Ferguson—Grand Jury Proceedings and Justice Department Investigations

Ferguson, Missouri has become a quieter town since August 19, 2014, and the criminal justice system is beginning to work. A St. Louis County grand jury has begun to weigh the evidence in the shooting death of Michael Brown. U.S. Attorney General Eric Holder has also arrived on the scene. Cornell law professor Jen Ohlin discusses the developments in the case.

Jens Ohlin

Jens Ohlin

Ohlin believes that Holder has two missions: One is an official legal mission “and the other is an unofficial political mission.” The legal mission is to oversee the beginnings of justice department investigations. The DoJ will definitely investigate the shooting of Michael Brown. “There might also be a broader investigation into the Ferguson police department practices over a long period of time.”

Ohlin explains that a grand jury is different than a regular jury. The grand jury’s function is to sort out the conflicting testimony and to try to determine what actually happened in a factual situation. Grand jury proceedings are not adversarial proceedings, and typically only a prosecutor will be present. [Note: The grand jury considering the Michael Brown shooting has been serving for several months already. Missouri statutes spell out how grand juries work.]

For further developments, keep checking the Legal Broadcast Network.

Jens David Ohlin is a professor of law at the Cornell University Law School. Professor Ohlin specializes in international law and all aspects of criminal law, including domestic, comparative, and international criminal law. His latest book, The Assault on International Law, forthcoming from Oxford University Press, challenges the prevailing American hostility towards international law, and offers a novel theory of rationality to explain why nations should comply with international law.  The Legal Broadcast Network is a featured network of the Sequence Media Group.

Colorado’s Marijuana Tax: Does Taxation=Self-Incrimination?

Colorado’s taxes on marijuana have been upheld by a state court, which rejected the argument that paying the taxes could amount to self-incrimination, violating the Fifth Amendment. Tax attorney Rob Wood discusses the situation in this report as well as in his Forbes article “Marijuana Taxes Are Upheld, But Paying Them Could Incriminate You.” Note The lawsuit will continue, and the ultimate outcome is not certain at this writing. The trial court refused to grant a preliminary injunction but did not rule on other claims for relief.]

Rob wood

Rob wood

The legalization of marijuana has run head-on into federal law, under which marijuana is a controlled substance, and possession of marijuana exposes one to criminal penalties. Even though many states now permit medical marijuana, and the federal government is not presently pursuing users, the law remains on the books. And, Wood explains, because of marijuana’s status as an illegal drug under federal law, companies in the marijuana business cannot deduct their business expenses on their federal tax returns.

Wood believes that there needs to be a resolution to the tax deduction issue, quite apart from any other issues involved. Wood feels that the Fifth Amendment argue will ultimately fail, but he thinks the argument is a good one.

For more information on the subject, please refer to Mr. Wood’s article in Forbes. Robert Wood is a tax attorney with Wood, LLP in San Francisco, California and spoke with The Tax Law Channel, an affiliate of The Legal Broadcast Network.  The Legal Broadcast Network is a featured network of the Sequence Media Group.

Title I, ADA—When Is a Medical Exam a Business Necessity?

Kroll v. White Lake Ambulance Authority is a 6th Circuit case that adds to the slim body of law on when an employer’s medical examination “may be deemed job-related and consistent with business necessity” under 42 U.S.C. § 12112(d)(4)(A). Employment lawyer Paul Mollica discusses the case, which was also covered in his employment blog.

Paul Mollica

Paul Mollica

The long-running case concerns the problems of an EMT employed by the ambulance authority. In this case, the ambulance authority required Ms. Kroll to receive counseling after she was observed having angry outbursts at her workplace. The ADA generally prohibits such medical exams unless the “job-related” and “business necessity” tests are met.

The case was the subject of an initial summary judgment that went to the 6th Circuit, which sent the case back for further proceedings. On the remand, the district court again granted summary judgment, this time holding “that the proposed examination met the job-relatedness and business-necessity standards.”

On the second appeal, the 6th Circuit concluded that these findings needed to be made by a jury. The appellate court noted that there was no evidence of any kind of medical support for the decision that Ms. Kroll needed to go into counseling. Another thing the court noted was that her supervisor had not indicated that there was a business or professional reason for this, but rather that he had a concern about her personal welfare.

Mollica says that it was a mistake, in the view of the 6th Circuit, to condition her employment on receiving the counseling. The supervisor’s good intentions should not be conflated to a business reason for the counseling.

Paul W. Mollica joined Outten & Golden LLP as Of Counsel in 2010. He is a frequent author and lecturer (for lawyers and courts) in the area of employment discrimination. He is a two-term past president of the Chicago Council of Lawyers, a public-interest bar association. He has been selected as a Super Lawyer© in Illinois and has the highest, AV© rating from Martindale-Hubbell. He is licensed to practice in Illinois and New York. The Legal Broadcast Network is a featured network of the Sequence Media Group.