Photo Credit: LA Times

In a hotly contested 5-4 plurality decision that will surely go down as one of the more controversial cases of this decade, SCOTUS affirmed the 9th Circuit Court of Appeals in ordering the release of more than 45,000 California felons.  The decision will precipitate the largest release of prisoners in American history.

Brown v Plata began it's marathon crawl through the federal court system in 1990, when a case was filed challenging the poor status of mental health treatment in the California prisons.  Then in 2001, a companion case challenging the medical care of prisoners was initiated.

These consolidated cases have everything, from a procedural standpoint.  For example, a "special master" first was appointed by the federal court to make findings about the prison conditions.  The State of California stipulated to violations of the Eighth Amendment's prohibition of cruel and unusual punishment and agreed to remedy the problem by reducing overcrowding in the prisons.  Next, when remedial measures fell short, or did not occur, the court appointed a receiver to oversee the California Department of Corrections.

The cases were even assigned to a special three-judge panel to oversee the CDC's progress; or lack thereof.

Justice Anthony Kennedy wrote the majority's opinion, finding that prison conditions had gone too far for too long.  The opinion provides a few slices of life in the CDC like sharing a toilet with 55 of your good buddies, or doing your entire four-year bit in a sweaty gymnasium. 

The always-conservative Justice Antonin Scalia opined that the majority's decision was "absurd", noting that SCOTUS routinely overruled 9th Circuit decisions that called for the release of individual prisoners.  Justice Scalia sees grave problems that will come home to roost from the Plata ruling.

In a separate dissent, Chief Justice John Roberts wrote that the majority's decision conflicts with a federal law which prohibits judges from releasing prisoners.

The one thing SCOTUS gave the State of California was time.  California has busied itself with transferring thousands of state prisoners to county jails across the state.  This will not amelioriate the entire problem, however, and some of California's "happy-go-lucky" [Scalia's characterization] felons will wind up on the streets.

This High Court decision brings into focus the inherent tension between our individual freedoms and enforcement of the laws.  There is a constant tension between the two concepts.  Sometimes, that tension cycles to the breaking point like in California, where too many law breakers are stuffed into concrete boxes that are ready to explode.

In Michigan, although we are far behind California in maxing-out our prison capacity, we have an awful lot of population encased in concrete and barbed wire.  In fact, we have the opposite problem.  Due to budget cuts, we have at least one brand new facility, in Lake County, sitting empty due to lack of funding.

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The Old Lion's Autobiography

He walked away from the University of Michigan Law School after his first year, declaring formal education a "waste of time".  At the height of his game in the mid-1920s, he was the first trial lawyer in America to weave his client's interests through the available media, and thus into our societal fabric.

Darrow is perhaps best remembered for defending the teen-aged murderers in the Chicago case known as Leopold and Loeb.  The accused boys, wealthy pampered law students, received life prison sentences, narrowly avoiding a death sentence. 

And of course, Darrow successfully defended teacher John T. Scopes, accused of teaching evolution in a Tenessee public school.  His opposing counsel, prosecutor William Jennings Bryant, arrogantly took the witness stand in defense of a literal interpretation of the Bible.  Darrow is considered to have disgraced Bryant during his cross examination.

The Old Lion, as he was known, was one of the left's radical champions.  He played a significant role in the development of the American Civil Liberties Union.  He was well-suited for his time.

A new biography of Darrow by Andrew Kersten [University of Wisconsin, Green Bay], American Iconoclast, has revived interest in the lawyer and his momentus cases.   As the "go-to" trial lawyer of his day, Darrow made numerous enemies on both the left and the right.  Salon takes note of Darrow's eventual tendency to go where the biggest fees were paid.

Local connection:  In early September 1925, Dr. Ossian Sweet moved into a home with his family on Garland in Detroit; a neighborhood then known as "Black Bottom".  Often, black families that moved on streets with white families would get attacked.  In October 1925, a white lynch mob was thwarted by Dr. Ossian and some members of his family, resulting in the death of one of the assailants.

Now charged with murder, Dr. Ossian reached out through the NAACP to hire Darrow.  Judge Frank Murphy presided over the trial, during which Darrow gave a closing argument that lasted over seven hours.  Ossian was acquitted.

Assessing Darrow's colorful career, in all its hues, provides an opportunity to compare the outrages of his day to the many modern problems that continue to plague our nation. 

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This week, President Obama announced a legislative initiative designed to strengthen the penalties for convicted computer hackers. The initiative proposes a mandatory 3-year prison term upon conviction of a number of computer crimes; the sentence would be served consecutively to any other convicted counts.

