Gerry Spence and The Trial Layer’s College

Posted on January 30, 2012 by andrewmishlove

As anyone who knows me is aware, I have been quite active in the National College for DUI Defense. Through my friendships and activities at the NCDD, I learned of the Trial Lawyer’s College, founded and still largely run by Gerry Spence. This weekend I have been at The Trial Lawyers College (TLC) regional conference in beautiful San Luis Obispo, California. Unfortunately, we have been so busy learning how to be better people and lawyers that there was only a little time to enjoy the area.

I have attended and lately taught at these conferences for many years. Making the effort to participate in higher-level professional education is a key element of higher-level professional skill and success. This College is a little different. Rather than a day of one- or two hour sessions, punctuated with sumptuous meals in fancy hotels, this had a holistic and healthy feel. The focus is on Discovering the Story of the case. The method is one of self-discovery as a means of developing an empathetic and caring personality, in order to tell the client’s story.

In other words, self-actualization and personal growth as a means of acquiring professional skill. It’s a bit funny that it revolves around the person of Gerry Spence, a cowboy lawyer from Wyoming. But Spence is one of the greatest living masters of our craft. At 83, he is still tall and strong, with a booming baritone voice. He is a charismatic figure, to say the least. Oh…to have a beautiful baritone voice. I was told that he practices his voice as a musician does his instrument.

I was wary of the possibility of a cult of personality surrounding Spence and the psychobabble of his method. My fears were allayed. The first thing I noticed about Spence when we met was not his powerful or dominating countenance, although it was there – but rather I noticed the kindness of his eyes and real pleasure in meeting and knowing the people whom he encounters. Each of the diverse people that I met shared a bit of themselves in a way that touched me – it was much easier to see the unity in all people.

Using role-playing, scene-setting and psychodrama to prepare for a trial are unorthodox techniques. TLC lawyers, however, have achieved astounding success with these methods. More than that, TLC teaches a method of bringing real candor and personal integrity to the art of advocating a cause.

I saw several of my NCDD colleagues here; and I am confident that the interface of the TLC method with our DUI College will continue to bring us great success in the courtroom and help us grow as human beings.

I want to thank my fellow NCDD instructor (who was an instructor for me at the TLC), Paco Duarte of Seattle, for being such an inspiration. Thanks as well to my NCDD colleague, Pat Barone, from Detroit who talked me into making the effort to attend this conference and steep myself in the TLC method. Kudos to Eagle River lawyer Steve Lucarelli for being the first from Wisconsin to graduate from the TLC.

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A Man Who Represents Himself Has a Fool for a Client

Posted on December 6, 2011 by andrewmishlove

An interesting court of appeals decision today came out of Ohio, where the defendant who represented himself made three blunders that caused him to be convicted of a DUI. He was arrested for DUI while on a bicycle.

Now, in some states it is sufficient for a DUI to be on a “vehicle,” which may include a bicycle. Other states, such as Wisconsin, normally require it to be a “motor vehicle.” This fellow got his legal advice from his friends, family, the police and maybe the judge; and, he plead guilty. Only later, he learned that in Ohio, drunken bicycling is not a DUI. So, naturally, he made a motion to reconsider his case, still representing himself.

The second blunder was that he missed the time limit for filing the motion to reconsider. In order to get around the time limit, he filed a motion alleging ineffective assistance of counsel. In effect, he attacked his representation of himself. That, of course, is not allowed either.

So, the fellow’s client wound up with a DUI on his record solely because of the bad representation that he received from himself.

On the other hand, think of the money that he saved in legal fees.

The case is Olmstead Falls v. Buckwald. Thanks to my Illinois colleague and fellow NCDD Regent, Don Ramsell, for bringing this to my attention.

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Teaching Lawyer and Judges

Posted on October 24, 2011 by andrewmishlove

One of things that I am proud of is my experience teaching other lawyers. Starting back in 1990, I have taught many classes for lawyers. When I was Chair of the Criminal Law Section of the State Bar, we put on classes on forensic pathology, eyewitness identification, psychology and the law, and of course, drunk-driving law.

Over the last five years, I have taught at the National College for DUI Defense at the Harvard Law School, the Wisconsin OWI Law Seminar, and a host of other seminars. Most recently, I taught sessions on “first-person opening statements” and cross-examination at the NCDD Harvard Law School summer session.

In the upcoming month, I will be teaching at two, quite different, places. The first class is for defense lawyers. It will be about the process of alcohol blood testing.

