Michigan Legislature Consider's Forfeiture Reform

When a crime is allegedly committed, the police and the prosecution can often seize items related to the crime. This can sometimes happen when the owner of the property is completely innocent. In tough times, this has created a conflict of interest in the police and prosecutors. They can easily make a ton of money to help their departments at the expense of innocent individuals. Two bills were recently introduced in the Michigan Legislature to place some modest limits on this problems. HB 5213 would require a criminal conviction before a forfeiture action could be filed. HB5081 tightens up the reporting requirements on the forfeiture so that problem departments can be identified in the future.

Washington Post Criticizes "Sledge Hammer Justice"

There was an interesting editorial by George Will in today's Washington Post about “sledge hammer” justice about how the prosecutor can use its charging discretion to force most defendant’s to plea guilty or face exceptionally long sentences. While some consideration should be permitted for pleas, when is the “trial tax” too excessive?

Michigan Court of Appeals Rejects Alleyne Challenge to Guidelines

For the last ten years, criminal defense attorneys have thought of Michigan sentencing guidelines were unconstitutional.
In Apprendi v New Jersey, the Court held that a State could not avoid the reasonable doubt standard by shifting elements of a criminal offense to the sentencing phase. The Court stated that factors which raised penalties are de facto elements which must be proven beyond a reasonable doubt to a jury. Over the last ten years, the Michigan Supreme Court has continuously rejected this argument despite the fact that the United States Supreme Court has been consistently expanding the Apprendi doctrine.
Last year, I blogged about a United States Supreme Court rolling called Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), which I thought was the last nail in this flawed argument’s “coffin.” How wrong I was.
Yesterday, a panel of Michigan Court of Appeals rejected the Elaine challenge in
People v Herron, Court of Appeals No. 309320. The court distinguished every United States Supreme Court case along this line based and distinctions which this author believes are irrelevant. If they willing of our Court of Appeals is mirrored by the Michigan Supreme Court, the only remedy that a defendant world will receive is likely to be from the United States Supreme Court. Stay tuned, this issue is far from over.
Mr. Herron is represented by Christine Pagac at the State Appellate Defender’s Offender’s Office.




Dissenting Judge Kozinski Recognizes Epidemic of Brady Suppression

Ninth Circuit Judge Kozinski may be a conservative, but he has long ago earned my respect for his honesty and ability to not simply tow the party line. His dissent in United States v Hicks, Ninth Circuit No. 10-36063 is no exception. It is rare that a dissent may be a call to action, but this case may be that exception.
Brady v Maryland prosecutors to disclose all evidence which is exculpatory in nature or which mitigates punishment. Unfortunately, in our adversarial system prosecutors are often tempted to bury this evidence. The problem comes with the fact that the person exercising this judgment has a conflicting obligation Moschus is to try and convict a defendant. What prosecutor is theoretically the Minister of Justice career advancement is normally based on convictions. Prosecutor to conceal evidence rarely phrase discipline for doing so and I virtually never prosecuted.
Kenneth Olsen was charged with developing chemical weapons of mass distraction. There was evidence presented at trial that he was attempting to develop the chemical ricin. The quantities impurities of this drug however were so low that the government was going to have a difficult time proving that the defendant had any intent to injure other people. To overcome this, the assistant United States attorney call Arnold Meinkhoff as their expert witness. Prosecutor concealed an internal investigation which showed huge problems with this expert witnesses integrity or level of care. Fourteen of his one hundred investigations which were audited showed serious problems.
This was never turned over to the defense counsel. The majority of the Ninth Circuit Court of Appeals upheld this nondisclosure. A majority of United States Court of Appeals for the Ninth Circuit then denied en band rehearing.Judge Kozinski not only dissented from the results in that case, but noted that Brady violations had reached epidemic proportions.
Judge Kozinski further wrote:
“The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."

The problem is systemic. Prosecutors cannot be trusted to determine what evidence must be turned over to undercut their cases. Courts need to move this determination from the prosecutor to an independent master. Similarly forensics needs to be moved from an adversarial branch government to a branch under the court which is not incentivized in anyway to call a matter in one want manor or the other. These experts also need to be shielded from the other evidence and opinions in the case so that all they are determining is based on the evidence they are charge with investigating.

