Motor City Original: Federal Judge Victoria Roberts

One of President Joseph Biden's first Article II judicial appointments will be to replace US District Court Judge Victoria Roberts; she announced her intention of transitioning to the senior judical service earlier this week. Former President Bill Clinton appointed Judge Roberts to the United States District Court for the Eastern District of Michigan in 1997, replacing retiring Judge George LaPlata. 

Judge Roberts has a long history of public service in the Motor City. She graduated from the University of Michigan in 1973, then attended Northeastern University School of Law in Boston. Like this blogger, she served as a research attorney for the Michigan Court of Appeals. She also taught legal writing and research at the old Detroit College of Law.

In 1993, Judge Roberts worked on former Michigan Supreme Court Justice Dennis Archer's transition team when he served as Detroit's mayor. After a short stint as an Assistant United States Attorney in Detroit in the late 1980s, Roberts was in a private law practice for a decade. 

We here at the Motor City Law Blog have fond memories of Judge Roberts service as a federal judge. In 2004, we had a series of habeas corpus cases filed in the United States District Court for the Eastern District of Michigan. Our client was convicted in a series of murders from Washtenaw County Circuit Court. His appeals were exhausted. 

Because his confession came following a request for legal counsel, he had a valid constitutional issue involving his 5th Amendment right to be free from self-incrimination. When a convicted defendant exhausts his appeals, a petition for habeas corpus can be filed in federal court. 

Our client had a series of six assault and murder convictions, all of which became the subject of a series of habeas petitions in Judge Roberts' court. Her staff could not have been more professional and helpful in getting the petitions properly lodged and ready for disposition. 

Toward the end of her tenure, Judge Roberts is well known for her role in the "travel ban" case of Arab American Civil Rights League vs President Trump. She ordered Trump lawyer Rudy Guliani to turn over a legal memorandum designed to make the Arab travel ban appear not to be aimed at Muslims. 

One of former President Trump's crowning achievements, from a conservative perspective, was appointing hundreds of conservative jurists to the federal bench and three conservative justices to the United States Supreme Court. The debate between textualist conservative and activist liberal jurists has raged for over 100 years in our country. 

When Justice Ruth Bader Ginsburg died last year, many liberals and Democrats decried her decision to remain on the bench until her death, thereby depriving a Democrat administration from replacing her on the bench. Instead, her death provided former President Trump with a third SCOTUS appointment. 

Well, Judge Roberts can now shift to the senior service of the United States District Court for the Eastern District of Michigan knowing that President Biden will select an appropriate replacement for an unforgettable Motor City Original. 

www.clarkstonlegal.com

Chinese Citizen Journalist Sentenced to 4-Years for COVID-19 Reporting

On the first business day of the year, Zhang Zhan, a 37-year old former lawyer, was sentenced to 4-years in Shanghai, China for her dogged reporting about how the Chinese Communist Party handled the world's initial outbreaks of the COVID-19 virus. She is one of several journalists who have disappeared, only to reappear in court to face criminal charges; the Chinese government has a 99.5% conviction rate. 

Her official charges were, "picking quarrels and provoking trouble". Her indictment accused her of publishing a large cache of "fake" information and interacting with foreign media outlets. Interestingly, Ms. Zhan had been charged with "picking quarrels and provoking trouble" twice in 2019; but the indictment shed no light on the details of  the pair of prior incidents. Here is a copy of her original indictment, in Chinese. 

According to Amnesty International, Ms. Zhan has been on a hunger strike for the past 5-months; AI says she has been force-fed through feeding tubes and may have been tortured in other ways. Here is the complete AI report.

Leading up to her trial, she was shackled 24-hours a day. She had to be brought into court in a wheelchair to face her accusers; she defiantly refused to participate in the "trial", saying it was insulting. The BBC reported she was "psychologically exhausted".

In China, prosecutors typically resort to charges of "picking quarrels and provoking trouble" whenever they need to silence government critics like Ms. Zhan. Journalists, dissidents, and human rights activists are all subject to these handy charges.

