Amicus Curiae Brief — Miller v. United States (No. 06-643)

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No. 06-643

F Ate ACY DT c

In the Supreme Court of the Gnited States

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Seventh

Circuit

BRIEF AWICUS CURLAE OF NORTHWESTERN

UNIVERSITY'S CENTER ON WRONGFUL

CONVICTIONS AND OTHER

INNOCENCE PROJECTS IN SUPPORT OF

PETITIONER

STEVEN A. D

Center on Wrongful

Convictions

Northwestern Uni

School of hau

357 Kast Chicago

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Chicago, Illinois CO6TO 1?) S5S8-S76S

(372)508-3100

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QUESTION PRESENTED

Whether a federal court of appeals’ failure to hold oral

argument violates Federal Rule of Appellate Procedure

34(a)(2) and procedural due process where the dissenting

judge objects to the panel's summary treatment of the

appeal and explicitly states a desire for oral argument.

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TABLE OF CONTENTS

QUESTION PRESENTED 0oo.0cccccccccccccceccecceceeecceeceeeeseee:

TABLE OF AUTHORITIES o.oo. eccceceececccecceereoeees Wl

PONS RAS O TN wiscshcvedbtosacvacneenienicer eee. l

INTEREST OF AMICT CURIAB ooo.cccccccccccccccccccceccccccceccees. ]

STATMENT ........... seatpieveaueudevtesiénbetscsveruecdeaanurobebororedenons 3

SUMMARY OF ARGUMENT 000. ccceccccccccccccceccceecececeeeeee, 1

PUTRI Dt anacriiter alin ee ne 6

|. Federal appellate and post-conviction review plays

a vital role in the detection and reversal of

Wrongful CONVICTIONS. 2.0... ..ccccccccccccceeeecececececcceeecceccccc.. 6

Il. The increasing tendency of federal courts of

appeals to dispense with oral argument in cases

like this one diminishes the effectiveness of post-

conviction review and undermines the courts’

ability to vacate wrongful convictions. .................. 10

A. Oral argument promotes careful and accurate

judicial decisionmaking and increases the

fairness and transparency of the appellate

PEED succnseesdedeernsescds sence ndpduientmanedecedsionasieenticnsoan 1]

B. Federal courts of appeals are denying oral

argument with increasing frequency,

particularly on collateral review.......................... 15

C. The widespread demal of oral argument on

direct sev! collateral review increases the

likelifexiet that wrongful convictions will stand... 16

D. The demal of oral argument in this case

directly violated FRAP 34(a)(2) and was

otherwise inappropriate.

CONCLUSION...

idenhusdatlexvighatustbaskebaneel 18

dewenviuusdeaiiementias piace iegbnleeaeabeiigueetenactestedaeamane

TABLE OF AUTHORITIES

Page(s)

CASES:

Bousley v. United States,

Re tae Oe A I ci cvis oc cauncndicusseeioscnecuescenettoataasnisanseaan 7

Bowers v. DeVito.

GOS F 2k GiS CFU Cae. NOI) oncvnicciiscetetsscwsinscercssteniccsees 19

Gravatt v. Paul Revere Life Insurance, Co.,

No. 02-1 7028, 2004 WL... 1257716 (9th Cir.

NTI cs idus sontucsnseusncnauaneas cdavenouedradicriuaracndeesecsiscamuers suai 19

O'Neal v. McAninch, 513 U.S. 432 (1995) ...0...... 0c ee eeeeee 7

United States v. Lambert,

BES F.2e TE Geis Cie. VIR) oncecccecnccneccscccceseccsccseosessees 19

STATUTES AND RULES:

SE Ramco MIEN ots ca usacbucedaeyeacasebetdatadadelayibresneaebbecans 18, 20

i an On OI 5g) cca deahanusamenseubepneasesorcveneseel passim

Fe OS I tars evcescnsevecoscosensiececersviseseesrsepiens sneer passim

Fed. R. App. P. 34................ avieetlasddectecteasiaeneirenta passim

MISCELLANEOUS:

Mare M. Arkin, Rethinking the Constitutional

Right toa Criminal Appeal, 39 UCLA L. REV.

th: : RE ee Se naa Neen e nee ee nA 7

Thomas E. Baker, Intramural Reforms: How the

U.S. Courts of Appeals Have Helped

Themselves, 22 FLA. ST. U.L. REV. 913 (Spring

SD cist sticdsetsieceeaes Asean aiadadetiaukeasalsonasads passim

IV

Adele Bernhard, Effective Assistance of Counsel, in

WRONGLY CONVICTED: PERSPECTIVES ON

FAILED JUSTICE, ed. Saundra D. Westervelt

and John A. Humphrey, Rutgers University

OI, GI A wesitcstes Heavieteicicutte usd ca ee, 7

Myron H. Bright, The Power of the Spoken Word:

In Defense of Oral Argument, 72 TOWAL. REV.

FOP Ps MIO sivas doiadsctenceatnsaclihomensatinn 12, 16-17

Cecil & Stienstra, FEDERAL JUDICIAL CTR. 87-5........ 17, i9

Laisa Griffin, The Correction of Wrongful

Convictions: A Comparative Perspective, 16

AM. U. INT'L L. REV. 1241 (2001) ooo. cececceceeseeseeeeceees 2

Roger A. Hanson and Henry W. K. Daley, Federal

Habeas Corpus Review: Challenging Staite

Court Criminal Convictions, BUREAU OF

JUSTICK STATISTICS, NCJ-155504 (September

RUMEEE psschentccineteinkccccs caso eee eee 2

Hon. Joseph W. Hatchett & Robert J. Telfer, 11.

