SCOTUS allows death row inmate to refile appeal after lawyer error

Prisons are stocked full of people who feel like they are in there because their lawyers screwed, um, up. Let our mailbox testify as much.

But perhaps no one has had worse luck with his lawyer as Alabaman Cory Maples. Maples was on death row and landed New York firm Sullivan & Cromwell to pursue the appeal of his death sentence, arguing that his trial lawyer was constitutionally insufficient.

But when the lawyers representing him left the firm, no one bothered to tell the Alabama court, who sent the notice that it would hear his appeal for post-conviction relief to the firm and had it returned. Maples didn’t learn of the error until he received a letter sent to him in prison telling him that his appeal was abandoned.

Sullivan & Cromwell tried to get the appeal reopened, pushing it as far as the U.S. Supreme Court, which by a 7-2 vote, decided to give Maples the appeal he sought. Justice Ruth Bader Ginsburg said the law firm’s mistake was “more than simple attorney negligence.”

Maples, wrote Justice Ruth Bader Ginsburg on behalf of the Court, had been effectively abandoned not only by the two New York lawyers, but also by the Alabama lawyer, John Butler, whom the lawyers had associated with in order to practice in Alabama. Butler, upon signing onto the case, told his colleagues that he would not make any actual contribution to the case, contrary to Alabama’s requirement that local counsel be more than simple facilitators for out-of-state representation.

“That the minimal participation he undertook was inconsistent with Alabama law,” Ginsburg wrote, “underscores the absurdity of holding Maples barred because Butler signed on as local counsel.”

“Abandoned by counsel, Maples was left unrepresented at a critical time for his state postconviction petition, and he lacked a clue of any need to protect himself,” Ginsburg continued. “In these circumstances, no just system would lay” the blame for Maples’ missing the deadline to appeal at his “death-cell door.”

Are parochial teachers ministerial employees? SCOTUS to decide

The U.S. Supreme Court granted certioriari to a pair of Michigan employment case dealing with the ministerial exception. Next term, the high court will hear EEOC et al v Hosanna-Tabor Evangelical Church & School and Weishuhn v Catholic Diocese of Lansing.

Both cases were decided within five weeks of each other. At issue was how much time the teacher spent on “ministerial duties.”

First, the Michigan Court of Appeals found in Weishuhn (see You’re Fired!, February 8, 2010), the Michigan Court of Appeals said the parochial math teacher was a ministerial employee because she taught a religion class. Most of the teacher’s duties were spent teaching math but the court found that her activities teaching one religion class and participating in the church’s religious services was sufficient to make her a ministerial employee.

Later, the Sixth Circuit found in Hosanna-Tabor (see Perich v the parish, March 22, 2010) in a similar scenario that the teacher was not a ministerial employee because she didn’t “generally [teach] primarily religious subjects or [have]a central role in the spiritual or pastoral mission of the church.” The job duties between the two teachers were quite similar.

SCOTUS to hear another Michigan Miranda case

The U.S. Supreme Court has issued a writ of certiorari in yet another Michigan criminal case, this time Howes v Fields.

The case is another 5th Amendment question involving a prisoner that was removed from his cell and questioned by police about a crime unrelated to the charges for which he was incarcerated without being informed of his Miranda rights.

You can read the 6th Circuit’s opinion in the matter (holding that the defendant was entitled to re-notified of his Miranda rights) here. Summary here.

Here’s the AP summary:

WASHINGTON (AP) — The Supreme Court will consider whether investigators must give a jail inmate his Miranda rights before questioning him on matters unrelated to what landed him behind bars.

The justices on Monday said they will hear Michigan’s appeal of a court ruling in favor of Randall Fields, who acknowledged to sheriff’s deputies that he had sexual contact with a minor. The admission took place during an interview in the same building where Fields was jailed on unrelated charges.

The deputies never advised Fields he could be silent or have a lawyer, hallmarks of the Miranda warning for criminal suspects. They did tell him he could leave when he wanted.

Arguments will take place later this year.

The case is Howes v. Fields, 10-680.

