Last year, I prepared and argued a series of appeals for a man convicted in Washtenaw County of sexual assualts near Eastern Michigan University.  He received life sentences in six separate cases.

The primary issue in each case was identification.  Due to the way the victims were raped, they never saw their attacker's face.  Condoms and other precautions minimized physical evidence left at the respective crime scenes.

In one of the cases, however, Washtenaw County Sheriff detectives were able to recover a small semen sample.  The Michigan State Police crime lab contracted with an out-of-state forensic laboratory that produced a report concluding the sample matched the defendant's DNA.

At defendant's trial, the Washtenaw County Prosecutor called the MSP lab tech and the out-of-state lab tech to testify about the matching DNA.  On appeal, I argued that defendant's Sixth Amendment right to confront witnesses was violated because the out-of-state lab tech relied on procedures and internal reports created from other technicians that were not present in court to testify.

Defendant's convictions were affirmed by the Michigan Court of Appeals and his petitions for writs of certiorari to the Michigan Supreme Court were denied last summer.  Around the same time, however, the United States Supreme Court decided Melendez-Diaz -v- Massachusetts.

In the Melendez-Diaz case, Suffolk County, Massachusetts law enforcement utilized lab "affidavits" concluding that a seized substance was cocaine.  The Supreme Court held that such an affidavit was insufficient to convict and that the lab technician must testify in open court.

In the few short months since the Melendez decision, law enforcement and prosecutors have raised an outcry about the increased costs and difficult logistics associated with producing the in-court testimony of lab techs.  The defense bar, on the other hand, has hailed the decision as a victory for individual constitutional rights.

In a rare move, the U.S. Supreme Court has scheduled oral arguments for January 2010 in Briscoe -v- Virginia; a case raising the same issue the high court so recently decided in Melendez-Diaz.  The New York Times has speculated that Briscoe will not overturn but rather, simply explain and clarify the Court's earlier ruling on lab technicians.  One such procedure would be to make lab technicians available for cross-examination rather than requiring their testimony in the prosecutor's case-in-chief.

At this date, my client is left with only a series of federal court habeas corpus petitions based on the Sixth Amendment.  Although his state-court remedies have been exhausted, the decisions of the United States Supreme Court, discussed above, will have a significant impact on his habeas petitions soon to be pending in federal court.

The slightly increased cost to the state of securing the in-court testimony of all the lab techs that worked on his DNA sample is a small price to pay for our collective constitutional liberties.

The goal of a criminal defense at trial is to force the government to prove the elements of their case.  The goal of all criminal appellate representation is to ensure that the defendant's trial and sentencing were fair. Without these safeguards, our Sixth Amendment right to counsel is meaningless.

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A few of my Facebook friends are judges.  They've taken a low profile on the news feed.  Will Michigan's Judicial Tenure Commission, formed in 1968 via constitutional amendment, seek to outlaw such social network connections like the State of Florida?

In Florida, the Supreme Court's Judicial Ethics Advisory Committee issued a 11/17/2009 decision, holding that judges may not connect with attorneys on Facebook, or similar social networking media.  The Committee's decision is based on a Florida's judicial canon prohibiting the appearance that a lawyer, or anyone else, is in a special position to influence the judge.

Floridian judges, however, remain free to post comments to their non-lawyer "friends", and can develop "fan pages" to help with their reelection campaigns.  Only the attorney-judge connection is now taboo in Florida.
The Ethics Advisory Committee stated that, "judges cannot isolate themselves entirely from the real world and cannot be expected to avoid all friendships outside of their judicial responsibilities, some restrictions upon a judge’s conduct are inherent in the office."


Ethics are catching-up slowly with attorneys and judges in the web 2.0 world.  Some states, like Louisiana, New York, and now Florida, have taken a restrictive view of lawyer's and judge's permissible activities on such sites.  


Linked-In, Twitter, and Facebook remain available to our judges.  You can expect Michigan's never shy Judicial Tenure Commission to address the situation as soon as the right case rolls around.  Shouldn't be too long... Stay tuned.