The computer fraud and abuse act is already on the books.  Obama's proposal is aimed at introducing stiffer mandatory penalties - something like Michigan's mandatory two year consecutive sentence for a weapons-related conviction. 

The initiative also introduces a broad definition of a "critical computer infrastructure", seeking to regulate the reporting of breaches of such infrastructure(s).  A critical computer infrastructure includes the delivery of critical government services, telecommunications, finance and banking, emergency services, and oil, gas, water and electricity production. 

That covers just about everything but Face Book.

Another interesting facet of the President's cyber-legislative proposal is adding computer hacking to the list of crimes covered by RICO (Racketeering-Influenced and Corrupt Organizations Act), the act used successfully over the decades to convict mobsters and mob bosses.

We do live in an age where secure transactions are critical to our daily life.  In such a culture, cyber-crooks and hackers may be paying a higher price for their misdeeds if President Obama's proposal gets any legislative legs.

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Veteran defense lawyer Michael McCarthy (L)
and veteran prosecutor John Skrzynski

Prosecutors cannot take their time once they make the decision to prosecute a case.  Generally, the law does not reward any party that sleeps on their rights and duties.

Normally, the prosecutor has a certain period of time, known as the "statute of limitations", within which to charge a crime.  An exception to this rule is murder; there is no statute of limitations on a murder charge.

The Oakland County Prosecutor recently brought two cases that alleged murders that took place in 1978 and 1968, respectively.  The 1968 case charged Nolan Ray George, a suspected serial killer, with the first degree murder of Gwendolyn Perry.  Likewise, the 1978 case charged Wilburn Cooper with first degree murder.  

Cooper's jury convicted him in two hours flat.  As for Mr. George, his defense lawyer, veteran attorney Michael McCarthy attempted to keep out evidence of so-called "prior bad acts"; two prior murders.  Oakland Circuit Judge Michael Warren ruled the other murders admissible; George also was jury convicted in short order.

Forty years, thirty years, or ten; if the prosecutor can marshal evidence to prove the elements of an open murder charge beyond a reasonable doubt, murderers should pay the price for their heinous crimes.  The competing interest, of course, is that any evidentiary trail grows ice cold over the decades; a defense is very difficult to mount with the passage of an ocean of time. 

Mr. McCarthy was probably asked why on earth he would represent a serial killer a dozen times if he was asked once.

The criminal justice system requires seasoned defense lawyers to force the government to prove its case; each and every time.  Only in this fashion do we maintain our individual liberties and avoid becoming a police state.

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For some time, this blog has been tracking the various twists and turns of the Michigan Medical Marijuana Act.  Every week, there has been something new on this topic.

This week, it was a Dearborn district court judge declaring the entire MMA unconstitutional on federal preemption grounds.  Judge Mark Somers invoked the doctrine of federal preemption and the supremacy clause in denying defendant's motion to dismiss in People v Brandon. He caught headlines by ruling that the MMA conflicted with an area controlled by federal law.

This week also gave us a rare "about face" from the Court of Appeals on the issue of video taping oral arguments in a seminal marijuana case.  A journalist, Eric VanDussen, sued the Court of Appeals upon being denied access to record the oral arguments in the People v Anderson case.  The High Court remanded the case back to the COA, mandating that the intermediate appellate court, "articulate the reason why 'the fair administration of justice' warrants the denial of [VanDussen's] request to film oral argument on May 10, 2011. 

As a result of the Supreme Court's order, the COA decided to let the cameras roll.  What's the "over-under" on how long (as in minutes) it will take for the video of the Anderson arguments to make it to YouTube.  I'm thinking five minutes.  [As promised, here is the link.  Note: it appears that the link has been disabled.]

Last month, a seminar on the MMA scheduled to be conducted in a privately owned horticultural store in Highland Township was cancelled on short notice on grounds the township clerk alerted organizers that it would vigorously enforce their pot growing ordinance.  In Highland, like many other townships, an ordinance imposes a moratorium on the growth, sale or dispensation of marijuana.

Also last month, a Saginaw physician, Dr. Ruth Buck, was indicted on federal charges of aiding and abetting in the distribution of marijuana, a Schedule I drug.  The suit questions Dr. Buck's due diligence relative to her examination into her patients' so-called chronic illnesses, as required under the Act.

In addition to the Anderson case, soon to be decided by the Court of Appeals, the Redden case, pending before the Supreme Court, is destined to be the seminal case on this subject for some time.  Last month, Attorney General Bill Schuette filed an amicus brief in the Redden case.

We will have our answers soon on the question of whether the MMA has the legs to stick around to authorize the palliative use of marijuana; or whether the act will go up in smoke as a failed piece of legislation, torn apart via ordinance and the common law.

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