2018 British Pegasus Scholar Report
We were sitting with two of Justice Clarence Thomas’ law clerks in his chambers at the US Supreme Court. Just then, a man with white hair and a shirt and tie ambled past. He poked his head in. He had an amiable smile.
He looks like Neil Gorsuch, I thought.
“This is Justice Gorsuch”, said one of the clerks.
That is Neil Gorsuch!
Justice Gorsuch stopped and chatted. We had just sat in on two oral arguments in a packed courthouse. I remarked that American appellate advocacy was incredibly brief compared to England: oral argument in the Brexit case had lasted three days; here, an entire case was heard in an hour. US appellate advocacy was a distillation of the ideas, it seemed, whereas English advocacy was a ventilation of them.
“We decide issues, not cases”, Gorsuch said.
It was a neat line. You could perhaps quibble over it (our Supreme Court is only dealing with matters of general public importance, after all; and the US Supreme Court is not ruling in the abstract – it is deciding cases), but I took the point. It was a pithy summation of one of the major differences in advocacy styles between our two systems on which I had been reflecting during the course of the 2018 Pegasus Scholarship.
It was by then early November. I had flown into the US in late September, the day before Dr. Blasey Ford testified before Congress. That same week, the American media reported en masse that Rod Rosenstein was about to be dismissed as Deputy Attorney General (in fact, by the time we met him towards the end of the programme, after the mid-term elections, his job appeared to be as safe as houses – proof that a week is a long time in politics, let alone two months). These were interesting times.
The white heat of the Kavanaugh confirmation hearings was an extraordinary moment at which to inspect the American justice system. I was obviously interested in more than the sensational, however, and over six weeks, my co-scholar Anthony and I were able to observe the many cogs within that great judicial machine: from going on police patrols in Alexandria to incarceration in Henrico County jail. We took in criminal and civil and bankruptcy and family and appellate proceedings. The whole kaleidoscope was on display.
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The two US Supreme Court cases we had observed, Sturgeon v Frost and Virginia Uranium Inc v Warren, both grappled with the tension between federal and state government. I had been trying to get my head around this for weeks.
The inevitable question for a barrister in America is how US justice differs from England’s—to which the answer is, “It depends”. This is a nation of fifty states and thus fifty judicial systems. Sometimes, there can be real differences (in practice if not in substance) within states, as any southern Virginian will tell you about northern Virginia. Of those fifty, we visited four: Maryland, Virginia, California and Pennsylvania, as well as the District of Columbia. I will always be grateful to those who took the time out of their busy careers to host us. Seven American Inns of Court in fact received us: the Anthony Kennedy Inn (Sacramento), the Judith K. Fitzgerald Inn (Pittsburgh), the John Marshall Inn (Richmond), the L’Anson Hoffman Inn (Norfolk), the Montgomery County Inn (Maryland), and the Bryant Inn and George Washington Inn (both DC), as well as the Alexandria Bar Association.
East, West, South and the “Rust Belt”. If one wanted an overview of the legal tapestry of the USA, this was it. The competing sovereignty and overlapping jurisdictions within America is perhaps the defining difference with the UK. I was often surprised how blurred the lines between the authorities could be, as well as how powerful the states were—one striking example of that given to us in San Francisco by the Chief Justice of the Californian Supreme Court: California has the single largest judicial budget in the world. We met members of the US Attorney’s Office in Sacramento and Richmond, responsible for prosecuting federal offences and defending suits against the government; we spent an afternoon with the Deputy Attorney General of Virginia who elaborated on the quite separate and discreet issues his office prosecuted; we ate up the valuable time of a number of district/ Commonwealth/ state attorneys. In one docket at the General District Court in Alexandria, Virginia, we witnessed the slightly surreal process of a defendant objecting to his “extradition” to Maryland to stand trial for offences there (we could have walked to the border from the courthouse).
We also spent time at the Pentagon and the Judge Advocate General’s Corps. If court martial was at least a concept with which I was familiar, the Military Commissions was a totally alien concept. A conversation with its Chief Prosecutor, Brigadier General Mark Martins, was fascinating. The prosecution of international terrorists had led to the creation of a distinct jurisdiction for doing to (albeit one, as the general reminded us, which had always existed at common law). Later in the scholarship, we had the opportunity to watch a live feed from Fort Meade of legal argument at Guantanamo advanced on behalf of the 9/11 plotters. Here was not simply the interplay of federal and state laws; this was a blend of domestic, international and military law.
