Monthly Archives: December 2015

Reflections 2015: 20 Reasons To Be Proud

WMU-Cooley Law School has much of which to be proud. We have taught generations of students to be successful lawyers. We have inspired alumni to become leaders in their communities, devoted to serving clients to the best of their ability. And we have done so while staying true to our founding principles.

As we look forward to the the new year, we can reflect back on 2015 with our 20 Reasons To Be Proud.

Layout 1

 

Leave a comment

Filed under About Cooley Law School, History, Achievements, Uncategorized

Sun has finally set on limiting post-conviction DNA testing in Michigan

Professor Marla Mitchell-Cichon

Professor Marla Mitchell-Cichon

Blog author, Marla Mitchell-Cichon, is the director of WMU-Cooley Law School’s Innocence Project as well as the co-director of the Access to Justice Clinic for Western Michigan University Cooley Law School. Professor Mitchell-Cichon has extensive practice experience in criminal and poverty law. Her litigation experience includes practicing before the U.S. Court of Appeals for the Sixth Circuit, the Ohio Supreme Court, and trial courts in both Ohio and Michigan.

The sun has finally set on limiting post-conviction DNA testing in Michigan. On December 17, Governor Rick Snyder signed SB151 which eliminates the sunset provision of MCL 770.16. There is no longer a time bar on filing post-conviction petitions for DNA testing.

Sen. Steve Bieda (blue tie) joins all the WMU-Cooley Innocence Project team on the Capitol steps after a May 7, 2015 press conference introducing Senate Bill 291.

Sen. Steve Bieda (blue tie) joins all the WMU-Cooley Innocence Project team on the Capitol steps after a May 7, 2015 press conference introducing Senate Bill 291.

Michigan passed its first post-conviction DNA testing law in 2001. Shortly thereafter, Professor Emeritus Norman Fell founded the Cooley Innocence Project. The 2001 law was set to expire on January 1, 2006. In 2005, the law was extended to 2011 and then extended again, with a sunset of January 1, 2016. This year, Senator Steven Bieda proposed making the law permanent.

One of the key reasons the law must be permanent is the continuing advancements in DNA technology. Today’s DNA technology can yield results that the technology in 2001, 2006, and 2011 could not. DNA testing is a powerful scientific tool that can link someone to a crime scene. Post-conviction DNA testing not only can prove factual innocence, it can identify the actual perpetrator. That is exactly what happened in Kenneth Wyniemko’s case. In 2003, the Cooley project proved Mr. Wyniemko’s innocence through post-conviction DNA testing. Five years later, the actual perpetrator was identified.

WMU-Cooley Innocence Project exoneree Kenneth Wyniemko sharing his story with the press.

WMU-Cooley Innocence Project exoneree Kenneth Wyniemko sharing his story with the press.

It’s no coincidence that Senator Bieda was Wyniemko’s state representative at the time. Both Bieda, now a state senator, and Wyniemko have been tireless advocates to make Michigan’s post-conviction testing law permanent. Over the years, WMU-Cooley faculty and students have educated legislators and testified before House and Senate committees. All their hard work paid off when lawmakers passed SB 151 in early December.

Since 2001, the WMU-Cooley Innocence Project has screened over 5,000 cases. In October, the Department of Justice awarded the WMU-Cooley project a $418,000 grant to support our work. Making MCL 770.16 permanent could not have come at a better time.

This slideshow requires JavaScript.

Each term, students from WMU-Cooley and Western Michigan University team up for a WMU-Cooley Innocence Project Orientation Day. The project accepts 6-10 especially qualified students to work with faculty experienced in criminal and post-conviction law to review and evaluate post-conviction cases for strong evidence of factual innocence and prepare appropriate cases for court action. Cooley Law School students, under faculty supervision, work directly on the project and are intricately involved in various operations of the project; such as creating screening procedures, obtaining and reviewing case histories, applying screening devices, investigating facts, interviewing involved persons, writing case time lines and summaries, performing case analyses, preparing written case evaluations and pleadings. To date, the WMU-Cooley Innocence Project has exonerated three individuals: Kenneth Wyniemko, Nathaniel Hatchett, and Donya Davis.

