1908. Various Wall Street figures react to Moses and the Ten Commandments.

When entering law school, and sometimes even before law school, students are put in front of this metaphorical “fork-in-the-road.”

Transactional or litigation?

In most law schools today, those are the two apparent options. However, this is just not the case anymore. There is at least one more, and emerging, option: the compliance route. It’s not completely transactional nor is it at all litigation. In some cases it takes ideas from both, and involves a bit of work in areas that would not necessarily be considered “practicing law.”

Oh, I’m sure I just hit a nerve for many of you. “Why would you go to law school and get into mountains of debt, and then get a job where you’re not completely practicing law?”

Bear with me and let me explain.

o In June 2016, a car manufacturer was forced to spend $14.7 billion to settle allegations of cheating emissions tests and deceiving customers on its diesel vehicles.

o In September 2016, a banking giant was hit with $185 million in fines by governmental authorities after thousands of its employees illegally opened unauthorized bank accounts. Earlier this year, new regulatory restrictions were imposed against the bank essentially halting the growth of the business until there has been sufficient improvement in its business practices. Continue reading “Compliance: The Emerging Career Path for Lawyers”

Meet Our November Bloggers

Posted on Categories Alumni Contributor, Marquette Law School, Public, Student Contributor, UncategorizedLeave a comment» on Meet Our November Bloggers
Headshot photo of law student Emily Gaertner
Emily Gaertner
Headshot photo of attorney Alen Lagazo
Alen Lagazo

We are happy to have two guests submitting blog posts during November.

Our Student Blogger of the Month is Emily Gaertner.  Emily is a 3L at Marquette University Law School.  She is Chief Justice of the Marquette Moot Court Association and Vice President of the Legal Writing Society.  During her time at Marquette Law School, Emily has competed in the Jenkins Honors Moot Court Competition, and will represent Marquette Law at the National Moot Court Competition.  Emily has also interned for Judge Paul Reilly at the Wisconsin Court of Appeals, District II, and currently interns for Judge Diane Sykes at the U.S. Court of Appeals for the Seventh Circuit.  Emily serves as a Student Ambassador and tour guide, and volunteers her time at the Domestic Violence Injunction Clinic.  Prior to coming to law school, Emily graduated from Indiana University of Pennsylvania in 2015 and earned a dual baccalaureate in philosophy/pre-law and criminology.

Our Alumni Blogger of the Month is Alen Lagazo.  Ioua Alen Marcyn Lagazo (“Alen”) serves as Compliance Counsel to CNH Industrial, a leading global manufacturing company for industrial equipment. In addition, he is a board member and co-Director of Social Media and Marketing for BYU Alumni Association – Chicago Chapter.

He is a 2018 graduate of Marquette University Law School, where he completed internships at SoftwareONE, BloodCenter of Wisconsin, BP Peterman Law Group, and CNH Industrial. He is a 2014 graduate of Brigham Young University, where he focused on international studies and business management. For 26 months between 2009 and 2011, Alen served a full-time voluntary assignment as a missionary for the Church of Jesus Christ of Latter-day Saints. Prior to that, in 2007, he received his Eagle Rank from the Boy Scouts of America.

Ioua Alen Marcyn has been married to Glenna for 6 years and together they have a daughter, Hermione, born just before entering law school. He enjoys spending time with his family, coaching his daughter’s soccer team, entertaining guests and networking. He also volunteers as an adult leader for the youth program for the Church of Jesus Christ of Latter-day Saints.

Welcome Emily and Alen!

Deconstructing Our Segregated Reality

Posted on Categories Alumni Contributor, Civil Rights, Legal Profession, Marquette Law School, Milwaukee, Political Processes & Rhetoric, Public, Race & Law1 Comment on Deconstructing Our Segregated Reality
A map of the city of Milwaukee and surrounding counties illustrating the racial segregation of residents per the 200 census.
Black residential segregation as reflected in 2000 Milwaukee Census

In his commentary on May 24, 2018, Bucks guard Sterling Brown is lucky he wasn’t killed by Milwaukee Police,” Martenzie Johnson casually observes that “Milwaukee is one of the most segregated cities in America, is one of the worst cities for black Americans, economically, the worst city for African-American children to grow up in and is home to the zip code with the highest incarceration rate in the country.”

