Investigating Gideon's legacy in the U.S. Courts of Appeals.

• Author: Hughes, Emily
• Position: Symposium on Gideon v. Wainwright

ESSAY CONTENTS INTRODUCTION I. JUDGES' PRIOR LEGAL EXPERIENCE AND CURRENT CASELOADS A. Prior Legal Experience of Federal Appellate Judges B. Federal Appellate Caseloads II. WHY IT MATTERS A. Procedural Justice in an Era of Mass Incarceration B. Hypothesizing the Import of Prior Criminal Defense Experience on Judging CONCLUSION INTRODUCTION

Scholars have discussed the dearth of resources for public defenders and court-appointed attorneys representing indigent criminal defendants, (1) as well as the surprisingly low level of lawyering that has passed muster under the two-pronged analysis for ineffective assistance of counsel set forth in Strickland v. Washington. (2) Indeed, David Cole has written that "the real story of the right to counsel is not Gideon's, but that of David Leroy Washington," (3) because "Washington's case, Strickland v. Washington ... determined the actual content of the right to counsel for the poor." (4) Even as Strickland establishes that "the right to counsel means the right to effective assistance of counsel," (5) Strickland's standard of effectiveness, as Cole observes, is one that "virtually assures that the poor are not in fact guaranteed competent representation." (6) Due to state and federal rules regarding when to raise ineffective assistance of counsel claims on appeal, convicted offenders usually raise ineffective assistance of counsel claims in postconviction petitions for relief under state and/or federal habeas corpus statutes ("quasicriminal" cases) rather than in direct criminal appeals. (7) While Strickland's ineffective assistance of counsel test remains the test to assess whether a convicted offender received competent counsel, the Supreme Court grants certiorari in very few ineffective assistance of counsel cases. Over the years, scholars have analyzed the Supreme Court's ineffective assistance of counsel cases and have continued to critique the Strickland regime's ability to uphold the promise of Gideon. (8)

This Essay takes a different path. It investigates the legacy of Gideon by examining the de facto courts of last resort for litigants claiming ineffective assistance of counsel: the federal courts of appeals. Through a review of published biographical information for all federal judges currently serving in active or senior status on the U.S. courts of appeals, Part I reveals that (1) very few federal appellate judges worked in criminal defense before they became judges despite the fact that (2) half of the caseload of the federal appellate courts consists of criminal or quasicriminal (e.g., ineffective assistance of counsel) cases. Part II employs two lenses to examine the critical role that federal appellate judges serve in reviewing a convicted offender's appeal. First, the lens of mass incarceration highlights the procedural justice role of federal appellate judges and suggests such a role is especially vital when criminal convictions and the laws affecting convicted offenders are severely stratifying U.S. citizens. (9) Next, the Essay uses the lens of social science literature to posit that the experience a person had working in criminal defense or criminal prosecution before becoming a federal appellate judge may affect that person's ultimate assessment of the merits of a convicted offender's appeal. The Essay calls for further research to investigate whether federal appellate judges' prior experience in criminal defense or prosecution may affect their determination of the merits of a criminal conviction.

1. JUDGES' PRIOR LEGAL EXPERIENCE AND CURRENT CASELOADS

   This Part examines the published biographical information for all federal appellate judges currently serving in active or senior status and statistics on the kinds of cases they routinely hear. Section I.A begins with the federal courts of appeals, examining the professional experiences that federal appellate judges brought with them to the bench. It then compares the prior professional experiences of current federal appellate judges to the prior professional experiences of current U.S. Supreme Court Justices. Section I.B discusses the number of cases for which the Supreme Court granted a writ of certiorari in 2011 and compares that number to the number of cases filed in the courts of appeals in 2011. Section I.B concludes by discussing the percentage of criminal and quasicriminal appeals within the federal courts of appeals' overall caseload.

