The Criminal Lawyer

The Fourth Amendment says the police can’t go into your home or other private place without a warrant. Over the years, we’ve come up with a lot of exceptions to the warrant requirement. So many, in fact, that getting a warrant has become the exception, and the exceptions have become the norm.

That’s because privacy isn’t the only interest society has here. The various exceptions to the warrant requirement allow the police to go in when other important interests outweigh the privacy interest.

One common exception to the warrant requirement is the Emergency exception. Under the emergency rule, the police can go in when there is good reason to believe there’s someone inside who needs help right away — either they’re seriously hurt, or they’re in danger.

In New York, that rule was formalized by the Mitchell case in 1976. The Mitchell rule has two objective conditions, and one subjective condition. If all three are met, then the police would be allowed to enter under the emergency rule. The objective conditions require that a reasonably prudent officer would first have thought there was an emergency, and second would have had probable cause to believe the emergency was inside the place to be searched. The subjective condition was that the police had to actually be going inside to help someone — the emergency couldn’t be a pretext for some other ulterior motive such as looking for evidence.

For about 15 years, now, the U.S. Supreme Court has been rejecting subjective rules like that. So far as federal law is concerned, the Supremes don’t care if the police had some ulterior motive or pretext. So long as there was a legitimate basis for the police conduct, they don’t care what the police were actually thinking.

So in 2006, in the Brigham City case, the Supreme Court specifically addressed the three-part Mitchell rule, and said New York’s subjective condition is not required under federal law. All federal law requires is that the police had an objectively reasonable basis to believe that there was an emergency, and probable cause to believe that the emergency was inside the place to be searched.

That’s only the federal rule, however. Federal law only provides a minimum of protections, a base line of individual rights. The states can’t give less protection, but they can certainly grant greater protections. So New York remains free to adopt the Brigham City rule, or keep the Mitchell rule, or come up with a new one. (New York could even get rid of the emergency exception altogether, though that would be a silly result — nobody wants the police to be forced to watch helpless from the sidewalk while someone is being beaten to death on the other side of a window.)

But to date, New York’s courts have neither adopted nor rejected the Brigham City rule. It’s still up in the air whether the subjective prong will continue to be part of the rule in New York. This uncertainty has been going on for nearly four years now, and that’s bad for all concerned. It’s certainly high time to settle the issue.

-=-=-=-=-

The other day, we were asked for a solution. We were arguing an appeal here in New York last week, which dealt only with the objective prongs of the rule. The People were appealing from a suppression ruling, and they were claiming that the search was good under the emergency doctrine of Brigham City. The hearing court never applied the subjective prong of the Mitchell rule, so its validity was not really at issue in the case.

So imagine our surprise when the court asked us what New York’s rule ought to be now, whether the state should keep or abandon Mitchell’s subjective prong. We were surprised, but not unprepared of course. We proposed that there does need to be a subjective part of the rule, but not the pretext rule of old.

There needs to be a subjective belief on the part of the police that their search was lawful. They had to have some justification for their search at the time, whether it was an emergency or some other exception to the warrant requirement. Nobody wants a rule that gives the police an incentive to commit a bad search, knowing it’s bad, in the hope that some clever prosecutor down the road can think up some objective justification after the fact.

So what would our proposed rule look like? Let’s take a crack at writing it out in plain English.

Under the Emergency exception, the police may conduct a warrantless search when:

1) Based on evidence actually known to the searching officer before commencing the search, a reasonably prudent officer would have believed that a person was in danger of serious physical injury or death;

2) Based on evidence actually known to the searching officer before commencing the search, a reasonably prudent officer would have thought it more likely than not that the emergency was inside the place to be searched; and

3) Before commencing the search, the searching officer actually and reasonably believed the search to be justified by this or some other exception to the warrant requirement.

-=-=-=-=-

This seems to be nothing more than good common sense.

Unlike previous language, we go out of our way here to specify that the objective basis has to be based on facts known to the officers at the time. They can’t justify their search with facts that they only learned about later — if they don’t have reason to think someone’s injured inside, they can’t justify their bad search just because they happened to find an injured person there. Similarly, they can’t justify their search with baseless suppositions that have no foundation in what they knew at the time — if they don’t have reason to think someone’s injured inside, they can’t justify their bad search after the fact with a hypothetical scenario they clearly hadn’t considered at the time. (And if you think this should go without saying, you should read the People’s brief in the case we just argued.)

We also go out of our way to replace legalese with its plain language definition. So “basis approximating probable cause,” for example, becomes “more likely than not.” This makes the rule more comprehensible, and thus more easy for police to follow and courts to enforce. We’re a big fan of plain language.

Most importantly, of course, we changed the pretext language of Mitchell to a more reasonable requirement that the police at least think they have some lawful basis for their intrusion. And that they have some reasonable basis to think so. They don’t have to have subjectively thought there was an emergency at hand, but they had to have subjectively thought their search wasn’t unlawful.

Any other rule, we think, would send precisely the wrong message to the police. The cops would have an incentive to go ahead and commit searches they know to be bad, on the off chance that some clever prosecutor can think up a justification after the fact (which is precisely what happened in the case we just argued, if you’re wondering).

-=-=-=-=-

We could be wrong, however. So we invite suggestions on what the New York rule ought to be. What do you think?

The Chief was at it again.

Everyone had their theories. J.P. said the Chief had lost it, gone soft in the head. Nino thought he was just having fun. Sam didn’t say anything, so he was probably in on it.

None of us thought it made any sense, though. Except me. I had my own ideas. What the Chief was doing made perfect sense, if anything can make sense in this world. He was like me.

No, not like me. I only have contempt for the tedium, the routine drudgery the rule-boys keep feeding us. The Chief wanted to do something about it.

But his methods… Like some Frankenstein, trying to animate the dead… Well, maybe he was more like me than I imagined.

While sipping a cup of last night’s coffee, I decided I liked it. I silently congratulated the guy, and wished he’d keep it up.

-=-=-=-=-

At the beginning of the ’08 term, Chief Justice Roberts sparked a miniature kerfuffle when he opened a decision with a factual recitation in the style of Hammett or Spillane. It wasn’t half bad, and it certainly got the facts across without losing the reader’s interest. But it wasn’t at all what we’re used to reading in Supreme Court opinions. So one heard comments and criticisms in the corridors and over cocktails, for a few days anyway. But people got over it. After all, it was only a dissent to a denial of cert, and who even reads those? It’s probably the one kind of opinion where a justice could get away with a bit of fun. It was just a one-off, let it go.

Except it wasn’t just a one-off. It was just the beginning. Since then Roberts has kept at it, putting a bit of dramatic flair into his opinions. Particularly, it seems, in cases that aren’t all that dramatic to begin with.

Take today’s opinion, for example, in Beard v. Kindler. The issue couldn’t be more boring — whether a discretionary ruling on state procedure is something that can be pursued in a federal habeas claim. The case has nothing to do with the underlying facts of the case, but instead inquires into whether the state courts had regularly followed that procedure, and the general policy arguments for and against allowing habeas.

