Bar & Bench - westmichiganfederalbar.org · the corner and Fitzsimmons’s political opponent immediately criticized his handling of the case, ... Heavily tattooed, ... It has been

President’s Letter

Vol 23, No.2 November 2010

Table of Contents

Ray Kent, President, Federal Bar Association, W.D. Michigan

On February 25, 1983, eleven-year-old Jeanine Nicarico was abducted from her home in Naperville, Illinois, raped and murdered. Two days later, hikers found her body in a nearby DuPage County nature preserve. Police formed a task force to investigate the crime.

Police received an anonymous tip implicating Alex Hernandez, a mentally impaired resident of neighboring Aurora, Illinois, with a history of petty crimes. Police interviewed Hernandez. He initially refused to talk, then told a series of conflicting and confusing stories in which he claimed to know about Jeanine’s murder. Hernandez eventually claimed that he was there when Jeanine was murdered and implicated two of his friends, Rolando Cruz and Steven Buckley.

Detectives interviewed Cruz. He too gave a jumbled account in which he said that he knew who killed Jeanine. While no record of the interview could later be found, the detectives claimed that Cruz described a “vision” he had of the crime, including facts that could only have been known by the killer. Stephen Buckley refused to talk.

In January 1984, the DuPage County prosecutor, Michael Fitzsimmons, announced that police lacked sufficient evidence to charge anyone with the crime. The election for prosecutor was around the corner and Fitzsimmons’s political opponent immediately criticized his handling of the case, igniting a firestorm of public controversy.

Less than sixty days later, Fitzsimmons obtained indictments against Cruz, Hernandez and Buckley for kidnapping, rape and murder. Police had no physical evidence linking Cruz, Hernandez or Buckley to the crime. Buckley had made no statements, but police hired a forensics expert who claimed that she could positively match a boot belonging to Buckley to a boot print on the Nicaricos’ front door.

President’s Letter .............................1

Peter Munoz Welcomed as New U.S. Marshal ................................4

Knowing What We’ve Got ................5

Padilla v. Kentucky: Criminal Defense Attorneys Must Warn Non-Citizen Clients of the Risk of Removal ..................................7

Longtime Probation Officer Richard Anderson Dies .............11

Supreme Court Rejects “Indefensible” De Minimis Injury Rule for Excessive Force Claims .............................12

Western District Holds Hearings at Cooley Law School ...............15

Book Notes: Law of Attraction .......16

2 Bar & Bench November 2010

President Raymond S. Kent

President-ElectKatherine Smith Kennedy Vice-President/Operations Ronald M. Stella

Vice-President/Programs Jennifer McManus

Secretary Sarah Riley Howard

TreasurerRonald G. DeWaard

Newsletter EditorJoseph A. Kuiper

Hillman Steering Committee ChairmanRoosevelt Thomas

National DelegateKevin O’Dowd

Immediate Past President Timothy P. VerHey

Ex Officios Honorable Hugh Brenneman, Jr.Honorable Joseph Scoville

Your Western Michigan Chapter Federal Bar Associationwww.wdfba.org

The trial was set for early 1985. In December 1984, one of the lead detectives charged with investigating the case resigned in protest over the prosecution of Cruz, Hernandez and Buckley whom he believed to be innocent. The detective ended up testifying for the defense. Despite his testimony, the jury convicted Cruz and Hernandez, but deadlocked on Buckley. The trial judge sentenced Cruz and Hernandez to death.

Cruz and Hernandez appealed and the Illinois Supreme Court reversed their convictions, finding that they should have been tried separately. The cases were set for retrial in 1990. In the meantime, the prosecution’s forensic footprint expert died. Left with no evidence, prosecutors elected not to retry Buckley. Shortly thereafter, the American Academy of Forensic Science debunked the expert’s claim that she could positively match Buckley’s boot with the print on the Nicaricos’ door.

In 1989, as the state prepared for the retrials of Cruz and Buckley, I was working as a third-year lawyer at a Chicago law firm. One of my classmates asked if I wanted to help on a pro bono matter being handled by her uncle, a prominent Chicago criminal defense lawyer. Anxious to escape the warehouse full of documents I was reviewing, I jumped at the chance and became a member of the Rolando Cruz defense team.

I was tasked with researching and writing a motion requesting judicial immunity for Brian Dugan. Dugan was serving two life sentences plus 200 years in Illinois prison for two murders and five rapes, including the rape and murder of seven-year-old Melissa Ackerman in 1985. Dugan’s lawyers had approached prosecutors before the first Cruz trial and told them that Dugan would plead guilty to the abduction, rape and murder of Jeanine Nicarico in exchange for the state’s agreement not to seek the death penalty. Prosecutors rejected the offer. Dugan’s lawyers told us that he would testify in our trial that he had committed the crime alone if granted immunity from the death penalty.

Your friends who are prosecutors will tell you that a witness receiving immunity at the request of the defense is not the way the system is supposed to work. And it is not the way it worked for Mr. Cruz. Despite the many hours I spent researching the law and reviewing the evidence, the trial judge denied my motion without argument.

The case went to trial without Dugan’s testimony. There were a half dozen eager young lawyers from my firm in the courtroom. All of them firmly believed that Cruz was innocent. I did not.

Looking back on it now, I am not sure why. I met Cruz several times. His appearance and demeanor didn’t help. Heavily tattooed, he fit the image of “wise-cracking street punk” hung on him by the press at the time. Although I had reviewed a mass of evidence about Cruz and Brian Dugan— including Dugan’s chilling account of the murder of Melissa Ackerman—in the end, I guess it just came down to a gut feeling that Cruz was guilty.

President’s Letter Continued form page 2


The case went to the jury. The jury found Cruz guilty and the trial judge again sentenced him to death. The second trial of Hernandez ended in a hung jury. The state tried Hernandez a third time. He was convicted and sentenced to 80 years in prison.

