Letters

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