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U.S. Supreme Court

Associate Makes Supreme Court Debut in Prosecutor Immunity Case

Posted Nov 4, 2009 2:23 PM CST
By Debra Cassens Weiss

Lawyer Steve Sanders made his U.S. Supreme Court debut today arguing on behalf of prosecutors accused of conspiring to frame two murder suspects.

Sanders is an appellate litigator with Mayer Brown, but in an unusual twist, he is an associate rather than a partner. And it’s a paying case; a story in the Omaha World Herald says the Iowa county defending the suit paid $1.35 million in fees to Mayer Brown this year and more than $304,000 last year.

An Associated Press account of oral arguments (PDF) today says several justices appeared worried that allowing a civil rights lawsuit against two former Pottawattamie County, Iowa, prosecutors would have a chilling effect. The justices questioned whether suspects would be able to sue prosecutors simply because they didn’t like the verdict.

Sanders, who is considered a fourth-year associate because of a one-year federal appellate clerkship, says he expects to win the case, although he didn’t want to go so far as to predict the exact vote. “I don’t think it’s going to be one of the cases where it’s 9-0 either way,” he told the ABA Journal. At the same time, “I don’t think it’s going to be 5-4.”

At the end of the day, he predicted, the court will recognize that absolute immunity should be reaffirmed because of “powerful policy reasons” behind it.

The civil rights suit was brought by two black teens imprisoned for 26 years after they were convicted of killing a recently retired white police officer. The plaintiffs, Terry Harrington and Curtis McGhee Jr., claim prosecutors and police framed them with lies, threats and fabricated evidence, the ABA Journal reports in a November article.

The U.S. Supreme Court has held that prosecutors have full immu­nity from civil suits when presenting cases in court, but prosecutors have only qualified protection when they advise or assist police in their investigations. According to the ABA Journal's account of the argument for the prosecutors, "any sins against McGhee and Harrington were washed clean when they presented the evidence in court under absolute immunity."

Sanders, a graduate of the University of Michigan law school who previously worked in higher education administration, says he prepared for the case with five moot court sessions. He also prepared simply by living with the case for two years, volunteering to handle oral arguments before the St. Louis-based 8th U.S. Circuit Court of Appeals and proposing the Supreme Court appeal.

He credits the law firm’s “entrepreneurial culture” for allowing him to argue the case before the Supreme Court. “I think it was a show of faith on my ability and my knowledge of the case,” he said.

Asked when the Supreme Court will likely decide the case, Sanders said, “I’m hoping for a late Christmas present, but not expecting an early Christmas present.”

The case is Pottawattamie County v. McGhee.

Comments

1.

Liz Jones
Nov 4, 2009 5:18 PM CST

We all need to be more worried about the “chilling effect”  of people losing 26 years of their lives because investigators and prosecutors didn’t do their job honestly.  They have immunity and they still won’t admit they messed up.  Forget the civil suit- just put the prosecutors in jail for the same amount of time served by these teenagers that were framed, that would get their attention quicker and their malpractice insurance wouldn’t cover that punishment.
Victim of the System in Alabama

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2.

JR
Nov 5, 2009 12:32 PM CST

Mr. Sanders’s cockiness shows.  The New York Times reports that Justice Kennedy, the swing voter on many cases, seemed very troubled by the prosecutors’ arguments.  He said that their logic dictates the worse the wrong, the stronger the immunity.
Even if he wins, I think Sanders showed his immaturity by predicting the timing.  I could envision a justice holding up the case, just to show up the advocate.

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3.

diogenes, I am here
Nov 6, 2009 6:09 AM CST

OK
Let’s just step back a second.
Take off the lawyer hat, and the law school hat, and the years of watching Law and Order hat
OK
Now we are just Americans
The cops and a prosecutor frame us with a crime and we are totally innocent.
NOW
Tell me again why this is not a crime and the prosecutors are immune?
OK - When you have that figured out, now make a flyer - like a brochure from a one day sale or a political campaign
Mail it to everyone in the US and say - THIS CAN HAPPEN TO YOU AND IT IS PERFECTLY OK
BR

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4.

Bush One
Nov 6, 2009 6:57 AM CST

“Asked when the Supreme Court will likely decide the case, Sanders said, ‘I’m hoping for a late Christmas present, but not expecting an early Christmas present.’”

So if they rule against him, is it still a present?

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5.

