Lawyer Who Secured Sixth Amendment Expansion Offers Frank Reflections on Facing ‘Lions’ on High Court

August 2, 2012

by Nicole Flatow

The U.S. Supreme Court’s pair of March decisions establishing the right to the effective assistance of counsel during plea negotiations was considered by many the most significant criminal process precedent since Gideon v. Wainright. But the lawyer whose argument prevailed in one of those cases was not feeling positive vibes from the Justices during her oral argument – her first ever before the high court.

In an American Constitution Society video webinar on her experience litigating Lafler v. Cooper, state appellate defender Valerie Newman said it was the justices’ hostility that surprised her the most.

 “It was not a pleasant experience,” she said. “… I tell people the experience felt to me like there were nine lions, even though Justice Thomas never talked, and I was the piece of meat that was thrown into the ring and they were just all scratching at me to see who could get the biggest piece.”

Newman held her ground and stood by the argument she had been making since the beginning: that “the Sixth Amendment applies to all stages of the criminal process, and plea bargaining is a stage of the criminal process. If the defendant receives deficient advice that affects the defendant’s decisions down the line, then the defendant is entitled to relief.”

In this case, because her client had been advised to go to trial based on misinformation from his lawyer that he could not be convicted, Newman had to argue that the trial itself caused the harm – a notion that incited particular hostility from Justice Scalia.

“I thought Justice Scalia, if he could, would have reached over the bench and strangled me,” Newman said. “That’s how visibly distraught he was at my argument. And even the justices I thought would be on my side, like Justice Breyer, Justice Breyer yelled at me at one point.”

Newman had received advice from experienced Supreme Court litigators to “soft-pedal” the argument that the trial was the harm, to “soft-pedal the remedy, to not ask for so much” because it would seem presumptuous. But she says the lesson she took away is that “you can’t back down.”

“I listened to what everyone had to say and I thought about it,” she said. “But ultimately, if you don’t ask for it, you’re not gonna get it. I’d rather ask for everything that I think the law entitles my client to. Why would I ask for less?”

Ultimately, Justice Anthony Kennedy’s majority opinion adopted her argument, concluding that the trial itself caused the harm.

“Think about that,” she said. “That’s a monumental thing, to say that the trial itself was the harm. And I think the fact that I stood firm and would not back away from that made a difference.”

Watch the webinar with Newman, who is the chair of the American Constitution Society’s Michigan Lawyer Chapter, here.