Do we owe any zeal or duty to “the Cause?”

Posted February 19, 2014 by matthewdad
Categories: Uncategorized

Yesterday I had a nice chat with a notorious civil rights attorney. We will call him “CRA” even though it won’t be hard for many of you to deduce his identity. We were discussing our mutual frustrations over the factual and procedural posture of a case pending before a Big Important Court. CRA was unhappy that a criminal defense attorney (whom we will call CDA) chose to advance a “Cutting Edge” Appellate Argument on direct appeal on behalf of a client who, shall we say, does not exactly elicit sympathy among the general public. More importantly for present purposes, the case does not present the Cutting Edge Appellate Argument as effectively as some others would, and this particular Big Important Court is unlikely to go out of their way to help out this client or the Cause.

This turned to a discussion of a certain kind of zeal among CDA-type appellate lawyers which causes us to blind ourselves to the rest of the world when evaluating potential appellate issues. I suspect this doesn’t come up very often with retained appellate lawyers because they are less likely to pursue almost-certain-to-lose claims and, if they bothered to take the case, they probably thought they had some colorable shot at winning the appeal on some well-established basis. Or else their billing rate is too high they are too busy to chase waterfalls. But when you’re appointed on appeal, you have a constitutional and ethical duty to raise at least one non-frivolous legal issue, so long as you have one or more from which to choose. 

But let’s leave aside the eccentricities of appointed representation on direct criminal appeal. (For those of you who are interested, I have a riveting CLE presentation on the ethics of Anders briefing I’d love to deliver at your next meeting.)

The broader question is what consideration, if any, should be given to “the Cause” when deciding which issues to press on behalf of a client?

CRA, like most attorneys involved primarily in issue advocacy, believes that an advocate should give careful consideration to the broader legal landscape and other plaintiffs/ criminal defendants/ immigrants / [other marginalized group] before raising a “longshot” issue. As my high school band director used to ask, “Are you helping or hurting?” CRA seems to believe that, where ultimate success is unlikely (for any number of reasons, such as bad forum, bad posture bad client facts), an attorney has no business messing things up for everyone else. If you are not likely to help your client, then you should probably not do anything to hurt everyone else’s clients.

CDA, on the other hand, ignores the rest of the world when evaluating issues for a legal challenge, be it an appeal, pretrial motion, or petition for judicial review. The issues are typically limited to: (a) is this argument sanctionably frivolous? (b) is it possible that this argument would benefit my client? and (c) would raising this argument (in addition to others) distract attention from or use up pages which could be devoted to more promising arguments? If the answers are Yes, No, No, then CDA is going to raise the issue, come heck-or-high-water.

An unfortunate corollary to this approach is the most creative or cutting-edge legal arguments are raised for the first time in some of the worst cases.   (Sorry Joel.)

From a utilitarian perspective, CRA seems to have the stronger argument. This is the view adopted by almost everyone who has any semblance of a Supreme Court practice, as well as most immigrants’ rights organizations whom I’ve petitioned at various times for amicus briefs. Indeed, one of the (many) advantages possessed by appellate prosecutors is that they typically have a single decisionmaker (Solicitor General or Attorney General) who can make strategic, screening decisions about which cases deserve an appellate push. There’s no ethical dilemma for a prosecutor or other “institutional” lawyer, because she represents the same client in each appeal. The “cause” is the “client.” So a decision to forego an argument (or an entire appeal) to save it for another day is consistent with both goals.

But what about the rest of us? Should we all work together to appoint a Solicitor General on behalf of the Little People?

I’m sure we all fall along a spectrum. Despite my comments above regarding maximum utility, my “gut” reaction is more consistent with CDA’s. What about you? How much consideration do you give to “the cause” when deciding which cases to take or which issues to argue? Do those considerations only come into play when the issue under consideration is a probable loser?



Note: This post was inspired in part by Mark Bennett’s post on zeal.


J. Matthew Wright, Supreme Court lawyer

Posted December 3, 2011 by matthewdad
Categories: Uncategorized

Shortly after I started working at the Federal Public Defender’s Office in 2008, I was assigned the appeal of Monroe “Ace” Setser. On November 30, 2011, my colleague Jason Hawkins argued Setser’s case before the Supreme Court of the United States. I was sitting right next to him at counsel table. It was definitely a “bucket list” experience for a federal appellate attorney, or for just about any attorney, and several friends and family have asked me to tell them the full story. Here’s my attempt to do so. You will have to forgive me if the story is too nerdy or technical.

A. The Issue

Years before I started working for the FPD, my colleagues identified and started litigating the issue that eventually took us to the Supreme Court: whether a federal judge can order that a defendant’s sentence run consecutive to a state-court sentence which does not yet exist.

A brief explanation for those of you who do not typically think about the interaction of multiple sentences: Imagine that Johnny Defendant was sentenced to five years for robbery and ten years for burglary. If those sentences run concurrently, then he will serve only ten years. If those sentences run consecutively, then he will serve a total of fifteen years. Of course, systems with parole (like Texas) make this somewhat more complicated, because the defendant almost never serves the full time, but that’s the basic idea of consecutive versus concurrent sentencing.

