The Criminal Lawyer

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.

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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.”

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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.

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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.

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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.

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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.

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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.