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Today, as I worked hard to submit an appeal brief to the Court of Appeals, well before the filing deadline, I was reminded of a time when, as a former federal prosecutor, I had worked on another brief, and struggled to meet a filing deadline. Here is what happened in the Smith appeal.
First of all, you need to know a little bit about briefing schedules. Generally, when the defendant is appealing a conviction, he or she files a brief first and serves the prosecutor with a copy of it. Then, generally, the prosecutor has thirty days from the date of receipt of the defendant's brief before the government's responsive brief is due. Thirty days is generally deemed sufficient time in which to prepare and submit such a brief.
But here is what happened to me in the Smith appeal! Instead of serving me personally with a copy of the defendant's brief, the criminal defense attorney mailed it, instead, to my boss, who was the chief of the criminal section of the federal prosecutor's office. My office was located in Augusta; my boss was in Savannah. And there, the brief sat, and sat, and sat, for two-and-one-half weeks, on a corner of my boss' desk! Also, since the defense lawyer had filed his brief two weeks early, I had no way of knowing that it had already been submitted.
I will never forget the day when I received a telephone call from my boss about the brief. He first pretended to be calling about another case. Then, he casually mentioned, "Oh yeah, Richard, I almost forgot that I need to send to you the Smith appellate brief. We got it a couple of weeks ago. But don't worry, because it looks like an easy one for you to respond to." My heart sank! I immediately realized that I would have to work the next two weekends, in order to have any chance of meeting the filing deadline! And that is exactly what happened to me!
And that is also why, whenever I file an appellate brief, I always remember the story of the Smith brief and my insensitive boss!