As the Columbus Clipper notes in his comment to that last post, a large part of the Tate oral argument was devoted to the issue of remedy. (Apparently Marcus and I both whiled away the World Series rain delay — before it became a rain out — last night by listening to the Tate argument.) [CORRECTION: my apologies to the Super Muppet of Appellate Advocacy — it was he, rather than the Columbus Clipper, who made the sage observations with which this post deals.]
It’s always risky to predict a case’s outcome on the basis of oral argument questions, but the judges did seem keenly interested in the correct rememy if the court were to hold that a pretrial agreement provision limiting the right to seek clemency and parole was invalid. At one point during the appellate government counsel’s argument, Judge Erdmann told him, “I think I understand your argument. Let’s move to remedy.”
As the Columbus Clipper [should be “Super Muppet”] also notes, the appellate government counsel responded by requesting that the court fix any error by striking the clemency/parole limiting provision rather than voiding the entire PTA, which would have made Tate susceptible to life without eligibility for parole during any retrial. During the discussion that followed Judge Erdmann’s invitation, Judge Effron asked whether the government’s preferred remedy was for this case only or all cases that present a similar issue. [He wisely answered that this was a case-specific preference.] Again, we don’t want to infer too much from questions at oral argument, but . . . .