Yawn. If Dirty Harry or Mike Hammer were here, they’d be shooting or punching someone. They’d deal with the tedious legal processes and technicalities, but on their own terms.

And so did Chief Justice Roberts. He dealt with it on his own terms, in his own way, by opening his decision with a lengthy and dramatic recitation of the underlying events — events that have absolutely nothing to do with the discrete legal issue before the court.

Roberts told the gritty story of Joseph Kindler, which itself seems made for TV or a pulp novel: In 1982, Kindler and two associates robbed a store, only to get caught during the getaway. “In a harbinger of things to come, Kindler escaped.” When one of the associates agreed to testify against him, Kindler and the other one bludgeoned him almost to death with a baseball bat, shocked him repeatedly with a cattle prod, threw him in the trunk, hauled him to the river, tied a cinderblock around his neck, and threw him in the river, where he died of drowning and massive head injuries. He was convicted of murder, the jury recommended execution, but before sentencing Kindler escaped. Using smuggled tools and a lot of help from other inmates, he sawed through the bars of his maximum-security prison, and fled to Canada. He got caught there committing more crimes. Canada refused to extradite him, because he faced execution, and Kindler became a minor celebrity, going on TV and everything. Eventually, however, Canada agreed to extradite him, whereupon he promptly escaped again. With the help of his fellow inmates, he broke through a skylight in a high ceiling, climbed to the roof, then rappelled down a rope made of 13 bedsheets. Kindler made it, but when another tried to follow the sheet ripped, and he fell 50 feet to his death. Kindler was caught again after America’s Most Wanted did a segment on him. Several years later, he was eventually extradited back to the U.S. In the meantime, the state court had long since dismissed his original sentencing motions, as he had escaped before they were decided. The case has been going back and forth on appeal over that dismissal, ever since. The original arrest was in 1982.

Roberts tells it much more entertainingly than this, of course. But almost none of that was necessary or even relevant. It could just as easily have been replaced with “A jury convicted Kindler of capital murder for the brutal slaying of a state witness. The jury recommended a death sentence, and Kindler filed postverdict motions. Before the trial court had considered the motions or the jury’s death recommendation, Kindler escaped. While Kindler remained a fugitive, the trial court dismissed his postverdict motions. Seven years later, Kinder was returned to court, and moved to have his motions reinstated. The trial court found that the original judge had not abused his discretion, denied the reinstatement motion, and imposed the death sentence.”

Frankly, we like it Roberts’ way better.

And we hope he keeps it up, particularly in the more humdrum cases. It does no harm, and it might even keep one or two young associates from nodding off during some tedious night of research down the road.

Last week, we argued that capital punishment as practiced in America does not work, because it takes too long.

The appellate process can take decades, during which time the convict remains on death row, the victims get no closure, and any deterrent effect gets completely washed out. In fact, the huge gap between the crime and the punishment, and the uncertainty as to whether execution would even result, adds even more injustice into the system while imposing enormous unnecessary societal costs.

Our point was not that appeals should be limited — on the contrary, they are never more necessary. Our point was simply that the process takes so long that it nullifies the whole reason for capital punishment in the first place.

We did not explore, however, whether this delay ought to count as “cruel and unusual punishment” in violation of the Eighth Amendment. We figured we’d leave that one for another day.

Well, today’s the day. In dueling opinions yesterday, Justices Stevens and Thomas went head-to-head over just that issue. We think they’re both right, and they’re both wrong.

-=-=-=-=-

The case is Cecil C. Johnson v. Phil Bredesen, Governor of Tennessee, et al., No. 09-7839. Stevens’ opinion can be found here, and Thomas’ can be found here.

Cecil Johnson was executed yesterday, after the Supreme Court denied cert.

In July 1980, a man robbed a convenience store in Nashville. During the robbery, the thief brutally murdered the store owner’s 12-year-old son, and two other men who were sitting in a taxi.

A couple of days later, Cecil Johnson’s father turned him in. There was no physical evidence that tied him to the crime. He was convicted and sentenced to death in 1981.

For the next 29 years, Johnson plodded through the capital appeals process, persistently maintaining his innocence.

In 1992, Tennessee for the first time gave him access to evidence that might have undermined key testimony against him.

-=-=-=-=-

Justice Stevens argues that this 11-year delay, before Tennessee finally made that disclosure, is a state-caused delay that counts as “unacceptably cruel.”

Thomas replies that it is pure chutzpah for a convict to file appeal after endless appeal, and then claim that the resulting delay violated his rights. He caused the delay, not the government.

But they’re both wrong. The delay wasn’t caused by the government in the way Stevens says, and that only covered the first of three decades anyway. It doesn’t affect the other two decades that this case meandered through the courts. And the delay wasn’t caused by Johnson in the way Thomas says. It’s not Johnson’s fault that the courts took so damned long.

So if the government wasn’t to blame as Stevens argued, and Johnson wasn’t to blame as Thomas argued, then who is to blame?

-=-=-=-=-

It is the procedural setup itself that is to blame. We cannot blame a convict for seeking review, to ensure that he was properly convicted and sentenced, and to ensure that the government did not abuse its power and violate his rights. Far from it — we insist on it. Ensuring that the government did it right for this defendant helps protect all of us, and Americans want it that way.

But we can blame the delays that are built into the system’s procedural rules. There is no reason why it should take years to get from a challenged ruling to an appellate decision on that ruling. The only reason why it does take years is because the procedural rules allow it. And human nature being what it is, it is hardly surprising that lawyers and judges will take all the time they are permitted to argue and decide matters of life and death.

Some amount of delay is reasonable, of course — it would be equally unjust to impose time limits that are too short to permit thoughtful argument and careful analysis. But even with longer than usual time limits, there is no reason why state appeals couldn’t be exhausted within a year of sentencing, and federal challenges exhausted within another year. Two years, not twenty or thirty.

(Think this way: Give the defendant 30 days after sentence to file a notice of appeal, then another 60 to file his brief. 90 days is more than enough time to do the work. Give the prosecution a generous 60 days to reply. Take 30 days to prepare for oral argument, and then give the judges another 30 days to noodle it through and make a decision. That’s 210 days, and the first appeal is over. Subsequent appeals are going to go over the same ground, so time limits can be shorter now. Say another 30 days for the defendant to announce he’s taking it to the state’s supreme court. Then 30 days to brief it, 30 days for the prosecution to brief it, 30 days to prepare for oral argument, and 30 days to reach a decision. That’s 360 days. One year. Federal appeals and habeas shouldn’t take more than one more year. And we’re done.)

-=-=-=-=-

Okay, so the delay is preventable. It’s caused by government rule-making. And the rules can be changed to protect the defendant’s interest in speedy resolution while continuing to protect his interest in thorough vetting of his conviction.

But does that make this delay “cruel and unusual punishment” for Eighth Amendment purposes? Probably not.

