When the Witness Woofs

Posted on Categories Criminal Law & Process, Family Law, Judges & Judicial Process, PublicLeave a comment» on When the Witness Woofs

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

Posted on Categories Family Law, Public1 Comment on Custody Concerns

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”

Remembering Conscription in the United States

Posted on Categories Federal Law & Legal System, Legal History, Public14 Comments on Remembering Conscription in the United States

On July 1, 2011, without much fanfare in the rest of the world, Germany ended its military draft.  The German military draft began in 1956 (when Cold War concerns led to its re-establishment in West Germany) and lasted for 51 years.

For American males who turned 18 between 1946 and 1972 (several of whom currently serve on the Marquette law faculty) the German action is a reminder of the powerful role that the “peace-time” military draft once played in the United States.

Because it has now been almost 40 years since the American military draft was terminated, many of the details of the draft have passed out of the American consciousness and are only hazily remembered even by those who lived through the period of the draft.  (Does anyone ever watch the 1969 Arthur Penn film Alice’s Restaurant, which revolves around a satirical treatment of what the draft did to the lives of young American males in the Age of Aquarius?)

The following is a summary of the way in which the U.S. military draft operated in the late 1960’s and early 1970’s, and how it affected the lives of those planning to attend college or graduate school.  This surveys the operation of the draft from the time of the Military Selective Service Act of 1967—which significantly revamped involuntary military service in the United States—until the termination of the draft in 1972.  The discussion below is part personal memoir and part research project.

One of the central features of the Cold War draft was the student deferment.  As long as an eligible male was enrolled in an undergraduate college, his eligibility for the draft was deferred until his studies were complete or else he had left college.  Until 1967, students who were in graduate school were deferred as well, although one of the purposes of the 1967 Act was to reduce dramatically the number of graduate programs eligible for student deferments.

Consequently, males who entered college after 1967 knew that once they had finished college—unless they enrolled in Divinity School–they would have to deal with the prospect of mandatory military service.  Although many eligible men were in fact never drafted, the escalating use of ground troops in Vietnam in the late 1960’s made it seem likely that most physically fit males would have to either submit to induction into the military, or else volunteer for some branch of the service before being drafted, or establish that one was a qualified religious conscientious objector (which normally required proof of membership in a “peace church” like the Society of Friends, the Mennonites, or the Church of the Brethren”).  The only alternatives were going to prison or leaving the country.

As a symbol of this system, all 18-year old or older males were required to carry a “draft card” that both indicated one’s draft status and doubled as a general purpose ID card.

The Military Selective Service Act of 1967, passed at the highpoint of the escalation of U.S. military involvement in Vietnam, had significantly altered the system of drafting civilians that had been in place since the years before World War II.  While it reduced the number and type of exemptions, it left the undergraduate college deferment in place, and it originally left the process of selecting draftees to local draft boards.  Previously, every local draft board was assigned a “quota” for soldiers that it had to supply to the U.S. military.  Although the quotas had to be met, except in cases of extraordinary special circumstances, the boards were normally given broad discretion when it came to choosing who would be drafted and who would not.

Although draft boards were frequently accused of favoritism in their choice of draftees, cultural icons Elvis Presley and Willie Mays were both drafted in the 1950’s, after they had become nationally well-known figures.

However, on November 26, 1969, President Richard Nixon, still in his first year in office, signed an amendment to the 1967 act which replaced the arguably arbitrary local selection system with a national draft lottery.

Under the lottery, a draft number was randomly assigned to each day of the year, and in the year they turned 19, young men were subject to call up to the military the following year.  Call ups began with those whose birthdays had assigned the lowest numbers.   (The assignment of numbers was done through the use of a lottery bin and the event was shown on national television.)

Student deferments for those attending college remained in place, but they only delayed, and only for up to four years, the year the holder became eligible to be drafted.

The first draft lottery was held on December 1, 1969, and applied only to all males eligible to be drafted under the previous system—which were those men born between January 1, 1944, and December 31, 1950. (Anyone born before 1944 had already reached age 26, which was the oldest age at which a man could be drafted under the previous system.)  The 1969 Amendment also provided that if an eligible male was not drafted the first year that he was available for the draft, he could not be drafted in a subsequent year.

