Litigation Nation

Jack Sanker: Welcome to Litigation Nation. I'm your host, Jack Sanker, along with my co-host and partner. As always, Luke Benke. Reminder that this is the show. We break down the most impactful legal stories, and you could find us on Apple Podcasts, Spotify, YouTube, wherever you get. Your podcast and we're gonna be talking about the dominion settlement against Fox News 787.5 million settlement, the largest defamation settlement ever.

Jack Sanker: Luke, what do you got this week?

Luke Behnke: So the oldest active US federal judge is under investigation over her performance on the bench, and there's a criminal justice crisis in Wisconsin.

Jack Sanker: All of that and more, here's what you need to know.

Jack Sanker: Before we get into our our stories we're gonna address a listener question that we got from Sue. Our last episode, we discussed some moves by the White House that were gonna promulgate different rules that would allow different lawmaking agencies to quantify and put a specific monetary amount or dollar on different natural.

Jack Sanker: Resources and natural assets, like, for example, forest land or, or clean water or fresh air, things like that. If you want more details on that, you can go back and listen to our last episode. We talk about it a lot there, but that's what this question's based on.

Luke Behnke: Yeah. So this, this question came from Sue in Wisconsin and she asks Luke and Jack, do you think by quantifying those natural resources, Does that make the step to privatizing those resources easier or more attractive to corporations?

Luke Behnke: That's question one. Question two is, what is the negative side to this move to

Jack Sanker: quantify them? Yeah. I mean, this to me seems more akin to like carbon credits which are, there is a market for carbon credits. I mean, companies trade them and buy and sell them and everything and it's, that was a thing that was created whole cloth by the federal government.

Jack Sanker: Like what, 10 years ago? So I think that, you know, this is insofar as the government is gonna say, Hey, these things matter and have value now and are worth X amount of dollars that is going to immediately incentivize the creation of a secondary market. I have no idea what that'll look like, but you know, like I said, we saw it with carbon credits.

Jack Sanker: There's whole companies now that do nothing other than buy and sell and and trade and arbitrage carbon credits. Frankly, that's what Tesla does. So You know, something like that might happen. My sense

Luke Behnke: would be it probably hurts because it creates, you know, a cost or a market where one didn't exist before and now it's another thing that they've gotta deal with.

Luke Behnke: And maybe this is something that the IRS or somebody, some other bureaucracy is tasked with. You know, making sure that these companies are complying with that. So I, I don't know that it would necessarily be a good thing for the bottom line. On the other hand, you know, if it's good for society, then I would put it to you that, that, that is more important than than than Nestle's bottom line.

Luke Behnke: To

Jack Sanker: me, when I was reading about this story last week, I, I was looking into what, what are the kind of counter arguments to it and the potential downside to something like this would be Probably hindrance to business activity. You know, if the federal government is quantifying certain things and and putting a value on, you know, lumber or fresh water or, or clean air or, or whatever that's gonna be used by advocates or whether they're climate advocates or just folks that are concerned about the cleanliness of the drinking water or whatever.

Jack Sanker: As a ul against, you know, anyone who may be doing. Business that would pollute those things. So, you know, I think that that's the, the reason for the opposition to this move, at least from the perspective of the opponents which is, you know, it's gonna be something, it's gonna be more red tape for businesses to get around.

Jack Sanker: Especially ones that are working at the bottom end of the supply chain, you know, with water and lumber and. Agriculture, et cetera. So that, that's I think the pretty obvious fear about the downside.

Luke Behnke: Yeah, I mean, it's still in its early stages, but I would say, you know, your, the major downsides it seems to me are, you know, sort of larger government, more regulation you know, less sort of companies doing what companies do, which is, you know, make products and make money off of their products.

Jack Sanker: Up first, the Dominion voting machine lawsuit that was filed against Fox in 20 20 20 21 settled this past week. The total settlement was 787.5 million, the largest defamation settlement ever. First off And we're gonna set aside our politics here as to, you know, this is obviously an ideological charged issue.

Jack Sanker: But we're gonna do what we do here and ignore that. And let's just get into the first part of this, which is you gotta hand it to dominion's lawyers. Who were up against Winston and Straw which had the defense in this case and specifically the legendary Dan Webb. Dan Webb is a fellow Loyola alum Go Ramblers, and he gained notoriety for his prosecutions of, of the Iran Contra Fair back in the eighties.

