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.” 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
Jun/04/13 10:23 CategoriesAEDPA |Habeas Corpus
Reversing the Ninth Circuit, the US Supreme Court stated that a state court acts unreasonably only if there is U.S. Supreme Court decision directly adverse to the ruling of the state court. In Jackson, the trial court excluded evidence that a Complainant had made unsubstantiated allegations of sexual assault against the defendant in the past. The Nevada Supreme Court had previously ruled that such evidence of the falsity of the prior statement is inadmissible where the only evidence is “extrinsic.” The Ninth Circuit relying on U.S. Supreme Court rulings as interpreted by Ninth Circuit rulings found the ruling objectively unreasonable. The U.S. Supreme Court stated that appellate courts should not use their own rulings as a clarifying gloss. This means that the Attorney Generals throughout the country may use lower court rulings to demonstrate the reasonability of the state court rulings, but the defense may not do the contra. Heads they win; tails we lose. Nevada v. Jackson, No. 12–694, 569 U. S. ____ (2013).
May/25/13 15:47 CategoriesSupreme Court |Fifth Amendment
There was an interesting post on the Volokh Conspiracy today about the IRS agent’s belated invocation of her right to remain silent. According to the Supreme Court’s ruling in Mitchell v United States, her partial disclosure may have waived the entire stream. This approach could be helpful when a Government informant has made disclosures to the police or the prosecution. I have argued a similar approach when a CSC victim gives access to his/her medical/pscyhological records. The Reid method of interrogation remains popular despite the fact that it is roundly criticized. In fact, an early variation of the Reid method was critically referred to back in Miranda v Arizona. Innocence Projects around the country have further demonstrated its flaws. Police get confessions whether truthful or false. Recently, Psychology Today recognized that there is no science underlying the technique. They further recognized that it contains elements of “brainwashing” and “entrapment.” For an interesting Canadian decision criticizing the Reid method, click here.
Mar/01/13 08:26 CategoriesElsewhere |Innocence
Twenty-four years ago, five black teenagers from New York were wrongfully convicted in a brutal sexual assault of a Central Park joggers. In what the New York Times called “high grade Chutzpah,” the City stated that the issue of innocence was irrelevant. They stated that the officers and prosecutors acted in good faith when they brought the charges. The City has has called the various news stories and documentaries one sided but conveniently ignored the fact that the City has blocked all public employees from being interviewed on the story.
The litigation however speaks about what is wrong with the system. Innocence should be enough. If we convict an innocent defendant, then we should be prepared to compensate him for the portion of their life that was destroyed. It is incredibly difficult to reestablish your life once you have been incarcerated (wrongfully or correctly). Most people lose all their assets while incarcerated. What the state doesn’t take directly is lost because the person’s incarceration stops them from paying mortgages, car payments, etc. All personal possessions (except what a kind relative may hold as a favor) get tossed out on the street. When society makes a mistake and convicts an innocent person, the issue should not be about whether the officer or the prosecutor set out to convict an innocent man, but whether an innocent man was convicted. States should create a compensation fund which is the equivalent of a crime victim’s fund designed to compensate these individuals.
The Supreme Court ruled in the McQueen case that patient-to-patient transfers are not covered by the medical marijuana laws. The Court stated that while patient-to-patient transfers were permitted, the donor patient was not operating with a bona fide medical purpose when giving/providing the medicine to another patient because it didn’t help the medical state of the donor patient. Here is a nice summary of the holding. For years, federal criminal defendants have been forced to give up their right to appeal in order to accept a federal deal. Prosecutors have lately been pushing for waivers of 2255 (post-conviction motions) as well. There has been huge push back. In October, the National Association of Criminal Defense Attorneys issued an ethics opinion condemning this practice. The ethics opinion is a wealth of resources and a great place to start the research on the subject.
