Tag Archive for 'supreme court'

A Murdered Wife’s Letter is Not Harmless to a Jury Verdict

Late last year, a Wisconsin murder trial made its way up to the state Supreme Court over a single piece of evidence. Mark Jensen was on trial for the murder of his wife Julie and the jury returned a verdict finding him guilty and charging him with framing the murder as a suicide. During the trial, the court allowed the prosecution to enter into evidence a handwritten letter by Julie dated just two weeks prior to her death. In that letter, Julie states she would never take her own life and if she were to be found dead, her husband would be the main culprit. The Jensens

Wisconsin Court of Appeals: Admitting Letter was a Harmless Error

The case moved up to the Wisconsin Court of Appeals to determine whether that evidence should have been admitted at all. Jensen argued the evidence violated his constitutional right to confrontation, which grants all accused the right to face adverse witnesses. In this case, Julie’s letter was admitted into evidence but Mark clearly could not face her in court and have her cross-examined. Although the Court of Appeals agreed that the letter should not have been admitted into evidence, it maintained that the letter was a “harmless error” because the verdict would have come back as guilty regardless of whether the letter was admitted or not. The Court of Appeals stated because there was enough evidence admitted by the prosecution to return a guilty verdict, allowing the letter as admissible evidence was a “harmless error” in retrospect.

Wisconsin Supreme Court: Court of Appeals has it all Wrong

The State Supreme Court felt differently and held the Court of Appeals was unreasonable in their application of the “harmless error” standard. The Supreme Court stated the lower court had applied the standard completely wrong and that it should not have been looking to whether the prosecution had admitted sufficient evidence beyond the letter to return a guilty verdict regardless. Rather, the harmless error standard considers whether the letter had a substantial and prejudicial effect on the jury verdict. The Supreme Court held in this case, it clearly could have.

Whether Julie’s letter was true or false, the contents without a doubt influence the jury to believe that Mark was her murderer because of its decisive tone and the fact it was written by the victim herself. However, there’s also a chance the contents were a lie written in anger and impulse, or even a really bad joke. Regardless of whether the statement was true or false at the time it was written, the fact of the matter is Julie could not be around to testify as to the contents and Mark could not have asked her questions about the nature of the letter as he would with any other adverse witness during cross-examination. Therefore, the jury was naturally tipped toward returning a guilty verdict for Mark and Mark could not fully defend himself as to that particular piece of evidence.

Because of these issues, the Wisconsin Supreme Court held allowing the letter as evidence was in fact not “harmless” at all and reversed the Court of Appeals’ decision.

Hawaii’s Marijuana Dispensary Law Faces Legal Ethics Challenge

Last week, the Disciplinary Board of Hawaii’s Supreme Court issued an opinion that limits the role that lawyers can play in the bourgeoning medical marijuana dispensary industry. The opinion states that a lawyer can advise a client on the legality of marijuana production and distribution under state and federal law. A lawyer may also choose to advocate for changes in state and federal law on this subject. However, a lawyer may not provide legal services to help create or operate a medical marijuana business, as it is illegal under federal law. In other words, Hawaiians who wish to open a marijuana-related business cannot consult with a lawyer as part of the process.  Marijuana Scales

As states experiment with the legalization of marijuana, each will have to make a decision about how the legal profession will play a role, and how to navigate the conflict between state and federal law. Hawaii’s decision is the latest in a long line of marijuana-friendly states’ interpretations of professional ethics rules.

Marijuana in Hawaii

Hawaii legalized medical marijuana some 15 years ago, but only recently enacted a law that would license marijuana dispensaries for patients. The new law is fairly limited. It will set up a state-wide dispensary system with a total of up to 16 dispensaries. These dispensaries are not inexpensive ventures; the new law will require potential licensing candidates to have at least $1.2 million in the bank. The dispensaries will be resupplied with support from production centers around the state.

Under the latest Disciplinary Board opinion, individuals who wish to set up dispensaries or production centers are not entitled to legal advice or assistance beyond counseling on the validity, scope, and meaning of the new law.