The Importance of Oral Argument, 33. STETSON

L. REV. 139 (Fall, 2008). .....00......cccccccccscceeecescecee, 11-12

Timothy R. Johnson, The Influence of Oral

Argument on the U.S. Supreme Court, AM.

POL. Sct. REV., Vol. 1000, No. 1....................... 11, 13-14

Judicial Business of the United States Courts.

2005 Annual Report of the Director.

Supplemental ‘Table S-1,

available at http:/www.uscourts.gov/judbus20

ORIOL AINE... ous scwurerceovearerecessecdedscccoecescccdcn 6-7, 15

V

James S. Liebman, Jeffrey Fagan, and Valerie

West, A Broken System, Part Ll: Error Rates in

Capital Cases, 1973-1995, 325

available at http://www.theyusticeproject.org/

press/reports/pdfs/Error-Rates-in-Capital-

Oe Rar te RE .... 0. «cc cceecdcsssunerescaseuvnd-ceutdeus, 8-9

Gilbert S. Merritt, Judges on Judging: The

Decisionmaking Process in Federal Courts of

Appeals, 51 OHIO STATE 1... 1385 (1990).......000ccccccccee- 2

Stanley Mosk, In Defense of Oral Argument, 1 J.

OF APP. PRACTICE AND PROCESS 25

(Winter 1999) .2...........ccccccccceeeeseeeeeee Sat RAR RAR MIE Soe 12-13

William M. Richman and William L. Reynolds,

EFlitism, Expediency, and the New Certiorari:

Requiem for the Learned Hand Tradition, 81

CORNELL L. REV. 273 (January 1996)... 16

Barry Scheck, Peter Neufeld, and Jim Dwyer,

ACTUAL INNOCENCE: WHEN JUSTICE GOES

WRONG AND HOW TO Make IT Ricurr 242

(New American Library, 2008) 0000000000000. a

Michael E. and Jane B. Tigar, FED. APPEALS

JURIS. & PRACTICE, § 10.1 (1997) ...000000 cece. ievsese hd

Patriaa M. Wald, Bureaucracy and the Courts, 92

YALE Lied. 1478 (1983) .............ccccccccccceescceseccccesceeeccesees 14

INTRODUCTION

This case is part of a growing and dangerous trend in

the federal courts a trend that threatens the ability of

criminal defendants and inmates to receive meaningful

appellate review of them convictions. It concerns the

practice of resolving appeals without oral argument, even

where not all members of the appellate panel agree that

the case should be resolved in that manner. ‘The Federal

Rules of Appellate Procedure specifically limit the

circumstances under which an appellate panel may

resolve a case without oral argument. The deeision of the

Seventh Circuit and others to ignore that limitation poses

serious concerns for criminal defendants who rely on

federal appellate and = collateral review to ensure

protection for their constitutional mghts. Amuicr submit

this bnef to alert the Court of the unique harm this

practice imposes on the wrongfully convicted. Amuci

respectfully urge this Court to intervene in this case to

protect the availability of oral argument under the

Federal Rules.

INTEREST OF AMICI CURIAE'

This bref us filed on behalf of Northwestern

University s Center on Wrongful Convictions, the Indiana

Innocence Project, the Wisconsin Innocence Project, and

kirst Defense Legal Aud.

Northwestern Universitys Center on Wrongful

Convictions was orgamzed in 1999 as a program of the

Bluhm Legal Clinic at Northwestern University Schoo! of

Law. The Center is partially funded by the School of Law

| All parties have consented to the filuez of this bnef Letters

evidencing such consent are on file with the Clerk No party or

counsel for a party authored this bnef in whole or in part, and

no persod or entity other than Amur and thei counsel has

made a monetary contribution to the preparation or submission

of this brief

»

but rehes on private funding for more than half of its

operating expenses. Dedicated to identifying and

rectifving wrongful convictions and other serious

miscarriages of justice, the Center investigates possible

wrongful convictions and represents imprisoned clients

with claims of actual innocence. The Center or members

of its staff have been instrumental in the exoneration of

ten men who were sentenced to death in Illinois. The

Center has a well-established tradition of researching the

prevalence, causes, and social costs of wrongful

convictions and advoeating reforms designed to improve

the accuracy and fairness of the criminal justice system.

The Indiana Innocence Project is a program of the

Law Chime at the Indiana University School of Law—

Indianapohs. The mission of the Law Clinic is to provide

representation to the underserved while advancing

justice. The School's Wrongful Conviction Component of

the Criminal Defense Clinic is a founding member of the

Innocence Network. Representation ts provided to

Indiana inmates challenging their convictions im. state

and federal courts based on newly discovered scientific

evidence and/or constitutional infirmity,

The Wiseonsin Innocence Project was founded in 1998

as a project in the Frank J. Remington Center at the

University of Wisconsin Law School. The Project provides

legal assistance to federal and state inmates in Wisconsin

and neighboring states who have provable claims that

they were wrongly convicted. Under the supervision of

attorneys, approximately 20 law students enrolled in the

program investigate and litigate claims of innocence on

behalfof prisoners.