Jack Sanker: He was the. He was a special prosecutor here in Chicago on a number of local cases, like the Juicy Molette case, for example. Dan Webb is a living legend in terms of civil litigation. So for Dominion to get a win here is a testament to how good a job their lawyer did, which we're gonna talk about here in a moment.

Jack Sanker: So, dominion was represented by lead council, Steve Shackleford, who's a partner at Suman Godfrey. According to a Bloomberg writeup on the settlement, Suman Gafford usually represents big ticket clients on contingency fees. Usually meaning that they take about one third of whatever the settlement proceeds are.

Jack Sanker: So if that's the case here, and we don't know yet, but if that is the case, shackle Fer and his firm would be looking at attorney's fees of over 250 million. So good for them. And if you don't know the basic facts of the case I'll summarize as best I can. Quickly, dominion ran the voting machines that were used in certain states in the 2020 presidential election.

Jack Sanker: Donald Trump and some of his surrogates went on Fox News from time to time, spending a lot of time after the November election, deriding the voting machines by name, calling out Dominion as a company, specifically saying that they either. Falsified or, you know, intentionally messed with the poll numbers.

Jack Sanker: And that's what Dominion sued for, was for defamation based on that. So there's a good writeup in the National Review on this which I'll quote at length here. I think this is a good summary quote. If you choose to believe that the 2020 presidential election was stolen, you must also believe that there is a compelling pile of verifiable evidence, for some reason was never presented by Donald Trump's presidential campaign in its myriad of post-election lawsuits in November and December of 2020.

Jack Sanker: Further, you must believe that when facing a 1.6 billion. Dollar Defamation Lawsuit from Dominion Fox News never presented any of this evidence as a defense in the defamation suit. Truth or substantial truth is an absolute defense in a defamation case. If you choose to believe that the 2020 presidential election was stolen, you must believe Fox News agreed to pay seven.

Jack Sanker: 187.5 million to dominion in a settlement Rather than present any of that evidence, you must believe that Fox News had a quick and easy way to win this lawsuit and simply refused to, even though the news distributor had more than 700 million, good reasons to point to this evidence if it existed. But Fox News did not present that evidence.

Jack Sanker: In fact, Fox Corporation Chairman Rupert Murdoch said under oath that he believes the 2020 presidential election was free, fair, and not stolen. Fox News did not present any evidence contending the 2020 presidential election was not stolen because the 2020 presidential election was not stolen, and there is no compelling evidence that the 2020 preside presidential election was stolen.

Jack Sanker: Full stop. Do not pass. Go. Do not collect $200. But how is it that Fox News is paying this settlement? When the people who were making the accusations against Dominion were guests on the show, they were guests. They weren't Fox employees, right? Does the news show take on liability for the statements of their guests?

Jack Sanker: Usually not. And if you just truly report what someone says, you are typically shielded from liability for defamation under the law. However, in this case, it was the hosts on Fox who were making the comments disparaging, dominion, for example. Here's a quote from. Si, PA one of Sidney Powell's appearances on the Lou Dobb show.

Jack Sanker: Sidney Powell says, no, we've seen willful blindness. They have adopted a position of willful blindness to this massive corruption across the country. And the smart mad software is in the DNA of every vote. Tabulating software companies and systems. Lou Dobb says yes, and it is more than just willful blindness.

Jack Sanker: This is people trying to blind us as to what is going on later. November 8th, 2020. Fox host Maria. Bartiromo, who was also interviewing Sidney Powell, said, quote Sydnee. I want to ask you about these algorithms in the Dominion Software Sydnee. We talked about the Dominion software. I know that there were voting ire irregularities.

Jack Sanker: Tell me about that. On November 30th, Lou Dobbs had a lot to say. He said quote, I think most Americans right now cannot believe what we are witnessing this election. We have across almost every state, whether it's dominion, whatever the company, voting machine company, no one knows their ownership.

Jack Sanker: Has an idea of what's going on in those servers, has no understanding of the software because it's proprietary, yada, yada, yada. So the long and short of it is it's Fox hosts that were getting Fox in trouble here. It wasn't the guests, the Fox host were taking positions and speaking frankly directly to the Fox audience and saying what.