Improper Prosecution PowerPoints Lead to Reversal of Washington and Nevada Cases

Appellate counsel are well advised to fight for video disks and prosecutor power points in trials. The States of Washington and Nevada recently reversed prosecutor’s for using PowerPoints closing arguments with images of the Defendant and the word “Guilty” superimposed. The Courts say that the prosecutor cannot imply personal opinions of guilt and that the PowerPoints were far more powerful than mere words. Here is a link to the Washington case and here is a link to the Nevada case. The slide is a mockup of the particular slide described as improper by both the Nevada and Washington appellate courts. MOCKUP.001The slide is a mockup of the particular slide described as improper by both the Nevada and Washington appellate courts.

The Trial Tax

There is a very interesting article in Today’s New York Times on the trial tax. It recognizes what most defense attorneys often know. Defendants who demand jury trials and assert their innocence or often threatened with very severe penalties by the Government to try and force them to forego a trial and take a plea. Even the innocent capitulate. The US Supreme Court upheld this conduct in Bordenkircher v Hayes but there needs to be limits. I understand that settlements mean posturing and that both sides settle which they are not completely happy with, but there can be differences running in the decades.
It is easy to think that you would stand your ground if you are actually innocent, but what would you do if they offered you probation for an offense you did not commit versus twenty years in the joint if the jury convicts. The Acceptance of Responsibility scorings on the Sentencing Guidelines were meant to create an acceptable difference. It gives you about a 15% discount on the average sentence for pleading guilty. The practices outlined by the New York Times are highly problematic.

Dearborn Disqualification Upheld

I won a nice win today in the Court of Appeals in Dearborn v Navoy, Court of Appeals No. 311069. Dearborn District Judge Somers has been an outspoken critic of medical marijuana and actually wrote an opinion declaring the law unconstitutional. Despite his repeated comments about his disbelief of the legitimacy of medical marijuana, his belief that that it is the “devil’s weed,” and his long monologues against the drugs, he refused to remove himself from Dearborn v Navoy. The District Chief Judge removed him, the Circuit Court affirmed, and now the Court of Appeals firmed in the linked opinion. While not clear from the opinion, Mr. Navoy has a medical marijuana card. We are placed that our client will have an opportunity to present the matter to a judge who has not staked out the position that Judge Somers has taken.
I also want to give a public nod to my colleague and friend Neil Rockind for his brilliant work in the case. He is a truly great co-counsel.

Great Ruling on False Light Arguments from Sixth Circuit

The Anti-Terrorism and Effective Death Penalty Act (AEDPA) definitely complicated the pursuit of habeas corpus relief. The incarcerated can no longer write successive petitions and a defendant’s appeal must contain all claims. Furthermore, the only successful habeas claims are the ones where convictions are transparently contrary to “clearly established federal law” or an “unreasonable determination of the facts in light of the evidence.” 28 U.S.C. § 2254. Supported by the United States Department of Justice, Vanderbilt University Law School released a 2007 study, “Habeas Litigation in U.S. District Courts: An Empirical Study of Habeas Corpus Cases Filed by State Prisoners Under the Antiterrorism and Effective Death Penalty Act of 1996.” Its conclusion was as follows: There are slower completion times per case and fewer petitions granted on average.

Then the Sixth Circuit issued its October 30, 2013, Peoples v Lafler opinion. A three-member panel criticized a Michigan prosecutor for a false inference argument and deemed that it was prosecutorial misconduct. The court ruled that AEDPA precluded them from reviewing the case, yet the issue that ultimately was considered dicta in the appellate opinion may nudge open AEDPA’s heavy door. In Peoples v. Lafler, two witnesses told a similar story that was the only evidence connecting Jesse Peoples to the murder of
Shannon Clark, a Detroit drug dealer fatally shot outside his home. However, the evidence was “known false testimony” and “trial counsel did not use the only hard evidence at his disposal to prove that the two witnesses not only lied, but told the same lie,” the appellate court said in its opinion.