Since its founding in 1995, First Defense Legal Aid

(@FDILA") has worked to protect civil mghts by offering

free twenty-four-hour legal representation and advice to

any individual taken into Chicago Pohee Department

3

custody until a public defender has been assigned by the

court system. If a station visit is necessary, FDLA

volunteers interview the arrestee, inform the arrestee of

his or her constitutional nghts, provide the arrestee with

bond information, and serve as a link between the

arrestee and his or her family.

Amici are uniquely well situated to advise the Court

on the importance of oral argument to the wrongfully

convicted and to those who believe their constitutional

rights were violated in their criminal prosecutions. Amict

are concerned that the increasing tendency of the federal

courts of appeals to dispense with oral argument in the

direct and collateral review of criminal convictions

diminishes the effectiveness of such review, flouts the

purposes of Rule 34, and undermines the courts’ ability to

detect and vacate wrongful convictions. Given their

extensive expenence representing the interests of the

wrongfully convicted, both on direet appeal and in federal

collateral proceedings, Amict have a substantial interest

in the outcome of this case.

STATEMENT

This case provides a dramatic illustration of the

dangers of dispensing with oral argument outside the

circumstances outlined in Rule 34. Thus, Amici offer the

following bref summary of the factual and procedural!

history in this case

During his trial on federal drug charges, Petitioners

trial counsel failed to provide timely notice of three alibi

witnesses who would have testified that Petitioner was

out of town on the day in question. Vet. 4° Counsel s

‘Pet _” refers to the Petition for a Writ of Certiorarn, which

was filed with this Court on November 6, 2006 “Pet. App

refers to the Appendix filed with the Petitioners Petition tor a

Writ of Certiorari

4

failure resulted in the exclusion of the alibi witnesses’

testimony. Lbid.

After he was convicted, Petitioner brought a petition

for collateral review under 28 U.S.C. § 2255 arguing, inter

alia, that his trial counsel's failure to provide timely

notice of the alibi witnesses constituted meffective

assistance of counsel. Pet. 6-7. The district court demed

the petition but issued a certificate of appealability as to

Petitioner's ineffective assistance claim, noting that it

could not “say that a reasonable judge would not make a

different decision” regarding that claim. Pet. App. I6a;

see also Pet 7. Petitioner tremely appealed the district

court's order denying his § 2255 petition to the United

States Court of Appeals for the Seventh Circuit. Pet. 7.

Without hearing oral argument, a divided panel of the

Seventh Cireuit issued an unpublished order summarily

affirming and adopting the district court's order. Pet.

App. la-l8a; see also Pet. 7. The dissenting judge

objected to the summary treatment of Petitioner's appeal,

noting that “the appeal cannot be considered facially

frivolous” and that “[iJ[ndeed, both parties have submitted

extensive and thoughtful bnefs.”. Pet App. 18a; see also

Pet. 8 The dissent also stressed that the district court's

opinion was not “totally responsive” to the Petitioner's

arguments on appeal and concluded that the panel did

not fulfill its obligation to this Court to adequately

explain its deeision. TJbid. The dissent concluded by

stating that he “would set this case for oral argument in

due course.” [bid.

SUMMARY OF ARGUMENT

Direct and = post-conviction review in the federal

appellate courts is an invaluable safeguard against

wrongful convictions. Direct appeals play a erntical role in

assuring the accuracy of criminal adjudications. Federal

‘ollateral review complements direct appellate review and

A

provides a vitally important mechanism for correcting

constitutional violations that cannot be adequately

addressed on direct appeal, including the ineflective

assistance of counsel. Procedural shortcuts that weaken

direct or collateral review in criminal cases -such as the

denial of oral argument—increase the likelihood that

wrongful convictions will be erroneously upheld on

appeal.

Oral argument enhances the rigor, accuracy, and

transparency of jucicial decisionmaking. It focuses the

attention of judges, challenges them to reflect critically

about ther preliminary assessments of a case, and forces

them to confer and to decide cases collectively. All of this

promotes careful and accurate judicial decisions. Oral

argument also gives litigants an invaluable opportunity to

re spond directly to the judges: concerns before the case ts

decided and to present their case i open court, thereby

promoting fairness, transparency, and — judicial

accountability. No amount of briefing can achieve these

important results. For all these reasons, oral argument

plays an important role in helping federal reviewing

courts to detect and vacate wrongtul convictions

Nevertheless, oral argument has become the exception

rather than the rule. Over seventy percent of criminal

appeals decided on the merits in the federal courts of

ippeals are now decided without oral argument. The rate

is even higher for appeals of habeas corpus clams

Although Rule 34 allows courts to dispense with oral

wgument under certain circumstances, the Rule requires

iil such decisions to be unanimous, thereby guaranteeing

ral argument if even one judge on the panel thinks 11

ippropriate. ‘This important safeguard was disregarded

in Mr. Miller's case, and this case is not alone. The

practice f{ denying oral argument under these

ircumstances contravenes the letter and spirit of Rule 34

ind increases the msk that a wrongtul conviction will be

6

summarily affirmed without receiving the careful,

sustained attention of a panel of judges.

