« The partial de facto moratorium created by Hill | Main | In praise of SL&P commentors »

May 11, 2006

The sad realities of SCOTUS defense advocacy

Tony Mauro has this fantastic new piece available at law.com, entitled "Will Defense Lawyers Accept Help on High Court Criminal Cases?"  The whole article is a must-read for folks interested in the role an impact of defense advocacy.  Here is a snippet:

The Supreme Court oral argument season that just ended saw an unusually high number of state criminal cases argued — 22.  Some were not argued or briefed well from the defense side, say observers in the criminal defense bar who are now looking for ways to upgrade criminal defense advocacy before the Supreme Court, in the same way that their adversaries have improved.  Their concern is that the rights of criminal defendants, already a tough sell before a Court typically unreceptive on that issue, will be further undermined by inadequate briefing and subpar oral advocacy.

May 11, 2006 at 11:34 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference The sad realities of SCOTUS defense advocacy:


The problem with this piece is 1) it seems like vague advertising for DWT (not that there is anything wrong with it, but most Law.com pieces seem to be advertisements for some really large firm); and 2) it doesn’t point to any actual “local” criminal defense lawyer that did a bad job – nor explain what they did wrong. And, as someone who tries his best to listen to SCOTUS advocacy, I can’t name a single “country lawyer” that has come to the court, argued a criminal matter, and did an appalling bad job in the past 10 years. (Granted, browsing through the arguments on Oyez from the 60s and 70s, reveals some bad arguments.)

The irony is, that Studebaker (who didn’t actually argue, instead, opting to “do right” by his client), did what certain judges keep “advising” lawyers to do – keep it simple. Of course, since most SCOTUS briefs are available, everyone knows what is expected.

Posted by: S.cotus | May 12, 2006 6:41:47 AM

Oh wait, Studebaker did argue. My bad. Well, let's see how if his oral argument makes a difference.

Posted by: S.cotus | May 12, 2006 6:42:55 AM

With materials for the attorney, it would be good to send a model Supreme Court brief presenting an issue like the attorney's (same Constitutional area, statutory construction, whatever). This may either intimidate or help. It might at least suggest that filing a 13-page brief is not usually the ticket.

Posted by: David Lewis | May 12, 2006 10:14:41 AM

Not to be snarky, but wasn't Fisher a SCOTUS first timer when he argued _Blakely_ and _Crawford_? I know he clerked there, but that's not the same thing as being an experienced advocate. It seems a little hypocritical.

Having said that, as an appellate specialist in a federal PD office, I'd gladly take any help anybody wants to provide if one of my cases ends up at the Supreme Court. But you damn well better believe that I want to be the one who steps up the lectern and crosses swords with Roberts and his bretheren.

Oh, and the brief in the Utah case is pretty shabby, particularly when compared to the NACDL amicus brief.

Posted by: JDB | May 12, 2006 10:14:56 AM

For an example of how a Jeff Fisher can help, compare the opposition to the petition for certiorari filed in Washington v. Recuenco (prepared by Recuenco's state-court appellate counsel) with the opposition brief on the merits (wherein Jeff Fisher and DW&T appeared as co-counsel)...

Posted by: alias | May 12, 2006 10:48:44 AM

I am honestly here to help you. Go to this site and you will understand.

Posted by: helene | May 13, 2006 5:58:13 PM

Lest we forget poor Carrie Buck in Buck v. Bell: "Carrie's lawyer, Irving Whitehead, poorly argued her case, failed to call important witnesses, and was remarked by commentators to often not know what side he was on. It is now thought that this was not because of incompetence, but deliberate. Whitehead had close connections both to the counsel for the institution, and Priddy himself. He was also a member of the governing board of the state institution where Carrie resided, and had personally authorized Priddy's sterilization requests and was a strong supporter of eugenic sterilization."

Granted, most and maybe all these modern losses are due to incompetence, but has anyone even considered this dreaded possibility? Many historians agree that Irving Whitehead intended to lose the case. A tiny cabal used Federalism to implant their views, and then argued they were accepted in enough states. If it worked once, it can work again. This is more of a question, or maybe a warning, than an accusation, since there probably isn't any evidence to support this paranoid sounding, though historically sound, question.

Posted by: A Lay Concerned Citizen | May 21, 2006 4:47:53 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB