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Michigan Solicitor General Fadwa Hammoud makes history, again

Posted at 11:11 PM, Oct 07, 2021
and last updated 2021-10-07 23:11:49-04

WASHINGTON, D.C. — Growing up a first-generation Muslim girl in Wayne County, Michigan Solicitor General Fadwa Hammoud says when she came to Michigan from Lebanon, she barely knew English, let alone know any attorneys or women attorneys.

However, that never deterred Hammoud from going after her goals, and this week she made history as the first Arab-American Muslim woman to argue a case in front of the U.S. Supreme Court.

“It was really an honor and a privilege to be able to represent our state, my team, our attorney general, our office at the highest court of the land. The moment was surreal, but I knew that it was an important one,” Hammoud told FOX 17 Thursday.

“I think that more than just our diverse names and our diverse faces, we bring diverse arguments; we bring everything that our communities, our cultures, our backgrounds, our public universities have to offer with us into the Supreme Court, and really, the bench and bar benefits from this collective experience,” Hammoud said. “So was it great that I was the first? I accept that, and I welcome that, and the overall mission is to make sure that those two areas are inclusive and that I am not the last,” she added.

It wasn’t the first historic achievement of her young career. In 2019, she became the youngest solicitor general in Michigan history and the first Arab-American to hold that office in the United States.

She hopes her story will inspire the next generation.

“I truly feel with all of the phone calls that I am getting from students, from young women, has just been an added layer of why this is so important. I think it comes from people like Attorney General Dana Nessel, who understands that diversity in the workplace, and to make sure that our workplaces represent the people of our state and look like the people of our state. That is just as important as the most intellectually thought-out legal argument, because of all of the things that we can bring to that argument. So I do hope that young girls are looking at me, not just as an exception, but that this is the norm and that they can do that, too.”

Fadwa Hammoud full interview

Here's background on the case she argued from the Michigan Attorney General’s office:

In 2007, Ervine Davenport was convicted of murder in Kalamazoo County Circuit Court. He strangled Annette White to death, threw her body in a field, then went to her apartment and stole her property. Davenport later bragged that he “offed” her. 

Davenport was shackled at trial and the trial court failed to place on the record the reasons why he was shackled. 

The State concedes that was a constitutional error, but it was a harmless error given the evidence of Davenport’s guilt was overwhelming. 

The case was adjudicated on the merits in state court, which found the shackling error to be harmless beyond a reasonable doubt. Davenport then filed a petition for habeas corpus in the federal district court; that court upheld the state court findings of harmless error in Davenport’s case.   

Then, in September 2020, a divided panel of the Sixth Circuit Court of Appeals disagreed, reversing the federal district court’s denial of habeas corpus relief.  

The State filed a petition for certiorari to challenge the Sixth Circuit’s decision, arguing that the Sixth Circuit applied the wrong test, and, in doing so, disregarded the standard that Congress embodied in section 2254 of the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. 2254, and that U.S. Supreme Court habeas corpus jurisprudence has underscored: a writ shall not be granted with respect to any claim that was adjudicated on the merits in the state-court proceedings unless the state-court decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. The U.S. Supreme Court granted the petition.   

The question before the Supreme Court is what the proper test is for a federal habeas court reviewing a constitutional error for harmlessness. The State will explain to the High Court that when a state court has adjudicated a criminal case on the merits, a federal judge on habeas review must give proper deference to the state-court determination prior to granting relief as Congress required when it enacted AEDPA in 1996. The federal judge may not simply substitute his or her own judgment for the judgment of a state court when it is not contrary to or an unreasonable application of federal law.  

The State argues that a two-step approach is the proper test: the habeas judge should independently analyze whether the constitutional error at issue had a substantial and injurious effect on the jury verdict, and, in deference to the state court adjudication, must also analyze whether a fair-minded jurist could have agreed that the error was harmless beyond a reasonable doubt. The two tests are distinct, and both are necessary, as supported by U.S. Supreme Court precedent. In this case, contrary to this two-step application, the Sixth Circuit proceeded without giving the necessary deference to our state-court adjudications. The Sixth Circuit did not determine whether a fair-minded jurist could agree with the state courts’ conclusions.  And the Sixth Circuit considered its own circuit precedent and extrajudicial sources, which is improper under habeas review. 

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