As I write this, Zach Scruggs’s oral argument is finishing up in the en banc courtroom at the Fifth Circuit Court of Appeals in New Orleans, before a panel of Judges Jolly, Higgenbotham, and Dennis.
The Clarion Ledger states that the Daily Journal reported that ”some court-watchers say the Fifth Circuit of Appeals is interested in the appeals case because ‘so few Skilling appeals have come their way.’”
This suggests powers of divination about an invisible process– what judges are thinking before they opine– that stretch pretty far. Count the assertions:
- “the Fifth Circuit… is interested… in the case…” Interested? What shows their interest? That they set oral argument? That they are processing the appeal like other appeals are processed? Or do these court watchers claim inside information?
- “because so few Skilling appeals…” That’s several more– that this is a case about Skilling, something even Zach Scruggs’s lawyers had moved beyond by the time the district court proceedings were completed, and that the Fifth Circuit is somehow anxious to revisit Skilling, even though the court already revisited Skilling when it came back from the Supreme Court on remand, that there have been “so few” such appeals, and that few such appeals might inspire interest in case raising the issue.
More about the oral argument later…
Are not all criminal appeals to 5th Circuit granted oral argument?
Tom, I don’t know if you saw the revised calendar last week, but Judge Jolly recused–the substituting judge is Eugene Davis. (I only know because I have an argument on Wednesday).
Hootie–no.
I noticed that the Clarion Ledger didn’t list Judge Jolly, but the calendar I pulled was the one on the Fifth Circuit site this morning. THanks.
I just realized how tired I am of hearing about anybody named Scruggs. Why won’t these rich people just go sit on a beach somewhere and let it go? Dickie will be out pretty soon, right?
Hootie: A few stats regarding CA5 criminal appeals …
Federal courts’ statistical year runs 1 April through 31 March. For the statistical year ending 31 March 2011 (2012 numbers haven’t been published yet):
1922 … criminal appeals terminated on the merits
310 … criminal appeals terminated on the merits following oral argument
1612 … criminal appeals terminated on briefs without oral argument
The court’s central legal staff preps proposed per curiam opinions disposing of the vast majority (84%) of criminal appeals which, together with supporting central legal staff attorneys’ memoranda, are submitted to randomly drawn 3-judge panels for adoption as the court’s judgment. Any one member of a panel can order that a central legal staff case be set for oral argument. Not many make it to argument.
Tom — I can’t tell, from your link to this Clarion-Ledger article, who wrote it. Does the person who wrote it have a name? Does he or she have any legal training? Does a lawyer on some kind of retainer by the paper review articles like these for acccuracy before they are published? Is there some reason why a newspaper article appears without a reporter being given credit for what it says? This one seems to be deliberately naïve in a way that’s puzzling.
The Clarion Ledger has let Jimmie Gates report on legal matters for many years. He is totally ignorant of legal process having failed to even learn by rote over the years.
NZS, it’s obviously not bylined, which means we don’t know who wrote it, and no newspaper in the area to my knowledge has anyone law-trained reviewing or writing legal reporting (Adam Litpak of the New York Times, who writes about legal issues, has a law degree).
The more law grads can’t find jobs practicing law, the more the quality of legal reporting may improve … if there are still any newspapers to hire them!
While no longer with a newspaper, Charlie Mitchell still writes a syndicated column and has a law degree although I’m not sure whether he practiced law.