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The Sullivan Argument

Now this is really sweet. The Sullivan case contains a major jurisdictional question of whether the state court decision rests on independent state grounds. Counsel for Sullivan, Bryan Stevenson, completely ignored that question in his principal brief on the merits. The State addressed it in their brief, and so did CJLF in our amicus brief. In his reply brief, Stevenson finally addressed the point.

On the first page of his argument, Stevenson only gets two sentences out on the point he really wants to argue before Justice Ginsburg cuts him off and directs him back to jurisdictional point. Then he takes fire from her and Justices Sotomayor, Scalia, Kennedy, and Alito (i.e., a majority) for the next ten pages before he is able to say another word about the underlying question.

But Justice Ginsburg isn't finished with him. When he comes back for rebuttal, there is this on page 48:

JUSTICE GINSBURG: I thought, in your cert petition, which I don't have with me, you raised the question of the adequate State ground in the second question.

MR. STEVENSON: We did -- well, what we raised was that, without this Court intervening, that people like Joe Sullivan would likely never get review. Our point was that, without an intervention from this Court, people like Joe Sullivan -- there hasn't been a sentence like --

JUSTICE GINSBURG: But there was a question that you raised, and then your opening brief doesn't discuss it at all. Your reply brief responds to the State and then brings up something in a footnote that the State doesn't have a chance to answer.

That doesn't seem, to me, a very sound way to approach a question that you, yourself, raised.

If you represent the defendant, you really need Justice Ginsburg, and she doesn't take kindly to playing these kinds of games.


Doesn't Stevenson advocate gumming up the works in capital cases? If so, this trickery is par for the course.

Gamesmanship and trickery by the defenders of the downtrodden seems to be taking a hit in the USSC these days. Too bad!

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