Court Muses on Unicorns in Debating Sentencing

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WASHINGTON -- The Supreme Court heard an unfocused argument on Wednesday from a Louisiana lawyer whose fumble at her client's sentencing hearing was at issue in the case. The lawyer's halting presentation put the justices in a collaborative and lighthearted mood, as they tried to puzzle out for themselves whether the sentence must stand. Unicorns figured in their analysis.

There was no question, as Justice Samuel A. Alito Jr. put it, that the client, Armarcion D. Henderson, is "serving a sentence that we now know was imposed for a reason that is not permitted under federal sentencing law." In 2010, a trial judge gave Mr. Henderson, who had pleaded guilty to a gun charge, a five-year sentence instead of the roughly three-year sentence ordinarily called for so that he would be eligible for a drug-treatment program while in prison.

In 2011, the Supreme Court unanimously ruled in Tapia v. United States that extending sentences for that reason is unlawful in light of the relevant federal law, which told judges that "imprisonment is not an appropriate means of promoting correction and rehabilitation."

It was also clear in Mr. Henderson's case that his lawyer, Patricia A. Gilley, had not objected on this ground at his sentencing. In response to a question from Justice Ruth Bader Ginsburg, Ms. Gilley explained why she had failed to speak up. "I was not aware of that statute," she said.

Such a failure to object is often but not always fatal, and the question for the justices involved, as Justice Anthony M. Kennedy put it, "the metaphysics of the plain error rule."

Some judicial errors may be remedied even though a lawyer failed to object because the errors are plain. The basic question here was what to do about an error arguably not yet plain at the time of trial but perfectly plain, given the intervening decision in Tapia, by the time of the appeal.

Justice Antonin Scalia mused that defense lawyers should be encouraged to raise objections at trial when the law is unsettled because "it greatly serves efficiency to bring that situation to the attention of the judge."

Justice Stephen G. Breyer responded by trying to make Ms. Gilley's arguments for her, summarizing her brief at length.

The idea that trial lawyers will fail to object in the hope that a later ruling will help their clients is fanciful, he added. "The lawyer who thought that is like the unicorn," Justice Breyer said. "He doesn't really exist."

Justice Scalia agreed that a lawyer who decides not to object for strategic reasons "is a unicorn, I suppose." But he added that requiring objections at the risk of serious harm to a client's interests may make some lawyers more careful, including those "unaware of a statute that they should have been aware of."

Justice Elena Kagan was unconvinced. "Isn't it just as much of a unicorn for an attorney to say, 'I'm not going to take great care because I think that the law is going to change between now and the appeal'?" she asked.

Chief Justice John G. Roberts Jr. asked Ms. Gilley for her position, and she responded with a discussion of an opinion by "Justice Rehnquist."

Chief Justice Roberts corrected her reference to his predecessor, Chief Justice William H. Rehnquist. "He was the chief justice, by the way," Chief Justice Roberts said. "It matters to one of us."

Ms. Gilley apologized for her error and for a similar one in one of her briefs, in which she had mistakenly referred to Justice Tom C. Clark as chief justice. "I'm not perfect," she said and then referred to "Justice Rehnquist" again.

nation

This article originally appeared in The New York Times.


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