Courtroom Strategy by Attorney Oscar Michelen Commentary on Current Litigation and Legal Issues Sun, 31 May 2020 18:24:56 +0000 en-US hourly 1 Courtroom Strategy by Attorney Oscar Michelen 32 32 14390642 SCOTUS Opinion on COVID Church Restriction is Brief But Says a lot About the Court. Sun, 31 May 2020 18:24:55 +0000 [...]]]> A few days ago, at midnight, the Supreme Court rejected a church’s challenge to California’s COVID-19 restrictions by a 5–4 vote, with Chief Justice John Roberts joining what is considered the liberal wing of Breyer, Sotomayor, Ginsburg and Kagan. In a pointed concurring opinion, Roberts chided the conservative wing for trying to override public health measures in the name of religious freedom. Actually Roberts just chided Justice Brett Kavanaugh’s dissent, which basically argued that the state engaged in religious discrimination in an extremely misleading opinion that omits the most important facts of the case. Roberts went out of his way to scold Kavanaugh for his dishonest vilification of the state’s intention.

SCOTUS’ late-night order was in South Bay United Pentecostal Church v. Newsom and it divided the justices into two camps: those who acknowledge that State’s can impose restrictions on religious institutions in the same manner as secular ones of similar size and those who believe (or argue) that any restriction on the right to worship violates the First Amendment.

The case began when a California church accused Gov. Gavin Newsom of violating its religious freedom. Newsom’s current COVID-19 policy limits attendance at houses of worship to 25 percent of building capacity or a maximum of 100 attendees, whichever is lower. At the same time, it allows certain secular businesses, like grocery stores, to operate under looser guidelines, allowing more people to enter. The church claimed this disparate treatment between churches and commercial establishments runs afoul of the First Amendment. The First Amendment prohibits governments from issuing any laws that prohibit the free exercise of religion. But of course no matter how absolute the language in certain Constitutional provisions may seem, there have always been acceptable limits especially in the name of public health and safety.

Kavanaugh focused on how certain businesses do not have a 25% restriction:  “The basic constitutional problem is that comparable secular businesses are not subject to a 25% occupancy cap, including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries.” He said it was “indisputably clear” religious discrimination. (how can it be indisputably anything if 5 SCOTUS judges disagree with you one wonders). But Kavanaugh chose to ignore how religious institutions have been granted more freedoms by the same Newsom order than institutions of similar size. His decision does not even make an analysis of which category of business a church is more akin to. Frankly, his entire dissent reads like it was brief written on behalf of the church petitioner. Maybe that’s why it was only actually joined by Thomas and Gorsuch. Alito did not join the Kavanaugh dissent instead voting to grant the petition without a written opinion.

The four of the justices in the majority chose not to write an opinion and just denied the relief. That is not uncommon when an injunction is sought from SCOTUS particularly where the law in the area is fairly clear – as it is here. The general rule when a state is accused of abridging “religious liberty” is that churches and other religious institutions may be subjected to the same laws as everyone else, but they cannot be singled out for inferior treatment. For example, for anyone who has ever sat on the board of a religious institution (as I have) its no surprise that churches must comply with the fire code, follow most labor laws,  obey the criminal law, and so forth. As the Supreme Court explained in Employment Division v. Smith (1990), people of faith must still obey “neutral” state laws of “general applicability.”

But Roberts felt it necessary to write a concurring opinion that made clear how he felt about Kavanaugh’s position. Roberts of course points out that the restrictions placed on churches are more comparably compared to larger venues than the ones Kavanaugh selectively listed. Roberts listed “lectures, concerts, movie showings, spectator sports, and theatrical performances.” Many of those venues remain completely shut off to people so in fact the State of California had accommodated religious expression greater than similarly-sized institutions.

Roberts apparently also wanted to make clear where he stands on any future attempts to use religious expression as a valid way to overturn a State law:

“The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement.” He added that the Constitution leaves such decisions “to the politically accountable officials of the state,” whose decisions “should not be subject to second-guessing” by judges who lack “background, competence, and expertise to assess public health.” He noted that multiple outbreaks of covid-19 in California have been traced back to religious services. California has good reason to treat churches more like concerts—where people “congregate in large groups” and “remain in close proximity for extended periods”—than grocery stores, where they can social distance. For courts, that should be the end of the matter, according to Roberts.

That line about judges who “lack background, competence and expertise. . ” is not just a backhanded slap at Kavanaugh, its an interesting potential omen. Its a reminder and a warning to lower Federal courts (now packed with Trump appointees) that SCOTUS will not stand for them placing their judgment in the place and stead of governors, legislators and public health officials. It also bodes that Roberts may split with the right wing of the court in future decisions about religious liberty. This fall, the Court is set to hear arguments in Fulton v. City of Philadelphia which asks the question whether religious institutions can ignore a ban on anti-LGBTQ discrimination by government contractors.

Among other things, the plaintiffs in Fulton are asking SCOTUS to overrule Smith ; that would grant religious institutions exceedingly broad power to defy secular laws that they disagree with on religious grounds. But Roberts’ vote in South Bay United suggests, at the very least, he recognizes that the Court must not afford so much latitude to religious groups that it endangers public health. His decision here could mean that he will also be the fifth vote in Fulton upholding the ban since he shows deference to government officials as long as religious institutions are not treated inferiorly. I have previously written on this blog how the conservative wing has been very willing lately to overturn precedent even of long standing. It is comforting to know that Roberts may be willing to be his own person here and curtail the practice. We’ll have to wait and see.

follow me on Twitter @oscarmichelen

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Trump’s Twitter Executive Order is Legally DOA Fri, 29 May 2020 15:51:43 +0000 [...]]]> After Twitter placed “Get the Facts” labels on President Trump’s false Tweets about massive voter fraud caused by mail-in voting, the POTUS went on a tirade against the social media giant, comparing the fact-checking labels to censorship (which it is not) and accusing the company of stifling conservative voices (though the president provided no examples to back up this claim, of course, and Twitter is full of popular conservative voices with millions and millions of followers).

While he may have dragged his feet on his response to the currently ongoing pandemic, he wasted no time in taking a step to address this issue. Yesterday, he issued an Executive Order aimed at limiting the broad legal protections enjoyed by social media companies, known as Section 230 of the Communications Decency Act. The order also directs the Federal Communications Commission (FCC) to start a rule-making process to clarify when social media companies should keep protections they are afforded under the law.

Section 230 is one of the most important laws that allowed for the proliferation of the Internet and social media. Passed in 1996 at the infancy of the World Wide Web, the law protects Internet companies from being sued over content that appears on their platforms (which is posted by others) and allows for content moderation. The removal of a post is left up to the internal rules of companies such as Twitter, YouTube and Facebook, provided those decisions are made “in good faith.”

