Milwaukee Criminal Defense Law Blog

Why are there so many all-white juries convicting black people?

On behalf of Jerry Buting of Buting, Williams & Stilling, S.C. posted in Criminal Defense on Monday, May 18, 2020.

According to a 1986 U.S. Supreme Court decision called Batson v. Kentucky, it violates the Equal Protection Clause for prosecutors to intentionally exclude potential jury members because of race. When the defense suspects the prosecutor is excluding jurors based on race, they can issue what is called a "Batson challenge."

Basically, the defense points out that multiple jurors, who otherwise seem qualified, have been excluded from the jury using "preemptory strikes," meaning that they have been excluded for no cause. Each side gets a limited number of preemptory strikes, but the prosecution can't use them simply to limit the number of black people on the jury.

Only a fraction of psychological tests used in court may be valid

On behalf of Jerry Buting of Buting, Williams & Stilling, S.C. posted in Criminal Defense on Monday, May 4, 2020.

One of the biggest problems facing criminal defendants may be the use of bad expert testimony. Courts are supposed to be gatekeepers for scientific claims. They're supposed to exclude any technical or scientific evidence that isn't "the product of reliable principles and methods" or that isn't supported by the majority of scientists in the given field.

Unfortunately, judges aren't experts in every field and often don't keep out questionable evidence if it involves science. They're supposed to sift out the junk from the reliable science and only allow the reliable evidence, but that doesn't always happen. This allows people to be convicted based in part on junk science.

After murder convictions overturned, 2 men face quarantine

On behalf of Jerry Buting of Buting, Williams & Stilling, S.C. posted in Wrongful Convictions on Tuesday, April 28, 2020.

There was never any physical evidence linking Kevin Harrington or George Clark to the 2002 killing of Michael Martin, but both were convicted of the murder. Now, after long journeys through a hostile criminal justice system, both men have been freed.

They've entered a world that is very different from the one they left, not least because of the rise of COVID-19 and shelter-in-place orders. But neither man would prefer to stay in prison.

Is violating a site's terms of service a criminal act?

On behalf of Jerry Buting of Buting, Williams & Stilling, S.C. posted in Criminal Defense on Monday, April 20, 2020.

America's main anti-hacking law is the federal Computer Fraud and Abuse Act (CFAA), which makes it illegal to "access a computer without authorization or exceed authorized access."

Across the U.S., courts have come to different conclusions about what is prohibited. Would knowingly violating a website's terms of service be considered exceeding authorized access?

If you have a revoked license, can you lend out your car?

On behalf of Jerry Buting of Buting, Williams & Stilling, S.C. posted in Criminal Appeals on Monday, April 13, 2020.

Yes, as long as it is still registered and insured. However, you might want to warn anyone borrowing your car that they are likely to be pulled over.

That's because the U.S. Supreme Court just issued a ruling in a case in which a man was pulled over solely because the car he was driving was registered to someone with a revoked license. The police officer who pulled him over admitted that this was the only reason.

Bad forensic evidence convicted him. Now he's out on parole.

On behalf of Jerry Buting of Buting, Williams & Stilling, S.C. posted in Wrongful Convictions on Monday, April 6, 2020.

Joe Bryan has not been exonerated, but there is good reason to believe he was wrongfully convicted of the 1985 murder of his wife, Mickey. Bryan was convicted twice despite having been at a conference 120 miles away at the time of the murder. He has served 33 years in prison.

The main evidence against Bryan was an analysis of bloodstain patterns -- a forensic technique that many experts seriously question. Nevertheless, bloodstain pattern analysis continues to be relied upon in Bryan's case and in others throughout the criminal justice system.

You should fear a geofence warrant even if you did nothing wrong

On behalf of Jerry Buting of Buting, Williams & Stilling, S.C. posted in Criminal Defense on Tuesday, March 17, 2020.

It's easy for law enforcement to overreach their powers in their efforts to stop crime. As the police use ever-more-intrusive methods for tracking people, they often raise the argument that the innocent people caught up in their dragnets have nothing to fear.

The fact remains that dragnets inherently scoop up the innocent along with the potentially guilty. And increasingly, law enforcement around the U.S. has been using a new kind of dragnet called a "geofence warrant."

Does registering and banning people actually prevent crime?

On behalf of Jerry Buting of Buting, Williams & Stilling, S.C. posted in Sex Crimes on Friday, February 21, 2020.

Although we're not from New York City, we can agree that there is probably too much public lewdness and unwanted touching going on in the city's subways. Earlier this month, New York Governor Andrew Cuomo announced a plan to clean up public transit: banning "repeat and high-risk sexual offenders" from buses, trains and subways for three years.

Cuomo has described banning sex offenders on the subway "common sense." But is it?

Mistaken eyewitness IDs occurred in nearly 70% of exonerations

On behalf of Jerry Buting of Buting, Williams & Stilling, S.C. posted in Wrongful Convictions on Thursday, February 20, 2020.

According to U.S. Supreme Court Justice Sonia Sotomayor, evidence from eyewitnesses is "a unique threat to the fairness of trial." She cited research that found eyewitness misidentifications to be the "single greatest cause" of wrongful convictions in the United States.

Bad eyewitness identifications put innocent people in prison. There are many reasons why they happen, and some of them can be prevented.

Do pretrial risk assessment tools produce good results?

On behalf of Jerry Buting of Buting, Williams & Stilling, S.C. posted in Criminal Defense on Tuesday, February 18, 2020.

It's a travesty when people are stuck behind bars for months or even years before they have even been convicted of a crime. However, there are sometimes good reasons to deny a person bail, such as when they are an obvious flight risk or a clear danger to the community.

Many jurisdictions around the U.S. are using pretrial assessment tools to help decide whether people are safe to release before trial. Ideally, these tools would accurately gauge a person's likelihood of flight or of committing a new offense if released. Ideally, they would be less biased than judges have proven to be. Ideally, they would reduce the jurisdiction's reliance on cash bail and pretrial incarceration.

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