The Mezzanine of the Criminal Justice System

By Steve Klepper (Twitter: @MDAppeal)

Readers of How Appealing (which probably includes our entire readership) may have seen Howard Bashman’s quick post, “Fourth Circuit issues all but footnote 10 of panel’s opinion under seal, which at least allows the judges to argue over footnote 10’s propriety.” We plan to have a substantive post about the Fourth Circuit’s unusual order next week, but here’s a more trifling post in the meantime.

Last night on Twitter, Orin Kerr ribbed Judge Davis for referring to the judiciary, including the Fourth Circuit, as the “ground floor of the criminal justice system” in a concurring opinion:

Circuit judge describes federal ct. of appeals as "ground floor of the criminal justice system." http://t.co/ucZxcgPtI5 via @howappealing

— Orin Kerr (@OrinKerr) June 2, 2015

Judge Davis is known for some good analogies, but Kerr is right that appellate judges aren’t exactly on the ground floor. Judge Davis draws that analogy as part of his argument that “judges need to say more, not less, to the political branches about the serious deficits in our criminal justice system,” and that “when judges ‘see something’ judges should ‘say something.’”

Within that argument, intermediate appellate judges perhaps would be better described as standing on the mezzanine of the criminal justice system. Because a criminal defendant ordinarily has a right to review by an intermediate appellate court, the judges stand above the ground floor but aren’t entirely separate from it. They can see what is going on at the ground level and, from that vantage point, can see something and, if they feel appropriate, say something.

Of course, as “Mansfield” pointed out in one of the replies to Kerr, Judge Davis spent 14 years on the ground floor before taking the elevator to the mezzanine[*] in 2009. Even if Judge Davis’ analogy wasn’t the best, his points are well-taken.

[*] Chump, change, and it’s on, super bon bon, Super bon bon, Super bon bon.