The WMU-Cooley Innocence Project is the only DNA-based innocence project in Michigan. The Project screens Michigan cases for strong claims of factual innocence. Law students and Western Michigan University undergraduates manage their own caseloads under Professor Marla Mitchell-Cichon’s supervision, along with the support of two new staff attorneys, Ayda Rezaian-Nojani and Eric Schroeder. Former staff attorneys Bill Fleener and Cassandra Babel have supported the Project’s casework as well as our legislative efforts. Professors Norman Fell, Kathy Swedlow and Donna McKneelen made significant contributions to the Project and educated legislators over the years. Countless WMU-Cooley students have screened and developed cases, providing high quality legal representation to our clients.

1 Comment

Filed under Ethics, Faculty Scholarship, Uncategorized, WMU-Cooley Innocence Project

Florida college students learn about the law during mock trial at WMU-Cooley Tampa Bay campus

Learning about the U.S. Constitution when you are an undergrad can be interesting, but learning about our nation’s founding document from law school professors and getting to be part of a mock trial is truly inspiring. Or at least that’s how students from the University of South Florida described their experience during a visit to WMU-Cooley Law School’s Tampa Bay campus in Riverview, Florida. USF Professor Judithanne Scourfield McLauchlan organized, for the third time this year, a day-long visit to the law school for her Constitution Law I students  so they can learn firsthand from the law professors and Constitution Law experts.

collageScourfield McLauchlan gives the law school and their professors high marks, and so do the students. The USF professor said she feels that this kind of learning is critical to not only understanding the importance of our nation’s founding document, but the history behind the Constitution of the United States why we need it.

“We enjoyed hearing from Dean (Jeffrey) Martlew — and the warm welcome we received,” said Professor Scourfield McLauchlan. “We were very grateful for the opportunity to use the appellate courtroom at WMU-Cooley for our mock U.S. Supreme Court Oral Argument simulation. Such a wonderful facility. And I find it inspires my students to rise to the occasion.”

WMU-Cooley Professor Paul Carrier speaks to University of South Florida students about Constitutional Law and the Courts.

WMU-Cooley Professor Paul Carrier speaks to University of South Florida students about Constitutional Law and the courts.

The students spent part of the day with WMU-Cooley Professor Paul Carrier who had the opportunity to discuss with them the Constitution and its meaning. He also engaged the students in a roundtable conversation, asking questions and debating issues surrounding issues of today and from the past.

“Having the opportunity to address these issues around law professors in a mock courtroom really seemed to intensify the experience for the students and to make more real the possibility of practicing Constitutional Law, “explained Professor Carrier. “We even had the chance to discuss one of my pet projects that I am supervising and advising — a moot court competition that focuses on public international law issues.”

Carrier explained to the students how there are myriad practice areas and employment opportunities inside the field of law. “Law school is almost a misnomer,” Carrier explained. “A university is comprised of a collection of different colleges, whereas a law school is actually its own collection of different areas of law and opportunity with similar breadth. Students get a chance to see that when they visit.”

Read the Constitution of the United States:
http://www.senate.gov/civics/constitution_item/constitution.htm.

 

 

 

 

Leave a comment

Filed under Cooley's Great Locations, Faculty Scholarship, Uncategorized

Four Steps to Avoid the ‘Land-Mines’ at Death

Professor Gary Bauer

Professor Gary Bauer

Professor Gary Bauer has been a member of the full-time faculty at WMU-Cooley Law School since 1998. He now teaches Estate Planning to third-year law students and a directed study class he created called Solo By Design. His blog, sololawyerbydesign.com, provides law students, recent solo practitioners, and seasoned professionals who wish to go solo, with information and resources to be successful in the legal business. This blog post was first published on October 8, 2015.

A True Story

Before my mother and father passed away, and when all 11 siblings and I were together (not a very common occurrence), at one point, we gathered in the living room of their house. My mom then sent one of my siblings into another room to retrieve a cardboard box. This box was not unlike many boxes in families of their generation. It was filled with photographs. You know the box! It has many photos in it. Some were in small albums. Some had negatives, some did not. And there were very old photos of all sizes and more recent photos. Several of my siblings sat over the box and passed photos to the ones of us featured in those photos and held up others that had significance for many of us.