If federalism was an obvious difference with the UK, one area in which I was sure there would be overlap was advocacy. After all, we not only shared a common language, but a similar way of using it: the adversarial system; the principle of orality; the jury. In fact, by the end of the scholarship I was surprised how different American court advocacy was. It was stunning to sit in on a witness intimidation trial in Pittsburgh’s federal court and watch the cross-examination of a defendant now testifying for the government against his co-accused. As defence counsel sidestepped questioning this man about the assertion his client had pulled out a gun, I realised that the rules of American cross-examination did not require you to “put your case” and directly challenge a witness on the aspects of their evidence which you dispute. In England, this is one of the most fundamental principles of trial advocacy.
The English “plea in mitigation” sees defence counsel speak on behalf of his client; by contrast, the focus of American sentencing hearings was often on the defendant exercising his own “right of elocution”. These could sometimes be very moving or impressive. Watching one at Fairfax Circuit Court in Virginia, the defendant even quoted a poet when speaking to the judge.
Indeed, there were some sentencing hearings where the defence advocate was almost peripheral. An hour-long sentence for firearms offences in a federal court in Pittsburgh, saw a lengthy dialogue directly between the judge and the defendant. It was, more generally, a reminder of how central the defendant himself can be in US criminal proceedings, sitting at the same table as his counsel, rather than shunted to stand in the dock.
I could go on with these striking differences—the prosecution “rebuttal” speech at the end of a trial, the permissibility of calling the defendant to give evidence after his defence witnesses, to name two more examples—but the fundamentals of good advocacy still translate. We saw Spanski Enterprises Inc v Telelinzja Polska SA—a case about costs, but bear with me—argued in the DC Circuit Court of Appeal. Counsel for the appellant, Andrew Deutsch, was a model in effectively dealing with a “hot bench” as Judge Merrick Garland rained down questions. Mr. Deutsch, speaking to us afterwards, explained that a judge will never want to hear the strengths of your case, so he always focuses his oral arguments on its weaknesses. The Solicitor General, Noel Francisco—the so-called “tenth justice” – had similar advice on how to be a good appellate advocate: “answer the questions”. During that meeting, I asked whether he found the Supreme Court was more deferential when he now appeared before its justices, compared to private practice, given the prestige of the office he occupied. He shook his head: “I don’t know if you’ve read the papers, but this is a pretty controversial administration”, he quipped.
The fundamentals of good jury advocacy were also the same. I spent one morning in the DC Superior Court riveted by the prosecution’s closing argument in the trial of a man accused of a horrific quadruple homicide. The attorney was simply someone who knew how to weave together a good story. It was gripping. The defendant was convicted.
As an English criminal barrister, I appreciated the respect Americans had for the jury system. I soon realised I could learn good advocacy from both criminal and civil trial practitioners, given juries featured in both in the US. Counsel would always stand when the jury entered and left the courtroom, a courtesy I found quite charming. The importance of a jury empathising with the accused was underscored by a federal defender we met in Sacramento who told us her instruction to each client was “Your one job in the trial is to make sure my water glass is full.” Good manners never hurt.
Watching a jury voir dire in the (beautiful) Allegheny County Courthouse in Pittsburgh was fascinating for someone like myself who is accustomed to mundanely empanelling jurors by pulling names out of a hat. Both counsel asked jurors questions about their background and possible prejudices. Perhaps even more remarkable is the way in which US lawyers can speak with jurors after the trial. One private defence attorney with whom we met in Sacramento told us he often did because the feedback on what was done well and not so well in a trial could be invaluable.
The temptation with a scholarship like this is to ask which judicial system is better. That is a trap that ought to be avoided. It is a simplistic question, reducing complex and multi-layered systems to one-word answers. It is also a very difficult question for practitioners—so embedded within their own customs – to answer with any sort of objectivity. The better question is not “which system is better”, but “how do we make our own system better?” The value of this scholarship lies, in part, in the opportunity for self-reflection. Unfamiliar surroundings are the best circumstances in which to challenge our own assumptions and practices.
