Monday, April 16, 2012

Mosquito Won't Stop Buzzing in Court's Ear

Two weeks ago, Assistant U.S. Attorney Barbara Healy Smith had a very bad day in court during oral argument before a panel of judges from the First Circuit. Today, amazingly, she's going for a do-over, filing a letter with the court to challenge arguments made by Eamonn Dornan, the exceptionally sharp lawyer who argued the Belfast Project appeal for Anthony McIntyre and Ed Moloney. More in a moment, but here's the letter:
Healy Letter

The remarkable thing is that Barbara Healy Smith spoke after Eamonn Dornan in court. She had an opportunity to challenge or rebut anything he told the judges. Having failed to do that, she now in effect comes padding back into the courtroom two weeks later, holds up a finger, and says, "And another thing...."

Lawyers, is this sort of thing common? Is it regarded as ethical? At the very least, it seems sniveling and unprofessional.

ADDED LATER:

And then there's the remarkable content of the letter: "The government would be happy to provide additional information on this issue should the Court wish -- although such information would be outside the record of the case."

How on earth could the government possibly "provide additional information" to a court on an issue raised during oral argument about a case that the court is considering, but insist that "such information would be outside the record of this case," without appearing to suggest that they wish to have a private discussion with the judges who have decisionmaking authority in their cause?

ADDED LATER:

In response to an email message, Eamonn Dornan describes the government's letter to the court as "inappropriate" and "highly unusual."

7 comments:

  1. I think the letter is unusual, particularly after some time has passed. On the other hand, she's right that Dornan did refer to matters outside the record, as Chief Judge Lynch recognized in her questioning. My sense is that the panel knows very well what is and is not in the record, so I don't see why the government saw the need to submit this.

    I think the reference about the information being "outside the record of this case" doesn't mean what you think it means. Healy is not saying that she wants to submit evidence privately. She's saying that she's prepared to rebut what Dornan said, but that the court shouldn't really consider Dornan's point in the first place, because the whole issue of whether the State Department and the Justice Department are on the same page is outside the record.

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    1. Ted,

      Thanks for this. I do think that Dornan's argument is on the record, whether the government thinks it should be or not, so a rebuttal of it, if such a thing were to be permitted, should also be part of the same record. The government had ample opportunity to make written and oral argument in the case, and to argue against Dornan's claims, so it seems very odd to suggest that some alternative path to off-the-record argument is warranted or appropriate. It'll be fascinating to see what the court says to this.

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    2. "In the record" here refers to the principle that an appellant is only allowed to argue from facts that were put before the District Court. "In the record" is not the same as "On the record." As far as I know Dornan did make some factual contentions in his argument that were not "in the record" in this sense, which is the sense that matters.

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    3. As I understand it, the district court denied M+M the opportunity to intervene (in one case) and the opportunity to sue the government (in another). So part of Dornan's argument is that the district court closed the door to evidence and arguments that he would have presented, had he been allowed to make a case. His references to facts not in the record were made in the context of an argument about what kind of things he was prevented from showing by Judge Young's decision to close the door on him.

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    4. Chris, you're right that that's what Dornan is trying to do. This kind of thing is the point of the following exchange he had with Judge Lynch:

      Judge Lynch: Counsel, I understand this to be an argument under the balancing tests that there were alternative ways of getting the information.

      I was a bit puzzled though by your statement that you wished to present this to the District Court. Is this not in the record?

      ED: No, that particular piece of information isn’t in the record clearly because we were prevented from intervening; we could not support our complaint wth any further information.

      Judge Lynch: But you did put in affidavits in support of intervention which could have included such information….

      ED: It could have included that information; we wern’t aware of it at the time. My apologies to the court.

      I also agree that this sort of thing is a minor infraction, since, as I said in the first comment, the judges can figure out for themselves what was and what was not in the District Court record. So I think the government's letter is odd.

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  2. Christ, Theodore! Give it up! You're enough to give lickspittles a bad name.

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    1. Edward, you made my day! When I responded to Chris's post, I predicted to myself that you were waiting at your keyboard, ready to pounce on any hint of criticism of your views, no matter how courteously expressed, with another round of juvenile name-calling. And thanks to your comment, I won my bet!

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