Vol. 83, No. 12, December 2010
Challenging Assumptions about Forensic Evidence
I write to respond to Wisconsin Department of Justice attorney Steven Means’s letter in the November Wisconsin Lawyer. Mr. Means challenges a number of “assumptions” made by attorney Amelia Bizzaro in her September article, entitled “Challenging the Admission of Forensic Evidence.” I wish to respectfully disagree with several of his points.
First, Mr. Means argues that defendants can challenge any type of forensic evidence in court and that “if a jury relies on forensic evidence to convict … it does so only after the defendant has had every opportunity to challenge and disprove the evidence but has failed to do so.” This is a Pollyannaish view about the real-world practice of criminal law in Wisconsin. The state has virtually unlimited resources from the crime lab arrayed against a defendant who may have inexperienced or possibly even inept counsel being paid a paltry $40 per hour and very limited funds to hire his or her own expert. It takes extraordinary time and money in many cases to fairly present the potential errors or unreliability of forensic evidence to each juror, many of whom may have little scientific aptitude to follow the experts’ points.
Second, Mr. Means perpetuates the fallacy that Wisconsin Crime Laboratory personnel are “scientists” independent of law enforcement. The WCL is organized under the control of the Department of Justice. The personnel do not do blind testing in any cases, and have close contact with the detectives or prosecutors who send them case evidence. They know before any testing who is the suspect and they sometimes receive pressure from law enforcement to get the results they wish. For example, in the Steven Avery trial, the head of the Madison DNA unit was compelled to produce a phone memo documenting her conversation with a lead detective, before any DNA testing was started, who asked her to “try to put her [the victim] in his [Avery’s] house or garage.”
In yet another example, after the defendant served 29 years of wrongful incarceration, last year Judge Robert Kinney ordered a Dane County case dismissed because of prosecutorial misconduct that included the suppression of a third-party confession and the WCL’s destruction of exculpatory evidence. Judge Kinney noted that the prosecution treated crime lab analysts “like partisan witnesses,” and “[w]hen results unfavorable to the State came in and the prosecutor directed more testing, what message was communicated? There is no reason to believe that crime lab analysts in Wisconsin are more immune from these pressures and influences than their counterparts in other parts of the country.” (State v. Armstrong, Dane Co. Case No. 80-CF- 495, order July 30, 2009.)
The same conclusions led the National Academies of Science to recommend more oversight of crime labs to ensure they are more independent than the “Wisconsin model” championed by Mr. Means. If our goal is truly objective analysis of case evidence by independent scientists, as the above two high-profile examples illustrate, the Wisconsin model has failed.
Jerome F. Buting
Buting & William S.C.
Supreme Court Denies Equal Bar Admission Opportunity
At a Sept. 30 hearing, the Wisconsin Supreme Court considered a petition by 72 State Bar members, including myself, to extend the diploma privilege to graduates of ABA-approved law schools located outside Wisconsin for a 10-year trial period to see if it could work – or to abolish the diploma privilege entirely. The idea behind the petition was fairness – that all law school graduates should meet the same bar-admission requirements. The deans of the U.W. and Marquette law schools, the director of the Board of Bar Examiners, and the president of your State Bar all testified in favor of retaining the diploma privilege for U.W. and Marquette law school graduates but against extending it to graduates of other law schools – even on a trial basis.
Both deans argued that their law school courses emphasize Wisconsin law, after which the U.W. dean pointed out the U.W. Law School accepts applicants mainly with top LSAT scores, while lesser-known law schools are forced to accept not-as-qualified students. In other words, requiring that graduates of out-of-state law schools pass the bar exam is justified in part because, on the whole, they just aren’t as smart as U.W. Law School graduates.
State Bar president Jim Boll presented the Board of Governors’ viewpoint that the diploma privilege is justified by the teaching of Wisconsin law and should not be extended to graduates of out-of-state law schools. But, at its Sept. 3 meeting, six members of the Bar’s Executive Committee expressed a different concern. Each said that he or she could not support extension of the diploma privilege to graduates of other law schools, because it would result in more economic competition for “Wisconsin” lawyers. When I mentioned the point that the diploma privilege exists in the mind of some U.W. and Marquette law school graduates to offer them economic and job protection, Justice Prosser responded: “What’s wrong with that? They’re Wisconsin institutions.” At the court’s conference on Oct. 4, 2010, Chief Justice Abrahamson added that some out-of-state law schools may be lawyer mills with lower standards than U.W. and Marquette, turning out a maximum number of graduates for financial reasons. She didn’t name any specific law schools.
Last July, 191 law school graduates took the Wisconsin bar exam at an estimated total cost of $500,000 in bar review courses, 25,000 hours of study time, $2 million in four months’ worth of lost income, and a huge disadvantage in searching for employment as lawyers. The grand result was that 10 percent of the exam takers were excluded from the practice of law, many of whom will later pass the exam. The 19 unfortunates amount to a ratio of less than 1:1,000 active State Bar members. This may seem like a huge and disproportionate cost in time, money, and pressure to pay for such a result – until all of you who took the bar exam realize that you are doing your part to protect the jobs and incomes of U.W. and Marquette law school graduates.
So, the 62 percent of the Bar who graduated from the U.W. and Marquette law schools have told the other 38 percent to continue being satisfied with second-class citizenship with respect to bar admission requirements – a great PR move for Bar cohesiveness and comradery. And the court voted unanimously to continue the present situation. In his 1963 “Letter from Birmingham Jail,” Martin Luther King Jr. wrote “… privileged groups seldom give up their privileges voluntarily,” and this seems to be the case with the diploma privilege. But change will come, however slow. No one can stand in the door of equality forever – not even the Wisconsin Supreme Court.
[Editor’s note: Order 09-09 Diploma Privilege appears in the Supreme Court Orders column on page 42 in this issue.]