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Archive for March, 2016

Is SCOTUS Nominee Merrick Garland the Next Clarence Thomas?

Thursday, March 24th, 2016

supcourt_buildingPresident Obama nominated Merrick Garland to the Supreme Court in likely response to the Republican position to deny any nominee a hearing or vote.  Garland is a hard choice for Republicans to deny as he is a moderate choice who may lean conservative  on some  issues. He was confirmed on the D.C. Circuit Court of Appeals with only 23 Republican senators opposing. Republicans had little to say against Garland’s qualifications.  The votes against him were geared towards whether additional seats were needed on the District of Columbia court of Appeals. President Obama is playing a game of chess with Republicans in much the same way, Republicans did in nominating Clarence Thomas to fill Justice Thurgood Marshall’s seat.


President George H. Bush nominated Clarence Thomas in 1992 to fill the seat of retiring Justice Thurgood Marshall.  Marshall, the first African American justice to sit on the Supreme Court was known as the champion of civil rights causes—having won the landmark case of Brown versus Board of Election and ruled favorably on many civil rights cases.   Marshall sat on the court from October, 1967 until October 1991.


On Justice Marshall’s retirement, many Democrats and minorities wanted an African American to fill his vacating seat.  Hence President Bush selected an African American named Clarence Thomas.  Thomas’ appointment was a political move based on what was perceived to be the request by many minorities.  Of course, in light of the Anita Hill hearings then and subsequent rulings since then, Clarence Thomas sided with Justice Antonin Scalia and the conservatives on all issues, including civil rights. To say that Thomas is the antitheses to Thurgood Marshall would be an understatement.  It was almost as if the Republicans dared the Democrats to deny an African American male to seat the vacancy of Justice Marshall.


And in 2016, President Obama is playing a similar political game in nominating Merrick Garland to replace Justice Scalia.  President Obama, in lieu of making the bold move, to nominate an African American woman, chose instead to nominate someone that the GOP might be proud to confirm, under any other circumstances.  Except this year, the GOP wants to deny President Obama the Constitutional right to nominate and have hearings held on his Supreme Court nominee.  Republicans instead assert that in an election year, the next president should make the nomination. Despite having no legal authority whatsoever for this proposition, they are using it.  And in reverse, President Obama is playing into their game.  Perhaps, without the Republican blockade, Merrick Garland would not have ever been nominated.  Under different circumstances, maybe President Obama would have nominated an African American woman.


It is actually the Republicans that are in a win-win situation with Garland as the pick.  If the Republicans lose the election, they will likely change positions and Garland will be confirmed—for fear that the presumed Democratic winner will nominate a worse choice—a progressive. And if Republicans win in November, they can either nominate Garland or someone far worse.


But in nominating Garland to appease Republicans, the Supreme Court could be getting a companion for Clarence Thomas.  While the Clarence Thomas nomination did not backfire on the Republicans and was a slap in the face to many women and African Americans, the Garland nomination could backfire against women and African Americans.


Merrick Garland is not a conservative but on some issues, he is far from being progressive.  On  issues such as reproductive rights and abortion, no one knows his views. On the issue of criminal law, Garland might likely side with conservatives on some issues, as he has done in the past. As a sitting federal judge, he rarely voted in favor of criminal defendants’ appeals.  Tom Goldstein of the SCOTUS Blog writes that Garland disagreed with his more-liberal colleagues on ten cases and adopted the position that was more favorable to the government or declined to reach a question on which the majority of the court had adopted a position favorable to a defendant.  This is rare for the D.C. Circuit.  Goldman also notes that Garland has not had to decide many civil rights cases, so his views are not known in such another important area, affecting minorities.


In the end game, President Obama should have nominated someone without giving any deference to the Republicans.  Instead, he gave the GOP’s position weight and merit. And it neither deserved weight or any merit.  In nominating Garland, if confirmed, we may see the court swing to the right with Garland siding with Thomas and other conservatives on important issues affecting women’s rights, criminal law and civil rights. Progressives, minorities and women should be wary of Merrick Garland.


President Obama had the unusual position of being able to nominate three Supreme Court justices in two terms. This last time, he chose to take the path of less resistance.  He caved to the obstructionism of the Republicans. I wish President Obama had taken the bold path and nominated a progressive African American woman to sit on the Supreme Court.  He had plenty of qualified choices from which to choose. He instead decided to nominate a potential Clarence Thomas supporter.


Washington, DC based Debbie Hines is a trial lawyer, Supreme Court bar member, legal analyst and former prosecutor.  She is frequently seen on Al Jazeera America, BET, CBS News, MSNBC, PBS, Sky News and TV One among others.

