Latest Case: Gish v. Hepp (Civil Rights)

COVID-19 Lays Bare the Cruelty of Neoliberalism

JOSEPH MARGULIES

Cornell law professor Joseph Margulies observes how the COVID-19 pandemic is exposing the cruel folly of neoliberal governance. Margulies points out that neoliberalism—the idea that social problems are better solved by the private sector than by government—has brought millions of Americans to the edge of financial and physical ruin, and COVID-19 will push them over. He argues that now more than ever, we must be communitarians rather than individualists.

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Gish v. Hepp

Docket: 19-1476

Opinion Date: April 3, 2020

Judge: Scudder

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

Gish pleaded guilty to first-degree reckless homicide for the 2012 stabbing death of Litwicki, the mother of his children. He appealed, claiming that his attorney provided ineffective assistance by failing to investigate an involuntary intoxication defense. Police found Gish delirious on the night of the killing. He claimed that rare side effects from taking prescription Xanax affected his ability to appreciate the wrongfulness of his conduct. The Wisconsin Court of Appeals rejected the claim. Gish initiated federal habeas proceedings. The district court held an evidentiary hearing but denied relief, finding that defense was so unlikely to succeed that Gish still would have pleaded guilty. The Seventh Circuit affirmed. While trial counsel admitted that he never assessed a Xanax-based involuntary intoxication defense, that defense had no reasonable prospect of success. Gish told a nurse that he sold his pills and no longer had any and told a detective that he last took Xanax “[a] couple days” earlier. The police found no trace of Xanax in Gish’s home. Even if Gish had taken Xanax the day of the homicide, it was unlikely that he was the rare patient who would have experienced such extreme effects; his expert on that point lacked credibility. Gish confessed to how he went about killing and abusing Litwicki and had a motive--he suspected Litwicki was cheating on him and would take his kids away