Three months after Clark’s death, police arrested Jesse Peoples, Demetrious Powell, and Cornelious Harris after the men led police on a chase in a stolen Jaguar that ultimately crashed. Police found on the driver’s side floorboard the pistol that killed Clark. Also, a police officer witnessing the crash writes a report identifying Harris as the driver. Peoples, while awaiting trial, mailed defense counsel a copy of the police report, indictment, and criminal docket sheet showing that Harris was the Jag’s driver. However, they are ignored and Harris and Powell are able to spin a similar story about Peoples’ involvement.

The Sixth Circuit partially reversed the decision relating to Peoples’ ineffective assistance of counsel claim and remanded the case to the district court to conditionally grant a habeas corpus writ, giving the State of Michigan 90 days to retry Peoples or release him from custody. Quoting the opinion, “ ‘[i]t is particularly unreasonable to fail to track down readily available and likely useful evidence that a client himself asks his counsel to obtain.’ Couch v. Booker, 632 F.3d 241, 247 (6th Cir. 2011). Where, as here, counsel fails to use a police report, indictments, and criminal docket sheets the client himself obtained that would have proven counsel’s own defense theory, the failure is, a fortiori, unreasonable to the point of constitutional deficiency. It certainly is not, by any objective measure, sound trial strategy.”

The appellate court’s AEDPA deference delved into discussions of a “modified form of AEDPA deference,” in which the court focuses on the result rather than the reasoning of the state court. Hawkins v. Coyle, 547 F.3d 540, 546 (6th Cir. 2008). The question then, according to the court, is whether there was a reasonable likelihood that the trial’s outcome would have been different if the known false testimony had never been presented. The court concluded that there was other testimony connecting him to the murder so there was no reasonable likelihood that the outcome would have been acquittal or conviction on a lesser charge. Keep in mind, the court decided in this case to “REMAND the case to the district court with instructions to conditionally GRANT a writ of habeas corpus.”

Michigan Supreme Court Grants Leave on Carp and Eliason and J-LWOP

The Michigan Supreme Court just granted permission to appeal on People v Carp and People v Eliason. These cases deal with the retroactivity of the United States Supreme Court’s ruling in Miller v Alabama (Carp); and the appropriate remedy should be for these individuals (Eliason). The Court has also agreed to hear a third case where the question is whether a juvenile convicted of aiding and abetting first degree murder can potentially receive a natural life sentence or whether Graham v Florida bars this. I will post an update to this with links to the various orders in the near future. In the mean time, here is a good link from M-Live.

Canadian Supreme Court Finds Exceptional Privacy in Computers

Hats off to the Canadian Supreme Court in Regina v Vu, 2013 SCC 60 (2013) for recognizing what so many American courts don’t seem to get -- that computers are different. Police are now routinely seeking (and unfortunately getting permission) to search everyone’s computers when they have probable cause of any evidence of crimes. The Canadian Supreme Court said that there has to be individualized probable cause to search a computer and that the police cannot get to its contents by virtue a general search warrant to search a home.

Federal Court Grants Writ in Aceval Police Perjury Case

People v Alex Aceval is one of the strangest cases I have ever worked on. There is no disputed that the State presented perjured testimony at my client’s trial. The judge granted the prosecutor’s secret motion for permission to present this testimony and had a court reporter transcribe the motion. The prosecutor was disbarred for it. The case wrecked the judicial career of the judge who was forced into retirement with a blot on what would have been an otherwise distinguished career. Most of the police were convicted as well.

Still, the State of Michigan steadfastly argued that Mr. Aceval’s conviction was not tarnished by the perjury. Recently, Judge Tarnow disagreed. Calling the Defendant’s trial a sham the judge said that the charges should have been dismissed with prejudice. Earlier this week, Mr. Aceval was released a free man. The state has not decided whether it will appeal.

Google Goes After Mugshot Sites

I was delighted to read that Google has finally decided to tweak its algorithm to downgrade the so-called Mugshot sites. These sites publish the mugshots and arrest details of individuals who have been arrested for a crime, even when the charges are dropped or the individual pleads to a deal which does not result in a criminal record.

The sites usually work closely with a so-called removal service which will remove your name from their website for a payment of $400 or so. Some charge more; some charge less. Most of the sites also have a free removal process, but my clients have reported to me that the free removal services is overly cumbersome and the sites will only comply if there is an express statute banning the publication of the information. Thus, if the offender pleads to a deferred adjudication with no criminal record, many of these sites will leave the charges up even though the individiual has never been convicted of an offense.

