Vol. 77, No. 5, May
2004
Letters
Letters to the editor: The Wisconsin Lawyer
publishes as many letters in each issue as space permits. Please limit
letters to 500 words; letters may be edited for length and clarity.
Letters should address the issues, and not be a personal attack on
others. Letters endorsing political candidates cannot be accepted.
Please mail letters to "Letters to the Editor," Wisconsin Lawyer, P.O.
Box 7158, Madison, WI 53707-7158, fax them to (608) 257-4343, or email
them to wislawyer@wisbar.org.
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