Proposed SCOTUS ‘Defender General’ Faces Hurdles, Lawyers Say

Feb. 3, 2020, 6:34 PM

A proposal to put advocacy for criminal defendants on more equal footing at the U.S. Supreme Court could move the law in a favorable direction for them, but some lawyers worry it may lead to discarding individual cases for the greater good.

The “Defender General,” professors Daniel Epps and William Ortman explain in an upcoming law review article, would be a “public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States.”

They say the office would counter the weight of the U.S. solicitor general’s office, which represents the government at the court and is staffed by top lawyers. The office could attract experienced criminal defense attorneys and Supreme Court litigators because of the prestige of Supreme Court practice, the article said.

The solicitor general makes strategic decisions about how and when to weigh in on some of the most pressing issues, seeking to shape the law in a manner favorable to government interests.

Defendants are disadvantaged, the argument goes, by not having a parallel force representing theirs.

There is “often a stark contrast in the quality of representation” at the court, Epps and Ortman said. “While the prosecution is typically represented by experienced lawyers working within formal institutional structures designed to maximize Supreme Court expertise and influence, defendants often have lawyers with little or no Supreme Court experience.”

A defender general office “staffed with the right personnel, and given time to develop institutional credibility” could “significantly level the playing field,” they said.

Justices Elena Kagan and Sonia Sotomayor have both lamented the quality of criminal defense representation at the court, and there has been a proposal in Congress for a similar defender program as well.

“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,” Sotomayor said of defense attorneys who insist on arguing before the justices after working on cases at earlier stages.

“Every time one of these cases comes to the court where the trial lawyer—and the person may be a terrific trial lawyer—is doing their first Supreme Court argument without thinking about the court, without thinking about the way it operates, rather than giving over one of these cases to an experienced Supreme Court bar member, that’s when I get a little upset,” said Kagan.

The Supreme Court is known for its close-knit bar of highly skilled lawyers, many of whom are repeat players.

Zachary Tripp, a former assistant to the solicitor general now with Weil, Gotshal & Manges, agrees with the premise that there are imbalances between criminal defendants and the government at the Supreme Court, especially when they’re represented by “inexperienced local counsel.”

Yet Tripp added that the “inventive” defender general proposal would be difficult to carry out, and even if it were implemented, it wouldn’t match the government’s control over which cases to try to take to the court.

“You can’t stop individual criminal defendants from choosing to appeal in the first place,” he said. “The government, by contrast, can make strategic decisions about whether to appeal at all and thus can decide never to bring a case even to the court of appeals (much less the Supreme Court).”

Notably, where a defendant’s interests diverge from the defender general’s views, the proposed office might even file a brief arguing against them.

Sidley Austin’s Jeffrey Green agrees the government has a “structural advantage.” But he said “it’s hard to square the proposal with the Sixth Amendment and the realities of practice at the court where duplication of arguments is highly discouraged.”

The solicitor general’s “biggest advantage is that they get to choose good vehicles to present, but the Defender General couldn’t play that role—if the client wants you to file a non-frivolous petition, you can’t say ‘no,’” said Green, co-chair of the National Association of Criminal Defense Lawyers’ Amicus Committee and co-director of the Northwestern Law Supreme Court Clinic.

Defense lawyer James Felman also agrees there’s “asymmetry” in representation. But he worries about individual defendants losing out in the fight to advance collective interests.

“Here’s the problem,” he said, “every individual defendant is entitled to a lawyer who will zealously represent their interests and their interests alone. And I don’t think that could be compromised.”

Epps, who clerked at the Supreme Court and teaches law at Washington University in St. Louis, pointed out in an interview with Bloomberg Law that the government also faces instances where it has to consider whether representing individual clients conflicts with institutional interests, like whether to represent an agent sued for rights violations.

“If it turns out that the government wants to pursue an argument that wouldn’t be in the interests of that particular client, it can’t represent that person, and they have to get private counsel,” he said.

Similarly, the defender general’s duty would be “to the collective interests of criminal defendants, which is not the same thing as what is in the interests of every single defendant all of the time,” he said, noting that defendants would still be represented by their own lawyers if the defender general doesn’t side with them in a given case.

“There are many situations,” Epps observed, “where what is best for a group is not what is best for every individual member of a group.”

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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