Criminal Law & Process – Page 125 – Marquette University Law School Faculty Blog

Pondering the Wisconsin Supreme Court’s Criminal Docket

Post author:Michael M. O'Hear
Post published:November 3, 2009
Post category:Criminal Law & Process Wisconsin Criminal Law & Process Wisconsin Supreme Court

Last week, I was delighted to participate in the Conference on the Wisconsin Supreme Court organized by Rick Esenberg. The panel I moderated reviewed some of the court’s most significant criminal cases last term. But “most significant” is a relative term, and I don’t think any of the panelists found the court’s recent criminal cases to offer anything especially bold or innovative. The court seems to be operating more in an error-correction mode than a law-declaration mode. Recent decisions generally do not announce new rules of law, but operate within established legal frameworks and decide cases based on the particularities of the facts presented. (Indeed, an exception to this trend, State v. Ferguson, 767 N.W.2d 187, drew a sharp rebuke from Justice Bradley, who characterized the majority decision as “an unbridled exercise of power.”) Notably absent is the “new federalism” exhibited in some earlier terms, in which the court interprets state constitutional rights in ways that are more protective than the analogous federal rights.

Fans of judicial minimalism should be happy with the court’s recent criminal decisions. So should fans of judicial collegiality: the court’s minimalist holdings produce few dissenting votes and (Bradley’s shot notwithstanding) a generally respectful tone in the few dissenting opinions. I wonder, though, if all of this minimalism and case-specific analysis provides sufficient clarity in the law for the police officers, lawyers, and trial-court judges working in the trenches of the criminal-justice system. Though much in vogue now, minimalism has its vices, too.

Drug Courts after Twenty Years: What Next?

Post author:Michael M. O'Hear
Post published:November 3, 2009
Post category:Criminal Law & Process Wisconsin Criminal Law & Process

I’ve been meaning to blog about the interesting new report from the National Association of Criminal Defense Lawyers on drug courts, but alum Tony Cotton (a member of the NACDL Board of Directors) has beaten me to the punch. (For my own take on drug courts — voicing some of the same concerns as Tony — see this recent article.) Tony offers these insightful and timely thoughts on drug courts:

This year marks the twentieth anniversary of a criminal justice innovation that was supposed to help solve the drug problem in this country and reduce the mass incarceration of men and women whose substance abuse habits lead them toward criminal behavior and, more often than not, to prison.

In 1989, then-State’s Attorney for Miami-Dade County, Florida (later United States Attorney General) Janet Reno designed a new approach to mitigate the crushing loads of drug-related criminal cases in South Florida. Defendants charged with low-level drug felonies would be diverted into treatment programs instead of prison. The idea caught on, and today there are 2,100 such “problem solving” courts around the country, receiving federal funds and dealing with not only drug abuse, but also drunk drivers and domestic violence offenders.

Seventh Circuit Criminal Case of the Week: Of Hearsay and Bootstraps

Post author:Michael M. O'Hear
Post published:October 31, 2009
Post category:Criminal Law & Process Evidence Federal Criminal Law & Process Seventh Circuit

seventh circuit The court staked out no new legal ground in its opinions last week, so I’ll just briefly describe a case that nicely illustrates a classic problem in evidence law. Based on information provided by a confidential informant, Milwaukee police stopped a Ford Excursion on suspicion of drug activity. Inside were Marc Cannon (the driver), David Harris (Cannon’s cousin), $8,900 in cash (found in Harris’s pockets), and a brick of cocaine. The cash pointed to Harris’s likely involvement in the drug-dealing operation, but, without more, the evidence still seems short of beyond a reasonable doubt.

At trial, the government thus relied heavily on the testimony of the confidential informant, Anderson, who recounted a series of interactions with Cannon and Harris. Perhaps most damaging to Harris was testimony that Cannon told Anderson that his cousin was coming to Milwaukee with a signficant amount of cocaine. This testimony, of course, was hearsay: Cannon himself did not testify, and Harris had no ability to cross-examine him. In order to overcome the hearsay problem, the government relied on the exception for statements by co-conspirators. But this required the government to prove that Cannon and Harris were indeed co-conspirators, and the strongest evidence of that were the very statements whose admissibility was at issue. The government’s argument thus had something of a boot-strapping character.