SADO assistant defender analyzes her SCOTUS argument

Valerie Newman, assistant defender at the State Appellate Defender Office in Detroit, will reflect on how she prepared for and successfully argued Lafler v. Cooper at the Supreme Court of the United States.

Her “A View from the Podium: Reflections on a Supreme Court Argument” presentation is 12:15 p.m. Thursday, Oct. 4, at the Spencer M. Partrich Auditorium at Wayne State University Law School in Detroit.

In Lafler, Newman convinced a 5-4 majority that a defendant who receives ineffective advice that results in rejection of a plea offer and conviction at trial, may be entitled to relief from the sentence after conviction.

In the years leading up to the country’s high court, Newman — who was honored recently as one of Michigan Lawyers Weekly’s 2012 Women in the Law — said that the state courts were not willing to address the matter as a Sixth Amendment ineffective assistance of counsel argument. Instead, they wanted to blame the defendant.

Admission to the presentation is free, and lunch will be served. Learn more at http://law.wayne.edu.

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State Bar to be honored at U.S. Supreme Court

Next week, the State Bar of Michigan will be at the Supreme Court of the United States — not as a means of seeking justice, but in recognition for helping others do so.

The SBM is one of five organizations chosen to receive the 2012 American Bar Association Grassroots Advocacy Award, for its efforts to increase funding for the Legal Services Corporation.

LSC helps provide legal aid for low-income Americans and is the nation’s single largest provider of civil legal aid to citizens who live on incomes below or near the poverty line.

In a statement, the ABA noted that in 2011 SBM “played an exemplary role in advancing access to justice by successfully advocating for adequate funding for LSC during the congressional budget allocation for fiscal year 2012. The State Bar of Michigan advocated for LSC funding through an ongoing grassroots legislative advocacy campaign that included urging congressional members on the Joint Select Committee on Deficit Reduction to push for increased LSC funding.”

The bar “worked to prevent a potentially devastating $104.2 million (25.7 percent) proposed cut to the LSC budget of $404.2 million in fiscal year 2010. While the House of Representatives proposed funding LSC at $300 million, the Senate favored an allocation of $396 million. Ultimately, funding was set at $348 million, thanks in large part to efforts such as” the SBM.

The award will be presented April 18 as part of ABA Day 2012.

SCOTUS vacates MSC Confrontation Clause ruling

The U.S. Supreme Court has ruled, in Michigan v. Bryant, that the Confrontation Clause was not violated when police testified at trial that a gunshot victim identified his shooter in response to police questioning.

The Court, in a 6-2 decision, vacated the Michigan Supreme Court’s contrary conclusion (People v. Bryant).

Covington was shot outside of Bryant’s house and managed to drive himself to a gas station. Someone called the police, who arrived before the medical responders. The police asked Covington, who was in great pain and having trouble breathing, who shot him. Covington named Bryant as the shooter. Covington died a few hours later.

The police testified at Bryant’s trial that Covington identified Bryant. Bryant was convicted of second-degree murder.

The MSC reversed the conviction, ruling that Covington’s statements were inadmissible testimonial hearsay.

The U.S. Supreme Court ruled that the statements were not testimonial, and vacated the MSC’s decision.

The Court, citing Davis v. Washington, 547 U. S. 813 (2006), said the circumstances, viewed objectively, showed that

Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements because they had a “primary purpose … to enable police assistance to meet an on-going emergency.” Davis, 547 U. S., at 822. Therefore, their admission at Bryant’ s trial did not violate the Confrontation Clause.

When Covington responded to questions from the police

he was lying in a gas station parking lot bleeding from a mortal gunshot wound, and his answers were punctuated with questions about when emergency medical services would arrive.

Thus, this Court cannot say that a person in his situation would have had a “primary purpose” “to establish or prove past events potentially relevant to later criminal prosecution.” …

For their part, the police responded to a call that a man had been shot. They did not know why, where, or when the shooting had occurred; the shooter’s location; or anything else about the crime.

They asked exactly the type of questions necessary to enable them “to meet an ongoing emergency.” …

“Nothing in Covington’s responses indicated to the police that there was no emergency or that the emergency had ended. …

The officers all arrived at different times; asked, upon arrival, what had happened; and generally did not conduct a structured interrogation.

“The informality suggests that their primary purpose was to address what they considered to be an ongoing emergency, and the circumstances lacked a formality that would have alerted Covington to or focused him on the possible future prosecutorial use of his statements.

The Court vacated the MSC’s decision.

