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EDWBA March 2017 Newsletter
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A Welcome Addition to the Bench: A Reflection on Judge David Jones’ First Year as a Magistrate Judge
By Timothy R. Evans

Anyone who meets Judge David Jones, whether it is in court as the eastern district’s newest Magistrate Judge or on the street, immediately appreciates his open and down-to-earth personality. It is an experience that leaves one glad for the opportunity to encounter an individual with such a positive and upbeat outlook on life, people, and Federal Court. Certainly, these are qualities that would bring a welcoming presence to any bench.

Judge Jones received both his undergraduate and law school degrees from Creighton University with the assistance of an Army R.O.T.C. scholarship. After graduating, he worked at the Pentagon for the Department of Defense for four years and then clerked for U.S. Circuit Court of Appeals Judge David Sentelle before entering private practice. He relocated to Madison in 1995 to take a position as an Asst. U.S. Attorney for the Western District of Wisconsin. In 2001, the Judge re-entered private practice in Madison and practiced until his appointment to the bench during the summer of 2015.

Judge Jones always knew that he wanted to be a judge, even before entering law school. Not only did he study cases and complete the work necessary to succeed in school, but he developed a historical interest in judges’ lives and backgrounds as well. He would read transcripts of portrait ceremonies and memorials in law textbooks describing jurists’ accomplishments. “I knew that I wanted to have a positive impact on peoples’ lives just as those jurists have. Clerking for David Sentelle strengthened my desire to become a judge, however, Judge Sentelle also warned me that it would take time, hard work and most of all, luck. He often said that becoming a Federal Judge is like a lightning strike.” Nevertheless, Judge Jones remained hopeful that with patience and perseverance, he would one day realize his goal. 

Once he was selected to become the next Magistrate Judge for the Eastern District, Judge Jones began his move from private practice to the bench. This experience immediately demonstrated to him how helpful and accommodating the Judges and staff of the Eastern District were and would continue to be as they worked to smooth his transition. The Article III Judges, his fellow Magistrate Judges, and the Recall Judges were willing to take the time to share a wealth of knowledge and experience. “They went out of their way to welcome me, which was very humbling.”

During his first year, Judge Jones came to appreciate an advantage that the structure of the Eastern District provides. The District Court Judges and Magistrates work as a team rather than as individual jurists, a relationship that is strongly supported by the Clerk of Court’s office and many other staff members. This allows the Magistrate Judges to take on more responsibility, including bringing cases to resolution when possible rather than handling only preliminary matters and forwarding the case to a District Court Judge or mediation. The collaborative model, along with the support that the Magistrate Judges receive from the Article III judges, enables the Magistrate Judges to focus not only on the issues before them but also on the litigants in each case.

Based on his experiences as a law clerk and trial attorney, Judge Jones feels strongly about ruling on only the issues before him.  “Often it’s tempting to reach out and solve every problem, even if not addressed by the parties. I have learned how important it is to stay within the parameters of the case.” Judge Jones maintains that philosophy while ensuring that litigants understand the rulings and non-rulings in each case.

Judge Jones has concern about the number of pro se litigants that come before him in civil cases. This is a difficult issue to address since the alternative, pro bono representation, can be taxing on private attorneys who provide this service. Many cases require a large time commitment without compensation.

For many litigants and especially pro se litigants, an appearance in Federal Court may be their first. It can be very intimidating to arrive in a courtroom at the Eastern District Courthouse. “I want to be respectful of the parties and let them have their day in court. It is sometimes difficult because as a Judge, you want parties to have their respective issues presented effectively. When a party cannot afford representation, it becomes more challenging for them as well as for the Court. The Court cannot give legal advice or help in presentation of facts and evidence because that is not fair to the other side. On the other hand, the Court cannot allow a represented party to take unfair advantage of a pro se litigant. It is definitely a balancing act.”

The Judge begins by setting the ground rules when a pro se litigant is involved. For example, in employment cases, Judge Jones advises pro se litigants about, and provides a copy of, the model initial disclosures developed by the Federal Judicial Center for adverse employment actions. These model disclosures provide plaintiffs with a sense of what they should be seeking in discovery and what they can expect defendants to seek. Judge Jones also stresses how important it is to identify in initial disclosures every person who may have information about a plaintiff’s claim—a person can’t be a witness at trial for the plaintiff unless that person has been identified in the initial disclosures. 

Discovery disputes do not necessarily require a court appearance and whenever possible, the Judge prefers to resolve them informally through a pre-motion conference. “The idea is to keep the case moving, and many times we can facilitate that with a conference call.” Practitioners generally are hesitant to contact a judge, but if there is an issue that the parties cannot otherwise resolve, Judge Jones encourages parties to call the court, which keeps the case moving and reduces court time.

The biggest challenge for Judge Jones in his first year was becoming familiar with areas of law that he had not experienced in his government or private practices. Fortunately, he has experienced staff who have ably assisted, and the Judge sometimes asks attorneys to educate him on finer points in question. 