SCOTUS hears Wayne County ‘Confrontation Clause’ Case

On Tuesday, the justices of the United States Supreme Court heard arguments in Michigan v Bryant, a Confrontation Clause case out of Wayne County.

The issue involved the police questioning a shooting victim at the scene about the identity and location of the shooter and whether the answers were “testimonial” in nature, and whether police officers can testify about what the victim said.

Only eight of the justices will decide the case. Newly-minted Justice Elena Kagen has recused herself because, as solicitor general, her office submitted an amicus brief supporting the prosecution. [Kagen will recuse herself from a number of cases this term, increasing the chances of ties and rehearings].

The case was argued by Wayne County assistant prosecutor Lori Baughman Palmer and State Appellate Defender’s Office attorney Peter Van Hoek. Transcript of the hearing can be found here. Briefs can be found here if you are so inclined.

And Kagan makes nine

The U.S. Senate has finally confirmed Elena Kagan as the newest Associate Justice of the United States Supreme Court in a 63-73 vote. []

Five Republicans in the Senate had signaled their intention to vote for Kagan, meaning conservatives didn’t have the strength in numbers to delay the proceedings with a filibuster.

Only one Democrat announced his opposition: Sen. Ben Nelson of Nebraska.

"I have heard concerns from Nebraskans regarding Ms. Kagan, and her lack of a judicial record makes it difficult for me to discount the concerns raised by Nebraskans, or to reach a level of comfort that these concerns are unfounded," he said in a statement.

SCOTUSblog discusses what’s next for Kagan in her new job.

SCOTUS to hear USERRA discrimination case

With so many reserve service members returning home to a less-than-robust economy (I’m being generous), it shouldn’t be a surprise to find the number of USERRA violations has skyrocketed, according to

Last week, we reported on a Sixth Circuit case in which one such service member was fired because IBM refused to reintegrate him because he had fallen behind the technology while serving in Afghanistan. The Sixth Circuit upheld the firing in that case, in part because of procedural mistakes by the plaintiff, and in part because the veteran accepted a severance buyout.

Other service members have not been so lucky. The U.S. Supreme Court has granted cert to hear a case that veteran’s groups hope will curb the number of discrimination claims filed with the the Department of Defense’s Employer Services for Guard and Reserves unit.

In Staub v Proctor Hospital, Vincent Staub returned from service in Operation Iraqi Freedom, where he trained Army personnel on how to establish a radiology unit in a combat environment.

Before he was recalled, his supervisor had systematically disregarded his military obligations by scheduling him to work on weekends, knowing he needed one weekend a month for his reserve duty. She forced Staub to use his vacation days and posted bulletins asking his co-workers to volunteer to cover his shifts.

The supervisor told him and others his reserve duty was “bull[BLEEP]” and told him to “get the [BLEEP] out” of her office. She even went as far as to call the administrator of his military unit and asked for Staub to be excused. When she was told the weekend drilling was mandatory, she called the administrator an “[BLEEP]hole” and hung up on him.

Another supervisor referred to his military drill weekends as “Army Reserve bull[BLEEP]” and “a bunch of smoking and joking and a waste of taxpayers’ money.” Despite this, Staub had excellent performance reviews as late as four months before he was fired.

He was later fired for two incidents: one, in which he broke a rule that both he and another co-worker testified did not exist at the time he allegedly broke it, and two, for the heinous act of phoning his supervisor to say he was going to lunch with the same co-worker and not having that voicemail received before another supervisor decided to fire him. The other co-worker was not disciplined.

He sued the hospital for discriminating against his veteran/reserve status in violation of USERRA. A jury found the employer’s actions were largely motivated by Staub’s veteran/reserve status. The 7th U.S. Circuit Court of Appeals reversed the verdict, saying that the human resources vice president that delivered the news of his firing was not under the “singular influence” of the allegedly biased supervisors.

SCOTUS will hear the arguments in December.