We leave for the Michigan courts to decide on remand whether the statements’ admission was otherwise permitted by state hearsay rules.

Americans unaware of how SCOTUS works

NEW YORK, N.Y. – September 23, 2010 – As the first Monday in October looms and the U.S. Supreme Court and its newly confirmed justice, Elena Kagan, look ahead to hearing new arguments, The Harris Poll asked Americans their awareness and opinions about some of the court’s practices.  Although the Supreme Court heads one of the three branches of the U.S. government, two in five Americans (42%) say they are not knowledgeable about the Supreme Court confirmation process.

These are some of the results of The Harris Poll of 2,775 adults surveyed online between August 9 and 16, 2010 by Harris Interactive.

Almost three in five (58%) Americans say they are knowledgeable about the process, with 14% saying they are very knowledgeable and 44% saying they are somewhat knowledgeable.  However, Americans,65 and older (74%) and men (71%) are more likely to say they are knowledgeable on this compared to younger Americans, those 18-33, and women (both 46%).

During the confirmation process, however, a strong majority of Americans agree that nominees to the Supreme Court should be required to answer questions on specific issues (81%) and how they would vote in specific court cases, both past cases and hypothetical ones (63%) while just over half feel they should answer questions about their personal life (54%).  Older Americans seem to be more strongly in favor of some of these types of interviews than are younger Americans, though.  Over four in five (84%) of both Americans aged 46-64 and 65 and older agree that nominees should be required to answer questions about their views on specific issues, compared to three-quarters of those aged 18-33 who say the same (76%).  Older Americans are also more likely to agree that nominees should be required to answer questions about their personal life (58% of those 46-64, and 68% of those 65 and older), compared to less than half of younger Americans (47% of those 18-33 and 48% of those 34-45), who say the same.

Older Americans are not the only ones who feel strongly about what should be required during these pre-confirmation interviews.  Over three-quarters of Republicans (76%) say nominees should be required to say how they would vote in specific court cases, including both past and hypothetical ones, compared to 54% of Democrats and 63% of Independents who say the same.  Similarly, 71% of Republicans think nominees should be required to answer questions about their personal life, compared to less than half of Democrats (49%) and Independents (49%) who think it’s important.

Type of Supreme Court Justice

When asked what type of person Americans would most like to see on the Supreme Court, half (51%) said someone who keeps their personal opinions of “right” and “wrong” to themselves and makes decisions strictly based on the letter of the law and the Constitution. One-third of Americans say they would prefer an independent thinker who uses creativity and an understanding of modern circumstances to inform their legal rulings (32%), just 6% say they would want someone who uses their own values or moral compass to guide their decisions, and one in ten are not at all sure what type of person they prefer (11%).

Looking by political party, a clear majority of Republicans (67%) prefer justices who make decisions based strictly on the letter of the law and the Constitution.  Democrats are more split-45% say they prefer an independent thinker who uses creativity and an understanding of modern circumstances, while 38% say they prefer someone who makes decisions based strictly on the letter of the law.

Although all Americans don’t agree about all Supreme Court practices, they do say that the Court is a crucial governing body for the success of the United States (69%).  In a sometimes rare show of similar opinion concerning policy, Republicans (71%), Democrats (74%), and Independents (70%) all agree on this point.  Interestingly, women show more uncertainty on this, as 65% say that the Supreme Court is a crucial governing body for the success of the United States, compared to three-quarters of men (75%) who say the same.  Just one in ten (10%)  women say that the Supreme Court is not necessary-decision making power should lay within the state courts, and over one-quarter of women are not at all sure (26%).

So what?

Each time there is a Supreme Court confirmation, the debate begins anew as to whether these are productive or not. The confirmation process for Elena Kagan was no exception as she sustained rounds of hearings prior to being confirmed.  One argument is the Senate should innately “trust” a President’s nomination and just provide “advice and consent.”  However, the American public seems fairly strongly in favor of these interviews, at least on certain topics.  Americans also broadly approve of the Supreme Court, yet many say they are not knowledgeable about its practices.  This may call for better education in schools on the Supreme Court, which appears may have fallen off in recent years, considering the numbers of younger Americans’ knowledge, or lack thereof, compared to that of older Americans.

Methodology

This Harris Poll was conducted online within the United States between August 9 to 16, 2010 among 2,775 adults (aged 18 and over). Figures for age, sex, race/ethnicity, education, region and household income were weighted where necessary to bring them into line with their actual proportions in the population. Propensity score weighting was also used to adjust for respondents’ propensity to be online.