Cruz and Hernandez both appealed and their convictions were again overturned. Prior to the start of Cruz’s third trial, Northwestern University professors and students arranged for DNA testing of evidence from the crime scene. The results of the testing excluded both Cruz and Hernandez as suspects. The state still refused to dismiss. At Cruz’s third trial, a sheriff’s lieutenant admitted that he had lied under oath about Cruz making the “vision” statement. At the close of the prosecution’s case, the trial judge directed a verdict of not guilty. After nearly ten years on death row, Rolando Cruz was released from jail. The state later dismissed all charges against Alex Hernandez.

In 1996, three DuPage county prosecutors and four sheriff’s deputies were charged with perjury and obstruction of justice for their roles in the repeated wrongful convictions of Cruz and Hernandez. In 1999, the “DuPage Seven,” as they came to be known, went to trial. They were all acquitted. A year later, Cruz, Hernandez and Buckley reached a $3.5 million civil settlement with the county. The same year, the governor of Illinois declared a moratorium on executions in the state and later pardoned Cruz based on his actual innocence.

Finally, in July 2009, more than fifteen years after the fact, Brian Dugan pleaded guilty to the murder of Jeanine Nicarico. Four months later, he was sentenced to death. Dugan now sits on death row, awaiting execution by lethal injection.

What lessons can we take from this story? One lesson might be don’t give up. Without the dogged perseverance of dedicated lawyers like Jed Stone (my colleague’s uncle) and Lawrence C. Marshall (who ultimately got Cruz released) through three trials and numerous appeals, stretching over a decade, the State of Illinois would have executed an innocent man.

Another lesson might be to keep an open mind. Once police and prosecutors fastened on Cruz, Hernandez and Buckley, they refused to look elsewhere—even when one of their own resigned in protest. Despite refutation of their forensic expert’s science, they persisted. Even when DNA evidence excluded the defendants as suspects, they pushed ahead. And when the real killer offered to confess, they still pursued innocent men.

What I take from the story is that sometimes we’re just plain wrong. It was wrong for the prosecutor to bow to political pressure in his decision to charge Rolando Cruz. It was wrong for police to concoct the “vision” statement in an effort to obtain a conviction. It was wrong for the forensic expert to testify that she could positively match Buckley’s boot to a print on the Nicaricos’ front door. It was wrong for prosecutors to disregard Brian Dugan’s efforts to confess. It was wrong for the State of Illinois to put Cruz on trial for his life three times for a crime he did not commit. It was wrong for Cruz to spend nearly ten years on death row. I was wrong when I concluded that Cruz was guilty.

Perhaps all these mistakes shouldn’t be surprising. We humans are, after all, by our very nature, flawed. Some of us more so than others. The killing of another person is sometimes necessary: in self-defense, in defense of others, on the battlefield. But the detached and calculated taking of a human life as punishment, by creatures as fallible as we, is folly. Let us resolve as a society not to take that which we cannot restore. Because, after all, sometimes we are just plain wrong.

It has been a privilege to serve as your president this past year. Thank you all for the opportunity. I am very excited about the coming year and the leadership of Katherine Smith Kennedy, our long-overdue, first woman president. Kathy and her team are already hard at work putting together an exciting program of events for next year, culminating in the Bench Bar conference at Shanty Creek, September 30 to October 2, 2011. Hope to see you there.

Ray Kent, President


A welcoming and swearing-in ceremony was held on June 14, 2010 for new Western District U.S. Marshal, Peter Munoz. Mr. Munoz was nominated by President Obama and is the 24th U.S. Marshal to have served in this district. The ceremony was held at the federal courthouse in Grand Rapids, with Chief Judge Paul Maloney presiding.

In his remarks, Chief Judge Maloney provided a brief history of the U.S. Marshal’s service, which was created by the Judiciary Act of 1789, the same legislation that established the federal judiciary. The District of Michigan was established in 1836, shortly before Michigan became a state, and was divided into the Eastern and Western Districts in 1863. Osmond Tower, appointed in March 1863, was the first U.S. Marshal to serve in the Western District.

In 1870, the Marshal Service became a part of the new Department of Justice, which was created the same year. The role of the Marshal Service has evolved over time, and now includes many different functions, including courthouse security, fugitive apprehensions, prisoner and alien transportation, the Special Operations Program, and the Witness Protection Program.

Marshal Munoz comes to his new position with many years of law enforcement experience. He holds a

Bachelor of Science Degree from the University of Detroit, and is a graduate of the 187th session of the FBI National Academy. Before being nominated as Marshal, Mr. Munoz served 31 years with the Michigan State Police, starting out as a trooper in 1978 and rising to numerous command positions. He served in State Police posts in Flat Rock, Detroit, Ypsilanti, and Adrian. In 1995, he transferred to the First District in Lansing, where he served as Assistant District Commander and, later, District Commander. In 2003 he was promoted Deputy Director

in charge of the Field Services Bureau, and in June, 2006, Governor Jennifer Granholm appointed him to the cabinet level position of Director of the Michigan State Police, the 16th director in the 93-year history of the Department. As Director, he also served as State Director of Emergency Management and as Michigan’s Homeland Security Director.

After the swearing in, Chief Judge Maloney stated: “I know that I speak for all the judges of our district in welcoming you, sir, to your new position and wishing you only the best. You lead a group of dedicated men and women focused on the mission of the Marshal Service, and I have every expectation that you will serve our district with distinction.”

Peter Munoz Welcomed as New U.S. Marshal

Peter Munoz and Chief Judge Maloney


“You don’t know what you’ve got until it’s gone.” Recent events have reminded me of my personal experience with this saying. I have come to know, and learned to appreciate, certain rights I have because I once lived without them. I was born in Kabul, Afghanistan, in the early 1970s at a time when Afghanistan was, unlike today, a rather stable society. Despite my youth, I soon became keenly aware of the limitations of living without what I now know as my constitutionally-protected rights.