The second one is something a little new for me: I will be teaching drunk driving law at the annual Wisconsin Judicial Conference. The session will focus on two issues: first, how the recent changes in the Wisconsin rules of evidence will affect the admissibility of field sobriety tests; and second, administration of the new law regarding ignition interlock devices.

This will be the first time that I will teach at the judicial conference, although I have spent a career trying to get judges to understand these concepts. It should be interesting.

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The Value of Continuing Education in Criminal Defense

Posted on September 12, 2011 by andrewmishlove

An effective, skilled lawyer must always be a student of the craft. I believe that we should never reach the point where we think that we are too old, too smart or that we have nothing left to learn. This requires a substantial commitment of time and money.

Wisconsin Criminal Defense LawyerEven though the rules for lawyers require only 15 hours per year of continuing legal education, I personally average about 100 hours per year.  I require (and pay) for my associate to spend that much time at it as well.

Unlike most lawyers, we do not just look for the most economical, convenient seminars.  We go where we need to, at very substantial expense, to obtain the best possible education.  In the past few years I have studied or taught drunk driving defense at seminars in Nassau, New Orleans, Boston, Little Rock, Charlotte, Dallas, Atlanta and Washington, D.C.   Some of these were nice vacation spots but the reason I was there was to learn the craft of lawyering.

Many of the courses we take involve the legal and scientific technicalities of drunk driving defense.  For example, I have often attended the Mastering Scientific Evidence conference, co-sponsored by the National College for DUI Defense and the Texas Criminal Defense Lawyers Association.

I have also studied and taught at the National College for DUI Defense, presented at the Harvard Law School, every year for the past ten years.  This course focuses more on the skills of an effective trial lawyer.

No other criminal defense law firm in Wisconsin has made such a commitment to studying and teaching the art and science of drunk driving defense.  In the coming year, we will be taking the most advanced continuing education courses.

Despite the fact the law only requires 15 hours per year of training (in order to maintain a law license in good standing), I will attend about 200 hours of advanced training in the coming year. This training will include high-level study of the science of blood testing, methods of scientific measurement and police practices.  It will also include the highest level training in trial skills, such as storytelling, psychodrama, jury selection, opening statements, cross-examination and closing arguments.

Nor will I ignore legal training.  In fact, in November 2011, I will be an instructor in drunk driving law at the judge’s conference.  In that course I will teach the judges about the law of scientific evidence as it relates to standardized field sobriety testing.

Even at age 56, with thirty years of experience, I still feel as though I can and will improve my skill as a lawyer.  There is and always will be a lot to learn; and I hope to always be young enough at heart to continue to be a student.

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The Right to be Left Alone

Posted on September 8, 2011 by andrewmishlove

The concept of “community caretaker” exists to protect people who need police assistance. It can, however, be misused, a become a dramatic danger to our right to simply be left alone.

We are working on a case now, where our client had pulled over to the side of the road. It was a two-lane highway with a gravel shoulder, and a 35 mph speed limit. The client was only there for a moment. He was safely and lawfully parked. He did nothing unusual: no hazard lights, no sudden movements…nothing. He was not suspected of any wrongdoing. A policeman “lit him up.”

In other words, he was seized or detained. The officer stated that he did it, even though he knew that he had no reasonable suspicion that our client had done anything wrong, in order to investigate whether he needed assistance. This is called the “community caretaker” power of the police; and, it is legitimate, if and only if the police have a reason to believe the subject actually needs assistance. That, of course, was missing in this case.

In a dramatic expansion of police power – and a dramatic infringement on our right to be left alone, the trial court ruled in favor of the state. We have appealed the case to the Wisconsin Court of Appeals. If need be, we will take it all the way to the United States Supreme Court.

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WI DUI: What is Certainty? What is Uncertainty?

Posted on September 6, 2011 by andrewmishlove

In drunk driving cases, breath and blood test results are reported as a number. We are all familiar with the number: .08. This number is deceptive and unfair, because it fails to state a level of certainty. We have a number, but we do not know how accurate, precise or reliable it is.

In its report on the state of forensic science in the United States, the National Academy of Sciences recommended that all forensic measurements, such as blood test results, be reported with an “uncertainty budget.” That is, the number should be reported as, for example: .08, plus or minus .005 to a 95% degree of certainty.