There is also a rising grass roots movement against these
sites. Many people feel that they have been the victim of blackmail and that even when they capitulate and pay the money, their name promptly prompts up on a new server. It effectively becomes a game of “whack a mole.”

The article also reports that many credit card processors have refused to handle these removal businesses and that PayPal has banned them as well. While I feel positive about these developments, my unscientific experiment showed that these sites still come up on the top with respect to my former clients with sheltered convictions. Amending the Fair Credit Reporting Act to cover these sites would be the answer in this author’s opinion. It already covers some
dissemination of criminal records.

Second Circuit Reverses Judge Weinstein's Child Porn's Ruling

Critics decry mandatory minimum sentences for non-violent offenders as an unfair and expensive means of ruining lives. Yet the United States Court of Appeals, Second Circuit, recently stood its ground when it reversed federal Judge Jack Weinstein’s ruling to deliver a 30-month prison sentence to Corey Reingold, who had pled guilty to committing, at age 19, one count of distributing child pornography. According to a Sept. 27, 2013, news account from the ABA Journal, Reingold had shared child pornography through a file-sharing program called GigaTribe. He had admitted to downloading “a ton” of child porn and also admitted to sexual conduct with a minor who is a relative. The mandatory minimum sentence was five years. Their ruling is available here.
In the Second Circuit’s Sept. 26, 2013, reversal, where the order is to “remand the case to the district court with directions that it vacate the sentence and resentence the defendant consistent with this opinion,” Judge Weinstein’s 401-page sentencing opinion came under review, along with the judge’s allegation that a five-year sentence for Corey Reingold was an unconstitutional Eighth Amendment violation. Judge Weinstein had claimed the mandatory minimum a cruel and unusual punishment and had suggested that 30 months would provide enough psychiatric treatment to prevent a repeat offense.

The 2nd Circuit’s reversal, though, found no such constitutional violation and a case analysis gave much attention to
Harmelin v. Michigan, 501 U.S. 957 (1991), for case specific analysis and Graham v. Florida, 130 S.Ct. 2011 (2010), for categorical rule analysis. The court emphasized, citing Graham, that punishments are deemed cruel and unusual when they are both “inherently barbaric” and “disproportionate to the crime.” A five-year sentence, the court said, requires categorical rules to ensure constitutional proportionality as applied to particular felony crimes or classes of defendants, and the Second Circuit ruled that Judge Weinstein had not employed Graham’s analytic approach to pronounce a categorical rule. Instead, the appellate court said Judge Weinstein had found the five-year minimum disproportionate to the offense as applied specifically to Reingold. “The Supreme Court’s proportionality jurisprudence does not support such a substitution of Graham’s categorical-rule approach for Harmelin’s particular-case approach to assess the proportionality of an otherwise permissible term-of-years sentence as applied to a particular case,” the court said.

The reversal also criticized Judge Weinstein’s emphasis on juvenile offenders. “Reingold was already 19 when he committed the crime of conviction,” the 2
nd Circuit’s opinion reads. “In short, he was an adult, not a juvenile.”

Judge Weinstein’s sentencing opinion states that Corey Reingold was 15 when he started smoking marijuana and drinking alcohol. A year later, the judge wrote, a friend introduced him to child pornography on the Internet. He began watching the material with male and female peers.


