Saturday, December 10, 2005

Supreme Court report

from The Daily Astorian
Friday, December 9, 2005

Supreme Court visit has local prosecutor in awe of the law
High court hears appeal in Oregon death penalty case


By JOSHUA MARQUIS
For The Daily Astorian

On Wednesday, Clatsop County District Attorney Joshua Marquis was admitted to the Bar of the U.S. Supreme Court. Here is his report from the nation’s capital.

WASHINGTON — Wednesday morning was not my first time in the nation’s capital, nor in the Supreme Court building. Until that day, however, I had never gone farther than the gift shop and down to the basement to pick up an application for admission to the Bar of the Supreme Court.

When I entered the chamber of the Supreme Court of the United States, I was immediately struck by its surprising intimacy.

Make no mistake, the architectural grandeur of the 70-year-old building broadcasts the message that this is the high temple of American justice. I could not help but be awed when a bell sounded after the courtroom was packed with lawyers, guests and spectators, and the Marshal of the Court called out: “Oyez! Oyez! The honorable Justices of the Supreme Court are now in session. Draw near and you shall be heard.”

Dark red curtains parted, and all nine justices emerged simultaneously.

I was in the courtroom for two reasons. I would be admitted to the Bar of the Supreme Court, and I was there to hear arguments concerning a case I had prosecuted decades ago.

My brief moment was right after court opened. Oregon Attorney General Hardy Myers approached the podium and asked, using carefully scripted words, to consider “Joshua Kai Marquis of the Bar of Oregon for admission to this Court.” I was then directed to stand, and the Chief Justice of the United States looked directly at me, smiled and said, “Mr. Marquis, you are admitted.”

It was a heady moment and truly an honor, as it is unlikely I will ever personally argue a case before the Supreme Court.

The Guzek case – again
The case that brought me to the American temple of justice has deep roots.

In 1987, Randy Guzek murdered Rod and Lois Houser in their remote home in Central Oregon. In 1988, Guzek was found guilty and sentenced to death. In 1990, the Oregon Supreme Court threw out all then-existing Oregon death sentences, and in 1991 I was the trial prosecutor for what became known in the odd idiom of law as “Guzek 2.”

The jury again sentenced Guzek to death and a few years later the Oregon Supreme Court reversed the death sentence, on the sole ground that the trial judge should not have permitted the victims’ family from briefly telling the jury what the Housers were like.

In 1997, at the request of the victims’ family, I returned to Bend for two months as a special prosecutor. A jury sentenced Guzek to death again, this time after deliberating less than two hours. A couple of years later, the Oregon Supreme Court overturned “Guzek 3,” primarily on the grounds that he should have been considered for life without parole, a sentence that did not exist when he committed his crimes.

The Oregon Attorney General’s Office filed for a writ of certiorari which was granted and set for oral arguments in Washington, D.C., on Pearl Harbor Day.

Singular attention
Of the thousands of appeals to the Supreme Court each year, less than 100 are granted review (known as certiorari), and of those only a handful are scheduled for oral arguments, earning their lawyers a trip to the most important courtroom in America. In those few cases, each side gets exactly 30 minutes.

On either side of a podium, there are three chairs for each side. On the desk in front of each chair is a goose quill pen waiting for ink wells that have been gone for more than a century. In the Guzek case, one of the prosecution’s chairs was taken up by a deputy solicitor general of the U.S. Justice Department, who wore a formal tailcoat.

There are two lights on the podium from which the lawyers address the court. The white one is lit when time is almost up. When the red light comes on, attorneys are expected to stop – in mid-sentence if necessary. Unlike on television, the criminal defendants are not present.

I am a trial lawyer, not an appellate litigator, so it takes a special restraint to sit 20 feet away as appellate counsel and the nine Justices discuss a case into which I’ve poured my heart and soul for a decade. Yet, as Oregon Solicitor General Mary Williams was interrupted almost immediately into her argument, I was instantly grateful that my role was limited to that of observer.

I was concerned that Williams was being peppered with questions that seemed to ask “What are we doing here?” but she had deft responses to all of the justices’ pointed questions.

Then the chief appeals lawyer for Guzek, Richard Wolf, stood to defend the decision of the Oregon Supreme Court. Any worry I had quickly vanished as one justice after another besieged Wolf with even tougher questions. One national reporter described Chief Justice John Roberts as “incredulous.” Justice Steve Bryer, a member of the court’s four-person liberal block and known as a critic of the death penalty, pounced on Wolf with demands about what would happen at “Guzek 4” if the high court agreed with him.

“I want a ‘yes’ or ‘no’ answer,” Breyer finally demanded.

I actually felt sorry for Wolf, particularly after a seasoned Supreme Court reporter for a national newspaper told me he had rarely seen counsel take such a beating.

Of course, the justices could still vote his way. They meet in secret to decide cases but, unlike other appeals courts, they always return with a decision within the term they hear the case.

Earnest respect
For the hour we were in court all traces of rancor that often exist in the trial court were gone, replaced by an earnest respect for the law. And, as solemn as the subject and serious the proceedings, the judges don’t hesitate to laugh. It was surprising to see arch-conservative Justice Clarence Thomas chatting up his neighbor, Justice Breyer.

And there is the solid reminder of my own oath of office, chiseled in marble : “A Nation of laws, not men.” It should not matter who wears the robe or sits as district attorney, the law should be equally applied to all, without fear or favor, or promise of reward.

I’ve tried hundreds of cases, from shoplifting to aggravated murder, and I cannot but be moved by the dignity and civility of this elaborate ballet of American justice.

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