Jan/29/13 09:54 CategoriesPardon
The American Constitution Society for Law and Policy is an organization formed around the Jeffersonian interpretation of the constitution which states that it is a living document. They count amongst their ranks made appellate and Supreme Court jurists. They just released a fascinating document arguing for the reinvigoration of the pardon process. The principle author of the document is Margaret Colgate Love - one of our nation’s foremost authorities on presidential pardons. Professor Berman has an interesting article on his blog about how Massachusetts is planning on dealing with the Miller problem. Under the bill, they will extend juvenile court jurisdiction to age eighteen. The juvenile court could sentence a defendant into adult court or even give him/her natural life, but the assumption is that the juvenile court would have better experience how to deal with a juvenile.
Nov/29/12 00:01 CategoriesPardon
I am voting for President Obama on Tuesday, but his pardon statistics have not been impressive. According to pardonpower.com (the leading blog on pardons), President Obama has been very stingy when it comes to pardons and clemency. Propublica is running an extensive series of articles on the pardon process and what is wrong with it.
In Michigan, executive clemency has been rarely granted. Between 1969 and present, only 58 pardons have been granted. I find the number a disgrace, but have not been able to figure out why everyone has reset the clock in 1969.
Clearly, Michigan used to be more generous with pardons. In doing some research, I found this turn of the last century book on pardons granted by Michigan Governor Hazen S. Pingree between 1897 and 1900. He signed more pardons than Governors Milliken, Blanchard, Engler, Granholm, and Snyders combined! It is even more interesting because Governor Pingree gave a long statement of reasons in support of these pardons.
One of the more interesting federal applications was from Serena Nunn. Ms. Nunn was convicted of a non-violent drug offense at age 19. She subsequently had her sentenced commuted by President Clinton. She attended Arizona State University and graduated. She then went to the University of Michigan Law School. She needs a pardon to be admitted to the practice of law in Georgia.
Update #1 What confuses me is that the National Conference of Bar Examiners says that a felony should not bar her admission. Further, the Georgia Supreme Court ruled in September of 2011 that an applicant with a felony conviction can be admitted if he/she proves by “clear and convincing evidence” that he/she has been rehabilitated. In re Yunker, 289 Ga 636; 715 SE2d 92 (2011). See also In re Payne, 289 Ga. 746, 715 S.E.2d 139 (2011),
Update #2 According to this FAMM press release, Ms. Nunn apparently was approved to be an attorney and will be sworn in.
Updated #3. Here is an interesting NPR article on President Obama and pardons.
The Illinois Court of Appeals just issued a 29 page opinion saying that Miller v Alabama is fully retroactive. This directly conflicts with the Michigan Court of Appeals ruling from two weeks ago to the contrary in People v Carp. The Court said that the ruling was a watershed ruling.
Williams - Miller retroactivty
Nov/27/12 07:37 CategoriesElsewhere |Search and Seizure
There was an interesting article in today’s New York Times about the horrible mess that the law of cellphone searches is currently in. The problem is that courts are moving by analogy to prior technology (or brick and mortar items) and none of these items are perfectly applicable. Our cell phones are more than the old Ma Bell Rotary Dial phone. They are not like the standard items people leave laying around their car or the wallet which can be inventoried in a police booking. They contain deep personal information and should be regarded as having special protection under our Forth Amendment. Today the Michigan Court of Appeals upheld People v Carp. At issue was was whether the Supreme Court’s ruling in Miller v Alabama was retroactive. If Miller was retroactive, the Court also had to figure out what the appropriate remedy. The Court found that Miller was not fully retroactive and did not apply to cases that were final when Miller was decided. The Court stated that until legislation is passed to fix the Miller problem in Michigan, the remedy was to reduce individual sentences to life with the possibility of parole. The pleadings are available here.
Meanwhile the Legislature has taken action to try and fix things as well. According to this news article, Michigan has proposed a new bipartisan package of bills on JLWOP in response to Miller. News coverage is here: . Here a legislative summary.
