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January 28, 2020

More on the need for more robust SCOTUS criminal defense representation

I noted in this post a few weeks ago this notable new article authored by Daniel Epps and William Ortman titled "The Defender General."  Adam Liptak of the New York Times has clearly read the piece, as he has this new article discussing its proporal under the headline "A Proposal to Offset Prosecutors’ Power: The ‘Defender General’."  Here are excerpts:

Justice Elena Kagan calls it her hobbyhorse. Justice Sonia Sotomayor says it is a kind of malpractice.  Criminal defense lawyers, they say, often fail to put aside ambition and vanity when their cases reach the Supreme Court. These lawyers, the justices say, should step aside and let Supreme Court specialists handle the arguments. “Case in and case out, the category of litigant who is not getting great representation at the Supreme Court are criminal defendants,” Justice Elena Kagan said at a Justice Department event in 2014.

Studies have demonstrated that members of the elite Supreme Court bar who appear often before the justices win their cases at a substantially higher rate than novices do.  But persuading trial lawyers to cede a once-in-a-lifetime turn at the Supreme Court lectern to a fancy appellate lawyer is easier said than done.  “A lot of these cases, they’re pretty hard to win anyway. And what we see is that people are being represented by whoever the trial counsel was for a particular defendant,” Justice Kagan said in 2014. “And appellate advocacy is hard, and it takes a lot of skill and a lot of experience.”

Trial lawyers should put their clients’ interests first, Justice Sonia Sotomayor told Reuters in 2014. “I think it’s malpractice for any lawyer who thinks, ‘This is my one shot before the Supreme Court, and I have to take it,’” she said.

Making sure criminal defendants have consistently able lawyers at the Supreme Court would be a start.  But a new article published in the University of Pennsylvania Law Review by Professors Daniel Epps of Washington University in St. Louis and William Ortman of Wayne State University says more is needed.....  The problem, they say, is structural. Prosecutors can choose which cases to appeal, with an eye toward shaping the law rather than preserving every conviction.  Criminal lawyers, however skilled, must defend their individual clients.

The article, “The Defender General,” proposes the creation of a new office to counterbalance that of the solicitor general, the Justice Department official who represents the federal government in the Supreme Court. The solicitor general’s office is particularly skilled at making strategic litigation choices, and it plays a role in about three-quarters of criminal cases heard by the court.

In federal cases, the solicitor general represents the prosecution.  In state cases, it very often files briefs supporting the prosecution and is granted separate argument time to make its points.  In all, the solicitor general’s office has sided against criminal defendants more than 95 percent of the time.  The defender general’s office envisioned by the article would sometimes represent individual criminal defendants or file supporting briefs on their behalf.  More important, it would represent the interests of criminal defendants generally, even when they diverged from the interests of the particular defendant in the case....

The proposed defender general’s office is more thought experiment than realistic prospect.  But it sheds light on an authentic engine of imbalance in the criminal justice system.  The article builds on earlier work.  A 2016 article in the Minnesota Law Review by Andrew Manuel Crespo, a law professor at Harvard, proposed a partial fix. It urged the justices to appoint expert lawyers to argue as friends of the court alongside the defendants’ own lawyers. Along the same lines, Senator Cory Booker, Democrat of New Jersey, has proposed creating a Defender Office for Supreme Court Advocacy to represent criminal defendants and file supporting briefs.

Another factor may tilt the playing field against criminal defendants: Since the retirement of Justice Thurgood Marshall in 1991, the Supreme Court has not included any justices who have spent significant time working as criminal defense lawyers before ascending to the bench.

By contrast, eight of the nine members of the current court have worked in prosecutors’ offices. Six of them served in the Justice Department. Justice Clarence Thomas was an assistant attorney general of Missouri; Justice Sotomayor was an assistant district attorney in Manhattan; and Justice Brett M. Kavanaugh worked for Ken Starr, the independent counsel who investigated President Bill Clinton. The court could use some diversity in this area, Justice Sotomayor said in 2016 at Brooklyn Law School: “There is no criminal defense lawyer on the court.”

Some prior related posts:

January 28, 2020 at 12:25 AM | Permalink


There is something lost when only a few "specialists" argue before the court. This is apparent whenever the court addresses evidentiary issues and other trial practice issues. It is obvious most of them have never tried a case and aren't familiar with how trials work in the real world. Of course there are practitioners that aren't good at oral argument and don't put in the work to adequately prepare. The court can address that by appointing counsel as a friend of the court to also argue the issue. Having a defender general would eliminate the client's choice of counsel? There are lots of problems with this plan.

Posted by: defendergirl | Jan 28, 2020 2:03:43 PM

I believe the proposal only would apply to indigent defendants. The Justices's comments highlight the system wide animus the judiciary has for criminal defense lawyers.

Posted by: whatever | Jan 28, 2020 4:46:29 PM

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