Like others, the Judge has published practice guidelines and strongly encourages those who come before him to use them to prepare and present their case. “Reviewing the guidelines will answer many questions and make you a more effective advocate. The most important tip is don’t be afraid to ask questions.” Judge Jones wants practitioners to focus on the merits of their cases, and to facilitate that, the practice guidelines serve as an FAQ about process and technical issues that can sap inordinate amounts of attorney focus and time. The Judge’s staff members are available to answer questions regarding the practice guidelines, which can be found online at http://www.wied.uscourts.gov/judges/david-e-jones.

In speaking with Judge Jones, one immediately notes the passion that he has for his job, his staff, and the people he encounters during his workday. He remains humbled by his appointment to the bench and the welcome he received from his peers and the Bar. In turn, Judge Jones is committed to ensuring that everyone who comes before him feels welcome in his courtroom.

The Eastern District is lucky that the weather cooperated and lightning struck when it did. Welcome to the Eastern District, Judge Jones.
The Avery Saga Continues: A review of Michael Griesbach’s “Indefensible: This Missing Truth About Steven Avery, Teresa Halbach, and Making a Murderer”
By James N. Law
 
The title of Michael Griesbach's new book, "Indefensible: The Missing Truth About Steven Avery, Teresa Halbach, and Making a Murderer," provides an insightful preview into the premise for the book.  Griesbach, a Manitowoc county district attorney, explored the 1985 wrongful conviction of Steven Avery for the rape of Penny Beerntsen in his first book, "The Innocent Killer."  Griesbach did not devote much time in that book on Avery's conviction for the murder of Teresa Halbach.  Griesbach notes that he had fallen into the trap of developing preconceived notions about Avery's guilt.  After hearing Special Prosecutor Ken Kratz recount Brendan Dassey's confession about his participation in the murder of Halbach, Griesbach "turned off the critical thinking switch…, even when [writing] Part 3 of The Innocent Killer."  Griesbach did not think that spending time and effort exploring the evidence supporting Avery's murder conviction was worth it when Avery was "obviously guilty."  After binge watching the sensational Nextflix documentary Making a Murderer, however, Griesbach came to doubt his long-held belief that Avery was responsible for the brutal murder of Halbach. 
 
But, Griesbach was equally alarmed at the evidence supporting Avery's guilt that Making a Murderer's documentarians strategically left out.  As Griesbach explains, "the documentarians have pointed out that truth is elusive in the Steven Avery case, which is true enough.  However, by excluding facts that don't fit their aim and manipulating others, they have distorted the truth beyond recognition and have decided for the rest of us what we are to believe."  This distortion of the truth to fit the documentarians’ aim—drawing attention to the shortcomings of a criminal justice system in need of reform—was indefensible in Griesbach's view. 
 
To fill in the evidentiary gaps that Making a Murderer created for viewers, Griesbach took a three-month leave from his job to delve into the full record of evidence linking Avery to the murder of Halbach.  Using his prosecutorial skills, Griesbach delivers a well-researched account of all the evidence supporting Avery's conviction.  Griesbach's account also dispels Avery's legal defense theme of evidence planting by Manitowoc officials worried about Avery's $36 million civil lawsuit concerning his earlier wrongful conviction for the rape of Beerntsen in 1985. 
 
For those looking to gain a complete picture of the story behind Avery's murder conviction, Griesbach's new book, Indefensible, provides the contours that Making a Murderer could not, or chose not to, capture for viewers. 
Updates from the U.S. District Court for the
Eastern District of Wisconsin


For those that have not already heard, the EDWBA would like to acknowledge the announcement of two upcoming retirements – Judge Charles N. Clervert, Jr. and Clerk of Courts Jon W. Sanfilippo.  Judge Clevert has served on the federal bench for over 40 years and will retire at the end of March.  Jon has served as the Clerk of Courts in the Eastern District for the past ten years and will retire at the end of April.  Their commitment, contribution and service to the Eastern District are much appreciated.  Thank you!

Judge Stadtmueller’s courtroom has been temporarily moved to Room 284 while his regular courtroom undergoes renovations. It is anticipated that these renovations will be completed in the next few months.
EDWBA Annual Meeting – Monday, April 24th
                 
Your EDWBA Annual Meeting invitation will be in your mailbox in the next day or two, if you haven't already received it. Please read it to learn about the outstanding CLE programs offered throughout the morning, including a Supreme Court in Review by Erwin Chemerinsky, Dean at the University of California, Irvine School of Law.  The luncheon will feature the awards program where distinguished people and organizations will be recognized.  You won’t want to miss any of it!  The annual meeting is the highlight of the EDWBA’s year so register today.  
Meet Our Contributors!
Timothy R. Evans
Tim has practiced law for over 20 years and is licensed and has offices in Wisconsin and Illinois and is also licensed in Florida. Besides his solo general practice, Tim is a Supplemental Court Commissioner in Kenosha County and is an Administrative Law Judge. Tim enjoys golfing and spending time with family.

 
James N. Law
James enjoys traveling with his family to Daytona Beach, Florida and to his family farm near Rome in Jefferson County.  His favorite recent travel destination was Nova Scotia.  James enjoys spending his spare time reading fiction and non-fiction, home brewing beer, and other adventures with his wife and two children. 
For questions please contact Katy Borowski at 414-276-5933 or kborowski@milwbar.org.
Copyright © 2017 EDWBA, All rights reserved.


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