By Marty Lederman together with David Luban
This coming Friday, the Supreme Court Justices are scheduled to consider, at conference, the government’s nominal written at length on the petition, together with nosotros won’t repeat hither the many ways inwards which it is deeply problematic. Since that start out post, in that place conduct keep been farther revealing proceedings inwards the instance (see, e.g., this post and this one), together with Carter Phillips/Sidley Austin conduct keep filed a terrific brief inwards opposition on behalf of the Respondents, inwards which they (among other things) carefully explicate why the SG’s accusations of ethical breaches past times Jane Doe’s attorneys are groundless. The SG lately filed a reply brief, which doubles downward on the allegations of unethical attorney behavior; together with David has published a post on why the ethics authorities the SG cites inwards his reply brief practise non back upwardly his accusations.
This coming Friday, the Supreme Court Justices are scheduled to consider, at conference, the government’s nominal written at length on the petition, together with nosotros won’t repeat hither the many ways inwards which it is deeply problematic. Since that start out post, in that place conduct keep been farther revealing proceedings inwards the instance (see, e.g., this post and this one), together with Carter Phillips/Sidley Austin conduct keep filed a terrific brief inwards opposition on behalf of the Respondents, inwards which they (among other things) carefully explicate why the SG’s accusations of ethical breaches past times Jane Doe’s attorneys are groundless. The SG lately filed a reply brief, which doubles downward on the allegations of unethical attorney behavior; together with David has published a post on why the ethics authorities the SG cites inwards his reply brief practise non back upwardly his accusations.
In this post, nosotros address 2 farther items, both related to the attorney ethics facial expression of the petition: (i) First, nosotros banking concern complaint the incongruity of the SG using this case to brand an unprecedented onset on opposing counsel’s ethics, when the Department of Justice itself has acted inwards ways that themselves heighten ethical questions. (ii) Second, nosotros address the expiry penalisation analogy that the SG invokes on the concluding page of his reply brief--an analogy that appears to conduct keep had traction amongst some readers, if our conversations are whatever indication.
As Marty explained inwards a recent post, at the October 20 oral statement before the D.C. Circuit in Hargan, DOJ counsel assured the panel that if a tike inwards ORR custody was meaning past times virtue of an assail or rape, ORR would allow her to obtain an abortion (see The corresponding dominion inwards the Model Rules contains a similar the same obligation, differing entirely inwards that it doesn’t conduct keep a confidentiality exception. (Of course, there’s cipher confidential virtually the Director’s determination inwards the Poe case, which is immediately role of Earth record.)
This obligation falls non entirely on the DOJ lawyer who made the statement: nether D.C. Rule 5.1(c)(2), it binds that lawyer’s supervisor, equally well, if he or she “knows or reasonably should know of the bear at a fourth dimension when its consequences tin flaming live on avoided or mitigated but fails to accept reasonable remedial action.” (In litigation inwards the District of Columbia, this is the applicable rule. The corresponding Model Rule omits “… or reasonably should know.”)
The Department has likewise failed to right an impression that it conveyed (perhaps inadvertently) to the D.C. Circuit panel, reflected inwards Judge Kavanaugh’s dissenting opinion on October 24, that “[t]he Government has . . . expressly assumed, . . . presumably based on its reading of Supreme Court precedent, that the Government lacks say-so to block [a tike inwards its custody] from obtaining an abortion” (p.2). As nosotros immediately know, that agreement of the government’s see was non correct: convicting courtroom sets the execution date amongst at to the lowest degree 3 months’ detect to the defendant, together with entirely the courtroom tin flaming modification that date, likewise inwards a transparent mode that gives detect to the defendant. And Texas’s death penalisation protocol farther specifies a whole array of procedures that are to occur over the concluding 2 weeks before execution, including that the condemned soul live on allowed to run into amongst friends together with menage unit of measurement on the morning time of execution, together with amongst counsel together with a government minister several hours before the lethal injection. (The SG’s hypothetical would ask a violation of all of these norms.) We assume in that place are similar rules inwards house inwards all expiry penalisation jurisdictions, guaranteeing such advance notice, regardless of whether the judiciary or the executive sets the date. Indeed, if in that place were non such statutory protections, it would almost sure enough violate due physical care for and/or the Eighth Amendment—it would certainly live on savage together with unusual—for a terra firma to execute a accused without advance detect of the date, or on a appointment before than had been represented to him.