Ms. Zhan's trial no doubt went like 99.9% of all Chinese criminal trials: guilty as charged. In the sentencing phase of such cases, punishment is harsh. Ms. Zhan, for example, will now do 48-months in a Chinese prison, presumably the Pudong New District Detention Centre in Shanghai. As far back as March 2020, Ms. Zhan clashed with authorities when she bucked the official Communist Party line of encouraging so-called "gratitude education" recognizing the efforts of party leaders in containing the pandemic.

Zhan's Twitter handle and Youtube channel streamed content and videos of the crisis in real time. The videos were smuggled out of China through virtual private networks. Twitter and Youtube are banned in China; Zhan also posted some of her videos to the Chinese social media network WeChat.

Before her arrest, she was able to video a crowded hospital, a crematory, and a community health center. In other videos, she interviewed people on the street for their reactions to the government's handling of the pandemic; she sprinkled critical editorial throughout. 

Prior to the COVID-19 outbreak in Wuhan, China in January, Ms. Zhan was not even a citizen journalist; she had been a lawyer. The New York Times described her as a stubborn and idealistic Christian; she reportedly quoted this passage from I Corinthians: "God is faithful, who will not suffer you to be tempted above that ye are able." One of Ms. Zhan's more fervent concerns was the fate of other now-missing journalists she met while reporting on the Communist Party's handling and early containment of the virus. 

Probably because the Party had its hands full with containing the pandemic, Zhan was able to move freely about Wuhan to create, smuggle, and post content. According to the NYT, she was able to fly under the Party radar because she was a small citizen journalist with a very small following.  Apparently, she acquired a higher profile when she began inquiring at police stations about the missing journalists. In China, that will do it every time. 

She went missing in mid-May 2020 and popped-up over 400-miles away in a Shanghai courtroom in December. Very difficult to fathom that, if she outlives her hunger strike, Ms. Zhan will not embark upon a 4-year prison term for simply recording information about the pandemic.

The Communist Party judge that sentenced Zhan for documenting a public health crisis was, no doubt, impressed with her meddlesome character, as evidenced by her two prior charges from 2019. She apparently failed to show the proper deference to the government's efforts to combat the virus; she did not buy into her neighborhood "gratitude education". 

Of course, this is nothing new for China and the Chinese Communist Party; a locked-down centrally-controlled communist governmental system with a very singular focus: the survival and advancement of the Party. Free critical thought is criminalized and repressed as it has always been in China. 

Ms. Zhan's courage to document government action may prove disproportionately effective in shedding light on an always shifty regime. 

The blogger, Timothy P. Flynn, owns and operates Clarkston Legal, a general practice law firm.  

US Attorney McQuade to Stay at Helm Until Removed

U.S. Attorney Barbara McQuade

When you accept an appointment as a United States Attorney -the federal prosecutor for a geographic district- you serve at the pleasure of your boss, the President of the United States. Michigan has two United States Attorneys: the Eastern District in Detroit and the Western District in Grand Rapids.

Barbara McQuade has vowed to remain in her post in the Eastern District until she is asked to step aside by the President. Her counter-part in Grand Rapids, Patrick Miles, Jr., stepped down when Trump took office last week.

McQuade says that she loves her job and it sounds like she would stay on for as long as the POTUS will have her. President Obama appointed both U.S. Attorneys here in Michigan; after receiving Senate approval, McQuade has been on the job for seven years.

There has been no indication yet from the White House regarding whether or when McQuade will be replaced. If she was replaced, we here at the Motor City Law Blog believe Matthew Schneider, currently the General Counsel for Michigan Attorney General Bill Schuette, would make a fine replacement.

Post #18

Bedrock Detroit and the Spirit of Detroit

Here in Detroit, many people will tell you finally, there seems to be a Renaissance happening; at least in the downtown area. The fringe of the City, in the neighborhoods, it is still very dangerous; children are shot dead nearly every week.

But we've got to start somewhere. This video presents quite a nice face on some of the positive things that are happening right now across our City.

Take a look...

This is the Spirit of Detroit on which we here at Motor City Law Blog prefer to focus. We cannot ignore the murder of children -because that problem must be addressed- but we can focus on the positive.

www.motorcitylegal.com

Murder in Detroit: Two

Miracle Murray was only six-months old when she was murdered by drive-by bullets on a beautiful spring day in Detroit last weekend. Today, there will be a prayer service and peace rally in her honor.