While some believe Section 230 is too broad and sweeping, can you imagine what would happen to social media if sites were responsible for what other people posted? They would be flooded with copyright, trademark, defamation, and other claims. They would not be able to conduct business. In fact, while Trump claims he is fighting for free speech, the order would severely restrict and limit speech as sites would block users from posting lots of legitimate content.


But the order is not just a bad policy idea – it is legally dead on arrival. Courts have consistently upheld the law in favor of technology companies, even in cases where 230 was used to defend websites advertising children forced into sex trafficking. As outrageous as that may seem, that particular situation was addressed when, in 2018, Congress amended Section 230 to hold websites legally responsible for promoting prostitution or victims of sex trafficking.

And that’s the other reason the order is DOA: an Executive Order cannot amend a law – that power rests with Congress. Furthermore, tasking the FCC with trying to regulate the Internet is a losing proposition. They haven’t the authority and they don’t want the authority: “There’s this huge thicket of First Amendment issues that it drags the agency into,” Democratic Commissioner Jessica Rosenworcel told NPR. “Chief among them is the government regulating speech, dictating what can and can’t be said online.” She added that the order sought to turn the agency into “the president’s speech police.”

Never mind the hypocrisy of a GOP President trying to regulate a private company and control speech in the free marketplace of ideas. Twitter created Trump. He regularly re-tweets conservative pundits (and white supremacists) and make false and spurious claims on the site all the time. Just today the site had to issue a warning on his Tweet regarding the civil unrest in Minnesota following the death of George Floyd; POTUS stated “when the looting starts, the shooting starts.” The site stated the tweet violated its rules against glorifying violence, and it prevented users from viewing the tweet without reading a brief notice, the first time it has restricted one of the president’s messages in this way. Twitter also blocked users from liking or replying to the post, though they were still allowed to retweet it if they added a comment of their own.

But this latest bit of political theater from the Oval Office is dangerous because it de-values truth; it de-values free speech; and it adds to the president’s derision of any voice that sheds light on his pathological inability to tell the truth. The fact is, his tweet about mail fraud was more dangerous than his idiotic pronouncement that its okay for police to shoot people for property crimes. It is highly likely that many States will rely on mail voting for the 2020 election. Casting doubt on the legitimacy of that voting process – which has been used by the military and countless others including POTUS himself- will weaken the country’s belief in the fairness and propriety of our election system. His inflammatory and false rhetoric fuel the baseless belief that voter fraud is rampant and affects national elections. Twitter was 100% legally right to caution his followers to “Get the Facts.” I doubt his followers will, but that does not mean that the site should just let the most powerful person in the world blatantly lie about such an important issue.

This latest petulant act of the president will die on the vine like much of what he attempts to do. It certainly has no chance of surviving a court case if it ever gets implemented.

Follow me on Twitter @oscarmichelen where I promise not to glorify violence; condone shooting looters; and will not lie about voter fraud.

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Did Missouri Just Execute an Innocent Man? Very Likely. Wed, 20 May 2020 04:05:16 +0000 [...]]]> One death in the large daily death toll from yesterday stands out because it did not come as result of the covid-19 virus. Instead, Walter Barton’s death came shortly after 6 p.m. when the State of Missouri injected him with a lethal dose of the drug pentobarbital at the Missouri Eastern Reception, Diagnostic and Correctional Center in Bonne Terre. (What exactly are they diagnosing and correcting there one wonders). Barton was the first person to be executed in Missouri in 2020.

Barton never wavered in maintaining his innocence from the date of his arrest in 1991 to 6:13pm yesterday when his heart was stopped by the State. The crime he was killed for was certainly violent and horrific:

Gladys Kuehler, 81, lived in a mobile home that she owned at Riverview Mobile Home Park in Ozark. She was found by Barton; her granddaughter and family friend who had gone to check in on her. An autopsy conducted on the victim revealed that she was stabbed well in excess of 50 times. Kuehler was stabbed in both eyes, her chest, neck, abdomen, left hand, left arm and 23 times in her back. Examiners concluded that Kuehler suffered a blunt force injury to her head, and that Kuehler had was sexually assaulted.

Why was Barton Arrested?

On the morning of Oct. 9, 1991, mobile home park resident Carol Horton last saw Kuehler at 11 a.m. Kuehler was sitting on a daybed in her living room, and Horton shopped for Kuehler and retrieved her mail that day. Barton reportedly visited Horton’s trailer between noon and 2 p.m. Barton was described to be in a “happy-go-lucky” mood. He told Horton he was going to Kuehler’s residence to see if she would lend him $20. At the time, Barton was reportedly living in his car. Barton allegedly returned about 15 minutes later. During the 2 o’clock hour, Kuehler reportedly had a number of visitors at her trailer.

Kuehler’s granddaughter, called her grandmother at 4 p.m. When she did not get an answer on the telephone, she went to Kuehler’s trailer. Seeing the lights off, she left to get help. She got a family friend and they requested help from Barton to knock on Kuehler’s door again. When there was no answer, they drove to the downtown square and flagged down a police officer. The police called a locksmith, who unlocked the trailer. As the locksmith worked, the police officer “left to take another call.” When the door was unlocked and open, The two women and Barton entered the trailer. Kuehler’s granddaughter found her body and Barton pulled her off of her. One of the victim’s checks was missing from the checkbook and it was found a few days later by the side of the road. It was for $50 and was written to Barton.

Barton was arrested based on that evidence and on his admission that he was in Kuehler’s trailer at 330pm when he answered a call on her phone. Police noticed that he had a spot of blood on his shoulder and arm. He explained that came from when he pulled the victim’s granddaughter away from her. The victim’s granddaughter confirmed that to police in a written statement.

Nevertheless, the police proceeded on the theory that the blood came from the killing. They got the granddaugther to change her story and say that Barton never touched her. (She later once again recanted and returned to her original statement that Barton did get blood on his shirt when he pulled her off the victim’s body). The State also called in a blood stain expert who testified that the spots were consistent with the killing even though the victim had been so violently and repeatedly stabbed so that there was likely lots of blood on the perpetrator. The only other physical evidence in the case — hair found on the victim’s torso and biological material underneath her fingernails — did not match Barton.

Walter Barton

Took five trials to get a conviction

Getting a conviction on this evidence was no easy task even in Missouri.

