Public – Page 133 – Marquette University Law School Faculty Blog

Judge Must Explain New Sentencing Decision After Revocation of Supervised Release

By: Michael M. O'HearAugust 20, 2011Federal Criminal Law & Process, Federal Sentencing, Public, Seventh Circuit1 Comment

As I described here and here, the Seventh Circuit has an interesting line of cases that attempt to establish some minimal standards for the way that district judges explain their sentences. Add to that line the court’s decision last week in United States v. Robertson (No. 10-3543). I think that Robertson is the court’s first decision to apply the explanation requirement to a resentencing that occurred after revocation of a defendant’s supervised release.

That the explanation requirement would apply here is perhaps not a given, since, as the court observed, the district judge has even more discretion in this setting than in an original sentencing. (4) The court ruled, however, that the district judge must indeed “say something that enables the appellate court to infer that he considered both [the recommendations of the sentencing guidelines and the statutory sentencing factors].” (4)

In Robertson, the guidelines recommended a term of 12-18 months following the defendant’s revocation for growing marijuana, but the district judge instead imposed a sentence of 34 months. Here is the “explanation” for the sentence that the Seventh Circuit found inadequate:

Continue reading “Judge Must Explain New Sentencing Decision After Revocation of Supervised Release”

Syrian Culpability for “Crimes Against Humanity”

By: Ryan ScovilleAugust 19, 2011August 22, 2011International Law & Diplomacy, Public3 Comments

Like a handful of other states in the Middle East, Syria has experienced significant domestic political turmoil in recent months, with a sizable and seemingly increasing percentage of its population openly protesting against the autocratic government of Bashar al-Assad. The Syrian government has responded with a crackdown comprised of some of the most violent and repressive tactics seen anywhere since the start of the Arab Spring several months ago. In a report issued yesterday, the High Commissioner for Human Rights at the United Nations described this crackdown as a systematic campaign of murder, torture, deprivation of liberty, and persecution that spans from March to July 2011. The report, which is based on a series of field investigations conducted by the Office of the High Commissioner, concludes that the Syrian government’s conduct “may amount to crimes against humanity” under Article 7 of the Rome Statute of the International Criminal Court.

The report seems to raise three questions for most readers: First, what is a “crime against humanity”? Second, how might the Syrian government have engaged in such conduct? And third, what consequences, if any, follow from culpability? Continue reading “Syrian Culpability for “Crimes Against Humanity””

The Dodgers Debacle

By: Eryn DohertyAugust 18, 2011Public, Sports & Law2 Comments

Straight out of Hollywood, in what has turned into a long-running soap opera, is Major League Baseball’s own “War of the Roses.” MLB’s version, featuring the divorce of the Los Angeles Dodgers owners Frank and Jamie McCourt, is being played out in court venues across three states and in a sundry of court proceedings and legal maneuverings involving numerous areas of law as well as MLB’s rules. This is not “Dodgers Baseball”; instead this tragedy has thrown “one of the most prestigious teams in all of sport” into the depths of despair, financial ruin, legal turmoil, and fodder for the tabloids.

The story begins with Frank McCourt’s purchase of the Los Angeles Dodgers in January 2004 after a failed attempt to purchase his home town team, the Boston Red Sox. Soon thereafter, he and his wife Jamie headed out to the “Wild Wild West.”

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Postcard from Giessen

By: J. Gordon HyltonAugust 18, 2011August 19, 2011Legal Education, Marquette Law School, PublicLeave a comment»

The third annual U.S.- German Summer School in International and Comparative Law came to a successful conclusion with the program’s closing ceremony on August 12, in Giessen, Germany. This year’s session of the program, sponsored jointly by Marquette University Law School, the University of Wisconsin-Madison, and the University of Giessen, featured 68 law students from 20 countries. Faculty members came from the University of Giessen; the University of Gottingen; the University of Wisconsin; and Marquette.

The program’s Marquette contingent for 2011 consisted of 24 law students and Professors Gordon Hylton and Alan Madry. The session lasted from July 16 through August 13.

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The Constitutional Equality of Women

By: Lisa A. MazzieAugust 18, 2011August 19, 2011Constitutional Interpretation, Feminism, International Law & Diplomacy, PublicLeave a comment»

For young women coming of age today, their equality with men seems assured. As youngsters they’ve played on co-ed sports teams; they’ve often been more successful than boys in school; they’ve pursued careers in previously male-dominated fields like math and science, medicine and law. For them, women have always been able to vote, abortion has always been legal, and women have reached high places in politics. Many probably have mothers (and fathers) who came of age during and after the second wave of feminism, believing they would raise their daughters to believe in their capacity to be equal citizens.

It might surprise some women, then, to learn that women’s equality is not guaranteed, at least not constitutionally.

