Monthly Archives: May 2021

Confirmed Judges, Confirmed Fears is a blog series documenting the harmful impact of President Trumps judges on Americans rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Sixth Circuit judge Eric Murphy cast the deciding vote to excuse police violation of an African-American mans rights by continuing to interrogate him even after he made clear that he did not want to be questioned further, in direct violation of the Supreme Courts Miranda decision. The May, 2021 decision is in Grayson v Horton, 2021 U.S. App. Lexis 13172 (6th Cir. May 3, 2021).

Clinton Rayshawn Grayson, an African-American man, was arrested by police because they suspected he was one of four masked men who participated in a robbery and fatal shooting at a store in Michigan. After initial questioning, Grayson unequivocally asserted his constitutional right to remain silent, but the police continued to interrogate him anyway, in direct violation of the Supreme Courts well-established Miranda decision. Grayson then stated that he was one of the three men shown in a video during the incident, that statement was improperly admitted into evidence against him, and he was convicted of felony murder.

A state court of appeals acknowledged that the police had improperly interrogated him after he made clear he did not want to talk with them, but claimed the admission of the statement was harmless error because of other evidence against Grayson. Acting on his own without a lawyer, he filed for federal post-conviction relief in a district court, which denied his request. Again acting without a lawyer, Grayson appealed to the Sixth Circuit.

In a 2-1 unsigned decision in which Trump judge Murphy was the deciding vote, the court affirmed the lower court and rejected Graysons appeal. The panel acknowledged that the police had violated Graysons rights and that his statement was erroneously admitted into evidence at trial, and that under Supreme Court precedent, federal post-conviction relief should properly be granted if the federal court has grave doubt about whether the constitutional violation and improper admission of evidence had substantial injurious effect or influence on the jurys guilty verdict. The majority claimed that this standard was not met, however, because the government allegedly presented a compelling case even without Graysons confession, including picture and video evidence and records of frequent cellphone calls among Grayson and the three others.

Judge Karen Nelson Moore strongly dissented. Without the statement improperly obtained from Grayson by the police, she explained, this is little more than a case of guilty by association and a weak one at that. The picture and video evidence was highly suspect, she continued, since the men were masked and a security guard failed to identify Grayson in an earlier video of the men at an apartment building. The cell phone data, she went on, shows at best that he may have been in the vicinity of the store on the night of the incident and that he had been interacting by phone with the other men, his friends, and the interaction stopped when they were robbing the store, all of which does little to implicate Grayson. Moore pointed out that neither of the witnesses who saw men in dark clothes enter the store identified Grayson, and that there was no DNA, fingerprint, or other physical evidence connecting Grayson to the crime scene.

In short, Judge Moore concluded, there were grave doubts that Grayson would have been convicted if not for the alleged confession that was illegally obtained by the police. As a result of Trump judge Murphys deciding vote, however, another Black man will remain in prison, and police will see another example of federal judges excusing misconduct concerning interrogation. In fact, this decision is disturbingly similar to another recent case where a Trump judge cast the deciding vote to excuse police misconduct in violating a persons Fifth Amendment rights. This case reinforces the importance of promptly filling all federal court vacancies with Biden nominees as part of our fight for our courts.

Read the rest here:
Trump Judge Casts Deciding Vote to Excuse Clear Violation by Police of Black Man's Fifth Amendment Rights: Confirmed Judges, Confirmed Fears - People...

While the details of the WTO patent waiver have not been determined (or more properly negotiated), it is important to consider the structure of the international trade regime in which the waiver will operate and the consequences of any agreement defining exactly what will be waived.

