Former clerk tapped for fall double jeopardy argument

The Supreme Court has tapped a former clerk to Justice Sonia Sotomayor to defend a lower court ruling in next term’s Barrett v. United States, a New York man’s challenge to his robbery convictions and sentences under two federal laws. The federal government, which prevailed in the lower court last May, has declined to defend that ruling at the Supreme Court.

The justices appointed Charles L. McCloud to brief and argue the case. Dwayne Barrett, who was involved in a series of armed robberies, argues that the Constitution’s double jeopardy clause prohibits him from receiving two separate sentences – one for violating a federal law that makes it a crime to use a gun during a crime of violence and a second one for murder or manslaughter during a robbery.

When a federal appeals court rejected his argument, Barrett came to the Supreme Court, which agreed on March 3 to take up his case.

The federal government had urged the justices to deny Barrett’s petition for review, stressing that Barrett had not yet been resentenced. Even if imposing the two sentences violates the double jeopardy clause, the government explained, either “the district court could structure” his sentence or the government might ask to have one of the charges dismissed, which would “avoid any constitutional violation or render it harmless.” But the government acknowledged that it had “long taken the position that cumulative punishment” like the kind at issue in Barrett’s case “is not permitted.”

With the government opting not to defend the 2nd Circuit’s decision, the justices on Wednesday appointed McCloud to do so. The practice of appointing an outside attorney is not an uncommon one, though the justices have appointed a particularly high number – six – for the 2024-25 term.

McCloud is a partner at Williams & Connolly, a law firm in Washington, D.C. Before clerking for Sotomayor, he clerked for then-Judge Brett Kavanaugh on the U.S. Court of Appeals for the District of Columbia Circuit and for Judge Paul Niemeyer of the U.S. Court of Appeals for the 4th Circuit. He served as an assistant to the U.S. solicitor general from January 2023 until the summer of 2024, arguing two cases in the Supreme Court.

Barrett’s case will be argued sometime in the fall.

This article was originally published at Howe on the Court.