Michigan Court of Appeals Finds Ineffective Asisstance of Counsel In CSC CAse

Imagine facing criminal sexual conduct charges and then having the trial court fail to demand new jury deliberations when an alternate juror takes the place of a holdout, deadlocking juror who, by the way, waited to the last minute to tell others he once was the alleged perpetrator in a sexual misconduct investigation. Atta boy to attorney Mitch Foster, who, while representing David Paul Morikawa, legally persuaded a conservative Michigan Court of Appeals panel to reverse and remand the defendant-appellant’s jury conviction of two second—degree CSC counts. Mr. Morikawa will get a new trial thanks to this exceedingly rare finding of ineffective trial counsel assistance.
In an unpublished Aug. 27, 2013, opinion, the conservative court led by presiding Judge Michael Talbot, branded the original Iron Circuit Court's failure to demand new deliberations as “plain error.” The appellate court, in its non-binding opinion, cites MCR 6.411: “[i]f an alternate juror replaces a juror after the jury retires to consider its verdict, the court shall instruct the jury to begin its deliberations anew.” Errors in jury instructions, the appellate court emphasizes, are of a constitutional magnitude. People v. Tate, 244 Mich App 553, 567; 624 NW2d 524 (2001). There actually were two deadlocked jurors in this case. Juror K was the one who, upon questioning, revealed that he was at a Christmas party several years before when he touched a young girl during a group picture. He further revealed that he was cleared of any wrongdoing and said he did not mention the incident during voir dire for two reasons: He didn’t think the past would affect his judgment and he did not want to bring attention to himself. The court removed him from the case after further learning that “he had received a lot of peer pressure in the jury room.” Once an alternate was chosen, the court ordered the jury resume deliberations instead of starting anew, and the defense counsel politely declined the judge’s invitation for comments. “Given the existence of the original two ‘holdouts,’ this was obviously a close case,” the court wrote in its opinion, “and, when viewed in light of the error discussed infra, we find that it could indeed have had an effect in the outcome of the trial if the jury had begun deliberations anew with a new member and the fresh perspective that member would bring.”
The infra error was when the court gave sway to the prosecution in its line of questioning. The appellate court cited MRE 404(a), which says the only way prosecutors can introduce evidence of a non-testifying defendant’s character is if the defendant “first opens the door” by offering evidence of that character trait. The prosecutor was questioning a female witness about Mr. Morikawa and how she came to know him. After some routine questions, the prosecutor then asked the following: “And based upon your familiarity with him and with other troopers can you come to a conclusion or an opinion as to his credibility and veracity being truthfulness? Do you have an opinion?”
A: Yes, I do.
Q: What is it?
A: He is not credible.
The prosecutor had the witness clarify that she meant “truthful” when she said “credible.” There was no objection from defense counsel.
People v Morikawa, Court of Appeals No. 308016.

Wilful Blindness" Why Some Prosecutors Don't Want to Know About Police Perjury

The East Bay Express has a blog piece about the problem with police perjury and how many prosecutor’s do not think it is their obligation to check with police departments to see what history these officers have. Police who get caught lying are not always fired and when they are fired, they often stay in law enforcement -- just switching departments.


Some police departments maintain “Brady lists” of officers with troubled pasts. They try to keep these officers from being affiants in search warrants where possible and regard it as their duty to turn evidence of past scandals over to the defense. At least in California, however, there is no consistent policy about what is in a Brady policy or when a prosecutor has to go back to the police department looking for evidence of past lying on the part of a given officer.


The now disbanded California Commission on the Fair Administration of Justice had recommended in their 2008 report that prosecutor’s offices maintain strict and consistent Brady lists. Unfortunately, police departments have pushed back because they think that these lists will make these tainted cops unusable.


One of my new favorite blogs (the Open File) has a nice commentary on this article. The Open File about prosecutor misconduct and urging public accountability. Not surprisingly on the same page are articles about convictions being overturned because the police have failed to turn over more than 11,000 pages of exculpatory evidence in one case, of a federal judge in New Orleans overturning another conviction because their US Attorney’s Office elicited perjured testimony, and a 9th Circuit case overturning a money laundering case because the declassified summaries turned over to defense counsel were misleading and withheld favorable evidence.

As I was about hit the “publish button” on my software, I saw today’s story about Debra Milke, the German mother convicted of aiding and abetting the murder of her son and received the death penalty. The Maricopa County Arizona prosecutor had concealed the fact that the police officer who supposedly took her undocument “confession” had a long history of perjury. Not surprisingly, the prosecutor concealed evidence that the police had a history of perjury. Despite the fact that there was four incidents of perjury by the officer he was kept on the force. Judge Kozinski’s opinion can be found here. Chief Judge Kozinski is the chief judge of the Ninth Circuit a independent minded conservative. Despite the Arizona’s Attorney General’s vow to appeal this ruling, I don’t think he has much chance. While the US Supreme Court has not been kind to the Ninth Circuit, this error strongly suggests actual innocence and seems to be within the four corners of Brady.

