Judicial Notice (10.13.24): October Surprises
Judicial Notice (10.13.24): October Surprises
A Republican AG’s unusual stance, SCOTUS’s openness to regulating ‘ghost guns,’ Cleary’s about-face, and more talent grabs by Kirkland and Paul Hastings.
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Happy seventh birthday to our son Harlan. He was a bit jaded this time around: “My seventh birthday isn’t as exciting as the others.” I said, “Wait until you hit 49.” At least he enjoyed his birthday party this afternoon at Sky Zone, a nearby trampoline park. In the past, we’ve held his birthday parties at home, but this time around, overwhelmed by work, Zach and I outsourced it (and felt no guilt about doing so).
On a more somber note, I hope that my readers in the south are safe in the wake of Hurricanes Helene and Milton. While it appears that the latter (thankfully) caused significantly less death and destruction than the former, individual experiences during natural disasters can vary greatly.
This week’s testimonial comes from a 3L at a T14 law school: “Original Jurisdiction has been my go-to resource as I enter the legal profession. I have used it to prepare for successful clerkship and OCI interviews, and I highly recommend it to incoming students who, like me, did not grow up in a law-centric household. In a day and age when accurate and concise reporting is sometimes lacking, I can always count on Original Jurisdiction to distill the issues in a thoughtful way.”
Now, on to the news.
Lawyer of the Week: Gentner Drummond.
On Monday, the U.S. Supreme Court returned to the bench for the start of October Term 2024. As Adam Liptak put it in The New York Times, the nine justices were “dour and diligent, methodically interrogating the lawyers before them.”
On Tuesday, they heard oral argument in the death-penalty case of Glossip v. Oklahoma. If defendant Richard Glossip’s name rings a bell, it might be because this isn’t his first time at SCOTUS: in Glossip v. Gross (2015), five justices rejected his Eighth Amendment challenge to Oklahoma’s three-drug protocol for lethal injection. Per Liptak, “Glossip’s case has been convoluted even by the standards of capital litigation”: he has filed six certiorari petitions, had two of them granted, faced nine execution dates, and received three last meals.
But this time, there’s a twist: Glossip’s request for a new trial enjoys the support of Oklahoma’s Republican attorney general, Gentner Drummond. Here’s the background (again from The Times):
On a chilly morning in January 1997, in Room 102 of the Best Budget Motel in Oklahoma City, a handyman named Justin Sneed beat the motel’s owner to death with a baseball bat. The rest of what happened is murkier. In exchange for a life sentence, Mr. Sneed testified that the motel’s manager, Richard Glossip, had commissioned the murder of its owner, Barry Van Treese. Based on that testimony, the only direct evidence linking Mr. Glossip to the crime, he was sentenced to death.
Last year, prosecutors disclosed long-suppressed notes that undermined Mr. Sneed’s testimony. They helped cause Oklahoma’s attorney general, Gentner Drummond, a Republican, to ask the state’s highest court for criminal matters to throw out Mr. Glossip’s conviction and order a retrial. Lawyers call such requests “confessions of error,” and courts ordinarily give them great weight. But the state court refused.
So at oral argument, former U.S. solicitor general Paul Clement of Clement & Murphy, representing Oklahoma, formed an unusual tag team with another former SG, Seth Waxman of WilmerHale, representing Glossip. They both argued against Chris Michel of Quinn Emanuel, a former clerk to Chief Justice John Roberts who was appointed by the Court to defend Glossip’s conviction and the judgment of the Oklahoma Court of Criminal Appeals (the state’s highest court for criminal matters).
Drummond’s refusal to stand by the conviction has been controversial. As he told The Times, “I’ve been criticized by prosecutors, attorneys general, and politicians”—and he acknowledged that he might get voted out of office for this. And he was implicitly criticized by Justice Clarence Thomas, who at oral argument appeared troubled by the possibility that the line prosecutors who tried the case, in being accused of misconduct, were thrown under the bus.
Others have hailed Drummond as a hero. In the words of Rex Duncan, the independent counsel who investigated the case (and ultimately recommended a new trial), Drummond’s decision “to seek a stay of execution and more thoroughly examine this case may be the bravest leadership decision I’ve ever witnessed, and it was absolutely the correct legal decision.”
But will eight justices agree? (Justice Neil Gorsuch—who served on a Tenth Circuit panel that affirmed the denial of one of Glossip’s habeas petitions in 2013, before the new evidence came to light—is recused.) We shall see—assuming the Court reaches the merits. It could conclude the case is unreviewable (because the Oklahoma court’s ruling rested on “adequate and independent state-law grounds”); remand for an evidentiary hearing, which seemed to have buy-in from multiple justices at argument; dismiss as improvidently granted; or deadlock 4-4, which would affirm the Oklahoma Court of Criminal Appeals by an equally divided Supreme Court.
