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The Honorable Guy R. Cole in the classroom at Moritz.


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Judges turn the courtroom into the classroom

January 9, 2015 | Faculty

Jeffrey Sutton ’90 has served on the U.S. Court of Appeals for the Sixth Circuit since 2003, and I first appeared before him in 2009, when I was 25. I was appealing my client’s conviction of unlawfully possessing a firearm. Police officers had entered an apartment rented by my client’s girlfriend in connection with a robbery investigation. As the officers searched the apartment, my client walked out of a bedroom and was arrested. The officers found a firearm in the bedroom, and before asking any questions, they read to him the department’s Miranda consent and release form, which included the phrases: “You have the right to talk to a lawyer before answering any of our questions” and “You have the right to use any of these rights at any time you want during this interview.”

The issue was whether it satisfied Miranda to advise my client that he had the right to talk with a lawyer before questioning and that he could invoke that right “at any time … during the interview.”

For his part, my client signed the form and swore he understood his rights and was willing to talk with the officers. Then he confessed he owned the firearm found in the apartment. He said he knew he was not allowed to own a firearm because he was a felon, but he purchased and carried it anyway for personal protection.

Prosecutors charged my client accordingly (one count of unlawfully possessing a firearm), and at trial the interrogating officers testified that my client confessed he owned the firearm. I objected on Miranda grounds to the confession’s introduction, but the court overruled me — and ultimately the jury found my client guilty.

We appealed to the Sixth Circuit, arguing that the consent and release form violated Miranda, and our panel included Sutton, a tough questioner once described by The Washington Post as the “intellectual engine” of the Circuit’s conservative bloc. With my client serving 10 years, my job was to persuade Sutton that the warning my client received was flawed because the right to talk with an attorney before questioning is not identical to the right to talk with an attorney during questioning. I needed Sutton to believe that the consent and release form would suggest to a reasonable person in the suspect’s shoes that he may consult with a lawyer only before questioning.

Sutton’s questions came fast.

Is this warning substantively or otherwise different from the FBI warning that some believe was approved in Miranda?

You want us to believe that your client, who decided to talk, even though he was told he could consult an attorney before questioning, and at any time during the interview, then he confessed—you’re saying if he had only understood he could have an attorney present during the interview, he would not have confessed. Is that right?

Is there any malevolent reason the police would adopt this consent and release form?

As the questions came at me, I bobbed and weaved and parried and covered up. I tried to protect my client’s position while embedding in my answers the idea that I was not only right on the law but also seeking a just result. I tried to take a beat before answering each question, to ensure I knew what I wanted to say before speaking. And I tried to exude confidence, talking in a clear tone and standing tall. I had no idea how I was really doing as I completed my argument, until Sutton said, “OK, that was great, just a few things to work on …”

“JUDGES HAVE A STAKE IN LEGAL EDUCATION”

When I appeared before Sutton, I was a 3L in his Supreme Court Litigation seminar. He required us to draft a bench memorandum for a case pending before the Court and to defend our reasoning and conclusion in a presentation that operated like an oral argument. (I drew Florida v. Powell, decided in 2010.) It was a challenging exercise that forced us—the 20 students in the seminar — to think as an advocate and put ourselves in the place of a judge, by interacting with one on a substantive issue. The rest of the class would observe and offer constructive criticism.

Not much has changed.

Jordan Watrous ’15, who took Sutton’s seminar in State Constitutional Law, said the judge engages students by asking challenging questions and sharing stories from the bench and beyond, often drawing on his experience as State Solicitor of Ohio.

“He brings a real-world approach to the classroom,” Watrous said. “It’s more like a conversation than a class. I’ll admit it can be intimidating to disagree with a federal judge, but that’s what he wants. He wants to discuss and debate important issues, and we do presentations. That kind of interaction is valuable for us as students.”

