What’s the definition of an IMPARTIAL JUROR in a criminal case?  You might think it’s a juror who has no financial ties or loyalties to either the defendant or to the prosecutor’s office.  But you’d be wrong!  So says local defense attorney and author Michael Cicchini in his newest law review article, The Devil’s Dictionary of Criminal Procedure.   KCE asked him about the article, how he came up with that title, and what his definition is of impartial juror and other legal terms. 

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KCE:  Where did you get the title, The Devil’s Dictionary of Criminal Procedure?

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Cicchini:  The title was inspired by the great American author and journalist, Ambrose Bierce.  In the late 1800s, Bierce wrote a series of very cynical dictionary entries known as The Devil’s Dictionary.  It included some legal terms.  For example, he defined PRECEDENT as an existing court decision that has “whatever force and authority a judge may choose to give it, thereby greatly simplifying his task of doing as he pleases.”  There are “precedents for everything,” Bierce wrote, and judges just ignore the ones they don’t like and pick the ones they like―that is, when they’re not creating law out of whole cloth, he said.  As you can probably tell, Bierce hated the legal system and he especially hated judges.

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KCE:  So what is your dictionary’s definition of an IMPARTIAL JUROR? 

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CICCHINI:  I define it as “a juror who is employed by, works at, and receives a paycheck from the prosecutor’s office that actually prosecuted the case on which the juror served.”  That’s cynical, but accurate.  All the definitions in my article, including that one, are all well-supported by legal citations.  This particular citation is to the Wisconsin decision of State v. Smith, in which the court actually upheld a conviction where one of the jurors was employed by the prosecutor’s office that prosecuted the case.  There were some dissenting judges in that decision―voices of sanity, if you will―and they explained the obvious: an employee can’t “separate his or her economic and loyalty interests” from the legal obligation to be impartial.  Therefore, the dissenters wrote, “an employee of a district attorney’s office should be struck as a juror for cause when that office is prosecuting the case.”  Gee, do you think?

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KCE:  That is hilarious!  Well, it’s funny unless you’re that defendant.  But I’m sure that criminal defendants who happen to employ people would be allowed to have their employees sit on the jury, right?  (Laughs.)

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CICCHINI:  Your sarcasm is well taken.  Those potential jurors would be removed so fast their heads would spin.  No question about it.  Double standards are the norm in criminal law, which is one of the themes that runs throughout my article, including in my definitions of HEARSAY, CLOSING ARGUMENT, and DAUBERT STANDARD.

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KCE: Why did you write this article?

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CICCHINI: I wrote it because cynicism, when it’s justified, not only entertains but is an effective teaching tool.  Very few law students will ever be exposed to Bierce’s work while they’re in law school, which is unfortunate.  I was lucky enough to learn about him in an experimental first-year class at Marquette Law back in the 90s.  I wish I had taken his warnings more seriously.  If I had, I wouldn’t have been so shocked by the lawlessness in the practice of law.  So I wrote my own Devil’s Dictionary, strictly of criminal procedure terms, with an educational goal in mind.  It’s definitely not legal advice; rather, it’s designed to brace law students and new criminal defense attorneys for the unbelievable lawlessness that awaits them in the courthouse.  And general readers like your audience will, I think, find it entertaining.  I mean, you’re laughing, so we’re off to a good start here.

KCE:  This article is loaded with fantastic stuff!  Tell me about this one.  You define ACQUITTAL as “a jury’s finding of not guilty after a trial. An acquittal is recognized by everyone except the judge and prosecutor, both of whom remain in a post-verdict state of denial.  The judge may use the acquittal as evidence of guilt when sentencing the defendant for other charges, and the prosecutor may use the acquittal as evidence of guilt when prosecuting the defendant in future cases.”  What?!

CICCHINI:  I sense disbelief.  But it’s true.  I provide case law to substantiate that in the footnotes, as I do throughout the article.  In fairness though, the idea that an acquittal can be twisted into evidence of guilt is so bizarre, so anti-American that even some courts don’t buy into it.  I also cite a Massachusetts case, for example, which held that a prosecutor may not use a prior acquittal against a defendant in a future case because doing so “offends the presumption of innocence and notions of fairness and finality.”  That’s the minority view, unfortunately, but it proves that not all courts have gone off the rails.

KCE:  One more.  It’s a really short one.  The dictionary entry itself has me laughing: PROSECUTOR IN A ROBE.  And for the definition you simply write “see JUDGE.”  But you provide a great footnote here.  I have to tell you, normally I gloss over footnotes, but these are really fun!  Tell me about that entry and its footnote.    

CICCHINI:  Yes, some judges abandon their role as a neutral magistrate and turn into an advocate for the state.  It’s like having a second prosecutor in the courtroom, but this one sits in an elevated position and wears a robe, hence the saying “prosecutor in a robe.”  The phenomenon is quite common, especially in motion hearings.  A recent Wisconsin appellate decision even had to remind everyone that a court “may not abandon its neutral role to develop an argument for the State.”  But my favorite example is in the footnote that you’re talking about, which involves a jury trial in Maryland.  I’ve only experienced something like this in Kenosha jury trials a handful of times, and those offending Kenosha judges are no longer on the bench.  But in the Maryland case, Johnson v. State, the judge kept encouraging the prosecutor to object during trial.  The defense lawyer asked, “Judge, do we have two prosecutors here?”  And when the prosecutor wouldn’t object when the judge told him to, the judge would simply “sustain objections never made.”   Imagine that: a judge excitedly blurting out “sustained” without any objection from the prosecutor.  That’s one way to shut down a defense, for sure.  It was an absolute fiasco―a literal case of the judge prosecuting from the bench.  Presumably while wearing a robe.

KCE:  This is too much!  Well, a lot of these other definitions are just as good.  Where is your Devil’s Dictionary of Criminal Procedure published, and can people read it for free?

CICCHINI:  It has just been published by the Denver Law Review Forum.  If I can take a sidebar here: I’ve published in nearly fifty different law reviews, including some of the most selective in the country, and this experience was among the two or three best I’ve ever had.  Charlotte Rhoad, the Review’s senior editor, handled everything from making the initial publication offer all the way through the final edits, and it was a fantastic publishing experience every step of the way.  And yes, the article is available to everyone.  Your readers can find it on the Denver Law Review website.  No subscription required.

KCE:  What’s next for you, as far as publishing goes?

CICCHINI:  I have one more Ambrose Bierce-related article that was just accepted for publication in the Georgia Criminal Law Review.  That will be published later this spring.  As I might have mentioned earlier, Bierce hated judges.  And back in the Gilded Age, which was the late 1800s, he was highly critical of their refusal or inability to follow basic procedural law, among other things.  Criminal procedure is my area of interest and research, and my article is a follow-up to Bierce’s century-old, largely forgotten work.  I analyze whether his criticisms are still valid today, more than 100 years after he wrote them.

KCE:  What’s your verdict?

CICCHINI:  I’ll just say that, the more things change, the more they stay the same.  But the devil, as they say, is in the details.  I’ll send you a copy of the article when it’s hot off the press.

You can find Michael Cicchini’s Devil’s Dictionary of Criminal Procedure on the Denver Law Review website.  You can find all of his articles, including that one, on the articles page of his own website.