This formed the primary basis of the argument that the new lottery was less disruptive to the lives of young men because it reduced the period of uncertainty as to whether or not one would be drafted from seven years (ages 19 to 26) to a single year (the year one turned 19).  While this was technically true, those who held student deferments had to worry about their draft status all the way thorough college and for the following year.

In 1970, it was generally assumed that the need for troops might require the federal government to go as high as #215 in the draft, but was unlikely to go any higher.  Consequently, anyone with a number above #215 could decline to apply for a deferment and take the very small risk of being drafted.  For those with #366, there was absolutely no risk at all, short of the outbreak of a major war with the Soviet Union.  Those with low numbers could be certain that they would be drafted when or if they lost their student deferment.

The second drawing, affecting those born in 1951, was held on July 1, 1970, after the conclusion of the freshman year of college of most of that group that had enrolled in college.  However, most of the students who began college in the fall of 1970, were, like myself, born in 1952.  We were eligible for student deferments, but had to wait until the following summer to know our real draft status.

By 1970, the future status of the draft was a matter of much debate and significant uncertainty.  Richard Nixon had called for a phase-out of the draft during the 1968 presidential campaign, and there were frequent rumors throughout his first term that the ever increasing troop withdrawals from Southeast Asia were a prerequisite to the draft’s abolition.  Consequently, one could always hope that the draft might be abolished while one’s student deferments were still in effect.

On the other hand, there were also persistent rumors that Congress might end student deferments—a frequently articulated “fairness” argument said that it should—so, on the assumption that the repeal would not be retroactive, almost everyone born in 1952 and in college in the fall of 1970 requested a student deferment, even though they would not be eligible to be drafted until 1972.

The draft lottery for those born in 1952 was not held until August 5, 1971, a month or so before the beginning of the 1971-72 academic year at most colleges.  I pulled a #81, which was almost surely in the “likely to be drafted range,” had I not had my deferment.

The Nixon Administration’s dramatic reduction in the number of ground troops in Southeast Asia in 1969 and 1970—which accompanied an expanded use of bombing of enemy territories—reduced the need for soldiers, and in 1970, the pool of those actually drafted reached only #195, short of the predicted #215.  The following year (1971), only those with numbers of 125 or lower were drafted.  In what would have been the draft year for most of us—1972—eligible males with numbers of 95 or lower were called up for physicals and most were drafted.  (I am sure that at #81 I would would have been called, because my one of my high school friends, whose number was #84, was drafted after dropping/flunking out of Virginia Tech the year before.)  However, because of my still-valid student deferment, I was not drafted in 1972.

But before anyone was drafted in 1973, further changes in the system occurred.  In September, 1971, when the draft was renewed for an additional two years after months of acrimonious debate in Congress, all future student deferments were eliminated (except for those for divinity students).  I believe that this applied only to new, first-time registrants, but that was not very clear at the time.  However, the issue ultimately proved moot.  No one with a number higher than #10 was called up for physicals in 1973, and on January 27, 1973, Secretary of Defense Melvin Laird announced that the United States was abandoning the military draft for the indefinite future and would instead rely on an all volunteer force.

Looking back on it, this announcement produced a massive sigh of relief among college males, and almost immediately the abolition of the draft took the wind out of the sails of the anti-Vietnam War movement at Oberlin (where I was a student) and elsewhere.

Although draft lotteries were held in 1973, 1974, and 1975, the draft was never reinstated, and men in their early 20’s approach their futures with a degree of occupational freedom that few had anticipated at the beginning of the decade.

An aspect of the Vietnam era draft that was confusing then, and continuing to be now, is that there was a preliminary stage to the draft, that was known as “getting called up for a physical.”  To expedite the process, eligible males who were deemed likely to be drafted were ordered to report for a preliminary physical that was used to determine who was physically eligible for service and who was not.

Normally, someone called up for a physical who was certified as physically fit for the draft assumed that they would be drafted during the following few months.  Generally, this was the case, but it was not always true.  Many enlisted in the Air Force, or some less dangerous branch of the service, once they were called up for, and passed, an army physical.  Some, of course, failed the physical.  However, every year there were some who got called for a physical, passed it, but then saw the year pass without actually being drafted.