As the Soviet Union was busy expanding its empire and reaching out to the hearts and minds of the Afghan population, the Afghan government was attempting to avoid becoming the next pawn in the Cold War. The government’s efforts included suppression of unfriendly speech. As a consequence, every so often, we would hear of people who had either disappeared or were jailed for political reasons. Unpopular speech was anything but free.

Our nightmares about communism became a reality overnight when a group of communists escaped from jail and overthrew the government in a typical, Cold War-era coup. The night of the coup, my family huddled in our living room hoping that we would make it through the night. We could hear the sounds of gunfire and tanks in the streets. Following the coup, to an even greater degree than we had experienced before, the communist government undertook efforts to suppress any voice of opposition. My father, a former economics professor, was adamantly opposed to communism. And in the months that followed, we lived in constant fear that he and his friends would now disappear because of their unpopular beliefs.

Mixed with my fear was the typical childhood fascination with all that was going on around me. Soon my friends and I were looking for tanks and

other military vehicles in the streets. And when the government dropped bright red leaflets from helicopters as part of a propaganda campaign, the leaflets became a source of fun – a competition ensued to see who could collect the most. To this day, I have no idea what was printed on those leaflets, but I remember chasing them as they fell and then counting my stacks.

I was also affected by a tour of the presidential palace put on by the communist government in an attempt to show the people the supposed opulence of the presidential lifestyle before the coup. I remember walking through the palace and looking in awe at all the incredible toys – I can still picture the large, yellow raft hanging in a stairwell. But the staged aspect of the tour and stories of how the palace occupants had met their demise were overwhelming. I couldn’t help but wonder – what had the palace been like the night of the coup? How were the children treated? What might our house look like in such a situation? The tour left me with a sense of fear and unease for the remainder of my days in Afghanistan.

Luckily, those days did not last long. A few months later, my father was hired by UNESCO as an educational planner in Khartoum, Sudan. My mother, three of my four sisters, and I soon followed to join him in Sudan for his one-year term. In that year, the Soviets invaded Afghanistan. My father’s term was extended for another year. And we came to grips with the realization that we may never return to our homeland. After the second year of my father’s term was over, we immigrated to Michigan where my uncles lived. My sister, who had

Knowing What We’ve Got

By Homayune A. Ghaussi1

The tour left me with a sense of fear and unease for the remainder of my days in Afghanistan.


stayed behind in Afghanistan with her husband, was also able to join us in a few years. We were together again in our new home.

Years later I had the opportunity to tour a much different government building. A week before I started law school, I visited family in Virginia and spent a day by myself walking around Washington, D.C. I thought it appropriate to acquaint myself with some of the institutions that were central to the subject of my studies and my future career.

I spent the better part of my day in the Supreme Court building. I walked through the basement reading about the history of the Court and justices. I purchased gavel pens and pencils. And I visited the courtroom. I stood at the velvet ropes and looked with awe at the bench. I could sense the history and power of the institution even with an empty courtroom. Unlike the fear and unease I felt as a child touring the presidential palace, this time I felt only respect for the institution that has tackled the thorniest of questions about our rights and ultimately protected them over time.

I have been watching recently as my fellow Americans exercise some of these rights publicly in a way that would never have been possible in my later years in Afghanistan. At a time when, in some circles in America, Islam is about as popular as communism was during the Cold War, the news cycle is full of coverage of the proposed Islamic center planned for near Ground Zero in New York. Coupled with this were reports of a plan to burn copies of the Quran, Islam’s holy book, on the anniversary of 9/11. And now as the election looms in November, Islam and Muslims in America are a hot topic for political candidates.

While these topics are of personal interest to me as a Muslim-American, and some of the actions taken and words spoken are quite troubling, what matters most to me is the simple fact that all of us are free to choose to take any side or no side on these volatile issues, as

only we see fit. We are free to do so because our courts exist to protect our speech and beliefs no matter their popularity or which party happens to occupy the White House or Congress. As a law student, a law clerk and now a lawyer, I have learned much about the particulars of our rights. But my appreciation for them – the knowing what I’ve got part – stems not from my professional understanding as much as it does from my experience of their absence.

Like many times in our history, these events are a sign of our nation wrestling with exercise of speech that may be unpopular and practice of religion that appears to be outside the mainstream. The Supreme Court, too, is again tackling First Amendment questions this term in cases such as Snyder v. Phelps, Arizona Christian School Tuition Organization v. Winn, and Schwarzenegger v. Entertainment Merchants Association. But because of my personal history with living in fear of official reactions to beliefs or speech, I now know how privileged I am to experience these times in America. Rather than the uneasiness of days gone by, I approach these events with a mix of the memories and fascination of that child who lived behind the curtain of communism, the appreciation of an American living under the protection of the Constitution, and the vigilance of a lawyer sworn to support it.

Endnotes

1 Homayune Ghaussi is a partner in the Southfield office of Warner Norcross & Judd LLP. Before join-ing Warner, he clerked for The Honorable Patrick J. Duggan, United States District Judge, Eastern District of Michigan. Homayune concentrates his practice in commercial and intellectual property litigation.


Like many courts before Padilla, the Supreme Court of Kentucky classified deportation as a “collateral consequence” outside the realm of representation required by the Sixth Amendment.

