United States v. Battle , 173 F.3d 1343 ( 1999 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
------------------------------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 97-9027 2/18/98
THOMAS K. KAHN
-------------------------------------------- CLERK
(D.C. No. 1:95-cr-528)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY GEORGE BATTLE,
Defendant-Appellant.
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Appeal from the United States District Court for the
Northern District of Georgia
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(February 18, 1998)
Before HATCHETT, Chief Judge, EDMONDSON and BLACK, Circuit Judges.
B Y T H E C O U R T:
Appellant’s “motion for
reconsideration of denial of motion to
file a seventy-five [the first motion was
for eighty pages] page brief and to accept
seventy-five page brief” is DENIED.
Even in a death-penalty case, the court
expects counsel to be highly selective about
the issues to be argued on appeal and about
the number of words used to press those
issues. Counsel in this case remind us that
they are experienced and capable lawyers.
We believe it. But we are experienced and,
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we hope, capable judges. This case is not for
any of us the first case involving a death
penalty; deciding such cases is our business.
We do not understand a limitation on
the number of pages in a brief to be a blow
against an appellant’s case or an act that
undercuts effective advocacy. To the
contrary, we see reasonable limitations
of pages to be a help to good advocacy by
directing busy lawyers to sharpen and to
simplify their arguments in a way that --
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as experience has taught us -- makes cases
stronger, not weaker.
Our views on what constitutes
effective advocacy are not heretical.
Justice Story wrote these words: “Who’s a
great lawyer? He, who aims to say the least
his cause requires, not all he may.” Joseph
Story, Memorandum-book of arguments
before the Supreme Court, 1831-32, in Life
and Letters of Joseph Story 2:90 (William
W. Story ed. 1851). Justice Holmes once
said, “One has to try to strike the jugular
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and let the rest go.” Oliver Wendell Holmes,
Speeches 77 (1934).
The Supreme Court of the United States
has also stressed in its opinions that the
best advocacy relies on selectivity. It is
well settled that counsel need not “raise
every ‘colorable’ claim” on appeal. Jones
v. Barnes, 103 S.Ct. 3308, 3314 (1983). The
Supreme Court wrote, “Most cases present
only one, two, or three significant
questions. . . . Usually, . . . if you cannot
win on a few major points, the others are
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not likely to help, . . . .” Jones at 3313
(quoting R. Stern, Appellate Practice in the
United States 266 (1981)). And, the former
Chief Judge of this circuit, John C. Godbold,
has given this advice: “[C]ounsel must
select with dispassionate and detached
mind the issues that common sense and
experience tell him are likely to be
dispositive. He must reject other issues or
give them short treatment.” John C.
Godbold, Twenty Pages and Twenty Minutes
Revisited 14 (1987) (revised version of
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Twenty Pages and Twenty Minutes --
Effective Advocacy on Appeal, 30 Sw. L.J.
801 (1976)). Counsel, in this case, raise no
fewer than 14 distinct issues.
Counsel stress that in other cases they
were allowed to file longer briefs. We note
that of the cases they cite to us, only one
was in this circuit. That case (United
States v. Chandler, 996 F.2d 1073 (11th Cir.
1993)) was, as we recall it, the case that
would lead to what was the first reported
decision in the nation on the pertinent
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federal death-penalty statute. Because the
present case arises against the background
of now existing precedent, we think it is
not much like United States v. Chandler
when it comes to setting page limitations.
Also, we remind counsel that the court
has the power to request additional
briefing if, after we look at the initial
briefs, we need something more. But, we
reject the idea that every death-penalty
case deserves more pages than we
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ordinarily allow other cases. On length of
briefs and timeliness of briefs, the usual
rules of this court apply to cases involving
the death penalty just as they apply to so
many other important cases. And, we
reject that this case demands significantly
more pages, for now at least.
Counsel are directed to file a properly
spaced, properly printed initial brief not
to exceed 60 pages (notwithstanding all
that we have said, we -- as a matter of
grace and as a courtesy to counsel -- will
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allow roughly a 10% increase in pages above
a standard brief) within 21 days of the
date of this order.
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