Mimesis Law
23 July 2019

At The Supreme Court, Criminal Defense At A Huge Disadvantage

August 16, 2016 (Fault Lines) — Ask a football player the question, “What’s the biggest thing you could do in your professional career?” and the likely answer is “Win the Super Bowl.” Ask a military officer the same question, the answer probably comes back “Win a battle (or a war).” For criminal defense attorneys, there are two possible equivalents: winning a murder trial or winning a case before the Supreme Court. Most lawyers never get the chance to do either; nevertheless, those are the twin peaks of accomplishment in our profession.

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.

Professor Crespo identifies three basic areas that make things hard on the defense. First, the fact that the justices, if they have any criminal experience at all, gained that experience in the prosecutor’s office. This means that they tend to view criminal issues from the prosecutorial perspective.

Second, that Supreme Court advocacy is a narrow specialty, and that very few criminal lawyers have the opportunity to develop the experience and the chops to perform well there. Third, that the prevalence of plea bargaining in the federal system limits the scope and issues of cases that make it to the Supreme Court in the first place.

It’s the second of these factors that’s the most interesting; and the one that presents the easiest to solve. Crespo takes a look at every criminal case argued before the Roberts Court, and found the following. First, compared to civil cases, a much higher percentage (67%  vs. 48%) of criminal defendants are represented by “novices,” i.e. lawyers without significant Supreme Court experience.

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.

Crespo compares this with the situation on the other side, where most criminal cases for the government are argued, at least in part, by the Solicitor General’s Office of the Department of Justice.

That sharp disparity [between defense and prosecutorial Supreme Court experience]. rather, arises from one simple fact: the single most expert appellate prosecutorial office in the United States—the Office of the U.S. Solicitor General—presents oral argument as either a party or as an amicus curiae in a substantial majority (72%) of criminal cases that the Court considers. And when it does so, it virtually always argues in opposition to the criminal defendant—an unsurprising fact given that the office is itself a prosecutorial office, but a dramatic one all the same.

Basically, the Solicitor General’s office has a section dedicated purely to litigating criminal cases before the Supreme Court; and the head of that section, Deputy Solicitor General Michael Dreeben, has been there since 1989 and personally argued 95 cases before the Supreme Court. To analogize, it’s as if two mountain climbers were racing to the peak of Everest, but one of them is a rookie and the other spent an entire career specializing in climbing that one mountain. This doesn’t mean that the defense will always lose, but it does provide a huge advantage to the government.

Crespo goes on to suggest a simple solution to this disparity, which is that the Court allow parties such as the National Association of Criminal Defense Attorneys, the ACLU, or other similar organizations to participate in oral argument as amicus curiae; which is currently only done “in the most extraordinary circumstances.” Logistically, he proposes a standing committee of the Supreme Court that would appear along with the counsel of record any time the Solicitor General was involved in a case.[1] It’s an interesting solution, and the very fact that this kind of problem exists shows that the government’s advantage in criminal law persists at the top as well as the bottom.

If implemented, will Crespo’s suggestion improve the state of criminal defense in this country? I would guess yes, though not by very much. Having a stable of lawyers who can go toe to toe with the best the Solicitor General can put up would be a good thing. The same principle applies all the way down to traffic court…a fair adversarial system requires that the adversaries be evenly matched.
It’s probably not a game changer, though, since the other factors Crespo mentions (prevalence of former prosecutors on the bench and the prosecutor’s systemic advantages) do not admit of easy solutions; and those factors play a much larger role in shaping the Court’s jurisprudence than the quality of the parties’ advocacy.
More than that, the cases that actually make it to the Supreme Court are drops of water out of the ocean of criminal courts; and Supreme Court opinions tend to be more focused on big-picture legal issues than the details of the case at bar. The biggest problems in criminal defense have to be solved at the front end; meaning trial-level advocates with the resources and self-confidence to fight a case before a conviction. Professor Crespo’s idea is a good one, but it’s more about single combat on the top floor of the Ivory Tower than it is about improving things in the trenches.

[1] It occurs to me that if Professor Fisher doesn’t want to leave Palo Alto, a logical choice to head up this hypothetical committee could be…Andrew Crespo, a former Supreme Court clerk and public defender. So this article might be the stealthiest guerrilla job application of all time, which would be [expletive deleted] awesome.

7 Comments on this post.

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  • Chris
    16 August 2016 at 2:27 pm - Reply

    If there is some reversible issue that the federal trial judge got wrong(a rare occurrence indeed), for a federal crime wouldn’t the circuit courts have caught it and sent it back? And for a state crime, the trial judge, the state intermediate appellate court, the supreme (I don’t care what New York does) state court, and then all the way up the fed chain. So when you get a criminal appeal up to the Supreme Court of the United States, the jury, the trial judge, and all the appellate judges all the way up the chain had to be wrong. Yes, a unicorn. Just like a criminal defense attorney that has the law and the weight of evidence on their side.

    • Noel Erinjeri
      16 August 2016 at 2:34 pm - Reply

      I know what all those words mean, but not when you put them in that order.

  • Cindy
    17 August 2016 at 4:28 pm - Reply

    “…the justices, if they have any criminal experience at all, gained that experience in the prosecutor’s office.” With all due respect, the esteemed Chief Justice Earl Warren, who presided over a U.S. Supreme Court that was fair to criminal defendants (“the Warren Court”), was a former district attorney.

    “…very few criminal defense lawyers have the opportunity to develop the experience and chops to perform well there.” With all due respect, Gideon’s lawyer, Abe Fortas was a big law partner who mostly practiced corporate and securities law. What Abe Fortas (along with his partners and associates) possessed was excellent legal research and writing skills that enabled them to write a brilliant brief. In representing criminal defendants before the U.S. Supreme Court, good legal writing skills are more important than whether or not one specializes in criminal defense law.

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