An Update on Mandamusing Them If They Won’t Throw Off the Chains.

11 Sep

An Update on Mandamusing Them If They Won’t Throw Off the Chains.

September 11, 2017

By Carl GunnHanging Out with Carl Gunn

This post is just a short update on enforcement of the Ninth Circuit’s opinion strictly limiting shackling in United States v. Sanchez-Gomez, 859 F.3d 649 (9th Cir. 2017) (en banc). You may recall a post a couple of months ago on a petition for writ of mandamus our Federal Public Defender friends in Arizona filed to stop their district court’s efforts to avoid complying with Sanchez-Gomez. The Arizona office filed a petition for writ of mandamus and emergency motion for an injunction requiring compliance while the petition for writ of mandamus was pending, and the Ninth Circuit ordered a response to the petition and granted injunctive relief in the interim, ordering that the Arizona District Court start complying with Sanchez-Gomez immediately. (See “Mandamus Them If They Won’t Throw Off the Chains!” in the July 2017 link at the right.)

Well, it may not be a big surprise in light of the grant of injunctive relief while the petition for writ of mandamus was pending, but the petition was granted a month later. (While I was on vacation, or I would have posted about it sooner.) A copy of the order is attached here, and it makes clear that courts can’t delay compliance just because the mandate has been stayed. So you now have three opinions and/or orders to throw at your judges – the original Sanchez-Gomez en banc opinion, the order granting injunctive relief while the petition for writ of mandamus was pending, and the order granting the petition for writ of mandamus. They really do have to throw off those chains.

About the Blog

Shortly before I moved on after 28 years of work as a Federal Public Defender, one of the younger attorneys I had the honor to mentor forwarded me an e-mail he’d received from an Assistant United States Attorney. The e-mail complained that my younger colleague was being extremely frustrating, that my colleague was making far too much of a “simple little case,” that the client in the case was going to be deported no matter what, and that my colleague was forcing the prosecutor to “expend a tremendous amount of effort” on what the prosecutor characterized as a “silly issue.” He ended his e-mail by asking, “Have you been hanging out with Carl Gunn?”

Some people would have been insulted by this, but I felt rather proud. Making as much as we can out of what the government sees as “simple little cases,” litigating issues despite the government’s view that they might be “silly,” and “expend[ing] a tremendous amount of effort” on behalf of clients who have the full weight of the government thrown up against them – often with the government’s view that the case is open and shut, or “simple” – is our calling as public defenders and defense attorneys. We all have our different reasons for doing it, but it’s a crucial task – for our clients, our system, and ourselves. As Sir Thomas More was said to say in “A Man for All Seasons” in response to his future son-in- law’s exclamation that he’d “cut down every law in England” to get at the devil: “Oh, and when the last law in England was down and the Devil turned round on you – where would you hide, Roper, all the laws being flat?”

I’m proud if “hanging out with Carl Gunn” means not just accepting the government’s view that cases are “simple” and “little,” that issues are “silly,” and that we shouldn’t expend resources on our clients. Hence the name of this blog: “Hanging out with Carl Gunn.” I hope to offer some thoughts and ideas that the government may think are “silly,” but I respectfully don’t; that you can use in cases that the government may think are “simple,” but aren’t so simple when looked at more critically; and that are an entirely appropriate way to expend our resources. And in the spirit of this being a “hanging out” together, there might be guest bloggers from time to time with their “silly” ideas to offer. I hope you find some of the ideas on this blog helpful and offer whatever comments you might have to add to them.