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Taking it to the top

ImageWhen a defendant stands to receive a substantial sentence reduction if an argument prevails, there is an obvious incentive for his counsel to make the best case possible in support of that theory.

But when the court that is considering the argument is the U.S. Supreme Court, the pressure to present it persuasively can reach new dimensions, for many reasons – the imposing grandeur of the Court, the novelty of appearing before famous justices, and even the keen interest of some very familiar figures in the audience.

“When I argue in the Seventh Circuit or do something here, my family and friends don’t go, but the Supreme Court has tickets for your family and friends,” said Rick Coad, an attorney with Federal Defender Services of Wisconsin, Inc.’s Madison office. Coad will be fielding his first oral argument before the Court next week.

Gun Statute at Issue

The case centers on whether Coad’s client, James D. Logan, who was convicted in federal court of being a felon in possession of a firearm, should have received a 15-year minimum sentence as a so-called “armed career criminal” under the federal firearms statute. If the defense’s challenge is successful, Logan’s sentence won’t be more than four years, Coad said.

Under the statute, a defendant with a specified number of prior convictions can be deemed an armed career criminal, but the statute exempts convictions for which a defendant has civil rights restored, Coad said. Three of Logan’s prior convictions were misdemeanors under state law, for which he did not lose civil rights.

Since the plain language does not contemplate a situation in which a defendant’s rights were not taken away in the first instance, there is a gap, Coad said, so a key question is whether it is inequitable to apply the minimum sentence to those who, like Logan, never lost civil rights, while exempting those who lost rights but had them restored.

“We rely on the absurdity doctrine, which is really another way of saying, ‘This doesn’t make any sense, to apply the statute in this way,’” Coad said.

The Seventh Circuit, in an opinion authored by Judge Easterbrook, ruled against Logan’s challenge to the 15-year-minimum sentence. The Supreme Court granted certiorari in February.

The case raises questions that go beyond statutory interpretation, Coad said.

“The overriding issue in this case is one of federalism, really – the federal gun statute trying to define a ‘qualifying conviction’ based on state law,” he said.

In the Limelight – and the Library

The call announcing that the Supreme Court was taking the case surprised the defense team, because the Court grants so few certiorari petitions, Coad said.

It was also exciting news for Logan, he said.

“I think all clients have this hope that something remarkable is going to happen to help get them out of a dire situation, and it happened for him,” Coad said.

But for Coad and Brian Fahl, an attorney with Federal Defender Services of Wisconsin’s Milwaukee office who is a writing specialist and who has been involved with the case since it was in district court, the buzz after the grant of certiorari soon gave way of necessity to the more tedious task of researching and writing the initial brief.

“There are a million cases, and you need to find the nuances that might be an answer for you,” Coad said. “We read every case in the Supreme Court that cited any of the pertinent sections of the gun statute.”

In the Supreme Court, Fahl said, broader questions concerning policy may well determine the outcome of a case, and that means that arguments must be developed differently than in district court or the court of appeals.

“You can’t just take your court of appeals brief and tweak that,” Fahl said. “You really have to start all over and examine things from the top down.”

Once they had the first draft of the brief, the editing process was intense, they said.

An attorney with Sidley Austin LLP, which often assists federal defenders pro bono in Supreme Court cases, helped edit the briefs and is assisting in the preparation for oral argument, Coad said. So are some other nationally known attorneys who have experience or knowledge related to the issues in the case.

“You get on these conference calls with some of the best appellate lawyers in the country and you think that you are going to be overmatched at first, but really, you are more familiar with the issue than they are and they’re turning to you to see where things are going,” Fahl said.

“It’s an affirming experience.”

Heading to Hallowed Halls

For Coad, who is just three years out of law school, the litigator’s grail – an oral argument in the Supreme Court – will soon be in his grasp.

“You get to go to Washington and actually walk into the Supreme Court, and there’s going to be a chair waiting for you there,” he said. “That’s fun. That’s something you really don’t ever expect is going to happen to you.”

Fahl started with Federal Defender Services of Wisconsin at the same time as Coad, after clerking for two years, Fahl said. Along with former Federal Defender Dean A. Strang, Fahl assisted Madison lawyer T. Christopher Kelly in another Supreme Court argument in U.S. v. Booker, the landmark 2005 case in which the Court eliminated the mandatory aspect of the Federal Sentencing Guidelines.

Logan will be the third Supreme Court case in which attorneys with Federal Defender Services of Wisconsin will play a role. Strang, assisted by Brian P. Mullins of the Milwaukee office, argued there in 2001, less than a year after the non-profit charitable organization, which is dedicated to serving clients who cannot afford to hire a lawyer in federal criminal cases, opened its doors.

Coad and Fahl will head to Washington a week before the Logan argument to stay in a hotel a few blocks from Sidley’s D.C. location, where they will have an office for the week. They hope to get into the Supreme Court the day before to watch an argument, Coad said.

But despite the heady aura surrounding the oral argument, the preparation still requires intense effort: It’s important to be utterly conversant with the case, and not only with the complex legal arguments, but also with the facts in detail, according to Fahl.

“You can’t leave even a single stone unturned, even the things that you think are so basic,” he said.

The preparation also includes reviewing transcripts of other Supreme Court arguments, and Coad will face at least five moot courts – including sessions at Marquette University Law School, Northwestern University School of Law, The University of Chicago Law School, and Georgetown University Law Center – before the oral argument itself.

“What we expect to have done is to have heard every question that
the Supreme Court will ask before we ever go there, and then have good answers to those questions,” Fahl said.

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