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Wrongful Conviction: Update

Slate published an excellent Explainer today on compensation for wrongful conviction, highlighting some of the embarrassingly pitiful payments around the country.

Massachusetts has no yearly rate, either, but eight of its nine exonerees as of last month received the maximum sum of $500,000—including one who had served four years and another who served 19. Life is cheaper in Illinois, which wrote a check for $138,000 to Dana Holland, who was locked up for 10 years, and gave a scant $161,000 to Michael Evans, an Illinois man who spent 27 years behind bars before being cleared of wrongdoing.

The article identifies Justice: Denied as “the magazine for the wrongly convicted.”


Connecticut Legislature: $5M to Tillman for 18-Year Wrongful Conviction

James C. Tillman will receive a five million dollar check from the State of Connecticut after being exonerated by DNA evidence following 18 years of incarceration for a rape conviction. The state legislature unanimously passed a bill awarding the special compensation and Governor Jodi Rell said she will be honored to sign it.

Though money can never repair what was taken from Tillman, the $5M award is a worthy and commendable gesture. Unfortunately the absolved victims of wrongful incarceration are seldom treated so kindly:

A study by The Innocence Project found that only 37 percent of the wrongly convicted [nation wide] received any compensation at all from the government, and the compensation those few did receive was often woefully inadequate.

Society owes it to these most damaged and deserving victims to fully and generously address the inadequacy (chart) of compensation for the wrongfully convicted and imprisoned.


Supreme Court to 11th Circuit: We are reasonable, you are not. (Scott v. Harris)

Thoughts on police-chase case Scott v. Harris. Watch the police videos here.

The crucial question is whether the Deputy Scott’s act (running Harris off the road) was a reasonable seizure under the 4th Amendment, or whether it was unreasonable and therefore violated Harris’s 4th Amendment rights. The case is a short education on “summary judgment” – which the Supreme Court majority renders in favor of Scott by reversing the judgment of a three judge panel of the 11th Circuit and the original District Court Judge, all of whom denied summary judgment.

The reasonableness of an act is a question of fact for the jury – until a judge takes the determination out of the jury’s hands by deeming that “no reasonable jury” could find the act reasonable/unreasonable. When a judge makes that determination, he is deeming the act reasonable/unreasonable as a matter of law.

This is the only way to win by summary judgment – the evidence viewed in the light (with the inferences) most favorable to the nonmoving party must be such that no reasonable jury could find in favor of the nonmoving party. Thus, there being no genuine issue (relevant disputed fact) for trial, summary judgment is appropriate.

Justice Scalia concludes his summary judgment discussion, writing:

When opposing parties tell two different stories, one of which is blatantly contradicted by the record [the video], so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Slip Opinion, Opinion of the Court @ 7.

But whether a party’s “story” is “blatantly contradicted by the record” is a determination of factScalia’s own determination of fact. Disagreeing with Scalia’s decisive personal feelings about the facts are the District Court Judge, the Eleventh Circuit’s three judge paneland Justice Stevens. Based on their differing view, these judges conclude that summary judgment is inappropriate and the jury should decide the case.

Justice Stevens, in his solo dissent, skewers Scalia and the majority perfectly, writing:

If two groups of judges can disagree so vehemently about the nature of the pursuit and the circumstances surrounding that pursuit, it seems eminently likely that a reasonable juror could disagree with this Court’s characterization of events. Slip Opinion, Dissent @ 8.

The majority Justices seem too comfortable with their own fact-finding prowess, branding fellow sitting judges and potential jurors unreasonable for their actual and potential disagreement. You are unreasonable, I am not.

Isn’t this is exactly the sort of disagreement of perception that should make denial of summary judgment automatic: eminently reasonable people steeped in the law have already disagreed in interpreting the facts?

What’s your opinion?


Are CEOs Overpaid?

Recently, it was reported that eBay’s President and Chief Executive Officer Meg Whitman received over $11 million in compensation last year. In contrast, departing Delta Airlines Cheif Executive Officer Gerald Grinstein refused roughly $10 million in bonuses, citing the overinflated nature of corporate pay packages. What would you do in either person’s shoes?

See the articles at:

The Real ID Act of 2005

For many years the state issued driver’s license has been used as the de facto standard for identification in America. Unfortunately, the process of issuing driver’s licenses varies from state to state and is not perfect in any state. Historically, the process of issuing driver’s licenses to citizens has been subject to complaints of long waits at crowded state motor vehicle offices; high expenses for the state agencies; etc. As a consequence of such complaints, the states have lengthened the term of a license before renewal is required, simplified the procedure of renewal using the internet, and otherwise altered the process to politically accommodate the public. Unfortunately, it is now clear that there may well be terrorists in the midst of the general public who will take advantage of the laxity in most state licensing process and obtain fraudulent driver’s licenses and ID Cards. The Final Report of the 9/11 Commission notes that the 9/11 terrorists had fraudulently obtained valid driver’s licenses and ID Cards. The Real ID Act (RIDA) for the first time establishes a set of minimum federal standards for authenticating and securing the entire driver’s license process. Congress passed the Real ID Act and it was signed into law by President Bush on May 11, 2005. 

