The Cleveland-Marshall Appellate Practice Clinic has secured an important victory in the Sixth Circuit Court of Appeals. 

20 years ago, John Lowery was convicted of murder and attempted muder for a shooting that occured in Knoxville, Tennessee. Since then, he has been serving a life sentence in prison. 

Twelve years after his conviction, however, Mr. Lowery was able to secure new evidence that could prove his innocence: the two eye witnesses who identified him in court recanted, and a new eye witness came forward attesting that she never saw him at the scene during the shooting. 

Lowery brought a Habeas Corpus petition before the United States District Court for the Eastern District of Tennessee, but was denied due to untimeliness. He then appealed to the Sixth Circuit, which appointed the Appellate Clinic to represent him.

On appeal, the Clinic argued that the court below erred by wrongly applying McQuiggin v. Perkins, a 2013 Supreme Court case that allows for some judicially-carved exceptions to the one-year statute-of-limitation rule. In particular, Perkins allows for innocence claims to be heard even after the statute of limitations has run, provided that the petitioner submits “new evidence.” The court below held that Lowery’s evidence was not new, since they were presented first in state court. 

Accepting the Clinic’s arguments in full, the Sixth Circuit wrote: “whatever new evidence means, the district court erred by concluding that evidence presented to state courts categorically does not qualify. After all, federal law requires habeas petitioners to exhaust their claims in state court before seeking relief in federal court.”  

Appellate Practice Clinic students Brittany May, Susan Oates, Lauren Wazevich, and Jared Thomson worked hard on the Opening Brief and the Reply Brief. Professor Doron Kalir supervised the work and served as Counsel of Record. 

The court’s opinion is available here.

Professor Milena Sterio’s latest book, Research Handbook on Post-Conflict State Building, was published by Edward Elgar (co-edited with Professor Paul Williams, American University Washington College of Law). 

The publisher summarizes the book as follows:

“As a conflict ends and the parties begin working towards a durable peace, practitioners and peacebuilders are faced with the thrilling possibilities and challenges of building new or reformed political, security, judicial, social, and economic structures. This Handbook analyzes these elements of post-conflict state building through the lens of international law, which provides a framework through which the authors contextualize and examine the many facets of state building in relation to the legal norms, processes, and procedures that guide such efforts across the globe. The volume aims to provide not only an introduction to and explanation of prominent topics in state building, but also a perceptive analysis that augments ongoing conversations among researchers, lawyers, and advocates engaged in the field.”

Professor Sterio is the Charles R. Emrick Jr. – Calfee Halter & Griswold Professor of Law.

For more information, see: https://www.e-elgar.com/shop/usd/research-handbook-on-post-conflict-state-building-9781788971638.html.

Professor Reginald Oh has published an op-ed in Newsweek explaining why Kamala Harris is a natural born U.S. citizen and eligible for the Vice Presidency. Professor Oh’s op-ed rebuts an earlier Newsweek op-ed by Professor John Eastman (Chapman University), which raised doubts about Harris’s citizenship, notwithstanding the fact that she was born in the United States, because Harris’s parents were immigrants.

Professor Oh discusses the text of the Citizenship Clause of the Fourteenth Amendment, which provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Professor Oh explains that Harris was born in the United States, and that she and her parents were also “subject to the jurisdiction” under the plain meaning of those terms. He explains that “[v]irtually everyone who is physically present in the U.S.,” is subject to U.S. jurisdiction, “including citizens, foreign tourists, authorized immigrants and even unauthorized immigrants,” as all of those people must oby the laws of the nation.

Professor Oh also discusses the key Supreme Court precedent from 1898, U.S. v. Wong Kim Ark, which, Professor Oh explains, “held that a Chinese-American child born in the U.S. to immigrant parents was a U.S. citizen.”

Professor Oh’s article is titled, “Born in the U.S.A.: Kamala Harris Is Eligible to Become Vice President.”

Chris Sagers, the James A. Thomas Professor of Law, spoke with several news outlets in the U.S. and abroad recently concerning antitrust developments. 