All of which is to say that the terra firma is legally forbidden from surprising the accused past times moving upwardly the fourth dimension of his execution without notice, regardless of whether the defendant's counsel has indicated whatever plans to appeal. Intuitively, nosotros all empathise that—and playing on that intuition is what gives the SG’s far-fetched hypothetical whatever strength it has.
Of course, the fact that the terra firma itself has violated the constabulary does non absolve the state’s lawyers: they cannot live on complicit inwards violating the state’s duties. (See Model Rules 1.16(a)(1), 8.4(d).) In that scenario, however, the lawyers’ breach of obligation is not, equally the SG implies, to beau members of the bar who are trying to schedule their filings on appeal, thence much equally it is to the accused himself, who is legally entitled to know inwards advance when the terra firma is going to lay him to death. (Moreover, together with inwards contrast to the details of a woman’s abortion, the timing of a world execution is not, of course, confidential customer data that the state’s lawyers may together with must protect.)
In Hargan v. Garza, past times contrast, Jane Doe patently had no legal obligation to grade the U.S. authorities when she would obtain an abortion. (Of course, because she was inwards ORR custody, she had to grade the shelter the times of her medical appointments—as she did—so that the shelter would allow her to live on transported in that place accompanied past times shelter personnel.) And if Doe had no obligation to grade the authorities what would conduct house at the hospital at 4:15 a.m. on Wednesday, Oct 25, likewise her attorneys had no ethical obligation to breach her confidence past times expressly informing authorities counsel concerning something that the shelter personnel—and presumably the authorities lawyers—already suspected virtually an appointment occurring at 4:15 in the morning. Indeed, equally David explained inwards his previous post, Doe’s lawyers would conduct keep been ethically prohibited from doing so.
* In his petition, the SG cites page 2 of a proclamation of an Assistant U.S. Attorney for the suggestion that at approximately 7:30 p.m. on Tuesday, Oct. 24, Ms. Doe’s attorney advertizing litem informed the AUSA that equally a termination of the initial doctor's unavailability, “the abortion could non accept house until October 26” (p.13).
In his brief inwards opposition, Carter Phillips denies that the tape shows whatever such representation past times Doe’s attorney advertizing litem (p.24):
[T]he authorities repeatedly claims that opposing counsel “represented” “that no abortion would accept house until October 26,” Pet. 11; regard likewise id. at 13, 14, 19. Yet no such representation appears inwards the emails or the proclamation of the AUSA lodged amongst the Court past times the Solicitor General that the authorities cites.
In his reply brief, the SG inexplicably writes (p.9) that “respondent does non dispute that Ms. Doe’s attorney advertizing litem told the authorities an abortion could non accept house until October 26—a representation that could non conduct keep been clearer” [citing dorsum to page thirteen of the petition, which inwards plough cites the AUSA’s declaration]. As a statement virtually what the respondent disputes, this is simply wrong: As the quotation higher upwardly from the Carter Phillips brief shows, the respondent certainly does dispute that characterization of what the attorney advertizing litem represented. As for which characterization is correct, nosotros conduct keep no means of knowing what the tape shows on this point, because the relevant documents stay sealed. For purposes of this post, we’re assuming for the sake of statement that the attorney advertizing litem did make such a representation to the AUSA. Of course, if that is not the case, together with then the SG’s statement becomes fifty-fifty less defensible—indeed, it mightiness fifty-fifty live on based upon a fabric misstatement of fact.
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