I moved to Milwaukee in 1984 to become a Marquette Lawyer.  I took my first law school exam on my 30th birthday – Torts by Professor James Ghiardi.  In May of 1987, like every Marquette lawyer graduating before me and after me, I took the attorney’s oath.  I swore to “support the Constitution of the United States,” the one ordained and established in order to “form a more perfect Union.”  I never left Milwaukee and I am proud to say I am from Milwaukee.  Yet I am at a complete loss of words to describe how it is that we, my law school and my fellow Marquette lawyers, go about our busy daily lives virtually unconscious of living in “one of the most segregated cities in America.”  If you believe you can frame the types of questions that, if answered properly and acted on, will help us deconstruct our segregated Milwaukee, then I strongly encourage you to write and to weigh in now.

In October 2015, I was involved in a three week medical malpractice trial in Outagamie County.  Judge Mark McGinnis was presiding, who is one of the best trial judges currently on the bench.  I came home Friday to rest and prepare for the final week of trial.  A little after 1 am on October 31, 2015 the incessant ring of the telephone pulled me from a deep slumber.  The voice of a woman said, “Mr. Thomsen, we tried for 45 minutes, but we couldn’t save your son.”  My wife, Grace, sitting up asks:  “What did they say?”  “He’s gone.”  “Noooooo…” turned into a mourning howl.  It is unforgettable.  And so it is that in one instant the eye of a category 5 hurricane shreds your bed, your son’s mother, your wife, his sister, his fiancé, his daughter, his uncles, aunts, cousins, grandmothers, friends — my life and theirs too.  Judge McGinnis and defense counsel all agreed to a mistrial if I asked for one.  I returned to finish the trial.  The case had progressed and in a way that could not have been replicated.  The lawyer’s oath is a demanding one.

Yet somehow in the eye of the hurricane you can find love: the love of my son’s fiancé, of my now daughter-in-law Sydney, and my granddaughter, Sienna.  They are proudly biracial.  Sydney is considering law school.  I suggested that she become a Marquette Lawyer.  She said “no” because Milwaukee and Milwaukee County are too segregated.  The truth hurts so much. Continue reading “Deconstructing Our Segregated Reality”

Appellate Work: Getting the Law Right

Posted on Categories Alumni Contributor, Judges & Judicial Process, Public, Wisconsin Court System, Wisconsin Law & Legal SystemLeave a comment» on Appellate Work: Getting the Law Right

Recently, I authored a post on this same blog discussing the first of two frequent observations I’ve made since joining the Milwaukee County District Attorney’s Office as a prosecutor and rookie lawyer in February of last year. There, I expressed my belief that we must do more to educate the nonlegal public about what it is we do as lawyers. Here, however, I wish to share what is perhaps as much a personal conclusion as it is an observation—appellate work is where it’s at.

In the last six or so months, I’ve been tasked on several occasions to represent the State before the Wisconsin Court of Appeals. These experiences have been enjoyable for several reasons—not the least of which is that I do enjoy writing about the law.

More generally, I have come to prefer legal argument over arguing facts. For these reasons, I expect that my career in the law will naturally gravitate toward appellate work. This is not to say I that I don’t enjoy trying cases to juries, but rather it is acknowledgment of one introspective observation.

