Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, November 13, 2017

Arguing a Difficult Case Effectively

This is a guest post from Judd Lindenfeld.  Judd is a litigation and white-collar associate at Wiggin and Dana LLP, a Connecticut law firm.

Three weeks ago, Howard Bashman created a bit of a stir among people who follow appellate law when he posted on his blog, How Appealing, that he would be arguing a sentencing appeal in the Second Circuit. Over the last fifteen years he has been posting, Bashman has become famous to a good many lawyers and judges alike.  Indeed, Bashman posted after oral argument that he was greeted afterwards by a person in the audience who brought his mother too.

But what lessons can we learn from a lawyer who has dedicated his career to appellate argument?

First, the facts of the case.  Bashman was representing Rudell Mullings, a former federal correctional officer who raped a female inmate.  The woman told a fellow inmate and later contacted a special agent with the Bureau of Alcohol, Tobacco and Firearms (for whom she was an informant).  DNA lab results later confirmed that there was ejaculate on Doe’s sock and underwear that matched Mullings’s DNA.

In November 2015, Mullings pled guilty to sexual abuse of a ward, a federal crime that carries a maximum sentence of fifteen years’ incarceration.  According to the Presentence Investigation Report, however, Mullings faced a sentencing range of 12 to 18 months.

Senior U.S. District Judge Edward Korman sentenced Mullings to 84 months.  In giving a sentence over four times the maximum range (and seven times the lower range), the Court stated that the guidelines did not “really reflect the nature of the crime.”

Judge Korman twice referred to New York state law.  For example, at the end of his sentence he stated that “the sentence I gave him is actually above the minimum for rape in New York which is five years, but I think is appropriate under the circumstances.”

Bashman’s argument on appeal was that the district court erred by relying on state law and the case should be remanded for a new sentencing proceeding.

But to get to that conclusion, Bashman conceded that he had three hurdles to overcome.  First, he had to convince the Second Circuit that it was impermissible for a district court to rely on state law.  Second, that the district judge actually relied on state law.  Third, that the standard of review was harmful error, not plain error.

This was an uphill climb – to put it mildly.

Bashman’s strongest argument was that federal law should be uniform – a federal crime committed in New York should receive the same sentence as the same crime committed in Michigan or California. Indeed, this is a well-accepted proposition in a number of other circuits.

Bashman asked the Second Circuit “to go further than it has gone thus far” and agree with those courts. The irony of his argument (which he pointed out) is that it is the defendant who typically asks the judge to consider state law during sentencing, especially in drug and firearm possession cases. When asked if his position was fair to future defendants, Bashman quipped: “Well Your Honor, I’m only a lawyer for this particular person.” The discussion ended there. (He argued later that his position would actually benefit future defendants).

Bashman freely conceded the weaker points of his argument. For example, he acknowledged that one of Judge Korman’s references to state law was by itself innocuous. He also agreed that his argument would be stronger if Judge Korman had referred to state law in his written explanation for the sentence. The effect of these concessions? It lent credibility to the point that he held firm on: that Judge Korman’s statements, taken together, proved that he relied on state law when sentencing Mr. Mullings.

Finally, Bashman made (in the words of one panelist) a “cleverly, very narrow” argument for harmless error review. He conceded that his client’s trial counsel did not raise the issue of state law at sentencing, but argued that Judge Korman’s reliance on state law was so unusual that the defendant should have been notified before the hearing.

Bashman's argument in this case provides us with an example of an effective oral argument. Whether his client prevails or not, Bashman made a persuasive argument, using the facts and the law in creative—but not unreasonable—ways. On a personal note, I look forward to reading the opinion.

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