Local criminal defense attorney Michael Cicchini’s newest article, A Lawless Judiciary: The Gilded Age and Today, has just been published by the Georgia Criminal Law Review.  This is his second of two articles on the writings of Ambrose Bierce, a/k/a “the devil’s disciple.”  In this article, he also cites the work of KCE.  I sat down with Cicchini for a Q&A about his new article and related topics.

Your article is about Ambrose Bierce.  Who is he?

Ambrose Bierce was an American journalist who wrote in the so-called Gilded Age of America, the late 1800s.  To be blunt, he hated the legal system and he hated judges.  He was known as “the devil’s disciple” for his most famous work, The Devil’s Dictionary.  In my previous article, titled The Devil’s Dictionary of Criminal Procedure, I channeled Bierce’s cynicism and, I hope, his entertaining wit, in writing my own dictionary specific to my practice area.  But in my new article, I take a wider view and a more historical approach to Bierce’s work.

Why another article about Bierce?

I was introduced to Bierce in 1997 by a law professor at Marquette named J. Gordon Hylton.  Since then, I’ve read more of Bierce’s work and, in this article, I’ve organized his criticisms of the judiciary into five general categories.  I then set out to determine whether those five criticisms are still valid today, more than a century after Bierce raised them.  And I also wanted to pay tribute, in my own way, to the late J. Gordon Hylton of Marquette Law School.  Hylton was unique.  His class—at the time an experimental class which has since been discontinued, unfortunately—has stayed with me more than any other.  I was lucky enough to see Hylton again in 2012 when I gave a presentation at Marquette, but he left us way too soon.

What are Bierce’s criticisms and are they still valid today?

Bierce blasted the judiciary for its defective reasoning, arbitrary decisions, ignorance of the law, legislating from the bench, and even outright corruption.  Those are the five criticisms I cover in my article.  And I regret to inform you that all five complaints remain valid despite the intervening century.  In short, I suppose, you could say that the more things change the more they stay the same.

Why did you cite the KCE in your article?

Ambrose Bierce was a journalist, and he argued that the judiciary could only be held accountable if journalists exposed judges’ lawlessness to the people.  And in that vein, I like what KCE has done.  It’s true that corporate media outlets will expose judges for their outright financial corruption, their sexual misconduct, or their misbehavior at a nightclub, for example.  One corporate journalist even wrote about a judge punching a defense lawyer in the courthouse hallway.  But let’s not kid each other: that’s low-hanging fruit.  Any corporate media hack can write about that stuff.  But in my article, I cite to several KCE articles where you’ve criticized the judiciary for its procedural misdeeds, such as denying litigants the right to counsel or failing to follow basic statutory law.  I would love to see more of that.  Legal principles matter, no matter who the defendant is.  Laws and rules matter.  Criminal procedure matters.  As Bierce said, judges can’t just go around rewriting the laws to suit their whims.  Well, they do, but they shouldn’t.  Next thing you know—and now I’m shifting gears to a more modern legal critic—you end up with a banana republic.  Or at least a legal system that no one respects.

Is citing the KCE in your article a “scholarly” thing to do?  Don’t you know that a former prosecutor Jim Kraus, has called it a “gossip blog” and one Kenosha judge says it’s not journalism?

(Laughs.)  I’m happy to have friends in “low places”!  Here’s what I mean: In 2016 and 2017 I published controlled studies and articles with Larry White, a Ph.D. in social psychology, showing how Wisconsin’s jury instruction on the burden of proof is defective.  Larry should have been considered a friend in “high places.”  But how did the prosecutors and even some judges respond?  Instead of examining our legal research, data, statistical analysis, or findings, they ignored Larry and attacked me for being a criminal defense lawyer!  That’s an invalid form of argument, of course.  I will therefore happily cite any point or claim, whether it’s in the Harvard Law Review or the KCE.  The argument or claim stands on its own, regardless of the claimant’s occupation or societal standing and regardless of the prestige of the outlet in which it is published.

What’s next for you?

I’m still practicing criminal defense, of course.  I also have an article on self-defense coming out in the Marquette Law Review next Spring.  And I have an article that I’ll be submitting in February to the journals for possible publication.  It’s my final article on Wisconsin’s preliminary-hearing fiasco, and it specifically examines a year’s worth of data and the disastrous state of affairs in Kenosha County.  If Bierce and Hylton were still with us, I’m sure they would approve.

Cicchini’s article, A Lawless Judiciary: The Gilded Age and Today, is available at the Georgia Criminal Law Review.  His previous Ambrose Bierce article, The Devil’s Dictionary of Criminal Procedure, is available at the Denver Law Review.  All of his articles, organized by topic, are available on the articles page of his own website.