Oprah Interview as Truth Commission – Part II: What Counts as Success?

LESLEY WEXLER

In this second of a series of columns, Illinois Law professor Lesley C. Wexler continues analogizing Oprah’s interview with Meghan and Harry to a truth commission and describes some goals against which we might measure the success of a truth commission. Professor Wexler proposes such measures as (1) whether the commission finishes its mandate and widely disseminates its findings, (2) whether it establishes a definitive narrative of the relevant abuses, and (3) whether it serves as catharsis for individual victims. She suggests that although some initial facts on the ground are negative, reform and reconciliation are still possible.

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Supreme Court Rules that Claims of Nazi-Era Expropriation of Jewish Property Are Barred by Germany’s Sovereign Immunity

SAMUEL ESTREICHER, JULIAN KU

NYU Law professor Samuel Estreicher and Hofstra Law professor Julian G. Ku comment on a recent decision by the U.S. Supreme Court, holding that the doctrine of sovereign immunity bars claims based on Nazi-era expropriation of Jewish property. Professors Estreicher and Ku argue that the unanimous decision in that case, Germany v. Philipp reflects a now-solid trend of Roberts Court decisions limiting the reach of U.S. law and jurisdiction to stay within the territory of the United States while also avoiding controversial and unsettled interpretations of international law.

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Cal v. Garnett

Docket: 20-1047

Opinion Date: March 23, 2021

Judge: Scudder

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

On April 21, 1992, two gunmen fired multiple shots at Johnson and his friends. Both friends died. Johnson survived, identified one shooter by his street name “Duke,” and described the car he drove. Hours later, the police pulled over a vehicle matching Johnson’s description and arrested Kirkman and Cal, who matched Johnson's description. Kirkman had the name Duke tattooed on his arm. Johnson identified the men as the shooters from a photo array and at trial--the only evidence linking them to the crime. Defense witnesses testified that Cal stood observing the crime scene for 45 minutes and that a month after the shooting, Johnson stated that the defendants were not the shooters. Both defendants were sentenced to mandatory life without parole. The court later reduced Cal’s sentence to 60 years because he was 17 at the time of the crimes. Cal has been granted supervised release. After Johnson recanted, stating under oath that neither Cal nor Kirkman were the shooters, Cal brought an actual innocence claim. The Illinois court denied relief. The Illinois Appellate Court affirmed. The Seventh Circuit denied Cal habeas corpus relief as it had denied Kirkman’s petition. While the Illinois court’s decision was not “flawless,” it considered that the recantation was internally inconsistent and implausible, Johnson had no motivation to lie at trial, and he backpedaled from his trial testimony out of loyalty to his former gang. Even a strong case for relief does not mean that a state court’s contrary conclusion was unreasonable.

United States v. Jackson

Docket: 20-2680

Opinion Date: March 23, 2021

Judge: Frank Hoover Easterbrook

Areas of Law: Criminal Law

Jackson made a career of armed bank robbery. A district judge concluded that only life imprisonment without the possibility of parole would end his criminality. In 1986, when he committed his final robbery, Jackson was 35. At age 70, he sought compassionate release under 18 U.S.C. 3582(c)(1), citing “extraordinary and compelling reasons.” Jackson suffers from hypertension and chronic obstructive pulmonary disease, which create extra risk for someone housed in close quarters during the pandemic. The Bureau of Prisons, a district judge, and the Seventh Circuit denied relief. Jackson is not covered by section 3582, having committed his crime before November 1987, when the Sentencing Reform Act of 1984 took effect. Section 3582, added to Title 18 by the 1984 Act, provides that it “shall apply only to offenses committed after the taking effect of this chapter.” People whose crimes predate November 1987 are governed by the law in force at the time of their offenses, which provides for parole, or a judge could reduce a prisoner’s “minimum term” on a motion of the Director of the Bureau of Prisons. Given his no-parole sentence, which lacks a minimum term of years, Jackson retains only the possibility of a commutation. The 2018 First Step Act permits prisoners to seek their own release but did not abolish section 3582. One other circuit has considered the issue and found that the 2018 Act does not make old-law prisoners eligible for section 3582(c)(1) release.

United States v. Wylie

Docket: 19-2140

Opinion Date: March 23, 2021

Judge: St. Eve

Areas of Law: Criminal Law

Wylie pleaded guilty to possession with the intent to distribute more than five kilograms of cocaine. He admitted that he had been hired to transport drugs and money and that he had made the trip four times before his arrest without being caught. Although he had a previous DUI arrest, he had never been convicted of any crimes. The court adopted the PSR, which noted that Wylie’s offense carried a statutory minimum of 10 years to life in prison and at least five years’ supervised release. Because Wylie met all of the requirements for the “safety valve,” 18 U.S.C. 3553(f), the court could impose a sentence below the statutory minimum. The Guidelines range was 97-121 months’ imprisonment with a two-five year range of supervised release. The court imposed a 97-month prison sentence. As for supervised release, the court proposed sentencing Wylie to five years, saying: “The crime of conviction requires that you get a term of supervised release that’s at least five years long.” Wylie’s counsel did not object. The Seventh Circuit vacated the term of supervised release, which was imposed under the erroneous belief that the court was bound by the statutory minimum, without reference to the Guidelines range.

UFT Commercial Finance, LLC v. Fisher

Docket: 20-2012

Opinion Date: March 23, 2021

Judge: HAMILTON

Areas of Law: Labor & Employment Law, Legal Ethics, Professional Malpractice & Ethics

Plaintiffs, a start‐up company and its founder (Marlowe), sued the company’s former chief legal officer, Fisher, to recover losses from an arbitration award that held them liable for years of unpaid wages owed to Fisher himself. The award comprised unpaid wages and statutory penalties totaling $864,976 and an additional $366,460 because Fisher did not receive written notice of his contract nonrenewal. Plaintiffs alleged that Fisher advised them to enter into what they now say was an illegal agreement to defer Fisher’s compensation until the company was able to secure more funding. The Seventh Circuit affirmed the dismissal of the suit. Even if Marlowe was Fisher’s client regarding her own compensation agreement and a decision not to purchase directors and officers insurance, the plaintiffs failed to plead any plausible malpractice claims arising from those matters. Plaintiffs did not allege that they would have opted against using the compensation agreements had Fisher fully advised them. The company violated the Illinois Wage Act by failing to pay Fisher as agreed. The agreement did not aggravate or add to those violations; it made sense as an interim measure to forestall litigation by acknowledging the obligation and committing the company to one way to satisfy it.