Barton’s first trial ended in a mistrial and his second in a hung jury. He was convicted at his next trial, but the conviction was overturned because the defense counsel’s closing argument, which pointed out serious discrepancies in the timeline of the case, had been restricted during the trial. At his fourth trial, Barton was convicted but, again, his conviction was overturned after the prosecution was found to have engaged in multiple acts of misconduct, including the use of perjured testimony from a jailhouse informant. This same informant again testified falsely at Barton’s fifth trial in 2006  at which he was convicted and sentenced to death.  At both trials, the informant lied about her criminal record saying she had been convicted 6 times previously when in fact she had been convicted 29 times previously, many of them for fraud. She had also lied about not getting a deal in exchange for her testimony – in fact the DA had promised to drop her pending charges if she testified.

The Missouri Supreme Court, through the appeals process, nevertheless eventually affirmed the sentence in 2007, in 2014, in 2016 and again in 2020. One Missouri Supreme Court judge decried the state’s maneuvering in the case, writing in 2007 that “Barton has gone to trial five separate times for the same offense, and prosecutorial misconduct has plagued the trials from the outset and has allowed the state opportunities to bolster its evidence. From the first mistrial in 1993 through three completed trials, post-conviction proceedings, multiple appeals, there is a trail of mishaps and misdeeds that, taken together, reflect poorly on the criminal justice system. The evidence that links Barton to the crime is not particularly compelling.””

Supreme Court Justice Neil Gorsuch denied his lawyer’s request for a stay of execution. One of the arguments was that Missouri Governor Michael Parsons had been considering a clemency plea from the lawyers but had denied it and that he could not review it thoroughly now due to the covid-19 pandemic.

New forensic evidence sheds more light on the case

Since his conviction, blood splatter stain evidence has been added to the list of forensic junk science that has been largely debunked. Along with bite marks and bullet composition analysis, blood splatter has been shown to rarely actually point to any meaningful evidence. Nearly half of all DNA exonerations involve convictions based on flawed, fake or misapplied forensic evidence.

The unit that convicted Barton is also responsible for the wrongful conviction of at least four other innocent men. 

Barton’s case was prosecuted by a special unit in the Missouri Attorney General’s Office, which prosecutes capital cases throughout the state alongside or, at times, instead of the local county prosecutor’s office. This same office was responsible for prosecuting Joshua Kezer, Dale Helmig, Mark Woodworth, and Brad Jennings all of whom were later exonerated. In total, these men spent nearly 60 years wrongfully incarcerated and all faced the death penalty. Judges ruled that the prosecutors from this unit had “repeatedly misstated the evidence,” knowingly presented false testimony, and failed to disclose evidence in their cases.

Killing is apparently an essential State function in Missouri

No other state is seeking to execute individuals at this time due to concerns that executions cannot be carried out risking the spread of the virus. So far, Ohio , Tennessee and Texas have all postponed executions.

The pandemic also calls into question Mr. Barton’s ability to receive due process as much of the work that should have been done in his defense — including interviewing new witnesses, reinvestigating disputed evidence, and filing new legal claims — was put on hold due to the pandemic and subsequent shutdown.

But Missouri couldn’t wait and Judge Gorsuch found no compelling need to intervene with the State’s right to kill a person for killing a person.

What was the rush? Barton finally had attorneys on his side who were getting things done and uncovering new evidence even after all these years. For crying out loud, it took almost 30 years, five trials, and numerous appeals to get a conviction to stick.

 In his final statement released prior to his execution, Barton said: “I, Walter “Arkie” Barton, am innocent and they are executing an innocent man!!”

Rest in peace Walter Barton. Shame on the State of Missouri for allowing this to happen.

Follow me on Twitter @oscarmichelen

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Ohio Man Spent 45 Years in Jail for Murder While Proof of True Killer Sat in Police Files Wed, 06 May 2020 21:15:15 +0000 [...]]]> Isiah Andrews is probably the only 82 year old in Ohio who is happy to be outside and does not care that there is a pandemic going on. That’s because, thanks to the work of the Ohio Innocence Project (OIP) at the University of Cincinnati, he was just freed after spending 45 years in jail for a murder he did not commit.

In 1974, the body of Regina Andrews was discovered near a Cleveland swim club. She had been brutally stabbed 11 times and was found semi-nude, wrapped in bloody hotel linens. The Andrews couple had been staying at the Colonial House Hotel and shaky eyewitness testimony of a maid staying there was the only evidence that linked Andrews to the crime. She claimed she saw Andrews place a large object wrapped in bedsheets in the trunk of his car shortly after hearing an argument at their hotel room. Andrews fully cooperated with the police and maintained his innocence from the very beginning. In fact, he had searched frantically for his wife when he noticed she was missing after coming back to the hotel room. He had spoken to the maid and asked her if she saw his wife. She told him maybe she was arrested because police had often arrested women at the hotel on suspicion of prostitution. He called Regina’s mother, who came right over to the hotel, with other family members.

At trial, the maid suddenly added that she had noticed the bed had been stripped of its linens. When confronted with the fact that she had never mentioned this important fact before, she stated that she did not remember why but she only told police some of the things she remembered about that day. Andrew’s mother in law testified on his behalf however that when she got there, the bed was made, the room was neat, there was no sign of a struggle and there was no blood anywhere including on the mattress.

He was convicted at trial and sentenced to life in prison.

Nobody had bothered to test semen or blood collected from the body for DNA. The OIP filed motions to have the testing done and finally in 2019 the motion was granted. But the DNA had so badly deteriorated over all that time that it was untestable. Normally, that would have ended the pursuit, but what was uncovered was even more distressing than what a DNA test would reveal.

The Cleveland Police Department file showed several documents and pieces of evidence withheld from Andrews and his lawyers back in 1975 pointing to another suspect named Willie Watts. Unlike Andrews, there was lots of evidence pointing to Watts:

*Police traced the bloody bedsheets Regina Andrews was found wrapped in not to the Colonial House Hotel but to a Howard Johnson’s hotel where Watts had been staying;

*Police learned that Watts had stripped the bed in his room of its sheets that same morning – likely where the maid got her additional trial facts;

*The victim’s body was found less than a quarter-mile from the home of Watts’ mother, where he had been living

*Watts’ mother told police she had bailed him out of the county jail two days prior and kicked him out of her home the day before;

*On the same day the victim’s body was discovered, Watts broke into his mother’s home and stole valuables.;

*Watts’ mother warned police he was contacting a friend named “Ronald” to provide him with an alibi, according to the report. Sure enough, a pill bottle belonging to a “Ron Martin” was found by the victim’s head;

*Police arrested Watts and wrote in a police report “It is our opinion that this crime was committed by Willie H. Watts, who is apparently attempting to sell his mothers [sic] coat and her other valuables to get money to get away from this city;” 

*Watts who provided them with other alibi witnesses for the three hour time period that the coroner said the crime was committed. Andrews unfortunately had no provable alibi for that time;

*Watts was released when his alleged alibi witnesses confirmed his story. Police then turned their attention to Andrews.

