Every year, about this time, the stress level here at the law school starts to rise. First-year students seem particularly susceptible. I hear the word “outline” a lot in the halls. Students talk about how much they studied over the weekend instead of how much fun they had. Everyone gets a little bit more serious.
Serious is fine.
Frantic is counter-productive.
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.
At the beginning of this semester, I proposed that the law school host a conference on the Wisconsin Supreme Court. Dean Kearney lent his support and we were fortunate enough to obtain the co-sponsorship of the Appellate Practice section of the State Bar of Wisconsin.
So yesterday we hosted a sold out gathering of over 100 lawyers for “Conference on the Wisconsin Supreme Court: Review and Preview.” Our meeting began with a plenary panel discussing the question of judicial recusal predicated on campaign contributions and speech. The discussion was moderated by the Hon. Diane Sykes (L’84) of the Seventh Circuit Court of Appeals and the panelists included Attorney Robert Henak (who has filed motions to recuse Justice Michael Gableman is connection with certain campaign ads and support), along with our own Chad Oldfather and me. Much of the discussion focused on the implications of the recent decision in Caperton v. A.T. Massey Coal Co. and the recent consideration by the Wisconsin Supreme Court of competing rules on recusal.
This discussion was followed with breakout panels discussing business and criminal law cases, respectively.