We laughed, we cried, and we shared memories with one another. After we went through the photos, mom and dad invited us to take any of those photos that we wanted. We asked one of my brothers to be our archivist. He would take those photos that we wished to have duplicated and hold onto the rest.

box-915058_1280

Do you want fireworks?

After that process was complete, dad and mom asked us if there were any items that they possessed that we might like to have, particularly those of sentimental value. I left with a hat and a hand-plane that I associated with my dad and my other siblings chose other items as well.

My parents are both gone, but they always taught us to get along and to support one another. Harmony within our family was the norm. Even as children, we rarely had disputes. We learned to share and support one another as a result of our circumstances and great parenting. I really believe that, even in dysfunctional families, an event like this would set the stage for greater cooperation among family members at the death of a loved one. True, it won’t work for everyone, but it is one tool that a family can use to prevent battles over the tangible items left behind. They are frequently the source of disputes later on, as they are often viewed as tangible symbols of the love and affection that the decedent left behind. Siblings often struggle to wrest them from one another as symbolic of greater love and affection for one child over another.

As an estate planning attorney for over 20 years, I have seen it all. Too often, we hear about family members who no longer speak to one another. Frequently, this occurs after the distribution of an estate upon one of their loved one’s death. How do you avoid this? The truth is that there are some families that are destined to “explode” upon the death of one of the central figures in the family. And there is nothing you can do to prevent this.

At the same time, I often see planning that could have created an atmosphere of cooperation and harmony. But the planner failed to plan effectively because he or she failed to address the obvious tensions that often exist between siblings or step-parents and the surviving progeny of a decedent. My parents set the stage, in my story above, to promote harmony in our family.

I have a four-step program that you might wish to implement with all of your clients. Where you see dissonance in the family or merged family units, you may want to consider this approach.

  1. Gain a clear understanding of the dynamics in the family. Be aware of clients who do not wish to air their “dirty laundry” and speak poorly of their progeny. Of course, there are those who will willingly tell you about the problems associated with their children and, in particular, their “steps” issues which will abound. Allow them the freedom to tell the story of their family and their extended family. This takes time. But this step is critical as you prepare their estate plan. Help them avoid the “land-mines” buried beneath the tranquility masked by the apparent cohesion that exists as long as your client is alive. Cohesion just waiting to explode upon their death. This inquiry is a “value added” component of your practice. It will help distinguish you from online resources or the “discount” attorney down the street. Spend time allowing your client to vent and be curious. When they speak about their own extended family transfers of property at death, they will be giving you clues to the issues they foresee and wish to avoid.
  2. Help the client to choose an agent most appropriate to administer the estate. Is this a person who can muster the assets, maintain order, and at the same time, not alienate everyone in the process? This is a very difficult role to execute properly and is often where estate administration falls apart. If it is one of your children amongst many, is this the natural and accepted leader by the majority of the other siblings? Is it one of the step-children being put in charge? If so, is this someone who will be accepted and respected by the survivors? If not, it may be best to pick an “outsider” as your agent to neutralize potential feelings of disenfranchisement by some of the survivors. The cost, in the end, might be a bargain compared to the expenses of possible litigation.
  3. Encourage your clients to distribute their personal effects to experience the satisfaction of making gifts during their lifetime. For those things that they wish to retain until death, have them make a list and incorporate it by reference into their Will or Trust. Make sure they identify with clarity who is to receive that gift and the item with specificity. Incorporate language in your Will or Trust with three orders of priority. A. First, distribute my tangible property according to my express wishes. B. Second, for those items not expressly devised, distribute them as agreed amongst yourselves. C. Third, for those items that you cannot agree, I direct you to place your names in a hat with the first name drawn to have first choice, the second name drawn shall have second choice, and so forth until all the items have been chosen or no one wishes to choose another item. The rest shall be sold or given away. I saw this provision many years ago and felt it is one way to avoid litigation over the family Bible or some other item personal to the decedent.
  4. Consider an ethical Will or Trust. My father had a preamble in his Will which had words to this effect:

The things I leave below are not the gifts I leave you with the greatest value. The times we spent together, the memories we shared, my hopes and aspirations for your success and happiness in the future are those things of value. I love you all so very much and wish for you the very best that life can offer. I have appointed Bruce as my executor, and I ask that you assist him so that he is able to distribute my property expeditiously and without intervention.”