   1. Prior Legal Experience of Federal Appellate Judges

      Congress has authorized a finite number of federal appellate appointments for judges in active service, as opposed to judges with senior status. (10) Within the U.S. courts of appeals, both active and senior status judges sit on the eleven numbered circuits, the District of Columbia Circuit, and the Federal Circuit. (11) Because of vacancies in the courts of appeals, (12) this Essay researched a total of 227 federal appellate judges currently working in active or senior status. (13)

      While federal appellate judges have diverse employment histories, including experience as judicial law clerks, private practitioners, and law professors, almost all federal appellate judges share one thing in common: before they became federal appellate judges, they were not public defenders. Of the 227 federal appellate judges currently serving in active or senior status in the eleven circuits and the District of Columbia, only four worked as public defenders before their current judicial appointments. (14) Eight represented criminal defendants in some capacity while they were private practitioners. (15) In contrast, eighty-six worked as prosecutors. (16)

      Judges who were former prosecutors bring critical experience that helps them assess the merits of a criminal appeal, including an evaluation of both prongs of Strickland's ineffective assistance of counsel test: (1) whether counsel's performance fell below an objective standard of reasonableness, and (2) whether counsel's performance gave rise to a reasonable probability that, if counsel had performed adequately, the result of the proceeding would have been different. (17) Because prosecutors have vast experience assessing the strength and weaknesses of criminal cases--including deciding what offenses to charge and how to exercise prosecutorial discretion, which cases to take to trial and which cases to plead, how to develop a theory of the case, how to examine witnesses, and how to attack defenses--former prosecutors bring a keen eye to evaluating criminal appeals and ineffective assistance of counsel claims. (18) As useful as this prior prosecutorial experience may be, however, the perspective of a former prosecutor comes from only one side of the courtroom. When it comes to upholding the promise of Gideon by ensuring that criminal defendants receive competent counsel, today's courts of appeals have few judges who have represented criminal defendants.

      Moreover, this lack of former criminal defense attorneys on the federal appellate bench does not improve as one proceeds to the Supreme Court, which also lacks Justices who have represented an individual criminal defendant at trial. None of the nine Justices serving on the Supreme Court, now or since the retirement of Justice Marshall, has stood in the well of a courtroom and represented an individual criminal defendant at trial. (19) Justice Ginsburg represented individual civil clients on appeal (not at the trial level), and she did not represent criminal defendants. (20) Justice Sotomayor brought experience as a former prosecutor, but in that capacity she represented the government and not individual clients. (21) Similarly, when Justice Thomas served as Assistant Attorney General of Missouri, he began in the criminal appeals division, so he brought prosecutorial appellate experience but no experience representing an individual criminal defendant at trial. (22) Chief Justice Roberts's experience includes serving as Special Assistant to the Attorney General in the U.S. Department of Justice during the Reagan administration, and then as Principal Deputy Solicitor General during the George H. W. Bush administration. (23) Justice Breyer was also a prosecutor, including appointments as Special Assistant to the U.S. Assistant Attorney General for Antitrust and Assistant Special Prosecutor on the Watergate Special Prosecution Force. (24) Justice Scalia's, Justice Kagan's, and Justice Alito's backgrounds also include working for the government: Justice Scalia as an Assistant Attorney General, Justice Kagan as Solicitor General, and Justice Alito as U.S. Attorney for the District of New Jersey. (25)

   2. Federal Appellate Caseloads

      Although the Supreme Court is the court of last resort, it grants very few petitions for certiorari each year relative to the number of cases the courts of appeals review. For example, the Supreme Court granted certiorari in seventy-five cases during the 2011 term. (26) Of those seventy-five cases, none arose from the Eighth Circuit, and the remainder arose from the other federal appellate courts as follows: two each from the First, Second, and Fourth Circuits; three each from the Fifth and Seventh Circuits; four each from the Tenth and Eleventh Circuits; five from the Sixth Circuit; seven from the Third Circuit; and twenty-four from the Ninth Circuit. (27)

      The seventy-five cases that the Supreme Court reviewed from the courts of appeals in 2011 is striking when contrasted against the 42,931 total cases filed in the eleven numbered circuits and the D.C. Circuit in 2011. (28) Of those total cases, 12,198 were criminal (28%), and 30,733 were civil (72%). (29) Within the 30,733 civil cases, 7,488 were cases in which the federal government was a party. Of...