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Tag Archive for: First Mondays

How Might Judge Gorsuch Decide Criminal Cases on the Supreme Court?

February 2, 2017/by J. Scott Key

At the start of this week, I penned a post critical of how President Trump handled the firing of Sally Yates. Today, I write to commend his nomination of Judge Gorsuch for the United States Supreme Court.

Textualists and the criminal appellate bar are natural allies. And such is the case with this pick. I want to discuss briefly one case here to give you a glimpse of how a Justice Gorsuch might approach criminal cases. And if you have about forty-five minutes, I cannot recommend enough the most recent edition of the First Mondays Podcast, where you will find an interview with a former Gorsuch clerk and a discussion of some of the judge’s more notable tenth-circuit opinions (I swear these guys aren’t paying me to promote them).

The case I want to highlight is United States v. Gamez Perez. In that case, Judge Gorsuch wrote a dissent to a petition for rehearing en banc. Here was the issue. Mr. Gamez Perez was convicted to possession of a firearm by a convicted felon. His defense was that he did not know that he was a convicted felon. He had good reason not to know his status as a felon. When he entered a plea to the underlying offense in the state system, the state-court judge told him that he was not a felon. He was later charged with possessing a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The opinion in the case was that the statute required only that a defendant know that he was in possession of a firearm. The court held that there was no mens rea element for the status of a convicted felon.

Judge Gorsuch dissented reasoning that the knowledge element should spread to include knowledge that a defendant is a convicted felon. He based his reasoning on a fairly established canon of statutory construction that mens rea language, if placed at the beginning of a sentence spread to all other substantive elements of the statute. And he based his opinion on basic rules of grammar and usage. Here are a couple of points that I like about Judge Gorsuch’s approach:

  • First, his writing style is excellent. I could hand this opinion to a non-lawyer friend and feel confident that she could follow it. But an appellate lawyer would see that the writing is professional and thorough. There is no higher praise for legal writing than that. If I am going to read a justice’s opinions for the next 30 years, I like knowing that it won’t give me  headaches.
  • He reads the text, researches the law, and lets those things guide him to the result. He does not envision a result then bend the law to get there. This approach may be bad for the criminal defendant in specific instances. But it will always be fair to the criminal defendant and to the prosecution. I find the approach to be sadly rare. The criminal defense bar endures no end of judicial linguistic gymnastics so that law enforcement can “get the bad guy.” Just today, I was speaking to a potential client about the standard for getting something done in a post-conviction matter. And in the first half of my explanation I explained the standard under the law. In the second half, I explained how the just would really decide the case. It is nice when the relevant statute is the guide to how the case will be decided.
  • He seems to care about the defendant’s plight. While he is not bending the law to get to a result, he seems genuinely troubled that the state-level judge told the defendant that he was not a felon, and the defendant relied upon those re-assurances to his extreme detriment.
  • He is suspicious of arguments about legislative history where the statute is clear on its face. Whenever I have a solid argument on the law and a judge’s opinion starts getting into legislative history, I know that I am about to call a client to relay bad news.

In my career, I have never minded judges who sentence harshly. I have never minded judges who run their calendars in a controlling way. Sentencing and calendar management are what judges do. I have always disliked dealing with judges with an agenda that spills into how they rule. Prosecutors Apologists refer to this as “folksy wisdom,” “common sense,” or say “he always seems to get to the right place.” A judge who looks at the law, applies it to the facts, and works hard to be fair is about as much as you an ask for in a judge. And based upon this case and others I have read out of the Tench Circuit, Judge Gorsuch looks like a solid pick.

0 0 J. Scott Key /wp-content/uploads/SK-Logo-Black-White.png J. Scott Key2017-02-02 16:24:422017-02-02 16:24:42How Might Judge Gorsuch Decide Criminal Cases on the Supreme Court?

Just Because Counsel Can Do an Appeal Doesn’t Mean that he Should

January 25, 2017/by J. Scott Key

Amateur HourIn episode #12 of First Mondays, Dan and Ian play cringe-worthy clips from the recent Supreme Court argument in Lee v. Tam, a case involving the disparagement provision of the Lanham Act and the First Amendment. There is a similar case in the pipeline involving the Washington Redskins. And counsel in that case argued that cert should be denied because of the poor quality of counsel for the band, The Slants. Counsel argued that the case involving the Redskins was a better case because of better counsel. Last week, the commentators speculated that the lawyer might be angered by the criticism and rise to the occasion. Alas, he did not.

At 20:27 in the podcast, Dan and Ian play some regrettable moments that seem to reinforce the choice of counsel argument. In the first clip, counsel responds to a hypothetical question by saying “that’s not a question before the Court.” Judges hate this response. Every panel I have ever watched at a CLE on oral argument features a judge or justice saying that judges hate this response. And it goes downhill from there.

The First Mondays guys, both former SCOTUS clerks, go on to say that the poor advocacy problem is most prevalent in criminal cases before the Court, to the tune of three to four arguments per term. Typically, the criminal lawyer who handled the case keeps the case all the way to the Supreme Court. Most criminal lawyers I know talk of their dream of one day presenting a SCOTUS argument. Often, I try not to picture how that might go. So, I’m not surprised at the notion that it so often doesn’t go well.

They then draw a medical analogy. Imagine a patient is diagnosed with a rare disease and the local general practice doctor chooses not to hand the case over to a specialist because the procedure will make the doctor famous. Such a thing would not happen in medicine but does happen in the law. And it apparently happened in this copyright case.

The problem at issue here goes deeper than advocacy at the US Supreme Court. Far too often, a lawyer tries a complex criminal case because he did a great job at drafting Aunt Jean’s will. When I take a new criminal appeal, this is generally the background. Or the lawyer handles an appeal simply because a potential client with an appellate issue walked in the door one day. And the client comes to me with a mess and a prayer for possible habeas relief. And it is not uncommon for me to get a call from a lawyer with a question about an appeal that they are handling. It becomes clear, not far into the phone call, that the deeper problem is that the lawyer is in over his head and should not be doing the case.

Dan and Ian go so far as to say that the choice of counsel doctrine should not apply at the Supreme Court level. Not only do I agree. I think the argument doesn’t go far enough.

0 0 J. Scott Key /wp-content/uploads/SK-Logo-Black-White.png J. Scott Key2017-01-25 15:26:172017-01-25 15:26:17Just Because Counsel Can Do an Appeal Doesn’t Mean that he Should

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  • Embracing the Legal Fundamentals with William Maselli

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