Jack Sanker: Were allegedly defamatory statements about dominion. Notably Fox dumped Lou Dobbs in 2021 shortly after these lawsuits were filed. Going back to the National Review post, the author makes the point that these kind of loose cannon hosts such as Dobbs in this case, Are costing their employer dearly loose Cannon host who is unpredictable and capable of saying anything.

Jack Sanker: And Fox News is not the only only network with on-air. Talent who fits this description can end up costing his network hundreds of millions of dollars. That's not just more than the advertising revenue of any one program. That's a large chunk of the advertising sales for the entire network over the course of a year.

Jack Sanker: The cost benefit analysis of cable news personality is about to change and the market for you never know what he's going to say Next is about to crash. Unquote. So I think that the effect of this settlement on the cable news that we've all gotten used to seeing over the past, you know, 10 or 20 years or whatever is gonna be pretty wide widespread.

Jack Sanker: And I sit here today actually as the news just came across that CNN just fired Don Lemon. Who was on the air for 17 years, and I think even more shockingly, Tucker Carlson was, was terminated from Fox News. I have no idea why either of these people were let go. I do think from Tucker's perspective, it seems like, and I'm speculating it seems like it was at least a bit because of the financials involved, Tucker's far and away the most popular cable news host on television.

Jack Sanker: Number two is not even close. She's obviously gonna command significant compensation and you know, Fox has this 780 million settlement to pay on top of the additional lawsuits that are still hanging out there, specifically, there's one from a company called Smart Mad, who also had voting machines who's also suing Fox four, I believe two and a half billion.

Jack Sanker: And that lawsuit is, you know, For the same reasons the Dominion lawsuit didn't go well for Fox. I don't have high hopes for Fox's defense team on this one, so I think it's probably money. But in any event, yeah, this, this lawsuit, I think is going to have a significant impact on the ways, on the amount of leeway that on, on-air cable news hosts have to kind of spout off what they're gonna say are their opinions, et cetera.

Jack Sanker: And there's some other follow up from the settlement we should talk about. I wanna note that the private equity firm that bought a 76% stake in Dominion in 2018, the company's called Staple Street Capital bought that stake for 38.8 million. So this 787.5 million settlement represents a 1500% return on that investment, which is pretty good.

Jack Sanker: The smart, mad case. It's actually for 2.7 billion. And in that case, I mean, smart Matic is gonna have the benefit of all the discovery that previously been conducted in the Dominion case. Interestingly smart Mad has utilized litigation financing to fund its suit. It was recently ordered to turn over that information discovery.

Jack Sanker: We don't know the details though, it seems as though. Smart, mad, and I would guess I'm speculating, but I would guess the Dominion case were bankrolled probably by European litigation Financeers. So lots to talk about here, Luke, but what's your take on this?

Luke Behnke: Yeah, so setting aside how nice it would be to be a crowdfunder for that piece of litigation.

Luke Behnke: Huh? Betting on the outcome there. Yeah. Setting, setting that aside. I. And I've, of course, I've read a lot about this this lawsuit and seen a lot on the news like everyone else has. But I of course don't have any sort of independent, you know, facts or anything. I don't know anything about the case or the underlying, you know, facts that gave rise to the lawsuit and, you know, what was going through everyone's mind when they decided to settle.

Luke Behnke: But I think it does set as, as all big defamation settlements kind of do in defamation cases. I always worry about, you know, the chilling effect of the, of the, of the money here, right? And, and, you know, this is a, you know, a news outlet that had to fork over, you know, 750 some million because of comments that hosts made during.

Luke Behnke: A show and I, I, I don't, I'm curious to, to, I would love to hear, I'd love to be a fly on the wall in boardrooms at, you know, cnn, Fox, N B c, wherever a, b, c I'd imagined they're looking at this judgment going, wow, you know, this is, this is scary. That's a big number. And you know, anytime that. Anybody out there sort of feels like one of our hosts crossed the line from kind of fact giver to you know, opinion maker or whatever.

Luke Behnke: You know, we're opening ourselves up to these defamation lawsuits. I, I don't know that it's a step in the right direction for. You know, free speech and democracy at the same time. I, I readily admit that this is a bit of a hot take. I'm, I'm still processing this cuz it, cuz it is a pretty recent settlement, but I, I am concerned about the chilling effect money like this has on speech.

Luke Behnke: So

Jack Sanker: I, I, I agree. Although with a couple of exceptions, one, I think, I think that the, there will be lawyers who are now, you know, looking. To bring cases like this now that there's a verified success record. So even just that, I mean, even frivolous lawsuits, as you and I know require time and expense and lawyers and everything else.

