Dec 17 2014

Who Is George Stinney?

Yesterday a South Carolina court vacated the conviction of George Stinney, an African -American  convicted in 1944 of the murder of two white pre-teen girls. The reversal comes a little late and more than a dollar short since Stinney was executed by electric chair for the crime over 70 years ago. He was 14 years old and remains the youngest person ever put to death in the 20th Century and 21st Century.

Allow me to lay before you  the evidence that convicted young George all those years ago. The two girls were riding their bikes looking to pick flowers. They asked George and his younger sister where might be a good place to go looking for flowers. You see, white folks and black folks in the small town of Alcolu were separated by the railroad tracks. So the girls, ages 11 and 8, were unaccustomed to being on the “wrong side of the tracks.”  When the girls never made ti back home, a huge search party was formed involving hundreds of volunteers.The Stinneys told some of the searchers about that fateful conversation. When the girls’ were found the next day in a ditch, dead from massive head wounds, George was arrested and charged with their murder.

George StinneyHe was tried a few months later. At his trial, three sheriffs testified that he had confessed to the killing, even yet there was no written confession. The only other witnesses were the man who found the bodies and the coroner. The trial took less than a day including the time it took to select the all-white jury. (Since Blacks could not be jurors in Clarendon County South Carolina). In fact, the record shows that the testimonial portion of the trial took a mere two and a half hours. George’s lawyer was a local tax commissioner in the middle of running for re-election. He called no witnesses (not even putting George on the stand to deny the crime). The jury returned the guilty verdict in ten minutes and George was immediately sentenced to death by Old Sparky, as the electric chair was affectionately known. His family was not there to support him as they had been forced to leave town immediately after George’s arrest. His lawyer did not file an appeal so he was sent to the electric chair only 81 days after the crime was committed.

The story does not get any prettier when you look at his execution. The child  was led down the hallway carrying only the Bible that was given to him at the jail. It was a good thing he brought it because the jailers needed to use it to boost George up in the seat. Even sitting on the Bible, his 90 pound frame was too small for Old Sparky and his execution took four minutes of repeated 2,400 volt electrical charges because the adult-sized mask kept falling off of George’s face and his arm slipped out of the left restraint .

New evidence was discovered recently by a team working on his posthumous exoneration. One of the men working on the case, George Frierson, stated in interviews that  “…there has been a person that has been named as being the culprit, who is now deceased. And it was said by the family that there was a deathbed confession.” Frierson also said that the rumored murderer came from a well-known, prominent white family. Members of that family, had served on the initial coroner’s inquest jury (like a Grand Jury) which had recommended that George be prosecuted. That evidence and the lack of any evidence pointing to George led the Circuit Court Judge Carmen Mullen to vacate the conviction and exonerate George Stinney. A small victory for his family who had doggedly pursued the re-opening case for decades. So that’s George Stinney.  May he now rest in peace.

But George Stinney should also be a symbol. A symbol for they way Blacks were treated in the justice system back in the day. The vestiges of that prejudice are still with us today. George’s case should also be a clear statement of why the Death Penalty must be abolished across the country. George’s case should serve as  reminder of the need to provide the poor with qualified and effective counsel. As someone  who is involved in trying to exonerate the wrongfully convicted, I have seen that most of those individuals would likely not have been convicted in the first place had they received qualified and effective lawyers. That fact is true in the cases of the three men I have exonerated over the last twelve years. – quality lawyering would probably have resulted in acquittals. We all claim to value the principles on which this nation was founded and most folks can quickly tell you why they support the First and Second Amendments to the Constitution. But too few people – especially elected officials and judges – are willing to stand up and proclaim that the Fourth, Fifth and Sixth Amendments to the Constitution are of equal value to our society. We never hear anyone acknowledge that when we talk about our armed forces fighting to protect our way of life that the Founding Fathers placed extraordinarily great weight on the rights of individuals accused of crimes and the rights of citizens to be free from unreasonable searches and seizures. Let George Stinney’s case remind all of us that these rights and freedoms are every bit as important as the rest of the Bill of Rights and that the fair implementation of them is the surest way to make sure that George Stinney’s tragedy does not get repeated.

