The United States needs a Defender General—a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States. The Supreme Court is effectively our nation’s chief regulator of criminal justice. But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages. As compared to counsel for defendants, government lawyers—and particularly those from the U.S. Solicitor General’s office—tend to be more experienced advocates who have more credibility with the Court. Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate for the interests of their clients—even when they conflict with the interests of criminal defendants as a whole. The prosecution’s advantages likely distort the law on the margins.I haven't thought through all the pros and cons of a DG, but if we are going to have one, I nominate Michael Caruso.
If designed carefully, staffed with the right personnel, and given time to develop institutional credibility, a new Office of the Defender General could level the playing field, making the Court a more effective regulator of criminal justice. In some cases—where the interests of a particular defendant and those of defendants as a class align—the Defender General would appear as counsel for a defendant. In cases where the defendant’s interests diverge from the collective interests of defendants, the Defender General might urge the Court not to grant certiorari, or it might even argue against the defendant’s position on the merits. In all cases, the Defender General would take the broad view, strategically seeking to move the doctrine in defendant-friendly directions and counteracting the government’s structural advantages.
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Ummm....I would apply.
ReplyDeletezzzzzzzzzzzzzzzzzzzzzzzzzzzz
ReplyDeleteVery funny, that would be a joke.
ReplyDeleteI would nominate John Lipenski.
ReplyDeleteSo when Howard Srebnick got the Supreme Court to accept cert in his case, he should have stepped aside to let the Defender General argue his appeal for him?
ReplyDeleteWhere is John Lipinski??
ReplyDeleteSomebody called defender general arguing against a cert request by a defendant. Those two guys can go fuck themselves. Call the office backup prosecutor if you want, sounds more accurate.
ReplyDeleteAnytime these asshole 'Supreme Court Specialists' try to angle for more of their involvement and less of other peoples, they make me want to puke.
Or someone can make a nonprofit called the Defender General's Office, Inc., and just file a ton of amicus briefs.
ReplyDelete"Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate for the interests of their clients—even when they conflict with the interests of criminal defendants as a whole."
ReplyDeleteThat is the #1 reason why this is a horrible idea. Long-term victories for whom? Certainly not the client. You would have a criminal defendant whose life and/or liberty hang in the balance being represented by someone who may not have his best interest in mind. That violates the Sixth Amendment. It would likely support an IEAC claim under Strickland.
Unfortunately, a blog post is not the ideal vehicle for a nuanced discussion of the issue.
ReplyDelete