Reasons for the Hawaii Disciplinary Board Decision

Hawaii’s Disciplinary Board cites two main reasons for its decision:

First, the Board is concerned by the fact that Congress has not amended federal law; nationally, marijuana is still illegal. The Ethics Board recognizes that the Department of Justice and Congress have both allowed the enforcement of marijuana-related laws to decline. However, the opinion also notes that this is not a permanent federal stance.

Second, the Board observes that the Hawaii Supreme Court has not amended the rule of professional conduct that applies to client conduct that is illegal under federal law. The rule currently states that “a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, and meaning of the law.” This type of rule exists in all states. However, the rule has been modified in some states to account for conflicts between state and federal law over marijuana.

Legal Ethics in Other Marijuana-Friendly States

Hawaii is not the only state in which medical marijuana laws have caused ethical conflicts. The Maine Professional Ethics Commission has also restricted the role of attorneys in marijuana law. In Maine, the Rules of Professional Conduct for attorneys distinguish between “presenting an analysis of the legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.” Maine lawyers are thus prohibited from assisting clients in forming medical marijuana enterprises.

Other states have also wrestled with the conflict between the public need for good, reliable legal advice and the furtherance of illegal activities. The Colorado and Nevada Bars have amended their ethics rules with a comment that allows lawyers to provide advice and services so long as they also advise about federal laws (making it clear that marijuana is not completely legal). The Washington Bar has allowed lawyers to provide services “at least until” the federal enforcement policies change.

What Will Happen in Hawaii?

Unfortunately, the public suffers when legal assistance is not available on topics of state law. A lack of legal counseling will not prevent individuals from setting up marijuana dispensaries or grow houses. The absence of legal counsel, however, prevents marijuana dispensaries from making some educated legal decisions that conform to the letter of Hawaiian law. It may also make the process of applying for a state license more difficult and time-consuming than it would otherwise be.

It is also possible that the Hawaiian Supreme Court will take a hint from this opinion and change their legal ethics rule to allow more attorney participation in marijuana law. This would be following in the footsteps of most other states that have partially legalized marijuana.

Failure to Hire Due to Religious Attire

When 17-year-old Samantha Elauf applied for a job at Abercrombie and Fitch in 2008, she was not hired even though she received a high score during the interview process. The assistant manager who conducted the interview thought she was qualified, but the manager was concerned that Elauf’s hijab would be in violation of the company’s “Look Policy.” The policy did not permit caps to be worn. After communicating with her district manager about the issue, the assistant manager agreed to lower Elauf’s score because Elauf wore a hijab.

The Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Elauf as a result of being denied a position at the retail store in Tulsa, Oklahoma. A district court ruled in her favor, granting the Muslim teen damages in the amount of twenty thousand dollars. However, the decision was reversed by the Tenth Circuit Court of Appeals, which held that an employer is free from liability for neglecting to “accommodate a religious practice” if a potential employee had not requested the accommodation. Samantha Elauf, Majda Elauf, P. David Lopez

However, the Supreme Court sided with Ms. Elauf in an 8-1 decision, with Justice Thomas the lone dissent. Justice Antonin Scalia spoke on behalf of the high Court when he said “an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

Moreover, during oral arguments, Justice Samuel Alito stated that the managers at Abercrombie could have questioned her as to whether she would wear the head scarf while at work for religious reasons. But they did not ask her this question. Instead, they made the assumption that she wore the scarf as part of her religious practice, and refused to hire her for that reason.

Dress Codes Cannot Violate Civil Rights

While it is acceptable for an employer to have a dress code, it is unconstitutional for an employer to discriminate against someone because of religious practice. For instance, if an employer terminates, or refuses to hire, someone because of their religious practice, and does not even attempt to accommodate them, then that counts as discrimination under Title VII of the Civil Rights Act of 1964.

Given Abercrombie’s reputation for exclusivity in its hiring and marketing practices, it is unsurprising that the store refused to hire someone because of her religious practice of wearing a hijab. Nevertheless, the managers should have realized that such a denial was a form of discrimination, and in violation of the law.

However, the company seems to be leaning towards becoming more inclusive, especially in light of a prior class-action discrimination lawsuit, which alleged that Abercrombie discriminated against minorities, including African-Americans, Latinos, and Asian-Americans, in its hiring practices and its marketing. In fact, just this past April, the company stated that it would be more “inclusive and diverse” in its hiring methods, and adopt a “more individualistic” dress code.

