At PrawfsBlawg Aaron Bruhl writes about an interesting question for appellate lawyers, as well as appellate courts. What to do when a legal question before you is currently under review by the Supreme Court? Follow the old precedent, which may soon get overturned or modified? Wait and see?
A mere grant of certiorari does not change circuit law. But there is another option, right? Namely, the court of appeals could just wait about three months and see how Davis turns out. To be clear, I’m not saying that delaying decision is, all things considered, the right call in this case. The question of whether to hold cases in abeyance when the Supreme Court has granted certiorari is surprisingly complicated and does not admit of across-the-board rules, or so I’ve argued elsewhere. Sometimes courts decide to wait for a forthcoming potential change in law, sometimes they decide not to wait, and sometimes (as here) they act as if no choice is available to them. But whatever the court does, it is making a choice.
Bonus question: If you are the attorney for someone like Curtis, what is your next move?
Indeed, this is quite a difficult question for any attorneys. What lawyers need to make an educated guess is information about how the Supreme Court will act–something that FantasySCOTUS, a Supreme Court Information Market can provide. If an attorney can know with a reasonable degree of certainty how the Court will decide, he can make an informed decision. This could be a game-changer in these types of situations. Consider this hypothetical I posed:
Or, imagine a criminal case where your client was read his Miranda rights, did not affirmatively invoke his right to remain silent, and subsequently made an incriminating confession. Assume the case of Berghuis v. Thompkins, which presents just this issue, has been argued before before the Court. The prosecutor offers your client a favorable plea bargain that is only on the table for a limited duration; if not accepted, the prosecutor will take the case to trial. If the defendant signs the plea agreement, he waives all appeal rights.
The defense attorney is faced with a choice. If his client accepts the plea bargain,and the Supreme Court subsequently finds that this interrogation did not result in a violation of Miranda, his client will have secured a short sentence, less than what he likely would have received at trial. Alternatively, if his client accepts the plea bargain, and the Supreme Court finds this interrogation did result in a violation of Miranda, his client cannot challenge the confession, and he is stuck in jail; had he gone to trial, the court would have suppressed the evidence, and he would have been acquitted without the confession.
FantasySCOTUS can be a game changer in such a situation. If FantasySCOTUS shows that the Court will find a violation of Miranda in Berghuis v. Thompkins, perhaps the attorney should roll the dice, and go to trial, hoping the judge will ultimately suppress the evidence. If FantasySCOTUS shows that the Court will not find a violation of Miranda (the actual outcome of this 5-4 case), perhaps the attorney should accept the favorable plea bargain, and not risk it. These are real decisions defense attorneys have to make. Now, with FantasySCOTUS, this decision can be made with information.
I look forward to the day when FantasySCOTUS evolves to the point that lawyers can use the information to make strategic decisions to benefit their clients.