Another brief explanation: most people understand the “double jeopardy” clause of the Constitution to prohibit multiple prosecutions based upon the same offense. But many crimes – – such as dealing drugs – – violate both state law and federal law. The “separate sovereigns” doctrine says Texas is free to prosecute a defendant for the very same drug deal that was the basis of a federal prosecution. But the system has developed certain protections against someone serving double time for the same offense. So, in general, if a defendant has been convicted for a single drug deal in state court, either the federal prosecutors will dismiss their case (the Petite policy, for the lawyers in the house) or the federal judge will order the federal sentence to run concurrently with the state sentence. So if Johnny Defendant was sentenced to five years in state court, and the federal judge later sentences him for the same drug deal, he might sentence Johnny to ten years, to run concurrently with the state sentence. If the state sentence is served first, then as soon as Johnny is paroled from state prison, the U.S. Marshals will pick him up and take him to federal prison. He will (or SHOULD) receive credit for the time he spent in state prison.

Title 18, section 3584(a) of the U.S. Code identifies two circumstances in which a federal judge is authorized to make a consecutive or concurrent order: when a defendant is “already subject to a term of imprisonment” (meaning he’s already serving a term in prison), or when “multiple terms of imprisonment are imposed on a defendant at the same time.” We argue that a judge is not authorized to make a consecutive order when the state sentence does not yet exist. In that situation—when the federal judge believes that the defendant will receive a sentence in some other court, but does not yet know—the decision of whether the terms will run consecutively or concurrently must be left to other actors.

The issue has divided the circuit courts of appeals, and the Department of Justice agreed that our interpretation of the law was correct. However, the Fifth Circuit had already decided the issue against us, and DOJ successfully fought to keep the issue out of the Supreme Court for several years. The Supreme Court denied scores of petitions filed by our office, and I’m sure other defendants raised the issue, too.

B. The Case

Mr. Setser’s case was different than the others because the federal district judge issued two orders: that the federal sentence run consecutive to one anticipated state sentence (for revocation of probation), and that the sentence run concurrent with another anticipated state sentence (for the exact same conduct that lead to the federal sentence). While Mr. Setser’s federal appeal was pending, the state court sentenced him on both cases: ten years for the same-conduct drug sentence, and five years for the probation-revocation sentence. The state court ran the two terms concurrently with one another. In other words, each day Mr. Setser spent in state prison was served on both the revocation sentence and the same-conduct sentence. Mr. Setser was paroled from both state sentences after about 2.5 years.

We argue that the judge’s order both requires the Federal Bureau of Prisons to credit Mr. Setser for the time he spent in state custody (to make the federal sentence concurrent with the same-conduct state sentence) AND forbids BOP from crediting that same time (to make the federal sentence consecutive with the revocation sentence). We argue that this illustrates one of the many problems with this kind of anticipatory sentencing—the federal judge doesn’t know if the defendant will receive any sentence at all, how long it will be, how it will relate to other sentences, or any other information necessary to decide whether concurrent or consecutive service is appropriate.

Normally, when a circuit court has already decided an issue, it issues a brief unpublished opinion simply citing the prior decision. Because (I suspect) this case involved a second problem—the potential impossibility of executing the judge’s sentence as written—the Fifth Circuit issued a longer published opinion. In the Setser opinion, the Fifth Circuit stated that it had no intention of reconsidering this issue (thus depriving DOJ of one of its arguments against Supreme Court review). We lost the appeal at the Fifth Circuit but filed a petition for certiorari with the Supreme Court.

My office files several petitions for certiorari each year, but a grant is extraordinarily rare. The Supreme Court considers around 10,000 cases each year, but only accepts 80–90 for oral argument. You have to file a petition within 90 days of the Court of Appeals’s decision. The other side—in our case, the Solicitor General of the United States—then has the opportunity to file a brief in opposition.

This appellate process was very lengthy, in part because several other cases raised this issue and our case was put on hold to await the outcome of those cases. Mr. Setser committed his drug offense on October 1, 2007. The actual prosecution was very swift, as compared to most other courts in the country. He pleaded guilty in May 2008, and he was sentenced in federal court in August 2008. He filed his appeal immediately, but the Fifth Circuit did not decide the case until May 2010. We filed our petition for certiorari in November 2010; the Supreme Court granted the petition (and agreed to hear the case) on June 13, 2011. Oral argument was November 30, 2011, and at the time of this post, we are awaiting the final decision.

For those of you who are especially interested, SCOTUSblog has links to most of the briefs filed in our cases. The Solicitor General agreed that we were right about section 3584(a), so the Court appointed Evan Young to defend the Fifth Circuit’s decision.

C. The Supreme Court

I had visited the Supreme Court three times before. In the summer after my first year of law school, I worked as an intern for a judge at the Court of Appeals for the Armed Forces. One of the attorneys in the clerk’s office was a senior official with the Federal Bar Association, so he invited the interns to a ceremony in which several FBA attorneys were admitted to the bar of the Supreme Court. The ceremony was followed by a reception, and Justice Ginsburg was kind enough to drop by.