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A recent Washtenaw County Probate matter received national attention over the weekend by appearing on the front page of the Sunday NYT, in an "above-the-fold" article by Stephanie Saul.  The guardianship case involved a surrogacy contract between a Kent County couple and the surrogate mother from Ypsilanti.

Amy Kehoe and her husband contracted with both egg and sperm donors, then arranged for Laschell Baker to serve as the gestational surrogate.  The Grand Rapids couple located Baker from the surromomsonline web site.  The would-be parents also contracted for services with IVF Michigan, a fertility clinic.

Neither the Kehoes nor Ms. Baker had any legally recognized biologic connection to the babies; twins born in July.  The babies spent their first month with their would-be parents, the Kehoes, but were then removed by the surrogate's successful probate petition for temporary guardianship.

Problems arose when the Kehoes appeared in the Washtenaw Probate Court for the agreed upon guardianship transfer from the surrogate to the Kehoes.  According to the NYT, Mr. Kehoe disclosed at the hearing that his wife had been treated for a mental disorder. 

In Michigan, the Surrogate Parenting Act prohibits contracts for gestational surrogacy services in exchange for fees as void on public policy grounds.  In addition, surrogacy for profit is a five-year felony.  The Act does not create parental rights for would-be parents who arrange for the creation of a baby.

In 1992, the Michigan Court of Appeals upheld the constitutionality of the Act in the case of John Doe -v- Michigan Attorney General, holding:

As overwhelmingly repugnant as the thought may be, unbridled surrogacy for profit could encourage the treatment of babies as commodities. Whatever sense of idealism that may motivate a fertile woman into hosting a pregnancy for an infertile couple is rent asunder by the introduction of the profit motive. It could be only a matter of time before desirable, healthy babies would come to be “viewed quantitatively, as merchandise that can be acquired, at market or discount rates.” O'Brien, Commercial Conceptions: A Breeding Ground for Surrogacy, 65 NCLR 127, 144 (1986). As the New Jersey Supreme Court commented in In re Baby M, 109 N.J. 396, 440, 537 A.2d 1227 (1988): “In a civilized society, there are some things that money should not be able to buy.” In our opinion, babies ought to be one of those things.

Ohio's Ninth Appellate District, in J.F. -v- D.B., 116 Ohio St 3rd 363 (2007), discussed but declined to follow the Michigan Court of Appeal's Doe case.   To date, only California allows enforcement of surrogacy contracts where the inchoate parents have no biological connection to the baby.

In the Washtenaw County case, the surrogate mother denies there was a commercial surrogacy contract, claiming she carried the twins gratutiously, only seeking reimbursement for her medical expenses.  Ms. Kehoe disputes this, blames Michigan's poor laws on this subject, and views Ms. Baker as a child-thief.

The Washtenaw Probate case draws attention to the lack of laws or guidelines relating to custody issues for children born under such circumstances.  In this case, although neither set of competing parents had a biological connection to the child, although neither set of parents filed for adoption, the surrogate was awarded custody.  

Ms. Kehoe has stated that her health issues are under control, but can no longer afford a sustained legal challenge to the surrogate's petition for guardianship of the twins.  She also claims that lawyers have advised her that custody of the twins is unlikely.  For her part, Ms Baker asserts that she never would have agreed to be the gestational carrier had she known about Kehoe's mental health history.

The case begs the question: does a surrogate mother have parental rights superior to those of a would-be parent that contracts for the creation of an infant?  Intermediate appellate review of the Washtenaw Probate Court, or perhaps some different procedural maneuvers, could have improved Kehoe's chances for temporary guardianship and possible custody.

This issue is sure to surface repeatedly in the context of gay couples, as the battle over gay marriage is waged on a state-by-state basis.  More gay couples want to complete their families with children of their own.  Surrogacy and adoption are the primary means to this end.  For an excellent introduction on the subject of gay surrogacy agreements, view this NYT video clip.  The American Bar Association, offering assistance to state legislatures and family court judges, has published a Model Act Governing Assisted Reproductive Technology.