Dec 16 2014

Will Next Generation of Lawyers Be Too Soft?

Its a cliche when  an older generation laments that the next generation coming up is “too soft” Think of the old joke about a parent telling their child that they used to walk uphill to school “both ways!”  So I risk being labeled an old hack when I say law schools are in danger of raising a generation of lawyers that are “too soft.”  Well you know what, things become cliche for a reason – they are constantly repeated because they are true. As society and technology advance, each generation tends to have it easier than the preceding one and is therefore seen as too soft.

But recently two stories have caught my attention that has made me shake my head and wonder if we are not coddling this generation of law students  well beyond the normal trend. Earlier this month, I wrote on this blog about Columbia and Harvard Law Schools agreeing to postpone final exams for any students who were too traumatized by the Michael Brown and Eric Garner Grand Jury decisions. To save you the time of going back to read it, I will summarize: it was a ridiculous decision which only served to play into political correctness and I stated that folks who needed the time off due to this trauma should probably consider a different profession.

Today I read an article in The New Yorker by Jeannie Suk entitled “the Trouble With Teaching Rape Law.” Professor Suk laments that in today’s current climate:

Students seem more anxious about classroom discussion, and about approaching the law of sexual violence in particular, than they have ever been in my eight years as a law professor. Student organizations representing women’s interests now routinely advise students that they should not feel pressured to attend or participate in class sessions that focus on the law of sexual violence, and which might therefore be traumatic. These organizations also ask criminal-law teachers to warn their classes that the rape-law unit might “trigger” traumatic memories.    

Harvard LawCan prior traumatic experiences trigger difficult emotions when similar or related issues are discussed in a law school classroom? Yes, of course. But that is no different than what people will experience in every aspect of their life and particularly if they choose law for a career. You would need to give a “trigger warning” for every law school class. Many times experiencing a bankruptcy that renders your family homeless or fores you to lose a business can be highly traumatic. People lose life and limb in accidents that result in lawsuits. Families have been divided forever over will contests and trust disputes. Law does not deal with the niceties of life. Lawyers are forced to look under the rocks and dead wood of life and try to help their clients successfully navigate the difficult and complex legal system. Almost every class could have the potential of triggering some awful and life-changing event so that all classes would have to begin with a disclaimer. If you think I am stretching to make a point, consider something else Professor Suk wrote:

One teacher I know was recently asked by a student not to use the word “violate” in class—as in “Does this conduct violate the law?”—because the word was triggering. Some students have even suggested that rape law should not be taught because of its potential to cause distress.


What escapes these students is that society’s perception of rape victims and how rape should be treated by society will never change if rape law is not taught in law schools. We would not have made any progress in this area of law over the last few decades if during the 50s, 60s and 70s law students did not discuss how wrong it was to re-victimize the victim by cross-examining her about past sexual experiences or about what she may have been wearing on the night of her attack. Rape shield laws were passed by legislators to protect the victim from this second attack and to protect victims from being named in newspaper articles about the case. For all the jokes folks make about lawyers and our uselessness, it is a fact that these types of societal changes are often made through the courtroom and are often made by people who went to law school. We need to raise a generation of lawyers that understand that difficult issues must be discussed and debated in law school classrooms so that future generations will have lawyers, judges, legislators, thinkers who have the stomach and tenacity to take on societal change. A debate is currently raging across the country over how we deal with allegations of sexual assault on college campuses – do we really want this topic off the table in law school of all places?

To quote Professor Suk one last time:

Now more than ever, it is critical that law students develop the ability to engage productively and analytically in conversations about sexual assault. Instead, though, many students and teachers appear to be absorbing a cultural signal that real and challenging discussion of sexual misconduct is too risky to undertake—and that the risk is of a traumatic injury analogous to sexual assault itself. This is, to say the least, a perverse and unintended side effect of the intense public attention given to sexual violence in recent years. If the topic of sexual assault were to leave the law-school classroom, it would be a tremendous loss—above all to victims of sexual assault. 

