SBM Blog

2013: The Judges Who Won't Be Back

The list of 2012 retiring judges contains several judicial gems:

• James P. Adair, 31^st Circuit Court, St. Clair County
• Michael J. Anderegg, 52nd Probate Court, Marquette County
• Jack T. Arnold, 29^th Probate Court, Gratiot County
• Marylin E. Atkins, 36^th District Court, Detroit
• Vanesa F. Jones Bradley, 36^th District Court, Detroit
• Alfred M. Butzbaugh, 2^nd Circuit Court, Berrien County
• James R. Clatterbaugh, 78^th Probate Court, Shiawassee County
• Dennis C. Drury, 52-4 District Court, Oakland County
• Prentis Edwards, 3^rd Circuit Court, Wayne County
• Thomas S. Eveland, 56th Circuit Court, Eaton County
• John E. Fitzgerald, 60^th Probate Court, Montmorency County
• Carol Hackett Garagiola, 47^th Probate Court, Livingston County
• James M. Graves, Jr., 14^th Circuit Court, Muskegon County
• John D. Hamilton, 35^th Probate Court, Iosco County
• David A. Hogg, 84^th District Court, Missaukee/Wexford Counties
• Thomas Edward Jackson, 3^rd Circuit Court, Wayne County
• David L. Jordon, 54B District Court, East Lansing
• Marilyn J. Kelly, Michigan Supreme Court
• Richard J. Kloote, 58^th District Court, Ottawa County
• Nicholas J. Lambros, 50^th Circuit Court, Chippewa County
• Paula J. M. Manderfield, 30^th Circuit Court, Ingham County
• Thomas P. McLaughlin, 17^th Probate Court, Clare/Gladwin Counties
• Susan M. Moiseev, 46^th District Court, Southfield
• Melinda Morris, 22^nd Circuit Court, Washtenaw County
• Michael E. Nye, 30^th Probate Court, Hillsdale County
• Pamela Gilbert O’Sullivan, 50^th Probate Court, Macomb County
• Mark D. Raven, 53^rd Probate Court, Mason County
• Amanda L. Roggenbuck, 79^th Probate Court, Tuscola County
• Michael F. Sapala, 3^rd Circuit Court, Wayne County
• Daniel Sawicki, 44^th District Court, Royal Oak
• Thomas E. Shumaker, 75^th Probate Court, St. Joseph County
• Edward Sosnick, Oakland County Circuit Court
• David L. Stowe, 28^th Probate Court, Grand Traverse County
• William D. Welty, 3B District Court, St. Joseph County
• Frederick L. Wood, 12^th Probate Court, Branch County
• Richard Wygonik, 19^th District Court, Dearborn
• Carole F. Youngblood, 3^rd Circuit Court, Wayne County

Gun Control/Rights, Judicial Confirmation, And Reasoned Debate

If you enjoy healthy debate on legal and political issues, it's often worthwhile to check out Volokh Conspiracy after a meaty op-ed in the New York Times. The latest example is Linda Greenhouse's "The N.R.A. at the Bench," describing, and criticizing, the role of the National Rifle Association in the confirmation of Justice Sotomayor. Bottom line:

My point is this: It is totally unacceptable for the N.R.A., desperate to hang on to its mission and its members after achieving its Second Amendment triumph at the Supreme Court four years ago, to be calling the tune on judicial nominations for an entire political party. Free the Republican caucus.

Orin Kerr's Volokh Conspiracy post in response, "The Role of Advocacy Groups in the Judicial Confirmation Process," questions whether Greenhouse's view on the NRA's role in the judicial confirmation process is consistent with her view on the role of the NARAL Pro Choice America. Many of the comments are thoughtful additions to the debate.

