The Volokh Conspiracy

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Supreme Court Denies Leave To File Amicus Brief in Hemphill v. New York

The government opposed the brief, which was filed by Hemphill's prosecutor.


Under Supreme Court Rule 37.2(b), amici must seek consent from the parties to file a brief. Often, after cert is granted, the parties provide blanket consent for all amici. And even when blanket consent is withheld, parties will usually grant consent if asked. Sometimes, parties will simply take "no position" on whether a merit-stage amicus brief can be filed. This non-answer amounts to consent, but the amici will have to file a motion for leave. And in rare cases, a party will deny consent. And in even rarer cases, the Supreme Court denies leave.

Attorney Adam Oustacher met this final fate. Today the Court issued its order list from the so-called "long conference." The first entry was unusual.

The motion of Adam Oustatcher for leave to file a brief as amicus curiae is denied.

Oustacher had tried Hemphill for the murder of David Pacheco, Jr.  He sought leave to file the brief at "at the request of Joanna Sanabria, the mother of David Pacheco, Jr." Oustacher charged that the Joint Appendix omitted important records, and the parties did not address certain threshold issues.

As one of the attorneys involved in petitioner's trial and as demonstrated by the accompanying amicus brief, amicus is familiar with evidence not presented to the Court by petitioner or respondent and raises material legal issues the parties failed to address bearing upon the issue at bar. As to the former, the Joint Appendix and briefs submitted by the parties omit extensive and significant portions of petitioner's trial to such a degree as to not provide a fair and accurate record of the underlying proceedings. Regarding the latter, the parties to the appeal do not address the threshold issue of whether the statement at issue constitutes evidence against petitioner within the meaning of the Sixth Amendment, do not apply the primary purpose test, and do not address the doctrine of forfeiture by wrongdoing. Amicus thus submits that the accompanying amicus brief can offer a helpful and valuable perspective distinct from both petitioner and respondent. For these reasons, amicus seeks leave of the Court to file the accompanying brief as amicus curiae. 

Hemphill–the person Oustacher tried!–consented to the brief. But New York opposed the brief. Oustacher explains:

The consent of petitioner has been obtained. Respondent withheld consent by email dated June 24, 2021, which stated: "On behalf of this Office, I write to inform you that we do not consent to your request to submit an amicus brief." Bronx County District Attorney Darcel Clark and her office, who consented to eight amicus briefs submitted on behalf of petitioner, provided no explanation in their email as to why they wish to deny Ms. Sanabria's request that the trial attorney who successfully prosecuted petitioner submit an amicus brief in the instant matter. In a July 6, 2021 teleconference, Assistant District Attorney Gina Mignola indicated that respondent withheld its consent because New York's Rules of Professional Conduct Rule 1.11(a)(2) provides that a former government lawyer may not represent a client in connection with a matter in which the lawyer participated personally and substantially when employed by the government. After amicus informed respondent that Rule 1.11(a)(2) is inapplicable because no attorney-client relationship exists between amicus and Ms. Sanabria, respondent continued to withhold its consent without further explanation.

I have no insights about the applicability of Rule 1.11(a)(2). Perhaps the Court simply denied the brief because it was untimely. In any event, these denials are very, very rare. I searched Westlaw for "leave #to file a brief #as amic! curiae is denied." Before today, the last denial came in 1993. And that was a cert-stage brief.