Freddie Gray’s Friend To Get Jail while Officers Cases in Limbo

Friday, March 4th, 2016
Credit: Murphy, Falcon and Murphy

Credit: Murphy, Falcon and Murphy

On March 29, Allen Bullock will receive a jail sentence pursuant to a plea deal entered in Baltimore Circuit Court on February 29.  Nineteen year old Allen Bullock was charged in April of last year with eight counts of rioting, disorderly conduct and malicious destruction of property following the death of Freddie Gray, his friend. Bullock is seen in a photograph standing on top of a police car smashing a windshield with a cone during a protest.  No one was hurt. Bullock says the death of his friend, Gray, got the best of him.



Baltimore State’s Attorney Marilyn Mosby’s office offered Bullock more than 9 years if he would plead guilty.  Bullock and his attorney, J. Wyndal Gordon, declined that plea deal. Over nine years in jail for, in essence, busting a police car window—are you kidding me?  As a former prosecutor, that doesn’t sound fair and just to me. Obviously, the Baltimore State’s Attorney Office wants to make an example of Bullock but for what reason, I’m not sure. I acknowledge that Bullock committed a crime.  I don’t accept that his crime should result in a 9 year sentence—or any jail time for that matter.


Baltimore Circuit Court Judge Charles Peters offered Bullock and his attorney the plea deal of 12 years all but 6 months suspended, 5 years on probation, 400 hours of community service and getting his GED as a condition.   Bullock accepted the plea offered by Judge Peters, likely because the aspect of facing a trial and the State’s offer was not appealing.  It is an incredibly harsh and long sentence for the crime.  He will be formally sentenced as part of the plea deal on March 29.


What the sentence on March 29 will mean is that Bullock must go to jail for 6 months—minus any time he spent while waiting to make bail last year.  Then he must remain on probation for 5 years.  If he does not complete the 400 hours of community service or get his GED, he will face the balance of the 12 year sentence—all for smashing a police vehicle windshield.  If he gets re-arrested for anything during the next 5 years, he faces up to 11 ½ years in jail—again for busting a police car window.


On April 12, 2015, police arrested 25 year old Freddie Gray and placed him in a police van.   After riding him around Baltimore without a seat belt in the back of the van for 45 minutes, Gray was found unconscious.  He died a week later.  Following Gray’s funeral, riots and civil unrest broke out in Baltimore.  Bullock’s act is seen on video during a protest in downtown Baltimore.


Allen Bullock later turned himself into the police after discussing the situation with his parents. His bail was set much higher than any of the six police charged in the death of Freddie Gray at $500,000 for multiple counts of malicious destruction of property and rioting.  He was released on bail through social media fundraising efforts. However, if not due to the social justice efforts to raise bail, he might still be in jail today. And that would be tantamount to a crime.


Most of the facts are known in Bullock’s case—in part due to video footage.  I question why the prosecutors would choose to make an example of this young man.  It is highly unlikely that any of the six police officers facing trial for the death of Freddie Gray will receive 9 years in jail—assuming any convictions occur in any of the six cases.


Bullock’s case shows that justice is not dispensed evenly and fairly for young African American men—even with a Black woman as State’s Attorney.  And there are two different criminal justice systems—one for the Allen Bullocks and Freddie Grays and one for others who are different from Bullock or Gray.


Washington, DC based Debbie Hines is a trial lawyer, legal analyst and former Baltimore prosecutor.  Her Op- Ed articles appear in the Washington Post, Baltimore Sun and Huffington Post.  She often appears as a legal analyst on Al Jazeera America, BET, CBS News, C-span, MSNBC, PBS, Fox 5 DC and other networks.

Justice Delayed or Denied in the Baltimore Police Officers’ Cases

Thursday, March 3rd, 2016
Marilyn Mosby- Official Photo as State's Attorney

Marilyn Mosby- Official Photo as State’s Attorney

The Maryland Court of Appeals heard arguments on Thursday, March 3 in the case of the Baltimore police officers charged in the death of Freddie Gray.  At issue is whether the State may compel William Porter to testify by giving him use and derivative immunity, in the cases of Alicia White and Caesar Goodson. Goodson is the only officer charged with second degree murder.  Porter’s lawyers argue the testimony will violate Porter’s 5th amendment right against self-incrimination.


William Porter’s trial ended with a mistrial in December, 2015.  The State intended to try Porter first of the six officers with either a conviction or acquittal. In either way, Porter would have been legally free to testify as a witness in the other cases.  He would not have been subjected to double jeopardy or being tried twice if acquitted.  And if convicted, he would be able to testify as he would be found guilty and no longer be facing a trial. The mistrial result threw a monkey wrench in the whole process.  The State needed to reassess the strategy.



The State offered Porter use and derivative immunity in exchange for his testimony.  In essence, the state would not be allowed to use anything that Porter said against him in his retrial.  However, Porter lawyers argue that it violates his 5th amendment rights, since he is still a defendant facing charges.  Judge Barry Williams sided with the prosecutors and Porter appealed.