Sagers spoke with the tech industry magazine Wired for a story about the remarkable, breaking news of a conflict between Apple and Epic Games, maker of the wildly popular game Fortnite. The case brings to a head some years of controversy over Apple’s maintenance of the App Store, as software developers have long complained about the rules Apple imposes on them and their view that it does so with a purpose to maintain anticompetitive dominance over mobile software distribution. 

He was quoted in a story in the independent investigative news service Pro Publica, concerning a proposed merger in the online tax-prep industry. The deal, undertaken in a heavily concentrated industry that was already the subject of a rare, fully-litigated merger challenge only a few years ago, is particularly interesting in that it involves acquisition of a very small rival, but nevertheless poses special competition concerns because of that rival’s maverick, disruptive nature. If successful challenge is brought, the case might be important precedent for other important sectors, as in Silicon Valley and mass communications, in which many now regret that many such deals have been approved over the last few decades.

Sagers was also quoted by Agence France Presse wire story carried internationally concerning the closely watched congressional testimony of four Big Tech CEOs, the culmination of a year-long investigation into possible antitrust violations by House Judiciary Democrats, and was interviewed about the hearing on a daily news program on BFM radio in Kuala Lumpur, Malaysia. 

Professor Chris Sagers published a piece in the online news magazine Slate, reviewing the work of President Trump’s high-profile and sometimes controversial Justice Department antitrust chief, Makan Delrahim. The article, titled, “The Utter Failure of the Trump Administration’s Antitrust Chief,” strongly criticizes Delrahim’s tenure as head of antitrust enforcement. Sagers opines, “Probably no U.S. antitrust chief has ever failed quite so thoroughly and variously.”

Professor Sagers is the James A. Thomas Professor of Law.

In August, Legal Educator in Residence Howard Katz made two presentations at the Southeast Association of Law Schools (SEALS) annual conference, which was held online. He spoke about “Teaching Fundamentals: Designing an Effective Law School Course” as part of the Newer Law Teachers Workshop.  He spoke about the Unified Field Theory of Legal Analysis (originally discussed in his book on law school teaching co-authored with Professor Kevin F. O’Neill) as part of a discussion group on “Teaching Torts.”  

Professor Jonathan Witmer-Rich was a panelist on a “Hot Topic” webinar titled “Bail and Bond Reform: The Long Fight,” sponsored by the Cleveland Metropolitan Bar Association. The panel was moderated by attorney Jay Milano and also featured Anthony Body, a Bail Disruptor for the Bail Project, and Claire Chevrier, Policy Counsel for the Ohio ACLU. The panelists discussed ongoing problems with bail and pretrial release in Cuyahoga County and statewide, discussed successes and failures in bail reform efforts, and best practices for ongoing bail reform efforts.

On August 5, Professor Kevin O’Neill was a featured speaker on a nationwide webinar conducted by the American Bar Association titled, “The Future of Public Protest.” The webinar also featured the mayor of Savannah, Georgia and the police chief of Phoenix, Arizona. Professor O’Neill explained the case law governing the regulation of mass demonstrations and marches, and answered audience questions. The panel focused on the protest methods employed in the recent Black Lives Matter demonstrations that were ignited by the police killing of George Floyd.

Professor Heidi Gorovitz Robertson served as a Peer Reviewer for the Fulbright Specialist Program’s 2020 Cycle 4 application process.  Robertson has served as a peer reviewer for the Fulbright Specialist Program since 2017 and has received two Fulbright Specialist grants herself.  

Robertson is the Steven W. Percy Distinguished Professor of Law at Cleveland-Marshall College of Law, and Professor of Environmental Studies at the Levin College of Urban Affairs.

Professor Milena Sterio served as host and moderator of a book launch on July 23.  The featured book was Professor Jennifer Trahan’s (NYU) “Existing Legal Limits to the Security Council Veto Power in the Face of Atrocity Crimes” (Cambridge University Press 2020).  Panelists included Professor Trahan, Richard Goldstone (former Judge, South African Constitutional Court and former Prosecutor, International Criminal Tribunal for Yugoslavia and International Criminal Tribunal for Rwanda), Dean Michael Scharf (Case Western Reserve University School of Law), and Professor Beth Van Schaack (Stanford Law School).