The GATT/TRIPS agreement is a treaty, which (of course) is an agreement between countries, and disputes and accommodations are between their governments. The extent to which a private company's patent or other IP rights are protected under the terms of these agreements depends on actions of these governments in enforcing them on the company's behalf. Thus, for protections like patents, a government can agree to "turn a blind eye" to infringement by companies in other countries (or other governments) by refusing to press the rightsholder's case before the WTO, to pressure the governments unilaterally (as in the Watch List and Special Watch List of the U.S. Trade Representative's Special 301 Report), or otherwise support a private company's private actions using an infringing country's legal system. Such "passive" actions (i.e., refusing to enforce rights in violating or "scofflaw" countries) requires very little affirmative action by a government. These are the types of de facto waivers that can be effective, for example, for patented drugs that can be produced by conventional drug production technology wherein description of an active pharmaceutical ingredient molecule.

The details of COVID vaccine production have been set out in various new sources (see Neuberg et al., "Exploring the Supply Chain of the Pfizer/BioNTech and Moderna COVID-19 Vaccines"; Weiss et al., "A COVID-19 Vaccine Life Cycle: From DNA to Doses," USA Today, Feb. 7, 2021; King, "Why Manufacturing Covid Vaccine to at Scale Is Hard," Chemistry World, Mar. 23, 2021; Cott et al., "How Pfizer Makes Its Covid-19 Vaccine," New York Times, April 28, 2021). But these are certainly not disclosed in the detail necessary for commercial production, and the complexities of production are illustrated in graphics from the Times article, wherein the DNA is prepared in Chesterfield, MO and shipped to Andover, MA for mRNA production; then the mRNA shipped back to Chesterfield or Kalamazoo, MI for packaging into the vaccine nanoparticles; and then sent back to Andover for testing before release. While some of this complexity may be company-specific, it also represents the different technological requirements for preparing an effective vaccine. It is unlikely that most of the countries in favor of the waiver (except India and South Africa) have the technological infrastructure for producing the vaccine. And the company in India, the Serum Institute ("the largest vaccine maker in the world"), having the greatest likelihood of being able to reproduce the vaccine if the waiver is put in place recently was forced to "hand over its vaccines to the [Indian] government," according to an article in the New York Times (Schmall et al., "India and Its Vaccine Maker Stumble over Their Pandemic Promises," May 9, 2021).

It is evident that, in the almost total absence of patents involved in COVID vaccine preparation, the disclosure needed to reproduce these vaccines (no matter how difficult that may be in practice) are protected by trade secrets. If the WTO imposes this waiver, the question will be whether the U.S. will compel disclosure of trade secret owned by U.S. companies, or have disclosed them to the extent such secrets are part of regulatory filings. Either action would constitute a "taking" under the Fifth Amendment ("Nor shall private property be taken for public use, without just compensation"); see Epstein et al., "The Fifth Amendment Takings Clause," Interactive Constitution: Common Interpretation. Seemingly simple and straightforward, almost every word in the clause is open to interpretation, none perhaps as much as determining what "just compensation" entails. It is likely that, should the government act peremptorily with regard to takings of trade secrets justified by any WTO waiver clause, the effect on trade secrets will carry the greatest consequences and be the cause of most controversy. Indeed, the prospects arising therefrom are likely some of the biggest impediments towards effectuating any waiver in a manner that could have any chance of achieving the stated goal of facilitating COVID vaccine production.

This prospect also raises the issue of how any such waiver will be implemented in the U.S. Treaties are not necessarily "self-executing" and need to become enforceable through an Act of Congress. The distinguishing feature of such treaties are that "provisions in international agreements that would require the United States to exercise authority that the Constitution assigns to Congress exclusively must be deemed non-self-executing, and implementing legislation is required to give such provisions domestic legal effect." See Mulligan, "International Law and Agreements: Their Effect upon U.S. Law," Congressional Research Service 7-5700, Sep. 19, 2018. The necessity for Congress to act, although not having the heavy weight that entails approving treaties (i.e., a two-thirds majority vote in the Senate) nonetheless could be expected to face significant opposition should it be interpreted to permit the government to exercise a form of "eminent domain" over pharmaceutical companies' trade secrets. In this regard such an act could readily be characterized as "forced technology transfer" and even IP theft, should, for example, such trade secrets be capable of use to weaponize rather than immunize against viral infections.

