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Better Representation for Criminal Defendants at the Supreme Court?

A bunch of bloggers have pointed out Tony Mauro’s insightful piece on representation of criminal defendants in the Supreme Court.  The gist of Tony’s piece is that criminal defense lawyers are often outgunned in the Supreme Court, and that it hurts criminal defendants and defendants’ rights more bradly.  I agree that this is a problem, and have a few thoughts to add beyond those in Mauro’s piece.

First, I think it’s essential to focus on the certiorari stage as much as the merits stage.  Here is what often happens. Criminal cases frequently get to the Supreme Court when a state supreme court reaches an outlier result in favor of a criminal defendant.  The outlier creates a split, and the state petitions for certiorari on the basis of the split.  The defendant’s lawyer has never been before the Supreme Court before, and just rehashes his merits brief in his Brief in Opposition (BIO) rather than addressing head on the reasons why the Court should decline to excercise review.  Without the benefit of a good BIO, the Court grants the case, and the lawyer from state court is tasked with defending the state court decision below.   The lawyer figures that he has won the case in the state Supreme Court, so he can pretty much rehash what he said below in front of the U.S. Supreme Court.  The result is a relatively unhelpful brief (and often a very weak argument). 

The best way to improve this situation, I would guess, is for interested organizations and individuals that are skilled at Supreme Court litigation to watch the petitions that are filed instead of the cases that are granted.  They should watch for strong petitions, and then approach respondents and ask them if they need help with BIOs.  My sense is that offering help after cert has been granted is often too little, too late.

Second, I think organizations that file pro-defense amicus briefs in criminal cases could be a bit more savvy.  The best briefs filed before the Court know where the Justices are, and they try to respond to the Justices in light of that.  They are designed to find a majority of the Court, and to persuade the Justices that most need persuading, rather than to swing for the fences.  My personal impression is that amicus briefs filed on behalf of criminal defendants at the Supreme Court too often miss this: They sometimes read as if they were trying to persuade Justice Brennan instead of today’s swing Justices. 

Dan Filler has more thoughts on the article over at Concurring Opinions.