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Two Circuits Approve Use of Uncounseled Convictions Against Native Americans

By: Michael M. O'HearAugust 18, 2011August 19, 2011Circuit Splits, Criminal Law & Process, Federal Criminal Law & Process, PublicLeave a comment»

In Burgett v. Texas, 389 U.S. 109 (1967), the Supreme Court held that a prior conviction cannot be used to enhance a defendant’s sentence under a recidivism statute if the prior conviction was obtained in violation of the defendant’s constitutional right to counsel. Native Americans, however, must deal with an apparent loophole in the Burgett rule: the Sixth Amendment right to counsel applies to proceedings in federal and state courts, but not tribal courts. If an uncounseled prior conviction in tribal court does not violate the Constitution, it may arguably fall outside the Burgett prohibition and be used against the defendant in a later case.

By some apparent coincidence, the Eighth and Tenth Circuits last month both addressed the use of uncounseled tribal-court convictions under 18 U.S.C. § 117(a), which makes domestic assault by a habitual offender a federal crime. Both courts approved use of such convictions to satisfy the criminal-history element of the offense.

The Eighth Circuit decision, which actually drew a dissent, seems the more carefully reasoned.

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Farewell, Judge Terence T. Evans

By: Michael M. O'HearAugust 17, 2011August 19, 2011Marquette Law School, Public, Seventh CircuitLeave a comment»

One of Marquette’s most distinguished judicial alumni passed away last week. Judge Terence T. Evans ’67 had served since 1995 on the Seventh Circuit Court of Appeals. Before that, he served as a trial judge in federal district court and Milwaukee County Circuit Court.

Judge Evans was profiled here in the Marquette Lawyer, along with his Seventh Circuit colleagues Judge John L. Coffey ’48 and Judge Diane S. Sykes ’84. Judge Evans’ Journal Sentinel obituary is here. A webcast of an “On the Issues” conversation he had with Mike Gousha and Judge Sykes is here. (The picture above comes from that exchange.)

I never had the pleasure of meeting Judge Evans in person, but I’ve read many of his opinions. They do have a distinct style and sensibility — once you’ve read a few, you are not likely to mistake an Evans opinion for that of any of his colleagues. The opinions reflect a sharp wit, an eye for the telling factual detail, and a commonsensical approach to judging. I doubt there are many judges on the federal bench whose opinions would be more accessible and engaging for the lay reader.

The Wisconsin Public Defender’s On Point website has collected some wonderful personal reminiscences of Judge Evans here. Among the many notable tributes is one from his former clerk Daniel J. O’Brien ’78, who observed:

No one – NO ONE – enjoyed life more than “The Judge.” Luckily, for those of us privileged to spend time with him, that joie de vivre (borrowed from Judge Easterbrook’s marvelous tribute) was contagious. . . .

The Judge’s skill as a jurist was surpassed only by his warmth as a person. The word “mentor” is far down the list of adjectives describing his impact on my life [Others that come to mind: Marquette recruiting analyst, legal writing tutor (“To be a good legal writer,” he’d often say, “write like a journalist, not a lawyer”), comedian, Brewer fan, role model, expert on “greasy spoon” diners, and friend].

Visitation is today from 4:00 to 8:00 at Feerick Funeral Home, 2015 E. Capitol Dr. Additional parking is across the street at Atwater School and at St. Roberts Catholic Church, which is about one block to the west.

Mabel Watson Raimey

By: Melissa Love KoenigAugust 16, 2011Feminism, Legal History, Marquette Law School, Marquette Law School History, Milwaukee, Public5 Comments

Recently a friend lent me a wonderful book, More than Petticoats: Remarkable Wisconsin Women, by Greta Anderson.* The book biographies a number of notable Wisconsin women, but the biography that stood out the most to me was of Mabel Watson Raimey.

Mabel Watson Raimey was the first African-American woman to attend Marquette University Law School. (117) She worked during the day and went to law school at night. (117) She was the first African American female lawyer in Wisconsin, entering the profession in 1927. (118)

Ms. Raimey went to law school a few years after she was fired from her job teaching elementary school in Milwaukee: she was let go on the third day of school after school officials learned of her race. (114-15) Ms. Raimey had been a distinguished student before entering the teaching profession. (116) She graduated from West Division High School at fourteen and obtained an English degree at the University of Wisconsin. (116-17)

Continue reading “Mabel Watson Raimey”

Dean Howard Eisenberg in His Own Voice

By: Janine P. GeskeAugust 16, 2011Legal Practice, Marquette Law School History, Public, Speakers at Marquette4 Comments

One of the activities that many of us faculty members undertake during the summer months is to clean out some drawers and shelves. While recently tackling that chore, I was thrilled to find an old tape from a 1999 conference we put on at the law school on “Spirituality and Work.” I had forgotten that Dean Howard Eisenberg was the luncheon keynote speaker that day. What a thrill for me to listen to the tape and to hear Howard speak about one of his favorite themes, “What Is a Nice Jewish Boy Doing in a Place Like This.” He talks about his deanship and his views on spirituality and the legal profession. I thought others might enjoy having the opportunity to hear Howard, in his own words, speaking from his heart. With the level of incivility in our professional and political world, I believe his words are probably even more relevant today than they were when he spoke them twelve years ago. Here is the link to that talk.

