September 10, 2010

A quirk of procedure on petitions for review in criminal cases

An appellate lawyer at another firm has raised a question about petitions for review in criminal law cases. This lawyer said someone at the DOJ informed him they don’t file answers to petitions (APFRs) in criminal cases unless the Supreme Court asks for an answer. So, the question is, does the Supreme Court ever grant review in criminal cases where no answer was requested?

Not knowing the answer, I took a look at the court’s online list of “review granted” cases, and checked out a few of the corresponding dockets for criminal cases. The first one I pulled up showed review was granted on the court’s own motion. The second one pending on review didn’t show any APFR having been filed; it also didn’t show any request for response. That one was a grant-and-hold. The third one was a full grant of review, and again reflected neither a request for APFR having been made nor an APFR having been filed.

This got me to wondering whether requests for an answer even show up on the docket. Not everything does, after all (e.g., amicus letters in support of review). So I went to the ever helpful folks at the clerk’s office, who said such requests from the court are entered on the docket. So, for those of you who might be curious about this bit of Supreme Court trivia, my conclusion is that the court does grant review in criminal cases where they didn’t ask for, or receive, an answer. If anyone has more info on this, let me know and I’ll supplement this post.

2 Responses to “A quirk of procedure on petitions for review in criminal cases”

  1. Here is one of my cases, which was granted review, albeit on a grant-and-hold basis, without an answer (People v. Henry, S183964). Lead case was granted without an answer to PFR as well.

    I’ve been handling criminal appeals for a few years, and, at least anecdotally, the court does grant PFRs without the AG filing an answer. Whether that happens often is another matter. Your pool of cases where defense PFR in a criminal case has been granted in any given year is very small, so you’d have to dig a few years back to get a representative sample and determine how many of these got granted without the answer being filed.

  2. Very belated thanks, Gene, for your helpful comment, which I somehow overlooked when you sent it. – LP

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