Justice Alito presides over Marden Moot Court Competition

Nothing gives a mock U.S. Supreme Court hearing a frisson of verisimilitude like the presence of an actual Supreme Court justice. On April 7, a standing-room-only crowd at the Law School witnessed exactly that. Justice Samuel A. Alito Jr. joined Judge Michael W. McConnell of the U.S. Court of Appeals for the Tenth Circuit and Judge Diana Gribbon Motz of the U.S. Court of Appeals for the Fourth Circuit in presiding over the 37th annual Orison S. Marden Moot Court Competition, organized by students on the NYU School of Law Moot Court Board.

In the fictitious case Veruca Salt v. United States, created by Roxana Labatt ’10 and Kate Corbett Malloy ’10, the petitioner appealed her conviction for attempting to smuggle piñatas filled with oxycodone into the country. Salt’s appeal argued that the government had violated her Fifth Amendment rights by introducing as evidence of guilt Salt’s silence prior to her arrest and the reading of her Miranda rights. The appeal also asserted that the Constitution’s ex post facto clause had been violated when the district court judge looked to a newer version of the federal sentencing guidelines that recommended a longer sentence, rather than the guidelines in place at the time of Salt’s offense.

These were thorny questions that, as Judge McConnell pointed out, were “pitched at pressure points within the Supreme Court’s jurisprudence.” Both the petitioner’s counsel, Daniel Weinstein ’09 and Vikram Kumar ’10, and the respondent’s counsel, Matthew Lafargue ’10 and Beth George ’10, faced a barrage of challenging queries from the panel of judges.

Weinstein, arguing the Miranda issue, fielded a question from Justice Alito concerning the precise moment at which Salt’s Fifth Amendment rights were violated. A crucial element that triggered Salt’s Fifth Amendment rights, Weinstein said, was the fact that the officer commented on the number of piñatas in her backseat. Weinstein’s assertion prompted a spirited exchange between counsel and the bench. “Was that even a question?” Judge McConnell asked. “Didn’t he just say, ‘Wow, that’s a lot of piñatas’?... Suppose, instead of being quiet when the officer said, ‘Wow, that’s a lot of piñatas,’ she had said, ‘Oh, my goodness, you’ve caught me. They’re drugs.’ Would that confession be admissible?”

Tackling the question of the sentencing guidelines, Kumar argued that the lower court’s sentencing of Salt was an ex post facto violation. Pointing out that a district court can impose a sentence of its choosing, Justice Alito said, “Why does it make a difference whether the judge imposes an above-guidelines sentence based on new information that is contained in an amendment to the guidelines that is inapplicable to this case, as opposed to similar information that is brought to the judge’s attention in any other form—in a law review article, in a newspaper editorial, on a TV show?” Kumar answered, “Because the guidelines serve as the initial benchmark as per this court’s holding in [Calder v. Bull], and when that benchmark moves in a way that disadvantages a defendant, a significant risk of harsher punishment is created, and the ex post facto clause is violated.”

On the government’s side, Lafargue made a forceful argument that Salt’s Miranda rights were not triggered prior to her being taken into custody. “The problem I have with your argument is that I’m not sure that this doesn’t undermine Miranda altogether,” Judge Motz said. “If we should hold your way here, don’t we encourage police officers to just keep defendants in their car over by the side of the road until they do say something incriminating, or, if they keep silent, we use that against them, too?” Lafargue answered that Miranda rights are triggered in cases of custodial interrogation, but he continued to field challenges from the panel.

George, the last counsel to speak, made the claim that the ex post facto clause did not apply in Salt’s case, but faced questions from all three judges from the very beginning, pausing to delve deeply into the clause’s intricacies before continuing with her argument. In response to George’s assertion that the sentencing guidelines, now only advisory, do not constitute an ex post facto violation, Judge Motz said, “Doesn’t it indicate that the guidelines still have a pretty strong effect on a sentence, if that’s the starting point for every single sentence?” George answered, “The guidelines may have some type of ‘anchor’; in fact, that’s the language that this court has used. However, that does not rise to the level of a significant risk.”

After a brief deliberation, Justice Alito named Lafargue as Best Oralist in recognition of Lafargue’s masterful performance during the hearing. But Justice Alito gave high praise to each of the counsel for their preparation and poise: “I think we were harder on you than we generally are on lawyers who appear before us in regular cases. We wanted to give you a workout, and I think we did. I can’t tell you how many arguments that I delivered as a lawyer when I staggered out of the courtroom after the performance. None of you should feel that way.”

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