Mayer Brown associate Steve Sanders will argue his first case before the U.S. Supreme Court on Nov. 4.
He will argue Pottawattamie County v. McGhee, No. 08-1065, on behalf of the petitioner. Sanders, who has been practicing for three years, will go up against former Solicitor General Paul Clement, who has argued 49 times before the Supreme Court.
The original case was filed by Terry Harrington and Curtis McGhee, who were convicted of murder in 1978. After serving 25 years in prison, Harrington’s conviction was vacated by the Iowa Supreme Court. Both are now out of prison.
The case Sanders is arguing before the Supreme Court involves the claim made by the men that injury occurred to them as a result of acts the prosecutor did during the investigation. Sanders is representing the county and its two former prosecutors.
Sanders said the prosecutor is immune from any suit claiming that he knowingly introduced false testimony in trial.
“What the respondents are trying to do, we argue, is tunnel around that absolute immunity and say that actually it was the prosecutors’ actions during the earlier investigations that violated their constitutional rights,” Sanders said.
Sanders said the Supreme Court has never recognized that sort of theory. The Constitution’s discussion of due process only guarantees a fair trial, he said.
“It is clear from Supreme Court case law that there is no constitutional right to a fair investigation,” Sanders said. “There is no right to have an investigation conducted in a certain way.”
“We lost in the courts below,” he said. “The district court and court of appeals denied our claim of immunity.” But he said it is helpful that the United States has filed an amicus brief in favor of their case.
“I think the main thing that gives me confidence is our position on the law is very strong,” Sanders said. “The other thing that gives me confidence is I will have five different moot court sessions with some very smart people, both academics and private practitioners.
“Those will both give me an opportunity to hone my presentation and my skills, and hopefully between the combination of smart people, pretty much any question the court is likely to ask I will be able to anticipate and have an answer for.”
Getting the chance to argue this case represents a good example of how the firm encourages an entrepreneurial culture — something any associate should not underestimate as they pursue opportunities for significant responsibilities on matters, he said.
Sanders said the nice thing about having a case before the Supreme Court is that everyone respects his time at the firm, and realizes this case must be his top priority.
All the written work is done, so he will be preparing his oral argument, rereading the briefs, immersing himself in lower court record, and trying to anticipate any possible question that a justice might ask him.
“I’m making good notes, but I’m also trying as much as possible to commit those answers to memory,” he said.