Whenever use and derivative immunity puts the potential witness in the same position as if he or she had taken the 5th and refused to testify in their own case, there is no harm.  Porter contends that he is harmed since the State may still pursue perjury charges.  And perhaps, the most troubling issue of his testimony is the effect on a federal investigation.  Currently, federal prosecutors are investigating Porter for his role in the death of Freddie Gray.  Federal prosecutors were allegedly in the court during Porter’s testimony in December, according to his attorneys. The federal investigation has been put on hold pending the outcome in Porter’s state case.


All of the six cases are on hold pending the outcome.  The Court of Appeals outcome may end up being a win-win for the State.  Even if the State loses on appeal, they may still consider granting transactional or full immunity to Porter. Full immunity would mean that the State would dismiss the criminal case against Porter.  There is still another possibility.  Since all six cases are on hold, the State can choose to retry Porter first.  And assuming there would not be another mistrial, following the end of his retrial, the State could subpoena Porter without having to give him any immunity.  That was the State’s original plan.


No matter what happens at the Court of Appeals on March 3, the State will still be in a position to try the six officers involved in the death of Freddie Gray.


Many people are concerned about the length of delay in the cases.  Freddie Gray died on April 19, 2015 after being arrested and placed in a police wagon on April 12, 2015.  Ensuing unrest occurred in Baltimore following Gray’s funeral.  And Baltimore State’s Attorney Marilyn Mosby filed charges on May 1, 2015 against the officers.  At the time, Mosby was criticized for rushing to judgment with bringing the charges.  The officers were later indicted.


Other police cases involving death and police brutality allegations have resulted in over a year of investigation without charges being brought.  The names of Michael Brown, Eric Garner and Tamir Rice and Sandra Blake are a few of those individuals who were denied justice.  In the case of the six Baltimore police, the cases have been on a fast track.   And the citizens of Baltimore will need to wait patiently for the outcome.


The Maryland Court of Appeals, the highest court in the State of Maryland will render an opinion in the appropriate time. And the cases will proceed back to the trial court. Justice is never as swift as one would desire.  A delay in justice is not always a denial.



Washington, DC based trial lawyer Debbie Hines is a former Baltimore City prosecutor.  Her Op-Ed articles appear in the Washington Post, Baltimore Sun and Huffington Post. 

Justice Scalia’s Presence in Texas Abortion Case

Tuesday, March 1st, 2016

supcourt_buildingOn March 2, the Supreme Court will hear arguments on a Texas abortion law that aims to make it extremely difficult for abortion clinics to operate in Texas.  The case of Whole Women’s Health versus Hellerstetd will determine whether Texas may require that abortion clinics have admitting privileges at a local hospital and whether abortion clinics must meet ambulatory surgical center requirements.  Meeting ambulatory surgical center requirements may cost millions of dollars for a clinic.  Texas law also forbids abortion after 20 weeks.


While these two requirements may seem reasonable on their face, there is no apparent medical need for them. The American College of Obstetricians and Gynecologists state there is no need for admitting requirements for abortion providers, citing abortions’ low complication rates.  And a 2013 study that reviewed the health departments of every state, found no medical reason for admitting requirements.  The 2013 study arose as a result of the convicted Philadelphia abortion Doctor Kermit Gosnell’s practices. Although there are many differences in how abortions are regulated by state laws, the study found that abortion is overwhelmingly safely regulated in the U.S.



Since the Texas law passed in 2013, dozens of abortion clinics closed- leaving only approximately 10 open to service all of the women in Texas who need these services. The closures have resulted in longer wait time and an increase of self- induced abortions according to a recent study . There are over 5 million women of reproductive age living in Texas.


More troubling for the case and abortion rights advocates is how the effect of 8 justices hearing the case will affect the decision.  Due to Justice Scalia’s death, the Supreme Court appears evenly divided with four liberal justices and four conservative justices.  Justice Kennedy is sometimes the swing vote. After hearing arguments tomorrow, should the justices end with a tie vote on its decision, the lower court ruling will stand. And regrettably, that might mean that the remaining 10 abortion clinics and providers will shut down—leaving the State of Texas without any doctor or clinic to perform abortions on women who require the services.


The Texas case is but one example of why the Supreme Court cannot wait for over a year before a new justice is appointed and confirmed.   And there will many other cases before the U.S. Supreme Court in 2016 that could have potentially devastating effects without a clear decision from the highest court.


Other cases to watch in 2016 include Fisher v. Texas on affirmative action and whether to forbid race to be considered in any matter on admissions; Friedrichs v. California Teachers’ Association on public union dues requirements which could affect many state unions and Zubick versus Burrell one of the never ending cases on the Affordable Care Act and religious exemptions under the Act.  Several have already been argued.


It is unclear if Chief Justice Roberts will ask for re-argument in certain cases until another justice can sit –before an opinion occurs.  If not, and a tie vote occurs, there will be no decision from the Supreme Court on many substantive issues before the Court.  And no decision will mean that justice will be denied in some cases.  In the case of Whole Women’s Health, it may mean that in death as in life, Justice Scalia’s conservative presence may still be felt.


Washington, DC based Debbie Hines is admitted to practice before the Supreme Court.