Tuesday, November 18, 2014

An Adversary System without Adversaries

Some background:
Ohio law says that the Ohio Supreme Court must review every death sentence on direct appeal.  A rule of the Ohio Supreme Court, a rule crafted by the Ohio Supreme Court, says that no brief can be filed after the date it is due.  Another rule prohibits asking permission to file a brief late.  Yet another rule says that if a party doesn't file a brief, it cannot participate in oral argument.  There is no rule prohibiting asking to waive that rule.  (Confused yet?  Welcome to the Buckeye State's Supreme Court where they refuse to file documents unless that don't comport with the rules and where they don't give you additional time to fix screw ups.)

A true story:
The prosecutor in one of my death penalty cases blew the deadline.  A clerk at the court, who wasn't paying sufficient attention, filed his brief anyway.  A week or so later, the court, on its own, struck the brief from the record.  When they scheduled oral argument, the prosecutor wasn't invited.  After all, he hadn't filed a brief.  He asked to participate anyway.  They said no.

And so, I had a death penalty case in the Ohio Supreme Court where the state did not present a written or oral argument.  I was unopposed.  I had the brief.  I'd made the arguments in writing.  I had 30 minutes to address the court, answer their questions, be thoughtful and eloquent and persuasive.


Another true story:
M.P. was stopped by the highway patrol for a traffic offense.  The cops charged him with that, but also with a couple of misdemeanor drug offenses.  After he pled guilty to the traffic offense, the prosecutor dismissed the drug offenses.  So P. asked to have the drug charges expunged. After all, they weren't important enough to pursue.

The trial court said 
Sure. Expunge 'em.
The prosecutor appealed.  
The charges may not have been important enough to pursue, but by god P. needs to have them on his permanent record so that they can screw up his life.  
The court of appeals told the prosecutor to pound sand.  It agreed with the trial judge.  
Life is good.  P. paid his lawyer and left Ohio.  And the prosecutor said 
This cannot be.  We have to fuck with this guy and make sure he can't get on with life.
So he asked the Ohio Supreme Court to hear an appeal.

P?  He was living in another state.  Didn't know the case had been appealed.  Had no real interest in it, anyhow.  And his lawyer?  He'd been paid.  he was done.  The supremes agreed to hear the state's appeal.  Only the state briefed it.  Only the state argued.


Yet another true story:
After the Supreme Court (US this time) decided Miranda v. Arizona (You have the right to remain silent, etc.), they enacted a statute attempting to overrule it.  For a couple of decades, nobody paid any attention to that statute.  Then a guy named Dickerson robbed a bank.  He confessed to the FBI, but they didn't give him Miranda warnings.  The court threw out his confession.  The court of appeals reversed citing that statute.  Dickerson asked the berobed ones in Washington to hear the case.  They agreed, but they had a problem.  The government wasn't willing to defend the statute.  Dickerson said the statute was worthless.  The government didn't disagree.  

And so the Supremes appointed Paul Cassell (who never met a defendant he didn't hate or a victim he didn't think should be able to be a second prosecutor - and get paid by the defendant for her trouble) to argue that the statute was constitutional and did, in fact, overrule Miranda.  
Because no party to the underlying litigation argued in favor of § 3501's constitutionality in this Court, we invited Professor Paul Cassell to assist our deliberations by arguing in support of the judgment below.
As it happens, Dickerson won (Dickerson v. United States).  3501 returned to the dustbin where it had been languishing.
* * * * *

The distinctions here matter.  

The U.S. Supreme Court, for all its faults, knows that because it resolves only real cases, it needs to hear arguments from both sides.  If the party on one side isn't interested in participating, it will appoint someone to argue that position.  

The Ohio Supreme Court, like the one in Washington, is supposed to hear and resolve only real cases. Unlike the one in Washington, the Ohio Supreme Court doesn't think it's necessary to hear from both sides.  One side doesn't show up?  Lack of interest? Lack of money?  Lack of a good calendar?  Hey, they don't care.  A real case or controversy where there's only one party?  Welcome to Ohio.
* * * * *

And so we come to the case of Jalal T. Sleibi.  

He's a lawyer and he screwed up.  The Board of Commissioners on Grievances and Discipline recommended that his license to practice law be yanked for two years but that he should be on probation for the second of those years.  Sleibi thought that was a reasonable sanctio. The local bar association thought it wasn't enough.  Take his license away indefinitely, they said.

Before they made their argument to the Ohio Supreme Court, they took by agreement with Sleibi's lawyers, the one single, allowed extension of time they could get, an additional 20 days to file. Sleibi's lawyer  miscounted.  He thought he had 20 days to file a response.  Proud of himself, and in violation of most legal practice, he filed early, sent his response by UPS overnight on the 16th day, so that it arrived before 10 a.m. on the 17th.  Three days early.

Ooops.  He actually had 15 days to respond, not 20.  He was late by something like 36 hours.  His response, naturally, was rejected.  Can't file it when it comes in late, after all.

But there's no rule that says he can't ask to participate in oral argument.  Which he did.
Typically, parties failing to file merit briefs are deemed to waive oral argurnent. See S.Ct.Prac.R. 13.04(B)(2). However, there is no rule saying that this Honorable Court may not waive the foregoing rule as there is with seeking extensions of time after the expiration of the prescribed time. In consideration of the general interests of fairness and equity to Respondent Jalal Sleibi as it relates to his license to practice law and ability to support his family, and who personally is not at fault for the untimely submission of his Answer and Brief to Relator's Objections, Respondent's counsel respectfully requests that this Honorable Court extend to Mr. Sleibi the reasonable courtesy, exception and accommodation to permit his counsel to appear at the oral argument (yet to be scheduled) in the instant matter to argue his position in advocating the acceptance of the Board's Amended Findings and to reject the extreme recommended sanction of Relator.
This motion is not made for purposes of delay, harassment or to burden Relator or this Honorable Court, and the granting of the instant motion will not cause any prejudice to any party. This position rests not only on the facts as set forth herein, but also on the proposition that given the nature of these proceedings with exclusive jurisdiction before this Honorable Court, Mr. Sleibi deserves to be afforded the opportunity to be heard and to have this matter decided upon the merits. Again, and while the substance of these proceedings, from an equitable perspective, would all-but-dictate some manner of an opportunity to be heard, counsel, for this same reason, requests that this Honorable Court allow an exception to S.Ct.Prac. R. 13.04(B)(2) and based upon principles of fairness and equity, permit counsel to argue Mr. Sleibi's position relative to those posited in Relator's Brief.
Which seems, when you think about it, pretty fair.  Just give us a chance to be heard.  Which is, after all, about the minimum of due process.

Unless, of course, you happen to be in the Ohio Supreme Court.

*In a later proceeding, we got the guy's death sentence reversed.  His sentence has been reformed. He'll come before the parole board in October 2038, just before he turns 82.  Of course, there's no reason to think he'll get parole, should he happen to live that long.  But it's a theoretical possibility.

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