The political dimension to the appointment or election of judges can cause some anxiety for a British audience. Still, there were obvious illustrations I came across during my six-week scholarship where the process was working well. In San Francisco, as I have said, we met the Chief Justice of the Californian Supreme Court, Tani Gorre Cantil-Sakauye. Charming and intelligent, she is also Asian-Filipina American. Of the five other sitting justices (one seat remains vacant), two more are women; one is African American; two of the justices are Oriental; one is Hispanic. This is remarkable diversity to find on the state’s highest court. They were all appointed by the governor and must run in “retention” elections. When I think of the handwringing in the UK about the lack of diversity within its judiciary, the advancements California has made are admirable.
I think too of Judge Alexander Bicket whom we met in Pittsburgh. An able raconteur, he was a great lunch companion. He is South African. He was directly elected some years ago. He stressed how apolitical he was, but said too that he was an outsider; he did not know anyone within the Pennsylvanian Establishment; the prospect of him being appointed to the judiciary had been, he said, remote. If that is right, the Allegheny County Courthouse would have been deprived of a fine judge. Democracy—however unusual it may be for me to find it applied to judicial selection—had delivered here.
The American sentencing regime has a reputation in the UK for being highly punitive. As Anthony Kennedy himself pointed out to an audience at McGeorge School of Law in Sacramento, the US has sentences eight times higher than comparable ones in other Western democracies. Despite that, I remember the time we spent with Judge Lawrence Brown at the Sacramento Superior Court. He was overseeing the “re-entry court”: a collaborative, rather than adversarial, process where the judge, relevant agencies, the district attorney and the public defender all met to discuss offenders. The objective is to support rather than punish them; an emphasis on reform in order to end their recidivism. In court, the defendants were commended for their progress. They were grateful for the chances now given to them, some speaking movingly about the new direction in their lives. This was wonderful rehabilitative justice.
There was a similar experience at the Henrico County Jail in Virginia. We were given a fascinating tour. I realised that, despite being a criminal practitioner, I had never properly been into a prison – custody had hitherto been an abstract concept. Sheriff Michael Wade was rightly proud of the programmes in place there to reform drug-dependent offenders. We met three inmates who spoke candidly about how difficult it was to change, but how glad they were that they were now doing it.
It was in nearby Richmond that we met both US attorneys and federal defenders. They evidently had a good and cordial relationship with one another. It was plain that prosecutors wield considerable in the US, with plea agreements making a significant different to sentence. I was therefore heartened to hear one of the federal defenders that day tell us how well-funded their own office was. The USA, he told us, had “the best defence in the world”.
One aspect where I can say America betters England is in the maintenance of its courthouses. Most were beautiful. The historic Allegheny County Courthouse in Pittsburgh was perhaps my favourite, although I was astonished with the nearby bankruptcy court: occupying the fifty-first floor(!!!) of the old US Steel Tower, it offered fantastic views. The tallest building between Chicago and New York City, the judges joked that it was “the highest court in the land”. It is hard for Wolverhampton Crown Court to compete with that.
Architecture aside, we enjoyed much of American culture during the scholarship. This is not a dry, academic programme – scholars get to live in and experience the USA. I cracked open Dungeness crabs on Fisherman’s Wharf in San Francisco and Maryland crabs off the Chesapeake Bay. I enjoyed the beauty of the waters of Lake Tahoe, the James and the Potomac. We saw the Pittsburgh Steelers crush the Carolina Panthers in a 70,000-capacity NFL stadium. We had an absorbing tour of the Virginian state capitol and met the governor at his Halloween party held at the executive mansion. We had the immense privilege of attending the American Inns of Court’s Celebration of Excellence at the US Supreme Court and its black-tie dinner. We saw votes on the Senate floor and met with Tim Kaine’s chief of staff.
All of that was not just a sideshow. Lawyers who only read law do not make good lawyers, after all. Experiences like these broaden our horizons, excite and energise the mind. I am forever in debt to those who hosted us with such wit, decency and integrity across the nation. Those six weeks were amongst the most stimulating of my life.