The administration's public position raises the likelihood of an infringement on private property unprecedented in the U.S. It also has implications for other aspects of foreign policy; for example, at least some of the trade secrets belong to BioNTech, a German company. Germany has not agreed to the waiver, and should the U.S disclose BioNTech's trade secrets, no doubt Germany would have cause to seek redress against America. This is but one of the possible legal consequences that the recent capitulation to the purported global "kumbaya" of the WTO waiver is likely to create.

More complications will likely arise as the negotiations proceed. Provided the Administration is properly advised and the waiver properly limited (e.g., to patents) these and other deleterious consequences may be avoided. In view of the possibility of serious liability arising by improvident acquiescence to generally uninformed calls for a broad waiver, it might not be a bad idea for all those involved in innovation (universities, technology transfer offices, pharmaceutical companies, patent lawyers, and economists) counter these opinions with the facts and make their viewpoints known and voices heard.

Read the rest here:
If the Devil of the WTO IP Waiver Is in the Details, What Are the Details? - JD Supra

Yona Owens, 1973

PublishedMay 10, 2021 6:04 PM by Denise Krepp

On Nov. 10, 1976, Petty Officer Yona Owens and six other women sued the Navy. The women were determined to overturn a 30-year-old federal statute that limited Navy women to shore-duty billets, even though they were trained to work aboard ships. Judge John J. Sirica heard the case on April 11, 1978, and July 27, 1978, and he ruled that women should be allowed to serve at sea.

The woman who pushed for the change, Petty Officer Yona Owens, was born into a Navy family. Her grandfather served in the Navy during the Spanish-American War and World War I, and her father served in the Navy - first during World War II, then as a reservist.

I recently spoke with Owens and asked why she decided to sue the Navy. Succinctly, Owens said that she was raised to solve problems. Once a problem is identified then one should work to fix it. Owens recognized that it was unconstitutional, not to mention a waste of taxpayer money, to limit the service of shipboard-trained female Navy Sailors to shore-duty billets.

Suing the Navy was not Owens first brush with challenging policies restrictive to women. After growing up in Charlotte, N.C., where she was a Girl Scout, Owens attended Appalachian State University. It was 1968, and ASU required women to wear skirts, but the winters were cold so Owens wore her dads Navy-surplus bell-bottom uniform pants to classes. Owens was reprimanded, and she transferred to East Carolina University.

Low on funds, Owens eventually left school and followed in her familys footsteps by joining the Navy. She signed her enlistment papers on May 30, 1973, and was sent to Recruit Training Command (RTC) in Orlando, Fla. The boot camp was for men and women, but at the time they didnt train together. They were allowed to enter the chow hall at the same time, but they couldnt sit next to each other.

After graduating from RTC in late July 1973, Owens attended Interior Communications Electrician A School in San Diego, where she was the only woman in her class. The Navy assigned the men in her class to ships but sent Owens to a second school at Great Lakes Naval Training Center. Again, she was the only woman in her class. At graduation, once again, she was the only person not to receive orders to a ship. Owens said in our conversation it was then she realized her assignments were based on gender.

Owens said her male classmates also noticed the Navys differing treatment of women, and some found it unfair towards men. Because men had to go to sea after their first school, many were displeased that women were allowed to gain additional training without serving in the fleet.

Owens was supposed to attend a third school after graduating from the Great Lakes Naval Training Center, but she convinced her detailer to send her to Japan.

Owens was an E-3 when she arrived in Japan and made E-4 with her performance during the next testing cycle. She was determined to gain the knowledge needed to pass the E-5 exam, so she started spending her free time working on Navy ships docked at Yokosuka. These work details were at the invitations of her former classmates when their ships came into port for repairs.

By both studying and obtaining hands-on training during her off-duty time, which included requesting temporary assigned duty (TAD) on two short-term cruises for family members (known then as dependent cruises), Owens said she surprised the higher-ups and passed the E-5 exam. She was the first female 2nd class interior communications electrician (IC) petty officer in the modern Navy.