Jack Sanker: So, you know, if Fox or CNN or whomever all of a sudden sees an uptick in, you know, nonsense, frivolous defamation cases that'll get, that'll get dismissed immediately. Like that still has a cost. And it's still gonna. You know, make these news outlets self-police a little bit differently. I, I, I wanted to, I was trying to find something reliable to get into the damages that Dominion was gonna claim a trial.

Jack Sanker: And I wasn't able to do that. I, I noted, I did see that Dominion had like, like, I think it had record revenue after. The defamatory stuff happened, so like 20 21, 20 22. But from what I saw, what they're suing for is effectively that, you know, dominion will never get a contract to provide voting machines in, frankly, in a red state or red county or Red City ever again.

Jack Sanker: Based on this. And at least I think that was their theory of the case, right? Which is that we, our name is trashed to a large portion of our customer base over something that turned out to not be true. And so our harm here is, you know, whatever those contracts are worth times however many years that they think they would've got it.

Jack Sanker: So I think that's how they arrived at their initial number of over 2 billion. And that's probably how they calculated this settlement of 787 or whatever. I, I think, you know, the, it, the distinction here, it said, and they could have had these guests on who could have said any kind of crazy thing and probably been fine as I think what, what it seems like.

Jack Sanker: But it's the fact that the, the host themselves adopted, you know, the, the positions that the guests were saying and, and basically started speaking on behalf of Fox. Is it gonna have a chilling effect on like news? Yes, absolutely. I, I would argue the type of speech that's being chilled here, though, it might be kind of nice for us to not have, you know like to not have the hot take industry be the number one revenue generator for these news organizations.

Jack Sanker: You know, like it would be if this forces the CNNs and the Fox Newses of the world to kind of stick a little more closely to the facts and, and keep a little bit less of their opinion out of it. Maybe that's in that benefit for us all. That's just my opinion though.

Luke Behnke: Yeah, and that's a good point.

Luke Behnke: I, so I'm actually gonna be on a podcast later this week called The Newsworthy. And, and maybe it's a question for the host there. You know what, as long as there's a blueprint for these folks to do their job, then I suppose I'm fine, right? I mean, if you're it, but it cannot be the case. And I think you'd agree with me, Jack.

Luke Behnke: It cannot be the case that someone is sort of presenting an issue and letting. Folks give their opinion on that issue. And then all of a sudden, the network, by allowing these folks to provide their opinion and, and facts that they see as, you know, as relevant, all of a sudden the network is opening themselves up to a 700 million defamation lawsuit.

Luke Behnke: And again, I, I, this situation I think was probably different. My sense is that there was probably story after story about Dominion. It wasn't. The questions weren't, tell me your opinion, tell me what you think went wrong. It was more of like, you know, an accepted foregone conclusion that there was voter fraud going on here and, and kind of piling on Dominion.

Luke Behnke: I'm just worried that that's, you know, you, you can see that the distinction, there's a distinction to be sure, but it's, it's slight and And I, I, I suppose I, I suppose there's a way around that there's a way to do journalism properly, and that probably didn't happen in this case, and that's why, you know, Fox had to, you know, stare down the barrel of, of 2 billion.

Luke Behnke: But cases like this always sort of make me squirm.

Jack Sanker: Yeah. Yeah, I know. It's, it's an uncomfortable, you know, I mean, you, you don't wanna, not everything is a slippery slope, but you know, this is certainly something that you could. You know, maybe consider talking about in that context. My only thought is like the nature of the lawsuit and the sheer amount of money involved tells me that even Fox didn't believe in their defenses.

Jack Sanker: You know, like I, I mean, of course they didn't admit liability, right? You don't do that when you settle these, they don't, there's no admitting liability, but they believe that they were so screwed at trial that they would rather give a give. Three quarters of a billion dollars then roll the dice. And that to me, I think, you know, I mean you can't, you know, technically you can't use the settlement.

Jack Sanker: You know, it's not evidence of guilt, right. But it is evidence of like lack of confidence in their defense position. And, and I think that Fox's attorneys who probably have done nothing other than, you know, Dan Webb for example, who we talked about, if Dan Webb thinks that they don't have a chance at trial, I mean, he knows a lot more than I do, so so yeah, I mean, it, it's, it's a weird one and it sticks out because of how much money's involved.