Miracle was just the latest in a long string of senseless murders; violent murders that now claim the lives of toddlers and infants.

Apparently, revenge was a motive in baby Miracle's death; her older brother is a suspect in the Easter Sunday shooting death of 3-year old A'Nayia Montgomery. No arrests have been made and the DPD believes this heinous murder is gang-related.

While violent shooting deaths are nothing new here in the Motor City, this case did get our attention. Over the years, we have known many assistant prosecutors in the murder unit of the Wayne County Prosecutor's office; an overworked and undermanned unit. This is the kind of case that affects your professional outlook for the rest of your career and for the rest of your life.

Yes, Detroit has emerged from bankruptcy and yes, the downtown area and the riverfront have nice facelifts.

But the neighborhoods remain deadly. The schools are kaput. The social fabric continues to unravel.

Until these problems are addressed, the children will continue to die.

www.motorcitylegal.com

Motor City Marvin Suspended From Practice of Law

Attorney Marvin Barnett

Jeeze, say it ain't so. Just as we put the touches on our inaugural Motor City Original series a few months ago by highlighting a victory for attorney Marvin Barnett, the Attorney Discipline Board suspended his law license for three years for multiple ethics violations.

Barnett, a colorful iconic Detroit criminal defense lawyer, has made a career out of taking on the Detroit Police Department and its investigators. Perhaps his crowning achievement was causing the probe into the DPD's crime lab; an investigation that ultimately shut the lab down.

When we bumped into Marvin earlier in the month in the Oakland County Circuit Court, he was talking retirement. With hindsight, he may have seen this opinion coming.

After a hearing at which three sitting Wayne County Circuit Court judges testifed on Barnett's behalf, the ADB concluded that the Motor City defense counsel intimidated a witness in a federal criminal trial and neglected two client matters while mishandling client funds.

The ADB alleged Barnett intimidated the witness in the federal criminal proceeding by telling the witness he risked assassination if he testified in the case against Barnett's client, describing to the witness how his testimony would be transcribed and distributed throughout the local community.

That's all bad for this Motor City original. He cannot represent clients and earn money as a lawyer for three years. At least he did not lose his law license with a disbarment, which was considered by the ADB. Avoiding disbarment is important because, to earn a law license back, the disbarred attorney must pass the bar exam.

We wish Mr. Barnett well in the upcoming years and wonder weather he will just retire, or whether we will see him in a court room down the road.

Motor City Original: White Boy Rick

While in law school in Detroit in the mid-1980s, I remember following the "White Boy Rick" saga.  The case involved kilos of cocaine and a young white kid, Richard Wershe, Jr., once a flashy Detroit upstart drug dealer and man about town, turned big-league informant for the Detroit Police Department, FBI and DEA.

Wershe is believed to be the lone convict still incarcerated from the 1980s-era draconian drug laws. Back in those days, former Governor John Engler spearheaded a legislative initiative called the "drug lifer law".

If you were convicted of manufacturing and delivery of more than 650 grams of cocaine in the mid-80s, you faced a life sentence without parole. All persons convicted under that now-overturned sentencing statute have either died or have been released.

Yet here is Wershe, 28-years later, plodding through his various long-shot appeals. His case is unique to the extent that he was sentenced to life, with the possibility of parole. Earlier this week, the Michigan Court of Appeals snuffed out the ray of hope cast upon Wershe by the Wayne County Circuit Court when it granted his motion for re-sentencing.

The Court of Appeals reversed that ruling on Monday via procedural grounds. Unlikely that the Michigan Supreme Court will even take his case, Wershe must now await another round with the parole board in 2017.

A long-serving convict like Wershe usually grinds through the state court appellate process during the first five-years of incarceration. Once all state remedies have been exhausted, the defendant can then turn to federal court via a petition for habeas corpus.

In the past six months, Wershe has been in the news again for the attempts being made by his appellate lawyers to spring him from the Michigan Department of Corrections. For what he did wrong, it does certainly seem like Wershe paid his debt long long ago.

His cause is amplified by the fact that he is a "one-of-a-kind" inmate. As the longest serving Michigan inmate, White Boy Rick is our Motor City Original this month.