Other lawyers in the news:
Think you had a busy week? It probably wasn’t as busy as that of Cooper & Kirk partner Peter Patterson, who argued on Tuesday before the Supreme Court in Garland v. VanDerStok, aka the “ghost guns” case (discussed in more detail below), and then on Wednesday before the en banc Third Circuit in Range v. Attorney General, a Second Amendment challenge to the federal felon-in-possession law brought by a defendant convicted of making a false statement to obtain food stamps. The Third Circuit previously ruled in Range’s favor, applying the Supreme Court’s Bruen ruling, but SCOTUS remanded for reconsideration in light of Rahimi, in which the Court upheld the law against a challenge brought by a defendant subject to a domestic-violence restraining order. Good luck to the Third Circuit in trying to make sense of what I’ve dubbed Brahimi.
When it comes to “tak[ing] scrupulous care to assure the public that the [federal prosecutions of ex-president Donald Trump] are conducted in compliance with pertinent rules,” Professor Jack Goldsmith of Harvard Law School gave HLS alum Jack Smith a failing grade. As Goldsmith argued in a Times guest essay, Smith should have shown his work—i.e., he should have publicly defended the propriety of releasing new, negative information about Trump this close to the election.
Judge of the Week: Judge Stephen Higginson.
Among the federal appellate courts, the Fifth Circuit sucks up a disproportionate amount of oxygen. It’s hard to imagine any other circuit being the subject of a 4,500-word magazine feature, like the one that Pema Levy wrote for Mother Jones—replete with a kinda cool, kinda ominous illustration of the Fifth’s two most prominent jurists, Judges James Ho and Andrew Oldham.
But even if the media coverage might give you a different impression, Judges Ho and Oldham aren’t the only members of the Fifth Circuit. The 17-member court has five Democratic appointees—and Judge Stephen Higginson, a former Supreme Court clerk (to Justice Bryon White) and full-time law professor, is widely regarded as their intellectual leader. If progressives view Judge Ho as Darth Vader and Judge Edith Jones as the Empress, then Judge Higginson might be Obi-Wan Kenobi: “Help us, Judge Higginson—you’re our only hope!”
Judge Higginson, who was appointed in 2011 by President Obama, appeared in the news for two reasons this week. First, in terms of the hot-button issues for which the Fifth is most well-known, he emerged as a defender of the Deferred Action for Childhood Arrivals (DACA) program at a Thursday oral argument. Judge Higginson posed tough questions to Joseph Mazzara, the lawyer from the Texas attorney general’s office challenging the legality of DACA, which shields undocumented immigrants who arrived in the United States as children from deportation. Judge Higginson questioned the authority of Judge Andrew Hanen (S.D. Tex.) to block the program on a nationwide basis, as well as the wisdom of such a move: “The logic is people that are lifelong residents of Texas, if they lose the program, they’re going to go back to countries they never lived in? Is that the logic?”
Second, and perhaps more interesting for legal nerds who aren’t so into the culture wars, Judge Higginson authored a thoughtful opinion in UMG Recordings, Inc. v. Grande Communications Networks, LLC, a copyright-infringement case. The unanimous panel affirmed a jury verdict finding Grande, a large internet-service provider, liable for contributory infringement. But on the messier issue of damages, the Fifth Circuit held that the district court erred by calculating statutory damages on a per-song instead of a per-album basis.
In the age of streaming, the per-song approach makes more sense as a policy matter—which might explain why at least five circuits follow it. But Judge Higginson argued that the statutory text provides otherwise—and when policy arguments clash with statutory text, “the text must prevail.” The Copyright Alliance condemned the outcome of the Fifth Circuit case as “a cruel joke”—but don’t be surprised if the Supreme Court rules that only Congress can change the punchline.
Other judges in the news (including some updates relating to judges previously mentioned in these pages):
In May, Pennsylvania’s Court of Judicial Discipline told Judge Mark Cohen of the Philadelphia Court of Common Pleas to stop posting about his political views on social media. But he persisted—so the court suspended him without pay, effective immediately, until the expiration of his term at the end of the year.
Here in New Jersey, Bergen County Superior Court Judge Gary Wilcox was also suspended, also for social-media postings—specifically, TikTok videos featuring the judge, sometimes in chambers and sometimes in his robes, lip-syncing songs with “references to violence, sex, and misogyny.”
Shawn “Mickey” Stines, the former Kentucky sheriff accused of killing Letcher County District Judge Kevin Mullins, acted “in the heat of passion,” according to defense lawyer Jeremy Bartley—and therefore Stines’s “highest level of culpability should be manslaughter,” not murder, “based on the partial defense of extreme emotional disturbance.”
The relationship between former bankruptcy judge David R. Jones (S.D. Tex.) and former Jackson Walker partner Elizabeth Freeman—who worked on cases pending before Jones, who in turn approved fee requests for her—might not have been a total secret. It appears that at least two Jackson Walker lawyers and three court staffers knew about the romance before it became public last year.
Ruling of the Week: Moms for Liberty v. Brevard Public Schools.
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