Many people – lay and attorney alike – can be surprised at the vast array of types of convictions that can endanger legal residency status. Prior to a recent Supreme Court decision, there was often no recourse for a non-citizen who found herself facing deportation because she plead guilty to an offense without obtaining good legal advice on the immigration consequences. This was even true where she had obtained affirmatively wrong advice. At times, the government has instituted removal proceedings based on a conviction years later, or after a lawful resident lived in the United States for decades or nearly since birth. In those situations, many non-citizen residents may have family and livelihoods that they can be forced to leave behind, to return to a country that now seems completely foreign. Some non-citizens in this position came here as babies with their parents and do not even speak the language of their official “home” country.

On March 31, 2010 the U.S. Supreme Court reevaluated the right to effective assistance of counsel with respect to non-citizen defendants in Padilla v. Kentucky.2 In Padilla, the Court considered whether defense counsel must warn his or her non-citizen client that the client’s conviction may result in deportation. Employing Strickland v. Washington’s test for evaluating whether legal counsel was “ineffective,” the Court held that criminal defense attorneys have an affirmative duty to warn their non-citizen clients of whether their guilty

pleas carry a risk of removal from the United States.3 If counsel fails to issue a warning, he or she violates the defendant’s Sixth Amendment right to effective assistance of counsel. Now-retired Justice John Paul Stevens, who wrote for the 5-2-2 majority, reasoned that “[o]ur longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in the country demand no less.”4

Background: the Padilla Decision

The case began when truck-driver Jose Padilla considered whether to plead guilty to transporting marijuana within Kentucky borders.5 Mr. Padilla was a Honduran citizen but had legally resided in the United States for over 40 years as a permanent resident.6 Before entering his guilty plea, Padilla’s counsel failed to warn his client that the drug trafficking conviction would subject him to possible deportation.7 Moreover, Padilla’s counsel went a step further, affirmatively assuring Padilla that he need not worry about his immigration status given that he had resided in the United States for so many years.8 This was tragically incorrect legal advice. Like virtually all drug trafficking offenses, Padilla’s crime was classified as a deportable offense under 8 U.S.C. § 127(a)(2)(B)(i).9

After entering his plea, Padilla faced removal proceedings to a native country he hadn’t lived in for four decades.10 Based on this turn of events, Padilla filed a habeas corpus petition seeking to undo his plea. He sought post-conviction relief claiming that had he known that pleading guilty made him subject to deportation, he would have insisted on going to trial.11 Padilla asserted that his counsel’s improper advice violated his Sixth Amendment right to effective assistance of counsel.12

Padilla v. Kentucky: Criminal Defense Attorneys Must Warn Non-Citizen Clients of the Risk of Removal

By Sarah Riley Howard, Madelaine C. Lane, and Katherine L. Brooks1


The Supreme Court of Kentucky denied his petition and held that Padilla had effective assistance of trial counsel.13 Like many courts before Padilla, the Supreme Court of Kentucky classified deportation as a “collateral consequence” outside the realm of representation required by the Sixth Amendment.14 In the Kentucky Supreme Court’s view, although Padilla’s counsel had given him admittedly wrong advice regarding the immigration consequences of his conviction, these actions did not rise to the level of ineffective assistance of counsel.15

The U.S. Supreme Court, however, disagreed with the Supreme Court of Kentucky’s categorization of deportation as indirect or collateral.16 After recounting the statutory evolution of immigration law, Justice Stevens described modern deportation jurisprudence as uniquely tied to the criminal process, given its particularly harsh and often mandatory nature. According to Justice Stevens, changes to our immigration law have “dramatically raised the stakes” of an alien’s criminal conviction.17 Justice Stevens believes that “deportation is an integral part - indeed, sometimes the most important part - of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”18 Accordingly, it is often difficult to “divorce the penalty from the conviction in the deportation context.”19 Advice concerning deportation is unique and, thus, cannot be removed from the realm of the Sixth Amendment.20

In Strickland v. Washington, the Court devised a two-part test to determine whether a defendant was denied his or her right to counsel.21 Part one of Strickland instructs the court to consider “whether counsel’s representation ‘fell below an objective standard of reasonableness.’”22 “Whether ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’”23

Only prong one of Strickland’s two-part test was at issue in Padilla. Justice Sevens turned to “prevailing professional norms” to determine whether Padilla’s counsel was constitutionally deficient.24 Ultimately, the Court held that professional standards require that “counsel must advice her client regarding the risk of deportation.”25 According to the Court, “‘authorities of every stripe - including the American Bar Association,

criminal defense and public defender organizations, authoritative treatises, and the state and city bar publications - universally require defense attorneys to advise as to the risk of deportation consequences for non-citizen clients.’”26

Although counsel must advise their clients of the risk of deportation, the Court held that the scope of an attorney’s duty differs depending on whether the immigration statute is “succinct and straightforward.”27 If the statute is clear, “the duty to give correct advice is equally clear.”28 If the statute is unclear, counsel “need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”29

In the case at hand, the Court found the relevant statute’s removal consequence “succinct, clear, and explicit.”30 Had Padilla’s counsel simply read the statute’s text he would have “easily determined” that Padilla’s plea subjected his client to removal proceedings.31 Nonetheless, Padilla’s counsel provided his client with the false assurance that his conviction would not result in removal proceedings.32 Based on this, the majority held that Padilla adequately demonstrated that his constitutional Sixth Amendment rights had been violated under part one of Strickland.33 Whether Padilla ultimately succeeds on his claim depends on whether he can meet part two of Strickland, a matter left to Kentucky courts to resolve.34

The Court next turned to the issue of whether defense counsel has the affirmative duty to provide advice regarding deportation to alien defendants or whether Strickland applies only to the extent of affirmatively incorrect advice. The government urged the Court to hold that defense counsel is not constitutionally obligated to advise defendants on matters that will not be decided in the criminal case.35 The Court, however, disagreed.