In the summer after my second year of law school, I worked for Sidley Austin. We took a tour of the Court and learned all kinds of interesting things about the building and its architecture.

When I was an actual attorney working for Sidley, my friend Jay Jorgensen was asked to defend the Eighth Circuit’s decision in Greenlaw v. United States. I did not get a seat for the argument, but I stood in the “three minute” line and heard a tiny piece of his argument.

Despite these multiple trips to the Court, I was in no way prepared for the experience that we had in Setser. Even though I wasn’t the one who was going to stand up and argue, I was filled with an odd mix of pride, anxiety, fear, excitement, and hope. Normally, each side has four seats at counsel table, but because we were on the same side as the government, we only had two. Jason Hawkins was kind enough to ask me to be the person who sat next to him. In order to sit at counsel table, you have to be a member of the bar of the Supreme Court. So on the day of our argument, I was also admitted to the bar. (That means I could file my own cases and even appear for oral argument if lightning should strike twice).

Here I am with my boss, the Federal Public Defender for the Northern District of Texas, Richard Anderson, who asked the Court to admit me:

Here we are waiting for a briefing on the admission ceremony:

Darla and I got a huge kick out of the magazine rack in the Admissions Office. Not exactly “People” and “Us Weekly”:

After the admissions briefing, we hustled up to the Lawyer’s Lounge for a briefing from William Suter, Clerk of the Supreme Court. He’s widely known as “General Suter” because he’s a retired Major General from the Army and former Judge Advocate General. So far as I can tell, General Suter is universally admired by everyone who comes into contact with him. He’s just a really nice man who is very, very good at what he does. And he tells great stories.

This briefing was probably the best “behind-the-scenes” aspect of our argument. General Suter gave last-minute tips on how to answer questions, how not to answer questions, and where to set your water glass when you move up to the podium. He even told a joke about a former Solicitor General. He, like most court and government employees, wore striped pants and a morning coat. Dahlia Lithwick calls this attire a “goofy sartorial tradition[]” and “grotesquely silly,” but I have to disagree. It just added to the coolness of the event. This is not an everyday court experience, so I don’t mind that the people aren’t dressed like everyday lawyers.

After that briefing, we slipped into the Court. The inside of the Court is very ornate and very pretty, as you might imagine.

Yet it’s not very big. My wife rightly observes that most churches hold more people. But what struck me the most is how close the bench is to the lectern, counsel table, and the seats for people being admitted to the bar. You are RIGHT THERE. Much closer than any trial court podium. It was close enough to have an off-the-record bench conference. Did I mention it was close?

D. The Argument

A couple of things really stand out from the argument. First, every one of the Justices had carefully considered the case and struggled with the problems presented by each side’s proposed rule. All three advocates (Jason, Assistant Solicitor General William Jay, and Evan Young) faced a very hot bench. If you are especially interested, you can listen to the recording or read the transcript.

Second, the precision and depth of analysis at the Supreme Court dwarfs that in a typical federal appeal, even though Circuit court practice is no place for a slouch. There is nothing haphazard about a “merits” case (when the Court grants a petition). Every argument has been carefully considered, revisited, revised, and honed by the parties. And yet multiple members of the Court can immediately see the trouble or problems with the argument, and they aren’t afraid to tell you.

After several “moot court” sessions in preparation for the argument, we were familiar with most of the questions that came up. But that’s after four reasonably talented attorneys spent several months thinking about nothing else, and after we did about seven moots with other lawyers and law professors. And this is all for a relatively straightforward question of statutory interpretation, in which the adversaries agree about the proper outcome. I can’t imagine what sort of preparation is required for cases involving the Healthcare mandate, abortion, or presidential elections.

All three attorneys did a fantastic job.

In general, I think practicing at the Supreme Court is like playing in the World Series, if there were 80 World Series every year, and if you had to wait months after the games ended to find out who won. And like the World Series, just making it there is a victory (as Rangers fans will testify). Untold numbers of very talented appellate lawyers spend their whole careers without a merits case at the high court, and there’s no shame or disappointment in that. Our office is fortunate because we only work in federal criminal law, so every day we face issues that might potentially reach the Court under the right circumstances. Moreover, we have now had a total of four Supreme Court arguments, so we have some sense of the kind of case that might draw interest. We can identify cases early on in the process, and the nature of our work involves many more federal criminal cases in a year than most private firms would encounter over a lifetime.

I will be proud of our work in Setser whether we win or lose, and as a sheer matter of probability I am unlikely to have that experience again. Even so, I’ve already started my planning for “next time” . . .

E. The Team

In closing, I’ve posted a picture of the Setser team as we exited the Court. Our fearless leader Jason says he wouldn’t want to go to the mattresses with anyone else, and I would have to agree. You’d be hard pressed to find a better team for your next SCOTUS case. Most of the best SCOTUS teams are only available to the rich. But we can’t be bought at any price. We only work for the poor!

So that’s it, the story of my first SCOTUS merits case. Sorry about the length, but there’s a lot to say about an experience like that.