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Supreme Court Considers Arguments from YLS Professors on Back-to-Back Days

Two cases argued in front of the Supreme Court on successive days in February brought arguments from Yale Law School before the nine justices.

Steven Duke, professor of law at YLS, had ten minutes of the Court's time to present ideas he had been dwelling on for twenty-five years. The argument he gave was something he had first postulated in a journal article a quarter century before, and the case of Alabama v. Shelton gave him "an opportunity to dust off these views and reassert them."

The case involved a man named LeReed Shelton, who was convicted of third-degree assault by an Alabama district court and ordered to pay a fine. He appealed the decision, defending himself in a jury trial, and was again convicted and sentenced to a thirty-day suspended sentence in addition to a fine. Shelton was not informed that he had a right to counsel, although Supreme Court precedents had established that no person may be imprisoned for any offense unless represented by legal counsel at trial. After further appeals, the Supreme Court agreed to consider the question "does the imposition of a suspended or conditional sentence in a misdemeanor case invoke a defendant's 6th Amendment right to counsel?"

Duke only became involved in the oral arguments after the Court asked Charles Fried of Harvard to submit a brief and allotted him ten minutes of the argument time. Duke petitioned for an equal ten minutes on the other side of the question. He states that, while the narrow issue in the case was, "is a suspended sentence something you can give to a defendant who didn't have a lawyer?" he decided to argue more comprehensively that, regardless of the sentence, one has a right to a lawyer in any criminal prosecution. The Sixth Amendment uses the phrase "in all criminal prosecutions," and guarantees the right to a jury trial as well as to the "assistance of counsel." And so Duke argued that, whether or not Shelton was sentenced to jail, he faced a jury trial, and so had a right to counsel.

Duke anticipated that the Court would receive his ideas reservedly. And, indeed, he found that "the Court didn't want to hear my argument because it surprised them." Chief Justice Rehnquist questioned whether Duke's arguments were relevant. Justice Scalia called his point ridiculous. But Duke says that even if the Court acknowledges the issue that he raised, "that will be close to a victory."

Duke calculates that he spent 150 hours preparing for his ten minutes in the Supreme Court chamber, and he says, "It was a great experience. . . . It's probably the ultimate professional experience for a lawyer."


Professor Harold Hongju Koh didn't appear in person in the Supreme Court to make his argument, but it was picked up nonetheless by the justices.

Koh, the Gerard C. and Bernice Latrobe Smith Professor of International Law--along with Jim Silk and Deena Hurwitz of the Lowestein International Human Rights Clinic at YLS and several students participating in the clinic--authored an amici curiae brief in the case of Atkins v. Virginia.

Daryl Atkins, who has an IQ of 59 (roughly equivalent to a ten-year-old child), was convicted of killing an Air Force airman and sentenced to death. The question before the Court was whether the execution of a mentally retarded person violates the Eighth Amendment's ban on "cruel and unusual punishment." The Court had earlier found that what counts as "cruel and unusual" is determined by "evolving standards of decency."

Koh, a former assistant secretary of state for democracy, human rights and labor, explains his interest in the case: "When I left the State Department, there were a number of issues that I felt frustrated I hadn't done more on--and one of them was the death penalty." The brief he helped author was written on behalf of nine career diplomats, who had served under both Republican and Democratic administrations, and all agreed that the practice of executing the mentally retarded was abhorrent to the rest of the world, increased U.S. diplomatic isolation, and was an impediment to America's moral leadership.

"It's not a political brief," says Koh. "It's just a statement of fact."

The brief, furthermore, argues that since the U.S. "is the only established democracy in the world that is known regularly to execute people with mental retardation," this international opposition should be factored into the Court's understanding of "evolving standards of decency." It cites precedent when the Supreme Court included international practice in its consideration of the death penalty. Koh also points out that at the foundation of the nation, the Declaration of Independence appealed to international opinion and standards.

The diplomats' brief was originally written for a case called McCarver v. North Carolina, which was mooted when North Carolina outlawed executing the mentally retarded. The brief was carried over to the Atkins case, and one error has turned up since it was first written. Koh penned an op-ed for the New York Times in June 2001 calling for an end to the practice of executing the mentally retarded, and repeated the assertion made in the brief that the only other nation to allow the practice is Kyrgyzstan. Several days later, the ambassador from Kyrgyzstan wrote a letter to the editor of the paper announcing that, since its independence, his nation has instituted a moratorium on all executions, and thus does not execute the retarded. "We're all alone in this practice," notes Koh. "It's certainly now unusual." The correction only strengthens Koh's argument.

Atkins v. Virginia was argued on February 20, and according to an account by Linda Greenhouse in the New York Times, the idea of international standards raised by the diplomats' brief was discussed. "Justice Ginsburg asked Ms. Rumpz, Virginia's lawyer, 'Does what the rest of the world thinks have any relevance at all?' No, the lawyer replied."

Koh and nine career diplomats still argue that it does--and await the judgment of the Court.