Vol. 77, No. 5, May 2004

Letters

On a Cold and Windy Night ...

I am a practicing lawyer in Dunn County and do a lot of criminal defense. A young man came to me recently charged with misdemeanor theft of property from a salvage yard. My client and two others were caught in the act of the theft and were taken to jail for booking. While at the jail he was asked to give a voluntary statement.

I am attaching my client's written statement given that night. Both the DA and I enjoyed his "style." We seldom ever get such a kick out of reading discovery material. We thought to share this for the enjoyment of the bar as a whole. (My client consents to publication but he prefers his name to be left out.)

Stephen F. Muza
Menomonie

Voluntary Statement. On a cold and windy night, me and my two friends were driving in our car. Talk was brought up about my friend's lights missing in his vehicle. We came up with the idea of borrowing these lights from a vehicle that was not using them at the time. After we had parked the car, the three of us, all young strapping bachelors, made our way cautiously towards the junkyard. Lightly we stepped, as not to detour the resting slumber of a hardworking man who owns the yard. Try and search as we might, we could not find a matching car. Many windy roads did we turn down, on the verge of giving up. When all of a sudden there stood a car with moonlight spackling the exterior. In awe we stood, not knowing yet what to do. We proceeded then to remove the necessary lights that were not being used at that time, and made on our way, making sure not to disturb anything else, for we are not villainous men. We walked back to our car to leave the premises as we had hoped, undetected. We got into our car and as we were leaving, we were stopped by an officer of the law. He was a kind and understanding man, and I am glad to say he was my arresting officer. I end this, writing, sitting, thinking, in my cell.

Court Calendar Doesn't Accommodate Maternity Leave

It was with no small feeling of irony that I read the March President's Message regarding civility in the legal profession. Just how are we to define civility? Today I appeared at an arraignment in a misdemeanor case. The presiding judge scheduled a status conference exactly five weeks from today, with jury selection to follow the day after, and trial the days after that. I informed the presiding judge that I was going to be on maternity leave at that time (I am due four days before the status conference), and that I would be taking two full weeks of maternity leave, followed by two part-time weeks. The judge very politely and graciously informed me that someone else would have to take the case; it remains scheduled during the week I am expecting to give birth. This case was filed less than four weeks ago and today was my first appearance; it is not as though it has been pending for some time and I was using some sort of delaying tactic. In a "civilized" society, we should have moved beyond the practice of putting women out of work when they have children.

In 1992 (when I gave birth to my first child), I worked as a truck driver. Although trucking companies are, by reputation and in actuality, hardly paragons of progressivism, my company's management did not bat an eye at my request for maternity leave, and hence demonstrated more flexibility and "civility" than the judge who today denied me the right to practice law based on my decision to have a child.

When the State Bar president prefaced his article on civility by stating "[i]n many respects, the legal profession is a 19th century profession at work in the 21st century. We often advance values that seem more suited to an earlier era than to the present one," he was right on the money, though not necessarily as he intended to be. I would much prefer the "incivility" of the profanity-laden speech and grouchy conduct of my largely uneducated former trucking coworkers who did not bat an eye at my request for maternity leave than the "civility" of the educated, polite, and gracious judge who was not willing to move his schedule four short weeks into the future.

Name Withheld on Request

Scientific Analysis of Evidence Helps Avoid Wrongful Convictions

I am writing in response to statements made by Winn S. Collins in his March article entitled "Looks Can Be Deceiving: Safeguards for Eyewitness Identification." To his credit, Mr. Collins praised innovative measures implemented in New Jersey and in certain Wisconsin police departments designed to improve the reliability of eyewitness identification procedures. Inexplicably, however, he criticized the Wisconsin Department of Justice (DOJ) for not forming a working group to study those procedures. He also stated that the Wisconsin Attorney General had formed a Public Integrity Unit in response to the Avery exoneration but that she had not addressed in her review of the Avery conviction "broader issues regarding how to improve identification procedures."

It would have been a better article had Mr. Collins omitted his personal views and stuck to a more positive, proactive theme focused on improving imperfect identification procedures. Had we the resources, I am certain that many within the DOJ would offer to participate in discussion groups and studies on reforming various aspects of the criminal justice system. However, the DOJ has no more statutory authority nor institutional ability to mandate procedural reforms or change the law relative to eyewitness identification than does, for example, the Wisconsin District Attorneys Association. We have offered to assist the legislative committee reviewing the Avery matter with whatever input it requires from the DOJ, not inconsistent with the role the DOJ played in its own analysis. Unfortunately, efforts to solicit specific goals and objectives from the chair of that committee have been largely unsuccessful.

The DOJ reviewed the Avery conviction at the request of the Manitowoc County District Attorney. We were not asked, nor did we strive to reform the criminal justice system. Our charge was to determine whether legal or ethical obligations of law enforcement officials had been violated, leading to Avery's conviction. Nonetheless, the Attorney General did point out two factors that could overcome problems associated with eyewitness identification: better communication between law enforcement agencies, and the more widespread use of scientific analysis of evidence, when available. Improvements in communication already have taken place. But in tight fiscal times we need to ensure, as the Attorney General stressed in speeches around the state last summer, that our crime labs are adequately staffed and funded. In fact, during the last state budget cycle, the legislative joint finance committee approved language lapsing $2,775,000 in Crime Lab and Drug Law Enforcement Assessments to the general fund. Had the Attorney General not acted to reverse this move, at least one state crime lab likely would have been closed.

Mr. Avery was exonerated through DNA testing, as our report made clear. Our fight has been, and will continue to be, that all three crime labs in Wisconsin remain open and that additional resources be devoted to those labs in order to reduce the case backlog that has developed over many years. While it is well worth studying all means of improving the justice system, the greater the ability to employ scientific analysis of evidence, the better chance we have of avoiding wrongful convictions.

Finally, systemic changes may result from the Avery matter but the formation of the DOJ's Public Integrity Unit is not among them. The Attorney General proposed the creation of this unit prior to her election and its establishment predated the Avery matter. It had more to do with the fact that nearly 70 percent of white collar investigations conducted by the DOJ are related to allegations of official misconduct. We remain more than willing to provide accurate information to anyone wishing to write about the DOJ's operations.

Daniel P. Bach
Deputy Attorney General
Wisconsin Department of Justice

Wisconsin Lawyer