Just don't drop it on your foot--U.S. files 268-page brief in public corruption case

by Kirsten E. Small

Update 7/21/10: The Third Circuit has directed to reduce the length of its brief to 42,000 words, about a 20 percent cut. --KES

There's an aphorism that you'll sometimes hear from appellate judges: "The longer the brief, the worse the argument." Lengthy briefs tend to appear when (1) counsel take the "kitchen sink" approach, raising every conceivable issue instead of focusing on the two or three (or maybe four) issues that have a decent chance of success, or (2) counsel fail to take the time to present a clear, concise argument.

I am guessing that both issues are at play in the 268-page, 53,500-word opening brief filed by the United States in its appeal of the sentences imposed on Pennsylvania State Senator Vincent Fumo and his aide, Ruth Arnao. That's nearly four times longer than the presumptive length of 14,000 words for a party's opening brief.

What's more, the government's appeal is directed solely to claims of procedural error at sentencing (e.g., that the court should have imposed an obstruction-of-justice enhancement based on Fumo's perjurious trial testimony). The brief is not available online, but according to the goverment's motion to file the brief, it challenges seven specific guidelines rulings and "multiple, additional procedural errors made by the district court."

In fairness to the government, the trial lasted four months and involved testimony of 108 witnesses and roughly 26 hours of closing arguments. But I'm still not buying that 268 pages is really necessary. If nothing else, I'm willing to bet that a good many of the "multiple, additional procedural errors" are not worth raising to the Court, either because they are not well supported by law or because they didn't affect the outcome of the sentencing proceeding.

The really frightening thing is that Fumo and Arnao have cross-appealed their convictions, which means that the government (as Appellee instead of Appellant) will have to file another primary brief. The judges and clerks of the Third Circuit are going to have to start eating their Wheaties.