Saturday, December 6, 2014

Legal Summary of Oral Arguments by Howard Tolley

Howard Tolley is a University of Cincinnati professor and former clerk at the 6th Circuit court. This is his summary of what went down during the oral arguments...


            Over 80 supporters of Keith Lamar including a busload from Cleveland bore witness in Courtroom 403 and an overflow room of the 6th U.S. Circuit Court of Appeals during oral argument Tuesday December 2.  The compelling, pre argument, 130 page brief submitted by his attorneys can be found here.

            A panel of three judges, Eric Clay a Clinton appointee and two Bush appointees, John Rogers and Raymond Kethledge posed challenging questions to Keith’s attorney David L. Doughten who responded effectively that the prosecutor’s withholding of exculpatory evidence violated constitutional guarantees of due process.  Although other members of the Lucasville five have now received the witness statements Keith needs, his representatives are still the victims of a mix and match game with a prosecutor’s summary of their statements and a separate list of names unconnected to what each said.


            The state brought a separate appeal claiming that the trial court erred by allowing Keith’s claim to be heard after the statute of limitations expired.  All three judges appeared skeptical of that argument.  Judge Rogers appeared to reject the state’s effort to withhold the actual witness statements, and the state’s representative conceded doing so was questionable, though in his opinion not a fatal procedural error given other evidence of guilt.

            The panel may take several months to announce a decision after which the losing party can seek review by all 15 judges of the Sixth Circuit or take an appeal directly to the U.S. Supreme Court.

            After the oral argument, Keith’s supporters rallied at 1st Unitarian Universalist Church in Cincinnati for a program organized by Lorry Swain featuring a phone conversation with Keith.


Question from an attendee:

Howard, I had a question about a term that the State's lawyer kept using during the oral argument; equitable tolling? What does that mean?  I gathered that the State was simply arguing that Keith should not have been granted the federal habeas petition because (according to the State) the petition was not timely filed.  And it seemed that David Doughten argued that all the steps in the State Appeals process that had to come prior to the federal habeas petition were timely filed and the process just took the time that it took so, yes, the habeas petition should have been granted.  Am I getting the gist of the State's argument on that issue?  Or is there more to it that I couldn't understand given Mr. Maher's style.

It surely seemed that the State's representative did not want to get to the Brady issue and may not even have uttered a word about Keith's Brady claims if Judge Rogers hadn't asked Mr. Maher if he was going to say anything about that issue.  By then Mr. Maher's 30 minutes had almost run out.  The fact that the State didn't put forth much of a rebuttal to Mr. Doughten's Brady arguments sure sounded promising to me, but maybe I'm reading too much into what I witnessed.  Howard, what do you think?


Howard's Response:
Equitable Tolling means that the clock stops running on the Statute of Limitations is it would be unjust to enforce the required deadline.  In Keith's case he delayed seeking habeas relief in federal court until all the state appeals had been concluded.  Apparently equitable tolling had been allowed by the 6th Circuit in cases like his at the time he waited, but after he filed for habeas the appeals court changed the rule on Equitable Tolling in a way that made his filing too late.  On Tuesday the state argued he should have known the rule would be changed, but it appeared that the judges disagreed.

Without reading the State's reply brief, I'm not certain how strong a case they made on the Brady claim.  Certainly their oral argument was less than convincing.  Generally lawyers for the state are stronger than defense counsel, but on Tuesday the mismatch in lawyering skills appeared to me favorable for Keith.



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