U.S. Appeals Judge Boyce Martin: Rips Cuyahoga Death Sentence

CINCINNATI (TDB) -- A federal appeals court judge waging a legal war against the death penalty delivered his strongest protest Friday. U.S Circuit Judge Boyce F. Martin said Ohio's elected prosecutors and judges are degrading the state's criminal justice system to win and preside over convictions. Martin said too many courthouse officials pandered to public opinion to appear tough on crime.

Martin wanted the 6th Circuit U.S. Court of Appeals in Cincinnati to overturn the 1988 Cuyahoga County conviction of Billy Slagle. He got one other judge on the 15-member court to vote with him. That didn't stop his tirade -- Martin said jurists and prosecutors are sending people to the death chamber for sustained publicity in newspapers and TV, and for the political advantages it gives them when they run for reelection.

''Ohio's criminal justice system is only degraded by prosecutors who continue to disregard the ethical duties of the legal profession in order to increase their 'batting average' of death sentences and other convictions. Through this practice prosecutors are able to state that they are 'tough on crime,' allowing them to secure more votes, remain in office, and continue their conviction-oriented (rather than justice-oriented approach," Martin said in his dissent.

He said the state's judges are not immune from the same political motives because they have to run for office. He suggested appointed judges would be more interested in fairness over headlines.

"Ohio's policy of electing judges subjects them to the same political pressures that affect prosecutors,'' Martin added. "So long as the Supreme Court deems the death penalty permissible under the Constitution, and so long as prosecutors and state court judges are subject to political pressure to be 'tough on crime' and pro-death penalty, the politicization of the death penalty will only accelerate."

Martin, 71, was appointed by Democratic President Jimmy Carter in 1979. He said last month he will no longer vote to uphold a death penalty conviction.

Martin said Slagle's Cleveland trial was biased. He contends Slagle should receive a new trial, and that sending him to his death would be a major injustice. Information about Slagle, along with a recent photo, can viewed by clicking here on the Ohio prison system's offender search site.

The complete text of Judge Martin's dissent is a strongly worded document. He says prosecutors ought to have their law licenses challenged for acting in their "self-interest."

Ohio's 6th Circuit: Hong Kong Toymaker Copied GM

CINCINNATI (TDB) -- A federal appeals court announced today it won't reconsider an October ruling that a Hong Kong company owes General Motors $1.5 million for making toy Humvees. The miniatures infringed on the U.S. automaker's trademark for giant SUVs called Hummers. The case spawned a lot of legalese about Asian copycatting, but nothing about American gas guzzling.

The Humvee is a military vehicle. GM markets a smaller civilian version, the H2, that it describes as "Like Nothing Else" on the road.

A jury in Detroit awarded damages and royalties to GM in March 2005. Lanard Toys Inc., which is based in Kowloon, appealed the ruling to the 6th Circuit U.S Court of Appeals in Cincinnati. A three-judge panel upheld the jury verdict and the full court said Thursday it would not review that decision.

In 1992, Lanard began selling the "Mudslinger," which was modeled after the Humvee. The toy's carton labeled it a "Hyper Humvee." GM acquired the civilian Hummer brand in 1999 from AM General, which still makes the military vehicle. Sometimes in the late 1990s, Lanard began making another toy, "THE CORPS! ATK," which again resembled the Humvee/Hummer.

''In November 2000, General Motors contacted Landard to inform it that Lanards's military toy vehicles infringed on the Hummer vehicle. Lanard again rejected that contention and continued to produce its toys. On March 20, 2001, General Motors filed suit claiming that Lanard's toys infringed on its rights to the Hummer vehicle and grille design" said Circuit Judge Boyce F. Martin, who wrote the ruling in favor of GM.

The design of both the Humvee and Hummer include a front grille with seven vertical slots bookended by round headlights. The grille design was registered with the U.s. Trademark Office in 1996. Civilian Hummers really never caught on until GM bought the brand and pushed it as a sports utility vehicle. Between 1992 and 1999. AM General never sold more than 900 a year. The price tag was over $100,000. The court's ruling from last October is HERE.

GM is still peddling Hummers in this era of $2 gas. But inquiring minds want to know: How long will these dinosaurs stay on the road?

Ohio: Another Asylum Plea Over China's 'One-Child' Law

CINCINNATI (TDB) -- A federal appeals court rebuffed the Bush Administration's attempt to deport a male illegal immigrant from China who says he has fathered two children in Ohio and faces sterilization if sent home. The 6th U.S. Circuit Court of Appeals in Cincinnati instructed the Justice Department's bureau of immigration appeals (BIA) to reopen Xin Mao Wu's petition for political asylum.

A three-judge panel ruled unanimously the agency did not legally explain its decision to reject the asylum plea. (Case No. 05-3939.)

In November, a different 6th Circuit panel said the government could deport Xue Ying Lin, a mother whose two children were born in Ohio. She argued she faces prosecution by the People's Republic of China because she violated that nation's policy of limiting families to one child. (Case No. 05-4505.)

The panel on the mother's case was comprised of three male judges. The latest ruling came from a panel that included two women, former Ohio Supreme Court Justice Deborah Cook and Cornelia G. Kennedy of Detroit.