The RIDA establishes new procedures for identity verification as a precondition to acceptance of the state driver’s license for identification for “federal purposes” such flight on commercial airlines, entry to nuclear facilities, etc. RIDA requires: proof of identity, date of birth, principal residence address, social security number, and “lawful presence” in the United States. 

What does this mean for the average citizen?

Would Stricter Gun Control Laws Have Prevented the Virginia Tech Massacre?

All over the world, people are expressing their opinions about U.S. gun control policy. On Tuesday, April 17th, 2007, Senate Majority Leader Harry Reid cautioned against a “rush to judgment” on stricter gun control. Do you more lives would’ve been saved if the VT students had been armed? Should medical records be used to determine whether a person has a mental instability that disqualifies them from access to guns? Where do you stand on the issue?




Justices Align Strangely in 5-3 Assertion of Federal Sovereignty

Some observations from Watters vs. Wachovia Bank, N.A. 

The United States Supreme Court, in a 5-3 decision, held today that Wachovia Mortgage Company – a wholly-owned subsidiary of Wachovia National Bank – is considered, in essence, part of the Bank governed solely by the National Bank Act. The State of Michigan’s efforts to deem the subsidiary “not a National Bank” and to regulate it under state law were rebuffed by the doctrine of federal preemption.  

Watters is a dry business case on the surface, but just underneath the skin are several items of interest. Primarily, it is a victory for federal sovereignty in the perpetual clash for supremacy against the States. The legal terrain seemed favorable to a federal win, but remarkably, the split among the Justices shows the outcome was not a foregone conclusion.

Justice Ginsburg delivered opinion of the Court, joined by usual swing-voter Kennedy, Souter, Breyer and – notably – Alito, defecting from his more senior conservative cohorts. Just as strange, Justice Stevens – normally a member of the Court’s liberal bloc – sided with Alito’s erstwhile masters Roberts and Scalia (Thomas did not participate) and delivered a pointed dissent joined by the conservatives. Peculiar?

Ginsburg wrote that the subsidiary company fell properly under the statutory authority of the National Bank Act, all properly flowing from the Constitution’s direction that the Congress govern federally chartered banks. The regulations issued under the Act by the Office of the Comptroller of the Currency (OCC) were necessary and proper. One wonders how the case made it so high, if the resolution was so simple.  

Stevens enlightened us. He wrote that Wachovia was trying to take advantage of the system, and should not be allowed to do so. The subsidiary was not a federally chartered National Bank, but rather an entity created and existing under state law. It was unfair to require non-federal mortgage loan companies to comply with state regulation, but give the Wachovia-affiliated company a free pass. This arguably anti-competitive arrangement threatened the very existence of the state-only entities. Stevens stated his case of how this should pan all out under the law. Essentially, the OCC’s regulations were not clearly authorized by the Act, and therefore a standard presumption against “preemption” should prevail. Despite his efforts, Stevens was only able to convince the typically states-rights oriented conservatives, sans Alito.

Even the Tenth Amendment, constituting Michigan’s fall-back position, was hauled out into the daylight for a few brief comments by both sides. Ginsburg dismissed the argument on very ordinary grounds:

As we have previously explained, “[i]f a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States.” New York v. United States, 505 U. S. 144, 156 (1992). Regulation of national bank operations is a prerogative of Congress under the Commerce and Necessary and Proper Clauses. See Citizens Bank v. Alafabco, Inc., 539 U. S. 52, 58 (2003) (per curiam). The Tenth Amendment, therefore, is not implicated here.

But Stevens, while agreeing with Ginsburg’s result, had an interesting take on the Tenth Amendment claim:

I agree with the Court that the Tenth Amendment does not preclude the exercise of that power. But the fact that that Amendment was included in the Bill of Rights should nevertheless remind the Court that its ruling affects the allocation of powers among sovereigns. Indeed, the reasons for adopting that Amendment are precisely those that undergird the well-established presumption against preemption. 

So why did Stevens and Alito flip? How does their flip interface with their previous decisions? Doubtless there is a pattern here. If I spot an article explaining this, I’ll post an update. If any veteran Court-watcher can explain, please comment. 


Student’s MySpace Posting Is Protected Speech

The Indiana Court of Appeals recently ruled that a minor student’s expletive-laden criticism of her school principal on a MySpace page was protected political speech under the First Amendment. The student, identified only as A.B., posted the comments regarding the school’s policy on body piercings, which prompted the state to file a delinquency petition.

The state alleged that the comments would amount to harassment, identity theft, and identity deception if posted by an adult. The Putnam Circuit Court judge held the comments were obscene, found A.B. to be delinquent, and sentenced her to 9 months of probation. On appeal, A.B. argued the comments were protected political speech since they dealt with school policy. The Indiana Court of Appeals overturned the lower court ruling, finding it to be protected free speech under the First Amendment.

How far do you think this will go? Will students now be allowed to respond with profanities when teachers try to enforce other policies, such as not talking in class, arriving on time, and other policies?

Inside Student’s MySpace Posting Is Protected Speech