Two years ago, I wrote about the Third Circuit’s remarkable decision to hear the pro se interlocutory appeal of Chaka Fattah Jr. I said:
When a pro se criminal defendant files an interlocutory appeal asking the Third Circuit to stay his prosecution so that he can file pro se appeal to argue why his indictment should be dismissed, his odds of success are more or less zero.
But not actually zero, we now know, because earlier this month the court stayed the criminal prosecution of Chaka Fattah, Jr., son of the embattled member of Congress, and ordered expedited briefing.
* * *
The chances that the court will allow a pro se defendant to orally argue his appeal are zero …
… more or less.
Sadly for Fattah, his interlocutory appeal was dismissed without oral argument and, after a trial, he was convicted of fraud and sentenced to five years in prison.
Now, Fattah has appealed his conviction — pro se, naturally. After the briefs were in (the government needed 3 extensions!) Fattah once again defied long, long odds when the panel granted him oral argument. The court ordered the marshals to produce Fattah, and yesterday he got to orally argue his appeal. A link to the argument audio is here.
When was the last time the Third Circuit heard pro se oral argument in a criminal appeal by an incarcerated appellant? I’ve never heard of it before.
Jeremy Roebuck has this lively report on the oral argument at Philly.com. The panel was Chief Judge Smith and Judges Hardiman and Krause. Roebuck reports that Fattah’s argument elicited “skeptical questions” from the panel and “may not ultimately lead to Fattah’s success.”
The court appointed Ellen Brotman, a top white-collar and appeals lawyer now in solo practice in Radnor, PA, to file a brief and orally argue on Fattah’s behalf as amicus curiae. AUSA Eric Gibson argued for the government.
Chutzpah is not always rewarded in the staid world of federal appellate practice, so it’s fascinating to see how effective Fattah has been in getting the Third Circuit to take his case so seriously.