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Criminal Appellate & Post-Conviction Services

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.

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.”

Sixth Circuit Affirms Grant of Habeas Based on Failure to Hire Expert

Congratulations goes out to Plymouth Attorney Carole M. Stanyar for her win in the Sixth Circuit in Couch v Booker, Sixth Circuit No. 09-2230 which upheld Judge Arthur Tarnow’s grant of a habeas corpus below. Couch v Booker, 650 F Supp 683 (ED Mich, 2009).

Defense counsel failed to fully explore a causation defense. The defense attorney consulted with a noted pathologist, but failed to give him the full file. Because of this, a vital causation defense was missed. The Michigan Court of Appeals denied the Defendant an evidentiary hearing and affirmed the conviction. The federal court held an evidentiary hearing, and found that counsel was ineffective. The Sixth Circuit upheld the conviction finding that the Michigan Court’s decision was objectively unreasonable. The Court found that the ruling of was an unreasonable application of clearly established federal law. Critically, the Sixth Circuit found that the presumption of strategy afforded to an attorney’s decision could only take place after counsel did the required investigation.

Credit goes to my friend Patrick Rose at for spotting this ruling. He has a much more extensive discussion of the ruling

Sixth Circuit Rejects "Defense Expert" Exception to Kiddie Porn Statute

In Doe v. Boland, No. 09--4281 (6th Cir. Jan. 19, 2011) (published). Panel of Judges Sutton, Griffin, and Bertelsman (E.D. Ky.) dealt with the issue about whether federal child-pornography laws exempt those who violate the law in the course of providing expert testimony. In other words, whether there were any implied exemptions for the defense. Defendant had been preparing expert testimony and exhibits for trial. He downloaded stock (innocent) images of minors and morphed them into child pornography. Used images to help his client fight chid pornography charges. Defendant was a lawyer who specialized in tech-related legal issues. He was charged federally and got a deferred prosecution agreement. On top of this action, the parents of the children in the pictures sued the attorney under the civil remedy provisions of the federal child pornography statute. The District Court rejected the civil claims, finding Congress did not intend the law to apply to expert witnesses. Court of Appeals reversed, finding no exceptions. The Court found that the attorney/expert had no basis for denying that he knowingly possessed a computer disk that contained child pornography. This disk had been produced using materials that affected interstate commerce. Lawyer had stipulated that he had downloaded at least four images from the Internet (depicting real, identifiable minors in innocent poses) and then digitally manipulated the images to make it appear that these minors were engaged in sexually explicit conduct. The attorney had issued an apology, admitting “I do recognize that such images violate federal law.” (As part of the deferred prosecution agreement, the attorney had to make a public apology in a bar journal.)The Sixth Circuit found that criminal and civil provisions covered the lawyer's conduct. Relyingon 18 U.S.C. 3509(m), the Court pointed out that "If Congress did not want defense counsel to view, let alone possess, existing child pornography without governmental oversight, it is hardly surprising that Congress opted not to permit expert witnesses to create and possess new child pornography."While the attorney had been authorized by the original district court to present expert testimony on digital-imaging technology, it did not authorize the creation or possession of new child pornography. Here, the interests of real kids were implicated. The Court implied that the attorney could have create non-pornographic demonstrations to show how the technology work.

Sixth Circuit Remands Michigan Habeas for Determination of Whether Counsel Improperly Denied the Defendant Right to Public Trial

The Sixth Circuit reversed a district court's denial of a writ of habeas corpus and ordered the district court to hold an evidentiary proceeding to determine whether the defendant was denied his right to a public trial and effective counsel. Johnson v Sherry, — F3d —, 2009 WL 3789995 (6th Cir Nov 13, 2009). Read More...

Sixth Circuit Reverses Felon in Possession Case Based on a Corpus Delecti Violation

In United States v Adams, Sixth Circuit No. 08-5372, the Sixth Circuit reversed the Defendant’s conviction based on a corpus delecti rule. The corpus delecti rule prohibits a jury from convicting a criminal defendant on his/her confession alone. The district court erred by failing to instruct the jury that defendant’s confession must be corroborated by independent evidence. Rejecting the proposed instruction was error even though there was some evidence that tended to corroborate defendant’s confession (the gun was found in a jacket near defendant) because the jury was not ever advised that corroboration was necessary. The error was not harmless because the jury may have improperly convicted defendant on the basis of the uncorroborated statement alone.

Sixth Circuit Withdraws Davis Ruling

Sixth Circuit Holds that Ordinary Lane Drift Does Not Constitute Probable Cause to Stop.

Sixth Circuits Finds Limits to Circumstantial Evidence Cases

The United States Supreme Court is hearing oral arguments in Pearson v Callahan, Supreme Court No. 07-751, which could greatly expand the authority of the police to search an individual’s home. Several federal appellate courts have adopted a doctrine referred to as the “consent once” exception to the Fourth Amendment. Under this doctrine, a single consent to search is deemed continuing as a matter of law unless it is expressly revoked. In a case coming out of the Tenth Circuit police are arguing that consent to allow an undercover informant into a home early in the evening constitutes consent for the police to break into the home later in the evening. Surprisingly, the officers have a significant amount of authority on their side. Under this approach, if the police can trick their way into the foyer they may have consent to search the bedroom. This case is scary.

Linda Greenhouse from the New York Times summarized the doctrine as follows:

Several federal circuits have adopted what has come to be called a consent-once-removed exception to the Fourth Amendment’s warrant requirement. The theory is that a suspect who consents to the entry of someone who is really an agent of the police is also, albeit unknowingly, agreeing to let the police enter as well. The police do not need a warrant to enter and search a home if they have the permission of a person authorized to give it.