This case amply illustrates the dangers of a hasty and

non-unanimous denial of oral argument. Mr. Miller's

appeal was not frivolous, and neither the district court

nor the Government treated it as such. To the contrary,

the district court granted Mr. Miller a certificate of

appealability, and the Government thoroughly and

carefully briefed the issues in the case. Despite the

serious arguments offered by Mr. Miller's counsel, the

Seventh Circuit adopted the analysis of the district court

without further analysis of its own. And in doing so, the

Court resolved Mr. Miller's claims in a manner that

conflicts with precedent in the Sixth Cireuit. As the

dissent explained, oral argument should not have been

demed under these circumstances.

ARGUMENT

|. Federal appellate and post-conviction review

plays a vital role in the detection and reversal of

wrongful convictions.

Direct and post-conviction review of federal criminal!

convictions 1s an invaluable safeguard against wrongful

convictions Mirect appeals “play a critical role in

assuring the accuracy of criminal adjudications.” Mare M

Arkin, Rethinking the Constitutional Right to a Criminal

ippeal, 39 U.C.L.A. L. REV. 508, 578-79 (1992). A

significant number of federal direct appeals lead to the

reversal of erroneous convictions. Jd. at 514-15. For

example in’ the twelve-month period ending on

September 380, 2005, cleven percent of the criminal

ippeals decided on the merits by the federal courts of

appeals resulted in reversals. See Judicial Business of

the United States Courts, Table B-5, available at

htt p://www.uscourts. gov jyudbus2005/appendices/b5.pdf

~

The reversal rate in the Third Circuit was over twenty-

four percent hid.

The complexity of contemporary criminal trials makes

a direct appeal from a federal criminal conviction all the

more important. Since the 1960s, constitutional criminal

procedure has become “increasingly intricate,” making tt

‘less likely that a single authority can generate an

accurate result.” Arkin, at 514-15, 574. Trial judges

must now rule on a myriad of complex procedural motions

that affect the outcome of a trial. Id. Moreover, the

complicated and difficult constitutional issues that are

frequently raised m contemporary federal criminal trials

‘enhances the likelihood of trial error * * * and the

corresponding need for corrective appellate process.” Id.

at 575. For all these reasons, procedural shortcuts that

abridge the mght to appeal “subject defendants to a

material msk of erroneous conviction.” Id. at 514-15.

As this Court has repeatedly recognized, federal

collateral review of state and federal criminal convictions

is an equally indispensable bulwark agamst wrongful

convictions. See, e.g., O'Neal v. MeAninch, 518 U.S. 482,

442 (1995) (a basic purpose of habeas corpus is to cure

“error of constitutional dimension the sort that risks an

unreliable trial outcome”); Bousley v. United States, 523

U.S. 614, 620 (1998) Cone of the principal functions of

habeas corpus fis] to assure that no man has been

incarcerated under a procedure which creates an

impermissibly large risk that the mnocent will be

convicted”) (citation and internal quotation omitted). Not

all fundamental trial errors are corrected on direct

appeal. Indeed, certam claims of constitutional

violations—such as claims of ineffective assistance of

counsel—cannot be adequately addressed on direct

appeal. Such claims usually require an evidentiary

hearing to prove non-record facts regarding the claimed

ineflectiveness, such as whether the defendant's lawyers

s

incompetently failed to find exculpatory evidence:

whether there existed a strategic justification for the

lawyers apparently unreasonable conduct; the extent of

the lawyers knowledge at the time, and so on.’ See Lisa

Griffin, The Correction of Wrongful Convictions: A

Comparative Perspective, 16 AM. U. INTL L. REV. 1241,

1272-73 (2001); James S. Liebman, Jeffrey lagan, and

Valerie West, 1 Broken System, Part Ll: Error Rates in

Capital — Cases, 1973-1995, 325 ~~ available at

http://www.thejusticeproject.org/ press/reports/pdfs/Error-

Rates-in-Capital-Cases- 1973-1995 pdf. Accordingly,

“{t]he correction of this type of error is * * * unlikely to be

accomplished on direct’ appeal,” and most ineffective

assistance claims “must be brought in a post-appellate

collateral attack proceeding which, in the federal courts,

means a federal habeas corpus proceeding pursuant to 28

U.S.C, § 2255.” Griffin, 16 AM. U. INTL L. REV. at 1272-

73.3

Claums of prosecutorial misconduct (e.g.. claums alleging that

prosecutors withheld or suppressed exculpatory information

from the defense) also require additional fact-finding and the

consideration of non-record evidence. Prosecutorial misconduct

is a factor in a substantial number of wrongful convictions and

is a common basis for reversal. See. e.g., James S. Licbman.

Jeffrey Fagan. & Valerie West. A Broken Svstem, Part Il Why

There Is So Much Error In Capital Cases, And What Can Be

—

Done About Jt, Questions About the Study at 7,

broken-system-part-1i-qa. html.

4 Ineffective assistance of counsel “is a significant cause of

wrongful convictions in the United States.” Griffin, 16 AM. U.