Couldn’t have said it better myself.   You can find her article here:




Dec 13 2014

Spidey’s Web Tests Limits of Court Precedents

The Associated Press reported last week that The Supreme Court said it would use a patent case about a Spider-Man gadget to consider overruling a 50-year-old precedent that bars the collection of royalties on patents after they expire. The Court agreed to review an appeal by Stephen Kimble, the inventor of a web-shooting toy that let kids pretend to be the friendly neighborhood crime fighter.  He obtained a patent in 1991 for a device that shoots foam “from the palm of a hand to give the impression that a spider web is being formed.”

Mr. Kimble sued Marvel Enterprises in 1997, accusing the company of breaching a verbal agreement and patent infringement, alleging the company used his ideas to develop a Web Blaster toy without paying him.  (Marvel is now owned by Walt Disney Co.) The two sides eventually settled in 2001.  Marvel bought the patent and also agreed to pay a running royalty of 3% on product sales.  Marvel says Mr. Kimble and a partner were paid more than $6 million during the term of the patent, which expired in 2010. Not bad for a toy that shoots foam.

The agreement itself didn’t contain an expiration date however — and that’s where Supreme Court precedent comes into play.Mr. Kimble sued in 2008 for an alleged breach of settlement regarding royalty payments.  As the litigation proceeded, Marvel cited the Supreme Court’s 1964 ruling in Brulotte v. Thys Co., which said royalty provisions in patent licensing agreements aren’t enforceable beyond a patent’s expiration. This precedent would provide Marvel with a defense to having to pay Kimble anything beyond 2010.  After lower courts ruled for Marvel (citing Brulotte), Mr. Kimble asked the Supreme Court explicitly to overrule its earlier decision.

US Supreme Court

US Supreme Court

Under the principle of stare decisis, (“stand by decisions”), the court usually sticks by past precedent to promote stability in the law, unless there’s a special justification for charting a new course. Doing so in a Supreme Court case is very difficult as the nation depends on the Court to be the final arbiter on the Constitution and the Supreme Court’s decision on a matter of federal law  becomes the Law of The Land. It has happened several times over the last few decades – most recently in Citizens United which specifically overturned prior rulings restraining corporate political donations. It occurred perhaps most famously in Brown v. Board of Education which overturned the Court’s “separate but equal” doctrine annoucned in Plessy v. Ferguson.

Mr. Kimble’s lawyers say Brulotte’s automatic prohibition on post-expiration patent royalties has been widely criticized and is economically unsound. They argue the Brulotte Court was fundamentally incorrect when it believed that allowing continued royalty payments effectively extended a patent holder’s monopoly. Marvel, joined by U.S. Solicitor General Donald Verrilli, had urged the Supreme Court not to review the case, saying Mr. Kimble hadn’t provided the court with strong enough reasons for taking the extraordinary step of abandoning its precedent. I tend to agree.  Normally, it takes some kind of sweeping societal change or clear proof that the prior decision is unworkable in current society or that it has had an unforeseen impact on the country or the operation of the government. The petition for certiorari  characterizes Brulotte as “the most widely criticized of [the Supreme] Court’s intellectual property and competition law decisions.”

Three panels of the courts of appeals (including the panel below), the Justice Department, the Federal Trade Commission, and virtually every treatise and article in the field have called on this Court to reconsider Brulotte, and to replace its rigid per se prohibition on post-expiration patent royalties with a contextualized rule of reason analysis.

I just don’t see that this is enough and The Justice Department is now arguing for maintaining Brulotte. In my opinion, the Court will likely kick it back to Congress by holding that any  repeal of Brulotte should occur through legislation  Also, the parties could have negotiated this into their contract and Mr. Kimble could have asked for a license to continue beyond the patent’s expiration.

The Supreme Court is expected to hear oral arguments in the spring, with a decision by the end of June. The decision will be important not only to Mr. Kimble and Marvel as millions of dollars may be at stake, but to Court watchers and to those looking to overturn Supreme Court precedent. This Court has shown a willingness to do so; if it does so here, the standard it sets on when that momentous event should occur will far outweigh its decision on the case itself.