According to Justice Stevens, “there is no relevant difference ‘between an act of commission and an act of omission’ in this context.”36 The Court believed that if it limited its holding to affirmatively wrong advice it “would invite two absurd results.”37 First, defense counsel would have an incentive to not give advice on critical matters.38 This silence would be “fundamentally at odds” with counsel’s obligation to “advise the client of the advantages and disadvantages of a plea agreement.”39


Second, limiting the holding to affirmatively wrong advice would “deny a class of clients least able to represent themselves the most rudimentary advice on deportation even when it is readily available.”40 Thus, according to the Court, counsel must “provide her client with available advice about an issue like deportation.”41 “[F]ailure to do so ‘clearly satisfies the first prong of the Strickland analysis.’”42

Whether Padilla Applies Retroactively

One big question is the impact of the decision on non-citizens who have already pled guilty and have a criminal conviction, relying on bad or no advice regard-ing immigration consequences. The U.S. Supreme Court limited a court’s ability to hear constitutional attacks to convictions presented on collateral review in Teague v. Lane.43 In Teague, the Court held that “new constitutional rules of criminal procedure will not be applicable to those cases which have become final be-fore the new rules are announced.”44 Thus, based on this principle, a criminal defendant may not depend on a new constitutional rule of criminal procedure to challenge his or her conviction on collateral review. Of course, this spawned a raft of case law on what is a “new constitutional rule of criminal procedure.” In the short time since Padilla was decided, lower courts are already split on which side of the line it falls.

Some courts have declined to extend Padilla retroactively.45 These courts concluded that Padilla announced a new rule of criminal procedure, namely that counsel must inform his or her client of immigration consequences to a conviction.

In Michigan federal courts, the result so far has been the same. The Eastern District of Michigan first weighed in on the retroactivity issue in Haddad v. United States.46 Like Jose Padilla, Michael Haddad was a resident alien who pled guilty to a controlled substance offense.47 Seven years after his 1997 conviction, Haddad faced removal proceedings.48 In 2010, Haddad filed for a writ of coram nobis.49 The district court, however, denied Haddad’s petition.50 According to the court, it was “unlikely that Padilla will be made retroactive to convictions under collateral attack.”51 The court further explained that even if Padilla applied, Haddad “would still have to demonstrate prejudice, which is equally unlikely.”52

Conversely, many other courts have held that Padilla did not introduce a new rule of criminal procedure, and thus, could be the basis for re-examining prior convictions.53 These courts generally hold that Padilla merely applied Strickland’s well-established test to new facts. They also point to the fact that Padilla himself brought his challenge on collateral review to support their argument. If the Court did not want Padilla to apply retroactively, surely at least one Justice would have mentioned a retroactivity issue.54

The issue has not reached any of the federal circuit courts, at least in the post-conviction relief context. However, the Sixth Circuit has already remanded a case to the Board of Immigration Appeals to consider what effect Padilla may have on the deportation proceedings.55

Michigan’s Federal Practice Response

Padilla does not appear to have significantly altered federal practice in Michigan, where the federal courts and practitioners have already recognized this issue for some time.

Local federal district courts, for example, indicate that Padilla’s mandate is not a novel concept in plea-taking practices. Some judges already warned non-citizen defendants pleading guilty of the risk of deportation, even before Padilla, and some federal criminal defense practitioners similarly report that they have been advising clients about this to date. Although neither the Eastern nor Western Districts of Michigan have amended their court rules to reflect the Padilla decision or otherwise changed plea-taking practice, it is clear that going forward the better procedure would include questions about citizenship in both an initial client interview with defense counsel and when the Court takes a plea.

Another aspect of representing non-citizen clients has not really changed: criminal defense practitioners are well-advised to seek the assistance of a competent immigration lawyer. The federal immigration laws are notoriously complex to untangle, and the entire scheme of interacting statutes cannot be understood from reviewing only a couple of statutes. Congress also amends, rewrites, and adds to the law often, and in significant and usually more restrictive ways. And while Padilla is a tiny ray of hope for a non-citizen who


received bad immigration law advice, the potential for tragedy for a defense client is still pretty much as high, when they can be detained (jailed) indefinitely by immigration enforcement while they wait for possible post-conviction relief.

Endnotes

1 Sarah Riley Howard heads the White Collar Criminal Defense practice group at Warner Norcross & Judd LLP, which represents clients in a range of matters involving corporate legal compliance, federal litigation counseling, and criminal defense. Madelaine Lane is a senior associ-ate with extensive defense experience, and is a member of the Western District’s Criminal Justice Act panel appointment attorneys. Katherine Brooks is a junior as-sociate in the group in Warner’s Southfield office.

2 __ U.S. __, 130 S. Ct. 1473 (2010).

3 Id. at 1486.

4 Id.

5 Id. at 1477.

6 Id.

7 Id. at 1478.

8 Id.

9 Id. at 1477.

10 Id.

11 Id. at 1477-78.

12 Id. at 1478.

13 Id.

14 Id. at 1481.

15 Id.

16 Id. at 1482.

17 Id. at 1481.

18 Id. at 1480.

19 Id. at 1481.

20 Id. at 1482.

21 466 U.S. 668 (1984).

22 Padilla, 130 S. Ct. at 1482 (quoting Strickland, 466 U.S. at 688).

23 Id. (quoting Strickland, 466 U.S. at 694).

24 Id. 1482.

25 Id. at 1483.

26 Id. at 1482 (citation omitted).

27 Id. at 1483.

28 Id.

29 Id.

30 Id. at 1482.

31 Id.

32 Id. at 1483.

33 Id.

34 Id. at 1483-84.

35 Id. at 1484.

36 Id.

37 Id.

38 Id.

39 Id.

40 Id.

41 Id. at 1484.

42 Id.

43 489 U.S. 288 (1989).