INTL L. REV. at 1272. A recent landmark study of wrongful

convictions found that “32 percent of the wrongfully convicted

had subpar or outright incompetent legal help.” Barry Scheck,

Peter Neufeld. and Jim Dwyer. ACTUAL INNOCENCE: WHEN

JUSTICE GOES WRONG AND HOW To MAKE IT RIGHT 242 (New

FF

A substantial number of unconstitutional convictions

and sentences are vacated on federal collateral review. In

the year 2000, 11.6% of all petitioners who brought claims

under 28 USC. § 2255 were successful. See

http://teddy. law .cornelLedu:8090/questev3. htm. The

success rate for such claims in the Seventh Circuit that

year wus twenty-eight percent. /bid. These statistics

\menean Library, 2003). Another study concluded that

ineffective assistance was the “primary cause of almost three

percent of all unjust convictions. Adele Bernhard. Effective

Assistance of Counsel, in WRONGLY CONVICTED: PERSPECTIVES

ON FAILED JUSTICE, ed. Saundra D. Westervelt. and John A

Humphrey, Rutgers University Press, 2001, at 237 n.20

(citation omitted) The problem is even more pervasive in

capital cases, where “incompetent lawyering’ is “by far and

away the most common basis for habeas reversal. Liebman, ef

a... A Broken System, Part Il; Why there Is So Much Error In

Capital Cases, And What Can Be Done About It, Questions

About the Study at 7 available at http://www _thejusticeproject

ese ceecsccocescccedscccvesucuecoss go

This webpage features a database of federal district-court

civil cases terminated from 1987-2000, searchable by type of

claim raised and disposition. The data were gathered by the

Administrative Office of the United States Courts, assembled

by the Federal Judicial Center, and disseminated by the Inter-

university Consortium for Political and Social Research.

The success rate for federal habeas corpus claims brought by

state prisoners in non-capital cases is lower than the success

rate for claims brought pursuant to § 2255. See Roger A.

Hanson and Henry W. Kk. Daley, Federal Habeas Corpus

Review: Challenging State Court Criminal Convictions, BUREAU

OF JUSTICE STATISTICS, NCJ-155504 (September 1995), at 17

(finding that federal courts “granted 1% of the issues” on the

merits in § 2254 habeas proceedings); http://teddy.law.cornell.e

du: 8090/questev}. htm (success rate in all federal districts for

claims decided in the vear 2000 was 3.5%). Although these

rates may seem comparatively low at first blush, it must be

10

confirm that federal collateral review plays a critical rol

in detecting and correcting fundamental errors and

violations of a defendant's constitutional rights—many of

which cannot be adequately addressed on direct appeal

This makes it a unique and indispensable tool for

preventing wrongful convictions

Il. The increasing tendency of federal courts of

appeals to dispense with oral argument in cases

like this one diminishes the effectiveness of

post-conviction review and undermines the

courts’ ability to vacate wrongful convictions.

Oral argument enhances the accuracy, fairness, and

transparency of judicial decisionmaking. It therefore

plays an important role in helping federal reviewing

courts to detect and vacate wrongful convictions. As

discussed further below, cases decided without oral

argument are more likely to be summaniy affirmed

without receiving careful, sustained attention by a pane!

of judges. This increases the risk that some wrongful

convictions will be erroneously upheld on appeal.

Nevertheless, federal courts of appeals now decide the

great majority of appeals without oral argument. This

trend is increasing, and it is particularly pronounced on

collateral review, The routine demal of oral argument

contravenes the purposes of Rule 34. Although that Rule

permits a pane] of judges to dispense with oral argument

in appropriate circumstances, it requires all such

decisions to be unanimous, ensuring that every case will

receive the attention deemed appropriate by the most

cautious judge on the panel. This important safeguard

was disregarded in Mr. Miller’s case, and this is by no

remembered that most state prisoners who bring claums under

§ 2254 have received a full round of state post-conviction review

before filing their federal claims under § 2254.

1]

means an isolated occurrence. The wholesale denial of

oral argument in this manner weakens federal reviewing

courts’ ability to detect and correct wrongful convictions.

Mr. Miller's case is a prime example of the erroneous and

prejudicial denial of oral argumeat.

A. Oral argument promotes’ careful and

accurate judicial decisionmaking and

increases the fairness and transparency of

the appellate process.

Oral argument increases the rigor and accuracy of

judicial decisions. As many judges have acknowledged,

oral argument “engages the attention of judges and

makes them think, question, discuss, and reconsider a

case as can nothing else, including able briefs and judicial

opllions on analogous points.” Calbert S. Merritt, Judges

on Jdudging: The Decisionmaking Process in Federal

Courts of Appeals, 51 Otto State LI. 1385, 1386-87

(1990). Beeause oral argument proceedings “come at a

crucial time” in the process—immediately before the

judges conter and vote on the case—oral argument has a

unique ability to “focus{] [a judge's] thought and

reflection” and “present the possibility for fresh

perspectives on a case.” Timothy R. Johnson, The

Influence of Oral Argument on the U.S. Supreme Court,

AM. PoL. Sct. REV., Vol. 1000, No. | at 99 (quotation

omitted): see also Merritt, 51 OHIO STATE LJ. at 1387.

In addition, oral argument is “an essentially collegial

function” that promotes debate and collective decision-

making by the judges. In effect, oral argument is “the

preliminary conference for deciding the case.” Hon.

