Judge Merritt, 

The Colin Kaepernick of the Criminal Justice System

October 27, 2020

By @BlackDefendants

“This set of falsehoods is typical of the conduct of the Memphis D.A’s office during this period.”
- Senior Justice Gilbert S. Merritt from Owens v. Guida 549 F.3d 399, 425 (6lh Cir.2008), dissenting


Colin Kaepernick, a former NFL Quarterback with the San Francisco 49ers, saw footage of a Black man with questionable mental health being gunned down in a fashion he deemed an unnecessary and disproportional response of force. Kaepemick spoke out in protest of the shooting and coupled his speech with his unconventional and even more unpopular kneeling during the playing of the national anthem preceding NFL games. That was several years ago. After Kaepernick’s contract ended at the conclusion of the 2017 football season, no NFL team would sign him as their quarterback. It's been several years since Kaepernick’s protest yet he still remains unsigned in spite of leading the 49ers to the Super Bowl during his tenure with the team.

Senior Judge Gilbert Merritt of the U.S. Court of Appeals for the Sixth Circuit has also taken unpopular stances within his profession which may have cost him career advancements. An initial reading of the quote above by Senior Judge Merritt could lead one to automatically assume that it came from an article or commentary because courts never, or at best, hardly ever make statements of this magnitude (regardless if it’s true). The seemingly natural recourse of appeal court judges is to turn a blind eye to the transgressions of their lower court brethren; but not Senior Judge Merritt.

Judge Merritt is a disrupter and an outspoken fascinating truth teller. Judge Merritt isn’t an example of merely speaking truth to power, he is an example of power speaking truth to power. Judge Merritt is so refreshingly revolutionary that he famously ordered an investigation into investigators at the Department of Justice over the way they used questionable methods in identifying an alleged Nazi war criminal before extraditing him to Israel to an almost certain death sentence.

If you have 10 people telling a popular and desirable lie, you can count on Judge Merritt to disruptively tell the unpopular and troubling truth.

The Judge

Judge Merritt is a native of Nashville, Tennessee. He attended public schools in Nashville and a military academy in Lebanon, Tennessee. Merritt went on to earn a Bachelor of Arts from Yale and a Bachelor of Laws from Vanderbilt while serving as the managing editor of Vanderbilt Law Review and as a member of the Order of the Coif. Judge Merritt then earned a Master of Laws from Harvard Law in 1962.

After making stops as the U.S. Attorney for the Middle District of Tennessee, as a professor of Law at Vanderbilt, and as a federal civil and criminal litigator, Judge Merritt was nominated to the Sixth Circuit U. S. Court of Appeals by President Jimmy Carter and confirmed by the U. S. Senate in October of 1977. In 1989 he served as Chief Justice and assumed senior status in January 2001.

In 1993 President Clinton considered nominating Judge Merritt to the U. S. Supreme Court but ultimately decided on eventual Supreme Court Justice Stephen Breyer. Some say Judge Merritt’s being considered for the Supreme Court “drew the ire” of the Simon Wiesenthal Center, which “criticized Judge Merritt for ordering an inquiry into the Justice Department’s handling of the extradition of John Demjanjuk, who was convicted of Nazi war crimes by an Israeli Court.”

Was this Alleged Ivan the Terrible,   THE Ivan the Terrible...

In Demjanjuk v. Petrovsky, John Demjanjuk was thought to be the infamous war criminal Ivan the Terrible and the DOJ initiated extradition proceedings to send Demjanjuk to Israel to face the Israeli Courts who had already convicted him of Nazi war crimes in absentia. The Sixth Circuit U. S. Court of Appeals on its own reopened the case and held that government attorneys engaged in prosecutorial misconduct by failing to disclose to the courts and to the defendant helpful information which was in their possession that showed Demjanjuk was not Ivan the Terrible.

This set of falsehoods is typical of the conduct of the Memphis D.A’s office...

In Owens v. Guida, Gaile Owens of Memphis Tennessee was charged and convicted in a murder for hire killing of her husband. Ms. Owens thought that her husband’s cruel and sadistic behavior toward her would make for an overwhelming case of domestic violence and psychological abuse to mitigate her alleged involvement. Senior Judge Merritt stated in his dissenting Opinion:

The Memphis district attorneys obviously knew that this was the defense theory. But this defense theory was never developed or even mentioned to the jury during the trial because of the cover-up of exculpatory evidence by the Memphis prosecutor … and the refusal of the Memphis trial court to allow in evidence one of the defendant’s best lines of mitigation testimony.
The prosecution had found sexually explicit love letter between Mr. Owens and his girlfriend that would have served as excellent evidence to help Ms. Owens make her case concerning her state of mind. But the prosecution made a choice to not turn this helpful evidence over to Ms. Owen's attorneys.

On the issue of the Shelby County District Attorney s deceptive practices, Senior Judge Merritt added:

The prosecution covered up the love letters while lying to the trial court and to opposing counsel in the following language: “To the best of my knowledge we have shown them every single scintilla of evidence which we seized and which we have that came from the house. Anything that is in the possession of any law enforcement agency we have shown to counsel for the defense.”

The prosecutor went on to further the cover-up by saying to the trial court and Ms. Owens that “everything we have in the way of any kind of physical evidence, any piece of paper, any notebook, anything along those lines, letters and etc. that we have, we have made available to them.” This set of falsehoods is typical of the conduct of the Memphis district attomey’s office during this period.

Rather than tell the jury the truth about the matter, the prosecution (lied and) told the jury that she killed her husband to get “insurance money.”

These are just two instances of Judge Merritt’s unwavering affection for facts and truth coupled with the courage to tell the world the truth for its acceptance or rejection. In a criminal justice system where this has become the exception rather than the norm in all seats of power, it is good to know the truth still resides in some of its nooks and crannies.

Based on Judge Merritt’s refusal to abandon the truth, he may have given up or sacrificed one of the most coveted legal posts in the world. While Colin Kaepernick may have given up or sacrificed one of the most coveted jobs in sports, being a starting NFL quarterback, in order to tell the truth, Judge Merritt may have sacrificed a position as a U. S. Supreme Court Judge in order to tell the truth.

Keep disrupting our brutha...
Keep disrupting...

God bless you.

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