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June 29, 2008

Defense lawyers win: initial reflections on the SCOTUS term that was

How Appealing collects here links to a lot of Supreme Court end-of-term discussions.  Because the Term truly was a mixed bag, it defies ready summary (though Linda Greenhouse rightly spotlights that Justice Kennedy remained a swing vote in the biggest 5-4 cases).  Reflecting on the major criminal justice rulings, I think it is fair to saw that defense lawyers were the biggest winners.

Though I have not done a systematic review, criminal defendants generally seem to have faired quite well with important victories in Gall and Kimbrough and Danforth and Boumediene and Begay and Kennedy and Giles. But, defendants took hits in cases big and small with loses in Medellin and Baze and Rodriquez and Edwards and Irizarry.  However, even when criminal defendants lost, there were victories to be found for criminal defense lawyers.

Edwards, limiting the reach of the right of self-representation, is the most obvious example of defense lawyers winning when a criminal defendant loses.  But the same might also be said about Baze, which has a holding and dicta that can and has still energized capital defense lawyers to be more aggressive with "as applied" challenges to execution protocols.  And even big defense wins like Gall and Kimbrough and Danforth and Boumediene may end up meaning a lot more and be much more significant on a day-to-day basis for defense lawyers than for defendants.

And, certainly not to be overlooked, the very biggest case of the Term, the Heller case recognizing an individual enforceable Second Amendment right, should give defense lawyers lots to work with and work on (even though I doubt too many defendants will ultimately win with Heller claims).

June 29, 2008 at 09:58 AM | Permalink


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Doug, I'm saddened to see your blog segregating defense attorneys in the same derogatory way they're portrayed on TV crime shows (and, unfortunately, by too many prosecutors and judges). I'm also sorry to see you portray appellate litigation as if it were sport, with winners and losers. If prosecutors are true to their unique obligation to seek justice for everyone (including the defendant) rather than "winning" cases, how does the government ever "lose"?

Your disparaging reference to the Edwards case as a loss to defendants whose mental impairment negates their ability to represent themselves and as a "win" to their defense attorneys overlooks the very difficult task such attorneys face, struggling to conscientiously respect their client's in-put about the best defense, even when its irrational. And, while Kennedy may be perceived as a "loss" by pro-death-penalty activists (in and out of prosecutorial offices), it by no means appears to be a clear loss to the child victims of rape, whose assailants will be prosecuted with no less vigor, but who will not be subjected to the added burden capital prosecutions place on them in terms of the greater commitment required for more prolonged litigation.

I've been an appellate defender for almost twenty-five years. I've seen and celebrated lots of favorable rulings, yet the joy has come from seeing benefits come to my clients, and the fairness of our judicial system. Branding this last term with the label "Defense lawyers win" doesn't serve anyone's interest, I don't think.

Posted by: David | Jun 29, 2008 10:53:46 AM

Fair points, David, though a bit heavy for a sunday summer post. I'm writing a blog, not an op-ed and certainly not a law review article. My post heading was intended to provide a pithy (perhaps cheeky) summary of some lessons from the SCOTUS term, and I think the idea that defense attorneys "won" more than defendants (and certainly more than prosecutors) fits the bill.

As a defense lawyer, I know that many lawyers fail to get all the respect they deserve. Still, I do not think you really should be getting too worked up about my effort to spotlight that a supposedly conservative court has been showing defense attorneys lots of loving rulings lately.

Posted by: Doug B. | Jun 29, 2008 2:18:50 PM

One could add Rothgery, I suppose, to the defense friendly rulings this term. Though Scheidegger will be here soon to chime in that it was of "vanishing" import, in Texas where it originated, the case appears to have significant impact when read in conjunction with state law and past state court decisions.

On Edwards, I don't consider that a ruling in favor of either the prosecution or the defense. It was a ruling to benefit the judiciary, IMO - nothing more.

Posted by: Gritsforbreakfast | Jun 30, 2008 12:09:27 PM

Grits, speaking as a public defender with 5 years experience, I agree with you on Edwards. It seems that Edwards was as much about the judiciary's problems with difficult pro se defendants as it was with the defendants' "dignity." I hate to agree with Scalia, but if it really wanted to respect a defendant's dignity, the criminal justice system would respect the decisions they make (after making sure they are competent and fully advised of the consequences).

The effect of the decision is to sweep the problem of mentally ill defendants under the rug, by forcing an attorney to deal with them in private rather than have a judge deal with them in public.

Posted by: rn | Jun 30, 2008 5:05:23 PM

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