Updates: The NYT's Ms. Saul stays on the case, reporting on a decision issued in the New Jersey surrogacy case over the holidays.  The New Jersey family court judge ruled that the gestational surrogate was the "legal mother" thus, she had the right to challenge custody of the twin girls she delivered in 2007.  Also see Nathan Koppel's posting on the case in the WSJ's Law Blog.  Stay tuned on this one, as the trial is scheduled for this spring.

With the 21st Century marching forward, some of our more traditional institutions, i.e. "family" and "marriage", are coming under pressure to evolve; to become more inclusive and less exclusive.  Litigated surrogacy contracts are but one marker in this social evolution.

What will the definition of "Mother" be at the end of this new decade?

More Updates: Check out local Detroit WDIV television's coverage of the Washtenaw County surrogate twins case on Sun. January 10, 2010.

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As the holidays approach, college football fans once again work up their annual lather over how to end the season, and crown a national champion; or not.

Last year was controversial.  This year features two undefeated teams (Boise State and TCU) that have no chance of playing each other under the present Bowl Championship Series.  So now, our Congress is getting involved?

This week, Joe Barton, (R-Texas) introduced a bill that would proscribe the promotion, marketing, or advertising of any post-season Division I college football game as a "championship" unless it is the final game of a single-elimination tournament.  Good luck with that.

One criticism of the proposed legislation is that it may violate the First Amendment of the United States Constitution.  While commercial speech may be closely scrutinized to prohibit untruthful or misleading messages, regular speech has the full protection of the First Amendment.

Some of you may be wondering, what is the government interest protected by this proposed bill?  Should Congress be discussing and debating college football?  Will President Obama sign it into law?

Perhaps we should simply put this down as another fine "slice of life" in the workings of our Democracy.  Besides, the annual debate among professional sports writers over who's best in football adds spice to the holiday season.

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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Nearly a decade post-9/11, the forgotten amendment of the U.S. Constitution, the Second Amendment's right to bear arms, may gain some ground here at the beginning of the 21st Century.  Several state attempts to erode this right have been subjected to successful constitutional challenges.

The United States Court of Appeals for the District of Columbia, in Robert Ord -v- District of Columbia, reversed a trial court's dismissal of one such gun owner's challenge, remanding the case back to the lower court for further proceedings.

Robert Ord, a licensed investigator, also licensed to carry a weapon in Virginia, will now be able to develop his case; a case that asserts that the mere threat of prosecution in nearby District of Columbia, where he frequently works, constitutes damages.  One interesting aspect of this case is that Ord was never arrested, nor were his weapons seized.  He claims the objectionable government action was the issuance of a warrant; a warrant Ord claims was obtained by the police in bad faith.

This spring (March 2010), the United States Supreme Court will hear oral argument in a gun-ordinance case from Illinois, McDonald -v- Chicago.   Michigan's Attorney General recently filed an amicus brief in the case.  In the Chicago gun case, the issue for determination by the Supreme Court is whether the Second Amendment is incorporated (thus applicable) to the states through the Fourteenth Amendment's Due Process clause such that Chicago's gun-ordinance banning guns in private homes is unconstitutional. 

A good primer on this age-old issue can be found on the official blog of the U.S. Supreme Court; known as SCOTUS.  The high court's blog post surveys the historical context of the Second Amendment with a focus on the modern ordinances and state laws that attempt to limit gun possession due to it's correlation with violent crime.

The high-court petitioner(s) in these gun cases are citizens claiming a constitutionally-protected right to bear arms. They assert that the state cannot unreasonably restrict this right with its laws or ordinances.

These cases pit the power of the government against the fundamental liberty interests of the individual.  The tension between the two continues to be the glue of our Democracy, just as it was in colonial times when these concepts were debated in Philadelphia, Boston and Washington.

In the decade since 9/11, various powers of the federal government have expanded under President Bush. At the state level, however, the individual right to bear arms may hold ground. The McDonald and the Ord cases are crucial milestones for the highly revered Second Amendment.

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