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SCOTUS makes Michigan’s Asian carp case sleep with the fishes … again

The U.S. Supreme Court again killed Michigan AG Mike Cox’s action to close the canal between the Illinois and Chicago Rivers in hopes of stopping the Asian carp from infiltrating Lake Michigan. This time, it’s dead dead. [SCOTUSblog].

UPDATE: Here’s the AP story:

WASHINGTON (AP) — The U.S. Supreme Court has decided not to get involved in a dispute over how to prevent Asian carp from making their way into the Great Lakes.

The justices turned down a new request from Michigan on Monday to consider ordering permanent closure of Chicago-area shipping locks to prevent the invasive fish from threatening the Great Lakes.

The court had declined previously to order the locks closed on an emergency basis while it considered whether to hear the case. Michigan has led the legal fight to close the locks, arguing that the ravenous carp, which weighs up to 100 pounds (45 kilograms), could devastate the lakes’ $7 billion fishing industry by starving out competitors such as salmon and walleye.

UPDATE II: Again from the AP, Sen. Charles Schumer (D-NY) is requesting a study of the potential effects of Asian carp on the lakes. Sounds like a good idea for six months ago:

A New York senator said a full federal study is needed to determine how big a bite Asian carp would take from the regional economy if they invade the Great Lakes.

Democratic Sen. Charles Schumer said he will request a comprehensive study in a letter he plans to send Monday to the Environmental Protection Agency, Coast Guard, Army Corps of Engineers and Fish and Wildlife Service.

Two species of Asian carp are threatening to enter Lake Michigan from Chicago-area waterways.

State officials and scientists say if the carp spread across the lakes, they could threaten the $7 billion fishing industry by starving out competing species.

Schumer says a broader analysis is needed that would consider potential damage to other industries such as tourism and shipping — and costs to governments from monitoring and control programs.

"No studies have been conducted to assess the true economic impacts of allowing Asian carp to establish a breeding population in the Great Lakes," Schumer said in the letter, which was provided to The Associated Press. "The lack of this crucial information makes it impossible to weigh the options before us and determine the best course of action to fight the spread of Asian carp."

An economic analysis released this month by the Illinois Chamber of Commerce found that closing the shipping locks in Chicago waterways would cost the area economy about $4.7 billion over two decades.

That report envisions a far greater economic ripple than a February study commissioned by the state of Michigan.

Transportation specialist John Taylor of Wayne State University in Detroit and James Roach, a consultant, said Illinois was overstating the economic damage closing the locks could cause. They estimated it would boost the costs of transporting and hauling cargo by about $70 million annually — a fraction of Chicago’s $521 billion economy.

The U.S. Supreme Court twice has rejected Michigan’s request to order the locks closed.


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Casual Friday revisits Lawmiss

Judicial recusal, Ohio-style: Remember lawmiss, aka Shirley Strickland Saffold, the Cleveland judge who (allegedly) took to the Cleveland Plain-Dealer website comments to anonymously rip litigators who appear before her?
Obviously, the attorney she ripped, Rufus Sims, sought her recusal, which she refused, claiming that he had no proof.

While Saffold clung tight to her alibi that her daughter wrote those comments, Ohio Chief Justice Paul Pfeifer gave her the hook []:

CLEVELAND, Ohio — Acting Ohio Chief Justice Paul E. Pfeifer removed Cuyahoga County Common Pleas Judge Shirley Strickland Saffold from hearing the case of accused serial killer Anthony Sowell Thursday.

Pfeifer made the ruling based on comments posted on about the Sowell case. The comments were posted through a username created with an AOL e-mail address used by Saffold. The judge has denied making the comments, and her 23-year-old daughter has said she posted them.

Pfeifer found no evidence to suggest that Saffold made the postings, but he found the comments have “created a situation that ‘poses an impediment to the judge’s ability to resolve any remaining legal and factual issues in a way that will appear to the parties and the public to be objective and fair.’ “

Finally: Apparently, there’s a Michael Jackson imitator from Allen Park who took his imitation goes too far [The News Herald]:

Picture 3

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Justice Stevens leaving SCOTUS at end of term

From the Associated Press:

WASHINGTON (AP) — Supreme Court Justice John Paul Stevens, the court’s oldest member and leader of its liberal bloc, is retiring. President Barack Obama now has his second high court opening to fill.