The U.S. State Department's most recent Human Rights Report about China criticizes the country's coercive birth control policies. It confirms that forced sterilizations and abortions occur. The Daily Bellwether's story about the mother's asylum case mentions the annual human rights reports prepared by American diplomats.

Wu slipped into the U.S. in August 1995 and worked in a Cleveland restaurant, where he was arrested in February 1996. He did not show up for a deportation hearing and never left. In 2003 he applied for asylum, saying he had two children. He claimed if he returned to China either he or his wife would be forcibly sterilized.

"The BIA has been charged with providing expert interpretations of the immigration laws, and this court must give the BIA deference in making such decisions," the appeals court said. "Accordingly, where, as here, a reviewing court cannot sustain an agency decision because the agency has failed to consider a legal issue central to resolution of the petitioner's claim, the appropriate remedy is to remand to the agency for further consideration." A link to the full text of the decision is HERE.

U.S. Judge Boyce Martin: Abandon The Death Penalty

CINCINNATI (TDB) -- Federal appellate Judge Boyce F. Martin's opposition to the death penalty is so vehement he contended in an Ohio case this week it should be completely abandoned. Martin says most court-appointed lawyers defending accused murderers are underpaid and inexperienced. He believes their clients are sentenced to die even when there is a possibility of innocence.

''In our capitalist society, you get what you pay for," Martin said. "We are yet to show a willingness to adequately compensate members of many professions (public school teachers, military and emergency response personnel, social workers, and yes, attorneys for defendants who represent indigent defendants, to name a few) whose competent performance is most important to the functioning of our democracy."

Martin, 71, was appointed by Democratic President Jimmy Carter. He serves on the 6th Circuit U.S. Court of Appeals in Cincinnati and has been increasingly blunt in his criticism of capital punishment. He was pungent in his dissent Tuesday after the court refused habeas corpus for Michael W. Benge, of Hamilton, Ohio. Benge had a crack cocaine habit. He was convicted of killing his live-in girlfriend in 1993. The woman, Judith Gabbard, was dumped in the Miami River. He has been on Ohio's Death Row for nearly 14 years.

Martin postulates Benge may have been sentenced to death simply because his trial was held in Butler County, which may be stricter than others in Ohio. That make the death penalty arbitrary and unfair in his view. Martin said he has become a disciple of the late Supreme Court Justice Harry Blackmun, who believed capital punishment should be abandoned.

"As I have previously stated, 'I know my place in the judiciary, and I recognize that unless and until the Supreme Court deems it necessary to address what I (like Justice Blackmun and others) view as the inherent arbitrariness of the death penalty, my reflections on this topic will only be observations without the force of law. In the meantime, I add my voice to those dissenters who have hoped the Supreme Court 'eventually will concluded that the effort to eliminate arbitrariness while preserving fairness in the infliction of death is so plainly doomed that it -- and the death penalty -- must be abandoned altogether.'" (Quoting Blackmun.)

The entire text of the Benge ruling is HERE. Judge Martin's 7-page dissent begins on Page 13.

Student Lawyers Win Gay-Rights Immigration Case

CINCINNATI (TDB) -- A victory in an Ohio federal appeals court by University of Michigan volunteer student lawyers who stopped the Bush's Administration's move to deport a gay refugee could add to faculty unease at another campus -- Southern Methodist University.

Last week, 68 SMU professors and theologians signed a manifesto questioning the school's plans for a $500 million presidential library and think tank that would open after President George W. Bush leaves office. They gave him low marks on gay rights, civil liberties and the environment.

But until now, few knew the 6th Circuit U.S. Court of Appeals in Ohio invoked the Convention Against Torture and ruled last week a 47-year-old homosexual Guatemalan faced serious persecution at home. The man sought asylum in the U.S., claiming he had been raped, beaten, and extorted by authorities in his homeland. Justice Department lawyers contended he should be kicked out even though U.S. diplomats said authorities in Guatemala turned a 'blind eye" to violence against gays. The Bush Administration said the claim of government-countenanced gay bashing was 'without merit."

The appeals court noted there was evidence of ''social cleansing" in Guatemala and cited a U.S. State Department "letter that the Guatemalan police turn a deliberate blind eye toward the persecution of homosexuals in that country."
The full text of the 22-page opinion is available HERE.

Heather Bobkova and Rita Abro, the Michigan student lawyers, obtained the court order invoking the Convention Against Torture.

Official info about the presidential library is HERE , and the SMU campus portal is HERE.

The SMU faculty letter first draft is pretty critical of the president:

“We count ourselves among those who would regret to see SMU enshrine attitudes and actions widely deemed as ethically egregious: degradation of habeas corpus, outright denial of global warming, flagrant disregard for international treaties, alienation of long-term U.S. allies, environmental predation, shameful disrespect for gay persons and their rights, a pre-emptive war based on false and misleading premises, and a host of other erosions of respect for the global human community and for this good Earth on which our flourishing depends.”

“[T]hese violations are antithetical to the teaching, scholarship, and ethical thinking that best represents Southern Methodist University.”