Isiah Andrews /Photo: Mark Godsey

This new evidence would be enough of course to bring lots of doubt in Andrews’ trial and suspicion towards Watts. But also uncovered was a report that after Andrews’ arrest, the coroner revised the time of death to a time period for which Watts had no alibi and for which Andrews had an airtight alibi already confirmed by police. But they were stuck as they already had the witnesses identify Andrew – so what to do? They buried all of the above evidence and never turned it over to Andrews or his lawyer.

This case reveals the danger of a “suspect-based” investigation as opposed to a fact-based investigation. It shows how dangerous eyewitness testimony can be. It shows how once a police department pursues a theory and arrests a suspect based on that theory, they will refuse to turn back on it or admit that they were wrong regardless of the consequences.

“The consequences” here are that an innocent man was robbed of 45 years of his life. Congratulations to Mr. Andrews for persevering and never giving up. Congrats to Brian Howe, Professor Mark Godsey and all the lawyers and students at OIP and the University of Cincinnati Clinic that worked to get the testing that led to the discovery of the hidden police files.

But the Court did not go all the way to exonerate him. It only vacated his conviction, ordered a new trial and let him out but with a GPS-ankle monitor. As if an 82 year old man who had finally established all of the above and had already served 45 years in prison was now going to run. Shame on Judge Robert McClelland for imposing this restriction.

Follow me on Twitter @oscarmichelen

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What Will Jurors Be Like Post-Covid? Thu, 30 Apr 2020 16:19:19 +0000 [...]]]> Over the last few days or so, I have seen that lawyers, judges and clients alike are starting to wake up out of their covid-comas and are thinking about getting back to normality – whatever that was – heck, let’s just call it the pre-covid days. More courts are scheduling video or phone conferences; lawyers are emailing following up on discovery issues; and court administrators are looking ahead to they day when the system is once again fully operational.

I was on a video conference yesterday with some Bar Association leaders; court administrators; and a few fellow lawyers talking about the re-opening of the court system. We all agreed that there was a lot we could do virtually and separately, including even conducting depositions, though I said I would prefer not doing it that way, for reasons I need not get into now.

We all quickly cast aside the idea of a virtual jury trial, as just not realistic or practical. Also, as a trial lawyer, sneaking a peek at the jury during a witness’ testimony and catching a roll of the eyes or a knowing look between two jurors is very important. Deliberations would be very difficult to control as well .

But that got me to thinking about the jury pool when we did all get back together. How could we believe that jurors would not have been affected by this pandemic? What will those jurors be like? In criminal cases, will they be harsher to and more likely to convict defendants who committed crimes during the pandemic? Or would they be upset the government was wasting their time and bringing them together if they thought the crime was “trivial?”

I think the pandemic will certainly have an effect on civil trials, I’m just not sure what that effect will be. There has been analysis on how jurors who grew up after 9-11 (generally the Millennials) were affected as jurors. But those articles dealt mostly with how that group took in information. Though an insightful article called How the Changing Mindset by Millennials Affects Your Jury by Jessica Relyea of the Virginia law firm of Kalbaugh, Pfudn & Messersmith, has this interesting paragraph:

[M]illennials value safety more than any other generation.  Specifically, millennials are more likely to cite personal safety as a cause of stress over any other generation. American Psychological Associates, Stress in America: Our Health at Risk, (January 11, 2012).  During a 2016 presentation to the American Bar Association, Marygrace Schaeffer from DecisionQuest, a trial consultant firm, revealed that millennials do not believe government safety standards are the appropriate metric against which safety should be measured, with 88% agreeing that “companies should be held to a higher safety standard than what government regulations require.”  Furthermore, 84% of millennials felt that “big business needed to take every safety precaution no matter how impractical or costly.” While any specific studies cited by Ms. Schaeffer were not publically available, the talk was reported by Legal ReaderBloomberg Law and Law 360. Whether the statistics are exact or not, we know that millennials grew up during the 9/11 terrorist attacks previously mentioned, but also the Oklahoma City bombing, the Columbine High School massacre and all the school shootings that followed.  It logically follows that these events have affected millennials, causing them to be more aware of and concerned by safety issues than prior generations.

So what will the mindset of a post-covid juror be? Certainly they will be concerned for their own personal safety at the courthouse but assuming we can alleviate that concern, what I am talking about is how they will judge a case. What will they consider to be a serious injury? What if the plaintiff is what we have now deemed “an essential worker?” sure, firefighters and nurses were always held in high regard by jurors, and that had to be addressed in jury selection if the party on the other side was either of those professions or something similar, but the same feelings of respect, and a desire to protect and stand by a party who is a food worker; grocery clerk; or delivery person may also come in to play. If a party who is an employer who stood by his workforce and paid them through the pandemic doing what he could to keep his business alive, will a jury award as much damages either for or against that party as they would have before covid-19? Lots of questions, I don’t have a lot of answers yet.

If the party is the government, how that village; town; county; state handled the pandemic may play a large role in jurors approach to the case and general mindset. The country was already politically divided and how folks see the US and Trump Administration response to covid-19 may well impact how those jurors view cases brought either by or against the Federal government.

We can never fully separate jurors from their past experiences and good trial lawyers would not want to do that anyway. Our jobs is often to select jurors whose past experiences, we believe, will make them more receptive, appreciative and accepting of our clients’ positions. Until we actually get into the jury room with them and start probing these issues we really don’t know what a post-covid jury will be like. But certainly for litigants and attorneys alike, that analysis will have to be undertaken as we get closer to the return of an in-person trial.

Follow me on Twitter @oscarmichelen

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SCOTUS Overrules Non-Unanimous Jury Verdicts But Were Stare Decisis and Abortion Also on Trial? Mon, 20 Apr 2020 20:53:07 +0000 [...]]]> Back in August 2019 I wrote about Calvin Duncan, a jailhouse lawyer with only a 10th grade education who got the Supreme Court of the United States to look at the issue of non-unanimous jury verdicts in criminal cases, a procedure permitted in only two states: Louisiana and Oregon. (see ) Well in October 2019 the case was orally argued and today SCOTUS, in a fractured 6-3 decision, said non-unanimous jury verdicts are unconstitutional. In its decision, however, some justices took the opportunity to signal danger to Roe v. Wade.

