<< D'oh, Never Mind | Main | News Scan >>

Briefing Everything Including the Kitchen Sink

| 1 Comment
In capital cases, it has been common practice for years to intentionally bog down the system by briefing every conceivable issue, with a few inconceivable ones tossed in for good measure.  This disease seems to be spreading to noncapital cases as well.  Judge Aldisert of USCA3 lets appellate defense counsel have it with both barrels in United States v. Bansal, No. 06-1370, a drug-trafficking case.  (Hat tip, Orin Kerr at VC.)
Akhil Bansal and Frederick Mullinix appeal from their jury convictions in the United States District Court for the Eastern District of Pennsylvania on a 42-count indictment alleging crimes arising from their multi-national, internet-based, controlled-substance-distribution scheme. They have, in our estimation, challenged every decision of the District Court, at almost every moment of the litigation before, during, and after their convictions. Yet in the more than 1,100 pages of briefing submitted to us by both defendants and the government, we have identified not a single instance of reversible error. That the prior rulings and findings in this case have emerged from such an onslaught wholly intact represents no small achievement by the District Court, whose decisions we will affirm in all respects.1

1 We note at the outset that Bansal's and Mullinix's briefs raise approximately 75 issues for our consideration. Although the government responds by calling to our attention no fewer than 339 cases drawn from the span of more than 120 years (as well as 49 separate statutes and one book, for good measure), we reject any implication that we should pick up their torch and embark upon a similar adventure ourselves. We address only those issues we deem worthy of discussion, and only to the extent we deem necessary to explain our reasoning.

In Jones v. Barnes, 463 U.S. 745 (1983), the Supreme Court addressed and unequivocally rejected the claim that effective assistance requires briefing every conceivable issue.  Not only is it not required, it is not good advocacy.  "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues."  Id., at 751-752.  "A brief that raises every colorable issue runs the risk of burying good arguments ...  in a verbal mound made up of strong and weak contentions."  Id., at 753.

And no, death is not different.  See Smith v. Murray, 477 U.S. 527, 536 (1986) (applying Jones v. Barnes to a capital case).

1 Comment

Leave a comment

Monthly Archives