While in Japan, Owens wrote letters to senior leaders, including the Judge Advocate General and the Master Chief Petty Officer of the Navy, advocating to let women go to sea. Neither supported this change.

So yet again in December 1975, the Navy assigned Owens to shore duty. This time she was assigned to the Command and Control Technical Center (CCTC) in the National Military Command Center for the Joint Chiefs of Staff at the Pentagon.

From Washington, D.C., Owens contacted the American Civil Liberties Unions Womens Rights Project (WRP), an initiative cofounded by then attorney and law professor Ruth Bader Ginsburg. The WRP agreed to take her case, and the lawsuit Owens v. Brown was filed as a class action on Nov. 10, 1976, in D.C.s federal district court.

Sirica was assigned the case. He was none other than the Watergate judge who ordered the Nixon administration to share tape recordings of White House conversations about the break-in. The April 1978 oral arguments for Owens v. Brown were held in the same courtroom that had held the Watergate trial.

On July 27, 1978, Sirica found that title 10, section 6015 of the U.S. Code the law the Navy was using to limit the assignments of women violated the equal protection guarantee in the Fifth Amendment.

In 1978, 25,000 women were serving in the Navy. Shortly after Siricas ruling, the Navy began assigning women to ships that were not expected to serve in combat. Subsequently, the Navy updated its policies in the 1990s to permit women to serve on combat ships.

Owens was 25 years old when her lawsuit was filed. She sued the service that her family loved, but she did so knowing that if the class action she led was successful, generations of women would benefit. History shows they have.

Thank you, Petty Officer Owens and the brave women who challenged the law with you. Thank you for your service to our country.

Named plaintiffs in Owens v. Brown, 1978, and pay grades at the time: IC2 Yona Owens, YN2 Suzanne Holtman (now Stout), PHSN Natoka Peden, LCDR Kathleen Byerly (Bruyer), LTJG Joellen Drag (Oslund), LTJG Suzanne Rhiddlehoover. YNSN Valerie Sites was on the original complaint but dropped out.

This article appears courtesy of Naval History and Heritage Command, and it may be found in its original form here.

The opinions expressed herein are the author's and not necessarily those of The Maritime Executive.

Read more from the original source:
Owens v. Brown: How The Navy's Women Won the Right to Serve at Sea - The Maritime Executive

As we read and watch the national news, attacks on some of our basic constitutional rights from both the legislative and executive branches of government in Washington, D.C. seem to be introduced with greater frequency and have become more audacious as time goes on.

In response to these ever increasing assaults, Legislative Resolution 107 was introduced in the Legislature this year by Sen. Mike Groene of North Platte.

This resolution was co-sponsored by 30 additional state senators, including myself.

In summary, LR 107 makes the following resolutions:

u It reaffirms our oath to maintain and defend the Constitution of the United States and the Nebraska Constitution.

u It recognizes that recent legislative and executive actions have the consequence of limiting states rights and sovereignty as well as the rights and liberties of the people.

u It protests plans to take action to violate our Second Amendment rights as well as those rights given by the Constitution of Nebraska to keep and bear arms for security or defense of self, family, home and others, . . .

u It protests federal government actions that would violate our First Amendment rights concerning the free exercise of religion as well as comparable rights provided by the Nebraska Constitution with regard to sexuality and the sanctity of life.

u It expresses distress as the prospect of proposed federal legislation that would dictate uniform election rules given the constitutional intent that the election process be left primarily to state legislatures.

u It protests the stated goal of the executive branch to put thirty percent of the land and water in the United States under permanent protection by the year 2030 and expresses concern about our rights under the Fifth Amendment of the U.S. Constitution that states, No person shall . . . be deprived of life, liberty, or property, without due process of law; . . .

u It protests potential federal mandates that restrains a persons right to peaceably assemble or restrict their freedom to travel or conduct commerce by mandating the vaccinations or vaccine passports.

Although yet to be advanced out of Legislatures Executive Board, LR 107 has already faced a concerted attack by some who would like to kill it.

Be assured, as a co-signer of LR 107, I will continue to support efforts to advance this resolution through the legislative process to reaffirm our constitutional rights and protest federal overreach.

