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In the question presented in the petition for writ of certiorari in Bell v. Kelly, argued today in the U.S. Supreme Court, Richard Bress of Latham and Watkins referred to the claim in federal court as being "predicated on evidence of prejudice the state court refused to consider...." Right out of the gate in today's argument, Justice Alito wanted to know exactly what evidence the state court refused to consider. "No, Your Honor. The State court did not refuse to consider evidence proffered to it.... The State court refused to permit the evidence to be fully developed, Your Honor. They didn't refuse to consider evidence." That is a completely different thing. Bress misrepresented the case to the Supreme Court and blew his credibility.

That isn't just bad advocacy, it is abysmal. And no, death is not different. Big name firms that want to do these capital cases should take care that they do not stain their own reputations in the process.

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There are no adverse consequences to misrepresentation unless the prevaricator is labeled as such by the Court. Absent that labeling, the prevaricator is rewarded for misrepresentation.

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