Letters
Letters to the editor: The Wisconsin Lawyer
publishes as many letters in each issue as space permits. Please limit
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Our Criminal Justice System Truly is Broken
I applaud Gary Bakke for his April article, "What
About Justice?" As Bakke so eloquently puts it, DNA evidence
finally provides us with the first "absolute benchmark by which to test
the results of our system. The news is not good." I don't think the
statistics he cites leave any doubt about how broken our criminal
justice system truly is. Without disparaging the many
thoughtful lawyers and judges who deserve our deepest gratitude for
their honesty, integrity, and excellent work, I still must say that
Wisconsin is no exception. Among the many problems Bakke cites, I
can personally attest to the often appalling quality of representation
for many poor defendants. High public defender caseloads, ridiculously
low compensation for the private bar, and appellate tolerance for trial
lawyer ineptitude virtually assure this. When coupled with prosecutors
who will not screen cases in any meaningful way - indeed the mentality
is overwhelmingly "let the jury decide" - the trial process often has
much less to do with evidence than who can win the popularity contest.
If the public truly knew, or cared, how many cases are tried - and
convictions obtained - on questionable accusations with no corroborating
evidence whatsoever, perhaps then reform would be possible.
One of the fascinating points Bakke alludes to is the complete lack
of research into the fundamentals of our justice system. He cites the
article by Atul Gawande, "Investigations Under Suspicions," New
Yorker, Jan. 8, 2001, p. 50, which outlines not only the paucity of
such research, but the hostility it meets in the justice system. Gawande
discusses several areas in the justice system that may lend themselves
to empirical evaluation. He also shows surprise at how uncooperative the
system is. I am not surprised at all. The justice system does not want
to be told what its flaws are. Instead, it hides behind unchallengeable
myths, lip-service rights, and outright intellectual dishonesty. Only
those unfortunate few who find themselves in its tentacles understand
its true - and relentless - nature. The system is not about finding the
truth or fairness, but obtaining (and maintaining) convictions at the
least cost. Accuracy is way down the list. Merely one example of
this is eyewitness identification. Defense counsel have tried to use
memory experts to dissuade jurors about the many demonstrably incorrect
notions lay people hold concerning its reliability. But even on this
point, where the science is developed, the courts have shown extreme
hostility. In a recent Wisconsin case a trial court rejected expert
testimony because eyewitness identification "was not a subject area
where the average layman cannot ascertain what happened." The
court of appeals agreed. State v. Williams, 231 Wis. 2d 720,
605 N.W.2d 663 (Unpublished opinion Ct. App. 1999); see also
State v. Blair, 164 Wis. 2d 64, 75-76, 473 N.W.2d 566, 571-572
(Ct. App. 1991). How can the courts so deny reality?
It seems to me that our law schools also have failed us on this
point. Where is the "science" of law - a real empirical testing of what
works and what doesn't? Should not the law schools be our laboratories
for improvement? Why hasn't this happened?
Steven L. Miller
River Falls
Lawyer or Cognitor?
I am a lawyer, not an attorney (an agent), not a member of an MDP,
and not a cognitor (which is a made-up word and purports, pursuant to
our president's March message, "to recognize the holder's ability to
provide a range of professional services").
We, as lawyers, should already know we are the legal
profession.
Our Wisconsin Supreme Court, as our third governmental body, has and
ever will, "effectively" rule on all issues of law, while recognizing
only the profession of law, as embodied through its lawyers sworn in by
our Wisconsin Supreme Court, to advise and practice the law to, for, and
on behalf of the public. To argue otherwise is to advocate the
elimination of our third body of government.
Reviewing some lecture material I received while attending one of our
conventions a few years ago, I came upon the material titled, "What the
General Practitioner Needs to Know About Handling Personal Injury
Cases." The first thing that popped into my mind was "torts," which, of
course, is what every law student must take as a required law
subject. What the poor general practitioner really needed to be advised
about was practice and procedure, not the law. What the general public
would get out of that lecture title is, "This is the specialist." What I
got out of the title was, "Here's an attorney who limits his ability to
practice the law to all of the public." I do not intend to demean the
lawyer who voluntarily chooses to limit his area of law, but rather to
emphasize that it is the general practitioner who embodies the essence
of the profession of law - the "professional lawyer."
What we as lawyers, individually and collectively, need to do is get
back to our roots - that is, service and the protection of all citizens
to due process.
We need to punish the abuser of the law (lawyer or nonlawyer) without
sacrificing the right of protection of all our laws. This, I would
suggest, can be done only through our rededication to the meaning of
"professional" and through the education of our clients, as their
lawyers, that the law suit is not a club to abuse with, but the last
remedy to uphold the client's legal right(s).
Over the past several years, I've talked to many younger lawyers and
listened to many others who have expressed their hatred of the practice
of law or of the type of law they feel forced to practice. This is
tragic in this time, of all times, with our more open society, our
technology, and for sole practitioners or the small law firms - the
computer - which allows them to compete with anyone!
The advice or admonishment in Gary Bakke's March column, depending
upon your point of view, was, "Expect to starve (lean times) for at
least five years, maybe 10."
I believe we survived and still remained professional lawyers.
Ralph R. Zauner
Hot Springs Village, Ark.
Searching for Lawyer Ancestor
I am a lawyer in Washington state. My only lawyer ancestor, E.
Dealton Tichenor, died in Andersonville Prison in 1864 after "practicing
in the justice courts of Crawford County [Wisconsin]."
I would appreciate suggestions about how I can fill out descriptions
of his legal career in the 1850s, when he was in his 30s. Any
suggestions would be appreciated, but one particular question is, what
were the "justice courts" in the new state of Wisconsin and what was
their jurisdiction? I have a copy of one 1861 letter to him as a lawyer
about real estate transactions from the Wisconsin State Historical
Society archives, but that's all I know.
Larry Jones
lawjones@oz.net
Wisconsin Lawyer
