Everyone accused of a crime has a right to have the matter tried before a jury with the heightened "beyond a reasonable doubt" evidentiary standard.  Sometimes, however, the jury gets it wrong.

When that happens, you have a constitutional right to appeal.  Most convictions, statistically, are affirmed at the intermediate appellate level.  From there, a convicted felon has a discretionary appeal to the Michigan Supreme Court.

The Michigan Supreme Court selects few cases each year; most petitions for a writ of certiorari, especially when they are from prison inmates, are rejected.

Once your state appellate rights are exhausted, you have the right to petition for habeas corpus in the United States District Court.  Hopefully, your state court appellate attorney had the wisdom to "federalize" your brief in the intermediate state appellate court because if not, all your constitutional issues are deemed waived.

If the Habeas petition is denied in federal district court, as most are, there is a constitutional right to appeal even further, to the United States Circuit Court of Appeals.

The United States Supreme Court is the end of the road.  A petition for a writ of certeriorari to the SCOTUS is, well, best of luck to you....

Most would agree that the incarceration of wrongly convicted individuals is one of the true horrors of our criminal justice system; a less than perfect system that sends people to prison from time to time who did not commit the crime for which they were convicted.

The State Bar of Michigan's blog recently posted some fresh literature addressing this troubling subject.  We think it's worth a look.

Over the weekend, for example, the Detroit Free Press profiled its first in a series of articles detailing a West Bloomfield family's plight following criminal sexual conduct charges.

In addition to the case profile in the Freep, a more detailed study by the Campaign for Justice and the Michigan ACLU is included in the post, tracking 13 wrongly convicted individuals in Michigan; this piece also impugns Michigan's court-appointed counsel system.

The SBM blog post also includes a link to Reason Magazine's nation-wide study featuring UM Law Professor Sam Gross who concludes that wrongful convictions are far more common than most of us believe.

We are not sure what the solution is to this problem.  Many folks in our free society seem hell-bent on breaking the law in major ways, committing "crimes against the person", to use a classification phrase from Michigan's sentencing guideline manual.  No doubt, prosecutors often have a full plate.

But when the accused is innocent, we all lose some of our individual rights, liberties and freedoms.

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With play-offs now underway, the National Football League also is involved in litigation over how it can license NFL team logos. The case, American Needle v NFL, is in federal court and has gone all the way to the U.S. Supreme Court.

Following oral argument last week, it was painfully clear that the nine justices on the high court do not spend much time watching football; not necessarily a bad thing. High court observers believe the Supreme Court may remand the case back to the federal district court in Chicago to clarify the issues in the suit.

The dispute arose in 2004 when the league switched companies, from American Needle to Reebok, granting the latter a non- exclusive apparel license to sell hats, jerseys and other apparel. The NFL has had a history of utilizing only one company at a time relative to apparel production. Until 2004, American Needle had the contract.

The issue on appeal is whether the NFL (and the 32-teams making up the league) is a “single entity” under the Sherman Antitrust Act, and therefore immune from that Act’s ban on monopoly-style pricing. American Needle asserts the NFL’s move to Reebok violates the anti-trust law because it is a network of separate business entities (individual teams) that have conspired to stifle competition and raise prices.

Both the trial court and the Seventh Circuit Court of Appeals sided with the league in ruling that the NFL was a “single entity” that could forge exclusive licensing deals, regardless of the effect on pricing.

Implications for the high court’s ultimate decision have less to do with headwear than with how the league could treat players’ unions and how other leagues can leverage their power as a “single entity” over their respective players. Both the NBA and the NHL have filed amicus briefs in the case.

While the nine justices may not be aware of what is at stake for teams like the New Orleans Saints and the Indianapolis Colts this weekend, at oral argument they seemed to suggest the adoption of a “rule-of-reason” inquiry, whereby each specific anti-trust challenge is tested in court. Of course, the NFL would prefer a bright line, outright immunity that would spare it the expense of future lawsuits.

The high court’s decision on the case is expected shortly. While most NFL fans will be oblivious to the outcome of the litigation, they will purchase hundreds of thousands of caps and jerseys this month and next.

Update:  05/24/2010 - As SCOTUS winds down its session, it decided American Needle v NFL in a 9-0 decision against the NFL.  Here are some links to immediate analysis of the decision from the Los Angeles Times and the SCOTUS Blog.