I would welcome any comments, questions or ideas you may have on this or any other issue.

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Voice of the People | | hastingstribune.com - Hastings Tribune

A Minnesota jury last month convicted former Minneapolis police officer Derek Chauvin of three murder and manslaughter charges for killing George Floyd on May 25, when Floyd died while he was pinned facedown to the pavement for nine and a half minutes. Today the Justice Department announced that a federal grand jury has indicted Chauvin for violating 18 USC 242 by depriving Floyd of his constitutional rights under color of law.

If it seems like the federal government is trying to punish Chauvin a second time for killing Floyd, that's because it is. Under the controversial "dual sovereignty" doctrine, however, serial state and federal prosecutions for the same conduct do not violate the Fifth Amendment's ban on double jeopardy. Even if you accept that premise, it is reasonable to ask what purpose a second prosecution serves and whether it is just to punish Chauvin twice.

The most serious state charge against Chauvin, unintentional second-degree murder, carries a maximum penalty of 40 years in prison and a presumptive sentence of 12.5 years. The two federal charges, which allege that Chauvin violated 18 USC 242 by using "unreasonable force" and by failing to render medical aid after Floyd became unresponsive and no longer had a detectable pulse, carry a maximum penalty of life in prison or execution when the offense causes someone's death.

Douglas Berman, a sentencing expert at The Ohio State University's Moritz College of Law, notes that federal guidelines recommend that judges classify a crime like this based on the underlying offense. If that offense was deemed to be second-degree murder, for instance, the base offense level would be 38, which corresponds to a sentencing range of 235 to 293 months for a defendant with no criminal record. If the underlying crime was treated as voluntary manslaughter, the offense level would be 29, implying a sentencing range of 87 to 108 months. For reckless involuntary manslaughter, the offense level would be 18, meaning a sentencing range of 27 to 33 months.

Berman adds that "there can be all sorts of viable arguments for departures and variances." He says thatis "one of many reasons I think this will get hammered out as a plea deal whenever Chauvin's status in the state system is 'settled.'"

The elements of the federal crimes, which require proving that Chauvin "willfully" violated Floyd's constitutional rights, are superficially different from the elements of the state crimes. But to convict Chauvin of unintentional second-degree murder, the state jury had to conclude that he intentionally committed third-degree assault, meaning he knew his use of force was not legally justified. If so, he also should have known that his use of force violated the Fourth Amendment's ban on "unreasonable" seizures, which is the essence of the main federal charge.

According to the Supreme Court, none of that matters. Even when two levels of government define the offense the same way, the Court has said, serial prosecutions do not qualify as double jeopardy. In a 2019 case involving a man who was separately prosecuted for violating state and federal laws that prohibit people with felony records from possessing firearms, the Court reaffirmed the familiar but puzzling logic of the dual sovereignty doctrine: Since two "separate sovereigns" had criminalized the defendant's conduct, it constituted two distinct offenses under the Double Jeopardy Clause. Notwithstanding appearances, then, he wasnotprosecuted twice "for the same offense."

Still, the fact that the Justice Departmentcan prosecute Chauvin for the same actions that resulted in his state convictions does not necessarily mean itshould. The situation would be different if a state were unwilling or unable to punish police abuse, as frequently happened in the Jim Crow South. In such cases, the possibility of a federal prosecution is an important backstop that clearly serves the interests of justice. And it is a legitimate function of the federal government to vindicate the constitutional rights of people victimized by police when no one else is prepared to do so.

By that standard, a second indictment that the Justice Department announced today, which charges Chauvin with violating 18 USC 242 by assaulting a teenager in 2017, is more defensible. According to that indictment, Chauvin, "without legal justification," held the 14-year-old by the throat and struck him "multiple times in the head with a flashlight." Since Chauvin was not charged under state law in connection with that incident, he was never prosecuted for this alleged use of unreasonable force.