Jack Sanker: But you know, at the end of the day, Fox is the one who made this decision to do this. It's not like, it wasn't a, a ruling from a judge. It wasn't a jury. This was, this was Fox saying, you Knowmia culpa. And that's, I think, pretty interesting

Luke Behnke: and screwed is a legal term of art. Is that right, Jack?

Luke Behnke: Yes it is. Yeah.

Luke Behnke: According to Reuters, a 95 year old appeals judge named Pauline Newman in Washington DC is under investigation over her performance on the bench Judge Newman's Court. The US Court of Appeals for the federal circuit handles patent appeals. And Judge Newman is considered a leading jurist on patent issues.

Luke Behnke: This investigation comes after other judges on the court question. Judge Newman's ability to handle her caseload and she reportedly declined a medical evaluation. According to internal records, the court released on April 14 when asked about the issue of age in her case, judge Newman wrote in an email to Reuters that an order detailing the investigation last week.

Luke Behnke: Had mentioned her age, but it quote carefully avoided saying this action was taken because of age close last week, judge Newman said of the investigation quote, I doubt that my elderly colleagues would've joined such a statement, close quote, be a shot across the bow or brethren. Now, the nonprofit new Civil Liberties Alliance that's N C L A is representing Judge Newman.

Luke Behnke: And has asked the court's chief Judge Kimberly Moore and US Supreme Court Chief Justice John Roberts, to move the investigation to a different court. According to N C L A attorney Greg Dolan, who himself is a former clerk for Judge Newman, the general practice has been to move similar proceedings in the past.

Luke Behnke: Dolan, who believes that the allegation allegations against Judge Newman are unfounded says of the request to move the investigation. That quote, it just makes sense that the people who might serve as witnesses not also serve as adjudicators. Close quote. Now concerns about a judge's competency rarely spill into public but some legal experts evidently told Reuters that the issue may be increasingly relevant as the US judiciary grows older.

Luke Behnke: Some of our listeners may be surprised to know that there is no mandatory retirement age for federal judges who are appointed for life and can be impeached, but not forced to retire. The average age of federal judges recently reached a record high Jack of 69. That's according to a 2020 study in the Ohio State Law Journal.

Luke Behnke: Many judges choose to take senior status, which is a form of semi-retirement that's generally offered at age 65 and allows for a lighter caseload. The average age of the 19 senior and active judges on the federal circuit is 71. And besides Judge Newman, there are five judges older than 80 on the court, including two who are active.

Luke Behnke: Now, this isn't to say that many judges can't continue capably serving into older age. Of course they can, but if anything, this shows that it can be difficult to nudge juts off the bench if competency becomes uncertain or an issue. Now if Judge Newman's competency probe determines that she suffers from a disability, she could be blocked from hearing future cases and a new judge would be appointed to her seat, though she could keep her title and her compensation.

Luke Behnke: The court's decision, as I mentioned earlier, to disclose Judge Newman's case at at an early stage while it was still under investigation, is highly unusual. The proceedings generally aren't public. And again, confrontations over judges'. Competence and performance are often handled privately sometimes through informal conversations involving a judge's family.

Luke Behnke: Only 15 US federal judges have been impeached by the Senate. Eight were convicted, quote unquote, and removed. And three resigned. Only one of those cases back in 1804 involved a mental impairment. And for those of you listeners who might be advocating. For instituting term limits or mandatory retirement for federal judges, that would require a constitutional amendment.

Luke Behnke: And as you might imagine, such an effort in this divided environment would probably get little political backing. Now there are also strong arguments for maintaining current hurdles for removal, including concerns that lowering the bar would make judges vulnerable to ideological enemies or changing political wins and limit the judiciary's independence.

Luke Behnke: So Jack, there's, there's really, I think two, two things here. One, an aging judiciary is, is real, right? The objective evidence bears that out, but you know, based on your anecdotal experience, Is it a problem? And two, what's your take on, on term limits? I, for one, can tell you that I think I'm against it.

Luke Behnke: I think I'd much rather be in front of an experienced judge who may be, you know, declining a bit than someone who, you know, potentially bends the politics. But as someone who, you know, who litigates often, I'm, I'm curious to hear what your, what your thoughts are on this.

Jack Sanker: Yeah. It's it's tough.