Because the number of men drafted fell below the predicted number every year from 1969 and 1973, there were always males with border-line numbers who got called up for physicals but who were never actually called up to active duty.  Also, and I don’t really understand why this happened, there were times when males with valid student deferments got called for physicals, even though they were not actually subject to the draft.  This may have been a function of local draft boards having difficulty figuring out the new system.  Nevertheless, the receipt of a letter in the mail ordering one to report for a military physical was a traumatic event, even for those who felt certain that they were not currently eligible to be drafted.

As the father of a son starting college this year, I am especially thankful that he doesn’t have to deal with the anxieties that were commonplace forty to fifty years ago when baby-boomer males were in college.

“We Can Be Better Than That”

Posted on Categories Legal Education, Legal Ethics, Legal Practice, Public2 Comments on “We Can Be Better Than That”

Law school is hard.  Being a lawyer is harder.  But that difficulties and responsibilities come with entering the legal profession is not something to bemoan or a cause to run away.  Nor should the difficulty of legal education and practice be sought purely as a means to financial rewards, especially since these rewards are becoming all the more elusive in today’s world.  It is an opportunity for intellectual development and experience, all lifetime benefits to embrace.

The difficulty starts from the moment we study for the LSAT.  In our first years, we are tasked with reading and processing and cogently articulating concepts gleaned (or pulled like teeth) from ancient cases about barrels falling out of windows, churches burning down, and smoke balls that supposedly cured every minor ailment under the sun.  Come second year, we may find ourselves toiling in the law review cite-check room as staffers or coming out of our shells as we practice oral argument for Appellate Writing & Advocacy, along with even more copious amounts of reading, this time on topics like criminal process, agency and corporate law, taxation, postmortem property transfers, and intellectual property.  Then you will get the taste of working as an attorney, whether in a summer associate position at a large firm or clerking for a mid-size or smaller firm, in which your legal studies for the first time become “real.”  When third year arrives, you will have the chance to take workshops on pretrial practice and contract drafting among others, and (you guessed it) more reading.  In sum, as Justice Stephen Breyer was right to tell his children, “[I]f you do your homework really well, . . . you can do homework the rest of your life!”

Once you begin practicing in the real world, you will have even more difficult homework, and the stakes are even higher.  Continue reading ““We Can Be Better Than That””

Trying to Hire a Hit Man? Don’t Answer Your Cell Phone

Posted on Categories Constitutional Interpretation, Criminal Law & Process, Federal Criminal Law & Process, Federalism, Public, Seventh Circuit1 Comment on Trying to Hire a Hit Man? Don’t Answer Your Cell Phone

A new Seventh Circuit decision underscores the jurisdictional breadth of the federal murder-for-hire statute, 18 U.S.C. § 1958(a). Although solicitation to commit murder would seem a prototypical state offense, it can be prosecuted federally if money was involved and a “facility of interstate commerce” was used. And it takes very little indeed to satisfy the latter element.

For instance, in the new Seventh Circuit case, United States v. Mandel (No. 09-4116), the defendant planned a hit on his business partner with one of his employees, who turned out to be a confidential informant. A jury convicted Mandel on six counts of violating § 1958(a). In four, the “use of a facility of interstate commerce” was a cell phone conversation with the c.i. (three of which were actually initiated by the c.i.). In the other two, the “use of a facility of interstate commerce” was driving around in a car with the c.i. while the hit was discussed.

In all of these counts, what triggers federal jurisdiction seems only incidental to the offense; it is not the use of a cell phone or a car that made the defendant’s conduct dangerous and his intentions blameworthy. Mandel would merit no less punishment if he had communicated with the c.i. by sign language or smoke signals, or if he had gotten around by roller-skating. It is this lack of a meaningful connection between the jurisdictional element and the wrongfulness of the defendant’s conduct that gives federal prosecution such an arbitrary character in so many cases. But, for better or worse, that is where we are in the modern world of Commerce Clause jurisprudence. (Note, though, the Supreme Court’s efforts to maintain some sort of principled limitations on federal criminal jurisdiction in its interesting decision last term in Fowler v. United States.)

Mandel contested the jurisdictional issues on appeal, but to no avail.