The California Court of Appeals just invalidated a bar on a fifteen year sex offender’s right to use social medial. The Court found that the restriction went too far. While a person gives up many of their rights when they are convicted of a crime, there was no nexus between the restrictions and this offense. The Michigan Supreme Court also granted leave to appeal to the Oakland County Prosecutor’s Office to determine whether shoplifting of a $58 bottle of perfume can be charged as a tent year felony of larceny from a person. People v. Smith-Anthony, Supreme Court No. 145371. My article explains why I believe this is wrong. Read More... The Michigan Supreme Court has agreed to hear the Bay County Prosecutor’s appeal in People v. Burns, Supreme Court No. 145604 Bay County is attempting to bring in child hearsay statements to the forensic examiner claiming that the Defendant’s request for the complainant not to tell anyone about the offense constitutes “wrongful conduct” rendering the witness unavailable. Read More...
Nov/06/12 16:11 CategoriesEthics |Free Speech |Appeals
Michigan needs to follow the lead of states like Florida and recognize the title “appellate specialist.” Until they do, individuals who devote their career to appeals are going to need to turn to third-party organizations to obtain objective proof of their skills. When this happens, the attorney is effectively buying a law suit or a disciplinary proceeding over what is effectively commercial free speech.
This happened earlier this year, but I just saw this testimony to the Michigan Legislature from a conservative business leader recognizing what our side has always known -- excessive incarceration is an exceptionally expensive waste of tax payer money. Even though prosecutors still don’t seem to get it, rehabilitation works and is cheaper than the locking them away and tossing away the key, I’m glad to see that the business community is starting to see it.
Thankfully, this does not seem to be the case in this election. While there are general references to “protecting Michigan families,” the economy rather than getting tough on crime seems to be the main theme of this election.
Former Detroit Mayor Kwame Kilpatrick wrote a book while on parole. Wayne County Circuit Judge David Groner ordered the proceeds impounded. Mayor Kilpatrick wanted to challenge the constitutionality of the statute permitting the seizing these proceeds. Unfortunately, Mayor Kilpatrick may have shot himself in the foot. The Court of Appeals stated that his structuring to avoid a restitution obligation together with his statements to the press may have barred the issue. Read the full story for more details. Read More... One of the most frequent calls I get is from family members who think they are sounding reasonable and saying “all I want is a time cut.” I understand that one of the things the family is trying to say is that they not contesting guilt. The problem is that Michigan has limited options for sentencing reductions. I wish it was that easy. The full blog article is my long response.
I subscribe to several listservs on legal technology and everyone is talking about “search engine optimization.” The number one phrase that attorneys are now “seeding on” is “aggressive representation.”
People think that having an “aggressive attorney,” a “pit bull attorney,” etc. is the best thing without giving much thought to whether an aggressive strategy is a good thing on the facts of their case. Naked aggression is rarely a good thing. It needs to be part of your tool kit, but this article on “‘Aggressive’ Lawyers Often Finish Last” on the blog “the Lawyerist” makes a good case why aggressive attorneys often finish last. The author (Attorney Andy Mergendahl) makes the case why being calm, analytical, and persistent is the best strategy to winning people over. He cites several examples where being likable, persistent, analytical, and not relenting worked where aggressiveness does not.
Attorney Mark Hermann on his blog “Above the Law.” You want an attorney who can handle a difficult issue and who can hold people’s attention, but a “blow heart,” is rarely the person people want. Unfortunately, the myth seems to continue and lawyers like politicians are remaking themselves to get people’s vote (checks).
One of my closest friends and mentors taught me years ago that you rarely want to make it personal with opposing counsel. Prosecutors and Attorney Generals have too many cases. You don’t let them walk all over you and you certainly fight back, but you need to resist the strategy of jumping into the mud and starting a wrestling match. Sometimes you have to show that you can “give as good as you can get,” but the myth that naked aggression is a good thing just that. Having an attorney who is always mad, accusatory, and difficult to deal with does not cause people to win the case.
Oregon Family law Attorney Peter Bunch has a nice quote about how to be both aggressive and effective:
Many people assume that writing argumentative or accusatory letters and taking extreme positions is something a good, aggressive lawyer does. It is not. The hallmark of a good lawyer is sound judgment, good skills, and professionalism. In family law, it is possible for a good lawyer to predict a reasonable range of results in many circumstances. His or her job is to work diligently to obtain the best possible result for the client, not to waste the client’s time and money engaging in unproductive finger- pointing or intimidation. Being “aggressive” means being prepared, having a good knowledge of the facts and law, and being professional, while firmly advocating for the client’s best interests.
