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Argument recap: Trying to discern a timing rule for a rule that says nothing about timing

The oral argument last Wednesday in Henderson v. United States revealed perhaps more about how the Justices themselves debate than the normal case where oral argument sometimes degrades into a matching of wits between Justices and counsel.  To be frank (and as might have been anticipated from the briefs), the argument by Henderson’s counsel was at times quite unhelpful to the Court.  But the argument session then evolved into more “thinking out loud” by the Justices than some experienced Court advocates generate, because they in some sense do the Justices’ thinking for them.  How does the Court handle a case where the lawyer for one side is clearly in over her head?  In this case, once the Justices seemed to have given up on the lawyer arguing, they appeared to genuinely and openly concentrate on the merits of the legal problem at hand.  The result was a calm and sincere effort by eight Justices (Justice Clarence Thomas did not ask any questions) to tease out nuances from a Rule whose text is unilluminating.  Throw in references to unicorns and hippogriffs and the result was an interesting window into how the Justices’ private Conference after argument might actually sound.

The Justices seemed genuinely to struggle with the central question: whether Federal Rule of Criminal Procedure 52(b) can permit relief for a criminal defendant who was sentenced to an additional one-and-a-half to two years in prison for a reason that, by the time of his appeal, was clearly wrong under a new Supreme Court decision.  Henderson’s counsel did not object at the time of sentencing (and she conceded at last week’s argument that she had not been aware of the federal statute that prohibited the sentence).   Even Justice Alito, who seemed basically opposed to Henderson’s position, asked “what about Mr. Henderson sitting in prison? …. Is there anything that can be done for him?”

The problem is that Federal Rule of Criminal Procedure 52(b) permits relief only for “plain” errors that are “not brought to the [trial] court’s attention.”  Here, the error was “plain” at the time of appeal, because the Supreme Court had declared it so in the intervening decision in Tapia v. United States.  But it was not “plain” (at least arguably not — Justice Ginsburg pointedly asked why it was not) at the time of sentencing, since there was then a circuit split on the question.  The text of the rule does not say when an error must be “plain.”  The Justices appeared to agree on two things: unobjected-to errors that are not “plain” are beyond the reach of the rule; and one purpose of the rule appears to be to encourage contemporaneous objections.  Otherwise, the four Justices you might suspect (Ginsburg, Breyer, Sotomayor, and Kagan) seemed clearly to favor the defendant-friendly “time of appeal” rule, while Justices Scalia and Alito (and, one might presume, Thomas) seemed to favor the government’s “time of ruling” position.  Remarks from the Chief Justice and Justice Kennedy seemed mildly hostile to Henderson’s position.  But the overwhelming impression, for this listener, was that the Justices truly were thinking hard about the problem during the argument and it would be a mistake (as it often is) to predict the final vote.

Much of the argument dwelled on the “purposes” of the Rule, although the Chief Justice noted late in the game that normally the Court would want to focus on the Rule’s “plain language.”  But Rule 52(b) says nothing about timing, and the Court itself injected “purposes” into the debate when it decided, in Johnson v. United States (1997), that a “time of appeal” rule should apply when the law is settled (even if settled erroneously) at the time of ruling, noting that requiring futile objections in the trial court would not be efficient.  Justice Kagan pointed out that the government had argued in Johnson that nothing in the text suggests different timing rules for different contexts, and she suggested (as had her predecessor, Justice Stevens, in 2010) that simplicity might support a uniform timing rule for all contexts.  But Justices Scalia and Alito, and Assistant to the Solicitor General Jeffrey Wall, all pointed out that when the law is unsettled, requiring objections in the trial court would certainly be better.  In response, however, Justice Sotomayor noted that “the very essence of 52(b) is when you don’t make an objection.”  And as Justice Breyer twice noted, another purpose has been recognized since 1801, when Chief Justice Marshal wrote in The Schooner Peggy that sometimes “the court must decide according to existing laws”:  in Justice Breyer’s words, “simple fairness.”

Early in the argument of Patricia Gilley, counsel for petitioner Armarcion Henderson, Justice Alito asked three times what purpose the word “plain” serves in the “plain error” rule.  But Gilley seemed not to fully understand the question and, after the third time and an awkward pause, Justice Alito volunteered his own answer: “judicial efficiency.”  (Unfortunately, Gilley agreed with Justice Alito’s suggestion – a suggestion plainly at odds with her position — only to unconsciously contradict it three pages later.)  After another awkward moment when the Chief Justice gently reminded Gilley to refer to the late William Rehnquist as the “Chief Justice” – musing that “it matters to one of us” – only to have her then immediately refer to him again as “Justice Rehnquist,” Justice Breyer sought to rehabilitate Henderson’s argument.  He recited arguments from her merits brief to Gilley, and then asked “didn’t you say all that?”  When Gilley responded “yes,” Justice Breyer replied “Okay.  Well, then, why didn’t I hear you say it again” here?

