Next month, one of my favorite NITA authors, Brent E. Newton, will star in “Constitutionalizing” Your Objections in a Criminal Case, a studio71 webcast we’ll be filming at our headquarters in Boulder. (It’s free, by the way, so please register!) Brent has published three textbooks with NITA, and it’s his latest book, Trial Advocacy in Action: 20 Exercises to Sharpen Your Criminal Case Skills, that brought us together as author and editor. During the three months it took to prepare his manuscript for publication, Brent and I jabbered about lots of different things—the joy of being Irish, for example, and where we like to get Middle Eastern food in the DMV (Moby Dick House of Kabob for Brent, Lebanese Taverna for me); what we learned from Breaking Bad about how to poison someone; . . . and even, on occasion, matters related to Brent’s manuscript—but there was still a lot of territory we just didn’t cover. I proposed to Brent we make up for it in a round of “Asked and Answered.” Here it is.
In Trial Advocacy in Action, you crossed a realistic, complex federal prosecution with twenty classroom exercises that require students to analyze the case, at every step of the prosecution, through the lens of landmark U.S. Supreme Court cases. I was keen on the compelling fact pattern you devised, which involved a mentally disturbed American who becomes radicalized and poisons members of a Jewish temple during a Passover seder. When case file authors create a narrative that’s au courant and torn from the headlines, I think it makes for a lively classroom and a richly engaging, memorable learning experience for students. How did the idea of creating exercises around a single complex federal prosecution develop? Was there another narrative you had considered prior to choosing the homegrown terrorist, or were you well settled on it before you started?
When I was a public defender, I worked on several cases with terrorism-related charges filed against U.S.-born clients. I also worked on many death penalty cases during my career. Both of those types of cases typically involve compelling facts. When I started writing the book, I believed from the outset that the storyline had to involve themes from those two types of cases. The hypothetical in my book did not draw heavily from any particular case but, instead, is an amalgam of many of my prior cases, as well as some recent cases in the media.
Your fictitious defendant, Reginald McKay (a.k.a. Ahmed Hammami) wends his way through the federal court system, with student exercises focusing on McKay’s pretrial motions; continuing into jury selection, his trial, and sentencing; and concluding with postconviction motions. Given what you know about federal sentencing as the deputy staff director of the U.S. Sentencing Commission, what do you think would be a reasonable legal outcome for McKay?
I invoke the Fifth.
In 1993, you handled a capital case before the Supreme Court of the United States, which just happened to be the first case Justice Ruth Bader Ginsburg ruled on upon her appointment to the high court—and she took your side. What do you remember about the Notorious RBG from that day?
It was one of many Texas death penalty cases involving final appeals (with execution dates) that I handled in the early 1990s when I was a young lawyer. The 1990s were a very active time for death penalty appeals, in Texas and elsewhere. Justice Ginsburg had been appointed a month before, in August, but had not yet participated in any cases before then. It was during the Court’s summer recess, so the only types of cases that the Justices had to rule on were death penalty appeals involving motions for stays of execution. I had filed such a motion, along with a certiorari petition, for a client in Texas. During the previous month, Justice Ginsburg had not participated in other death penalty cases. The Court’s orders denying stays of execution in those cases had said, “Justice Ginsburg took no part in the consideration or decision.” In early September, the Court entered an order in my client’s case denying a stay of execution. Only Justices Blackmun and Stevens voted for the stay. The order in my client’s case didn’t say that Justice Ginsburg hadn’t participated in the decision. It was the first case where she actually had voted. Ten minutes after the first order came through the fax machine, a second order came. It said “corrected order.” The second order said that Justice Ginsburg joined Justices Blackmun and Stevens in voting for a stay of execution. My phone started ringing at that point—reporters from the New York Times, Washington Post, and National Law Journal were calling about Justice Ginsburg’s first case. As a twenty-five-year-old lawyer, I felt pretty overwhelmed.
It’s remarkable that you had a case before the Supreme Court at such a tender age. If you were only 25, you must have recently passed the bar and been practicing only a short time, no? Can you talk a bit about how young you were when that happened and what your trial by fire was like?
In 1992, I both graduated from law school and became licensed at age twenty-four. After clerking for the Fifth Circuit for one year, I began to work for a federally funded nonprofit public defender organization that represented death row inmates in Texas. I hit the ground running in that job. Within the first few months, I had several clients with execution dates, including the one for whom Justice Ginsburg cast her first vote. I also wrote the certiorari petition granted by the Court in October 1993 in McFarland v. Collins. The Court ultimately reversed the judgment of the Fifth Circuit in that case in 1994. In one manner or another, I worked on seventy-seven death penalty cases in Texas in the early to mid–1990s.
You spent the summer of 2012 teaching an introductory course on the U.S. criminal justice system at the Seoul National University in South Korea and will be returning there to teach this coming summer. What reflexively comes to mind when you think of that experience?
My students there were some of the smartest, hardest-working, and kindest law students whom I’ve ever taught. I taught my course entirely in English, including a lengthy final exam. I assigned one of my NITA books, Practical Criminal Procedure, as the textbook. The students got together and translated that entire book (over 300 pages) into Korean in order to make it easier for students less proficient in English to understand the course material.
Tell me about your first experience with NITA. How did you come to join us?
I created a law school advocacy course, Criminal Litigation, at the University of Houston in 2003. I contacted NITA about publishing my course materials as a book. NITA agreed. Criminal Litigation is currently in its fourth edition.
What’s the biggest risk you’ve ever taken that’s paid off?
Leaving my career in Houston in 2009 (where I was an established defense attorney and law professor at the University of Houston) and moving to Washington, D.C., to work for the U.S. Sentencing Commission and teach at Georgetown and American Universities. I uprooted my wife and kids (then middle schoolers) in the process. It paid off for me and my family.
Who is your greatest mentor?
Fifth Circuit Judge Carolyn King, for whom I clerked in 1992–93.
Rumor has it you’re a major-league baseball fiend. What are some of the most memorable games you’ve been to?
I went to the two longest post-season games in MLB history—two eighteen-inning games, one in Houston in 2005 and the second in Washington, D.C., in 2014. Amazingly, the starting pitcher for the visiting teams in both cases was the same person, Tim Hudson. He played for the Braves in 2005 and the Giants in 2014. And the week before I went to the eighteen-inning game in D.C., I went to a Washington Nationals game (their last of the regular season) where the pitcher threw a no-hitter. The baseball gods smiled down on me that week.
Who would be in your fantasy baseball lineup?
Starting pitcher: Bob Feller. Closer: Mariano Rivera. Catcher: Johnny Bench. Outfielders: Babe Ruth, Roberto Clemente, and Hank Aaron. Infielders: Lou Gehrig, Jackie Robinson, Derek Jeter, and Brooks Robinson. Combination of offense, defense, and character.
What three things are vital to your day?
My family, intellectual stimulation (learning something new every day), and coming home to my dog.
Finally, why do you write for NITA?
I love NITA’s merging of legal theory and legal practice. No other publisher does it as well.
Register now to catch Brent Newton in action during his one-hour webcast on Friday, May 20. (Did we mention it’s free?)
Enjoy this interview? Find more of our “Asked and Answered” interview posts with NITA personalities here on The Legal Advocate.