The case of Ashcroft -v- Iqal involved the aftermath of the 9-11 terrorist attacks in 2001.  The case is quickly becoming known, however, for placing significant procedural hurdles in the way of a litigant's access to federal court.

Justice Anthony Kennedy, left, wrote the 5-4 opinion for the high court, published last May.

The case was brought by federal detainees held, and allegedly abused, in make-shift detention centers in the Bronx shortly following the attacks on the World Trade Center. 
Javaid Iqball and other detainees filed suit in the United States District Court in New York City against former U.S. Attorney General John Ashcroft and former FBI Director Robert Mueller. 

Unlike most cases, the plaintiffs in Iqbal had the benefit of over 100 depositions prior to filing their suit.  Thus, the initial complaint has many pages of detailed allegations. 

Rule 8 of the Federal Rules of Civil Procedure states that a complaint must contain, "a short and plain statement of the claim showing that the pleader is entitled to relief." Although detailed factual allegations are not required, the Supreme Court has ruled in earlier cases that Rule 8 does require sufficient factual allegations, assumed to be true, that state a claim that is "plausible on its face."

Ashcroft and Mueller asserted their official acts were cloaked with "qualified immunity" and moved to dismiss the suit. The federal trial judge in Manhattan, in denying the FRCP 8 motion for summary judgment, held Iqbal's detailed allegations of abuse were sufficient to survive dismissal. The Second Circuit Court of Appeals agreed, rejecting a heightened pleading standard in a well-reasoned 92-page opinion, concluding:

Nevertheless, as a result of the Supreme Court’s precedents interpreting Rule 8(a), it is possible that the incumbent Director of the Federal Bureau of Investigation and a former Attorney General of the United States will have to submit to discovery, and possibly to a jury trial, regarding Iqbal’s claims. If so, these officials -FBI Director Robert Mueller and former Attorney General John Ashcroft -may be required to comply with inherently onerous discovery requests probing, inter alia, their possible knowledge of actions taken by subordinates at the Federal Bureau of Investigation and the Federal Bureau of Prisons at a time when Ashcroft and Mueller were trying to cope with a national and international security emergency unprecedented in the history of the American Republic.

The Supreme Court disagreed with the Second Circuit's rationale, reversing the intermediate appellate court's decision. Many legal professionals now fear that Iqbal's failure to state a claim will be the blue print for federal judges to routinely prune their dockets of all-manner of plaintiff's claims.

In reversing the Second Circuit, Justice Kennedy's opinion stated:

Iqbal’s pleadings do not comply with Rule 8... Several of his allegations—that petitioners agreed to subject him to harsh conditions as a matter of policy, solely on account of discriminatory factors and for no legitimate penological interest; that Ashcroft was that policy’s “principal architect”; and that Mueller was “instrumental” in its adoption and execution—are conclusory and not entitled to be assumed true. Moreover, the factual allegations that the FBI, under Mueller, arrested and detained thousands of Arab Muslim men, and that he and Ashcroft approved the detention policy, do not plausibly suggest that petitioners purposefully discriminated on prohibited grounds. Given that the September 11 attacks were perpetrated by Arab Muslims, it is not surprising that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the policy’s purpose was to target neither Arabs nor Muslims. Even if the complaint’s well-pleaded facts gave rise to a plausible inference that Iqbal’s arrest was the result of unconstitutional discrimination, that inference alone would not entitle him to relief: His claims against petitioners rest solely on their ostensible policy of holding detainees categorized as “of high interest,” but the complaint does not contain facts plausibly showing that their policy was based on discriminatory factors.

In the 18-months since the Iqbal decision, the case has attracted the attention, and ire, of many legal professionals fearful this precedent will block access to federal court. In particular, plaintiffs alleging employment discrimination now face a higher hurdle at the pleading stage.

Case in point: last month the Senate Judiciary Committee grilled the former U.S. Solicitor General (the government's litigator) about the case. The Democratic senators complained that the case will prevent legitimate cases from seeing the light of day in federal court.

Michigan Connection: U.S. Representative John Conyers has co-sponsored a bill seeking to re-write FRCP 8(a) such that litigants bringing their claims will not face sure dismissal based on the high court's Iqbal decision. Stay tuned.

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