SCOTUS Says Pro Se Litigants Can't Litigate Their Own Cases

Codifying what has been the practice for a number of years, the United States Supreme Court has said that a pro se litigant cannot argue their own case in front of the Supreme Court. Pro se litigation is constitutionally protected at the trial court, but courts have not completely extended the right on appeal. In the US Supreme Court, the theory is that the because the question before the Court is of national significance and it cannot be presumed that a pro se litigant can adequately protect the rights of others. Click here to read Joe Patrice from Above the Law’s blog on this practice.

Do Crime Labs Have an Inherent Conflict of Interest?

Detroit has filed for bankruptcy, and it’s obvious that Michigan’s property tax revenue stream is thinner than it once was. Municipalities have sometimes hiked fees to make up for the lost funds, and sometimes it’s obvious their attempts to Band Aid holes in their budgets are threatening the judicial system. The Huffington Post’s Radley Balko deserves kudos for taking note of people’s fears and noticing the monetary incentives now tempting over-exuberant crime analysts in the law enforcement field. His Aug. 29, 2013, article, “New Study Finds That State Crime Labs Are Paid Per Conviction,” begins with an elaboration on the cognitive bias existing when crime analysts report to a state police agency or state Attorney General’s Office. Put the analysts’ job assessments and job reviews under the microscope lens of police and prosecutors, and, of course, you’re going to find an analyst eager to use science to find a criminal. Especially these days, when the mighty dollar is of the essence.

In Balko’s latest article, he writes about a study clearly stating its premise: “The Criminal Justice Creates Incentives for False Convictions” by
Roger Koppl and Meghan Sacks. He details the most noteworthy finds such as a crime lab that receives $10 for each guilty plea or verdict from a speeding ticket and $50 for each DWI (Driving While Impaired) and drug offense. Another specious fact: An Illinois crime lab receives fees upon sex offense convictions.

As Balko says, “every analyst knows that a test result implicating a suspect will result in a fee paid to the lab. Every result that clears a suspect means no fee. They’re literally being paid to provide the analysis to win convictions.”

Balko finishes his article by noting scandals that arise from such practices. Balko isn’t the only one to predict more problems from such a compromised system.

Supreme Court Summaries

Now that the U.S. Supreme Court has finished the 2012-2013 term, a number off writers are publishing their end of the year summaries of important rulings. There is so many good summaries out there, that I really don’t want to “reinvent the wheel.” I decided that a better idea was to summarize the summaries:

  • Professor Erwin Chemerinsky is the Dean of the University of California Irvine’s School of La and is an exceptionally well published author on the U.S. Constitution. He has published roughly ten articles on decisions from this year’s Court. His general summary is entitled “What we learned about SCOTUS this term” and does a nice job about discussing the political divides of the Court and the current ideological divide on the Court. This summary covers the University of Texas affirmative action case (Fisher v University of Texas), the dog sniff on the porch case (Florida v Jardines), the DNA collection case (Maryland v King), the marriage equality case (United States v Windsor and Hollingsworth v Perry), and the Voting Rights Case (Shelby County v Holder);


  • Slate has a summary designed more for ordinary folks (and not lawyers) written by Emily Bazelon, a popular news writer and fellow at Yale Law School. Her summary “Supreme Court 2013: the Year in Review” covers the general ground covered by others. She makes several interesting points, however, including fight between Justices Roberts and Scalia in City of Arlington v FCC -- an obscure case dealing with the authority of the FCC to regulate the placement of cell towers. Justice Roberts used the ruling to challenge the expanding power of the FCC which is coming with our increased methods of communication. She also made an interesting point on the gene patenting decision fro the court. Justice Thomas (writing for the majority) drew a distinction between naturally occurring DNA and synthetic DNA. The problem is that the people in the biotech industry say that the distinction is “meaningless and anachronistic.”

More analysis will be coming out very shortly and I’m still sifting through all the stuff. I will update this post as I find more good reviews.

Sixth Circuit Judge Boyce Martin Will Retire

Squires Sander’s Sixth Circuit Appellate Blog is reporting that Judge Boyce Martin, Jr. is expected to retire next month. Judge Martin is the longest serving judge currently on the Court. He came to the bench in 1979, appointed by President Carter.