As I’ve arrived at this conclusion, I’ve also realized that I’m most interested in getting the law right—regardless of whether doing so helps or hurts any particular position I’ve taken in a case. That said, what I find most appealing about appellate work is that I’ve come to believe that appellate courts generally prioritize getting it right above all else. Continue reading “Appellate Work: Getting the Law Right”

The Need to Educate the Nonlegal Public About Lawyers and the Legal System

Posted on Categories Alumni Contributor, Legal Practice, Public, Wisconsin Law & Legal System2 Comments on The Need to Educate the Nonlegal Public About Lawyers and the Legal System

Gavel and BenchJust over fourteen months have passed since I first appeared in a Milwaukee County courtroom as a newly minted (Marquette) lawyer. Rolling the clock back another two and a half years, I recall my first few days as a law student. In all, I’m nearly four years into what I hope will be a long and eventful career in the law.

Over these last four years—this last year, in particular—I’ve found myself often making the same two observations. Though I don’t suspect that either of my observations are especially unique, both are surely the product of spending so many of my days in and around our state’s most active courthouse.

The first of these observations is one I began to consider very early on during my time at Marquette: we (society in general, but lawyers and others inside the legal system more specifically) must do more to educate and inform all those individuals who too often lack even the most rudimentary understanding of what it means to be a nation of laws. Continue reading “The Need to Educate the Nonlegal Public About Lawyers and the Legal System”

Loophole in Drunken Driving Law Should be Closed

Posted on Categories Alumni Contributor, Criminal Law & Process, Public, Wisconsin Criminal Law & ProcessLeave a comment» on Loophole in Drunken Driving Law Should be Closed

An ignition interlock device (IID) is a breathalyzer installed in a vehicle that prevents a driver from operating the vehicle until first providing an adequate breath sample. In Wisconsin, an IID is required in one of three circumstances after being convicted of either Operating While Intoxicated (OWI) or Operating with a Prohibited Alcohol Concentration (PAC): the defendant is a repeat drunk driver, the defendant refused a chemical blood or breath test under Wisconsin’s implied consent law, or the defendant is a first time drunk driver and had a blood alcohol concentration (BAC) of 0.15 “at the time of the offense.” Because OWI 1st’s are not crimes in Wisconsin, defense attorneys specializing in OWI cases try to negotiate with prosecutors to stipulate that the defendant’s BAC was 0.149 to avoid the costly and cumbersome IID requirement. This arbitrary threshold creates an obvious loophole.

The state legislature should revise this language in the IID statute because its vague language is leading to ridiculous results in court and does not promote consistency in OWI cases. As a matter of syntax, the statute as its currently written is arguably ambiguous. The legislature specifically used the phrase “at the time of the offense” as opposed to “at the time of driving.” The most common interpretation (and one favored by defense attorneys) is that the word “offense” only encompasses the physical act of driving and nothing after it. However, if that is what the legislature intended, then it would have been clearly to use the word “driving” instead. Further, the current language is in clear conflict with the OWI statute that penalizes drunk driving. A second reasonable interpretation is that “offense” includes everything from the driving to when the police officer issues the citations. However, this reading appears to cast too wide a net. Continue reading “Loophole in Drunken Driving Law Should be Closed”

The Challenges of Being a Bad Lawyer

Posted on Categories Alumni Contributor, Legal Practice, Legal Profession, Public1 Comment on The Challenges of Being a Bad Lawyer

I know this is technically a blog, but, if it were some other social media platform, that right there, my friends, would be “click bait.”  What?? This guest blogger is going to talk about how difficult it is to be a lousy attorney?  But, no, I don’t mean bad lawyer in the sense of legal incompetency or shaky professional ethics; I mean it in terms of being the bad-guy lawyer, the bearer of the bad news, the lawyer whose job it is to tell the client that he or she is not getting a settlement or can’t win the case or …any number of other unhappy communications.

It turns out that I am conflict averse.  That this was news to me was pretty lame because I chose – at age 49! – to go into litigation after graduating law school. In fact, I chose to join the products liability defense litigation practice group when I joined a Milwaukee firm the September after graduation.  For some reason, I imagined that being a litigator would suit my personality, which, as my husband will confirm, likes to win arguments.  But it turns out I didn’t have a very good sense what litigation entailed: rather than using persuasive argument to prevail on some esoteric, high-minded point, litigation is really more like a bare-knuckled battle royale.  For me anyway, there was just too much…conflict.  And, I was too old for it.  It was exhausting.

