So, uh, about that op-ed

I’ve never been comfortable talking about my own pending cases here on the blog or in the media. Offhand I can’t remember a time I’ve ever mentioned a pending case of mine here (unless this counts), and even my post-decision comments have been by no means chatty. I’m a firm believer that briefs and oral arguments are where you persuade circuit judges, not “oh and another thing” blog posts or snappy soundbites in the paper. Scotus practitioners now regard “virtual briefing” as part of the gig, and maybe they see my squeamishness as naive or passé. But I’m not persuaded yet that virtual briefing has trickled down to circuit practice, nor that it should.

And so the situation I’ve put myself in now is an unfamiliar one: I wrote an op-ed that discusses a pending case of mine. For anyone who cares, I want to explain briefly how it came to pass.

Back in January, before I’d heard the word coronavirus, I was appointed by the Court to represent an indigent defendant named James Davis for his appeal from his criminal conviction. His appeal remains pending, currently on hold until the Supreme Court decides a potentially related case.

Last month I came to believe that Davis is at risk from covid-19 infection, so I filed a motion for his release pending appeal, which the government opposed and which a two-judge motions panel denied on March 20. The order denying the motion stated that Davis may renew the motion if he’s diagnosed with covid-19.

After denial of the motion, I came to believe that it was important that more lawyers try to get vulnerable clients out of prison, and also that more courts be granting such requests, without requiring a covid-19 diagnosis.

To that end, after the court ruled, I  wrote an op-ed using Davis’s case to illustrate what I thought lawyers and courts should do in light of the pandemic and submitted it to the Philadelphia Inquirer on March 22. (Getting no response from the Inquirer, :(, I tweeted along similar lines a few days later.)

Submitting an op-ed about a case of mine made me nervous, frankly. But because I saw it as an unusual and urgent situation, and because the court had ruled on the motion already, I went ahead and sent it off.

Flash forward a couple weeks. As various new facts came to light, I decided to file a renewed motion for Davis’s relief on April 1. The government has again opposed the motion and it now is pending for decision before the court. [UPDATE: it was denied.]

The day after I filed the renewed motion, April 2, the Inquirer contacted me to say it had (finally) decided to run my op-ed. After minor updating tweaks, my op-ed ran online starting Friday and will be in the print edition tomorrow.

The timing of the op-ed’s publication ain’t what I’d have chosen. I wish it ran earlier, and I wish it hadn’t run while my renewed motion in the case is pending. I weighed telling the paper not to run it, fearing it could reduce my client’s odds of being released now. But in the end I decided my fear was unfounded and my message was one I still hoped the public would hear.

If you’ve read this far, (a) sorry for the self-absorption, and (b) I’m not certain I’ve made the right choices as an advocate here and my purpose isn’t to persuade you that I have. This is all new to me. I think my point boils down simply to this: appearances notwithstanding, I didn’t decide to suddenly start working the refs.

For what it’s worth.