I believe many of the battles that ensue at the death of a loved one can be avoided with good counseling; this is the type of counseling you cannot get using on-line document generating software. As attorneys, we need to do a better job of explaining why our counsel has value. The end result, the document, is merely a great by-product of good counseling and it is not the most valuable component of our services.

 

Leave a comment

Filed under Faculty Scholarship, Uncategorized

On Religious Freedom, Bigotry, Donald Trump and Immigration

WMU-Cooley Professor Devin Schindler

WMU-Cooley Professor Devin Schindler

Blog author Professor Devin Schindler teaches Constitutional Law and Health Care Regulation at WMU-Cooley Law School’s Grand Rapids campus and is a frequent commentator on numerous healthcare and Constitutional issues, having been interviewed over 200 times by radio, television, print and internet media sources.  His comments have appeared in Time Magazine, The Huffington Post, The New York Times, The San Francisco Chronicle and numerous local media outlets, including this Dec. 8, 2015, WZZM13 story called Legal expert weighs in on Trump controversy.

One would think that Donald Trump’s proposal to temporarily prohibit Muslims from entering the country because of their religious beliefs would be flatly unconstitutional. After all, both the Equal Protection Clause and the First Amendment religion clauses have been interpreted as prohibiting government from discriminating based on religious belief, absent the most compelling of reasons.

Unfortunately, one would be wrong. The United States has a shameful history of discriminatory immigration policies that used national origin, race and even political ideology as a basis to exclude individuals from entering the country. Immigration laws that discriminate based on membership in a suspect class date back to at least 1882, when Congress passed the “Chinese Exclusion Act,” which forbid any laborer of Chinese descent from entering into the country. In a series of cases challenging the law, the Supreme Court ruled that Congress’ “plenary” Article I authority to  “establish a uniform Rule of Naturalization”  essentially gave Congress carte blanch to discriminate for  any reason, or no reason at all.

This plenary authority was exercised again in 1924, when Congress adopted the National Origins Act, which  imposed immigration quotas based on national origin. The quota system restricted immigration from Eastern Europe and made it practically impossible for Asians and non-Caucasians to enter  the country. The law was motivated by racial and religious animus against non-white, non-Christian immigrants.

More recently, in the 1972 opinion Kleindienst Mandel, the Supreme Court upheld the Secretary of State’s decision to exclude from the country a Belgian journalist who espoused Marxist ideology. Rejecting a First Amendment challenge,  the Supeme Court upheld the exclusion based on Congress’ “plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.”  Historically, the Supreme Court has been extremely deferential to Congress’ authority to exclude aliens from our borders, even when the exclusion is based on racism.

Congress is unlikely to enact a law banning individuals from entering the United States based on their religious beliefs. But even if Congress were to do so, hope remains. First, the opinions carving out Congress’ plenary authority over immigration issues largely predate the Equal Protection revolution that occurred in the 1950s and 1960s.  As cases like Brown v Board of Education evidence, our nation has more recently recognized the evils of race and ethnic origin discrimination. Second, our nation has, since its inception, considered religious discrimination to be particularly invidious. This commitment to religious equality is recognized (among other places) in Article VI of the Constitution, which forbids the government from imposing religious tests for  high office. Although not directly relevant to the immigration issue, Article VI reflects our shared history of accepting all people, irrespective of their religious beliefs.

In 2012, Congress enacted a resolution apologizing for enacting the blatantly racist Chinese Exclusion Act. Three years later, we find ourselves embroiled in a debate on whether Congress can or should exclude people because of their religious beliefs. We are reminded yet again that a country that does not learn from history is doomed to repeat it.

Do you agree that our country does not learn from history, but is doomed to repeat it? Share your opinions.

Leave a comment

Filed under Faculty Scholarship, Uncategorized

Is gun control effective? WMU-Cooley professors debate open carry laws in schools

Should Open Carry be Allowed in Public Schools? That was the topic of a debate held at Western Michigan University-Cooley Law School’s Grand Rapids campus on Dec. 2. WMU-Cooley Law School Professor David Tarrien, who teaches courses in education law, debated the issues with Adjunct Professor Steven Dulan, who teaches courses in gun law.  The debate was scheduled in response to a recent court decision allowing the Ann Arbor school district to impose gun-free zones, but was inadvertently also timed with the mass shooting in California, which made the conversation even more poignant and essential.

