AUSTIN, Texas, March 29, 2012 -- In less than a year, Evan Young has received two phone calls from the U.S. Supreme Court that brought good news to the litigation associate at Baker Botts L.L.P.
The first call last June from Justice Antonin Scalia asked Young, his former clerk, to brief and argue before the Court in defense of the Fifth Circuit’s judgment in Setser v. United States during its October term. Young was surprised by the request, but stood before the justices in November and presented his case. It was his first appearance at the Court, and it is one he will remember for a long time.
The second call came Wednesday, when the Supreme Court Clerk’s office reached Young at his Austin office while he was searching the web looking to see if the Court had ruled on Setser.
“Before I saw it online,” Young recalled, “the phone rang and one of the assistant clerks let me know the decision had been handed down. When she let me know the judgment was affirmed, I was elated; ‘affirmed’ was the word I wanted to hear.”
Since 1954, only 45 lawyers -- including Young -- have received a call to brief and argue a case where, for whatever reason, a party had abandoned a previously winning legal position.
In Setser, the government decided to oppose a Fifth Circuit decision in its favor and, at least in this case, supported a convicted criminal in arguing that the jailer, not the judge, should determine whether a federal sentence could run consecutively or concurrently to a state sentence that had not yet been imposed. Young briefed and argued in support of the Fifth Circuit’s ruling that federal judges have that authority.
The Court agreed with Young’s position. In the majority opinion issued today (March 28, 2012), and written by Justice Scalia, the Court said that Congress never intended to take sentencing power away from judges and give it to jailers. It is desirable “that sentencing not be left to employees of the same Department of Justice that conducts the prosecution,” the Court stated.
This appears to be only the second time in the Court’s history that a criminal case has been upheld when both the criminal and the Solicitor General said the lower court’s decision should be reversed.
“I am very glad that my argument was accepted by the Court -- and I am thrilled that my old boss was the one to say so,” Young said. “Most importantly, we think that this result will, in the main, be beneficial to American citizens who are on trial in federal court. They will be able to make their arguments to a judge -- which is what we all expect to be able to do -- and not to the jailer.”
Reflecting on the events of the past nine months, Young said he is still grateful to the Supreme Court for giving him the opportunity to brief and argue the case.
“I am grateful to Baker Botts for supporting me and allowing a solid team of lawyers to help,” Young said. “We were told the position to take, and as lawyers, we are always ready to do that. In this case, we became truly convinced that the position we were asked to take was also the correct one. That makes today’s result especially gratifying.”
The Supreme Court opinion in Setser is available here.
About Baker Botts L.L.P.
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