Jack Sanker: I, I don't even really think we need to get into term limits because it's so far outside the realm of possibility that it's, I mean, I'll never, ever happen. I, I don't think that we're gonna have a constitutional amendment. On that anytime soon. So, you know, it's just not Now. If, if it could happen, would I be in favor of it?

Jack Sanker: Maybe, I don't know. I 95 is, is up there, 95 is up there. Which isn't to say that judge Newman isn't able to, to do her job. But any, if anyone's gonna put a term limit on these judges, I suspect that they would, the number would be, Well, south of 95. So she probably would've been retired for 20 years now.

Jack Sanker: If there were, you know, term limits. So, you know, I don't know. The, I guess. You know, politically, it's, it's really dicey though, because if you could do term limits, then of course it's the big issue of, you know, who's in office when, you know, certain judges term limits are up, which we already have, especially with the Supreme Court.

Jack Sanker: But, you know, it would further, I think, politicize the judiciary. Cuz the appointments would all be you know, an, an election issue as, as folks are aging out at a given time. So you, you would know for example, in the 2028 cycle that like, 37 federal judges are all gonna automatically retire.

Jack Sanker: And so that's a new component of the election that you'd have to worry

Luke Behnke: about. Well, and remember, and remember getting those people pushed through, Jack has become a bit of a, a process. I mean, we've seen recently, you know, judicial appointments. Whew. I won't say we're a matter used to be close to a matter of course, but they weren't nearly as much of a fight as they are these days.

Luke Behnke: Yeah. So can you imagine if you've got, you know, like you said, 37 judges leaving in a year, you've gotta replace 37. I mean, that would be insane. We've already got a shortage. Talk about a fight. I mean, that would be crazy.

Jack Sanker: Yeah, that's like all the Senate would be doing. Correct. Which is confirmation hearings and arguments.

Jack Sanker: That's like, that would be a hundred percent of their schedule. Yeah, no, that's a really good point. It's, you know, really the system that we have, which is not a great one, is I think ultimately like the best way to do it, which is, you know, there's no term limits, but if someone is getting up there and starting to make decisions, everyone kind of pulls them aside and says, Hey, maybe it's time.

Jack Sanker: Take a step back. You know, informally, but if you have someone who's not willing to do that you really don't have recourse against them. And, you know, here we are. So yeah, I mean, I, I, I'm sure this judge is, you know, has her side of the case and everything else. But to your point, for this to go public for this, to make it to the public means that whatever it was that she's being accused of is probably pretty significant.

Jack Sanker: For, for people to leak it the way that it has.

Luke Behnke: Yeah. Isn't that part shocking to you? I mean, that yeah. Reading the story, that was probably the most shocking thing to me, where it's, you know, a fellow judge of yours, a, a colleague reports you, you know, reports competency issues. That's, I mean, that's tough.

Luke Behnke: I, and I, I will say this, so I don't. I, I don't think that we have enough judges on the, on the federal bench as it is. I think anything designed to remove the judges we do have probably isn't the direction we wanna go. I think what we wanna do is find a way to get more qualified people attracted to the bench and And then we can start talking about maybe separating the wheat from the chaff.

Luke Behnke: But until we get to a point where we feel like we've got a well-stocked pond, I think this is the wrong discussion to be having.

Luke Behnke: An article written by Jeff Brown and published in Wisconsin Lawyer, which is the official publication of the State Bar of Wisconsin, highlights the criminal justice crisis in this state and the proposal to begin to rectify some of the funding issues. So I'll give you a quick summary of the article. Wisconsin's criminal justice system is in crisis pay for district attorneys and public defenders is set by state law and is too low to attract and keep enough lawyers.

Luke Behnke: And although the Covid 19 pandemic might be waning its effects, linger, caseloads are up because of the court backlog caused by the pandemic. But the number of prosecutors is down because open prosecutor positions are going unfilled. The funding crunch has also affected the State Department of Justice and the state court system.

Luke Behnke: Two examples are the court system turning to digital court reporters because of an ongoing shortage of stenographic court reporters and the DOJs request to add 10 D n a technicians and four toxicologists to the state crime lab to process sexual assault kits and other D N a evidence. And to assist law enforcement agencies statewide with an analysis of controlled substances.