All sample surveys and polls, whether or not they use probability sampling, are subject to multiple sources of error which are most often not possible to quantify or estimate, including sampling error, coverage error, error associated with nonresponse, error associated with question wording and response options, and post-survey weighting and adjustments. Therefore, Harris Interactive avoids the words “margin of error” as they are misleading. All that can be calculated are different possible sampling errors with different probabilities for pure, unweighted, random samples with 100% response rates. These are only theoretical because no published polls come close to this ideal.

Respondents for this survey were selected from among those who have agreed to participate in Harris Interactive surveys. The data have been weighted to reflect the composition of the adult population. Because the sample is based on those who agreed to participate in the Harris Interactive panel, no estimates of theoretical sampling error can be calculated.

The full data tables associated with this release can be found here.

Elena, we hardly knew ye

When Supreme Court nominee Elena Kagan’s confirmation hearing start next week, senators will fire up the proverbial grill. But based on 75,000 e-mails sent to and from Kagan in the late 1990s – which last week were released by the Clinton Presidential Library – she has a pretty spicy past. As noted in a compiled story by The Week:

  • Kagan occasionally peppered her e-mails “with salty language,” including “a New Yorkerized version of the word ‘unbelievable’” that added two syllables to it.
  •  She can be sarcastic: In critiquing a colleague’s e-mail, she replied: “Not to carp, but on memos to the president, it’s usually wise to spellcheck.”
  • She isn’t afraid to speak her mind: In an advance draft of Clinton’s 1997 State of the Union address, she clashed with speechwriters over a line that included a quote from Isaiah about being a “repairer of the breach” — a reference to Clinton’s desire for bipartisanship. “That quote from Isaiah is the most preposterously presumptuous line I have ever seen. The president would deserve it if the press really came down on him for this.” The quote stayed in.
  • She was enthusiastic about affirmative action: In one message she noted that presidential race adviser Chris Edley was leaving and lobbied to be put in charge of affirmative action in his place. “I know the issue well (because I teach it) and care about it a lot.”

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Court: BK franchisees can’t have it their way

And now for the third course in the trilogy of food-related legal matters.

First, we reported on a Hooters waitress being called out by management for carrying more than chicken wings and burgers, as she was put on “weight probation.” (This week, she filed an ELCRA lawsuit, and an Irish wagering site is accepting bets on how it turns out.)

Then, a burger joint in Cambridge, Mass., launches a burger that pays tribute to both U.S. Supreme Court candidate Elena Kagan and to the U.S. way of doing business.

Now, a federal court judge in Miami has ruled that Burger King management has the right to dictate value-meal pricing to franchisees. This comes after store owners, by way of the National Franchisees Association, were complaining that BK’s setting the double cheeseburger price at $1 was hurting their bottom line, making the value menu only a value to – gasp! – the consumers. (Though it should be noted that it’s not exactly been a value for cheese lovers, because, for the past month, BK has been skimping on the yellow stuff.)

Yet, allegations by the franchisees of bad faith by the company had enough plausibility to be argued in court.

Still, MSN reported, “[I]f franchisees and Burger King management know what’s good for them, they’ll spend less energy on this lawsuit and more energy on boosting BKC stock through stronger sales and profits.”

Maybe getting rid of those creepy commercials that feature the guy in the King costume would help, too.

Take a bite out of the Kagan Burger, and you’ll get a taste of Obama, too

Politics make strange bedfellows. But it looks like they also make for a tasty sandwich.

Turns out that Mr. Bartley’s Gourmet Burgers, a storied Cambridge, Mass., haunt near Harvard, recently added the Elena Kagan Burger to its menu.

Yet, the $10 burger wasn’t intended to honor the former Harvard Law School dean who’s President Obama’s pick for the Supreme Court. Rather, the move was, in part, a political statement.

“It has a liberal amount of salsa, grilled pineapple, because of the Obama connection — she’s cozy with Barack and he’s from Hawaii — and it comes with onion rings,” general manager Billy Bartley told The Boston Globe.

“I thought the coziness [between] her and Barack was inappropriate, but what do I know? I thought a Supreme Court justice should be further from the president than she is.”

The burger’s menu description shows that the sandwich wasn’t exactly created with love for the nominee. “Experience??? ‘Don’t ask, don’t tell,’” the menu reads, according to The Harvard Crimson. It presumably refers both to the fact that Kagan has never been a judge, and to her stance on the military’s policy on gays.

But Bartley revealed to the Globe another motivation behind the burger, and it’s about as American as it gets: “For the attention, so I can make money.”