Appellate Advocacy Blog

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

Wednesday, February 26, 2020

Remarkable audio from the Third Circuit

I write this as I prepare to help administer the San Francisco regional tournament of the 2020 American Bar Association's National Appellate Advocacy Competition. Thirty-two teams from law schools around the country will participate, and on Saturday we'll emerge with four regional champions who will punch their tickets to the national finals in Chicago. 

This year's problem is about prosecutors: the advocates are arguing two issues about the scope of prosecutors' obligation under Brady v. Maryland to disclose exculpatory evidence. And, lately, when I think about prosecutors, I think about the remarkable piece of audio I reference in the title of this post.

It is oral argument audio. But there is no argument. As Matthew Stiegler describes in this post to his excellent CA3blog, the case is Fisher v. Commissioner, a habeas matter arising out of a forty year-old murder. Robert Fisher was convicted (after a retrial) of first-degree murder in 1991 and sentenced to death (after a resentencing) in 1996. His habeas action, which dates back to 2003, asserted constitutional infirmities at both the guilt and sentencing phases.

And he won. Last July, the district court granted Fisher's petition. The state appealed to the Third Circuit. The case was briefed, and the Third Circuit granted oral argument. And then, at oral argument in mid-January, this happened:

JUDGE RESTREPO: This is Fisher versus Commissioner. Sir, my understanding is that you wanted to tell us something?

COUNSEL FOR APPELLANT: May it please the court, my name is Bob Falin. I'm with the Montgomery County D.A.'s office.

I no longer believe that the lower court committed error. I spent the past few days working on the case, reading the briefs, doing research, and as the hours passed the less and less comfortable I became with our position. And it dawned on me that if I, as a career prosecutor, was not feeling good about these arguments, then perhaps it was not appropriate to come and stand before the Court and argue and advocate for them. So I am conceding that, I now believe there was no error below.

At this point—and please do listen—one can almost hear the panelists' jaws drop and eyes go wide.

COURT: You're asking us to affirm the district court?

COUNSEL: Yes, your Honor.

COURT: Across the board?

COUNSEL: Yes, your Honor. 

And then the apology:

COUNSEL: And I apologize to the court for the inconvenience. I know the court put many hours into it. But sometimes, in prepping for arguments, I get to have a deeper understanding of the case, and sometimes, at least this case, I came to a different conclusion than I had. And I felt compelled to ... take a different position.

COURT: Your position, just to be clear, Mr. Fisher is entitled to a new trial.

COUNSEL: Yes.

Pause. The panel recesses to confer. Returns. Promises to quickly affirm (and, two days later, the judges delivered). Plaudits issue to Robert Falin, including this from Judge Bibas:

I think it’s in Berger v. United States, the Supreme Court talked about the prosecutor’s obligation not to be winning cases but to see that justice is done. It’s not easy to come in and confess error. But we don’t reject wisdom when it comes late. And we thank you very much for your candor in bringing this to us. 

What strikes me about Mr. Falin's concession is this: if one reads the district court's thorough, nuanced opinion, one can see that the state has colorable arguments here, particularly because of the hellscape that is the Antiterrorism and Effective Death Penalty Act: deference under § 2254(d),  failure to develop the record under § 2254(e), harmless error, and so on. Colorable. But not ... just.

Here is a link to the Montgomery County D.A.'s Facebook page. It shows Robert Falin receiving the office's highest honor. It's five years old, but apparently it's an award that Mr. Falin keeps earning.

https://lawprofessors.typepad.com/appellate_advocacy/2020/02/remarkable-audio-from-the-third-circuit.html

Appellate Justice, Oral Argument | Permalink

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