WMU-Cooley Professor David Tarrien, with a background in education, speaks to audience during debate over gun control.

WMU-Cooley Professor David Tarrien, with a background in education, speaks to audience during debate over gun control.

“From a policy standpoint,” started WMU-Cooley Professor David Tarrien, “allowing concealed pistols or open carry into schools is like allowing fish to have more bicycles – the concept doesn’t make sense and is a bad choice for three basic reasons; it is uncivil, it is unsafe, and it is ineffective.”

Tarrien went on to say that “Bad guys with guns do not go to schools because they are gun free, they go to soft target areas because they are abundant with people. They will go there whether there are law abiding citizens with guns or not. Adding more private citizens will only add to the chaos – not prevent it.”

WMU-Cooley Adjunct Professor Steven Dulan, with a military background, talks during a debate over the right to legally carry guns in Michigan schools.

WMU-Cooley Adjunct Professor Steven Dulan, with a military background, talks during a debate over the right to legally carry guns in Michigan schools.

Professor Steven Dulan took the position that posting “no guns” signs actually creates an atmosphere of uncertainty.  He said that making a public statement that guns aren’t allowed lets potential shooters know they won’t be confronted by law-abiding citizens with guns.

“While this area of law (Open Carry) is currently in flux, the public policy arguments favoring armed citizens are sound,” stated Dulan, “While my opponent and I agree on our hope for more safety, it turns out that putting a ‘No Guns’ sign up doesn’t actually ensure that there won’t be guns there. In fact, it turns that place into a Mass Murderer Empowerment Zone. Someone who is bent on committing a horrible crime will not be deterred by one more law, or a sign.”

Dulan also spoke about laws disarming individuals, noting they deny the right to self-defense, while allowing criminals freedom to commit crimes without the worry about an immediate response. “When seconds count, the police are only minutes away. Guns are plentiful and durable. No law can make them disappear. The only impact of laws that disarm citizens anywhere is to deny them their basic right to self-defense, while violent criminals are free to commit crimes without worry about an immediate response.”

“You are constantly surrounded by guns whether you realize it or not,” Dulan added, while noting there are nearly 500,000 concealed pistol licensees in Michigan. “There is no logical reason to exclude us from any specific areas unless the area is secured by metal detectors and armed guards. We are your friends, family, co-workers, and neighbors. We do not act as vigilantes. In fact, the overall crime rate for CPL holders is approximately 10 percent of the crime rate for the general population.”

WMU-Cooley Law School Professors Steven Dulan (left) and David Tarrien debated Michigan’s gun laws during a forum on Dec. 2. Photo: Courtesy Cynthia Price and the Legal News

WMU-Cooley Law School Professors Steven Dulan (left) and David Tarrien debated Michigan’s gun laws during a forum on Dec. 2. Photo: Courtesy Cynthia Price and the Legal News

Tarrien replied by noting that allowing guns in schools is, “uncivil in a society ruled by law, codifying vigilantism as a standard concedes to defeat to anarchy.” He also noted that Michigan’s requirement to attain a concealed pistol license is “inadequate to the task of crisis assessment in an active shooter scenario.”

“The risk of collateral damage (to children and school personnel being caught in crossfire), law enforcement arriving and not being able to distinguish between ‘good guys with guns’ and ‘bad guys with guns’ and even the possibility of safety negligence – accidentally leaving a gun behind in a bathroom or dropping a gun while trying to break up an altercation (both of which have actually happened in Michigan schools within the past year) suggest the potential harm outweighs the efficacy of having the guns in the school.”

Should Open Carry be Allowed in Public Schools? What are your thoughts and opinions on the effectiveness of gun control?

Leave a comment

Filed under Faculty Scholarship, Latest News and Updates, Uncategorized

Panel of judges share wisdom and top tips for legal writing to law students

WMU-Cooley Law School students recently had the opportunity to participate in an exclusive roundtable with local judges. On Friday, Nov. 13, the Tampa Bay campus’s Student Chapter of the Federal Bar Association and Legal Writing Department co-sponsored a judicial roundtable entitled “Professionalism and Ethics in Legal Research and Writing.” The event was aimed at reinforcing the importance of professionalism in persuasive legal writing.