When I changed course in my legal career and became general counsel for a national insurance trade association, I thought I’d left my conflict days behind me.  But, another epiphany here (and, yes, I really am getting to be too old for these), there is “conflict” even in a legal profession that is primarily transactional.  Continue reading “The Challenges of Being a Bad Lawyer”

A Reflection upon My Tenth Anniversary of Being a Lawyer

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Happy 2018!  Since this is my first guest blog, I thought I might introduce myself a bit as a Marquette Lawyer, as the Dean likes to call us.

2018 marks the ten-year anniversary of my graduation from Marquette University Law School, a fact that I am reminded of by the flurry of communications sent by the law school to “Save the Date” for the upcoming tenth reunion in June!  I attended law school as a “non-traditional” student, having graduated from my undergraduate college in 1981. I began as a part-time student, but I switched to full-time for my second and third years once I realized that, if I didn’t goose this along a bit, we would be paying for two children in college on top of my law school tuition!  But, although I started as a part-timer and could have attended the evening classes designed for the part-time students, throughout my tenure at Marquette, I almost always took classes during the day with the more traditional – and by that I mean younger – students.  I did so primarily so I could be home in the evenings with my husband and three children, who were in middle school and early high school.  I wanted to be available for homework and swim meets and choir concerts and school plays and all the other activities attendant to children of that age, and my (then) part-time job was flexible enough for me to attend day classes.

I really enjoyed taking classes with those energetic and earnest 20-somethings, many of whom were in undergraduate colleges and universities just the semester before starting law school.  A story I’ve told often over the years illustrates the age difference between me and my cohort: One of my first semester law school classes was Criminal Law with Professor O’Hear and we were scheduled to take our first midterm exam. I hadn’t taken an exam of any sort since my senior year in college, and I was slightly anxious but, hopefully, prepared.  I sat down in class and turned to my neighboring student, a smart and nice young man named Luke whom I’d sat next to throughout the semester.  I told Luke that I’d realized earlier that morning that it had been 23 years since I’d taken a midterm exam.  Luke’s eyes opened wide, and he exclaimed, “That’s how old I am!”  I laughed (and have enjoyed the memory ever since), but it brought home to me just how long my “pause” had been between college and law school. Continue reading “A Reflection upon My Tenth Anniversary of Being a Lawyer”

“Work-Mom” Balance

Posted on Categories Alumni Contributor, Legal Profession, Public, Uncategorized1 Comment on “Work-Mom” Balance

A young child sits on the floor looking at a copy of the Marquette Lawyer magazine.My husband Brad and I are proud parents of a 20-month-old daughter, Lucille.  Having to balance being a mom and a litigator at a large firm is probably the most challenging thing I’ve ever done.  But it’s also an accomplishment of which I am very proud, and I wouldn’t have it any other way.  I don’t pretend to be an expert, and I still have a lot to learn.  But based on the past 20 months, here are some tips that I’ve acquired to support a “work-mom” balance:

It takes a village.  I won’t sugarcoat this:  I’d have to quit my job if it weren’t for my husband and my mom.  My husband works predictable, regular hours and, with rare exception, does not have to work at night or on the weekends.  He is an extremely present dad, is helpful at home, and is very supportive and understanding of my job.  My mom lives 30 miles away and is our go-to babysitter, with little to no notice, particularly when Lucy is sick and has to stay home from daycare.  She watched Lucy twice per week when she was an infant and is the most dependable person in our lives.

Invest in superior daycare, whatever that means for you and your family.  For us, it means that Lucy attends a daycare in downtown Madison, only two blocks away from both my and my husband’s offices.  Continue reading ““Work-Mom” Balance”