Professor and Alum Argue Fifth Amendment Case in Supreme Court

October 16, 2013 — Visitors to the Supreme Court on October 16 got to see two Georgetown Law powerhouses in action.

Professor Neal Katyal Professor Neal Katyal
Kansas AG Derek Schmidt (L'96) Kansas AG Derek Schmidt (L'96)

Derek Schmidt (L’96), the attorney general of Kansas, argued for the state in Kansas v. Cheever, followed by Professor Neal Katyal on behalf of Scott Cheever.  

The case addresses the scope of the Fifth Amendment privilege against self-incrimination, asking whether the use of Cheever’s court-ordered mental evaluation violates the privilege when it is introduced to rebut the defendant’s evidence that he lacked the mental state to commit capital murder. 

Schmidt, as the attorney general of Kansas, argued that Cheever waived his  Fifth Amendment privilege when he raised a defense relating to his mental status. Cheever introduced expert testimony at trial that he lacked the requisite mental state to commit capital murder. 

Yet Katyal, the former acting solicitor general who is also an attorney at Hogan Lovells, asserted that Cheever did not waive the privilege by introducing expert testimony about his mental state. Alternatively, Katyal argued that even if there was a waiver, the government’s expert exceeded it, suggesting that Cheever had a bad character and a personality disorder, according to the brief. “No waiver justified that testimony,” Katyal wrote in the brief. “It therefore violated the Fifth Amendment.” 

It was Katyal’s 18th oral argument before the Court; he is slated to argue four more this term, which will bring the total to 22. He mooted the case at the Law Center's Supreme Court Institute on Friday, October 11; Visiting Professor Jessica Clark’s 1L Legal Research and Writing class also attended. 

Paulette Miniter (L'16) said the moot broadened her thinking about the Fifth Amendment. “It also provided valuable insight into the high level of analysis, strategy and preparation that Supreme Court advocacy entails,” she said. 

After seeing the moot, Matthew Lachman (L'16) went to the Supreme Court to witness the real thing. "It was fascinating to see which lines of questioning the moot justices were able to predict, and what refinements Professor Katyal made in his argument," he said. 

Katyal, the Paul and Patricia Saunders Professor of National Security Law, teaches Constitutional Law, Criminal Law, and Intellectual Property. (For a full biography, click here.)

Schmidt was elected to the Kansas Senate in 2000 and served until 2011, when he took office as attorney general. A native of Independence, Schmidt graduated from Kansas University and put himself through law school at Georgetown while working for former U.S. Senator Nancy Landon Kassebaum, R-Kan. 

For a transcript of the oral argument, click here.

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