Joseph W. Hatchett & Robert J. Telfer, III, The

Importance of Oral Argument, 32 STETSON. L. REV. 139,

142 (Fall, 2003). As “one of only two occasions on which

the judges get together to consider the case,” it “provides

an important forum for [the] interchange of ideas between

12

* * * the judges.” Myron Il. Bright, The Power of the

Spoken Word: In Defense of Oro! Argument, 72 lowa L.

Rev. 35, 37 (Oct. 1986); Stanley Mosk, In Defense of Oral

irgument, 1 J. OF APP. PRACTICE AND PROCESS 25, 26

(Winter 1999). Questions posed by one judge during

argument may stimulate the thinking of another judge on

the panel and may even “convince a doubtful colleague

who had previously indicated reservations to reach a

preferred conclusion.” /bid. As Senior Judge Frank Coffin

of the First Circuit Court of Appeals put it,

By their questions and comments to

counsel, judges telegraph their concerns

and preferences to other judges. Oral

argument is really the first stage of the

conferencing among the judges. How often |

have begun argument with a clear idea of

the strength or weakness of the decision

being appealed, only to realize from a

colleague's questioning that there was

more, much more to the case than met my

eye,

Mosk, | J. OF APP. PRACTICE AND PROCESS 27 (quoting

Hon. Frank M. Coffin, ON APPEAL: COURTS, LAWYERING,

AND JUDGING 132-33 (1994)).

Moreover, oral argument. gives counsel! an opportunity

to respond directly to the particular concerns that the

judges might have about the case. Justice Sealia aptly

characterized the practice of many judges when he said, “I

use [oral argument] to give counsel his or her best shot at

meeting my major «difficulty with that side of the case.

‘Ilere’s what’s preventing me from going along with you.

If you can explain why that’s wrong, you have me.”

Hatchett & Telfer, 33 STETSON. L. REV. at 142. Attorney

responses to such questions from the bench “may alter a

previous tentatively reached conclusion,” and may help

13

focus the judges on what counsel beleves are the

important facts and legal principles. Mosk, 1 J. oF AP

PRACTICE AND PROCESS at 27. In short, oral argument

“brings the specific decisional process into the open

“gives new insight into the judge's view of the case,” and

gives counsel an opportunity to respond to the judges

concerns. Michael E. and Jane B. Tigar, FED. APPEALS

JURIS. & PRACTICE, § 10.1 (1997).

This opportunity can be invaluable, particularly

because oral argument frequently “develops a new issue

overlooked or not adequately brmefed” by the parties

Mosk, 1 J. OF APP. PRACTICE AND PROCESS at 26

Comments made by the judges during oral argument

“may show the advocate that something vital is missing

from the briefs, or that an important piece of evidence has

been overlooked.” Tigar, FED. APPEALS JURIS. &

PRACTICE, § 10.1. In such cases, oral argument 1s

counsel’s only chance to respond to the judges’ concerns

before the case is decided, and it gives the court an

opportunity to order supplemental briefing on potentially

dispositive issues that were not initially briefed. [bid

The rigorous dialogue between judges and counsel and

between the judges themselves may well influence the

outcome of the case. Oral argument “help[s] [judges]

come to terms with what are often complex legal and

? Professor Johnson's comprehensive studies of oral arguments

presented before this Court demonstrate that the Court

frequently “uses oral arguments to obtain information beyond

that which is provided by the parties” in the briefs) Timothy R

Johnson, ORAL ARGUMENTS AND DECISION MAKING ON THE

UNITED STATES SUPREME COURT 55-56, State University of New

York Press, 2004. Indeed, Professor Johnson concludes that

“lajlmost 80 percent of all the * * * questions” posed by justices

during oral argument “refer to arguments that were not raised

in the{j briefs.” /d. at 126.

1

factual issues,” and strongly influences decisions on the

merits. Johnson, AM. POL. Sct. REV., at 112. In short.

oral arguments matter to the decision of the case.” /bid.

The opportunity to engage the judges directly in open

court is particularly important in vindicating the rights of

the wrongfully convicted. Oral argument is “the right to

be heard made concrete.” Merntt, 51 Otto STATE L. J. at

1387. Through oral argument, the wrongfully convicted

are given a chance to present their case directly to the

judges who will decide their fate, to answer their

questions through counsel, and to persuade them of the

injustice of their conviction. Oral argument also allows a

wrongfully convicted defendant to have his vowe heard in

open court, remforeing the appearance of a fair and open

appellate proceeding.* It also brings allegations of serious

trial error and unjust convictions to the clear light of day,

enabling members of the public to hear and understand

them. This promotes transparency in the justice system

and judicial accountability, which serves the interests of

the wrongfully convicted and the broader public.

8 This legitimizes the authority of the reviewing court and

promotes public confidence in the legal system) See Patricia M.

Wald. Bureaucracy and the Courts. 92 YALE LJ. LAT. 1484

(1983) (‘the faet that [judges] actually listen to, question. and

may be directly moved by litigants [during oral argument] ts

umperative to the respect the public grants [them] and the

authority that flows from that respect”), Thomas F. Baker.

Intramural Reforms: How the U.S. Courts of Appeals Have

Helped Themselves, 22 FLA ST UL. REV. 913. 919 (Spring

1995) (An important value of oral argument les in the

legitumating function of allowing the litigants to address the

decisionmaker face to face ”)

LD

B. Federal courts of appeals are denying oral

argument with increasing frequency,

particularly on collateral review.