Before I break down the splintered decision, a quick recap on the issue. In 1898, SCOTUS ruled that states could not exclude black people from serving on juries. Louisiana quickly responded by holding a Constitutional Convention whose purpose, as the judiciary committee stated, was “to establish the supremacy of the white race in this state to the extent to which it could be legally and constitutionally done.” Give them credit for at least being upfront about it. By then instituting 10-2 verdicts, the state could guarantee that if one or two black people somehow managed to make their way onto a jury, the other 10 would still be able to control the verdict. In Oregon, the provision was passed by voters in 1934, a time when racism, the KKK and bigotry were prevalent in the state and entrenched in Oregon’s law; while it had a very low black population, Oregon’s law was was meant to stop Catholics and Jews from having voices. Louisiana repealed its law and put unanimous verdicts in place, but Oregon did not, filing a brief in support of its law, even as it looked like the legislature was going to follow Louisiana’s lead.

The petitioner in the SCOTUS case was Evangelisto Ramos, convicted in Louisiana of murder by a 10-2 vote. Ramos argued that Louisiana’s non-unanimous jury provision violated his federal constitutional right to trial by jury and that the law had racist roots meant to diminish the votes of minority jurors.

Justice Neil Gorsuch wrote the majority opinion and was joined in key parts by Justices Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer and Brett Kavanaugh. Justice Clarence Thomas concurred in the judgment on narrower grounds. Chief Justice John Roberts and Justice Elena Kagan joined Justice Samuel Alito’s dissent. While I personally agree that non-unanimous jury verdicts are bad criminal justice policy, I agree with the dissent that the decision as structured may mean even more harm to the important principal of stare decisis. That principle says generally that once an issue has been settled by the Court, future courts should follow and be bound by that precedent. Without this fundamental principal, laws could change every time the judges of the Court changed. Let’s go through the opinions:

A: Gorsuch Majority joined by Ginsburg, Sotomayor, Breyer & Kavanaugh:

Gorsuch began by noting the racist motives for laws and by then noting that the right to an impartial jury trial had to have some importance and meaning for the Founding Fathers to include it in the Sixth Amendment so he examined the roots of the right and noted:

The requirement of juror unanimity emerged in 14th century England and was soon accepted as a vital right protected by the common law. As Blackstone explained, no person could be found guilty of a serious crime unless “the truth of every accusation . . . should . . . be confirmed by the
unanimous suffrage of twelve of his equals and neighbors,
indifferently chosen, and superior to all suspicion.”

Justice Gorsuch then pointed out that many of the original State’s constitutions specifically required a unanimous jury verdict in criminal cases so that when James Madison drafted the Sixth Amendment to the Constitution, he surely meant to guarantee an impartial and unanimous jury. He then cited to 13 decisions over 120 years where SCOTUS said the Sixth Amendment requires unanimity and declared “if the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court,” since the Fourteenth Amendment makes the Constitution applicable to the States.

Seems pretty clear cut – so what’s the issue? Well Gorsuch and the majority had to deal with the fact that this issue had come up in two cases in 1972, Apodaca v. Oregon and Johnson v. Louisiana (generally referenced together as Apodaca and in those cases the laws were upheld by SCOTUS. Oops.

Gorsuch begins by dissecting the heavily fractured decisions in Apodaca. There, four justices voted outright to strike the laws down as unconstitutional under the Sixth Amendment. Four justices felt that unanimity did not serve an important enough function in contemporary society and then quickly and without much explanation decided that unanimity’s benefits did not outweigh its costs to the States. The tie breaker was Justice Lewis Powell’s odd decision that the Fourteenth Amendment didn’t necessarily make ALL of the Constitution applicable to the States. Justice Powell believed in a “dual-track” system where certain constitutional rights could mean one thing under Federal law and another under State law. While SCOTUS has never held such a way before or since, Powell’s decision became the one that upheld the law.

Gorsuch said it was time to make it clear that Powell’s reasoning in Apodaca, which had been labeled “an exception” and “unusual” in later SCOTUS cases, was not the law of the land. He also held that due to its fractured and guidance-less opinions it was not precedent at all. He noted that Powell agreed that the US Constitution guaranteed a unanimous verdict but just believed in this outlier “dual-track” analysis which has been repeatedly rejected since by SCOTUS. He said that due to this, the Court was not bound by Apodaca.

He then addressed stare decisis head on and said even if the Court may have been bound by the precedent of Apodaca, it no longer has to be:

Of course, the precedents of this Court warrant our deep respect as embodying the considered views of those who have come before. But stare decisis has never been treated as “an inexorable command. And the doctrine is “at its weakest when we interpret the Constitution” because a mistaken judicial interpretation of that supreme law is often “practically impossible” to correct through other means. To balance these considerations, when it revisits a precedent this Court has traditionally considered “the quality of the decision’s reasoning; its consistency with related decisions; legal developments since the decision; and reliance on the decision.”

All those factors, Gorsuch wrote, weigh in favor of overturning Apodaca. Substance must take priority over form. In a strikingly personal and powerful conclusion that can be used to apply to all wrongful conviction cases in the future he stated:

On what ground would anyone have us leave Mr. Ramos in prison for the rest of his life? Not a single Member of this Court is prepared to say Louisiana secured his conviction constitutionally under the Sixth Amendment. No one before us suggests that the error was harmless. Louisiana does not claim precedent commands an affirmance. In the end, the best anyone can seem to muster against Mr. Ramos is that, if we dared to admit in his case what we all know to be true about the Sixth Amendment, we might have to say the same in some others. But where is the justice in that? Every judge must learn to live with the fact he or she will make some mistakes; it comes with the territory. But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right.

B: Sotomayor concurrence: Justice Sotomayor wrote her own concurrence opinion though she stated she agreed with the vast majority of Gorsuch’s opinion. But she has taken the lead on criminal justice issues (as the only judge on the SCOTUS bench with real criminal justice experience). She says Apodaca is a “universe of one” and that stare decisis is of less importance in the criminal justice arena. She noted the racist foundations of the laws and that the constitutional protection here ranks among the most essential: the right to put the State to its burden, in a jury trial that comports with the Sixth Amendment, before facing criminal punishment. . . . Today, Louisiana’s and Oregon’s laws are fully—and rightly—relegated to the dustbin of history. And so, too, is Apodaca. While overruling precedent must be rare, this Court should not shy away from correcting its errors where
the right to avoid imprisonment pursuant to unconstitutional procedures hangs in the balance.