Supreme Court to Decide If States Can Ban Same-Sex Marriage

It’s happening, whether you like it or not. In 2013, Justice Scalia predicted that the Supreme Court’s decision to invalidate the federal law banning recognition of same-sex marriage would inevitably lead to a Court decision invalidating state laws banning same-sex marriage. Two years later, Scalia’s prophecy has come true.

EP-141009361The Supreme Court has agreed to hear four cases that would decide if states can ban same-sex marriage. The decision will be announced in June. If the Court finds against the state bans, then same-sex marriage will be legal everywhere in the United States.

The cases themselves are a mixed bag of issues. One couple was wed in New York in 2011 and went to Ohio in 2013 to adopt a child. Ohio refused to list both men on the birth certificate, citing a state law that limited parentage to one father because Ohio only recognized marriages between one man and one woman. In Michigan, a lesbian couple sued to have their relationship recognized so that they could adopt each other’s children if one of them passed away. The third couple met and was married in New York, but Tennessee refused to recognize their marriage when they moved to the state for work. The last couple was married in California, but the men moved to Kentucky to adopt children.

The Court has combined the four cases to address two questions:

  1. Does the 14th Amendment require states to recognize marriages between two men or two women?
  2. Does it require states to recognize a same-sex marriage that was lawfully performed in another state where such marriages were legal? The four cases come from the Sixth Circuit, which decided 2-1 that the authority to legalize same-sex marriage comes from voters, not the courts.

The Path to Recognition

Most commentators (including yours truly) would be shocked if the Court found against same-sex marriage. It is possible that the Court would rule against same-sex marriages, but precedent makes that unlikely. The Court only recently announced that the federal government cannot distinguish between same-sex and heterosexual marriages. The main question is how the Court will make the decision. Here are a few ideas on how the Court could go about doing that:

  • Discrimination based on sexual orientation – this is the main argument being pushed, but sexual orientation has not officially been recognized by the Court as a protected class.
  • Discrimination based on sex – Old fashioned sexism is an idea the Court has dealt with before. The logic is a little flawed though because states that ban same-sex marriage prohibit both men and women from entering into a same-sex marriage.
  • Right to Marriage – This right has been well established from interracial marriage cases. However, recognition of same-sex marriage based purely on a right to marriage would limit other rights that homosexuals could have.
  • Full Faith and Credit – This clause in the Constitution is suppose to require that states recognize contracts, including marriages, formed in other states. If the Court fails to legalize same-sex marriage throughout the country, states that ban same-sex marriage may still be required to recognize same-sex marriages from other states.

The details of how the Court recognizes same-sex marriage is important. As mentioned, if the Court only recognizes a right to marriage without equal protection, then states can enact other laws restricting same-sex couples. Many businesses, such as wedding photographers and bakeries, are already refusing to serve same-sex couples.

It’s also important to realize that even if the Court rules that same-sex marriage is legal throughout the United States, states will still resist. Many states are preparing laws in anticipation of such a decision. Oklahoma has proposed a law that would allow parents to take their children to gay conversion therapy. Similarly, South Carolina has proposed a bill that would allow government employees, including judges and court clerks, to opt out of issuing marriage licenses if issuing such licenses would violate their religious beliefs.

The battle over same-sex marriage might soon be over, but the war over homosexuality may yet continue in conservative states.

Police Power Expanded by the Supreme Court

Massive protests have recently spread throughout the nation, expressing outrage at police brutality and the murders of unarmed suspects Michael Brown and Eric Garner.

police powerIn the wake of these protests, on December 15, 2014, the U.S. Supreme Court increased police power and granted officers more discretion when making an arrest. The case involved a traffic stop conducted by North Carolina officer Matt Darisse. After noticing that a right brake light of a car owned by Nicholas Heien, and driven by Mayor Havier Vasquez, the officer decided to pull the vehicle over. However, having a non-working right brake light is not in violation of the North Carolina traffic code. After pulling over the vehicle, Darisse issued a warning for the light but, somehow, convinced Heien to authorize a voluntary search of his car. Officer Darisse later admitted that he pulled over the vehicle, not because of the brake light, but because he thought Vasquez appeared “stiff and nervous,” insofar as he was “gripping the steering wheel at a 10 and 2 [o’clock] position, looking straight ahead.” The driver, Vasquez, is Latino.