In the Floyd case, however, the state vigorously prosecuted Chauvinperhaps too vigorously, since Minnesota's quirky felony murder law allowed prosecutors to treat an unintentionally lethal assault, which ordinarily would be charged as manslaughter, as murder instead. But even without that count, Chauvin would still face a presumptive sentence of 150 months for third-degree murder (although the propriety of that charge is also a matter of dispute).

While some people might think that penalty is not severe enough, it is the punishment recommended by the Minnesota Sentencing Guidelines Commission, which was charged with doing so by the state legislature. And since we still don't know what Chauvin's state sentence actually will be, it is premature to say whether it is proportionate to his crime.

In any case, federal prosecutions aimed at "correcting" the criminal penalties that states deem appropriate second-guess the good-faith decisions made by state legislators and judges. Given the broad sweep of federal law, that practice opens the door to routine interference in cases that should be handled by state courts. The Justice Department's history of bringing duplicative "hate crime" charges against people who also face state prosecution for the same conduct suggests how arbitrary those decisions can be. Since the Constitution does not give the federal government a general "police power," the Justice Department should step in only when there is a clear federal interest that cannot be vindicated by state prosecution.

The federal charges against the three officers who witnessed or assisted Floyd's prolonged prone restraintJ. Alexander Kueng, Thomas Lane, and Tou Thaoare dubious for similar reasons. The indictment charges Thao and Kueng with violating 18 USC 242 by "willfully fail[ing] to intervene to stop Defendant Chauvin's use of unreasonable force." It also charges Lane, Thao, and Kueng with violating that law by "willfully fail[ing]" to render medical aid.

Although Lane helped restrain Floyd by holding down his legs, he also repeatedly suggested that Floyd should be rolled onto his side, a position in which it would have been easier for him to breathe. Those suggestions, which Chauvin rejected, may explain why Lane was not charged with failing to intervene.

Because the federal charges specify that the conduct of Chauvin's three colleagues "resulted in bodily injury to, and the death of, George Floyd," they carry the same maximum penalty (life or execution) as the charges against Chauvin. Meanwhile, all three officers have been charged under Minnesota law with aiding and abetting Chauvin's state crimes, which theoretically exposes them to the same state penalties that Chauvin faces. Their state trial is scheduled to begin on August 23.

Kueng, Lane, and Thao are all at least morally complicit in Floyd's death, although to different degrees and certainly not to the same extent as Chauvin, who was the senior officer at the scene and was mainly responsible for the assault that killed Floyd. Whether Kueng et al. are legally guilty of aiding and abetting manslaughter and murder is more debatable, especially with respect to Thao.

Thao, who began working for the Minneapolis Police Department in 2008, showed appalling indifference to Floyd's plight, assuring concerned bystanders that Floyd, despite his many complaints that he could not breathe, was fine. But Thao did not participate in restraining Floyd and was following Chauvin's lead in concluding that Floyd's life was not in danger. Kueng and Lane, both rookie officers, likewise can be expected to argue that they reasonably trusted Chauvin's judgment.

After the aiding and abetting charges were filed last year, Ted Sampsell-Jones, a professor at Mitchell Hamline School of Law in St. Paul, noted that they are "legally valid under Minnesota law" but "rely on some fringe doctrines of accomplice liability." Those doctrines, "which have long been criticized by progressive reformers, create expansive strict liability for minor participants in group crimes."

Even if one or more of these three officers is acquitted in state court, they will still face federal prosecution for the same conduct. And if they are convicted in both state and federal court, they will be punished twice. That prospect is especially troubling given their limited involvement in Floyd's death.

The shocking bystander video of Chauvin kneeling on Floyd rightly provoked nationwide outrage and led to protests across the country. But Chauvin and the other officers should be punished for what they did, not for the crimes of similarly brutal or negligent cops. If the Justice Department is prosecuting Chauvin, Kueng, Lane, and Thao to make a statement about the broader problem of police abuse, it is misusing its powers and perverting the criminal justice system.

Originally posted here:
Why Is the Justice Department Trying To Punish Derek Chauvin Twice? - Reason