44 Id. at 310.

45 See e.g. Gacko v. United States, No. 09-CV-4938, 2010 WL 2076020, *3 (E.D.N.Y. May 20, 2010) (declining to recognize Padilla as retroactive to cases on collateral review); see also United States v. Hernandez-Monreal, Nos. 1:07-cr-337, 1:10-cv-618, 2010 WL 2400006 (E.D. Va. June 14, 2010) (dismissing petitioner’s claim as time-barred).

46 Nos. 97-80150, 07-12540, 2010 WL 2884645 (E.D. Mich. July 20, 2010).

47 Id. at *1.


48 Id.

49 Id.

50 Id. at *6.

51 Id.

52 But see United States v. Shafeek. Nos. 05-81129, 10-12670, 2010 WL 3789747 (E.D. Mich. Sept. 22, 2010) (refusing relief but implying that Padilla may not have announced a new rule).

53 See e.g. United States v. Chaidez, No. 03 CR 636-6, 2010 WL 3184150 (N.D. Ill. Aug. 11, 2010); United States v. Hubenig, No. 6:03-mj-040, 2010 WL 2650625 (E.D.

Cal. July 1, 2010); Martin v. United States, No. 09-1387, 2010 WL 3463949 (C.D. Ill. Aug. 25, 2010); see also United States v. Millan, Nos. 3:06-cr-458/RV, 3:10-cv-165/RV/MD, 2010 WL 2557699 (N.D. Fla. May 24, 2010) (implying Padilla applied retroactively but deny-ing relief on other grounds); United States v. Obonaga, No. 10-CV-2951, 2010 WL 2710413 (E.D.N.Y. June 30, 2010) (assuming arguendo that Padilla applied retro-actively but declining to decide on the issue).

54 See Chaidez, 2010 WL 3184150 at *4.

55 Barakat v. Holoder, 2010 WL 3543134 (6th Cir. Aug. 18, 2010).

A 20-year veteran of the Western District U.S. Probation Office passed away on October 9, 2010. Richard Anderson was appointed U.S. Probation Officer on April 17, 1957, by Chief U.S. District Judge Raymond Starr. He was promoted to Chief U.S. Probation Officer on July 13, 1970 by Chief Judge W. Wallace Kent, a position he held until October 5, 1979.

Mr. Anderson was born December 3, 1928, and grew up in Cadillac, Michigan. He served in the Army in Japan during World War II, and then attended Michigan State University, graduating with a degree in Criminal Justice. Besides his work as a probation

officer, he worked in Jackson State Prison and for U.S. Military Intelligence.

After retirement, Mr. Anderson and his wife moved to the Traverse City area, where they served as volunteers in various capacities, before returning to Grand Rapids in 2000. In 1984, he was the Democratic candidate for Michigan’s 9th Congressional District.

Mr. Anderson is survived by Carol, his wife of 40 years, 4 children, and numerous grandchildren and great-grandchildren. A memorial service was held in Grand Rapids on October 23, 2010. In lieu of flowers, the family suggests donations to Serving in Mission (sim.org).

Longtime Probation Officer Richard Anderson Dies


The Supreme Court recently issued an important ruling for those with interest in section 1983 excessive force claims. In Gaddy v. Wilkins, the Court rejected a long-standing rule followed by the Fourth Circuit, which held that a plaintiff could not survive summary judgment on an excessive force claim unless his injuries were more than de minimis.1 The Court in Gaddy rejects this so-called de minimis injury rule as an improper reading of Supreme Court precedent, and clarifies, once again, the proper standards for excessive force claims.

Hudson v. McMillian

The Supreme Court’s first relevant stop in the excessive force area came in its 1992 decision in Hudson v. McMillian.2 In that case, the Fifth Circuit dismissed a prisoner’s excessive force claim, finding that, under established Fifth Circuit precedent, a plaintiff could not prevail on such a claim unless he had suffered “significant injury.” The court held that the plaintiff could not meet that requirement because his injuries – including bruises, swelling, loosened teeth, and a cracked denture plate – were “minor” and required no medical attention.3

The Supreme Court granted cert. and reversed.4 In a 7-2 decision, the Court emphasized that the “core judicial inquiry” for an excessive force claim is not whether a certain quantum of injury has been incurred, but “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”5 The Court continued: “When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated . . . whether or not significant injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury.”6 In a concurring opinion, Justice Blackmun noted that, were the Court to adopt the Fifth

Circuit’s rule, “we might place various kinds of state-sponsored torture and abuse – of the kind ingeniously designed to cause pain but without a telltale ‘significant injury’ – entirely beyond the pale of the Constitution.”7

Interestingly, now-Chief Justice John G. Roberts, Jr. – then an attorney in private practice – filed an amicus curiae brief on behalf of the plaintiff in Hudson.

Norman v. Taylor

Two years after Hudson, the Fourth Circuit had occasion to apply the decision in Norman v. Taylor, an excessive force claim brought by an inmate who claimed to have been hit by a prison guard, causing pain that persisted for several months.8 Although Hudson seemed to foreclose any rule that made the degree of injury dispositive for an excessive force claim, the Fourth Circuit in Norman held otherwise. In an en banc opinion authored by Judge J. Michael Luttig, the court held that, although requiring significant injury was no longer permissible after Hudson, a plaintiff must still at least demonstrate that his injuries are more than de minimis. The court explained its holding as follows: “In Hudson, the Court rejected a ‘significant injury’ requirement. But in so holding, it explicitly stated that under the [8th] Amendment’s objective component ‘de minimis uses of physical force, provided that the use of force is not of a sort ‘repugnant to the conscience of mankind,’ are beyond ‘constitutional recognition.’”9 The Fourth Circuit continued:

While the Court in this statement excepted from the Eighth Amendment only de minimis uses of force, it seemed to affirm by negative implication one sentence later that de minimis injury can serve as conclusive evidence that de minimis force was used: ‘[T]he blows directed at Hudson, which caused bruises, swelling, loosened teeth, and a cracked dental plate, are not de minimis for Eighth Amendment purposes.