Top Row L to R: Justices Gorsuch, Sotomayor, Kagan and Kavanaugh.
Bottom Row L to R: Justices Breyer, Thomas, Chief Justice Roberts, Ginsburg and Alito

C: Kavanaugh concurrence – a warning bell on Roe v. Wade: This is where things get dicey. Justice Kavanaugh wrote his own opinion to express his views on one topic: stare decisis. I won’t get into it in detail here but he writes a lengthy dissertation on when stare decisis should be given strongest deference (where Courts have interpreted statutory issues) and weakest deference (constitutional interpretations). In addition to taking Apodaca through his analysis, and deciding that it is not worthy of stare decisis deference, Kavanaugh makes a statement that should concern anyone who believes Roe v. Wade should remain the law of the land. Clearly sending a signal to anyone who is paying attention he stated:

All Justices now on this Court agree that it is sometimes appropriate for the Court to overrule erroneous decisions. Indeed, in just the last few Terms, every current Member of this Court has voted to overrule multiple constitutional precedents.(Citations omitted). Historically, moreover, some of the Court’s most notable and consequential decisions have entailed overruling precedent. (Citing a long list of cases) The lengthy and extraordinary list of landmark cases that overruled precedent includes the single most important and greatest decision in this Court’s history, Brown v. Board of Education, which repudiated the separate but equal doctrine of Plessy v. Ferguson, 163 U. S. 537 (1896). As those many examples demonstrate, the doctrine of stare decisis does not dictate, and no one seriously maintains, that the Court should never overrule erroneous precedent. As the Court has often stated and repeats today, stare decisis is not an “inexorable command.”

As if that were not enough of a warning bell that he intends to overturn Roe v. Wade, among the long list of precedents that he put forth to support the above proposition, he expands on only one, adding a footnote to his citation of Southeaster Pa. v. Casey, a 1992 abortion case:

In Casey, the Court reaffirmed what it described as the “central holding” of Roe v. Wade, 410 U. S. 113 (1973); the Court expressly rejected Roe’s trimester framework; and the Court expressly overruled two other important abortion precedents, Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (1983), and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747 (1986).

Get it – stare decisis is of limited value in abortion cases.

D: Thomas concurrence: Not be outdone, Justice Thomas also wrote his own opinion, so that he could re-state his argument that the Fourteenth Amendment’s Due Process Clause does not make rights guaranteed under Federal Law applicable to the States. He agreed wholeheartedly that the Sixth Amendment guarantees a right to a unanimous jury in Federal cases. And he agreed that the Fourteenth Amendment made that applicable to the States but not because of the Due Process Clause of the Fourteenth Amendment but because of its Privileges or Immunities Clause. The Privileges or Immunities Clause provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

This argument has been repeated endlessly by Thomas: that the Due Process clause only guarantees “process” and cannot guarantee or define substantive rights themselves. Calling it a “legal fiction” it is why he says the Court has consistently made mistakes under this clause, especially, he cites, in the cases of Dred Scott and Obergefell v. Hughes (the gay rights case). He rejects Apodaca because it too relied on Due Process analysis. It is not a subtle difference or some esoteric legal argument. Like Kavanaugh, Thomas is trying to take this case past its four corners. Applying laws to the States under the P or I clause means that only clearly established and previously defined rights can be made applicable to the States and that only laws related to process are made applicable to the States via the Due Process clause. That would also mean that Roe v. Wade was erroneously decided. In Roe, the Supreme Court issued a 7–2 decision holding that the Due Process Clause provides a “right to privacy” – therefore applicable to the States -that protects a pregnant woman’s right to choose whether to have an abortion. Since there was no Federal right to abortion, the P & I clause would not give that same right to women in the individual States.

E: Alito dissent, joined by Roberts and Kagan: Alito starts out by saying that stare decisis takes a rough hit in the case. He states that Oregon and Louisiana have strongly relied on Apodaca and that overturning it places a tremendous burden on them to have to retry cases.

He points out that while race was likely the basis for these laws when initially enacted, the States have re-affirmed them as late as the 1970s where no one argued that race was the basis; rather it was in the interest of judicial economy and to reduce the number of hung juries, valid State concerns. He also notes that many Bar Associations and even the British Parliament have discussed the merits of non-unanimous verdicts in criminal cases. He states, “If at some future time another State wanted to allow non-unanimous verdicts, today’s decision would rule that out—even if all that State’s lawmakers were angels.”

On the issue of Apodaca, and the majority decision arguing that it may not even be actual precedent, Alito retorts “Really?” He goes through the countless times SCOTUS cited Apodaca; the many times SCOTUS has denied a writ of certiorari to folks appealing non-unanimous verdicts; and also importantly, the States’ long history of reliance on Apodaca. He mocks that the majority labels Apodaca as “fractured” while the majority opinion itself was comprised of four separate opinions. He notes that while he may have disagreed with the Court’s result in Apodaca, that would not be a reason to overturn it. He even says Justice Powell’s “dual-track” theory is not as isolated as the majority suggested noting that the Court has upheld States using a preliminary hearing in lieu of a grand jury presentation even though the Constitution contains a Grand Jury Clause.

But is the States’ reliance that worried Alito the most: “For 48 years, Louisiana and Oregon, trusting that Apodaca is good law, have conducted thousands and thousands of trials under rules allowing non-unanimous verdicts. Now, those States face a potential tsunami of litigation on the jury unanimity issue.” He argues that that tsunami will become a deluge if you include the convicted defendants presently incarcerated even if they got convicted by a unanimous jury because their jury got instructions on non-unanimity.

He doesn’t stop there. In the next section – which Justice Kagan specifically noted she did NOT agree with – he notes that in recent cases that he voted to ignore stare decisis, notably Abood and Janus about forced payment of union dues, there was not the kind of reliance we see here. and because of the States’ significant reliance on Apodaca and the costs to the States to have to retry all those cases potentially, Apodaca should have been upheld.

What reliance is there on Roe v. Wade? None that would place a financial burden on the States. Women who have already received an abortion won’t be affected, and if the court sets a six or nine month delay in its decision going into effect, no woman would have relied on it prior to its being overturned. That’s why Kagan begged off signing not this part of the Alito opinion – because of the great weight it placed on reliance as the key factor in determining whether to follow stare decisis.

Conclusion: This case no doubt gives great relief to those accused of a crime and those convicted under Oregon and Louisiana’s non-unanimous jury verdict laws. Its the right step in criminal justice reform.

But the decision is harbinger of serious things to come in the future of Roe v. Wade. If Kavanaugh, Thomas and Alito’s opinions tell us anything, it is that Roe is in real danger and Justice Powell’s outlier view of a dual track society will become true – some States will legalize abortion and others will outlaw it.

Elections have consequences.

Follow me on Twitter @oscarmichelen

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Getting Insurance Coverage for COVID-19 Business Interruption Mon, 20 Apr 2020 15:32:12 +0000 [...]]]> Many of my firm’s business clients have been calling me to see if they can obtain money in addition to available government assistance for the losses they are suffering due to the COVID-19 pandemic. I advise them that it all starts with a deep dive into their insurance policies. Let’s face it, most of us don’t read every single paragraph and rider to our insurance policies though we should. While this activity normally ranks up there on the fun-scale with wisdom teeth extraction, it is an important and necessary step if your business needs funds and has no other recourse now that the gov’t bailout has run out of money.

