Law is so complex that many lawyers have gravitated to specific niches. For example, lawyers who structure large company mergers and acquisitions do not appear in family court to argue child support cases. The law in each, and the expectations of clients in each, are too distinct.
Further differentiation occurs not just in the area of practice, but in forum type. Appearing before a Nation Labor Relations Board panel is distinct from Probate Court. But the requisite skill set is particularly distinct in the move from trail-type work to appellate work.
Trial attorneys must know the law, the evidence, and strategize a way to present that information to the fact finder. An appellate attorney must understand the standard under which various decision will be examined and must look for mistakes in application. They draw from upon a plethora of sources, be it statutes, case law, etc., to make their arguments.
An appellate attorney in the criminal realm is not necessarily tasked with staving off a conviction so much as ensuring the fair application of the law. To do so requires a particular blend of skills that I lack, and few are blessed with. Those skilled possess a finite resource that can command a high price tag. Predictably, those without the resources are left behind.
The United States (Almost) Always Wins
As Adam Liptak’s describes in his August 8, 2016 New York Times article “Criminal Defendants Sometimes ‘Left Behind’ at Supreme Court, Study Shows,” this evolution leaves poor and middle class criminal appellants without sufficient recourse at the highest forum – the Supreme Court of the United States.
If the United States (almost) always wins, it is easy to imagine who loses. The United States government has chosen to help bolster state prosecutors more than 70% of the time, using its Solicitor General’s office to act as an accomplice. This means that criminal petitioners/respondents arguing at the Supreme Court find themselves fighting two foes more than 70% of the time, the State prosecutor and the United States Solicitor General’s Office.
Who is the Solicitor General?
Experts in subject matter and forum are able to craft messages that appeal to the audience, increasing the odds of a successful outcome. The Solicitor General’s Office is a subject matter expert in arguing criminal matters. Between 2005 and 2015, on average, the Solicitor General appearing in these types of cases had twenty-five (25) arguments before the Court, while fully two-thirds of criminal defendant representatives were making their first argument.
The twofer the state enjoys predictably leads to greater success: winning 75% of cases in which it is the petitioner and 52% of cases in which it is the respondent—compared to average success rates of 61% and 35% for petitioners and respondents more generally. Id.
Even the Solicitor General’s decision to act in an amicus capacity increases the petitioner’s “chances of winning increase by an average of 17%. Many of stats, cited in Mr. Liptak’s article, are drawn from Andrew Manuel Crespo’s great law review contribution – Regaining Perspective: Constitutional Criminal Adjudication in the U.S. Supreme Court.100 Minn. L. Rev. 1985 (2016); Harvard Public Law Working paper, No. 16-40. Recommended reading, or at least skimming.
The Chickens will Come Home to Roost
Our current Supreme Court has no sitting justices who have experience as a criminal defense attorney. Six (6) justices have prosecutor experience. These justices are hearing arguments about criminal law from multiple prosecutors adept at arguing in that forum against untrained criminal attorneys. This leads to bad law that will further shrink the rights of the accused.
The fix would be to level the playing field, but criminal defendants make poor martyrs.