Federal Litigation Clinic Students Argue Appeal Before Second Circuit

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Prior to the coronavirus shutdown, recent graduate Katherine Anne Boy Skipsey ’20, along with Nina Riegelsberger ’21 and Ruadhan McKeone ‘20, had the remarkable and rare opportunity to argue an appeal before the United States Court of Appeals for the Second Circuit.

Preparing and rehearsing for nearly two months, the three Federal Litigation Clinic students, under the supervision of Professors Michael W. Martin and Ian Weinstein, immersed themselves in the law and the facts of a criminal case to primarily argue the unconstitutional vagueness of a New York State correctional rule. Boy Skipsey credited the Fordham Law faculty and peers for her readiness to argue before the bench, composed of Judge Leval, Judge Hall, and Judge Lynch. “There are attorneys that hope their entire lives to argue before the Second Circuit, some of the brightest legal minds in the country,” Boy Skipsey reflected. “I feel extremely honored by this opportunity. I had never felt so passionate about my work, and it’s because I knew that I was fighting for something bigger than myself: constitutional rights. That was a powerful motivation.”

Parsing the Meaning of “Gang-Related”

The clientwho was sentenced to 25 years in maximum-security prisonwas found guilty of violating New York State Department of Corrections (NYS DOC) Rule 105.13 in 2014 and spent six months in solitary confinement––what may be considered an atypical and significant punishment––for possessing old family photos that allegedly depicted gang affiliation. Rule 105.13 states, “An inmate shall not engage in or encourage others in gang activities or meetings, or display, wear, possess, distribute, or use gang insignia or materials including but not limited to, printed or handwritten gang or gang-related material.” The pictures in question included a photograph from the client’s niece’s 12th birthday party, portraying only children gathered around a cake, and one of a little girl wearing blue beads in her braids. The photos had been in the client’s possession approximately 10 years in which he was transferred to more than a dozen correctional facilities. Not one facility, including Shawangunk Correctional Facility in 2012, had challenged the photographs during that time. In 2014, when he was transferred back to Shawangunk, correctional officers, without notice, confiscated the images deeming them gang-related material in violation of Rule 105.13.

The client had two correctional hearings in 2014 and 2016 with procedural deficiencies and significant inconsistencies in the testimonies of multiple correctional officers about whether these photographs actually depicted gang-related material. This resulted in a guilty verdict and the sentence of six months in solitary confinement in violation of the client’s due process and liberty interests. Two years later, the Federal Litigation Clinic students argued in their appeal that Rule 105.13 was unconstitutionally vague, as applied, because the text of the rule did not provide notice to the client that his family photos violated the rule and because the rule did not cabin the discretion of correctional officers, thereby leading to an arbitrary application of the rule.

Going Face-to-Face with the Second Circuit Bench

Before Boy Skipsey and Riegelsberger walked into the courthouse on March 4, they learned the six-year-long case inside and out. The two students spent the first six weeks of the Spring 2020 semester working to understand the law and the case’s record, reading and rereading the parties’ briefs, conducting additional research, and preparing their case theory. Boy Skipsey would only have 10 minutes to argue before the court but she had to practice her delivery for a month.

“Every week I was getting stronger on the arguments and in managing my time because, in those 10 minutes, I had to put forth our most persuasive argument forward,” she said. “The Second Circuit makes law. This is why they ask tough questions that highlight the weaknesses of both sides’ arguments, to ensure they make an informed decision and get the law right. My goal was to answer the judges’ questions clearly and directly, even if the questions raised difficult issues for our side. I needed to be flexible in my approach to my argument’s roadmap in an effort to balance my duties to assist the judges in understanding the law and the case and to zealously advocate for our client.”

One of the most significant challenges that Boy Skipsey faced midway through the six-week preparation period was to track the hearings’ testimonies regarding each photograph in question––lawyers are trained to make a clear record, but prison officials are not. So, she approached Riegelsberger in what Boy Skipsey called a “movie moment.” Together, they laid the photographs out on a table at the clinic and spent countless hours matching hundreds of transcript pages to the respective images.

On March 4, Boy Skipsey was prepared to argue for the allotted 10 minutesseven minutes to argue and then three minutes to rebut. However, the appeal, which should have taken a total of 20 minutes, lasted nearly an hour and a half. Due to the case’s complexity, her arguments alone totaled nearly 50 minutes, part of which were spent assisting the Court make sense of the confusing record––the painstaking work in matching all of the testimonies to each photograph paid off as it played a key role in the clinic’s argument. “It was intense and exceptional for arguments to go for that long,” Boy Skipsey said. “Standing on my feet that whole time fighting for our client and grappling with the judges’ involved questions was exhilarating.”

The Fordham Law Faculty’s Commitment to Students’ and Students’ Fellowship

Boy Skipsey credits Fordham Law’s faculty, her teammates, fellow classmates, members of the Fordham Law Moot Court team, and other Fordham friends for assisting her prepare for the rigorous oral argument––which was based on the publicly available briefs filed with the Second Circuit. Collectively, they helped her understand what her argument’s strengths and weaknesses were, how to deliver a better argument, and even what to expect from the judges the day of the argument.

“It took a village to get me ready for this argument. It was incredibly challenging and demanding, but due to my professors’ support and guidance, I was able to prepare for the rigorous oral argument,” she said. “Professor Martin and Professor Weinstein were crucial in my preparation, but even professors outside of the clinic contributed greatly to my preparation. Professor Daniel J. Capra, my Evidence professor, kindly took time and genuine interest in helping me prepare for the argument. His perspective on the case and our arguments, as well as his deep understanding of the Second Circuit panel, were invaluable,” Boy Skipsey explained. “Fordham’s distinguished faculty is the school’s most valuable asset, and students are extremely fortunate to have access to and count with the support of such prominent faculty members. I am very grateful to all my professors for their mentorship throughout my three years at Fordham,” she said. “What’s more, I truly experienced Fordham’s sense of community and solidarity throughout this process. The people from Moot Court and so many of my other peers were  deeply invested in this case and my preparation over the six weeks. I think that speaks to the quality of Fordham Law’s culture and relationships. The fellowship in this school is extraordinary.”

The Coronavirus Effect

Because the coronavirus crisis significantly and quickly escalated by the second week of March, Boy Skipsey and Riegelsberger have been unable to visit their client at the Sing Sing Correctional Facility to give him the play-by-play of the argument. They have, however, kept in touch through mail correspondence, and they say they are looking forward to visiting him as soon as pandemic restrictions are lifted.

Boy Skipsey noted that she is thankful to have argued in-person before New York was locked down and before she graduated two months later. “I’m glad our oral argument wasn’t virtual because it would have taken away from the special moment of walking through the magnificent Second Circuit courtroom and standing up before the judges,” she said. “As a student, I was very fortunate to have such a remarkable opportunity before even beginning my legal career, and I am grateful to God, the Federal Litigation Clinic, Professors Martin and Weinstein, and, of course, our client who trusted me to represent him and fight for his constitutional rights.”

The Second Circuit has yet to issue its opinion on the constitutionality of Rule 105.13, which could potentially affect 50,000 people in New York State’s correctional system.

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