Supreme Court Rejects “Indefensible” De Minimis Injury Rule for Excessive Force Claims


The extent of Hudson’s injuries thus provides no basis for dismissal of his § 1983 claim.’10

The Fourth Circuit therefore held that, “absent the most extraordinary circumstances, a plaintiff cannot prevail on an Eighth Amendment excessive force claim if his injury is de minimis.”11 Applying this standard, the court dismissed the plaintiff’s case, finding that he would not be able to prove that his injuries were more than de minimis.12

In the years following Norman, the Fourth Circuit applied the de minimis injury rule to numerous other cases.13 Because the rule makes the extent of the plaintiff’s injuries the dispositive factor, the courts in these cases never analyzed the “core judicial inquiry” called for by Hudson – whether the force used by the officers was excessive under the circumstances. Indeed, courts within the Fourth Circuit routinely dismissed cases based on the de minimis injury rule, even if there was a genuine issue of fact about whether the force used by the officers was justified.

In Taylor v. McDuffie, for example, the court affirmed the dismissal of a suit brought by a pretrial detainee, who alleged that officers had struck him in the face with a wooden baton several times, even after he was pinned to the floor, had stopped resisting, and the need for force had subsided – allegations that were supported by a third-party witness.14 In its opinion dismissing the case, the Fourth Circuit held that the plaintiff’s injuries were de minimis, and that it was therefore unnecessary to consider whether the force used by the officers was excessive: “Even if there is a genuine issue of material fact as to whether Defendants behaved maliciously or sadistically after the need for force had subsided, Taylor has failed to show that his injuries resulting from such force are more than de minimis. Because Taylor failed to establish an element essential to his case, the district court did not err in granting Defendants’ motion for summary judgment.”15

One judge dissented from the court’s holding in Taylor. In a strongly worded dissent, Judge Francis D. Murnaghan, Jr. argued that the de minimis injury rule was “based on a patent misreading” of Hudson, and improperly placed the degree of injury at the center of the excessive force inquiry: “The present case is indicative of the unacceptable results achieved when a

finding of de minimis injury is considered dispositive of the excessive force inquiry. Relying on Norman, the majority holds that a claim of excessive force cannot survive summary judgment where the plaintiff’s injuries are de minimis, regardless of whether excessive force was actually employed by the officers.”16 “As the majority’s opinion makes clear,” the dissent continued, “officers in our circuit are free to use excessive or unjustified force against inmates, so long as they are careful or fortunate enough to leave only minor traces of their blows.”17

The plaintiffs in Norman and Taylor both filed peti-tions for certiorari but were denied,18 as was at least one later plaintiff whose case was dismissed by the Fourth Circuit.19

Gaddy v. Wilkins

It took 16 years for the Supreme Court to finally grant cert. in a case involving the de minimis injury rule. In Gaddy v. Wilkins, the plaintiff, an inmate in a North Carolina state prison, filed an excessive force claim against a prison guard.20 The complaint alleged that the guard had “snatched [the inmate] off the ground and slammed him onto the concrete floor,” and then proceeded to punch, kick, knee and choke him until another officer intervened and stopped the attack. The inmate alleged that he sustained a variety of injuries, including a bruised heel, lower back pain, increased blood pressure, migraine headaches, dizziness, depression, panic attacks, and nightmares. Despite these allegations, the Fourth Circuit affirmed the district court’s dismissal of the claim for failure to demonstrate more than de minimis injury.

On appeal, the Supreme Court reversed, rejecting the de minimis injury rule as an improper reading of Hudson.21 In a unanimous per curiam opinion, the Court rejected what it found to be the Fourth Circuit’s “indefensible” and “strained reading of Hudson:”

In requiring what amounts to a showing of sig-nificant injury in order to state an excessive force claim, the Fourth Circuit has strayed from the clear holding of this Court in Hudson. This Court’s decision did not, as the Fourth Circuit would have it, merely serve to lower the injury thresh-old for excessive force claims from ‘significant’ to ‘non-de minimis’ – whatever those ill-defined


terms might mean. Instead, the Court aimed to shift the ‘core judicial inquiry’ from the extent of the injury to the nature of the force – specifi-cally, whether it was nontrivial and ‘was applied . . . maliciously and sadistically to cause harm.’22

In the Court’s view, “[t]o conclude, as the District Court did here, that the absence of ‘some arbitrary quantity of injury’ requires automatic dismissal of an excessive force claim improperly bypasses this core inquiry.”23

The Court emphasized the extent of injury suffered by an inmate may be relevant to the excessive force inquiry but is never dispositive, because “injury and force . . . are only imperfectly correlated, and it is the latter that ultimately counts.”24 Thus, “an inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury.”25 Applying this holding, the Court found the district court had erred by dismissing the plaintiff’s claim based solely on the supposedly de minimis nature of his injuries. The Court reversed and remanded for application of the proper standard—bringing an end to the de minimis injury rule.

Endnotes

1 130 S. Ct. 1175 (2010).

2 503 U.S. 1, 4 (1992).

3 Id.

4 See 503 U.S. at 7. Justices Scalia and Thomas dissented.

5 Id. at 7.

6 Id. at 9.

7 Id. at 13-14 (citations omitted).

8 25 F.3d 1259, 1261-62 (4th Cir. 1994).

9 Id. at 1262.

10 Id. (emphasis added). The court further reasoned as fol-

lows: “We appreciate that there is some tension between our understanding of the Court’s implication and the first sentence of this passage which, although listing the injuries sustained by Hudson, states that ‘the blows’ (i.e., the force) leveled against Hudson were not de minimis. We are satisfied, though, that the better reading of the passage is that the Court did intend to affirm that inju-ries can be so insignificant as to justify a conclusion that excessive force was not employed.” Id. at n.2.