Luke Behnke: Now, I won't read this entire article to you. You can go read Jeff Brown's article yourself. It's great. But I will tell you this, the starting wage for an assistant district attorney is $27 and 74 cents per hour, which is about $54,000 per year. Now, the paper mills in Appleton at least as of the time of, of this article.

Luke Behnke: Are advertising entry level positions that pay more than $27 and 74 cents an hour, but demand far less work than that that than what's required for a prosecutor. Now, the state public defender, that's the s p d there in the same boat because the starting pay for a public defender is the same for an assistant district attorney as far as fixing the problem or proposals to help remedy the situation.

Luke Behnke: The W D A A, that's the Wisconsin District Attorney's Association, has proposed spending 14.4 million to cover market-based pay raises for all assistant and deputy district attorneys, and it's also asking for four and a half million dollars to cover merit-based pay raises. The S P d, again, that's the.

Luke Behnke: State Public Defender is asking for 16 and a half million to fund merit-based pay raises and to bring the starting pay for public defenders up to $35 an hour, which is what corporation council get paid here in Wisconsin. Additionally, the S P D is asking for just under 25 million to cover boosting the hourly rate for private attorney appointments to $125 per hour for in-court work and $100 per hour for out of court work and boosting the travel rate from $25 an hour to $50 per hour.

Luke Behnke: All together, the requests made by the W D A A and the S P D total just under 72 million, which sounds like a lot of clams. But really it's only 1% of the state's, 7 billion surplus. So Jack, I know you're in Illinois. I'm up here in Wisconsin. This has become a very real issue. I mean, the title of Jeff Brown's article is Criminal Justice Crisis.

Luke Behnke: The bill is coming Due. There are some there are some jurisdictions in the state that just don't have lawyers. And my sense. I can't speak for you, but my sense is, you know, one of the reasons that you became an attorney is because you believe in due process. It's, it's one of the things that separates our system from, you know, every other system in the world, quite frankly.

Luke Behnke: And without these men and women doing their job in the, in the public defender's office and in the, in the district attorney's office, there is no due process for. Hundreds, thousands of people a across the state. And so if we don't have attorneys doing these jobs, I mean it's really it's a problem for the legal system as a whole, including, you know, guys like me who don't do any criminal work.

Luke Behnke: I mean, a practical example is, you know, and I'm sure you've come across this, Jack, criminal trials will, will take precedence over civil trials. I, I dare to say always. And so if these criminal cases aren't getting tried, I mean, that's a very real backlog that's backing up our cases. I mean, it's a, it's a, it's bad for the legal system the entire way around.

Luke Behnke: It seems as if the fix is, you know, more money, better pay. So you can keep some of these public defenders in office longer. You can keep some of these prosecutors in the office longer. Because what I'm hearing and again, this is all anecdotal. I'm not at the center of this and I don't purport to be, but anecdotally what I'm hearing is, you know, these young folks are coming outta school.

Luke Behnke: They're getting these really high profile cases very early in their careers earlier than, you know, Than they ever got them in the past. They're getting this amazing, you know, sort of trial experience, and then they're just going to the private side and making double or triple, you know, what they were getting paid on the public side.

Luke Behnke: That's a problem, right? You've gotta make it so that these folks wanna stay on that side and there's, and, and, and the system has a fighting chance to sort of retain the good ones. As it is now, it's, it's a mess. And, and really, it, it's a, it's a big problem for the industry as a whole. And so I'm of course curious to hear your thoughts on this.

Luke Behnke: But this is more of a, you know, one of those stories that maybe we're amplifying an issue more than sort of discussing. Cause I think, I think there's really only one way to look at it. But what do you think, Jack? Yeah, I, I

Jack Sanker: mean, This type of thing kind of grinds my gears. And we have similar issues in Illinois.

Jack Sanker: Not being able to properly staff the state's attorney, you know, we, we don't, we're running outta prosecutors. Public defenders have always been overworked and underpaid. And, you know, Like this is not, and this is what drives me crazy, is because this will be framed by certain people. As you know, public employees are lazy and they are complaining about, you know, their salary and you know, et cetera.

Jack Sanker: And it's like, I. No one. That's not true. And if you've met, and I'm sure you have, you know, prosecutors and public defenders are like some of the most technically skilled attorneys you'll come across, they're actually really good at what they do to be able to handle those situations in the volume that they typically are.