Dec 09 2014

Can’t Handle Exams In Light of Garner Decision? Maybe Law Isn’t For You

Harvard University is now considering joining Columbia Law in granting extensions for final exams to those students too traumatized by the Grand Jury decisions in the Michael Brown and Eric Garner cases. :

The grand juries’ determinations to return non-indictments in the Michael Brown and Eric Garner cases have shaken the faith of some in the integrity of the grand jury system and in the law more generally. For some law students, particularly, though not only, students of color, this chain of events is all the more profound as it threatens to undermine a sense that the law is a fundamental pillar of society designed to protect fairness, due process and equality,”  interim Dean Robert Scott said in an email to law students. No kidding. That is an understatement.  But the law is not perfect and decisions that shake your core beliefs in the justice system will occur time and time again. Hell, I nearly couldn’t work for a whole week when Citizens United  came down.

But these students have chosen to work in the law. That many of them were protesting the decisions leads me to believe that they want to effectuate change in the law. That is a noble and necessary pursuit. But you are not going to get  that done by being a hothouse flower. Social change requires tenacity and a steely resolve. You will be hit with defeat and disappointment every step of the way. No significant change has ever come about without that. It should serve as a vehicle for  motivation not procrastination.

malcolm x - adversity

But even if you do not aspire to be the next Malcolm X, Clarence Darrow or  Ralph Nader, the practice of law itself is fraught with the need to keep working in the face of difficult times. Whether you work for a big law firm that demands thousand upon thousands of hours or a small firm where the work will not get done if you don’t do it or as a solo practitioner, where you won’t eat if you don’t do it, “the law is a jealous mistress” as Supreme Court Justice Joseph Story once said (in 1829).  I have often told my kids, my law students, and many others who have asked me the key to a successful law practice: “Unfortunately, there is no substitute for hard work.”  Believe me, I have tried to find one. But whether you deal with transactions or litigation,  adversity will come into your life and you will have to deal with it and plow ahead. There is a client to represent and, particularly if you are in trial, you must be laser-focused on zealously representing that client to the exclusion of all else..

As an adjunct professor at New York Law School, I was asked from time to time for extensions of time on assignments and final papers from students for a variety of reasons. The school had a strict policy against extensions but even if it didn’t I would rarely grant them. The only exception I made was for documented personal illness or a death in the family. To grant extensions for emotional reaction to societal failures is simply a too mild and weak way to treat aspiring lawyers. It rather sounds like they are running  Los Feliz Day Care instead.  [INSERT: Over-50-year-old’s rant about how soft and coddled this new generation is HERE]

Most lawyers and indeed law students can tell you tales of hardships they had to endure to get  through a case, a class,  a trial, an exam, etc. I alone could fill pages and pages of this blog with similar stories about serious misfortunes that happened to me during my law school and law career; but that is called life. It is called reality. It’s called MOTIVATION. We should require our future members of the Bar to be able to use their anger and frustration to  forge ahead and be driven by these miscarriages of justice – not cowed and requesting a time out. We need resilient folks now more than ever who are willing to effectuate change and correct our flawed system. Students who have their ideals in place and whose strength is at full power.

This is not the time to baby them.

We simply can’t afford to.

Follow me on twitter @oscarmichelen

Read more about Columbia’s decision at :


Nov 25 2014

Kid Glove Treatment of Officer Wilson Big Reason Behind Grand Jury Finding

I know its late in this rapid-fire digital age to be posting about Michael Brown. After all, all the talking heads on TV have been blabbing on about their “expert opinions” all day. But unlike them I actually have a practice and was in court all day. I also find it interesting that many of them have never presented a case to State Grand Jury or defended a person testifying in a State Grand Jury. I can tell because many of them are referring to Federal grand juries (very different) and most of them seem to have just gotten past puberty.  But much of the noisy punditry has failed to explain to the public the rarity of a “No True Bill” finding from a Grand Jury.  To summarize my opinion, it seems to me that this Grand Jury was set up to clear Officer Darren Wilson from the beginning.

But first a brief explanation of the Grand Jury process in Missouri which is very similar to the Grand Jury process in  New York.  A grand jury is an arm of the prosecution’s office, it is not a body of the court.  In Missouri, a grand jury judge selects twelve people to serve on the GJ for about a month during which time they hear evidence on a number of cases.  This specific GJ’s term was extended in order for it to hear the Michael Brown case. 9 out of 12 must vote in a favor of a verdict.  In NY, a GJ is made up of 23 people who serve for about a month and 12 of those 23 must vote in a particular way in order for there to be a verdict. If the GJ finds probable cause that a crime was committed and that the defendant committed the crime, the GJ votes an “indictment”; if not the GJ votes “No True Bill.”