Enjoy!

An Aggressive Message From Wisconsin

By: Alan J. BorsukAugust 10, 2011August 10, 2011Political Processes & Rhetoric, PublicLeave a comment»

I got an invitation from a producer at CNN to write a comment for their Web site on the state Senate recall elections Tuesday. So I took them up on it. Here’s the start of what I said:

Milwaukee, Wisconsin (CNN) — Wisconsin — so polarized, so evenly split, so politically inflamed — sent a message to the nation Tuesday night.

Republicans will say it is a message that vindicates the strong action taken by Gov. Scott Walker and Republican majorities in both houses of the Wisconsin legislature to hold down spending and strip formerly powerful public employee unions of all but a bit of their power. The Republican actions became a national sensation in February when Democratic senators fled the state for three weeks and tens of thousands of people protested daily at the state Capitol.

Democrats will point to their victories in ousting two Republicans from the state Senate and to how much better they did on Republican turf than in the November 2010 statewide elections. They showed that momentum has swung their way, they will say.

As a pretty impartial person, my reading of the dominant message is: We live in polarizing, sharply split, inflamed times when it comes to politics. And that’s only getting more intense. . . .

For the rest of the comment, click here.

When the Witness Woofs

By: Judith G. McMullenAugust 10, 2011August 10, 2011Criminal Law & Process, Family Law, Judges & Judicial Process, PublicLeave a comment»

When a New York teenager had to testify against her father, claiming he raped and impregnated her, she shared the witness box with a helper. According to The New York Times, that helper was Rosie, a specially trained golden retriever who comforts and encourages traumatized or stressed individuals. Rosie has a highly developed sense of empathy, and will nuzzle, snuggle or lean against someone who is experiencing stress or trauma. Psychologists sing the praises of service dogs like her, and courts in several states have ruled that witnesses who are especially vulnerable, such as children in sexual abuse cases, may be accompanied by canine helpers.

As you might imagine, approval of Rosie and dogs like her is not universal. Everyone agrees that Rosie is adorable, but therein lies part of the alleged problem. Defense attorneys fear that Rosie gives credibility to the child witness that may or may not be justified. One of the public defenders in the case, David S. Martin, protested that each time the child witness stroked the dog’s fur, “it sent an unconscious message to the jury that she was under stress because she was telling the truth,” adding “There is no way for me to cross-examine the dog.” Although the lawyer for the prosecution in this case refused to comment about Rosie for the article, Ellen O’Neill-Stephens, a Seattle prosecutor who is a proponent of dog-helpers in court, said “Sometimes the dog means the difference between a conviction and an acquittal.”

The past several decades have seen a great deal of discussion about the difficulty of dealing with child witnesses in a criminal trial, and there have been many judicial experiments – some effective and some not. Continue reading “When the Witness Woofs”

Custody Concerns

By: Judith G. McMullenAugust 5, 2011August 8, 2011Family Law, Public1 Comment

A custody dispute that has recently been in the national news illustrates the convoluted nature of custody law which has led in this particular case to a very troubling outcome. (I submit that this case is also Exhibit A as to why the public has such a bad impression of law and lawyers, but that is a topic for another day).

The New York Times reports that mother Trisha Conlon was thwarted in her efforts to obtain a custody order keeping her 13 and 14-year-old boys out of the home of her ex-husband and his current wife Kristine. Why did Ms. Conlon request this order? Because the current wife, Kristine Cushing, killed the two daughters she had with the father (and Trisha’s ex-husband), John Cushing Jr. The killings occurred in 1991. Mrs. Cushing was found not guilty by reason of insanity allegedly caused by an adverse reaction to Prozac. She was hospitalized in a mental facility for four years, and was monitored for almost ten years after that. In 2005, the state of California gave her an unconditional release.

Ms. Conlon learned that her boys were in the same household with Mrs. Cushing in 2007, but her ex said not to worry, he and Mrs. Cushing were splitting up. They didn’t. She recently discovered (with the help of a lawyer and a private investigator) that the boys have been in the home with Mrs. Cushing since 2008 – hence her request for a new custody order.

The Court Commissioner deciding the case declined to alter the existing order, which places one boy with each parent during the school year, and keeps them together in one or the other household for holidays and vacations. The Commissioner’s reasoning was that, since the boys had been spending time with Mrs. Cushing since 2007 (even though their mother did not know of it), there is not now any significant change in circumstances that would warrant a change in physical placement. Mrs. Conlon is appealing the decision. Continue reading “Custody Concerns”