To read Linda Greenhouse’s complete analysis of the issue,
click here. For the SCOTUS blog summary of the case and complete access to the briefs, click here. This case is a civil case and there is also a qualified immunity issue.

Sixth Circuit Finds Racial Disparity in Grand Rapids' Jury Selection System

Sixth Circuit Reverses Conviction Based on Actual Conflict of Interest

The Sixth Circuit reversed a habeas petitioner’s murder conviction where he was denied his right to effective assistance of counsel was violated at trial and on appeal because of his state attorney’s actual conflict of interest. Boykin v Webb, Sixth Circuit No. 06-5775.


If You Don't Like the Facts, Change Them

At this week’s Republican National Convention, former New York City Mayor (and U.S. Attorney) Rudolf Gulliani stated that when a trial lawyer doesn’t like the facts, he or she simply changes them.  This week’s Sixth Circuit ruling in Tucker v. Palmer is a wonderful example of this principle.
Tucker was a State appeal of the grant of a habeas corpus.  Mr. Tucker was convicted of home invasion of his former neighbor’s home.  U.S. Magistrate Komives and U.S. District Judge Zatkoff granted a writ of habeas corpus finding no evidence that the Defendant committed the crime.  A sharply divided Sixth Circuit reinstated the convictions.  What is striking about the case is the dueling use of facts between Judge Ackerman (for the majority) and Judge Keith (in the minority) and how AEDPA deference can be used to conceal poor state court workmanship.
On a hot summer day, Nicholas Sutliff was mowing his back lawn.  He had locked his front door, but left the back door unlocked for access to the home.  While he was mowing, Mr. Sutliff saw Raymond Tucker jump over a low fence in his backyard and run by Mr. Sutliff.  Raymond Tucker used to live next to Mr. Sutliff, but had moved out “many years” before; the Tucker family still lived next door. 
Mr. Sutliff checked his back door, saw it was ajar, briefly checked his house and found nothing amiss. Judge Ackerman does not state whether the neighbors were the Tuckers, or whether Raymond was visiting.  He then briefly spoke to his neighbors to see if they had seen Raymond that day and then returned home and checked his house more carefully.  Mr. Stuliff then noticed two rings missing from his dresser. He reported it to the police, Mr. Tucker was arrested, and then convicted. 
Judge Ackerman’s opinion makes a convincing case that this was a routine burglary case and that the only question was whether home invasion could be sustained on circumstantial evidence.  If this was the case, plainly Judge Zatkoff  was wrong granting the writ.
Judge Keith’s dissent, however, describes a significantly different case and points out that this might easily be a case where an innocent might have convicted.  Mr. Sutliff who was painted by the majority as a competent witness with good observation skills and knowledge of the facts, was painted as a very different gentleman in the dissent. 
Mr. Sutliff was an individual with very “poor vision” due to his diabetes, who was not wearing his glasses, that his “eyes fluctuate,” when he identified an individual he had not seen in years.  Mr. Tucker had moved out of his parent’s home a full twenty years earlier.   It had been several years since Mr. Sutliff had seen Mr. Tucker. 
While Judge Ackerman points to the sharpness of Mr. Sutliff’s recall; Judge Keith points to the fact that the dresser was cluttered and that Mr. Sutliff thought he had put his rings there.  Judge Ackerman’s opinion is premised on the fact that the state court judge convicted Mr. Tucker because it thought that Mr. Sutliff stated that he saw Mr. Tucker entering his home.  This was a point that Mr. Sutliff stated the exact opposite.  Even though the state judge based his finding of facts on a critical mistake of facts, the majority ignores the fact that the state judge made such an error (a statutory AEDPA exception to the deference rule) and then “hides behind the AEDPA statute and claims that because its hand are tied, injustice must prevail.”   According to Judge Keith:  “just saying it, does not make it so.” 
The majority placed a great deal of evidence on ambiguous evidence that it characterized as flight and more importantly on Mr. Tucker’s not speaking to Mr. Sutliff.  Reading the opinion, however, it is clear that Mr Sutliff and Mr. Tucker did not get along.  Inferring guilt from silence on an on the street passing is hardly proof of anything. 
In reading this dueling recitation of the facts, it seems like politicians may not be the only ones who need a

Sixth Circuit Reaffirms that an Attorney Cannot Exercise "Strategy" if (s)he Never Did Basic Investigation

In VanHook v. Anderson the Sixth Circuit recently granted a habeas corpus in a capital case where the evidence was that counsel did minimal investigation regarding the Defendant’s mental health. Since the Court’s 1984 ruling in Strickland v Washington, the United States Supreme Court has applied a two part test for determining whether counsel was ineffective: (a) whether there was a breach of counsel’s duty to the defendant; and, (b) “but for” that error, the defendant stood a reasonable chance for acquittal. While the analysis has not technically changed, many commentators have pointed out that later high court decisions have placed greater emphasis on Strickland’s language about the need for basic investigation. See, e.g. Wiggins v. Smith, 539 U.S. 510 (2003) (incorporating the American Bar Association Guidelines For the Appointment and Performance of Counsel in Death Penalty Cases as the professional standard of performance), and Rompilla v. Beard, 545 U.S. 374, 387 (2005) (same). Judge Merritt’s opinion in VanHook does a wonderful job at discussing this point and is a must read for any appellate practitioner. Hopefully, the decision survives en banc review. Mr. VanHook has previously won panel decisions on other grounds only to have defeat snatched from the jaws of victory by the en banc court.