Unless the defendant testifies, the defendant is not allowed to be present in the GJ; neither is his counsel.  If the defendant elects to testify, he can still not be present for the rest of the GJ presentation so he goes in not knowing what other evidence has been presented. His lawyer cannot ask questions and cannot even object. He is there only if the defendant wants to seek counsel from him during his testimony.  In NY prosecutors are bound by the rules of evidence  but that’s apparently not the case in Missouri.

But the most important thing about the GJ is that it is the prosecutor’s show: there is no judge present and he operates in secrecy. The GJ is in total control of the DA. I am almost obligated at this point to mention that Judge Sol Wachtler, the former Chief Judge of the State of New York , was quoted as saying, “A grand jury would indict a ham sandwich,” (See People v. Carter, 77 N.Y. 2d 95, 107 & n.1 (1990) (Titone, J., dissenting). This is perhaps the most overused and cliched phrase in the criminal justice system, but that’s probably because it is so true.

But that also means that the GJ could choose not to indict a ham sandwich charged with containing ham. Because HOW a case is presented is as important as what evidence is presented. The tone, demeanor and attitude of the presenting prosecutor can greatly effect the outcome of GJ presentation. The GJ provides a nice vehicle for a DA to “wash his hands” like Pontius Pilate if a case is weak or if he thinks he is on weak legal ground. It provides nice cover. But a potential defendant testifying in the GJ is normally a prosecutor’s dream – its like a school field trip to the zoo in 5th grade.

In this case, though, Officer Darren Wilson, was treated with kid gloves. There was tremendous opportunity to attack his testimony and credibility by confronting him with physical evidence that contradicted his testimony. That did not occur here. He was led through th evidence, time and time again. Some simple points: he was purportedly punched hard, with full force , twice by Micahel Brown (who he described as a “demon: and Hulk Hogan”) yet Wilson had no injuries that would reflect that kind of assault. The hospital record shows him as being “in no apparent distress” and “well-appearing.” It also reports no lacerations, no bleeding and no bruising. How about confronting Wilson with some of this? Or with his photos which show him to be looking like someone who was not punched in the face twice by a large man.

Darren Wilson front face



Darren Wilson side face

How he was punched on the right side of his face while in his car is another point to have been addressed. Maybe he could explain it, but perhaps a strong cross on these areas would lead him to move off his rehearsed and prepared testimony. That’s how you get at the truth.

But instead, his testimony was dealt with as a direct examination with no cross-examination. Presenting a potential target to the GJ is fraught with danger. Seasoned, hardened defense lawyers shake in their shoes when they walk their clients in because they simply don’t know what they are going to be hit with so it is extraordinarily difficult to properly prepare them for the testimony. I know I dreaded it  the rare times that I have done it in my practice.But here, there were no surprises for Wilson. He was never caught off guard or pressured about inconsistencies. Almost all of the questions were softballs made to have him elicit favorable testimony to his cause. It makes me wonder – was he spoken to by the DA’s office in preparation of his testimony? Did the DA’s office share with his defense counsel the evidence they had and how it was to be presented to the GJ?

There were other instances where Wilson should have been pushed, like when he admitted that there was a period of time after he first shot Brown that Brown was down yet Wilson did not then go for a taser or other less deadly means of stopping Brown. He said Brown got up and “charged at him” – although he testified that this “charge” consisted of taking precisely one step towards him – and then he repeatedly fired at him. There was ample room for a vigorous cross on this and many many other issues during Wilson’s testimony which the presenting DA  just accepted and moved on.

So it is a bit of joke for DA Bob McCullough to stand before Ferguson, Missouri and say “All the evidence was presented.” Its not what was presented Bob, its how it was presented. Any criminal defense lawyer would love to have his client treated in the manner that Wilson was handled in the GJ. But that does not happen – which is why “No True Bills” rarely happen – unless of course, that’s the particular flavor of ham sandwich the prosecutor orders.



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