Erwin Chemerinsky to Speak in Milwaukee December 8

Erwin Chemerinsky — Dean of the University of California, Irvine School of Law and a noted constitutional law scholar — will speak in Milwaukee on December 8 at the Pfister Hotel.  The event is sponsored by the Milwaukee Lawyer Chapter of the American Constitution Society (ACS).  Doors open at 5 pm. 

Dean Chemerinsky is expected to speak on the impact of the Roberts Court and on the future of constitutional law.  More information is available at the website of the American Constitution Society: http://www.acslaw.org/node/17692.

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Indigent Defense and the Private Bar Rate Debate

The Wisconsin State Public Defender (SPD) currently pays $40 per hour to private bar attorneys who represent indigent citizens accused of crimes.  This rate has been unchanged for decades, and lawyers are lobbying for an increase.  However, aside from horrible timing—this latest plea for more money coincides with Wisconsin’s $2.5 billion budget deficit—some of the arguments in support of the rate increase aren’t terribly persuasive, and should be abandoned.  But more significantly, the fact that lawyers have to make these arguments in the first place is merely a symptom of a larger problem: We live in a culture that misunderstands and undervalues our Constitutional rights.

But first, let’s review and grade a few of the more popular arguments:

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The New Miranda Warning

I never thought the Miranda warning was all that useful.  In fact, it actually raises more questions than it answers.  For example, the warning tells a suspect that anything he says can be used against him in court.  But asking for an attorney is saying something, isn’t it?  Could the prosecutor later use such a request against him?  (After all, television teaches us that only guilty people “lawyer-up.”)  And what if the suspect wants to remain silent?  Could his silence be used against him in court?  The Miranda warning fails to answer these and many other questions.

 Making matters even worse for the would-be defendant is Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).  In a confidence inspiring 5-4 split, the Court ruled that a suspect cannot actually exercise the right to remain silent by remaining silent—even if that silence lasts through nearly three hours of interrogation.

 In response to all of this chaos, I’ve drafted a new and improved Miranda warning.

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