Well, this could be an interesting oral argument.
Next week’s Supreme Court hearing in People v. Strong will feature an unusual alignment that comes after public acrimony between a party’s counsel and amici curiae who are all on the same side. The defendant’s attorney refused to share argument time with supporting amici, and has criticized their briefs and them personally, but the court granted one amicus request to argue anyway, giving the amicus 10 minutes that is “separate and apart from the time allotted to either party.”
The arrangement is counter to rule 8.524(g), which states that “[a]n amicus curiae is not entitled to [Supreme Court] argument time but may ask a party for permission to use a portion or all of the party’s time.” However, subdivision (a) does allow the court to alter its argument rules “by order.”
Strong involves the scope of Senate Bill No. 1437, 2018 legislation that allows resentencing of some defendants convicted of felony murder or murder under a natural-and-probable-consequences theory. Defendant and three different amici all claim in their briefs that he was wrongly deprived of a hearing on his entitlement to resentencing. But defense counsel didn’t like the amici’s approaches, going so far as to file an answer to the amicus briefs saying the briefs “ignore two important components of the record” and disassociating herself from their analyses.
Things didn’t get any more cordial after two of the amici — the State Public Defender and an attorney appointed to represent defendants on appeal in seven similar cases — asked the court to participate in the argument. (Here and here.) The Public Defender’s request said that defense counsel hadn’t responded to requests to share time and that amici’s “analysis does not conflict with [the defendant’s] arguments and would provide an alternative ground for relief.”
Defense counsel then did respond, writing to the court, “the positions of the amici do not aid in deciding the issue that this case presents” and, in fact, “it would be adverse to [the defendant’s] interests” to have amici argue because they “have not focused on the simple issue before the court, and attempts to over complicate that issue will adversely impact [the defendant].”
This was followed several days later by another letter reporting to the court about what the defendant’s lawyer claimed was the most recent “in a series of disparaging communications . . . from amici . . ., all of them questioning counsel’s work and counsel’s decisions in this matter and, in some cases, demanding that counsel be accountable to one or more amici.” The letter also said that, “by taking the extraordinary step of requesting amici’s own argument time, amici have taken their private criticisms of counsel’s work in this case into a public forum” and that “amici have shown the greatest disrespect for counsel.”
The court’s order, filed a week ago, says the Public Defender “may present argument after appellant’s opening argument and before respondent’s argument.”