Month: August 2017

Today's show deals with a number of issues that all surround what your employer can (and cannot) fire you for. First, we begin by revisiting the "Google manifesto" topic from Opening Arguments Episode #94 as Thomas and Andrew respond to some hate mail from a listener who no longer wants to listen to the show after that episode.  Does he have a point?  Listen and find out. Next, the guys break down whether employees can discuss their salaries with co-workers on the job. After that, Andrew and Thomas answer a question from Patron April who wants to know how much an employer can control your social media use. Finally, we end with the answer to Thomas Take the Bar Exam Question #37 regarding installment contracts.  And don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances None.  Have us on your show! Show Notes & Links

1. We first discussed the "Google manifesto" during Opening Arguments Episode #94.
2. You can read that Google manifesto referred to during that episode as well.
3. The National Labor Relations Act (NLRA) of 1935 can be found at 29 U.S.C. § 151 et seq.
4. This is the text of President Obama's 2014 EO directing non-retaliation against government employees who discuss their compensation.
5. This is the NLRB's collection of findings regarding social media.
6. Here is a link to Three D, LLC v. National Labor Relations Board, the Second Circuit case referred to during the "C" segment.
7. Here is a link to Rule 801 of the Federal Rules of Evidence, which explains the answer to #TTTBE.

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In June 2017, the Supreme Court decided two cases involving habeas corpus petitions filed by state prisoners challenging the validity of their convictions and/or sentences: Davila v. Davis and McWilliams v. Dunn. -- The petition in Davila v. Davis involved a claim of ineffective assistance of counsel. Erick Davila was convicted in a Texas court of capital murder. Although his trial attorney had objected to one of the court’s jury instructions on intent, the court had overruled the objection. On direct appeal his appellate counsel raised various claims, but did not challenge the jury instruction ruling. His conviction and sentence were affirmed by the state’s highest criminal court, and the U.S. Supreme Court denied cert. Davila then initiated a collateral attack on his conviction: he sought habeas relief in state court, but his attorney challenged neither the jury instruction ruling nor the failure of his appellate counsel to raise the alleged instructional error on direct appeal. Texas’ highest criminal court ultimately denied relief and the U.S. Supreme Court again denied cert. Davila next raised a habeas claim in federal court, alleging that his appellate counsel provided ineffective assistance by failing to challenge the allegedly erroneous jury instruction on direct appeal. Although his failure to have raised that claim in his state habeas petition ordinarily constituted a fatal procedural default, Davila argued for an exception on the grounds that the failure was itself the result of ineffective assistance by his state habeas counsel. The federal district court denied Davila’s petition and the U.S. Court of Appeals for the Fifth Circuit denied a certificate of appealability for further review. The Supreme Court granted certiorari, however, to consider whether the ineffective assistance of postconviction counsel provided cause to excuse the procedural default. -- By a vote of 5-4, the Supreme Court affirmed the judgment of the Fifth Circuit. In an opinion delivered by Justice Thomas, the Court held that the ineffective assistance of postconviction counsel does not provide cause to excuse the procedural default of claims of ineffective assistance of appellate counsel. Justice Thomas’ majority opinion was joined by the Chief Justice and Justices Kennedy, Alito, and Gorsuch. Justice Breyer filed a dissenting opinion, which was joined by Justices Ginsburg, Sotomayor, and Kagan. -- The petition in McWilliams v. Dunn involved the scope of a state’s duty, identified by the Supreme Court in its 1985 decision in Ake v. Oklahoma, to provide an indigent defendant with access to a mental health expert who is sufficiently available to the defense, and independent from the prosecution, to effectively “assist in evaluation, preparation, and presentation of the defense.” In 1986, James McWilliams, Jr. was convicted by an Alabama jury of capital murder. Although a state commission, convened after McWilliams’s counsel requested a psychiatric evaluation, found that he was competent to stand trial and had not been suffering from mental illness at the time of his alleged crime, his counsel had also asked for neurological and neuropsychological testing while the parties awaited sentencing. The examining doctor concluded that McWilliams had some genuine neuropsychological problems, and his attorney also received various updated mental health records just before the sentencing hearing convened. Although the attorney sought a continuance and the assistance of someone with psychological expertise to evaluate this new material, the trial court denied those requests and sentenced McWilliams to death. Alabama’s appellate courts affirmed his conviction and sentence on direct appeal, and his effort to obtain state postconviction relief also failed. On federal habeas review, the district court found that the requirements described in Ake had been satisfied and denied McWilliams relief. The U.S. Court of Appeals for the Eleventh Circuit affirmed, but the Supreme Court granted certiorari to consider whether the Alabama Court of Criminal Appeals’ determination that McWilliams got all the assistance to which Ake entitled him was “contrary to, or involved an unreasonable application of, clearly established Federal law” under the federal habeas statute. -- By a vote of 5-4, the Supreme Court reversed the judgment of the Eleventh Circuit and remanded the case. In an opinion delivered by Justice Breyer, the Court indicated that “Alabama’s provision of mental health assistance fell [] dramatically short of what Ake requires” and therefore concluded that the Alabama court decision affirming McWilliams’s conviction and sentence was “contrary to, or involved an unreasonable application of, clearly established Federal law.” Although the Eleventh Circuit had alternatively held that any error by the Alabama courts lacked the “substantial and injurious effect or influence” required to warrant a grant of habeas relief, the Supreme Court indicated that the Eleventh Circuit should reconsider on remand “whether access to the type of meaningful assistance in evaluating, preparing, and presenting the defense that Ake requires would have mattered” to the outcome of McWilliams’s case. Justice Breyer’s majority opinion was joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Alito filed a dissenting opinion, in which the Chief Justice and Justices Thomas and Gorsuch joined. -- And now, to discuss the cases, we have Joseph Tartakovsy, Deputy Solicitor General for the State of Nevada.