At Fault Lines, Noel Erinjeri writes about a problem that has long plagued the criminal defense bar, to the extent such a beast exists. Who argues for us?
As it turns out, Supreme Court advocacy for criminal defendants is subject to a lot of the same constraints that affect criminal defense at less rarified levels. The Minnesota Law Review recently published an article by Andrew Crespo, a professor at Harvard Law, which analyzes the development of criminal jurisprudence in the Supreme Court and why the field is tilted against the defense; along with some suggestions on how to fix it.
It hasn’t always been tilted, of course. During the Warren Court, the heyday of defendants’ constitutional rights, the Supreme Court was inclined toward the defense, some would argue too inclined. But then came Chief Justice Burger, and then Rehnquist, and it’s been downhill since.
So aside from the fact that the defense has no friends on the bench, nor any justice since Marshall who has actual experience on the defense side of criminal law, what’s Crespo’s view of the problem?
Second, of the 86 lawyers Crespo identifies as Supreme Court “experts” (lawyers who have argued before the Court at least five times in the last 15 years), only 22 of them have ever argued a criminal case there. Of that 22, exactly one of them (Professor Jeffrey Fisher of Stanford Law) can be described as a criminal defense specialist.
Crespo goes on to say:
[B]ased on the data presented above, it seems safe to say that Professor Fisher is the expert Supreme Court criminal defense bar—if only one person a Bar could make. Beyond Professor Fisher, criminal defendants are represented at the Court on rare occasions by Supreme Court experts who either dabble in criminal defense work from time to time or who make only infrequent appearances before the Justices. However, far more often—indeed, 75% of the time—such defendants are not represented by an attorney with Supreme Court expertise at all. Rather, in the vast majority of those cases (89%) the defendant’s attorney is a Supreme Court novice—and not infrequently one whose lack of experience shows all too clearly.
And indeed, over the past few years, a “supreme court bar” has come into existence. These are lawyers whose expertise is arguing before SCOTUS, not on any substantive area of law about which they’re arguing.
Is this really an issue? Well, as with almost all legal questions, the answer is “it depends.” On the one side is the solicitor general, who is in essence a prosecutor who appears constantly before the Court. On the other side?
Why are there so few expert lawyers arguing on behalf of criminal defendants? Justice Sonia Sotomayor has said that the main factor is vanity: Many criminal defense lawyers are too reluctant to cede the glamour of Supreme Court arguments to specialists.
“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,’” Justice Sotomayor told Reuters in 2014.
Empathy only goes so far, apparently. But as Josh Kendrick’s points out, being part of the in-crowd at the Supreme Court not only gives a lawyer cachet, but the benefit of being one of the gang. The justices like it better then it’s one of their “experts” doing the arguing.
There may be some hidden truth behind Justice Sotomayor’s complaint, that for lawyers, their one shot at greatness, to be the lawyer who won Gideon or Miranda, to have one’s name go down in the annals of lawyer greatness, is too alluring to ignore. Lawyers do tend to be suckers for glamour.
And some lawyers who get their mitts on cases, but lack the chops to win them, might well be inclined to hold too tightly to their one shot at fame and instead end up the goat. I’ve never had the opportunity to argue before the Supreme Court and, well, I would love to. But would I be committing malpractice by letting ego blind me to the fact that there are others with far greater experience who would do a better job of it? Well, sure. Maybe.
The piece missing from Sotomayor’s condemnation of vainglorious lawyers is that what we lack in experience before the Supremes, or in close, trusted friendships, we might make up for in breadth of experience in the law. Knowing how to argue, and knowing reality, need not be coterminous. When a question arises, an advocate must give a response. If he doesn’t know the answer, he pulls one out of his butt. We live with whatever concocted nonsense he makes up on the spot.
Questions are asked about how a rule would impact behavior, whether by a cop a defendant or, god forbid, a judge, and these experts, who have never actually done any of the things about which they’re arguing, make up an argument that conclusively proves they’ve never tried a criminal case. As an observer, some of their responses are utterly idiotic, and to some extent, this explains why the justices, who have little to no experience of their own, come up with such ridiculous notions as “the new professionalism.”
The other side to all this is that even a lawyer with a breadth of experience may not argue the way another lawyer with a breadth of experience would argue. We’re not some homogeneous group, all on the same page, all with the same experience, such that one experienced criminal defense lawyer is replaceable with any other. We’re not fungible.
Criminal defense lawyers regularly disagree with one another, about what rule is best, how best to get there, what the best tactic might be and how to accomplish a strategic goal. And we regularly disagree strongly, because we’re not particularly inclined toward moderating our speech or being very gentle so as not to hurt feelings.
Our adversary, a very experienced, very competent, solicitor general has a great deal going for him or her. The defense, whether argued by a Supreme Court “expert” who doesn’t know criminal law or criminal law reality, or by the experienced criminal defense lawyer who doesn’t get invited to the justices’ cocktail parties, can’t match up well.
Crespo’s solution is to have some entity, like the ACLU, argue as a super amicus on behalf of the defense side, but that scares me more than having no “expert.” Sorry, kids, but the ACLU doesn’t speak for my clients, and is quite often on a very wrong path for the defense. The NACDL might be closer, but still, nobody elected them the final voice of criminal defense. I’ll argue my own position, thank you very much, rather than defer to either what the ACLU or NACDL thinks is the right outcome.
Of course, if the justices wanted to, they could compensate for this unlevel playing field, recognizing that either way there is a disparity. and they need to be a wee bit less obsessed with how to facilitate conviction and a little more concerned with the Constitution. But then, if that was going to happen, they wouldn’t really need argument in the first place. Maybe they don’t.