Wisconsin DUI breath and blood testsIn this way, a judge or jury will, at least, have a basis to decide how much weight to give the number. Since the NAS report, skilled and knowledgeable DUI defense lawyers are demanding that the test results be reported with an uncertainty budget or that they not be allowed into evidence.

We are just at the beginning of this fight. And the forces that protect slipshod procedures in DUI prosecutions will fight back. In their world, it does not matter if the science is fair, accurate, precise or reliable. What matters to them are that people accused of DUI are convicted as cheaply, quickly and easily as possible.

My good friends and colleagues Ted Vosk, of Seattle, Washington, and Justin McShane, of Harrisburg, Pennsylvania, are the national leaders on this issue. At the Law Offices of Andrew Mishlove, we are following this very closely. We are studying the complex science of uncertainty budgets and maintaining communication with other lawyers across America who are preparing for this battle. We will be at the front lines.

The Wisconsin Legislature recently adopted the more stringent “Daubert” standard for the admission of scientific evidence in Wisconsin courts. It is unclear how this new standard will affect breath and blood test results and how the emerging concept of “uncertainty budgets” will fit into our new scheme of scientific evidence.

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Presumption of Innocence or Presumption of Guilt?

Posted on September 2, 2011 by andrewmishlove

In Wisconsin, jurors are told the law in the form of published standard jury instructions. The judge reads these to the jury before they decide the case. These standard instruction are not actually the law. Rather, they are a summary of law written by an instruction committee – an instruction committee that is not elected and has no lawful authority. Even though they are not law, the instructions, nevertheless, have the impact of law in most cases.

There is a HUGE problem with the standard instruction in drunk driving
cases: It reads:

“The law recognizes that the testing device used in this case uses a scientifically sound method of measuring the alcohol concentration of an individual. The state is not required to prove the underlying scientific reliability of the method used by the testing device.”

This instruction is illegal and unconstitutional. It violates the most basic, core principle of our criminal justice system: the presumption of innocence.

How can it be that the state is not required to prove that their alcohol testing is reliable? Have we been reduced to trial by machine?

Amazingly, there is no proper legal foundation for the instruction. It is based on the Trailer Service case, which has to do with the reliability of the scales used to weigh trucks. Trailer Service was not a criminal case, so it has no application to criminal drunk driving law.

Also amazing, this illegal instruction is given to jurors in drunk driving cases in Wisconsin every day, and it goes unchallenged. Why? I do not know, but at our law firm, we are challenging and will continue to challenge this instruction in every case.

Frankly, I do not expect to win at the lower court levels. But, we will speak the truth to power. I expect that we will argue this in federal court. I also expect that we will win.

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Is Our Home Really Our Castle?

Posted on August 31, 2011 by andrewmishlove

At the Law Offices of Andrew Mishlove, we have taken our fight for the right of privacy in our homes to the United States Supreme Court.

Our client was reported by a neighbor for some minor erratic driving. He parked in his driveway and went inside his home. About fifteen minutes later, a group of police came to his home.

They had no warrant, no suspicion of a serious crime and no knowledge of any threat to public safety. So, they had no legal basis to enter the home and they knew it. They decided, instead, to force our client out of the house.

Banging on windows and doors, shining flashlights into the house and yelling, the police refused to take no for an answer. Even after our client emphatically told them to leave, they continued their siege of his home. Eventually, our client left his home and was arrested.

The Wisconsin courts held that since he was arrested outside of his home, there was no violation of the Fourth Amendment to the United States Constitution, which guarantees the sanctity of a person’s home.

Amazingly, in more than two hundred years since the Fourth Amendment was written, the United States Supreme Court has never decided a case such as this. We believe that laying siege to a citizen’s home is just as much of a violation of the home as an illegal entry into the living room.

We have filed a Petition for a Writ of Certiorari, asking the United States Supreme Court to hear the case. They will decide whether or not they will hear the case when they convene for the October 2011 session.

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Wisconsin FINALLY adopts a standard for admission of scientific evidence

Posted on February 18, 2011 by andrewmishlove

After many decades of having no standards whatsoever for the admission of so-called scientifc evidence, Wisconsin finally adopted the “Daubert” standard, effective February 1, 2011. As a result, we will be working hard, challenging the slipshod evidence that masquerades as science in Wisconsin courtrooms. We will be challenging Wisconsin’s breath testing program and Wisconsin’s field sobriety testing program, as failing to meet accepted standards for reliability. We plan to use this new development in Wisconsin law to vigorously defend our clients.

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