Think about it. All that’s happening to the defendant during this delay is that he’s being incarcerated. In a world without capital punishment, he’d be in the same position. He’d still be incarcerated, while going through the same appellate process that every other inmate goes through. The same process, and the same incarceration, that clearly does not violate ordinary convicts’ Eighth Amendment rights.

So no, the appellate delay is not cruel and unusual. But it still totally defeats the purpose of capital punishment in the first place, and for that simple policy reason the death penalty should be banned until such time as the system works out a way to complete the appellate process soon enough and consistently enough to make it worthwhile.

-=-=-=-=-

There are other problems with Stevens’ and Thomas’ arguments. Stevens, for example, is about to retire after a long tenure on the bench, and recent years have seen him going all-out to make a legacy for himself. He is adamantly opposed to the death penalty, and will make any argument against it. As a result, he winds up trying to have it both ways, as Thomas unkindly points out — decrying both the length of the appellate process, as well as the perversity of carrying out executions before every appeal has been exhausted.

Thomas, meanwhile, flatly ignores the interests of justice, and gets hung up on whether the technical procedural requirements were satisfied. He forgets that the procedures are there to serve the interests of justice, and not the other way around. The rules are there to help ensure that defendants’ rights are protected, but the rules are not the only safeguard. The mere fact that the rules were satisfied does not necessarily mean that the system worked properly. Judges — particularly Supreme Court justices — need to be able to step back and determine whether this individual’s rights really were protected, and whether society’s policy interests were advanced.

The Last Lawyer: The Fight to Save Death Row Inmates
By John Temple
2009 University Press of Mississippi, 234 pages, $25.95
Amazon.com :: Barnes & Noble

The world is loaded with books about criminal lawyers. They fill the shelves in the mystery and thriller aisles, dominate true crime and related nonfiction genres. After all, a book about what we do is almost a guaranteed page-turner. Conflict? We got it — trials, accusations, at least two sides fighting in every case. Character? Our characters range from the noblest of all to the most despicable and inhuman. Plot? It’s already there, from the crime to the acquittal or execution. And the stakes couldn’t be higher. We’re not fighting over love or money, we’re fighting for people’s lives and liberty.

So it’s no surprise that there are so many John Grishams out there, and so many nonfiction books about criminal defense. And with so many books out there, you’d think that there would be plenty that give a fairly accurate insight into what criminal practice is really like.

And you would be wrong.

For it is rare indeed to find a book that really does the job. There are plenty that entertain, grip the reader, and even have something worth saying. But books that really draw the reader into our world, and let the reader see it with our eyes and our experience? Such books are few and far between.

Which is why we were genuinely delighted to read The Last Lawyer, by John Temple, an associate professor of journalism and associate dean at West Virginia University. Temple is not a criminal lawyer, he’s not a mystery writer, and that’s a good thing. He’s the kind of writer who comes from the outside, and digs deep into his subject. Like the lawyers and investigators he describes in this book, he clearly put in the time and effort to find out what really happened, who did it, how it happened, and why. And then he took all that data and crafted it into a story that is no less powerful simply because it is true.

True stories almost always suffer from bad writing. “But that’s how it really happened” is a crutch for lame writing, an excuse for having told a story poorly. Yes, real life does not play out according to a scripted dramatic formula. But that doesn’t mean reality can’t be presented that way. The Last Lawyer, however, tends to avoid this trap. With few exceptions, Temple grabs the reader and doesn’t let go.

So okay, he’s a good writer. But what does he have to say? That’s the best part.

Because Temple really gets it. He really, really gets it. If you read only one book in your life about what it’s like to be a criminal defense lawyer, read this one.

-=-=-=-=-

When we’re reading a book that particularly engages us, it’s like we’re having a conversation with the author. We find ourselves picking up a pen and scribbling back at him. Books at our house sometimes become dog-eared and annotated beyond any hope of resale. Our copy of The Last Lawyer quickly joined their ranks.

Why, when we already do this stuff for a living? Were we picking fights, or pointing out errors? Not at all. Instead, we frequently found ourselves encountering an insight, or a way of looking at things where we hadn’t looked at it ourselves that way. And we’d go “oh!” or “aha!” And then we’d take that fresh insight and run with it a bit in our head, and it would lead to a new thought we’d always sort of known, but had never actually thought before.

Not as much as we do when reading Proust, Patrick O’Brian or Terry Pratchett. But often enough. Often enough.

-=-=-=-=-

The Last Lawyer takes you through Ken Rose’s decade-long fight to appeal the capital conviction of Bo Jones, a low-IQ Black man sentenced to die for a 1987 murder.

Trial counsel had done little of the work that needed to be done now, and the case had to be investigated from scratch.. Uncooperative witnesses, some who lied and others with good reasons to lie — these were the least of their worries. They had to deal with a client who just did not seem to get the concept. And worse, judges who didn’t get the concept, and couldn’t be bothered to make the effort in the first place. Prosecutors who were the opposite of sympathetic, who railed against attempts to make technical legal arguments, but who were perfectly happy to get a conviction on technicalities themselves. A broken legal system that, instead of seeking justice, becomes a machine for churning people into prison or the gas chamber.

The book takes you through ten years of this struggle, as Ken Rose and his team slowly and gradually discover the facts and arguments they need to save Bo Jones’ life. In the process, you get to see firsthand the best and the worst that our system has to offer. Like any other human enterprise, you see a handful of outstanding performers, another handful of ruinous subverters, and a huge majority of folks just going along to get along. You see a system with powerful inertia.

Our adversarial system is designed to achieve justice, but it needs honest and good-faith opposition to function properly. Both sides need to play by the rules, and try their best, if justice is going to result. And it needs judicial referees to keep a keen eye out, not only for fouls, but for merit as well. But the reader of this book sees law enforcement that isn’t always as honest as we expect it to be, prosecutors who stop trying to seek justice and instead get invested in winning at all cost, defense attorneys who stop protecting their client above all else and instead become mere grease in the wheels of this machine. And judges who have seen so many frivolous arguments that they can’t spot the valid ones any more, and who aren’t terribly inclined to look for them in the first place.

But there’s more to it than that. It’s not just the broken system. There is good out there. And you get to see that, too. The single most important variable in whether a case is won or lost is preparation. And you see how good lawyers prepare, do the hard work, take the time to do the job right. You see real dedication, not to ego or money or advancement, but to saving the life of a fellow human being. To seeking real justice. To making the system a little bit better, for all of us.

This is the day-to-day experience of a criminal lawyer. The sometimes odd personalities, the deep injustices, the soaring heights of the human spirit, and everything in between.

Go get the book.

Without much media fanfare, the Supreme Court has already decided two capital-punishment cases this month.

The first, Bobby v. Van Hook, came down on the 9th, and dealt with a case from early 1985. Nearly 25 years ago, Van Hook went looking for someone to rob, trolled a Cincinnati gay bar, and seduced a guy he met there. The victim invited Van Hook to his apartment, where Van Hook got him into “a vulnerable position.” Then Van Hook strangled his victim till he was unconscious, killed him with a kitchen knife, and mutilated his body, before taking off with his victim’s valuables. Van Hook later confessed, and was sentenced to death.

