Appellate Advocacy Blog

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

Friday, March 22, 2019

Appellate Advocacy Blog Weekly Roundup Friday, March 22


Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan Real a quick email or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at or a message on twitter @Danny_C_Leavitt

Supreme Court News:

The Court heard arguments this week in Flowers v. Mississippi, in which inmate Curtis Flowers argues that jury selection in his case violated the Constitution.  Flowers has been tried on six occasions for the 1996 murders of four people in a Mississippi furniture store.  The first two trials resulted in convictions and death sentences, but were reversed by the state supreme court on the basis of findings of intentional misconduct by the lead prosecutor.  The same prosecutor was also the lead on the subsequent four trials.  After the third conviction and death sentence, the state supreme court again reversed, specifically finding that the prosecutor had violated Batson v. Kentucky when striking African-American members from the jury pool.  The fourth and fifth trials resulted in deadlocked juries.  In the sixth trial, the prosecutor allowed a single African-American potential juror to be seated, but used peremptory strikes to strike all other African-American potential jurors.  That trial again resulted in a conviction and death sentence.

During argument, Justice Alito seemed skeptical that there was enough evidence to conclude that the sixth trial alone demonstrated a violation of Batson.  Justice Kavanaugh, however, noted that the history of the prior five trials could not be ignored and noted that throughout the six trials the prosecutor had stricken 41 of 42 African-American potential jurors from the jury pool.  The argument was notable in part because Justice Thomas, who had not spoken during oral arguments since 2016, asked a question.  On the whole, the tenor of argument suggested that Flowers likely had support from a majority of the Court to find a Constitutional violation.


Empirical SCOTUS had a post this week analyzing whether the Court has been tracking right or whether Justice Roberts has actually been tracking left.  According to the post:

"Although Roberts began his career on the Court significantly favoring to vote conservatively, this trend diminished over time to the point where in two terms, 2013 and 2014, Roberts actually voted in the liberal direction more frequently than he did in the conservative direction.  Since the 2014 term, Roberts’ has voted primarily in the conservative direction, but at a much less aggressive rate than he did earlier in his career.  This begins to paint the picture of, at least a less staunch ideologue."

State Court News:

In Wisconsin this week, a circuit court ruled that actions taken by the state's Republican legislature in late 2018 after Republican Governor Scott Walker was replaced with Democrat Tony Evers were unlawful and void.  After the election, the legislature scrambled to strip the incoming governor of power, calling a special session and revoking his ability to make a number of executive branch appointments, restricted incoming Democratic Attorney General authority, and slashed early voting across the state.  In the decision this week, the circuit court ruled that the session was convened in violation of the state constitution, rendering all of the actions null and void, vacating more than 80 last-minute appointments by outgoing Governor Walker.  An appeal is likely.


Practice Tips:

Silicon Valley trial firm McManis Faulkner had a post at its blog this week providing a handful of useful reminder tips about presenting oral argument to the appellate court.

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