Sutton has been teaching nearly 30 years, going back to his days at Columbus Academy, where he taught 7th-grade geography and 10th-grade history. He first taught at Moritz in 1993 when Frank Beytagh, then the dean, asked Sutton to co-teach a course on the Supreme Court. Beytagh had clerked 30 years earlier for Justice Earl Warren and thought that Sutton, who had just returned to Columbus after clerking for Justices Lewis F. Powell and Antonin Scalia, could use his fresh perspective to enliven the course. Since then, Sutton has taught half a dozen different courses at Moritz, three of them regularly. He also has taught at Harvard Law School and Vanderbilt Law School.

“I come from a family of teachers: My mom, my dad, my grandparents,” Sutton said. “When I went to law school, leaving Columbus Academy, it wasn’t because I disliked teaching. I enjoyed it then and the students at Moritz are terrific. I still enjoy it very much, working with people who are trying to understand how things work.”

He’s not alone. Sutton is one of 10 judges who teach at Moritz. In addition to Supreme Court Litigation, their courses range from Appellate Advocacy to Trial Practice to Evidence seminars to State Constitutional Law. And their day jobs range from trial, to specialty, to appeals courts — at the local, state, and federal levels. Some are Moritz alumni; others are not. Some had teaching experience before law school; others did not. Some maintain a full docket; others do not. All of them, however, share a commitment to help students — to help them develop their understanding of the law and legal process, with the goal of equipping the students to improve society.

And to improve the judiciary, specifically.

“In the years I’ve been a federal judge, I’ve found myself adopting a different mission in my teaching,” Sutton said. “You learn quickly that courts perform better when advocacy is of a high quality, so judges have a stake in legal education. I teach students in Ohio and many of them will stay in Ohio or in the Sixth Circuit — and I’m trying to improve the quality of the bar and by extension the quality of judicial decisions.”

It’s not uncommon for the judges to hear cases involving their former students.

Norah McCann King ’75 is a magistrate judge on the U.S. District Court for the Southern District of Ohio and has taught at Ohio State nearly 40 years, first at the Fisher College of Business (as full-time faculty) and later at Moritz (as adjunct faculty). She normally teaches one course per year at the law school, right now Trial Practice, and a number of her former students have appeared before her.

“They do quite well, and I take not a small measure of pride in their performance,” King said. “As a teacher, I find it deeply satisfying to participate in their entry and growth in the profession.”

“HOW TO ADDRESS THE JUDGE”

King said the most important change in legal education since she began teaching is the increasing emphasis on the practicalities and realities of practicing law without sacrificing a strong grounding in theory. Moritz in particular, she said, has developed clinics and practice-based courses to teach students how to use specialized materials and navigate successfully the processes relevant to certain practice areas. With that in mind, King views teaching as a collaborative effort (“We’re all learning jointly”) and uses her experience to assist and guide her students. Her students appreciate her approach.

“She’s very hands on,” said Peter Berg ’14, who took King’s Trial Practice course. “She offers advice on where to stand, how to address the judge, how to handle a hostile witness, and so on, all based on her years of bench experience. It’s great for the students because she does this every day.”

The same goes for Sutton. He tells students to approach each class session as a court appearance, and his lectures are filled with stories from the bench and his journey to becoming a judge. He even invites small groups of students to join him after class at Eddie George’s Grill 27 so he can get to know them.

Jesse Lemon ’14, who took Sutton’s State Constitutional Law seminar, said the judge also stresses personal development and takes pride in his students’ success.

“Each class contains valuable and practical nuggets of wisdom and he provides terrific advice on many things, from getting cases before the Supreme Court to eliminating words that judges dislike,” Lemon said. “He really cares about his students and how well they’re doing.”

I’ll second that. When I called Sutton to interview him for this story, the first words out of his mouth were, “How’ve you been? What are you doing these days? I hope you’re well.” Then he told me where I sat in the classroom and asked why I hadn’t argued a case yet before the Supreme Court.

My answer? I bobbed and weaved and parried and covered up.

 – By Jonathan Peters ’10,  the press freedom correspondent for the Columbia Journalism Review. An attorney and assistant professor of journalism at the University of Kansas, he has written on legal issues for The Atlantic, Slate, The Nation, Wired, and PBS. Follow him @jonathanwpeters on Twitter.