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September - October 2016 , Page 05 

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From the President: How to Elevate Criminal Defense Before the Supreme Court

By Barry J. Pollack

Read more From the President columns.


[C]onstitutional criminal adjudication before the U.S. Supreme Court consists largely of arguments by expert prosecutors, offered to former expert prosecutors, about cases channeled to the Court by prosecutors. 

— Andrew Crespo, Regaining Perspective: Constitutional Criminal Adjudication in the U.S. Supreme Court 100 Minn. L. Rev. 1985, 1989 (2016) 

A colleague recently recommended a law review article by a Harvard Law professor. I looked at the title and saw the standard law review format: a short pithy title followed by a colon, followed by a much longer and denser subtitle. I then looked at its heft, 57 single-spaced pages. As I prepared to tell my colleague I had other beach reading in mind, he told me the article identifies shortcomings in the representation of criminal defendants before the Supreme Court and recommends as a potential solution that the Court reconstitute NACDL’s Amicus Committee as the Supreme Court’s in-house Solicitor General’s Office for the defense. This I had to read.

The article starts by noting the lack of criminal defense experience among members of the current Supreme Court. Since 1993, there has not been a single justice who has spent any significant time working as a criminal defense attorney. Presently, six of the eight justices have prior prosecutorial experience, either at the trial or appellate level. President Obama’s current pending Supreme Court nominee, Judge Merrick Garland, is a former federal prosecutor.

While these statistics may be surprising to some, they probably are not to most NACDL members. We appear every day in courts around the country before judges who were prosecutors before taking the bench. We rarely appear before a former criminal defense lawyer. This anecdotal experience is backed by statistical data. In March 2016, Alliance for Justice published a report titled “Broadening the Bench: Professional Diversity and Judicial Nominations.” (Based on the title, it was apparently written by an aspiring law review author.) The report notes that of President Obama’s federal judicial nominees, likely the most diverse set of federal judicial nominees in history, prosecutors outnumber public defenders three to one. Of the 64 circuit court nominees, 24 had worked as prosecutors, but only five had worked as public defenders.

Seeing the world through the lens of a former prosecutor, the justices, like their lower court colleagues, come into a case with a certain bias. Yet, if they review a representative sample of criminal cases and hear powerful advocacy on behalf of the criminal defendant’s position (at least as powerful as they hear from advocates for the government’s position), justices with an open mind may be able to overcome the bias with which they came to the case in the first place. Professor Crespo, who was a public defender before he was a professor, persuasively argues, however, the justices neither hear a representative sample of cases nor hear advocacy on behalf of criminal defendants that matches the caliber of the advocacy they hear on behalf of the government.

Justices do not hear representative cases because, as NACDL members know all too well, prosecutors have extraordinary and lopsided power at the plea bargaining table. Professor Crespo puts it this way:

[T]he breadth and depth of substantive criminal law have expanded dramatically over the past few decades, such that contemporary prosecutors, by modifying the amalgam of charges they might choose to file for any given criminal event, can ratchet up or down at will the potentially overwhelming sentencing exposure a defendant will face, and can thus carefully calibrate the potentially massive pressure he will feel to accept a prosecutor’s proffered deal. … [Prosecutors are] structurally empowered in practice to determine through their charging leverage which cases will be settled as opposed to litigated, and under what circumstances and terms.

This plays itself out in many ways, but Professor Crespo focuses on one in particular: prosecutors get to pick and choose which constitutional issues go up on appeal. If a prosecutor does not want the conduct of the police or the prosecutor subjected to appellate scrutiny, the prosecutor simply resolves the case so there is no appeal. Accordingly, the justices, who have no experience as criminal defense lawyers, do not see the breadth of how law enforcement is actually conducted in America. They see only those cases that prosecutors allow them to see.

And, Professor Crespo persuasively argues, in those cases the justices do hear, the level of advocacy from the criminal defense side does not generally match what the justices hear on behalf of the government. Many have observed in recent years the trend toward an elite professional Supreme Court bar. There are a handful of private counsel who appear repeatedly before the Supreme Court, arguing an outsized percentage of the cases.1 

Professor Crespo has performed extensive statistical analysis to quantify the level of Supreme Court experience possessed by the advocates in criminal cases before the Court. He concludes, “Supreme Court advocates representing criminal defendants are indeed markedly less experienced and less expert than private attorneys arguing the non-criminal side of the Supreme Court Bar.” Professor Crespo defined an “expert” Supreme Court advocate as one who has argued at least five cases there over the past 15 years, and a “novice” as one who has presented only one prior argument to the Supreme Court in the past 10 years and was not an “expert” prior to that. Using these definitions, in the past decade, 67 percent of the arguments on behalf of criminal defendants were presented by novices, compared to 48 percent in civil cases. And, in criminal cases, there is a marked disparity in experience level between the criminal defense advocate and the government’s advocate. The former averaged five prior arguments; the latter averaged 13.3. Finally, not only is the advocate for the criminal defendant a less experienced appellate advocate, he or she is also unlikely to be an expert in criminal defense. Of the current 86 “expert” Supreme Court advocates, only 22 have represented a criminal defendant before the Court. Of those 22, only seven have represented criminal defendants in at least half of their cases before the Court. Thus, Professor Crespo concludes, there is no expert criminal defense Supreme Court bar. Indeed, using Professor Crespo’s metrics, there is only a single such lawyer, Jeffrey Fisher of the Stanford Law School Supreme Court Clinic, who serves as a co-chair for NACDL’s Amicus Committee.