Judge David Denkin, Twelfth Judicial Circuit Court of Florida, speaks to law students during WMU-Cooley Tampa Bay's Professionalism and Ethics in Legal Research and Writing Judicial Roundtable event.

Judge David Denkin, 12th Judicial Circuit Court of Florida, speaks to law students during a WMU-Cooley Professionalism & Ethics in Legal Research & Writing Judicial Roundtable event.

WMU-Cooley brought together a panel of six judges to share their wisdom, lead small group discussions during break-out sessions, and answer questions. This unique format provided for fruitful collaboration between students and judges. After each judge listed his or her “Top-Five Tips” for legal writing, the judges and students broke out into six small groups to discuss a factual scenario suggesting an ethical or professional legal dilemma.

Here are six samples from the judges of the their top tips:

  • Proof, proof, proof your work!
  • Be concise; get to the point, but summarize your findings at the beginning
  • Don’t misrepresent the law; it will destroy your credibility
  • Read the document out loud as part of proofing
  • Use IRAC (Issue, Rule, Application, and Conclusion) and plain language
  • Cutting and pasting from previous documents can be dangerous!
Senior U.S. District Judge Susan Bucklew speaks with students during a WMU-Cooley professionalism event.

Senior U.S. District Judge Susan Bucklew speaks with students during a WMU-Cooley professionalism event.

The judges led the discussion and, drawing from students’ ideas, guided the group to a consensus on a proper resolution to the problem.  After reconvening from the break-out groups, each judge presented his or her group’s scenario and its ideal resolution to the full audience.

For example, a group led by Judge Susan C. Bucklew discussed a scenario in which a new associate is handed a file moments before covering another attorney’s motion hearing.  The brief in support of the client’s motion is poorly written and misrepresents the law.  Students considered the benefits and drawbacks of “throwing the other attorney under the bus” by simply disclaiming responsibility for the brief.  Judge Bucklew pointed out that most judges would appreciate an attorney acknowledging the brief’s shortcomings but assuring the court that he or she was prepared to “fill in the gaps.”

The students were engaged and enthusiastic about working with sitting judges. Federal Bar Association Cooley Student Chapter President Angela Tormey said, “Having the opportunity to spend time with judges, get their personal insight on simulated real-world situations, and have that two-way conversation was very educational.  It certainly brought to life lessons we encounter in the law school setting.” Third-year student Eula Bacon was even able to use some of what she learned the very next week during Trial Skills.  Judge Charles P. Sniffen had explained that, when preparing to question a witness, a good attorney should first consider the answers he or she wants to elicit and then draft the questions needed to get those answers.

tb_event3

In attendance were:

  1. Hon. Susan C. Bucklew, United States District Court for the Middle District of Florida, Tampa Division;
  2. Hon. John F. Lakin, 12th Circuit Court of Florida
  3. Hon. Janette Dunnigan, 12th Circuit Court of Florida
  4. Hon.Diana Moreland, 12th Circuit Court of Florida
  5. Hon. David L. Denkin, Sarasota County Court of Florida
  6. Hon. Charles P. Sniffen, Manatee County Court of Florida

The judges were prepared, positive, and encouraging. According to Judge Dunnigan, “There are many concerns about the decline of professionalism and ethical behavior among lawyers.  Exercises like this can reinvigorate professionalism in the practice of law.  When you graduate an ethical and professional lawyer, you are one step closer to restoring the legal profession to its former place of honor.”

WMU-Cooley Professor Barbara Kalinowski

WMU-Cooley Professor Barbara Kalinowski

Blog author Professor Barbara Kalinowski teaches Research and Writing and has served in various judicial attorney and clerkship positions with the Michigan Court of Appeals in Detroit and the Third Judicial Circuit of Michigan. She has been a member of the State Bar of Michigan Publications and Website Advisory Committee, the State Bar of Michigan Character and Fitness Committee, the Legal Writing Institute, the American Society of Legal Writers (Scribes), and the Association of Legal Writing Directors (2007-2009).

2 Comments

Filed under Cooley's Great Locations, Faculty Scholarship, Student News, Achievements, Awards, Uncategorized