Continue reading “Trying to Hire a Hit Man? Don’t Answer Your Cell Phone”

Florida’s “Strict-Liability” Drug Law Found Unconstitutional

Posted on Categories Constitutional Interpretation, Criminal Law & Process, Public1 Comment on Florida’s “Strict-Liability” Drug Law Found Unconstitutional

Are there any constitutional limits on the power of a legislature to restructure state-of-mind elements as affirmative defenses? The Supreme Court has suggested that such limits do exist, but has not clearly delineated what they are. However, an interesting habeas case now moving through the lower federal courts may provide a good opportunity to clarify this uncertain area of the law.

The case has emerged from a tug-of-war between the Florida legislature and the courts over the state’s basic drug-trafficking offense. Although the offense did not include any express state-of-mind element, the Florida Supreme Court held as a matter of statutory construction in 1996 that the state was required to prove knowledge of the illicit nature of the substance involved in the offense. The legislature responded in 2002 by amending the statute and clearly indicating that knowledge was not required; rather, the legislature specified, lack of knowledge must be proved by the defendant as an affirmative defense. (Apparently, only one other state, Washington, similarly dispenses with a state-of-mind element for drug trafficking.) Now, a federal district court has ruled on a habeas petition by a defendant convicted under the Florida statute, holding in Shelton v. Secretary, Department of Corrections (No. 6:07-cv-839-Orl-35-KRS) that the new version of the offense facially violates the Due Process Clause.

I’m sympathetic to the idea of constitutional limits on the legislature’s ability to create strict-liability crimes, but the court’s reasoning in Shelton strikes me as something less than compelling.

Continue reading “Florida’s “Strict-Liability” Drug Law Found Unconstitutional”

The Law in Shakespeare’s Works

Posted on Categories Popular Culture & Law, Public6 Comments on The Law in Shakespeare’s Works

Last Friday I had the pleasure of listening to an interview on WPR with Stephen Marche, author of the book, How Shakespeare Changed Everything.*

During the interview, Mr. Marche talked about how many English words were first used by Shakespeare.  Lawyers can thank Shakespeare for words like “negotiate”, “compromise”, and “circumstantial”.** The conventional wisdom is that Shakespeare invented those words, although Mr. Marche acknowledged that Shakespeare may really have been the first person to write down words that were already in use at the time.  (I think the latter may be more likely, although I do not claim to be an expert on this matter.)

The interview got me thinking about references to the law in Shakespeare.  A quick search online referred me to a 2009 conference at the University of Chicago Law School on “Shakespeare and the Law.”  Another quick journal and law review search on Westlaw showed a number of references to Shakespeare.

Do any of our readers have a favorite Shakespeare passage or play?  What are your thoughts on Shakespeare and the law?  What influence, if any, has Shakespeare had on the public’s view of the law and lawyers?  Did Shakespeare use legal concepts correctly in his plays?  Do you think that Shakespeare really coined all the words for which he is credited?  Is there anything that lawyers can learn from reading Shakespeare?

I very much look forward to reading Mr. Marche’s book. Continue reading “The Law in Shakespeare’s Works”

Gov. Walker Tacks for the Middle, Particularly on Education Issues

Posted on Categories Education & Law, Milwaukee, Milwaukee Public Schools, Public2 Comments on Gov. Walker Tacks for the Middle, Particularly on Education Issues

Some politicians say they don’t pay attention to what polls show. Gov. Scott Walker is one of them. Most of those who say that actually do pay attention to polls. I assume Walker is one of them.

That’s certainly as good a way as I can think of to explain what is clearly an effort by Walker to move toward the middle on at least some issues, particularly education quality matters. In just over a half year in office, Walker has become an especially polarizing figure. Many on the right think he has changed the long-term future of Wisconsin for the better and praise him enthusiastically. Many on the left think he is so bad that they will succeed in bringing him to a re-call election next year. Some polls show that there are stronger feelings about Walker, both pro and con, with little middle ground, than is true for any other governor currently.  

But, ultimately, in a state that is as politically split as Wisconsin, it is valuable, if not essential, to have support among many of those in the middle. And Walker’s overall poll numbers are down in the light of the ferocious battle over the state budget.

So maybe I shouldn’t have been surprised when Walker took more moderate positions in an interview I did with him on July 1 on education issues. He referred several times to his desire to build consensus on some major issues and said it was “the Wisconsin way” to get a wide range of people together to work on issues. He talked about how he was building a strong relationship with Tony Evers, the state superintendent of public instruction, on matters such as a new school accountability system, new state tests, and an initiative aimed at increasing the overall quality of the work of principals and teachers. The generally-liberal Evers has been backed by teachers unions and was strongly critical of some major parts of the budget proposals from Walker, a conservative Republican.