Conversely, the government is routinely represented before the Court by expert prosecutorial appellate counsel. In appeals in federal criminal cases, the government’s position is represented by the most experienced appellate law firm ever assembled, the Solicitor General’s Office. That Office has a deputy who specializes in criminal cases. In appeals in state criminal cases, the Supreme Court routinely hears from the Solicitor General’s Office by allowing it to participate in oral argument as an amicus. Professor Crespo determined that in 72 percent of criminal cases, the Solicitor General’s Office participates in oral argument either as a party or an amicus.

Professor Crespo notes NACDL’s active role as an amicus in criminal cases before the Supreme Court. But he questions the value of these briefs, even going so far as to say that amicus briefs are not effective “for the simple reason that the justices rarely read them.” Fortunately, whatever merit this observation has generally (and it has to count for something because Professor Crespo clerked for two Supreme Court justices), it is simply not true with respect to NACDL’s amicus briefs. A recent study demonstrated that since 2005, NACDL has filed 258 amicus briefs with the Supreme Court, second only to the U.S. Chamber of Commerce (373).2 We know for a fact the justices read NACDL’s briefs. Indeed, they not only read them, but they also rely on them. NACDL’s amicus briefs have been cited in 21 Supreme Court opinions since 2005, more than any other amicus. The ACLU is second with 11 citations. NACDL was both cited the most often and cited the greatest number of times as a percentage of briefs filed.

This does not change Professor Crespo’s fundamental point, however, which is that filing a written brief is no substitute for being able to participate in oral argument. While the Solicitor General is routinely granted oral argument time to argue the pro-government position in criminal cases, other amici are not. The Court has a “general policy against allowing more than one advocate per side” and prohibits oral argument from amici absent “the most extraordinary circumstances.” The Court routinely finds this standard met when the Solicitor General wishes to weigh in, but not when other entities seek to participate in oral argument. Professor Crespo states that in the past 50 years, NACDL has sought leave to participate in oral argument as an amicus 11 times and that none of these requests have been granted. NACDL has not asked for oral argument time in any case in the past decade.

Professor Crespo is largely correct, although, in fact, the Court did grant oral argument to NACDL on one occasion, in Shelton v. Alabama.3 That case affirmed a defendant’s right to counsel in a case in which he received a suspended sentence. The defendant consented to NACDL’s request for oral argument time. The Court not only granted the request and heard argument from Professor Steven B. Duke of Yale Law School on NACDL’s behalf, but the Court also cited NACDL’s brief in the opinion.

Having made the case the Supreme Court is made up of former prosecutors hearing cases chosen by prosecutors and that the cases are argued by advocates for the government whose experience and expertise vastly outweigh those of advocates for the criminal defendant, Professor Crespo offers potential solutions to, as he puts it, restore the balance. Two of these suggestions merit mentioning here.

First, Professor Crespo suggests that the Supreme Court change its rules, or at least its application of the current rules, to grant leave to participate in oral argument more liberally. This would allow amici such as NACDL, the ACLU, or other groups to be heard at oral argument on behalf of criminal defendants.

Second, as my colleague told me when he gave me Professor Crespo’s article, Professor Crespo suggests that “the Court should consider establishing a standing committee of its own Bar, modeled in broad strokes on the NACDL amicus curiae committee, but formally charged by the Court with improving the quality of Supreme Court criminal defense representation across the Court’s docket.” Professor Crespo argues that “the Court should consider formally empowering such a committee to select an attorney to argue as amicus curiae in any case in which the Office of the Solicitor General will present argument against a criminal defendant.”

With respect to the second proposal, there is no need for the Court to model a standing committee on NACDL’s Amicus Committee; our Amicus Committee stands ready, willing, and able to answer the call. Our Amicus Committee would be more than happy to serve as a standing committee of the Supreme Court Bar to elevate the level of advocacy the Supreme Court hears on behalf of criminal defendants.

NACDL also agrees with Professor Crespo’s first proposal. While NACDL cannot compel the Court to change its rules, it can and should advocate for changes that allow it and other groups like it to be heard in oral argument before the Court on behalf of criminal defendants. And, absent a rule change, NACDL can seek leave to participate in oral argument, something it has not done in the past decade. Too often, criminal defense counsel get turned down so many times, they simply stop making the request. But changes do not occur if we do not advocate for them. The NACDL Amicus Committee will look for cases where it believes NACDL can bring to the Court a perspective, expertise, and experiences the parties might not possess and in such cases seek leave to participate in oral argument as an amicus. NACDL has had tremendous success influencing the Court through the power of its written amicus briefs. Just think what we can do if we can be heard at oral argument.

Notes

  1. See, e.g., Joan Biskupic, Janet Roberts & John Shiffman, At America’s Court of Last Resort, a Handful of Lawyers Now Dominates the Docket, Dec. 8, 2014, available at http://www.reuters.com/investigates/special-report/scotus/.
  2. See Adam Feldman, The Most Effective Friends of the Court, May 11, 2016, available at https://empiricalscotus.com/2016/05/11/the-most-effective-friends-of-the-court/.
  3. Shelton v. Alabama, 535 U.S. 654 (2002).
About the Author

Barry Pollack is Chair of the White Collar & Internal Investigations Practice at Miller & Chevalier. As a former certified public accountant, a substantial focus of his practice is representing defendants in complex financial matters. He is a Fellow of the American College of Trial Lawyers and of the American Board of Criminal Lawyers.

Barry J. Pollack
Miller & Chevalier
Washington, DC
202-626-5800
www.milchev.com
@millerchevalier
bpollack@milchev.com 

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