Two Massachusetts lawyers see their Supreme dreams come true

Issue January 2005 By Krista Zanin

Photos by Krista Zanin
Cathryn A. Neaves, chief of the Appellate Division of the Massachusetts Attorney General's Office, was the respondent in Commonwealth v. Smith, while David J. Nathanson, staff attorney at Committee for Public Counsel Services was the petitioner.
For two Massachusetts appellate lawyers, Wednesday, Dec. 1 won't be erased from their memories for the rest of their lives.

That day Massachusetts Attorney General's Office Appellate Division Chief Cathryn A. Neaves and Committee for Public Counsel Services staff attorney David J. Nathanson appeared before the United States Supreme Court, an opportunity most lawyers only dream of. Of about 7,000 cases on the docket each term, the Supreme Court grants plenary review and oral argument to only about 100 cases.

"It was really a privilege to argue there on behalf of the commonwealth," said Neaves, the respondent in Smith v. Commonwealth, who also serves as comments editor for the MBA's Massachusetts Law Review. "It really was a great honor, a truly great honor."

Nathanson, who served as petitioner, also found the experience an honor, as well as intimidating.

"They are very prepared and they really know the cases and their clerks are among the best," Nathanson said. "They cut right to the chase and they didn't let up."

Nathanson and Neaves made a bit of Massachusetts history, too. It has been 20 years since a purely criminal law case arising from Massachusetts state courts has been heard by the nation's highest court. Attorney General James M. Shannon in 1989 argued Massachusetts v. Oakes before the Supreme Court, but that case was based more on the First Amendment. It was in 1984, in the case of Justices of the Boston Municipal Court v. Lydon, that the Supreme Court last heard a purely criminal law case from the Bay State.

This year, in Smith v. Commonwealth, the question before the Supreme Court is: In a jury trial, may the judge reconsider her legal ruling allowing a motion for directed verdict and submit the charge to the original jury without twice placing the defendant in double jeopardy?

Nathanson argued that once a judge acquits a defendant, even if it is a mistake, the decision is irreversible because, if changed, it would violate an individual's protections against double jeopardy.

Neaves argued the defendant was not subjected to double jeopardy because the judge reconsidered her motion for a directed verdict prior to the case being handed to the jury - the first and only jury sworn to render a verdict on the facts.

Nathanson said he was "shocked" when the Supreme Court granted certiorari in the case, but was also hopeful that the court would because it had faced a similar case the year before in Price v. Vincent, but had resolved the issue on procedural grounds without confronting the substance of the question.

"They had a very similar case last year and they really wanted to decide it, but couldn't because it was complicated by habeas corpus state of review," Nathanson said. "The tactic I took in the cert petition is that this is much less complicated than what the court was dealing with, because there was no standard of review …the issue was presented squarely.

"I was pretty hopeful they would take it, but I'm not Pollyanna," he said.

The case involved a defendant charged with armed assault with intent to murder and assault and battery by a means of a dangerous weapon. During the trial, the defendant's attorney argued the state did not present direct evidence that the gun's barrel length was less than 16 inches, an element of the offense. The trial judge allowed the motion. Though it was entered on the docket, the jury did not hear that the judge granted the directed verdict and the trial continued.

Prior to closing arguments, the prosecutor in the case gave the trial judge a Supreme Judicial Court case holding that evidence that the gun was a "handgun" or "revolver" satisfies the element regarding gun-barrel length. Following this hearing, the trial judge determined she should submit the charge to the jury despite protests from defense counsel.

The defendant was later convicted of all charges and appealed to the Massachusetts Appeals Court, which affirmed the trial court's denial of the defendant's motion for a new trial and his convictions.

As soon as the cert was granted by the Supreme Court in June, both Nathanson and Neaves focused solely on the case.

"I just couldn't begin to calculate how much time has been spent on it," Nathanson said.

Likewise, Neaves said she spent most of July researching cases and all of August writing and editing the brief, including during her summer vacation in Maine. The first thing she did was assemble a team of people, which included Assistant Suffolk County District Attorneys Joseph Ditkoff and Dean Mazzone, who originally had the case, and David M. Lieber from the Attorney General's Office.

Neaves wrote the brief and it went through several rounds of edits before being reviewed by the National Association of Attorneys General. It went to the printer Nov. 1.

"This really went through weeks of editing and it paid off," she said. "It became a much better product."

The same intensity followed as the lawyers prepared for oral argument.

Neaves went through three moots prior to the argument, two at the Attorney General's Office and one in Washington, D.C. For the Boston moots, Neaves picked a variety of people with different expertise to serve as judges.

"I tried to get as many people as I could who were not criminal law specialists," Neaves said. "About half were not too familiar with criminal law, so they asked tougher hypotheticals. It was really beneficial."

Neaves said the moot court judges took their jobs very seriously and came very prepared to ask tough questions. As she prepared for argument, Neaves literally took apart each sentence of her 30-page brief to anticipate questions the justices might ask. The endeavor was worth it. She said the Supreme Court justices did not ask her one question that she had not been asked during the moots.

Nathanson said he received tremendous support from the defense bar, which also assisted him with moots. Still, he said nothing could have truly prepared him for the day.

"Nothing, I mean nothing, can actually prepare you for it," he said.

For instance, Nathanson called the questioning he received from Justice Sandra Day O'Connor "harrowing."

"She got impatient with me and said at one point, 'Will you just answer the question please?" Nathanson said. "I don't remember exactly what I said; I launched into another attempt to answer the question and I hope I did, but I don't know that I did.

"They wanted something you can boil down to perhaps a sentence and I had four sentences. I got through about one and a half sentences they were asking for and somebody else had a question. One of hardest things about the whole experience is to have impossibly condensed answers on the tip of your tongue."

One of the most surprising aspects of the Supreme Court, Neaves said, is how close attorneys are to the justices during argument. Unlike other appellate courts, where justices may be physically elevated from the floor, Supreme Court justices are at eye level.

"It's wonderful, because it lends itself to a conversation," said Neaves. "You are really close to them and you feel like you are having a conversation with them, which is very unusual. That can be disarming, but it really made it nice."

Arguing before the Supreme Court also is extremely formal. Neaves said she read a manual on how the court operates about 10 times to make sure she wouldn't do anything wrong.

"It really was quite like a dream in a sense that you are not sure it was really happening," she said. "But they are very nice and very courteous and courtly and that makes it easier."

The lawyers also brought a crew of people to watch the argument. Neaves' husband, Chris, and son, Aaron, attended, and Nathanson was accompanied by his wife, parents, brother and a colleague.

Both sides were allotted 30 minutes to speak. An attorney from the Solicitor General's Office took 10 minutes to argue on Neaves' side, and Neaves spoke for 17 minutes.

"I sat down before my time was up. The court was finished and they had indicated they had no other questions," Neaves said. "One of the first rules of being an appellate lawyer is knowing when to sit down."