An argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies. The argument may be preceded by a summary.
That's Rule 16(A)(7) of the Ohio Rules of Appellate Procedure, the set of rules governing practice in Ohio's intermediate appellate courts. Rule 16 is about what briefs must include. Rule 28 of the Federal Rules of Appellate Procedure, addresses briefs in the federal circuit courts. Section (a)(9)(A) has the same requirement, mandating that briefs include
appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.
Which makes some sense when you think about what appeals are and how they work.
Appeals are claims that something went wrong at an earlier stage of the process. Typically, the claim is that the trial judge screwed up somehow. She did or didn't make a proper ruling on an objection. She did or didn't give the jury the right instructions. She did or didn't suppress evidence or impose a lawful sentence or properly advise the defendant of his rights when taking a plea or . . . . You get the idea.
And the judge screwed up because there was a rule he didn't follow or he followed wrong or a statute he ignored or case law he missed or misunderstood or an argument he should have bought but didn't. Or maybe the judge overlooked a crucial piece of evidence in issuing a ruling or remembered it wrong. Or something. Because the judge really can't screw up in a vacuum.
In fact, the rules pretty much require that the lawyer complaining on appeal have given the judge enough information to know what the issue was and to avoid screwing it up. It's that old "if-your-lawyer-screwed-up-you-have-only-yourself-to-blame" thing.
So sure, it makes sense that when we brief an appeal we have to provide citations and authorities on which we're relying. Because it's all about what the judge got wrong that could and should have been gotten right.
But what happens when there are no authorities to cite?
Kenneth Jowers was sentenced by a federal judge in Tennessee to 46 months in federal custody for knowingly and intentionally possessing four guns even though he was a convicted felon. The sentence was higher than it might have been because if there are more than three guns the guidelines call for a two level enhancement. (Don't worry if you don't understand. It doesn't matter.) He argued on appeal that he should have gotten less time because two of those guns were really his father's; his father stored them in his bedroom before Jowers became a felon; his father then died, and Jowers never got around to removing those guns. He didn't deny that he violated the law by possessing them (he entered a guilty plea), just that those two guns should have counted less.
Jowers had a good panel, the kind that in the 6th Circuit often leads to a 2-1 win. Not this time. When you have no case you're supposed to lose, and Jowers really had no legal case. So he lost, which is neither here nor there (except to Jowers, of course). But the question of how he lost, that's something different.
Here's a bit from the majority opinion by Judge Merritt.
Although the defendant apparently did not explicitly make a “disparity” argument in the district court based on § 3553(a)(6), which requires consideration by the court of the “need to avoid unwarranted sentencing disparities,” his only argument against this sentence on appeal is that the two-level enhancement constitutes an unwarranted sentencing disparity.” He does not explain by reference to case citation or other reference to how, when, or where defendants in a similar situation in other cases received a more favorable sentence omitting the two-level enhancement. He makes no argument that would assist us in differentiating his specific situation from other specific situations, and so his argument based on “disparity” is not well taken.
Note that word so in the last sentence. He might have won, Merritt says, if only he'd had some authority, some case (as lawyers like to say) on point. But it's just him. Therefore [so], he loses.
Now, that makes perfect sense. The rules say you're supposed to cite authority, and apparently Jowers didn't. And it makes particular sense here where his saying that there was something disparate about his sentence. That is, other folks in similar situations are better treated. If you're going to make that claim, it helps if you can point to a bunch of them - or at least one. Apparently he didn't.
But the point remains that Jowers lost because he was skating solo.
Judge Clay agreed that Jowers should lose. (Jowers really did have no legal case, it appears given the standards appellate courts are supposed to apply.) But other than the result, Clay disagreed with everything Merritt wrote. OK, it's not that much. From case caption through Merritt's opinion and to the end of Clay's concurrence takes all of four pages. And the Judge's thought so little of the case that they decided it shouldn't be published.
In any event, here's the relevant part of Clay's separate opinion.
I also note my disagreement with the majority opinion’s emphasis on Defendant’s failure to “explain by reference to case citation or other reference to how, when, or where defendants in a similar situation in other cases received a more favorable sentence omitting the two-level enhancement.” Although Defendant did not cite to any cases where a defendant received a downward variance because he only “negligently” possessed firearms in violation of § 922(g), the failure to demonstrate the existence of similarly-situated defendants who were successful in other cases is not a bar to bringing such an argument. Indeed, if that were the case, no defendant could ever raise a new or novel argument in challenging his conviction or sentence.
I've written before, I imagine, about Ernesto Miranda's trial lawyer. He's the guy who stood up in an Arizona trial court and said that his client's confession should have been suppressed because the cops never told him he had a right to talk to an attorney before answering any questions. I've always imagined (though it's probably not true) that judge and the prosecutor and the court reporters and the cops and everyone else in the courtroom broke into giggles at that.
You've gotta be kidding. What've you been smoking?
But, of course, SCOTUS said he was right. (And sent the case back so that Miranda could get a new trial without the tainted confession - a trial at which he was again convicted, by the way.)
Years ago I obtained a new trial for a defendant on death row when I argued that . . . . It doesn't matter what I argued. What matters here is that my entire authority on the winning point, the only thing I cited, was the Due Process Clause of the 14th Amendment and an unreported case from a different court of appeals in Ohio that made an altogether different point.
On the Merritt test, Miranda would have lost. So would my client.
The law is harsh and unforgiving. And as I said, the rule requiring authority makes some sense. Most of the time.
But Clay is right. There has to be room to say,
Never before, but now.
The court's opinion in United States v. Jowers, by the way, is here.