At this point roughly twenty minutes into argument (Gilley did not reserve any time for rebuttal, a rare event in today’s Court), the Justices appeared to lose interest in the argument per se.  But then they appeared to “rally” as they realized they would have to solve this case on their own.  Justice Kennedy, noting that he didn’t “wish to sidetrack the discussion on the metaphysics of the plain error rule,” suggested that perhaps sentencing errors should be treated differently from errors that would require a whole new trial.  Justices Sotomayor, Breyer, Scalia, and Ginsburg reentered the fray.  When the Chief Justice briskly said “thank you, counsel” to signal the end of Gilley’s argument, the Court as a whole appeared quite engaged, and it occupied the able Assistant to the Solicitor General with a number of lively exchanges.

First, Justice Breyer described as a “unicorn” the mythical lawyer who might say “I think I’ll stay silent on this unsettled legal point, hoping that the law will become clear by the time I appeal.”  Justice Kagan, and later even Justice Scalia, agreed, and Justice Breyer expanded the category to include hippogriffs (another imaginary creature).  But Justice Scalia pointed out, and Wall agreed, that lawyers might improve their preparation if they knew the plain error rule would not save them later — although Justice Kagan asked “isn’t [that] just as much of a unicorn?”

Justice Ginsburg twice asked why it wasn’t “incumbent on the prosecutor” to point out the statute that prohibited Henderson’s sentencing rationale (as the Court later unanimously recognized in Tapia), and never received an answer.  And the Justices debated the meaning of the Johnson decision (which adopted the “time of appeal” rule for a different type of case), with Justice Breyer suggesting that he had now heard “four different interpretations” and Justice Scalia forgetting, but acknowledging with some relief, that he had not joined the relevant section of Johnson (“I didn’t?  Oh thank God… It didn’t sound like me.”)  After Justice Kagan had some linguistic fun with the government’s metaphor that “the Johnson tail” should not “wag the plain error dog” and whether an actual innocence exception would be the “nub of the tail,” Justice Ginsburg noted that the Court itself has a “plain error” rule.  Rule 24 says that the Court may consider plain errors not raised in Questions Presented but evident from the record.  How the Court has applied this rule was largely unexamined in any of the briefs, and Wall simply said (time having expired) that nothing suggests it should be interpreted any differently than Rule 52.

One might expect this last point to receive further examination in the ultimate opinion – if there is one.  (I previously suggested that the case might be dismissed as improvidently granted, although the presumption is against it.)  In fact, the case is not a good Rule 52(b) vehicle, because Ms. Gilley did bring the error to the trial court’s attention in a timely Rule 35(a) motion to correct sentence and, as Justice Ginsburg suggested, the error arguably was “plain” even at that time.  At argument, Justice Ginsburg confirmed that Henderson will be released in May.  If the Court were simply to sit on the case until then, the case could be dismissed as moot.

Meanwhile, it may be Justice Alito who had the real key here – he seemed sincerely disturbed by the injustice of Henderson’s longer sentence, but seemed convinced that the text of Rule 52(b) prevents the Court from reaching it. In the end, this case, like Johnson and United States v. Olano before it, exposes inadequacies in the terse one-sentence Rule.  As Justice Alito also noted, the rule as written seems somewhat inexplicable:  why do we want to deny relief for any error that affects substantial rights, plain or not?  That is, what purpose does “plain” serve in the rule?  “I’m waiting for you to tell me,” Justice Alito said with some gentle exasperation – but there is no clear answer in this simple text.  Perhaps as Justice Alito also suggested, a different, more contextual, rule (Justice Alito suggested an analogy to qualified immunity rules) might do a better job of achieving whatever values a “plain error” should serve.  However this particular case is decided, Rule 52(b) could end up on the plate of the Rules Advisory Committee for more contextual revisions, now that the Justices have focused, with typical laser-like if unicorn-infected perception, on what it means.

Recommended Citation: Rory Little, Argument recap: Trying to discern a timing rule for a rule that says nothing about timing, SCOTUSblog (Dec. 4, 2012, 9:35 AM),