B. McLeod
Nov 6, 2009 7:27 AM CST

Well, Diogenes, I guess it’s OK because at least it’s better than “extraordinary rendition,” in the sense that they aren’t deported for torture.  Plus, a rigged hearing is better than no hearing at all.  So it would seem to follow that if “extraordinary rendition” is OK, framing the innocent must be OK.  Both practices are based on mere suspicion they might be guilty of something.

Bush One, it’s a present because he gets his name in the US reports either way.

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6.

Dan K.
Nov 6, 2009 7:43 AM CST

Why is it “surprising” that he’s an associate?  Is there some magical transformation that occurs to a lawyer that makes them a super lawyer when they suddenly own a few shares of a firm?

Maybe he’s simply an excellent litigator who has handled the case straight through and therefore has the best knowledge to go forward with it.

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7.

adam
Nov 6, 2009 8:16 AM CST

It is surprising because few partners trust their associates enough to handle their clients’ last chance at victory.  Besides, if your ass was on the line, wouldn’t you want the “best” to deal with your case?  I doubt you’d choose an associate over a partner, unless of course you were so sure you were going to win that you felt it did not matter (which may be a problem in itself).

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8.

Someone explain this kid's arrogance
Nov 6, 2009 8:33 AM CST

This 5th year is so painfully arrogant it is embarassing.  Dude—your Christmas present came in November when as a 5th year with 4 years of actual practice experience, you got to argue a real, live case before the Supreme Court of the land.  If he was half as smart as he thinks he is, he would keep his mouth shut about predicting a quick victory and recognize the rare opportunity he was given. 

Must say, though, that I am a little shocked that the County would pay $1.3 million in legal fees to date and allow a 5th year attorney to argue the case.  If he isn’t as victorious as he hopes, I might worry a bit about MB’s conversations with their E&O carrier.  IIMHO.

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9.

Context
Nov 6, 2009 8:37 AM CST

Perhaps this associate is the best lawyer that Mayer Brown has on staff.
OR
When a team is so confident it is going to win then it sends in the “B” players.
OR
When a team knows it is going to lose then they send in “C” players to get some game time.
OR
If you know the exercise is completely futile then you have nothing to lose. You send in the promising but overly cocky, self-absorbed but kisser.  You win either way. If the lawyer is successful, yeah.  If the associate gets knocked into reality, yeah.

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10.

Lincoln lawyer
Nov 6, 2009 8:57 AM CST

1.65 million to say “He’s a prosector; He’s immune” and you get a cocky 4th (really 3) year associate? There are an awful lot of good lawyers in Omaha/Council Bluffs, Lincoln, Des Moines that would have charged a lot less for more experience.  Wake up clients:  Big Law means too much money for too little quality work.

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11.

low standards
Nov 6, 2009 9:19 AM CST

Hope Mr. Sanders appreciates how nice it is to a boy but I’m pretty sure he doesn’t. Forget a female associate getting this kind of opportunity - female partners don’t get this kind of opportunity.

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12.

Guy_Incognito
Nov 6, 2009 10:03 AM CST

If Mr. Sanders gets a Christmas present, it will be as much from Mr. Katyal as the Court.  In the transcript of the oral argument, Katyal (as expected) comes off as much more clear, concise and convincing.  Sanders just seems confused and unable to spit the words out.

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13.

Capri
Nov 6, 2009 11:15 AM CST

I went to law school with Steve Sanders and I can tell you that he’s not cocky or arrogant, and he’s a bright, articulate, and caring person. I’m guessing that the reporter took some of his quotes out of context, and didn’t include the more humble quotes, because those wouldn’t fit with her vision of the story. Steve just does not sound like this in person, despite being incredibly accomplished, intelligent, and talented. Steve—best of luck.

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14.

JMG
Nov 6, 2009 11:44 AM CST

Yes, best of luck Steve, when some rising prosecutor buys some madeup BS from a jailhouse snitch and sends you or your kid to do 25 years hard time just for grins.

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15.

Don Quixote
Nov 6, 2009 11:55 AM CST

13/ Mr. Sanders/ Mr. Sanders’ Mother,

Thanks for posting here AND on ATL.

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16.