Unfortunately, some people think of aggression as being difficult, angry, and obstreperous. An attorney who practices in this fashion is like a mechanic who only owns one tool. He or she won’t be able fix many projects and if they continuously use the wrong tool, all they will do is break whatever they are trying to fix.
On October 23, 2012, New York’s highest court held that defense counsel has the ultimate authority in making the strategic decision whether the request lesser-included-offense jury instructions, and that the trial judge’s decision not to give lesser include offense instructions that defense counsel requested because the defendant objected was error requiring a new trial. People v. Colville, No. 161, 2012 NY Slip Op 07047. The appellate court refused to find the error harmless. The Court held that "that the decision whether to seek a jury charge on lesser-included offenses is a matter of strategy and tactics which ultimately rests with defense counsel." Thus, the Court held it was reversible error for the trial court to refuse to charge lesser offenses as requested by counsel " because defendant objected." The majority, noting that this was the near unanimous position of other courts, rejected the District Attorney's argument that the decision as to whether to request a lesser offense was a fundamental one to be made by the defendant, such as the decision as to whether to enter a guilty plea , or to request consideration of an affirmative defense.
A colleague I like very much (Bridget McCormack) is running for judge. She is being attacked because she volunteered to consult on the Gittmo cases. I find it deeply offensive. I can't even believe that people would honestly think that you should vote against lawyer because of who our clients are. I've had close friends give up years of their life volunteering to defend war crime trials for little or no money just to make sure that the trial is fair. If Colleen O'Brien (Bridget's opponent) is as committed to the rule of law as her advertising claims,she'd be out there disavowing this attack ad.
I joined the ACLU when they defended the rights of Nazis to march in Skokie. I'm Jewish. My counsel took six months out of his life to take a court appointed cases defending folks who the FBI claimed were planning on overthrowing the US government (the Hutari militia). The judge found the case unfounded and acquitted his client. My old mentor James C. Thomas defended a mentally ill man the Government claimed was a terrorist. The Government dropped charges and fired the Assistant United States Attorney who was caught hiding evidence showing this man was innocent.
The Judge Judys of the world are not the "tough judges." They are the bullies. The lawyer who risks having his house fire bombed to represent the unpopular individual is like this pathetic woman's soldier-son. They are carrying out their vow to uphold the constitution. They should be applauded, not condemned. The tragedy is the type of person who extends themselves in this way is precisely the type of person who would make the best judge. They are driven to these acts for concern for the system, rather than personal gain. For example, I'm reasonably good friends with Judy Clarke, the attorney who defended Timothy McVeigh (Oklahoma City), Susan Smith (accused of drowning her two children in North Carolina), Ted Kaczynski (the uni-bomber) and Jared Loughner (the nut job who shot Gabrielle Giffords). She is one of the most decent persons I know, a retired public defender, and the exact opposite of "money grubbing." She is certainly not in favor of blowing up people, courthouses, shooting elected officials, or drowning children. These individuals are the type of person who will rule the way the case law takes them even if it is politically unpopular. It is a shame if this type of attack strategy drives the people most capable of being the best judges out of the running.
A friend of mine reminded me that our second President of the United States (John Adams) defended British Regulars accused of killing civilians during the Boston Massacre. This is what lawyers do. I know all the jokes made about us, but most of us work twice as hard as the average joe to earn an ordinary pay check. We are not Geoff Feiger, we are folks who are slugging it out to make sure the system is fair. The more society hates our client, the bigger the chance that people will cut corners to get a conviction. Many of the folks arrested on suspicion of terrorism are ultimately freed because even the Government isn't sure they are guilty. As Shakespeare recognized , if you want to destroy a society “first kill all the lawyers."
The Volokh Conspiracy blog’s David Post has a nice post on a decision of a Federal Court’s decision to strike down a Nebraska law banning sex offenders from using social media services such as Facebook. The ruling can be accessed here. Counsel’s brief can be found here.