First the bad news: After the advent of SARS (which BTW also was a coronavirus) and H1N1 (AKA Swine Flu), most insurers added specific exclusions for closures caused by “communicable diseases” or “pandemics.” So the first step is to look to see if that exclusion is there. If it is not, then you business likely has several potential coverage areas that will allow you to file. The insurance industry has developed specialty products that expressly include a specific coverage grant, usually as part of a commercial property package, for losses arising out of communicable diseases. So you may have in fact paid for the privilege to get the coverage.

If a pandemic exclusion exists, does, then all still may not be lost but it will be harder to get coverage and may require litigation. Some possibilities will be discussed below:

A: If you have communicable disease coveragethink hard about all manner of losses: Don’t forget areas of work that have to be done that could be added to the claim. Costs of cleaning the facility; costs of PPE acquisition and disposal; interest on loans that became necessary due to the pandemic; storage costs to move stock or furniture into a storage facility; and even costs of a PR firm’s help in crafting messages to customers and suppliers are all items that can be reimbursed under a covered loss. In addition, the insurer may try to keep your claims limited to the level of coverage for the communicable disease sub-limit of the policy, but a fair argument can be made that the communicable disease loss led to losses covered under the general business interruption section of the policy.

In that vein, your property damage clause may cover you for at least the cost of clean up. Even without physical damage to property, there is some support in the case law for coverage arising out of the inability to use the property. Under this area of cases, if a policyholder suffers a loss due to, for example, a harmful substance rendering the property unusable or uninhabitable, even temporarily, that might be sufficient to satisfy the physical loss or damage requirement

Modern insurance contracts can be dozens and dozens of pages long and no more decipherable than this 19th Century insurance contract

B: Event Cancellation Insurance: If you had to cancel a large event like a food fair, festival or convention, even if there is a communicable disease exclusion under your policy, you can argue that the cancellation was caused by the government shutdown order and not the disease itself. Here though the cancellation would have to be actually ordered not merely suggested and you will not get coverage if you canceled “out of prudence” or because you thought you might take a loss or not make as much money. It has to be something our of your decision-making and control.

C: Contingent Business Interruption: This coverage may be in your policy. It is for situations where one of your main suppliers or biggest customers – but not you – has been put out of business by the pandemic. Contingent business interruption insurance expressly covers the policyholder’s lost profits and other economic losses that result from loss or damage to the property of a supplier (i.e., a third-party entity upstream in the supply chain) or a customer or client (i.e., a third-party downstream in the supply chain).

Conclusion: Businesses need to look to all potential areas for funding at this time. Do not overlook the time-consuming task of close examination of your insurance policy for potential coverage areas. If you are going to file a claim, take care to search for and itemize each loss and potential loss. Get help from professionals to help sift through the policy and draft the claim documents. Don’t be surprised if you get an immediate denial – but review the denial letter carefully and see if there is a way to fight the basis for the non-coverage that the insurer is relying upon. Also, whenever the smoke clears, have your broker look for better and more expansive coverage (if you can afford it) to be in a better position to get relief when this happens again.

Follow me on Twitter @oscarmichelen

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Progressive New Law in Virginia Removes Barriers to Proving Actual Innocence Mon, 13 Apr 2020 20:48:25 +0000 [...]]]> Gov. Ralph Northam chose this Easter weekend to sign into laws sweeping progressive reforms including (1) making Virginia the first state in the South to enact comprehensive protections for the LGBTQ community against discrimination in housing, employment, public spaces, and credit applications; (2) repealing “medically-unnecessary restrictions on women’s healthcare,” including ultrasound requirements and 24-hour waiting periods for abortion; (3) gun control legislation requiring background checks on all firearm sales, requiring the reporting of lost and stolen firearms, limiting most people to one handgun purchase a month; and increasing the penalty for “recklessly leaving firearms” in the presence of children; (4) giving localities the ability to remove or alter Confederate monuments in their communities, and begin the process of replacing Virginia’s statue of Confederate General Robert E. Lee in the United States Capitol; and (5) expanding early voting to 45 days before an election without a stated excuse; repealing the state’s voter ID law; and making Election Day a holiday. That last one was a double-whammy because to maintain the same number of state holidays, he also repealed the Lee-Jackson Day holiday, established over 100 years ago to honor Confederate generals Robert E. Lee and Stonewall Jackson.

He passed into law even more reforms in the areas of the environment and criminal justice. But I want to focus on his amendments to the Actual Innocence Writ, passed into law in 2004, which was supposed to help the innocent get access to court to establish their innocence but which had so many procedural roadblocks that it was largely ineffective.

Ralph Northam has been Governor of Virginia since 2018

In fact, since 2004, only four Virginians have been granted relief under the Writ. The new law would remove hurdles to allow innocent people to overturn wrongful convictions by:

  1. Removing the one-writ limit: Previously people were limited to filing one writ of actual innocence based on non-biological evidence, even if new exonerating evidence was discovered at a later date. The new law removes the one writ limit to allow courts to consider new non-biological evidence of innocence when it becomes available. 
  2. Removing bar on guilty pleas: Despite the fact that 1 in 10 DNA exonerees in the United States pleaded guilty to crimes they did not commit, the writ of innocence excluded people who entered plea agreements. The new law removes this restriction to allow people to apply whether they pleaded guilty or were convicted at trial. 
  3. Creating a more reasonable burden of proof. Previously, Virginians were required to prove by “clear and convincing evidence” that no juror would have found guilt beyond a reasonable doubt. The new law changes the burden of proof to “preponderance of evidence” which is in line with the majority of other state laws regarding newly discovered evidence. 

This law will help those who were wrongfully convicted or who were railroaded into taking guilty pleas. It provides a nice roadmap for other states to follow. Maybe next, Governor Northam can focus on getting the State to change its compensation to the wrongfully convicted. Under current law, exonerated Virginians receive 90% of the State’s per capita personal income for each year of incarceration plus a tuition award worth $10,000 in the State’s community college system. In 2019, Virginia’s per capita personal income was $60,116.00, meaning exonerees would get around $54,000 per year of wrongful incarceration. While NY has no specific limits, in general exonerees get between $150,000-$3000,000 from the State for every year of incarceration.

But we shouldn’t look a gift horse in the mouth. This Easter basket of reform was a tremendous present of individual rights in Virginia and will ease the burden of those struggling to free themselves from wrongful incarceration.

