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Criminal Appellate & Post-Conviction Services

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.

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

Nevada v Jackson: The Supreme Court Really Means AEDPA Deference

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).