His appeals lasted for nine years, all of which were denied. He then spent the next 14 years litigating a single federal habeas petition. First, he unsuccessfully challenged the constitutionality of his confession, losing those arguments all the way up to a denial of certiorari by the Supremes in 2007. Then he tried a new argument, that he’d gotten ineffective assistance of counsel at sentencing, because all the work they had done wasn’t enough. The Sixth Circuit said his sentence should be reconsidered under new standards that had arisen 18 years after the fact. Ohio appealed, and the Supreme Court said you can’t apply these new standards retroactively like that. Van Hook argued that his counsel was ineffective under the standards at the time, anyway, to which the Supremes replied: “He is wrong.”

The Sixth Circuit being reversed, Robert Van Hook is now once again back in the queue for execution, nearly a quarter of a century later.

The second case decided was Wong v. Belmontes, which came out on the 16th. This case started way back in 1981, when Fernando Belmontes bludgeoned Steacy McConnell about 20 times with a steel weightlifting bar. She fought back desperately, to try to save herself, but ultimately Belmontes succeeded in killing her, so he could steal her stereo. He sold it for $100, which he spent on beer and drugs for that evening. He was convicted in California and sentenced to death.

His appeals went back and forth, and he lost. He tried to get federal habeas relief, but the District Court wouldn’t go for it. He appealed that, and the nothing-if-not-consistent Ninth Circuit bent over backwards to find instructional error, but the Supreme Court slapped that down in 2006. The Ninth Circuit tried again, this time finding ineffective assistance of counsel at sentencing. In its ruling this month, the Supreme Court pointed out not only how much work went into the defense case at sentencing, but also how wise and skillful it had been. “If this counsel couldn’t make it work,” the Court seems to say, “then nobody could.” You just can’t mitigate away a case where the victim had obviously suffered so needlessly and brutally.

So now, the Ninth Circuit is reversed, and Fernando Belmontes is back on the capital-punishment track 28 years after the crime.

-=-=-=-=-

It being close to Thanksgiving, these decisions remind us of one of the first cases we ever worked on, back when we labored at all hours over Thanksgiving 1995 with the famed Carter Phillips, trying to prevent the execution of a retarded man, Walter Correll. Especially in light of the Supreme Court’s turnaround in the 2002 Atkins v. Virginia decision, ruling that executing the mentally retarded is a violation of the Eighth Amendment, we always get a little gloomy when we think back on that case.

But these decisions also remind us that, Republican though we may be, we remain firmly opposed to the death penalty. Not because it’s inherently cruel or inappropriate, but because it takes so damn long to carry out. The way the death penalty works in this country results in real injustice, harms society, and just makes things worse.

-=-=-=-=-

Look at the graph we stuck up there at the top of this post. We made that graph based on data freely available from the United States Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. You can see the raw data here.

That chart shows the average elapsed time, from sentence to execution, for each year. This is the average, and as the recent cases attest, actual times can be much much longer. But on average, the wait has gone from 51 months (4-1/4 years), to 153 months (12-3/4 years). That is an insane delay!

Elsewhere in the statistics, we see that the average inmate on death row right now has been waiting for 141 months, or about 11-3/4 years.

That’s a long time, in anyone’s book.

Now don’t get us wrong — we’re glad of the opportunity this affords us to find evidence of actual innocence, DNA evidence, or other means to exonerate the truly innocent. We’re not advocating for speedier executions, here. It takes this long because that’s just how long it takes. Our system is set up to give a lot of opportunity to review death sentences before they’re carried out. There is no appeal after execution, so society wants to make sure that everything was done right, that the convict has been afforded every procedural and constitutional protection that our jurisprudence has devised. And it just takes a long time to do that.

Our point is that the death penalty is improper (among perhaps other reasons) because this necessary delay makes it counterproductive.

-=-=-=-=-

Why do we punish people in the first place? Punishment is when the awesome might of the government is brought to bear on an individual, taking away rights, liberties, property, and even his life. Why do we do that?

We do that because we’ve deemed some actions so harmful to society that, to protect itself, society has to impose this harm. But that begs the question. It’s more of a definition of “what is a crime” than “why do we punish, to begin with.”

We punish because, over history, societies have discovered that it works. At some instinctive level, you get retaliation. Someone hits you, so you hit them back without thinking. It’s a primal urge, not a civilized one, but it would be foolish to pretend that society does not have its own primal urges. We don’t punish strictly to hit back at those who would hurt us, not consciously perhaps, but it is part of the reason why.

A more civilized reason is deterrence. It’s like spanking a child — the criminal associates the punishment with the crime, and decides not to do that any more. And if the spanking is public and seen by others, then others will also realize that this could happen to them, and they won’t do it either.

Deterrence only works, of course, if the punishment is close enough in time to the offense to have a psychological effect. If you spank a kid for something he did three weeks ago, the only psychological message you’re sending is that you’re unfair and cruel, and thereby weakening your own authority.

Deterrence only works if the punishment is connected to the crime. If you spank a kid and he has no idea why you’re spanking him, you’re not deterring anything. All you’re doing is demonstrating that you are arbitrary and unjust. The kid doesn’t know what to expect from you, and will grow to fear and despise you.

General deterrence of other potential criminals only works if the punishment is known, in addition to being close in time and tied to the offense. If people don’t know that it happened, then there is zero deterrent effect from any particular offense.

Perception then, as in so much of life, is everything. You want the system set up in such a way as to create the impression that sentences are just and fair, but you also want the perception that sentences are also going to be imposed. That, if you commit this offense, that punishment is actually going to happen.

Ideally, a utilitarian and a social idealist might even agree that the best way to do this would be to create the perception that sentences are speedily and fairly meted out, without going to all the expense and social harm of actually imposing them.

The flip side of that would be the opposite of ideal, then. And the flip side is exactly what we’ve got.

In our present system, capital punishment is not imposed close in time to the offense. It takes a decade or two before it is carried out. That’s like spanking a kid three weeks later. Far from having any deterrent effect, it undermines faith in justice and weakens the law’s authority.

As practiced, capital punishment is not connected to the crime. It’s almost random. Some horrific murders get the death penalty, others don’t. The reasons for the variety are not obvious or predictable. Unpredictability = no deterrent effect.

And public perception? After all the randomness and delay, there may be a perception that you could get the chair for a given crime, but nobody really thinks you will get the chair. Folks just don’t have an experience of the death penalty as being imposed consistently enough that we simply understand, deep down at a visceral level, that a given crime is likely to result in one’s own death. At best, public perception is a vague theoretical possibility. At worst, and what is more likely, is the perception that the death penalty is so rarely imposed, and only after such an interminable (ha) delay, that it’s really not a factor worth considering in the first place.

(Of course it goes without saying that no punishment can have a deterrent effect on crimes of passion, where no thought went into the crime. But those kinds of crimes tend not to be death-penalty cases, so that argument isn’t really applicable here.)