After conducting the search, the officer recovered a bag of cocaine. Both Heien and Vasquez were charged with drug trafficking. The legal question presented to the Supreme Court was whether the officer’s mistaken belief about the law constituted a valid stop. If the Court had decided in the negative, the stop violated the defendant’s 4th amendment rights against search and seizure.

Normally, mistake of law is never a defense for those charged with a crime. The question stands, should the officer’s ignorance of the law remain a justification to legally search a suspect’s car, if they have reasonable suspicion? The Supreme Court decided, yes, the officer can mistakenly believe there is a violation of the law. Therefore, even though the defense of “mistake of law” is unavailable to a defendant charged with a crime, it is readily available to an officer who makes an arrest based on their ignorance of the law. There are many concerns with the ruling including an officer’s potentially lying that they made a mistake, when they really knew the offense was not a violation of any law.

The Supreme Court ruling appears to be directly in violation of the “fruit of the poisonous tree” exception, applied to criminal arrests. This doctrine makes an arrest invalid if it is the direct result of an illegal search. The law states that is that if the source (the “tree”) of the evidence is tainted, then anything gained (the “fruit”) from it is also tainted. The arrest will likely not stand up in court.

It has long been established that, in this type of situation, a suspect’s 4th amendment rights are violated. For example, if a police officer searches a home without a warrant and takes some property as evidence, it is an illegal search. That evidence will be thrown out of court, unless the officer can demonstrate that this evidence could have been obtained by other means.

Furthermore, there are many concerns of the law allowing the police to use stereotyping and racial bias in a search. One of the amicus curiae briefs, filed by the Rutherford Institute, in the Heien case addressed race and ethnicity and the Fourteenth Amendment’s equal protections afforded to criminal defendants. The brief argued that this ruling will allow the police too much discretion in their interpretations of the law, which will inevitably lead to negative impacts on minorities.

Studies have long shown that African Americans and Hispanics are much more likely than whites to be searched, despite constituting a much lower percentage of the population. Studies have also shown that here is an innate psychological bias against minorities within many police departments, based on high crime in low income neighborhoods. In fact, in New York City a number of officers, who fall into a minority classification, recently expressed that they fear white police officers when undercover.

History shows that dictatorships have allowed the police to misuse their power and even carry out criminal acts, with no consequences. The institutionalized racism and classism was all too apparent in countries run by dictators. However, the United States is a democracy. Nonethless, confrontations between the police and those of lower income brackets, are often the stage for violence that ensues between the two.

The police, who are obviously in a position of power, often overreact when making an arrest, soliciting a voluntary search or extracting a confession of a person that they perceive as guilty. In no way am I suggesting that the police force of any city is, as a whole, racist and classist. However, it is inevitable that racism occurs when profiling suspects and these occurrences have resulted in unjustified arrests. Recently, potentially unnecessary arrests have actually resulted in the death of an unarmed suspect who was not physically resisting, for something as minor as selling single cigarettes on a street corner.

The type of unfettered police discretion, granted by the Court in the Heien ruling, has proven to have devastating consequences on both minorities and even the police. After the death of Garner, caused by a chokehold banned by the NYPD, a man murdered two police officers on the streets of New York. He apparently had expressed his anger on social media about the deaths of Mike Brown and Eric Garner. Much of the mainstream media, as well as the NYPD union spokesman, linked the murders to the protests of police brutality throughout the City. However, they minimize the fact that the suspect had a history of mental illness.

The majority of people in opposition to police brutality do not advocate for the murder of police officers. To the contrary, many of the social media posts from the left state that “all lives matter” and condemn the murders. We must not confuse the two situations. Murder, of any person, is wrong. In fact, the daughter of Eric Garner attended the memorial of the murdered officers to show her support to their families. However, the relationship between the police and the community must change. A mutual respect must be established and racial profiling needs to be replaced by the motto of “protect and serve”, as opposed to unfettered police discretion, based on racial profiling. However, the Heien decision will allow these potentially illegal searches and arrests to stand up in court and give the police too much discretion in the handling of suspects.