About Gun Control and Mass Killings

From the unabashedly pro-Second Amendment law blog Volokh Conspiracy, a post recommending three pieces on the subject of gun control and mass killings, with somewhat contradicting views and a ton of comments:

• Top Ten Myths About Mass Shooting (Boston.com)
• Guns, Mental Illness and Newtown (Wall Street Journal)
• The Case for More Guns (And More Gun Control) (The Atlantic)

If you read The Atlantic piece, you should probably also read the follow up James Fallows' post, The Atlantic and the 'More Guns' Solution, and today's "The Pro Gun Movement Is Too Often Anti-Liberty."

Instagram Update: "Never Mind"

Instagram has relented on its brand new Terms of Use policy in the face of massive criticism. From the New York Times: "Instagram Does An About Face, Reverts to Previous Policy."

Civility Initiative Claims A Church-Defending Attorney

Hell fire and brimstone. In a feature story that says that disciplinary agencies throughout the country are starting to take incivility more seriously, "Dealing with the Costs of Incivility," ABA Journal recalls a  case of an attorney suspended by the South Carolina for 90 days for incivility. In response to a letter on zoning to his church-client, the attorney wrote:

You have been sent a letter by purported Town Manager Kenneth McIver.  The letter is false. You notice McIver has no Order. He also has no brains and it is questionable if he has a soul.  Christ was crucified some 2000 years ago. The church is His body on earth. The pagans at Atlantic Beach want to crucify His body here on earth yet again.

We will continue to defend you against the Town’s insane [sic].  As they continue to have to pay for damages they pigheadedly cause the church.  You will also be entitled to damages if you want to pursue them.

First graders know about freedom of religion.  The pagans of Atlantic Beach think they are above God and the Federal law.  They do not seem to be able to learn.  People like them in S.C. tried to defy Federal law before with similar lack of success.

The South Carolina Supreme Court order rejected both the "duty to represent zealously" and "the client made me do it" defenses:

It is clear from the record in this matter that Respondent sent the letter as a calculated tactic to intimidate and insult his opponents. Although Respondent maintains he used many of the words at the request of his client, the Church, Respondent cannot discharge his responsibility for his use of disparaging name-calling and epithets by simply stating he was asked to behave in this unprofessional manner by his client. 

Respondent has also justified his conduct by arguing that he has a duty to provide zealous representation. We agree that an attorney has an obligation to provide zealous representation to a client. However, an attorney also has a corresponding obligation to opposing parties, the public, his profession, the courts, and others to behave in a civilized and professional manner in discharging his obligations to his client. Legal disputes are often emotional and heated, and it is precisely for this reason that attorneys must maintain a professional demeanor while providing the necessary legal expertise to help resolve, not escalate, such disputes. Insulting and intimidating tactics serve only to undermine the administration of justice and respect for the rule of law, which ultimately does not serve the goals of the client or aid the resolution of disputes.

'The Judgment Day' Fresco On Western Wall Of Voronet Monastery, Suceava County, Moldova, Romania

June 7-16, 2013: Michigan Lawyer-Athletes, Save The Date

The 1st World Lawyers Games will take place in Umag, Croatia from June 7-16, under the auspices of the Croatian Bar Association. World Lawyers Games is an international  event for lawyers and legal assistants from all over the world. It is open to men and women of all ages, and has a full menu of contests, including soccer, tennis, golf, beach football, beach volleyball, basketball, badminton, table tennis, poker, darts, and chess (what, no cricket or croquet?). The purpose of the games is to give lawyers from all over an opportunity to compete, socialize, make new business contacts and friends, and participate in the charity tournament. Read more here. If you're interested in the possibility of a Michigan delegation, respond to [email protected].  If you want to know more traveling in that part of the world, I can personally attest to the beauty of the Croatian coast and the warmth of its hospitality.

Sure, It's A Lovely Diamond Present, But Is It Really The Brightest?

The WSJ Law Blog tells about a federal district case in Ohio that may shed some light on the subject: "Judge to Consider Zale's 'Most Brilliant' Diamond-Ad Claims."

