WHAT’S UP IN THE APPELLATE WORLD
(Posted November 10, 2017) The courthouse doors are shuttered today for Veterans’ Day; no more opinions will come down until next week. I have no looming deadlines to file briefs. (I file days or weeks early and get a good night’s sleep before the deadline.) This looks like a good time to take a look around the appellate universe and report on what’s happening.
Before I get to that, today is a date worth commemorating for a couple of reasons beyond veterans. It is the 42nd anniversary of a maritime tragedy that gained worldwide attention due to a haunting ballad. It’s also the 146th anniversary of the most famous question of the Nineteenth Century. On both occasions, men displayed courage that I simply cannot imagine.
ABA Appellate Summit
Last week the ABA convened the Appellate Judges Education Institute, commonly known as the Appellate Summit, in Long Beach, California. This is the preeminent gathering of appellate judges and lawyers in America; it usually attracts three or four hundred attendees from across the country. It’s a wonderful opportunity to share ideas and war stories with your colleagues from elsewhere. It also offers roughly a gazillion hours of MCLE credit (okay, more like 15 or 16 hours this year, with four in Ethics), much of it on cutting-edge appellate topics.
If you’re an appellate lawyer and you’ve never been to a Summit, then for the good of your practice you need to commit to doing so. Next year’s event will be in Atlanta. I don’t have the date yet, but it’s traditionally in early November. I’ll post something when I get word.
Update November 13: The 2018 Summit will convene November 8-11, 2018 at the Atlanta Marriott Marquis. I’ve already blocked off my schedule. Your turn.
Dog days in Louisiana
Early this week I saw a story out of the Pelican State that was, to say the least, eye-catching. By a vote of 6-1, the Supreme Court of Louisiana denied a petition for a writ filed by a criminal defendant named Warren Demesme. The petitioner complained that the trial court had admitted statements he made after he requested a lawyer during a custodial interrogation.
Here’s the key point in the transcript of the interrogation:
If y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.
We all know from basic Criminal Procedure texts that “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” That’s straight out of Miranda v. Arizona. SCOTUS has qualified that by noting that the request for counsel must be unambiguous:
Although a suspect need not “speak with the discrimination of an Oxford don,” post, at 476 (SOUTER, J., concurring in judgment), he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards [v. Arizona, 1981] does not require that the officers stop questioning the suspect.
Davis v. United States, 512 U.S. 452, 459 (1994).
The SCV has recently taken up a situation like this, with a seemingly unambiguous request from a suspect during questioning: “That’s what I want, a lawyer, man.” While that line, from Stevens v. Commonwealth, 283 Va. 296 (2012) seems unambiguous, it was a vastly different story in context, and the justices ruled against the appellant. (My January 13, 2012 essay on the decision explains why in greater detail.)
Against that backdrop, we have Louisiana v. Demesme. The Louisiana high court evidently felt that Demesme might have been referring to a hypothetical animal with a law degree, so it held the request to be ambiguous and refused his petition.
Anyone who’s heard any American slang in the past thirty years is rolling his or her eyes at that one. It’s unclear from the case record that the justices received anything other than the transcript; an audio recording would have provided more context. But even without the audio, it’s fairly clear to me that there’s some punctuation missing, not to mention some vernacular spelling: “I know that I didn’t do it, so why don’t you just give me a lawyer, dawg, ’cause this is not what’s up.”
And you thought punctuation was only important for grammar geeks. Here, the court reporter’s decision not to include it probably means a lengthy stay in prison. To be fair, the cloistered life of an appellate jurist might also have played a significant role; after all, few justices refer to each other as “dawg.”[Before my legions of fellow grammar geeks start sending me memes, I’ll warn you off: Yes, I do know about the “Let’s eat, grandma” and “Eats shoots and leaves” phenomena.]
Fourth Circuit filing pause
You may have seen the word from 1100 East Main that the Fourth Circuit’s Case Management and Electronic Case Filing System is being upgraded this weekend. The system is shut down (as of 6:00 p.m. yesterday) and can’t accept any filings until the new system comes online sometime on Monday, November 13.
But the judges aren’t heartless; if you have a filing deadline, it’s automatically extended unto Monday. That being said, the practical effect of this extension is almost zero. Today is a federal holiday, and nobody’s required to file on weekends anyway. Only if you had a deadline yesterday will it give you any extra time.
Update November 13: The new site is live. Here’s a link to the court’s website for more information. Please note that you cannot simply continue to e-file using your old login information; you have to upgrade your PACER account and link your legacy CM/ECF account to the new PACER account. The link gives you more information about how to do that.
Years ago, when the Fourth converted to mandatory e-filing, the court offered a wonderfully helpful live training program for lawyers setting up accounts. I don’t see any indication that the court will do that again for this change.
Courts’ holiday closings
As long as we’re discussing closures, we may as well review the appellate courts’ closings for the upcoming Thanksgiving holiday. In the Supreme Court of Virginia and Court of Appeals of Virginia, the Clerk’s Offices will close at noon on Wednesday, November 22, and will reopen on Monday the 27th. Any deadlines that fall anywhere in there are automatically extended unto November 27. (Even though the office will be open half a day on Wednesday, by law the early closing gives you the extra time.) The Fourth will be closed only Thursday and Friday, November 23-24.
I’ll add my usual word of caution: This advice only applies to the appellate courts. In Virginia state courts, your local trial-court Clerk’s Office might not close early the day before Thanksgiving. If that’s the case, and you have a filing that’s due in the trial court (a notice of appeal; an appeal bond; etc.), then you must file by the original deadline. A locked door in Richmond won’t help you if your local courthouse is open. Make the phone call and check.