Stevens said Friday he will step down when the court finishes its work for the summer in late June or early July. He said he hopes his successor is confirmed "well in advance of the commencement of the court’s next term."

Stevens’ announcement leaves ample time for the White House to settle on a successor and for Senate Democrats, who control a 59-vote majority, to hold confirmation hearings and a vote before the court’s next term begins in October. Republicans have not ruled out attempts to delay confirmation.

Stevens’ announcement had been hinted at for months. It comes 11 days before his 90th birthday.

Throughout his tenure, which began after President Gerald Ford nominated him in 1975, Stevens usually sided with the court’s liberal bloc in the most contentious cases — those involving abortion, criminal law, civil rights and church-state relations. He led the dissenters as well in the case of Bush v. Gore that sealed President George W. Bush’s election in 2000.

Stevens began signaling a possible retirement last summer when he hired just one of his usual complement of four law clerks for the next court term. He acknowledged in several interviews that he was contemplating stepping down and would certainly do so during Obama’s presidency.

Chief Justice John Roberts said in a written statement that Stevens "has enriched the lives of everyone at the Court through his intellect, independence, and warm grace."

Senate confirmations of Supreme Court justices have increasingly become political battles and this one will come amid the added heat of congressional election campaigns.

Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, appealed for civility. "I hope that senators on both sides of the aisle will make this process a thoughtful and civil discourse," Leahy said.

Looking toward those hearings, Senate Republican Leader Mitch McConnell of Kentucky said, "Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an evenhanded reading of the law."

Stevens informed Obama in a one-paragraph letter addressed to "My dear Mr. President." It was delivered to the White House by court messenger at 10:30 a.m. EDT, two minutes before the court’s public announcement. The news came on a day when the court wasn’t in session.

White House counsel Bob Bauer telephoned the news to Obama on Air Force One, as he returned from a trip to Prague.

The leading candidates to replace Stevens are Solicitor General Elena Kagan, 49, and federal appellate Judges Merrick Garland, 57, in Washington and Diane Wood, 59, in Chicago.

Stevens’ departure will not change the court’s conservative-liberal split because Obama is certain to name a liberal-leaning replacement, as he did with his first nominee, Justice Sonia Sotomayor. But the new justice is not likely to be able to match Stevens’ ability to marshal narrow majorities in big cases.

Stevens was able to draw the support of the court’s swing votes, now-retired Justice Sandra Day O’Connor and Justice Anthony Kennedy, to rein in or block some Bush administration policies, including the detention of suspected terrorists following the Sept. 11, 2001, attacks, its tilt toward protecting businesses from some lawsuits and its refusal to act against global warming.

But after the arrival of Roberts and Justice Samuel Alito, President George W. Bush’s appointees, Stevens more often was among the four liberal justices in dissent.

Stevens’ recent dissent in a major case involving campaign finance laws showed both the eloquence of his writing and, in his stumbling reading of his opinion in the courtroom, signs that his age might at long last be affecting him, though he remains an active tennis player and swimmer.

He is the court’s last World War II veteran and that experience sometimes finds its way into his writings, recently in a reference to Tokyo Rose, the English-speaking Japanese radio announcer who addressed U.S. soldiers in the Pacific.

Stevens had a reputation as a bright and independent federal appeals court judge when Ford, acting on a recommendation by Attorney General Edward Levi, nominated him to the Supreme Court.

His friendly manner of questioning lawyers who appeared before the court could not hide Stevens’ keen mind. His questions often zero in on the most telling weaknesses of a lawyer’s argument and the case’s practical effect on everyday people.

A pleasant, unassuming man, Stevens has been a prolific and lucid writer. For many years, he wrote more opinions each court term than any other justice.

Most justices let their law clerks write the first drafts of opinions, but Stevens has used his clerks as editors.