FBI Forensics Scandal Extends To State Cases

A Washington Post story says that an FBI review prompted by a Post series on errors at the FBI crime lab suggests that thousands of criminal cases at the state and local level may have relied on exaggerated testimony or false forensic evidence to convict defendants of murder, rape and other felonies.

Crime, Guns, And Opportunism

An Adam Gopnik New Yorker piece, "The Simple Truth About Gun Control," is speeding its way through social media right now, at least among gun control proponents and their friends. Its premise, based on evidence from other countries, is this: gun control is an effective deterrent against killing sprees. Ross Douthat at the New York Times counters by comparing Gopnik's prescription to Prohibition.

The question of gun control and the Second Amendment aside, I wonder whether the following from Gopnik's piece generally rings true among those of us who are prosecutors and criminal defense lawyers:

As I wrote last January, the central insight of the modern study of criminal violence is that all crime—even the horrific violent crimes of assault and rape—is at some level opportunistic. Building a low annoying wall against them is almost as effective as building a high impenetrable one. This is the key concept of Franklin Zimring’s amazing work on crime in New York; everyone said that, given the social pressures, the slum pathologies, the profits to be made in drug dealing, the ascending levels of despair, that there was no hope of changing the ever-growing cycle of violence. The right wing insisted that this generation of predators would give way to a new generation of super-predators.

What the New York Police Department found out, through empirical experience and better organization, was that making crime even a little bit harder made it much, much rarer. This is undeniably true of property crime, and common sense and evidence tells you that this is also true even of crimes committed by crazy people (to use the plain English the subject deserves). Those who hold themselves together enough to be capable of killing anyone are subject to the same rules of opportunity as sane people. Even madmen need opportunities to display their madness, and behave in different ways depending on the possibilities at hand. Demand an extraordinary degree of determination and organization from someone intent on committing a violent act, and the odds that the violent act will take place are radically reduced, in many cases to zero.

One can only hope that the public policy debate on what to do in the aftermath of Sandy Hook proceeds with attention and a critical eye to relevant data and research. From the gun control opposition side Eugene Volokh at Volokh Conspiracy may soon get around to taking on Gopnik's piece directly if he carries through with his promise in "Why Not Just Make Guns Slightly Harder for the Bad Guys to Get?" Meanwhile, on the subject of crime and opportunism, Judge Richard Posner has just issued what Volokh calls a "very interesting concurring opinion" addressing the costs of long prison sentences.  The defendant in the case was convicted of a predatory sex crime; Posner observes "It is true that sex offenders are more likely to recidivate than other criminals, ... because their criminal behavior is for the most part compulsive rather than opportunistic." Like the Gopnik piece and the Volokh post, the whole opinion is worth a read. Download it here.

NY Appeals Court Upholds Dismissal Of Law School Job Stats Lawsuit

Continuing a trend, a NY appellate court has upheld a trial court decision dismissing a lawsuit against New York Law School. In March, federal district judge Gordon Quist of Michigan's western district dismissed a similar lawsuit, filed by the same lawyers as the NYLS lawsuit, against Cooley Law School. Quist's opinion lectured the plaintiffs about the importance of critical thinking in the law school application process; the NY appellate judge's opinion chose to lecture law schools themselves:

[I]t is important to remember that the practice of law is a noble profession that takes pride in its high ethical standards. Indeed, in order to join and continue to enjoy the privilege of being an active member of the legal profession, every prospective and active member of the profession is called upon to demonstrate candor and honesty. This requirement is not a trivial one. For the profession to continue to ensure that its members remain candid and honest public servants, all segments of the profession must work in concert to instill the importance of those values. “In the last analysis, the law is what the lawyers are. And the law and the lawyers are what the law schools make them.” Defendant and its peers owe prospective students more than just barebones compliance with their legal obligations. Defendant and its peers are educational not-for-profit institutions. They should be dedicated to advancing the public welfare. In that vein, defendant and its peers have at least an ethical obligation of absolute candor to their prospective students.

Bloomberg has the story; Above the Law has its usual polemical post on the subject.