Another purpose of punishment is rehabilitation, but it’s hard to get one’s act together after one is dead, so that one is out the window.

The only remaining purpose of punishment is removal — getting this threat to public safety off the streets.

Now this one has some promise. Execution certainly removes the offender from our midst. So does exile, though, without all the mess and expense (though dumping our worst threats on someone else could create bigger problems). Life without parole does the same job, though at theoretically great cost — 75% of all death-penalty inmates were under 35 years old when they went in (see more statistics), so they’ve got lots of decades of feeding, sheltering, guarding, clothing, counseling, treating, educating, etc. to pay for.

Unfortunately, as practiced, capital punishment is just a more expensive form of life without parole. At some point, an ordinary prisoner is going to run out of appeals, but the capital inmate doesn’t. And the capital appeals take priority over other judicial needs, while costing the system and everyone involved a lot more in time and resources. By the time someone actually gets executed, all the various costs involved more than cover the costs of a life sentence.

So if removal is the only concern, then life without parole would be the way to go. You don’t get any extra removal from execution. All you get is increased tax burdens, significant extra burdens on the judicial system, loss of enormous amounts of time and money all around, and the intangible losses from harm to the system’s perception and reputation and authority.

-=-=-=-=-

So, speaking as a fairly conservative Republican here, we just don’t see how capital punishment as practiced in America today makes the least bit of sense. It accomplishes little, at enormous unnecessary societal cost.

That’s not the message the Supreme Court probably intended to send with these two cases this month, but that’s the message we heard loud and clear.

Way back in May 1964, in the very small town of Meadville, Mississippi, two black teenagers were hitchhiking down the road when James Ford Seale drove up. Seale, a member of the KKK, told them he was a revenooer looking for moonshiners, and told the boys to get in his car. He then drove them off into the forest. A bunch of other Klansmen met up with them.

Seale pointed a sawed-off shotgun at the boys, while the other Klansmen tied them to a tree. Then the boys were whipped to within an inch of their lives with “bean sticks.” The bloodied boys were hauled to a farm nearby, where Seale bound and gagged them with duct tape. The boys were wrapped in a tarp, shoved into a Klansman’s trunk, and driven 100 miles to a secluded riverbank.

While the boys were still alive, they were chained to the engine block of an old Jeep, and to pieces of railroad track. Then the Klansmen dumped the boys in the river, where they drowned. One of the Klansmen later reported that Seale “would have shot them first, but didn’t want to get blood all over the boat.”

The boys were killed because they were black, and because Seale thought they might have been civil-rights workers.

-=-=-=-=-

In June 1964, three civil rights workers went to Longdale, Mississippi, to investigate the burning of a Methodist Church that had been a civil-rights meeting place. A sheriff’s deputy, also a KKK member, recognized their car and locked all three up. The men were held incognito until an ambush could be prepared, and then were told to get out of the county. The deputy followed them to the edge of town, then pulled them over again. A KKK gang showed up, and the three workers were taken to an isolated place to be brutally beaten and shot to death. Their car was burned in a swamp, and their bodies were buried in a dam.

Their disappearance got national attention, and search parties went out.

In July, one of the search parties found the drowned bodies of the two boys Seale had killed in May.

-=-=-=-=-

Seale and several others were investigated for the murders, appearing before a House subcommittee on Un-American Activities in 1966. The Klansmen were asked about a number of kidnappings and murders, but nothing ever came of it. Seale just sat there smoking a cigar, and took the Fifth.

-=-=-=-=-

About forty years went by. The murders of Charles Moore and Henry Dee were forgotten.

-=-=-=-=-

Then a Canadian filmmaker saw some old CBC footage of the boys’ bodies being hauled out of the river, with the narration “it was the wrong body. The finding of a negro male was noted and forgotten. The search was not for him. The search was for two white youths and their negro friend.”

The filmmaker, David Ridgen, began working on what would become the documentary “Mississippi Cold Case.” He tracked down the brother of one of the victims, a retired 30-year Army veteran named Thomas Moore, who helped work on the film.

The press had been told that Seale had died in the meantime. But it was discovered that he still lived, and his family had lied to protect him. Ridgen and Moore went to the local U.S. Attorney, who promised to re-open the case.

In early 2007, Seale was indicted on two counts of kidnapping and one count of conspiracy. A fellow Klansman, after being given immunity, told the whole story. Seale was convicted of kidnapping after a jury trial in June 2007.

In August 2007, Seale was given three life sentences.

-=-=-=-=-

Seale appealed to the Fifth Circuit. He argued that the statute of limitations for kidnapping had run out. At the time of the crime, there was no limitations period; but in 1972 it changed to a 5-year period.

That’s a pretty damn good argument. It was a capital kidnapping in 1964, which had no statute of limitations. But then in 1972 we got rid of capital punishment. So it reverted to an ordinary 5-year period.

The government pointed out that in 1994, after Furman v. Georgia, we brought back the death penalty. It was constitutional again. So this was a capital kidnapping again. And he was prosecuted and sentenced after it had been deemed a capital kidnapping again. So there was no statute of limitations.

The Fifth Circuit agreed with Seale, and reversed his conviction in September 2008.

The prosecution requested a rehearing en banc. The full panel vacated the appellate decision, so that it could reconsider the issue. They sort of have to do that.

The full panel then duly reconsidered the issue, and split evenly down the middle in June 2009. The effect was to leave the trial court’s conviction and sentence intact. The original Fifth Circuit decision had been vacated.

So now there was no appellate decision at all! And Seale was left with no more avenues to fight his conviction.

Almost.

Seale took it to the Supreme Court. It wasn’t a petition for certiorari, but the almost-forgotten “certified question.”

-=-=-=-=-

How that works is, the Circuit “certifies” a question that it wants the Supremes to help out with. The Supreme Court is asked to instruct the Circuit court on how it ought to rule in the case.

That’s permitted by Rule 19 of the Supreme Court rules, but it only happens once in a blue moon. The last time it happened was in 1981, when the Second Circuit asked for help with the President’s authority to say claims before the Iran-U.S. Claims Tribunal had no legal effect in U.S. courts (the Supremes said he can do it). There was another certified question in the 1970s on whether a retired judge gets to vote on whether to hear a case en banc (no). Before that, there was one in 1964 on whether there is a right to a jury in a criminal contempt case (no). And the only other one in living memory was in 1946, where the Supremes said the Circuit can’t review by mandamus a district court’s remand back to the state court after the case had been removed to the district court.

-=-=-=-=-

So here was a historic opportunity for the Supreme Court to not only decide a rare certified question, but also to decide an issue of great importance to a variety of civil-rights-era cases that are still kicking around the federal courts.

And the Court refused.

This isn’t the first time the Roberts Court has punted on issues that it really ought to have decided. And the did it again here.

This is an issue that may seem hyper-technical, but it is critically important! There are a lot of old cases kicking around that were capital cases at the time, then weren’t and now are again. There’s lots of aging Klansmen out there, not to mention the number of cold-case murders being resuscitated by DNA evidence. Whether the feds can even prosecute these cases any more is at stake!

