According to a new study, criminal defendants don’t get good representation in SCOTUS. When a lawyer from the Solicitor General’s office appears in SCOTUS, he has on average argued there 25 times before. Criminal defense lawyers in SCOTUS have on average 5.3 prior arguments. An exception is Stanford Law Professor Jeff Fisher. According to Professor Andrew Crespo, author of the study, “Professor Fisher is the expert Supreme Court criminal defense bar — if only one person a bar could make.”
The New York Times reports that when asked why so few “experts” represent criminal defendants in SCOTUS, Justice Sotomayor has said “the main factor is vanity: Many criminal defense lawyers are too reluctant to cede the glamour of Supreme Court arguments to specialists.” Click here for the Times article, which includes a link to the study.
While Justice Sotomayor may be correct, there also is another problem. Given what I have seen, big DC firms use pro bono criminal cases to train their young associates in Supreme Court litigation. They convince appointed attorneys to let them “help” with the cases, ultimately browbeating them into allowing their “more experienced” attorneys to argue the case, often with disastrous results. Ellen and I watched such an argument by someone who had several prior arguments before the Supreme Court. It was terrible. Either of us would have been able to answer the questions better having just read and understood the briefs. It is one thing to know Supreme Court procedure and the players involved; it is something else entirely to understand criminal law and procedure.
Another factor not mentioned by Sotomayor, et al. — likely because they never represented a criminal defendant — is the nature of the attorney-client relationship by the time that the Supreme Court has granted cert. A client will likely have a huge amount of trust in the attorney who has fought for him or her for years, trust that the attorney actually cares about the client, trust that the attorney knows the case better than anyone else, and trust that the attorney must be pretty good at their job to get them all the way to the supreme court. To a client, the “specialist” may seem more like an opportunist who just wants to step in now that the case has made it to the big time. In the one case I had that had supreme court potential, i repeatedly advised my client that he should consider a specialist if our cert petition was granted, but he insisted that he wanted me to argue the case. Who knows if he would have still felt that way if the petition had been granted…
It would also have been nice if the article had some examples of how the perceived level of advocacy actually affected the outcome of the case.