« Dallas DA urges being smart and not just tough on crime | Main | A first extraordinary report on today's Libby hearing »

June 14, 2007

SCOTUS still keeping us sentencing fans waiting

According to this post at SCOTUSblog, the three opinions issued by the Supreme Court today include nothing exciting for criminal justice fanatics (though there was a 5-4 split ruling against a defendant on a technical appellate jurisdiction issue).  So, we will all have to wait until at least next week for a Rita ruling.

I must admit that I'm not too disappointed because now I can focus on other important matters over the next few days.

June 14, 2007 at 10:18 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference SCOTUS still keeping us sentencing fans waiting :


In Bowles v. Russell, the 5-4 majority (by Thomas) holds that the defendant's notice of appeal from the denial of a habeas petition was untimely even though the defendant relied on the district court's express statement of when the notice as due. Another heartless, cold, cruel decision by the most cold, heartless, and cruell Justice.

Posted by: Michael Levine | Jun 14, 2007 11:19:24 AM

There is absolutely nothing cold, heartless, or cruel about the Court's decision. It's an ordinary application of Rule 4 and the applicable statute (which explicitly allows a district court to reopen a case and add 14 -- not 17 -- days for filing a notice of appeal). If you don't like the decision, write Congress, but don't ask the courts to create power for themselves in direct contravention of the Acts of Congress. You undermine the Rule of Law whenever you ask courts to expand the law where the legislature has explicitly limited it.

Better still, DON'T WAIT UNTIL THE LAST MINUTE TO FILE YOUR DAMN APPEAL. Otherwise, we'll get people frothing at the mouth, saying that the courts are cruel for actually following the law.


Posted by: Mark | Jun 14, 2007 12:09:46 PM

Mark, notwithstanding your forceful response, I remain unconvinced. As the dissent points out, the Court has ample authority to recognize an equitable exception
to the 14-day limit. Such exceptions are recognized with statutes of limitations and as it has done with other deadlines. And it certainly seems reasonable for the defendant to rely on an order from a federal judge as to when the notice of appeal was due. For the majority to say otherwise is unfair and unjust to the defendant. There is after all a doctrine of detrimental reliance. This doctrine was at play in the Thompson case cited by the court. Conservatives should be the first to follow stare decisis. Thompson's reasoning should have controlled the outcome rather than the crabbedview of the majority. In sum, the defendant relied upon the district court's order as to when the notice of appeal could be filed. Now the Supreme Court tells him: too bad; you shouldn't believe, or rely upon, a federal district judge you lose. This is a true "bait and switch" unworthy of the Supreme Court.

Posted by: Michael Levine | Jun 14, 2007 12:56:01 PM

Mark, perhaps you're not a practicing lawyer, but it's not uncommon to wait until the last second to file your notice of appeal. And there is a good, strategic reason for doing so. As the dissent states in a footnote:

"At first glance it may seem unreasonable for counsel to wait until the penultimate day under the judge’s order, filing a notice of appeal being so easy that counsel should not have needed the extra time. But as Bowles’s lawyer pointed out at oral argument, filing the notice of appeal starts the clock for filing the record, see Fed. Rule App. Proc. 6(b)(2)(B), which in turn starts the clock for filing a brief, see Rule31(a)(1), for which counsel might reasonably want as much time as possible. See Tr. of Oral Arg. 6. A good lawyer plans ahead, and Bowles had a good lawyer."

Posted by: Elson | Jun 14, 2007 3:56:56 PM


I am a practicing attorney, with many scores of appeals under my belt. There is no good strategic reason for waiting to file a notice of appeal. More importantly, there is no good professional reason for relying solely on the district court's say-so regarding the due date of a notice of appeal (the whole purpose of our appellate process, obviously, is to correct the mistakes that trial judges make interpreting the law); read the statute yourself and, if it says a judge can extend the deadline for up to fourteen days, don't rely on the district judge to think that you've got seventeen days.

Regarding your quote of the "strategic" reason cited by the dissent: There is ample time under the Fed. R. App. P. to prepare the record and to prepare the briefs, and, if some problem arises, appellate courts may extend the time for those tasks upon good cause, without creating jurisdictional issues. The notice of appeal, in contrast, is jurisdictional in nature. It's different from all other appellate deadlines; failure to comply is fatal to an appeal. Therefore, given the choice, a wise practitioner stridently avoids any problems with the notice of appeal, works hard to avoid any problems with the record and briefs, and trusts the CoA to help if some problem with those secondary deadlines arises.

Again, if you don't like the Court's decision, write your Congressman or senator and ask them to change the law. Until Congress changes the jurisdictional statutes (and Rule 4), though, practicing attorneys should take my advice: "DON'T WAIT TO FILE YOUR NOTICE OF APPEAL." Although there are plenty of judges who will try to help our clients out when we make mistakes, we attorneys can't count on that wan hope. Sometimes (as in this case), THE LAW -- and not some set of "heartless, cold, cruel" judges -- will limit the courts' ability to protect our clients from our misjudgments.


Posted by: Mark | Jun 14, 2007 6:53:26 PM

Roberts is a failure.

Posted by: rothmatisseko | Jun 15, 2007 3:33:33 AM

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