He’d write the first draft and submit it to the clerks for comment. "That’s when the real fun begins," Stevens once told a visitor. "The give and take can get pretty fierce."

As a result, his opinions have reflected his personal writing style — a conversational one that contrasted sharply with the dry, dull efforts of some other justices.

He said recently that one sign that it would be time to retire would be an inability to churn out those first drafts. But he insisted in recent days that he was still writing them.

Casual Friday Is Unbuttoned At The Collar

Short and sweet on this un-work* day.

* Un-work in that most people are off as evidenced by the lack of other people on the road this morning.

The kid’s a pro And here I thought it took years to develop political corruption skills. Or at least a family pedigree. Brandon Hall is wise beyond his years: [WZZM-13]

GRAND HAVEN, Mich. (WZZM/Grand Haven Tribune) – A Grand Haven school board member received his sentence this morning for stealing money from a school-sanctioned fundraiser.

Our news partner, The Grand Haven Tribune , is reporting 20-year-old Brandon Hall was sentenced today to 24 months probation, 60 hours of community service and a $665 fine.

A jury found Hall guilty of the larceny-by-conversion charge in February. He took the money from a fundraiser for the American Cancer Society last fall.

The first commenter is today’s winner at life:

begoodtome wrote:

Don’t trust anyone with the shirt buttoned to the top

That’s good advice, indeed!

In the same spirit of the “People You Never Meet In Solo Practice” post from a couple weeks ago, Crimlaw blog offers a similar list of “crummy,” “incompetent criminal defense attorneys who “walk [their clients] right off the plank and into the ocean.” Including:

Sturm und Drang: This guy has figured out that the best strategy for attracting clients is to be LOUD AND CONFRONTATIONAL. There is no give in this guy. Everything has got to be a trial and he will holler and fuss and object and object and object and object and his client will be convicted of driving without a license anyway. Then, the thoroughly peeved prosecutor will ask the thoroughly peeved judge to throw the book at his client. Defendant could have gotten a weekend in jail if the attorney had just had a short, civilized discussion with the prosecutor before they went before they went to the bench – now he’s getting a month. This guy doesn’t care. He knows that 50% of the people in the gallery were wowed by him fighting tooth and nail for his client and that they don’t understand how it hurt the client. He knows this will bring business and big fees.

This guy is not exclusive to criminal law.

Miss Empathy: She makes illogical arguments in court, makes ridiculous objections, and does long meaningless cross examinations. Worse, she can’t negotiate with the prosecutor and officers worth a darn. Her client "didn’t really mean to do it" and was "led astray by her friends" and is a nice boy who comes from a good God-fearing family." She believes this and is emotionally invested in her client. The problem is, she believed it for the last 300 clients just as strongly and nobody trusts her judgment. Because she tends to harass prosecutors and officers they try to avoid her if at all possible. At the end of the trial she’s out in the hall talking to Mom about her son’s jail sentence and she’s visibly more upset about it than Mom is; in fact, you’ll sometimes see family members trying to comfort and talk her down. Defendants, and their families, love her because she obviously cares so much.

and of course,

In the Glow: This guy is the partner, associate, or office sharer of a prominent lawyer. As such, he benefits from the Big Guy’s reputation. When people can’t afford Big Guy’s fee or need someone NOW and Big Guy isn’t available, they end up with this guy. After all, he’s connected to Big Guy and therefore the defendant’s going to get Big Guy’s experience at this lawyer’s rates (because this guy is going to talk to Big Guy and follow his advice). The they get to court and this guy is a civil attorney who dabbles in criminal law or a kid six months post Bar passage or they guy Big Guy keeps around out of loyalty because he gave Big Guy office space 20 years ago. Still, the defendant’s happy because he’s represented by someone out of Big Guy Law Offices (even if it’s not Mr. Big himself).

Feel free to nominate one of your own in the comments.

Finally: Welcome to the 2000s, SCOTUS!!! After 13 years of the same antiquated website, SCOTUS has finally upgraded its website to something that doesn’t look like it was made by a web production undergrad in 1997. Check out Legal Blog Watch to see the difference.