An Advocate’s View of Judge Garland in Criminal Cases

By Steve Klepper (Twitter: @MDAppeal)

I’ve had the privilege of arguing three cases before D.C Circuit Judge Merrick Garland, who is President Obama’s nominee to the Supreme Court. The media and interest groups are scrutinizing his 19 years’ worth of appellate decisions for insight on his jurisprudence. Much of the criticism from criminal justice advocates (on both the right and the left) is that they see Judge Garland as predisposed to favor prosecutors in criminal appeals. Critics typically cite Tom Goldstein’s 2010 analysis of Judge Garland’s criminal opinions.

My experience, while not necessarily representative, is at odds with this conventional wisdom. Two of my arguments before Judge Garland were as defense counsel in criminal appeals, and he wrote the opinion both times. I would be happy for Judge Garland to be on my panel in every single criminal appeal.

For some perspective, let’s remember that liberal groups were as unenthused about President Clinton’s nomination of then-D.C. Circuit Judge Ruth Bader Ginsburg in 1993 as they are about President Obama’s nomination of Judge Garland in 2016. The Los Angeles Times described her “as a cautious interpreter of the law,” whose selection was “expected to add weight to the ascendant center of the court,” and who drew praise from Republican senators. Liberals were not happy with her judicial record:

The Institute for Justice, a conservative watchdog group, said that it is giving her “cautious support” and praised her moderate views ….

People for the American Way, a liberal group, called her “a significant improvement” over other recent nominees, but cited questions about her stands on “access to the courts, privacy rights, and her capacity to forge effective coalitions among justices on the moderate-liberal wings of the court.”

Even before the nomination, one White House aide fretted about the reaction. “All of our friends in the liberal community are not very excited,” the aide said …

Some liberal groups in Washington have been disappointed that, as an appeals judge, Ginsburg did not live up to their expectations of what she could do as an advocate for the liberal point of view. Indeed, many have noticed with vexation that one of Ginsburg’s closest relationships has been with conservative Justice Antonin Scalia, with whom she sat on the appeals court for five years.

In 1993, any notion that Ginsburg would transform into a liberal icon would have seemed absurd. As it turns out, she was very good at her job as a federal circuit judge – applying Supreme Court precedent – which is quite different from making Supreme Court precedent.

What we know about Judge Garland is that he is a brilliant judge who appears to have his finger on the pulse of the Supreme Court’s jurisprudence at any given moment. He has an unusually good track record in cases that have gone up to the Supreme Court. He is also an exceptionally successful “feeder judge,” placing his law clerks with a wide range of Supreme Court justices. Given that his criminal law opinions line up neatly with the Supreme Court’s rulings, I don’t see much predictive value.

From my conversations with D.C. appellate practitioners over the years, I suspect that if you asked them to rank their preferred D.C. Circuit judges in a criminal defense appeal, Judge Garland would rank higher than Tom Goldstein’s analysis would suggest. If you’re representing a federal criminal defendant on appeal, case management statistics show overwhelming odds that you’re going to lose before any panel. My hope in a criminal appeal is to draw a panel that, through argument and its opinion, shows that it has given my client’s arguments careful consideration. If Judge Garland is on the panel, I know my client will get that essential element of due process.

Judge Garland, who was the model of an ethical prosecutor, has strong opinions on the right way to prosecute and adjudicate a criminal case. Prosecutions in the U.S. District Court for the District of Columbia, just half a mile from Department of Justice headquarters, are unusually likely to satisfy those standards. If confirmed to the Supreme Court, Judge Garland will be reviewing state and federal criminal decisions from around the country, and I have little doubt that he will speak up if he perceives an injustice.

In one of my cases before Judge Garland, his questioning of the Government was particularly pointed. As part of a Rule 16 discovery sanction, the district court had precluded the defense from using an exculpatory document for any purpose – not even to impeach government witnesses or to refresh their recollection. Judge Garland cut to the heart of the matter during argument: “I tried lot of cases both as a prosecutor and as defense counsel. I’ve never heard anybody make the argument that you can’t use it for impeachment, and there is nothing in Rule 16 that says that.” His opinion in fact found that the district court abused its discretion.

In another criminal appeal, Judge Garland voted to grant extraordinary relief for my client. Midway through my client’s second trial, the Supreme Court abrogated a D.C. Circuit precedent that had barred my client’s double jeopardy claim. A three-judge panel, which included Judge Garland, granted an emergency stay of the trial, pending an expedited appeal. It appears to be the only time a federal appellate court has ever ordered a stay of a jury trial after the presentation of evidence began.

In that appeal, like my Rule 16 appeal, Judge Garland’s merits opinion found error and granted some relief for my client, although less than we requested. But each opinion thoroughly explained why the court granted only limited relief.

My greatest challenge as an advocate before Judge Garland was convincing him about the scope of the prejudice resulting from an error. That difficulty arises in virtually every federal criminal appeal, because most federal prosecutors only bring cases they see as airtight. I don’t know whether Judge Garland is more or less likely than average to find error harmless. But that question is of little consequence to the criminal defense bar if he joins the Supreme Court. In the rare cases where the Supreme Court addresses the fact-bound question of harmlessness, that portion of the opinion is usually only of consequence to that particular defendant.

Criminal justice reformers on the right and left likely would have preferred another nominee. But the conventional wisdom – based on a six-year-old analysis that leaves out the most recent third of Judge Garland’s judicial career – is highly problematic. The D.C. Circuit’s criminal docket is tiny, giving us few data points. By comparison, when President Obama nominated another former prosecutor, Justice Sonia Sotomayor, her record included over 800 criminal opinions.

Virtually any replacement for Justice Scalia, whether appointed by a Republican or Democrat, would be less likely to side with prosecutors in close cases. Even accounting for Justice Scalia’s votes with liberal justices on issues like warrantless searches and confrontation rights, a study of the Supreme Court since the 1950s concluded that Justice Scalia was one of the justices most statistically likely to side with prosecutors in non-unanimous criminal rulings.

Over a distinguished 19-year judicial career, Judge Garland has earned the highest level of respect from the federal bench and bar. It is difficult to predict nominees’ behavior with any confidence, and Judge Garland deserves the benefit of the doubt. I see no particular reason to question that, if confirmed, Judge Garland would be a fair and impartial jurist in criminal cases.

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