Sixty Minutes Profiles Texas Exoneree Michael Martin

Tonight’s 60 Minutes had an interest story (possibly a rerun) on Texas Exoneree Michael Martin. Mr. Martin was convicted of murdering his wife because the prosecution had hid various reports showing that the police had contemporaneous reports which showed that the Defendant’s three year old son had exculpated the Defendant. The police buried it. The prosecution fought the Defendant’s request for a DNA test for five years. The test showed that the someone else committed the crime.

EEOC Sues BMW and Dollar General Over Refusing to Hire Former Offenders

The EEOC just filed suit agains BMW and Dollar General over their blanket refusal to hire former offenders. In the BMW case, the EEOC claims that BMW outsourced part of their human relations policy to an outside contractor who promptly fired 88 former offenders. In the Dollar General suit, the EEOC states that Dollar refused to hire former offenders even where their was no nexus between the offense and the job. To prevent a discriminatory impact against minorities, the EEOC requires employers to have a nexus between the criminal conviction and the job (e.g. they can stop an embezzler from holding a job as a cashier). Unfortunately, there are too many people in HR Departments who believe they should have a per se policy against hiring former offenders.

The
New York Times has urged these companies to reconsider their policies.

Edith Jones Misconduct Complaint Sent to DC Court

The judicial ethics Complaint against US Court of Appeals Judge Edith Jones was transferred to the US Court of Appeals for the District of Columbia pursuant to an order of Chief Justice John Roberts. The request was made at the request of the Chief Judge of the United States Court of Appeals for the Fifth Circuit. Judge Jones was briefly considered by President Bush for the United States Supreme Court. Source Times-Picaynne.

Update: The Time-Picaynne website has since noted that the order doesn’t expressly mention Jones by name, but it is widely reported that the complaint was filed against her based on a speech where Judge Jones stated that African-Americans are more likely to commit crime than other subgroups.

A Judge's Excessive Involvment in the Plea Bargaining Process is Not Per Se Reversible Error

Reversing the decision of the United States Court of Appeals for the Eleventh Circuit, the US Supreme Court has held that a judge’s violation of Fed. R. Crim. P. 11c(1)’s prohibition on judicial involvement in the plea bargaining process is not per se reversible error. United States v Davilla, Supreme Court No. 12-167. The opinion was authored by Justice Ginsburg (with Roberts, Kennedy, Breyter, Alito, and Sotomayor joining). Justices Scalia and Thomas issued a concurring opinion. The Court found that Fed. R. Crim P. 52(b)s harmless error standard coupled with Fed. R. Crim P. 11(h)’s Trumped the mandatory language of the Rule c. The Court also found that gravaman of a Rule 11c violation was that the Defendant may be coerced into a plea, rather than a judge retaliating against the Defendant for not taking a plea. The Court stated that Rule 11(h) was inserted into the Rule 11 to reject the broad reading of McCarthy v. United States, 394 U.S. 459 (1969).

Great Guide to Seeking En Banc Rehearing

Hats off to the bloggers at the Law Firm of Squires/Sanders for a great blog post on how to seek en banc rehearing in the Sixth Circuit. En banc rehearing is a rehearing before all active judges in the Sixth Circuit. En banc rehearing is reserved for rare cases where the decision directly conflicts with prior circuit precedent (which it should never theoretically do, but it does unfortunately happen), or the decision is an issue of exceptional importance such as a situation where the circuits are completely split or where the panel has declared an Act of Congress unconstitutional. The mere fact that the panel got it “wrong.”

People v Koon reversed. Mich SCt Holds that Medical Marijuana patients can drive as long as they aren't actually intoxicated.

Reversing the Michigan Court of Appeals, the Michigan Supreme Court has held that Medical Marijuana patients can drive cars with a detectable presence of THC in their system as long as they are not actually impaired. The Court of Appeals had ruled that Michigan’s zero tolerance policy on “drugged driving” controlled. This meant that the presence of active THC was sufficient to convict the defendant.

The Supreme Court reversed holding that the protections under Section 4 of the Medical Marijuana Act controlled. The Court specifically noted that Section 7 of the Act provided that nothing in the Act would prohibit the prosecution of actually driving while impaired. The Supreme Court suggested that the Legislature adopt a standard analogous to Washington’s which prohibited 5 ng/ml of THC in a person’s system.
People v Koon, Supreme Court No. 145259