appellate

US Supreme Court Decision in Favor of Native American Client Affirms that Courts Keep Our Promises

On July 9, the US Supreme Court ruled in favor of firm client Jimcy McGirt, an enrolled member of the Seminole Nation of Oklahoma accused of committing a crime within the historic boundaries of the Muscogee (Creek) Nation’s reservation.  By a 5-4 vote, the Court held that the Muscogee (Creek) Nation’s federal reservation endures—which meant that the state lacked jurisdiction to prosecute Mr. McGirt.  The Court therefore reversed the decision of the Oklahoma Court of Criminal Appeals denying Mr. McGirt’s application for post-conviction relief.

In an opinion by Justice Neil Gorsuch, the Supreme Court powerfully reaffirmed that courts must respect the United States’ commitments to Indian nations.  “On the far end of the Trail of Tears,” Justice Gorsuch wrote, “was a promise.”  That promise was “a reservation in perpetuity.”  And while Congress had “[o]ver time … diminished that reservation,” and had “sometimes restricted and other times expanded the Tribe’s authority,” Congress has “never withdrawn the promised reservation.”  And that, Justice Gorsuch explained, was all that mattered.  Justice Gorsuch lamented that, “[a]s a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye.”  Justice Gorsuch emphatically “reject[ed] that thinking.”  Rather, “[i]f Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.”

Simultaneously, the Supreme Court issued an opinion ruling in favor of client Patrick Murphy, a member of the Creek Nation whose case presented the same issue.  Sharp v. Murphy was argued before the Court last Term—but Justice Gorsuch was recused from that case, and the Court did not resolve the case last term.  In the wake of McGirt, however, the Court issued a one-sentence opinion invalidating Mr. Murphy’s capital murder conviction.  As a result, Mr. Murphy’s death sentence has been vacated.

Partner Ian Heath Gershengorn argued the case in May 2020, as well as Murphy the previous Term. In a statement, he said, "The Supreme Court reaffirmed today that when the United States makes promises, the courts will keep those promises.  Congress persuaded the Creek Nation to walk the Trail of Tears with promises of a reservation—and the Court today correctly recognized that that this reservation endures.  We—along with our co-counsel Patti Palmer Ghezzi and the Federal Public Defender of the Western District of Oklahoma—are immensely pleased for Jimcy McGirt and Patrick Murphy, whom Oklahoma unlawfully prosecuted for alleged crimes within the Creek reservation.”

The team included Partner Zachary Schauf, Associates Allison Tjemsland and Kathryn Wynbrandt, and former associate Lenny Powell.  Senior Paralegal Cheryl Olson provided critical support.

News about the outcome in McGirt v. Oklahoma was reported by multiple outlets, including Courthouse News Service, Law360, and The New York Times.

Team Wins Seventh Circuit Victory for Illinois Prisoner

A team representing an Illinois prisoner achieved an important victory in the Seventh Circuit when the court reinstated the prisoner’s lawsuit challenging a private healthcare contractor’s deliberate indifference to his serious medical needs. Issued in May, the court’s opinion paved the way for the prisoner to pursue his constitutional claims against the contractor in federal district court. 

Robert Williams brought suit against Wexford Health Sources in 2017, challenging the contractor’s “one good eye” policy, under which it refuses critical eye care to prisoners like Mr. Williams as long as they retain a modicum of visual acuity in one eye. Although healthcare providers inside and outside the prison recommended eye surgery for Mr. Williams, Wexford refused that surgery for several years. At the time he filed suit, Mr. Williams was completely blind in one eye and suffering from a host of conditions in both eyes. The district court held that Mr. Williams’s complaint stated a colorable claim against Wexford for violating his constitutional rights. Yet the district court granted summary judgment in Wexford’s favor, holding that Mr. Williams failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act and the Illinois Administrative Code. 

The Seventh Circuit reversed that decision. In a precedential opinion, the court clarified the standards applicable to prisoners like Mr. Williams who used the emergency procedures to seek expedited review of their grievances by prison officials. The court explained that while those emergency procedures were recently amended to require additional steps, those additional steps were not required of Mr. Williams, who submitted his grievances before the amendment. In reaching this result, the court emphasized the importance of transparency and clarity in the grievance process, and criticized the prison authorities for trying to “move the goal posts while [Mr. Williams] was in the middle of his case and suddenly announce that special new requirements applied to him.” The court also questioned Wexford’s “dubious” decision to refuse the surgery that Mr. Williams needed.

Associate Lauren Hartz briefed and argued the appeal, with supervision from Partner Ishan K. Bhabha. Partners Jessica Ring Amunson and Adam Unikowsky participated in moots, as did Associate Julian J. Ginos.

Seventh Circuit Finds that Client Adequately Alleged His Guilty Plea Resulted from Ineffective Counsel

Our client, Monta Anderson, is serving a 20-year federal prison sentence following a guilty plea to distribution of heroin resulting in death—a plea that Mr. Anderson asserts resulted from ineffective assistance of counsel. Mr. Anderson claims his lawyer failed to investigate whether the heroin connected to him was a “but for” cause of the victim’s death where evidence indicated that the victim consumed drugs from multiple sources shortly before his death.

On November 23, the court held Mr. Anderson alleged facts sufficient to meet both Strickland prongs for ineffective assistance of counsel. Mr. Anderson’s lawyer performed deficiently by failing to investigate the toxicological evidence. Closely tracking our briefs, the court analogized the case to another ineffective-assistance case, Gaylord v. United States, and noted that “[t]he chief factual issue in this case is essentially the same” as the issue in Gaylord: “whether drugs distributed by the defendant were a but-for cause of death.” The court rejected the Government’s argument that counsel’s decision not to investigate was “strategic,” noting that “[f]urther investigation of the toxicology evidence could have . . . significantly informed Anderson of the viability of a defense to that enhancement and, consequently, whether to plead guilty.” The court concluded it “cannot view the decision of Anderson’s counsel to proceed under these unique factual circumstances without investigating the causation issue as reasonable.”

The court further held that Mr. Anderson adequately alleged prejudice. The court found that, without the death results sentencing enhancement, Mr. Anderson could have faced a guidelines range lower than the “mandatory life sentence” he was facing if he were found guilty of the enhancement. The court rejected the Government’s argument that Mr. Anderson suffered no prejudice because his criminal history required a twenty-year mandatory minimum regardless of the death results enhancement. The court stated the relevant question is not whether the result of trial “‘would have been different’ than the result of the plea bargain.” It is instead: whether the defendant “would have opted to go to trial” had he been properly advised. The court held that Mr. Anderson “adequately alleged a reasonable probability that he would have rejected the plea deal in favor of going to trial but for his attorney’s deficiencies.”

Associate Eric Fleddermann argued the appeal, supervised by Partner Mike Brody. Paralegal Mary Frances Patston helped on every brief and filing. Partners Tony Valukas, Randy Mehrberg, Dean Panos, Thomas Newkirk, and Previn Warren, along with Associates Leigh Jahnig, Vaughn Olson, and Sarah Youngblood, all helped Eric with a moot court.