Despite the obvious value and importance of oral

argument in the review of criminal convictions, it 1s now

the exception rather than the rule. Throughout the past

several decades, federal courts have been steadily cutting

back on oral argument. A study conducted in 1990 found

that between forty and fifty percent of appeals decided on

the merits by the federal courts of appeals were decided

without oral argument. Baker, 22 FLA. ST. U. L. REV. at

916. The study also found that when oral argument was

allowed, it was usually abbreviated—trequently to fifteen

minutes per side. Jd. at 917.

This trend is only getting worse. According to

statistics published by the Administrative Office of the

U.S. Courts, only 30.1% of all appeals terminated on the

merits in the federal courts of appeals during the twelve-

month period ending September 30, 2005 were decided

after oral argument, with 69.9% decided on the bniefs.

See Judicial Business of the United States Courts, 2005

Annual Report of the Director, Supplemental Table S-1,

available at http://Awww.uscourts.gov/judbus2005/tables/s |

pdf’ The rate is even lower for criminal appeals. Of

8.614 criminal appeals terminated on the merits during

that twelve-month period, only 2,436 (or 28.3%) were

afforded oral argument. ld., Appendix: Detailed

Statistical ‘Tables, ‘Table B-1A, 9 available at

This widespread increase in denials of oral argument

is particularly pronounced in appeals of federal habeas

claims. lederal judges consistently deny oral argument

* The rate of oral argument was lowest in the Fourth and

Eleventh Circuits (15.8% and 15.4%, respectively). /bid.

16

at a substantially higher rate in these types of appeals.

Of the 636 non-eapital habeas appeals actually decided on

the merits during the same twelve-month period, only 109

(or 17.1%) received an oral hearing. /bid. The remaining

82.9% were decided on the briefs. /bid. As noted, 30.1%

of all appeals (and over 28 percent of all criminal appeals)

are decided following oral argument. Thus, the appellant

in a habeas case is almost tioice as ltkelv to be denied oral

argument in a federal appellate court as the average

appellant.

C. The widespread denial of oral argument on

direct and collateral review increases the

likelihood that wrongful convictions will

stand.

The increasing tendency of federal courts of appeals to

decline oral argument on direct and collateral review of

criminal convictions undermines their ability to detect

error and increases the likelthood that they will

erroneously affirm wrongful convictions. Studies show

that cases decided without oral argument “are likely to be

affirmed and are affirmed at a higher percentage than

cases afforded an argument.” Baker, 22 FLA. ST. U. L.

REV. at 917; see also Bright, 72 loWA L. REV. at 43

(“nonargued cases almost invariably result in an

affirmance of the district court’s decision”); William M.

Richman & William [L,. Reynolds, Flitism, Expediency,

and the New Certiorari: Requiem for the Learned Hand

Tradition, 81 CORNELL L. REV. 273, 280-81 (January

1996). This ts not surprising, because cases that are not

argued do not receive the sustained, focused attention

from an entire panel of judges that argued cases receive.

Unlike a case which has received oral argument, “no

collegial conference between the judges accompanies the

disposition of the nonargument case.” Rather, non-

argument cases are typically “pre-assigned to the lead

17

judge.” Bright, 72 lowa L. Rev. at 13. This “makes it less

likely that the panel wall focus on the case at the same

time, Baker, 22 FLA. ST. U. L. Rey. at 922, and ut

increases the likelihood that the resulting opinion wall be

‘essentially the product of one judge and that judge's

staff” rather than the considered judgment of the entire

panel. Bright, 72 lowa L. REV. at 43; see also Baker, 22

FLA. ST. ULL. Rev. at 922-23. Indeed, even the judge to

whom the non-argued case is assigned is likely to devote

less attention to the case than he would if it were argued

and to rely more on staff attorneys than he otherwise

would. Cee & Stienstra, FEDERAL JUDICIAL CTR. 87-5,

at 68; Baker, 22 FLA. ST. U.L. Rev. at 922.

In addition, non-argued cases do not benefit from the

“free interchange of ideas pursued at oral argument,”

which “increases the court's ability to reach the right and

just result.” Bright, 72 lowa L.. REV. at 38. And deciding

an appeal without oral argument makes judges “less

accountable to litigants, and decreases the visibility of the

appellate process.” Baker, 22 FLA. ST. U. L. REV. at 922.

For all these reasons, the wholesale denial of oral

argument mukes it more likely that some wrongful

convictions will be erroneously affirmed on appeal. This

“represents a profound threat to a critical part of the

appellate function.” /bid. \ndeed, one commentator has

concluded that “the design of the system has been

compromised, severely and = profoundly, and possibly

irretrievably, by such proportionally high rates of denial

of oral argument.” /d. at 920. At a minimum, the courts’

current practice of denying oral argument in the majority

of appeals contravenes the purpose of Rule 34) by

“revers|[ing] the presumption in favor of oral argument in

every appeal to what amounts to a de facto presumption

that most appeals can be decided without oral argument.”

Id. at 923. As one commentator aptly noted, this practice

18

renders Rule 34's promise of oral argument “Orwellian.”

Thid.

