Latest 4 Cases: Lowrey v. Tilden (Civil Procedure), Dotson v. United States (Civil Rights), Hartsfield v. Dorethy (Civil Rights)

The Real Insidious Part of Dershowitz’s Impeachment Defense

VIKRAM DAVID AMAR, EVAN CAMINKER

Illinois law dean Vikram David Amar and Michigan Law dean emeritus Evan Caminker discuss Harvard Law professor Alan Dershowitz’s explanation of why he stands (virtually) alone in his views on impeachment—that all the scholars who disagree with him are biased partisans. Amar and Caminker explain why this claim is so insidious, with effects lasting well beyond the span of the current presidency.

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Lowrey v. Tilden

Dockets: 19-1365, 19-3145

Opinion Date: February 3, 2020

Judge: Diane Pamela Wood

Areas of Law: Civil Procedure

In consolidated appeals, the Seventh Circuit gave the appellants seven days to file amended jurisdictional statements. The court acknowledged its “reputation as a jurisdictional hawk.” In each of the cases, a magistrate judge issued the final judgment from which the appeal has been taken. Circuit Rule 28(a)(2)(v) requires an appellant in such a case to include in its jurisdictional statement information about the magistrate judge’s involvement and also “the dates on which each party consented in writing to the entry of final judgment by the magistrate judge.” The court cited Circuit Rule 28(a)(2)(v), and the Seventh Circuit Practitioner’s Handbook for Appeals (2019 ed.), which explicitly refers to the failure to provide dates of consent to proceed before a magistrate judge as one of the recurring problems that the court encounters when performing jurisdictional screening.

Dotson v. United States

Docket: 18-1701

Opinion Date: February 3, 2020

Judge: Scudder

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

In 2011, Dotson was indicted for possessing a firearm as a convicted felon. The indictment listed six prior felony convictions and alleged that Dotson qualified for the 15-year minimum sentence mandated in the Armed Career Criminal Act, 18 U.S.C. 924(e). The PSR identified three convictions as qualifying for ACCA enhancement (Indiana armed robbery, dealing in cocaine, and attempted robbery) but was silent on whether any of Dotson’s other convictions (Indiana burglary, marijuana possession, and theft and receipt of stolen property) qualified. Nobody raised the issue. The district court sentenced Dotson as a career offender to 188 months and denied his subsequent post-conviction petition, finding that Dotson had four qualifying ACCA predicates—the three originally designated as such in the PSR plus one for burglary. After the district court’s decision, one of the predicates the PSR originally determined qualified under ACCA (attempted robbery) was eliminated. The Seventh Circuit affirmed. The government can save the enhanced sentence by substituting another of Dotson’s convictions—one listed in the PSR as part of Dotson’s criminal history but not designated as or found to be an ACCA predicate at sentencing. The court reasoned that the substituted conviction included in the indictment and the PSR and Dotson recognized in legal filings and apparently believed that his burglary conviction had served as an ACCA predicate at his sentencing.

Hartsfield v. Dorethy

Docket: 18-1736

Opinion Date: February 3, 2020

Judge: Joel Martin Flaum

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

In 2004, Martinez was shot dead. The Illinois Appellate Court affirmed Hartsfield's convictions for first-degree murder and home invasion. Hartsfield claimed ineffective assistance of counsel, insisting that he repeatedly told counsel that he wished to testify, that counsel asked his mother to “convince” him not to testify, and counsel told Hartsfield that he would “get his chance” when the judge admonished him about his right to testify, but the judge never did that. Hartsfield claims counsel “shushed” him. Hartsfield’s mother supported his statements. The Illinois court affirmed the dismissal of Hartsfield’s postconviction petition, applying the “Strickland” standard and finding that counsel made “a tactical decision,” that Hartsfield was aware that testifying was ultimately his decision, and that Hartsfield’s failure to contemporaneously assert his right barred his claim. The Seventh Circuit affirmed the denial of Hartsfield’s federal habeas petition, first agreeing that the “Strickland” standard applied to the allegation. Without clearly established federal law, it is not clear that the Illinois court unreasonably decided that Hartsfield did not meet his burden of proving that his attorney actually prohibited his testimony. It is not reasonably probable that his proposed testimony would have affected the verdict. Two eyewitnesses placed Hartsfield at the scene of the crime, armed with a weapon and a motive. Hartsfield’s comments later that night further implicated him. Hartsfield’s uncorroborated story, that he was alone, driving around during the time of the murder, is “little more than a generic denial of guilt," insufficient to establish prejudice.

Dorris v. Unum Life Insurance Co. of America

Docket: 19-1701

Opinion Date: February 3, 2020

Judge: St. Eve

Areas of Law: ERISA, Insurance Law

Dorris, a company president, had Unum long-term disability insurance. Her endometriosis became disabling; Unum started paying her benefits in 2002. Later, Dorris was diagnosed with Lyme disease. By 2007, the Social Security Administration granted her disability benefits. To maintain Unum benefits after two years, an employee had to prove that she “cannot perform each of the material duties of any gainful occupation for which [she is] reasonably fitted” or that she is “[p]erforming at least one of the material duties" of any occupation and “[c]urrently earning at least 20% less" due to the disability. In 2015, Dorris told Unum that she was improving and had started golfing and volunteering. Dorris’s Lyme disease specialist indicated that Dorris still had major symptoms and could not work. Unum’s consulting physicians found no evidence of limitations that would preclude sedentary work nor of an active Lyme infection. Unum ended her benefits. In her Employee Retirement Income Security Act (29 U.S.C. 1132(a)(1)(B)) lawsuit, Dorris was denied permission to depose witnesses to clarify the administrative record. Dorris never sought further discovery; nor objected to the ruling. Unum rested on its physician’s conclusions that Dorris could perform the duties of a president. Dorris asserted, without evidence, that such jobs required “55–70 hours a week,” and focused on how little she did as a volunteer. The court limited its review to the administrative record and found that Dorris could not perform the duties of her regular occupation, but nonetheless ruled in Unum's favor, because Dorris's arguments based on the "20% less" option were conclusory. The Seventh Circuit affirmed. The plaintiff bears the burden of proving that she is entitled to benefits. The court did not abuse its discretion in denying Dorris the opportunity to supplement the record after judgment nor were its factual findings in error.