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Bar News - January 14, 2011

Criminal Law: Keeping the Highest Court in Mind: The US Supreme Court and the Practice of Criminal Defense


David H. Mirsky
All criminal defense attorneys should consider themselves practitioners of United States Supreme Court law. The Supreme Court of the United States may be the highest court in the land, but it is not out of reach. The Supreme Court has the last word on many criminal law issues, but in most circumstances an issue will not receive consideration unless the Court is specifically requested to get involved by an attorney or a criminal defendant acting pro se.

You shouldn’t have a goal of reaching the Supreme Court at the beginning of a representation, because you can’t get to the US Supreme Court without losing at least twice, once at trial and at least once on appeal. But Supreme Court case law should always be present in your thinking as you prepare for trial or for your first appeal, and you should make it clear to the judges that the US Constitution is going to be a presence in the case.

Several years ago, practicing in a different state, I got a ruling from an appellate court that just seemed wrong. The decision appeared to violate the plain language of a provision of the US Constitution. I sought further review by the highest appellate court in the state, but my request was denied. Further research revealed a split in the treatment of this issue among higher appellate courts in the United States. I filed a petition for writ of certiorari in the US Supreme Court, and a few weeks after my petition was filed, the Supreme Court ordered my opponent to file a response, which is a sign that there is interest in a petition, but no guarantee of acceptance. Several months later, without filing a brief or appearing for oral argument, I received a favorable ruling from the Supreme Court, which eventually resulted in freedom for my client.

Available Justice

The most important thing I learned from this experience was that although it sits in a distant location and despite the fact that it is a national court, the US Supreme Court was available to protect the federal constitutional rights of a single individual in a relatively anonymous case.

The procedural vehicle that gets you into the Supreme Court is the petition for writ of certiorari or "cert. petition," but what matters most is the substantive federal law that renders the case suitable for federal jurisdiction. Whether you practice in state or federal court, it is a defense counsel’s responsibility to develop and preserve federal issues at every opportunity. This begins with gaining a general knowledge of Supreme Court cases in the basic areas of criminal procedure and substantive criminal law. It is a good idea to find some way to keep up-to-date on the federal case law that is out there in the rest of the country, perhaps by subscribing to a publication that regularly provides summaries of recent federal decisions. You should also just keep your eyes open for any questionable judicial or prosecutorial conduct or practice that you may see occurring in your area. Chances are that if the conduct or practice seems unusual, it likely violates the Bill of Rights in some way. The Supreme Court is interested in those kinds of cases.

The Supreme Court Rules give specific indications of the types of cases that are likely to be accepted for review. [See generally, Rules of the Supreme Court of the United States, Rule 10 ("Considerations Governing Review on Certiorari").] The Supreme Court will accept cases involving a federal issue in which there has been disagreement among the federal circuits and/or the highest state appellate courts. The Court will also accept cases in which a federal circuit court or state appellate court has made a fundamental error of constitutional law, or has violated a principle of clearly established federal law as interpreted by the Supreme Court in a prior case.

If federal law is not clearly established in a particular area, it is likely that the Supreme Court will be receptive to the idea of accepting your case for review. If the law is clearly established, or if there is specific federal authority that governs your issue, make sure that the lower court is held accountable to the requirement of all judges and all courts of the United States to apply the governing federal legal principle. Most importantly, if you think you have a viable issue for Supreme Court review, don’t be shy, and don’t extinguish your client’s rights by being too "realistic" about your chances of success, just file the petition! If you don’t succeed in obtaining Supreme Court review, you may still be able to utilize the work you have done in the litigation of a federal petition for writ of habeas corpus. [See 28 U.S.C. § 2254 & 2255.]

Best Resources

The best resources to consult to learn how to practice effectively in the US Supreme Court are: (1) the Rules of the Supreme Court of the United States (look at all of them); (2) the United States Supreme Court website (pay special attention to the "Case Handling Guides," especially the guide for filing an in forma pauperis case (referenced below), as it tells you in detail every important point that is required to be contained in a petition for writ of certiorari); (3) Justice Antonin Scalia’s book, Making Your Case: The Art of Persuading Judges, co-authored with Bryan A. Garner, (published in 2008 by Thompson/West, St. Paul, MN), which gives useful insights into the thought processes of appellate judges; and (4) the clerk’s office at the US Supreme Court (for specific questions concerning procedure).

You need to know the time limit for filing a cert. petition, [See Rules of the Supreme Court of the United States, Rule 13 ("Review on Certiorari: Time for Petitioning").] Generally speaking you must file within 90 days of the date of decision, but you need to check the rules for the specific requirements that apply to your situation; also note that Rule 13(5) provides that one can obtain an extension of the time permitted for filing a cert. petition by filing a timely motion with the Court. [See Rules of the Supreme Court of the United States, Rule 13(5), (and call the clerk’s office for assistance).] If you were not appointed as counsel pursuant to the Criminal Justice Act, you will need to obtain admission to the Bar of the Supreme Court of the United States before filing your petition. [See Rules of the Supreme Court of the United States, Rule 9 ("Appearance of Counsel").] Rule 5 of the Rules of the Supreme Court of the United States explains how to become admitted to the Supreme Court Bar.

In drafting your petition, consult the Case Handling Guide for filing an in forma pauperis case on the United States Supreme Court website, entitled, "Guide for Prospective Indigent Petitioners for Writs of Certiorari," for the required elements of a petition for writ of certiorari. Make sure that you have met all of these requirements, and make sure that you are providing the Court with a clear procedural and factual history of the development of your federal issue in the courts below.

Most importantly, if your case truly contains an issue that is viable for US Supreme Court review, you should not need a lot of space to make your point. Just tell the Court, as if you were speaking directly to a person standing in front of you, why your issue is important enough to merit consideration by our national court, and exactly how your position is authorized by existing federal law.

David Mirsky is a criminal defense attorney and partner in Mirsky & Petito, Attorneys at Law, in Exeter. His work focuses on homicide appeals. David has practiced extensively in the federal courts.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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