The pernicious effects of the routine denial of oral

argument are likely to be greatest in appeals of federal

habeas cases. As noted, federal courts deny oral

argument at a substantially higher rate in these types of

appeals. Thus, these cases are even less likely to benefit

from the focused judicial attention that oral argument

brings. This diminishes the effectiveness of collateral

review and further increases the msk of wrongful

convictions.

In addition, the widespread denial of oral argument in

appeals of federal collateral proceedings 1s particularly

inappropriate, because such appeals have already been

determined to be non-frivolous by at least one federal

judge. The federal post-conviction statutes contain a

screening procedure designed to preclude frivolous

appeals. A federal district court's denial of a petition for

collateral relief under § 2254 or § 2255 may not be

appealed unless cither the district court or the court of

appeals first issues a certificate of appealability, which

may be issued “only if the appheant has made a

substantial showing of the denial of a constitutional

right.” Id. §& 2253(c)(1)-(2). Appeals that pass this

statutory screening procedure (like Mr. Miller's) have

already been determined not to be frivolous. Under these

circumstances, it is particularly mappropriate to deny

oral argument.

D. The denial of oral argument in this case

directly violated FRAP 34(a)(2) and was

otherwise inappropriate.

Even if it is appropriate to limit oral argument in

certain cases, denying oral argument was clearly wrong in

Mr. Miller's case. This is true for several reasons. First,

the panel's denial of oral argument in Mr. Miller's case

1

directly flouted Rule 34. Rule 84 guarantees oral

argument unless “a panel of three judges who have

examined the bnefs and record unanimously agree that

oral argument is unnecessary|.|” Fed. App. Civ. P.

34(aX2) (emphasis added). It therefore gives a single

judge the right to require the panel to hear oral argument

even where the remaining judges on the panel think it

unnecessary. This “assures that each case receives the

attention thought appropriate by the most cautious judge

on the panel.” Cecil & Stienstra, FED. JUDICIAL CTR. 87-

5, at 161; see also Pet. at 12. Nevertheless, the panel in

this ecase_denied oral argument even though one member

of the panel expressed a preference for oral argument and

dissented on that basis. This is a clear violation of the

plain terms of Rule 34.

The Seventh Circuit's violation of Rule 34 in this case

is by no means an isolated occurrence. Several other

federal appellate panels have denied oral argument over

the objections of a dissenting judge who expressed a

desire for oral argument. See, e.g., Gravatt v. Paul Revere

Life Ins., Co., No. 02-17028, 2001 WL. 1257716, at *67 (9th

Cir. 2004) (Wallace, J., dissenting); United States v.

Lambert, 963 2d 711, 719 (5th Cir. 1992) (Wisdom, J,

concurring and dissenting); Bowers v. DeVito, 686 ko2d

616, 619 (7th Cir, 1982) (Wood, J., dissenting). But such

cases may represent only the tip of the iceberg. Because

violations of the Rule come to light only in the rare cases

involving written dissents, as in Mr. Miller's case, we

have no way of knowing for certain how frequently such

violations occur. However, a recent study that examined

federal circuit court screening procedures for oral

argument suggests that violations of the spint -f not the

letter —of Rule 34 may be common. That study found that

the decision whether to grant oral argument was in

practice driven more by the individual circuit judge's

“attitudes toward oral argument” than by the court's

20

formal screening protocol, and that “many judges share a

concern that there is a kind of judicial peer pressure in

screened appeals making them reluctant to state a

preference for oral argument.” Baker, 22 FLA. ST. U. L

REV. at 921-22.

Second, as noted, Mr. Miller's appeal passed the

rigorous initial screening under § 2253(c). In issuing a

certificate of appealability, the district court stated that it

could not “say that a reasonable judge would not make a

different decision” regarding Mr. Miller's ineffective

assistance of counsel claim. Pet App. 16a. Thus, it was

inappropriate for the panel to assume that Mr. Miller's

claim did not. merit oral argument, particularly in light of

the dissenting judge's statements to the contrary

Third, the issue presented in Mr. Miller's appeal was

manifestly not frivolous. As Mr. Miller argued in his brief

on appeal, the Seventh Cireuit’s resolution of his claim

Was inconsistent with authority from another circuit. See

Pet. 15-18 The Government did not treat Mr. Miller's

appeal as frivolous or suggest that it was eligible for

summary disposition. Indeed, as the dissent noted, both

Mr. Miller and the Government carefully and thoroughly

briefed the issue. In sum, both parties gave careful

consideration to the appeal in their briefs, and the appeal

deserved a correspondingly careful review by the Court,

including oral argument.

For all these reasons, this Court should grant Mr,

Millers Vetition for Certiorars to enforce the

requirements of Rule 34(a)(2) and to prevent the

increasingly widespread violations of the Rule.

CONCLUSION

For the foregoing reasons, the undersigned Amici urge

this Court to grant Mr. Miller's Petition for Certiorari.

STEVEN A. DRIZIN

Center on Wrongful

Convictions

Northwestern University

School of Law

357 East Chicago Avenue

Chicago, Illinois 60610

(312)503-3100

February 2007

Respectfully submitted,

LINDA 'T. COBERLY

Counsel of Record

GENE C. SCHAERR

STEVEN J. WINGER

Winston & Strawn LLP

35 West Wacker Drive

Chicago, Illinois 60601

(312) 558-8768