Not to mention the fact that Seale, horrible as his crimes were, seems now to have been denied due process. He can’t appeal any more? Just because the Circuit (singular) split, and the Supreme Court punted? His legal argument is going to go undecided? How is that remotely right?

-=-=-=-=-

The Court doesn’t write opinions from a denial of a certified question. But they sure got a dissenting opinion today, in United States v. James Ford Seale, by the strangest of bedfellows: Justices Stevens and Scalia.

The two, usually diametrically opposed in their jurisprudence and judicial philosophy, agreed wholeheartedly that the Court should have decided this case.

This certificate presents us with a pure question of law that may well determine the outcome of a number of cases of ugly racial violence remaining from the 1960s. The question is what statute of limitations applies to a prosecution under 18 U.S.C. §1201 commenced in 2007 for a kidnapping offense that occurred in 1964.

* * *

In 1964, a violation of §1201 was a capital offense [if] the victim was harmed, and since 1994 a violation of §1201 has been a capital offense when the kidnapping results in the loss of life. But for more than two decades in between, Seale’s crime was not punishable by death.

* * *

The question is narrow, debatable, and important. … I see no benefit, and significant cost, to postponing the question’s resolution. A prompt answer from this Court will expedite the termination of this litigation and determine whether other similar cases may be prosecuted.

We couldn’t have said it better ourselves.

For the record, our position on gun control is to use both hands, relax, and control your breathing. But let’s talk about the law.

Last year, the Supreme Court historically decided that the Second Amendment gives individuals a constitutional right to possess firearms. The ruling, in District of Columbia v. Heller, was that the right of the People to bear arms was an individual right (so it wasn’t limited to militias or the military), and that it was a pre-existing right (recognized by the Constitution, and not created by it). The Court said there’s room for reasonable regulation, but an outright ban is unconstitutional.

The District of Columbia, however, is not a state. The Heller decision only directly applies at the federal level, which includes D.C. Whether the same rule applies to the states hasn’t been formally decided yet. And what counts as reasonable regulation at the state level is also an open question.

Obviously, there are plenty of folks who would like these things to be decided. Some want this to remain strictly a federal issue — the Bill of Rights originally did not apply to the states, and only gradually over the years have most (but not all) of the individual rights therein been incorporated by the Fourteenth Amendment. The Second, Third and Seventh Amendments have not yet been held to apply to the states.

Others, of course, want this individual right to be incorporated by the Fourteenth Amendment’s “privileges and immunities clause.” (That clause is what gives individuals the Bill of Rights protections from governmental intrusions, at the state and local level, by virtue of their national citizenship. So it protects you from your local cops’ infringement of speech, unreasonable search and seizure, etc.)

The Circuits are split on the issue. The Ninth Circuit ruled earlier this year that the Fourteenth Amendment incorporates the Second Amendment to the state level. But the Seventh Circuit said no, it doesn’t. So it’s certainly a ripe issue for certiorari.

Any number of cases have been percolating in the system, really, to give the Supreme Court a chance to decide the issue. The NRA alone filed five cases on the issue in Illinois alone. So it hasn’t been so much a question of whether the Court would decide it, but which case it would choose to hear.

Well, this morning, the Supremes announced the case. McDonald v. Chicago (08-1521) involves pretty much the same issues as Heller. Chicago’s gun-control laws are practically identical to those D.C. had, so it really is a good case to narrowly decide whether the rule should be extended to the states. (The various court filings can be found here.)

The Court’s calendar is full for the rest of the year, so oral arguments won’t be scheduled until January at the earliest.

We love Alan Dershowitz. And we love Justice Scalia. So at first we were intrigued to hear that Dersh had challenged Scalia to a debate over his recent dissent in Davis. (See our post on it here.)

But it turns out that Dersh is just being disingenuous. Pity.

Quick recap: Davis was convicted of a murder. Since then, several witnesses have recanted. He filed a habeas petition directly with the Supreme Court. Justice Stevens, writing for the majority, passed it on to the District Court to decide whether Davis really is innocent. Justice Scalia dissented, saying that the District Court doesn’t have the power to do anything, even if it does find him innocent.

The reason why Scalia said that — and he really does have a point — is because the law in question only lets the District Court act if there is well-settled Supreme Court precedent allowing it. Scalia pointed out the simple fact, known to any death penalty scholar, that there is zero Supreme Court precedent on this issue. And that is because the Supreme Court has gone out of its way to avoid ever deciding one way or the other whether there is a constitutional claim of actual innocence.

Here’s what Scalia said:

This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.

That clearly means nothing more nor less than that the Supreme Court simply hasn’t decided the issue yet.

Now of course there have been plenty of bloggers out there who have mischaracterized and misinterpreted this to mean that Scalia thinks it’s constitutional to execute someone who is actually innocent, so long as their trial wasn’t otherwise defective. That’s not what he said, but there are many who find it easy to believe that he did say that. And there are many more who just don’t get the concept. That’s fine, because those bloggers aren’t highly respected constitutional scholars.

But Dersh is a highly respected constitutional scholar. He has no excuse for misinterpreting what Scalia said. And yet that is exactly what Dersh did in his blog post today on The Daily Beast.

Dersh said he never thought he would see the day when a Justice of the Supreme Court would write an opinion containing the quotation above. Then he explained what he says Scalia meant:

Let us be clear precisely what this means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: “Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she’s dead, and as for you, Mr. Innocent Defendant, you’re dead, too, since there is no constitutional right not to be executed merely because you’re innocent.”

That is absolutely not what Scalia was saying, and Dershowitz ought to know that. He created a straw man, then spent an entire blog post arguing against it.

That was bad enough. But then Dersh made it worse, by challenging Scalia to debate him on it. Dershowitz pointed out that Scalia has publicly promised that, if the Constitution ever compels him to act in violation of the mandates of his Catholic faith, he will resign as a Justice instead. And Scalia has also stated that he could not authorize an execution if he believed it would be immoral.

So Dershowitz says the stakes of their debate would be high: If Scalia loses, he’d either have to change his jurisprudence, or he’d have to resign from the Supreme Court.

But Dersh challenges Scalia to defend a position that Scalia has never taken, that “his constitutional views [permit] the execution of factually innocent defendants.”

And though Dersh imposes high stakes on the man he challenges, he imposes none on himself. If he loses, he loses nothing.

So our favorite constitutional scholar has challenged someone to defend a position he never took, with extreme penalties for losing, and at no risk to himself? Badly done, Dersh. Bad form.

-=-=-=-=-

And by the by, the majority in Davis has tried to force the issue. Whichever way the District Court goes on this, it’s coming back to the Supreme Court, so they may well have to decide once and for all whether there is a constitutional claim of actual innocence. They may not, because this isn’t the strongest case of innocence — it’s a he-said-he-said situation with witnesses who merely recanted testimony — and so they may have other grounds to avoid the issue.

