United States of America v. Michael Andrew Gary: Brief of Former United States District Court Judges as Amici Curiae in Support of Respondent

36 Pages Posted: 29 Mar 2021 Last revised: 7 May 2021

See all articles by Paul G. Cassell

Paul G. Cassell

University of Utah - S.J. Quinney College of Law

Nancy Gertner

Harvard Law School

Andrew Silverman

affiliation not provided to SSRN

Date Written: March 26, 2021

Abstract

In this amicus brief to the U.S. Supreme Court in U.S. v. Michael Andrew Gary, former federal district court judges Paul Cassell and Nancy Gertner argue that criminal defendants should not be penalized with plain-error review when they fail to raise in the district court objections that circuit courts have uniformly foreclosed. When an intervening change in law renders those once-futile claims viable, appellate courts should treat them as preserved and subject to the corresponding standard of appellate review, not the four-factor test elaborated in United States v. Olano, 507 U.S. 725 (1993).

No doubt, claim preservation is important. When defendants raise their objections first in the district court, district judges—who are closest to the case—can avoid or fix errors, thereby sparing (or at least facilitating) appellate review and potentially averting remand or retrial. The contemporaneous-objection requirement and its appellate counterpart, the plain-error rule, also deter sandbagging by defense counsel.

But the interests in judicial economy and fairness those rules ordinarily advance are not served when the would-be objection is entirely foreclosed by a circuit consensus this Court later sweeps away. In such a scenario, there is nothing to fix and no tactical advantage to be gained from failing to object. Rigid insistence on claim preservation in those circumstances instead actively undermines efficient judicial administration, as it forces defendants to object at every turn, clogging up cases with kitchen-sink briefs and wasting the resources of already overburdened counsel and courts. It also unfairly rewards defendants whose counsel was either preternaturally prescient or ignorant, undiscerning, or even downright obstructionist, while punishing those whose counsel appropriately focused on arguments that were more likely to succeed.

Suggested Citation

Cassell, Paul G. and Gertner, Nancy and Silverman, Andrew, United States of America v. Michael Andrew Gary: Brief of Former United States District Court Judges as Amici Curiae in Support of Respondent (March 26, 2021). University of Utah College of Law Research Paper No.434, Available at SSRN: https://ssrn.com/abstract=3813389 or http://dx.doi.org/10.2139/ssrn.3813389

Paul G. Cassell (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States
801-585-5202 (Phone)
801-581-6897 (Fax)

Nancy Gertner

Harvard Law School ( email )

1525 Massachusetts Avenue
Griswold 301
Cambridge, MA 02138
United States

Andrew Silverman

affiliation not provided to SSRN

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
8
Abstract Views
79
PlumX Metrics