A ‘Massive Blind Spot’ in the Supreme Court Fixed by a ‘Defender General’?

By Brittany Mason

Every day, state courts’ criminal defenses have long been governed by the standards set by the Supreme Court, but in recent years this may have been proven to be ineffective.

At the base of the United States’ courts, there are the state courts that manage the everyday criminal defense trials. State court crimes such as assault and robbery result in suspects being arrested by local police officers who will have a trial at the state courts. Yet, in the grander scheme of the courts, all the standards and procedures for criminal justice come from the authority of the United States Supreme Court.

Over time, the Supreme Court’s decisions have set the groundwork for criminal defense by, for example, requiring that police officers inform detained criminal suspects of their inherent constitutional rights, providing criminal defendants who are financially disadvantaged a lawyer free of charge, and not allowing illegally obtained evidence to be used in criminal trial against a suspected defendant. These Supreme Court decisions have altered the way that state courts and local jurisdiction in the name of the criminal justice process are required to act.

Highlighted in The Appeal and in an article by the University of Pennsylvania Law Review, law professors Daniel Epps and William Ortman argue, “Observers often defend the Court’s aggressive role in criminal justice as a corrective to a political process that badly discounts the interest of criminal suspects and defendants are at a significant structural disadvantage.”

Generally, advocates that want to promote reform do not assert their attention to the Supreme Court but rather the state courts to “even the playing field” there. Yet, the state court’s system of justice is ruled by the Supreme Court. Therefore, Epps and Ortman both agree that these advocates must avert their aspirations to the Supreme Court.

As The Appeal article emphasizes, when criminal cases are heard at the Supreme Court the government actors have an advantage. The prosecutors have the objective of the government’s interests in mind; therefore, when such government actors take a case, their focus is obtaining the government’s interest even if it requires the loss of a case.

On the other hand, criminal defense lawyers do not have that same advantage as, generally, their motives are not mainly about setting a new precedent or procedural rule, but rather what is in the best interests of their client in that particular case. As Adam Liptak from the New York Times remarked, “Persuading trial lawyers to cede a once-in-a-lifetime turn at the Supreme Court lectern to a fancy appellate lawyer is easier said than done.”

Both Epps and Ortman recognize this arrangement and offer a remedy. They suggest a third actor: the Office of the Defender General. This general would “be charged with advocating for the interests of criminal defendants as a whole before the Supreme Court” where “the interests of a particular defendant were aligned with the interests of defendants collectively.”

Another key advantage of the prosecution is their familiarity with the Supreme Court. Generally, the prosecution lawyers have had more experience arguing in the court and subsequently have a reputation and better standing. Further, the criminal defendant’s representation is likely to be their original lawyer, who would have a lower probability of having argued before the Supreme Court prior. According to The Appeal, studies support this claim, as lawyers that have previously argued before the court tend to have a higher likelihood of winning their case compared to less experienced lawyers.

Looking upon the Supreme Court, Adam Liptak of the New York Times reveals “since the retirement of Justice Thurgood Marshall in 1991, the Supreme Court had not included any justices who have spent significant time working as criminal defense lawyers before ascending to the bench. By contrast, eight of the nine members of the current court have worked in prosecutors’ offices.”

Between the government prosecutors and the lesser experienced criminal trial lawyers, Epps and Ortman believe, “The representational asymmetries likely distort the Court’s decision making over time, at least at the margins, making criminal-justice policy friendlier to the government than it might be otherwise. As a result, the Supreme Court is a flawed regulator of criminal justice.”

Epps and Ortman have suggested this Office of the Defender General to overcome what Washington Post columnist Radley Balko calls “a massive blind spot” in the Supreme Court of the disproportion of experience. This is emphasized even in the light of what Justice Elena Kagan points out, that “case in and case out, the category of litigant who is not getting great representation at the Supreme Court are criminal defendants.” As well, Senator Cory Booker endorses the idea of a Defender Office for Supreme Court Advocacy that properly represents criminal defendants. Kyle Barry, a senior legal counsel for the Justice Collaborative, wrote on his belief that defendant trial lawyers’ inexperience extends to the federal judiciary as a whole.

All this is hoping to accomplish a goal of evening the playing field for criminal defendants.

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About The Author

The Vanguard Court Watch operates in Yolo, Sacramento and Sacramento Counties with a mission to monitor and report on court cases. Anyone interested in interning at the Courthouse or volunteering to monitor cases should contact the Vanguard at info(at)davisvanguard(dot)org - please email info(at)davisvanguard(dot)org if you find inaccuracies in this report.

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