JR Hullverson
Nov 6, 2009 12:16 PM CST

Recent judicial candidate hearings emphasized ‘umpiring the law’, not composing it. The common law sovereign immunities are subject to change by statute, as in worker’s comp laws… and med malpractice limits, etc.  42 USC 1983 has stated ( for over 100 years)  ANY PERSON acting under color of law who violates civil rights….No one is beyond the rubicon of ANY PERSON, and yet all these immunities have been created. Can someone please explain how a state prosecutor or state judge is not “Any Person” acting under color of law.  Are all the construed immunities and Qualified immunities true to the “just umpiring” rhetoric of judicial candidates.  ... or all the immunities and exceptions simply Dred Scott wrong in disregarding the plain words, “ANY PERSON”?  Remember, Power Corrupts, ABSOLUTE POWER ( ie. IMMUNITY) ... CORRUPTS ABSOLUTELY.  By the way, I represented Griffin in police misconduct 1983 case, Griffin v. Officers Hilke and Stoll, 804 F.2d 1052 (8th Cir. 1986), cert. denied 482 U.S.914, 96   L.Ed. 2d 673, 107 S. Ct. 3184 (1987).Griffin v Hilke and Stoll, in 1983 St. Louis, (8th Cir) where policeman Hilke shot off the leg of a black unarmed youth climbing a chain link fence to flee after a fight over change owed from other kids who he gave $10 to buy him a 6-pack of beer for him.  Just before Tennessee v Garner affirmed the deadly force parameters. Thanks Mike Avery, author of Police Misconduct Law and Litigation, and my former teacher at Yale. JR

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17.

Someone explain this kid's arrogance
Nov 6, 2009 2:23 PM CST

Read the transcript of oral arguments at the jump.  Mr. Sanders, who may be well on his way to becoming a fine lawyer, is nowhere in the league of the experienced jurists on the court, Mr. Katyal or Mr. Clement.  He is respectable, but not the brilliant uber-associate who is singularly positioned to argue the case before SCOTUS that many on this board would like to believe. 

And I stand corrected and even more horrified.  He’s actually got 3 years with the firm.  He may have been the most brilliant thing to come out of UM in a long time, a stellar school administrator in his past life, and an all around great guy, but BASED ON THE RECORD, I am not convinced that he’s all that and a bag of chips.

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18.

GWK
Nov 6, 2009 6:07 PM CST

I think it is obvious that the plaintiffs were wronged.  Maybe the county could settled the case for the $1.6 million they are paying to a very large Chicago law firm to fight it?  What do you all think?

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19.

B. McLeod
Nov 6, 2009 6:32 PM CST

The answer may lie in the Iowa law that covers the county’s duty to defend employees sued for tortious conduct in office.  It could well be that the individual defendants control the settlement decision, even though the county is paying for the litigation.

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20.

DMP
Nov 7, 2009 6:39 AM CST

I am not a law student or affiliated with the legal system in any way, but the answer seems simple to me:  I think dirty prosecutors should be accountable and liable for illegal actions that either take away or attempt to take away the life, liberty and pursuit of happiness of american citizens - our unalienable rights guaranteed in the constitution. Somewhere in the system the entire process has been converted to guilty until proven innocent, when the law says the opposite!

There is so much trepidation that the reality of the issue is being over ridden. I think that if the door is open for prosecutors to be held liable for manipulation and tainting cases that incur serious offense and/or serious sentence then liability should be an issue, when the evidence is sufficient to justify fraudulant actions. And I think that a seperate board of panel, outside of the judicial system where the fraud occurred should review the records for possibility of illegal activites. There are too many connections between Judges, Prosecutors and Public Defenders to guarantee the system will not be contaminated.

Corruption in the courts….average people go to jail every day and prosecutors get away scot free…seems to me they have gotten a little too cocky in their immunity and need a reality check.

THERE NEEDS TO BE AN ACCOUNTABILITY WITH CONSEQUENCES FOR THEIR ACTIONS, IF ILLEGAL. EITHER MONETARY COMPENSATION OR JAIL TIME.

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21.

M. S.
Nov 7, 2009 5:06 PM CST

Somebody essentially titled this article to get the usual—ATTENTION.  If I was looking at the right bio, Steve Sanders with Mayer Brown who graduated from U Mich Law, well, he is not a typical associate in his/her late 20s or even early 30s. This guy has life experience and went to law school after 15 years of other work experience.  So, not that big of a deal for him to be a 3rd or 4th year associate and arguing at the Supreme Court.  If you know your case you know your case.  Doesn’t matter if you’re in front of a federal circuit judge or the Supreme Court.  From what I’ve heard, Supreme Court justices are also fallible and inconsiderate, so, no need to hold them up to some unnecessarily high pedestal.

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22.

B. McLeod
Nov 8, 2009 3:50 PM CST

Yes, at times, some of the justices could stand to work on their less than plorable portment.

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