Follow me on Twitter @oscarmichelen

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How to Fix a Drug Scandal? Netflix Answers: Good Lawyering Sun, 05 Apr 2020 04:33:55 +0000 [...]]]> The four-episode Netflix series, How to Fix a Drug Scandal (HFDS) was released on Netflix on Wednesday. It comes from filmmaker Erin Lee Carr (also known for HBO’s 2019 amazing documentary At the Heart of Gold: Inside the USA Gymnastics Scandal, as well as other compelling documentaries like I Love You Now Die and Mommie Dead and Dearest). HFDS centers on Sonja Farak and Annie Dookhan, two Massachusetts drug lab chemists who both committed egregious acts while on their jobs, causing countless wrongful convictions. What I loved about the series was that it showed the importance of having dedicated, tenacious lawyers to keep the State in check and pursue justice and truth no matter how long it takes.

Quick summary: There are two drug testing labs used by all the prosecutors in the State of Massachusetts, the Amherst lab in Western Mass and the Hinton lab in Boston, in Eastern Mass. Farak worked at Amherst, Dookhan at Hinton. Both were bright, talented people who went seriously astray.

Sonja Farak Photo courtesy of Netflix

Farak began using drugs at the lab almost as soon as she got the gig. She started with methamphetamine, moved on to powder cocaine and then became viciously addicted to crack cocaine, to the point where one day she actually cooked up a huge batch of crack in the lab! She used drugs several times a day every day she worked there. She would steal from two places – the evidence bags and the jars of standards kept in an unlocked refrigerator at the lab. Of course a chemist who smoked crack, then dropped LSD then did some more crack (all in one day) might just not be a reliable technician working scientific equipment.

Dookhan’s wrongs were far different – she was a highly regarded chemist whose work product was light years ahead of the other chemists. In fact she produced four times more certifications (test results proving the seized substances were actually narcotics) than any other chemist. Well turns out that was because she was totally faking the results. She would test one sample and then use those findings on three or four other samples from different cases. So in approximately 75% of the cases she handled, no test was really done to see if the items seized were actually drugs. On top of that, she had a cozy relationship with the prosecutors who would email her telling her how important and serious a particular case was; Dookhan would email back that she was excited to be part of the team putting away the bad guys. Except chemists are not on the prosecutors’ team – they are supposed to be independent analysts who call the shots based on test results alone. She was so far gone and in love with one particular prosecutor that she fabricated emails to make it look like she was divorced and that staff members were emailing each other about what a catch she was.

BOSTON – NOVEMBER 22: Dookhan, prior to entering a guilty plea. Annie Dookhan, former state chemist who mishandled drug evidence, entered a guilty plea during her court hearing at Suffolk Superior Court. (Photo by David L Ryan/The Boston Globe via Getty Images)

The series highlight how horrible that lab system in Massachusetts was. No oversight; no standards; sloppy conditions; huge caseloads; and two out of control chemists. It also shows how the criminal justice system is essentially a non-stop factory where case after case are just shuffled through the courts. The film is an indictment of the entire process.

But I want to focus on another aspect of the documentary. It is essentially a love letter to criminal defense lawyers, a group normally just slightly ahead of rapists and pedophiles in many people’s minds. Carr however shows how two defense lawyers, Luke Ryan in the Farak cases and Dan Marx (with great help from the Massachusetts’ ACLU) in the Dookhan cases were relentless in their pursuit of the truth.

Ryan filed petition after petition to get at the evidence trying to show when the State knew about Farak’s drug problems. An initial hearing he obtained resulted in a shoddy evidentiary hearing where the State AG’s office said there was no evidence to indicate the Farak problem was any bigger than two cases she tampered with near the end of her career. That meant that Ryan’s clients whose cases with Farak dated a few years earlier could not get their convictions overturned. But he kept at it. He finally got access to the State AG’s files and Farak’s drug therapy records which showed that Farak had been using drugs from when she first started the job all the way through the end of her career. More importantly, his digging and research uncovered a trove of emails proving the AG’s Office lied at the initial evidentiary hearing and had failed to turn over tons of documents showing that all of Farak’s cases were compromised by daily drug use. In fact, Ryan’s client was one of the cases Farak was supposedly working on the day she did her crack-acid-crack binge.

In the Dookhan cases, Marx and the ACLU pursued an argument that arresting Dookhan was not enough – the State had to do more for all those convicted under her watch. So they filed a “Class-action” type petition for simultaneous vacatur of conviction for all those defendants. The State responded that each of the 21,000 plus cases had to be litigated separately. The legal fight took over seven years with the State opposing the petition at every step. The case went up to the Supreme Court of Massachusetts twice until the Court ruled that all of Dookhan’s cases had to be thrown out because the convictions were based on unreliable and perjured evidence.

That decision led Ryan and the ACLU to join forces to get the same result for the Farak cases. Eventually, 16, 000 or so of her cases were also subsequently dismissed. So together these lawyers were able to get over 37,000 cases thrown out. They exposed corruption and fraud in the State AG’s Office and they showed how fragile and prone to potential error the criminal justice system can be if not properly overseen and managed.

Carr’s focus on the work of Luke Ryan, Dan Marx and the ACLU reveals the value criminal defense lawyers have in society. So often they work tirelessly and anonymously to protect not just their clients but the system at large from the overreach of the State. Kudos to her for showing this side of criminal defense lawyers and the importance of the job being done right.

Catch “How to Fix a Drug Scandal streaming now on Netflix.

Follow me on Twitter @oscarmichelen

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Covid-19 Leave:Quick Update Mon, 23 Mar 2020 17:18:16 +0000 [...]]]>

So many of my employment law clients are calling and emailing me questions about their operations and responsibilities during this crisis, I thought I would just put this up for quick access .
Disclaimer: This answers only the basics of many questions received regarding amounts of benefits for which employees are eligible to receive under this law.  The DOL has also issued some initial guidance available  here.

Eligible Employees: If employer has fewer than 500 employees and leave is requested or needed for a COVID-19 Coronavirus related-absence.
Sick Leave
Covers employees regardless of length of employment. Up to 80 hours of Full pay (for part-timers, an average calculation) if employee is subject to a quarantine or isolation order, has been advised by a health care provider to self-quarantine, or is experiencing coronavirus symptoms and seeking medical diagnosis;
2/3rds pay if leave is to care for a family member or for a child whose school or daycare closed
Capped at $200 per day, or $2,000 in the aggregate.

Family Leave
Covers employees who have worked at least 30 days at employer.
Up to 12 weeks of first 10 days (i.e., interpreted as 2 weeks under current DOL guidance) is unpaid.
After the 10 days, remaining time at 2/3rds pay
Capped at $200 per day or $10,000 in the aggregate 

Employers are to receive a limited tax credit towards these payments. 

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