11 Id. at 1263.

12 Id.

13 See, e.g.,Taylor v. McDuffie, 155 F.3d 479 (4th Cir. 1998); Jackson v. Morgan, No. 00-6129, 2001 WL 1116275 (4th Cir. Sept. 24, 2001) (unpublished).

14 155 F.3d at 479.

15 Id. at 483 (emphasis added) (citations omitted).

16 Id. at 485-87.

17 Id. at 487.

18 See Norman v. Taylor, 513 U.S. 1114 (1995); Taylor v. McDuffie, 525 U.S. 1181 (1999).

19 See Jackson v. Morgan, 535 U.S. 970 (2002).

20 130 S. Ct. at 1175 (2010).

21 See id. at 1178-79.

22 Id. at 1179 (internal citation omitted). Justices Scalia and Thomas concurred in the judgment but noted their continuing disagreement with the holding in Hudson. See id. at 1180-81.

23 Id. at 1179.

24 Id. at 1178.

25 Id. at 1178-79.


The U.S. District Court for the Western District of Michigan held hearings at the Thomas M. Cooley Law School’s Grand Rapids campus on July 20, 2010. The hearings were conducted by Chief Judge Paul Maloney and Magistrate Judge Joseph Scoville, who, together with Western District FBA President Ray Kent, spoke to the students about the federal courts before the hearings. The judges held one hearing each in a civil matter from their regular docket. Pictures of the event are below, which for security reasons cannot include the actual court proceedings.

Western District Holds Hearings at Cooley Law School

Applications are available for the annual Hillman Advocacy Program sponsored by the Judges of the United States District Court for the Western District of Michigan and the Western Michigan Chapter of the Federal Bar Association. A learn-by-doing trial skills workshop, the two and one-half day program is held at the Federal Building in Grand Rapids, Michigan. The program features demonstrations, vid-eotaping and critiques by experienced faculty. The basic program is designed for beginning litigation attorneys. An advanced section is available for more experienced litigators (with three or more years of practice) and includes conducting an actual jury trial during the course of the program. Space is limited. Register as early as possible as the program fills quickly. Cost: Basic Section: $300; Advanced Section: $350. Scholarships are available. The Program begins January 19, 2010 and concludes Janu-ary 21, 2010. For information, call or write Program Coordinator Brenda Scudder, Warner Norcross & Judd LLP, 111 Lyon Street NW, Suite 900, Grand Rapids, MI 49503, (616) 752-2331, or go to www.hillmanadvocacy.com.

2011 Hillman Advocacy Program


Overview

Law of Attraction is the debut legal thriller by Allison Leotta, a federal sex-crimes prosecutor and graduate of Harvard Law School. The novel tells the story of a strong, smart female prosecutor who fights to protect women from domestic violence. But it’s more than a courtroom drama—it’s part love story, part murder mystery. And when the prosecutor’s love life collides with her professional life, she learns she may be just as vulnerable as the victims she works to protect.

Law of Attraction introduces Anna Curtis, a newly-minted prosecutor at the U.S. Attorney’s Office in Washington, D.C. The young woman has already developed thick skin to deal with the brutality she encounters with her daily stack of domestic violence cases. Yet when Laprea Johnson walks into Anna’s life—battered by her boyfriend on the morning after Valentine’s Day—there’s something about this particular case that Anna can’t quite shake, something that reminds the prosecutor of her own troubled past.

At the trial, Laprea makes a last-minute reversal, lying on the witness stand to exonerate her boyfriend. Shortly after he’s freed, Anna is horrified to hear that Laprea’s body has been found in a trash heap—and Anna’s own boyfriend, public defender Nick Wagner, is representing the accused. Torn between bringing the killer to justice and being with the man she loves, Anna makes a series of choices that jeopardize her career, her relationships, and her very life as she uncovers the shocking truth behind the murder.

Weaving expert knowledge with deft storytelling, Law of Attraction takes readers on a thrilling ride through D.C.’s criminal justice system. . . .Early reviewers have described this debut novel as “stunning,” “compelling,” “filled with twists and turns,” and “beautifully written.”

Praise

“With this riveting debut legal thriller, Leotta, a federal sex crimes prosecutor in Washington, DC, joins the big leagues with pros like Lisa Scottoline and Linda Fairstein. A vulnerable, tenacious heroine, surprising twists and turns, and equal parts romance and danger are a recipe for success. Readers will feverishly hope for a second book.”— Library Journal (starred review)

“I loved Allison Leotta’s debut novel. It is realistic, gritty and filled with twists and turns. Her female lawyer character is compelling and engaging. You won’t expect the dramatic ending. This is a great read for anyone who loves legal thrillers, cares about domestic violence or wonders how lawyers can live with themselves. Read it and learn—and enjoy.”—Alan Dershowitz, author of The Trials of Zion

Bio

Allison Leotta is a federal sex-crimes prosecutor in Washington, D.C. She has been a federal prosecutor for ten years. Like her heroine, Allison started out in the U.S. Attorney’s Office prosecuting misdemeanor domestic violence cases. She now handles the most serious sex crimes in D.C. Allison is a graduate of Michigan State University and Harvard Law School. She lives with her husband (who is also a federal prosecutor) and their two sons in Takoma Park, Maryland. Law of Attraction is her first novel.

Book Notes: Law of Attraction

As a new feature, Bar & Bench will occasionally include Book Notes, with information about legal-related books that might be of interest to our readers. The following is our first offering: Law of Attraction, a new legal thriller by Allison Leotta, an Assistant United States Attorney based in Washington, D.C. The following materials are reprinted with permission from the author’s website, http://www.allisonleotta.com.

Documents

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