But if they do decide the issue, we have no trouble predicting that Scalia would opine that the our law does provide for a claim of actual innocence. He’d probably refer to the fact that English courts going back to the Middle Ages widely accepted the principle that innocence trumps other considerations. He’d probably quote Fortescue and Blackstone. He could well throw in the maxims of tutius semper est errare in acquietando quam in puniendo, ex parte misericordiae, quam ex parte justiae, and of prestat reum nocentum absolve, quam ex prohibitis indiciis & illegitima probatione condemnari. Heck, if he’s feeling mischievous, he might even cite the rules of Star Chamber (such as In Camera Stellata, 29 April 1607, in Court of Star Chamber, Les Reportes del Cases in Camera Stellata 1593 to 1620).

We wouldn’t be a bit surprised. And Dersh shouldn’t be, either.

The Supreme Court did something today it hasn’t done for generations — it took an “original writ” of habeas corpus (a request made directly to the Supreme Court itself, instead of first filing it in a lower court), and then it ordered a federal District Court to hold a hearing on whether the convict is actually innocent.

The really dramatic thing about this is not the acceptance of an original habeas petition, but the fact that the Court’s order seems to imply that a convict may not be executed if he can prove actual innocence. As demonstrated most recently by the Court’s Osborne decison, it has persisted in absolutely refusing to decide that issue. They have gone out of their way, in fact, to repeatedly leave the question “unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable,” as Scalia said this morning.

Troy Anthony Davis was convicted 18 years ago, in Georgia state court, for the shooting death of an off-duty police officer, Mark Allen McPhail. At trial, Davis had insisted that he was innocent, though he had been present at the time. The jury didn’t believe him, and there were no constitutional problems with his trial.

Since then, seven of the witnesses against him have recanted their testimony, and evidence has come forward that the prosecution’s main witness was the actual killer. Davis has invoked the Supreme Court’s original habeas jurisdiction, relying on Court Rule 20.4(a) permitting such discretionary powers under “exceptional circumstances.”

A majority of the Court (new justice Sotomayor did not take part) agreed with Davis, found the necessary exceptional circumstances, and transferred the petition to a District Court. The District Court has been instructed to hold a hearing to determine whether evidence that could not have been obtained at the time of trial clearly establishes Davis’ actual innocence.

This appears to have set off quite a debate among the justices, in the middle of their summer recess.

Justices Scalia and Thomas are adamant that the Court did the wrong thing here. Most importantly, they point out that the District Court can’t grant Davis the relief he seeks, even if it wants to. So this transfer “is a confusing exercise that can serve no purpose except to delay the State’s execution of its lawful criminal judgment.”

District Courts only have power to release convicts pursuant to the Antiterrorism and Effective Death Penalty Act of 1996. That statute prohibits habeas corpus for claims that were adjudicated on the merits in state court, unless that decision violates “clearly established Federal law, as determined by the Supreme Court of the United States.”

Because the Supreme Court has gone out of its way not to determine the issue of whether actual innocence is a valid basis for habeas release, Scalia and Thomas hold that it cannot be “clearly established Federal law, as determined by the Supreme Court of the United States.”

Justice Stevens, writing for the majority (joined by Justices Ginsburg and Breyer), simply sidestepped the issue. The AEDPA might not apply in an original habeas petition, he mused. And even if it does apply, it might be unconstitutional for it to prevent relief for someone who has established his innocence. Or, in the alternative, one might find that clearly established Court precedent already permits such relief, as it “would be an atrocious violation of our Constitution and the principles upon which it is based” to execute an innocent person.

Stevens’ closing paragraph, however, makes it clear that he understands that the Court has never dealt with the issue before, but he feels that it is time to create some new law. “Imagine a petitioner in Davis’s situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man.” Applying the law as it exists, the way Scalia and Thomas would have the Court do, “would allow such a petitioner to be put to death nonetheless.”

-=-=-=-=-

In the 2008 term, Stevens seemed to be going out of his way to create a legacy. Writing as if he was about to announce his own retirement, his opinions seem to have sought for better principles rather than the application of existing ones. His jurisprudence is not about objective law, but subjective justice.

So this opinion fits right in with his others. To hell with the Court’s insistence on staying out of the “actual innocence” defense. here was a perfect opportunity to force the Court to deal with it once and for all. By sending it to the District Court expressly for the purpose of establishing that defense, he has ensured that the case will re-appear before the Supreme Court to decide it.

If Davis wins, the State of Georgia will surely appeal, claiming that the District Court lacked the power to decide the issue. If he loses, he’s sure to appeal, along with amici like the NAACP, claiming that the District Court abused its power in rejecting his claim.

Either way, the Supreme Court would eventually be faced with deciding the issue of whether actual innocence is a valid basis for a habeas petition.

It looks to us like Stevens is gaming the system for activist purposes. For the record, we firmly believe that actual innocence should trump procedure and all other legalistic concerns. But it remains to be seen whether he’ll succeed in getting the law to shape itself accordingly.

We’ve seen too many appellate briefs that suck. They’re too hard to follow, demand too much effort to figure out, and give clerks and judges every reason to stop paying attention. There’s no excuse for such bad writing.

There are tons of books and treatises out there on how to write a brief. Many of them are quite good, giving thoughtful, clear and detailed advice on writing compelling briefs. But obviously, there are tons of lawyers who haven’t gotten the message. Maybe it’s because they can’t be bothered to read a whole book on the subject.

So for those who want to improve their appellate writing skills, but don’t want to wade through a whole book about it, here are a few suggestions:

1. Be Brief.

It’s not called a “brief” for nothing. But some lawyers tend to write as if they’re getting paid by the word. That is a huge mistake.

Judges and clerks have to read these things. A brief that’s super wordy, taking forever to lay out the facts, taking forever to reason out an argument, taking forever to complete a thought… let me tell you right now, nobody wants to read it. A judge is going to stop reading carefully if you keep making the same point over and over. A judge is going to stop reading carefully if you’re using dozens of paragraphs to make a point you could have made in three sentences.

You may think you’re being artful and brilliant. You may think you’re advancing your case by laying out your thesis as thoroughly as possible. You may think that your lengthy discussions are causing the judges to spend more time considering your points. But in reality a repetitive, verbose brief is only going to wind up being skimmed. Judges will actually spend less time reading it.

A brief that gets to the point, however, is the mark of a good lawyer. That’s really what judges think. The fewer words your brief has, the more likely they are to think you have the winning argument, before they even turn a page.

Also, the more concise you are, the more attention your words receive. Instead of diluting your thoughts in a sea of verbiage, you’ll make them stand out. Judges and clerks will pay more attention to what you say. Fewer words make each one more valuable.

-=-=-=-=-

2. Don’t Overdo It.

Pick and choose your arguments. Don’t waste time with lame ones. Way too many lawyers think they have to throw in everything they can think of, for fear of waiving a valid issue. But that’s just lazy and stupid. If an argument is a loser, what do you care if it’s waived?