Jack Sanker: Like my hat's off to everyone. It's all my friends that are PDs and and prosecutors who, and I, and I have a lot of. Friends that are in those scenarios, like those people know what they're doing, first of all, first of all. But you know, the, the net effect of this is like, it, the add-on effects of these bag backlogs are really like bad, you know?

Jack Sanker: So you have people that are, that are sitting in lockup for months waiting to be tried because there's no, there's no available to try them. And then you have all these negative externalities there, like maybe a person who. Is truly innocent, for example, but is facing a four months in jail before trial takes a plea deal just to get out.

Jack Sanker: You know, that's like an unnecessary pressure that is not supposed to be there. You, you technically have a right to a speedy trial under our system, and we get around that with things like cash bail and, and, and you know, options to let people out while they await trial and everything else, but you know but

Luke Behnke: even that backfires and you know, that, I mean that, that, that was the issue with the fella who drove through the wauk shop parade up here.

Luke Behnke: Yeah. That he, you know, posted a thousand dollars cash bail, got out. He, you know, he probably shouldn't have been out, but he did, because there's nobody Right. To take care of his kid. Right. And so that's, that's a huge problem on the backside too.

Jack Sanker: That's, it's like, yeah, it's like the net effect of this is like, bad people that should be locked up are being let out.

Jack Sanker: Good people that shouldn't be locked up are staying locked in. And it's like, that's really, really unfair and bad for society. Like it should not happen. And the, the solution is you, I mean, You would have, it would solve so many problems, especially in Illinois where there's this dispute over cash bail and you know, and eliminating cash bail and all of that.

Jack Sanker: And there's people who are obviously concerned about a scenario that, you know, like you mentioned, where a bad guy gets out on cash bail and, and does, you know, does something wrong. But there's legitimate concerns on the flip side of. You know, people, if you can't, you shouldn't have to pay, you know, to, to get your constitutional right to a jury trial.

Jack Sanker: Like, that's like, that's not a controversial or even political statement. You know, you just, you shouldn't you should be arrested for whatever it is. If you're charged, you should be charged. And then ideally the next day, you know there, I mean, if there's discovery or whatever but you should be in trial as soon as possible, you know?

Jack Sanker: And that helps everyone. That helps. The safety of, you know, the people around who are, you know, can trust that the system is gonna take violent or dangerous people off the streets faster or, and it protects the rights of people who are accused that are innocent because they get, they get, they don't have to sit around worrying about trial and getting pressured to make a plea deal.

Jack Sanker: So, you know, it's, it's not sexy, but like, If there was ever a candidate that, that could message this, right, and just say, you know what, I'm going to triple the amount of funding for judges prosecutors and public defenders. I mean, that person would have, that person would've my vote.

Luke Behnke: Yeah, no question.

Luke Behnke: And it, you know, this, this statement always gets met by grimaces, but it, it is one of the reasons that I advocate for, or stump for, you know, whoever will listen about the need for more attorneys. I mean, we do need more lawyers. Maybe not, and we, we touched on this in past episodes, Jack, I don't know that Urban areas necessarily need more lawyers.

Luke Behnke: But I do think that it's a problem in rural areas where we, we don't, we, there's literally like no public defenders or no prosecutors in some of these rural areas. And, you know, you just, you've gotta increase the pay for these folks. So they, so that we keep good people in that role. So I, I think you need, you need more of 'em, and you need.

Luke Behnke: More of an incentive to keep them on the public side because without it, the system fails and we're all part of the system.

Jack Sanker: Yeah. And even partial failure, which I think is, I think we are living in partial failure now. And like you have, like right, the, the Wisconsin driver parade guy, you know, that's the perfect example of of, of a foreseeable.

Jack Sanker: You know, second order effectiveness like that, that is a hundred percent foreseeable. The idea that, you know, someone who's violent can get out on bail because there's a backlog of cases and has all the time in the world to then go and do something else horrible. That's, that's a hundred percent foreseeable.

Jack Sanker: And that's, I mean, that is just a administrative governing problem. You know, it's not the fault of the prosecutors, it's not the fault of the PDs. It's probably not the fault of the judges. It's, you know, There's just not enough public investment in these institutions, which, you know, frankly should be a lot higher on people's list of priorities.

Luke Behnke: Couldn't agree more.

Luke Behnke: That's the show for today. You could find us wherever you get your podcasts, and if you have thoughts on any of these stories, as always let us know what you think. Until next time.