Walker’s comments and subsequent conversations with him and Evers led to a story I wrote for the July 10 Milwaukee Journal Sentinel and a column I did on Walker’s education thoughts on July 17. The audio of my interview with Walker is availabkle on the latter Web page. 

Continue reading “Gov. Walker Tacks for the Middle, Particularly on Education Issues”

Ponderings of a Law Professor: Moving from Law School to Law Practice

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(Editor’s note:  Professor Mazzie’s June post for the Ms. JD blog remains relevant, as last year’s law graduates make their transitions from school to work, and current students contemplate their future paths.)

[T]housands of law students have graduated from their respective law schools [in May and June].  They will spend this summer studying for bar exams and possibly looking for work.  Most are probably ecstatic that law school is behind them and “real” legal work is ahead.  Perhaps, though, in August when their classmates begin to gear up for classes these graduates will have a moment of feeling left out – a sense of emptiness because for  years their lives have run on an academic calendar that will no longer apply to them. Continue reading “Ponderings of a Law Professor: Moving from Law School to Law Practice”

The Shocking Testing Scandal in Atlanta

Posted on Categories Education & Law, Media & Journalism, Milwaukee Public Schools, Public2 Comments on The Shocking Testing Scandal in Atlanta

I don’t think “Bad Teacher,” the movie currently playing in theaters, is going to do damage to the reputation of teachers or education in general across the United States. It may be gross, dumb, tasteless, and a lot of other things, but it’s a movie.  People can grasp that it’s not a documentary.

But the current test-score cheating scandal in Atlanta is a different matter. It is pretty much the most disturbing and shocking single episode in American education that I can think of in the last decade. This is a case of teachers and administrators being shown in real life to have engaged in vividly discrediting educational practices. 

I heard or read often in recent years about the successes of the Atlanta public schools. Test scores had risen, the elected school board was a model case for those who opposed mayoral control of schools, and Superintendent Beverly Hall was one of the most honored and respected school leaders in the country. I remember then-MPS Superintendent William Andrekopoulos telling me several years ago what a great person Hall was, and that view was definitely in the mainstream of educators.

All of that makes the scandal that has been unfolding in Atlanta for months all the more stunning. The Atlanta Journal Constitution deserves a lot of credit for pushing hard to bring to light a sweeping culture among teachers and their superiors, right up to Hall, in which doctoring students’ test scores sheets was done routinely, almost openly, and with indifference to both the rules and to children’s actual education needs. A culture of cheating, with a partner culture of intimidation of those who might resist it, pervaded Atlanta’s school system.  Hall has resigned and is now considered highly discredited, the school district has fallen into turmoil, and criminal charges may lie ahead.

The Journal Constitution’s story about a special investigative report released by the governor’s officeTuesday, summarizes the scandal in revolting detail.

Critics have long argued that standardized testing is a bad way to judge kids and, among other problems, leads to cheating by educators who have strong incentives to show good results for their students. My guess is even few of the critics thought there was a scandal of the dimension now unfolding in Atlanta. From now on, the word “Atlanta” is going to be to debate about high stakes testing what the word “Columbine” is to discussions of student violence.

Will the Atlanta situation change the course of the movement that has made standardized testing a key part of accountability around  the US? My guess is that overall, it won’t. But it certainly should cause everyone to think deeply about how to make testing a constructive step. That includes more work on improving test security, creating climates of ethical practices around testing, and monitoring the pressures being put on educators to come up with good results.

Results on state standardized tests for Milwaukee school children may be discouraging, but at least they are, to the best of my knowledge, generally honest. I’m only aware of one real cheating scandal in Milwaukee Public Schools in the last decade or so. It involved one school a few years ago, and, while MPS succeeded in keeping most of the details from public view (it was labeled an employee discipline matter), best as I could tell, the district dealt with it reasonably well.  (By the way, speak up if you know differently, not only with MPS but any school or district.)

I used to think it would be nice if Milwaukee had Atlanta’s record when it came to rest results. Obviously, it is time to think the reverse, especially when it comes to integrity.