Including weak garbage in your brief only weakens the reader’s trust in you. You may have a good, solid point in there, but now it’s tainted by association with the lame points you included out of misguided “thoroughness.” It makes you look dumb, because you obviously think those arguments have merit.

A good brief selects only the strongest arguments. By focusing only on the issues where a valid case can be made, the lawyer earns the trust of the court. And the court winds up focusing on your best points, without distraction.

Also, put your best argument up front. Don’t stick it in the middle. Just because it involves the third of five elements, that does not mean it has to be the third point. Start winning on page one. Give the court the easiest path to rule in your favor. Arrange your points in order of effectiveness.

-=-=-=-=-

3. Get Organized.

A poorly-organized brief is the surest sign of bad lawyering. Arguments are disjointed, without a simple and compelling logical flow. Fact sections are confusing, presenting the events in no logical order. Important thoughts are buried, so the reader doesn’t realize their importance, if they’re noticed in the first place.

Poor organization means you don’t understand what you’re saying. If you can’t explain what happened in a straightforward narrative, then you don’t really know what happened. If you can’t make an argument in a simple syllogism (the law says “if A then B;” the facts are A; therefore B) then you don’t understand the issues.

Poor organization screams to the judge that your brief is the loser.

Good organization is not hard to do. It can be time-consuming, but it’s not rocket surgery.

First, the fact section. Presuming that you’ve spotted the issues already (you do know why you’re appealing, don’t you?), draft a narrative of the facts with those issues in mind. Do not be one of those idiots who just plugs in facts in the order they popped up in the transcripts below. And don’t just plug in everything that happened, whether it’s relevant or not. Write a story. Make a point.

This is not argument. Don’t argue in your fact section. But by all means be persuasive. Emphasize the facts you want emphasized. Carefully choose your language. Humanize your client. Make language your tool, your weapon.

The best way to tell the story is to do it chronologically. Start at the beginning: Who are the players, what was their relationship, and how did this all get started? Then describe the facts as they progressed. Your source material will of course not be organized this way, but you must organize it this way. In doing so, you will master the facts, if you haven’t done so already. And more importantly, your readers will master them easily and quickly.

Do include all relevant facts, even if they hurt you. Leaving them out only damages your credibility. Where facts are in dispute, present your version of the facts — but be sure to indicate that this is only your version. (You could say “there is evidence that…” for example.) Let the other side present its version, but don’t be dishonest and write as if yours is the only one.

Next, organize your arguments. Argument should be as simple as a syllogism. State what the law is. Explain how your facts fit the law. Then apply the law to your facts like a formula.

Obviously, your real work is the second step, explaining how your facts fit. But you’d be amazed how many lawyers don’t even bother with figuring out the first part. It’s just a matter of looking up the controlling law and saying what it is. So do it. (And don’t be afraid to base a rule on simple common sense from time to time — the law is not the only principle we live by.)

Likewise, the third part should be as easy as pie. “Applying this rule to these circumstances, we therefore get this result.” Not exactly an exercise of brainpower. And yet lawyers screw it up. They misapply the rule (demonstrating that they don’t understand it). They misapply the facts (demonstrating that they haven’t mastered the case). Worst of all, some lawyers don’t even bother to state the conclusion! They just throw out a bunch of law and a bunch of facts, and leave it up to the reader to figure out what it means.

Be careful not to over-state the law. If that case doesn’t really say what you claim, you’ve just killed the credibility of your whole case. (One rule of thumb — if a citation doesn’t point to a specific page, then the case probably doesn’t say what the lawyer claims. So always give pinpoint citations, and make sure the case really says what you say it says.)

Break your argument down into its component parts. Each one should be organized Law, Facts, Conclusion. If you can’t do that, then you either don’t understand the issue, or you still need to break down your argument a little more. Your argument may have only one heading (”The District Court Abused Its Discretion in Denying the Motion”), but it may have to be broken down into several sub-headings.

You want your conclusion to be on solid ground. It’s the result of one big syllogism (”if a court abuses its discretion, its decision should be reversed; that court abused its discretion; therefore its decision should be reversed”). But the first and second premises may each need to be established through syllogisms of their own. Those become sub-sections of this argument point. Maybe there are several ways in which the court abused its discretion, too — these alternative theories become sub-sections of a sub-section.

This will also make your headings more concise and easy to follow. Judges and clerks love that. Section headings that take up a block of text are (a) not read, and (b) proof that your argument sucks.

If you’re thinking logically — if you’re thinking like a lawyer — then your arguments will naturally organize themselves as you read and revise your draft. When you’re finished, they’ll be brief, they’ll be compelling, and they’ll be effective.

-=-=-=-=-

4. Don’t Overdo It, Part II.

Show, don’t tell. You’re not writing for a soap opera. You’re not writing a children’s book. So don’t tell the readers how they ought to feel. Let your assertions speak for themselves.

So cut out the adjectives that characterize facts. Delete the rhetorical flourishes. Strike out all the fancy phraseology. You’re not making an emotional appeal to a jury, and rest assured that Judges resent it.

That’s not to say you can’t use some dramatic skills. The very best actors and orators know that, if you really want your audience to feel an emotion, don’t let them see that emotion on your face. If you act indignant, then you’re going to be the only one feeling it. But if you hold it back, and simply give your audience the reason to feel the injustice, without telling them to… they’ll be clamoring for justice before you’ve finished.

Although there’s no need to be dry and pedantic, you should by all means be straightforward and reasonable. Write as clearly as possible. Use the shortest sentences you can. Reason, not emotion, is how you get judges to agree with you. A matter-of-fact tone will raise you in the court’s estimation. It is the most compelling way to present a legal argument.

And God forbid you should ever cast aspersions on opposing counsel. Nobody cares that the other lawyer acted like a jackass to you. It has nothing to do with the legal issue before the court. Characterizing opposing counsel makes you seem petty, and indicates that you don’t have a firm grasp of the actual issues here.

-=-=-=-=-

5. Write the Opinion for the Court.

The best briefs make the clerks and judges work the least. The most effective style is one that writes the court’s opinion for them. Write the decision that you want published.

It often seems that lawyers don’t really understand their relationship to the appellate court. You are not the judges’ teacher. Neither are you begging on your knees. You are their colleague. You’re all on the same team. They have to make a decision, and your job is to help them make the right one.

If you keep that in mind, and act accordingly, you are going to shine. You’ll be respectful, but not obsequious. You’ll be a valuable help, not a condescending instructor. You’ll be “one of us,” and you will be taken seriously.

That carries over into oral argument, as well. But your brief will reflect this attitude, and add that much more credibility to your arguments.

So write the just and fair opinion that still rules in your favor. Don’t ignore the stuff that might hurt you — explain why it doesn’t. If there are inconvenient but relevant facts, deal with them. If there are cases that don’t go your way, take a moment to point out why they aren’t pertinent here.

Give the court the facts it needs to side with you, the law that enables it to do so, and the arguments that do it. Do that, and don’t be surprised to see your own words in the opinion that ultimately comes down.