Jansen VanderMeulen ‘19
Editor-in-Chief
M. Eleanor Schmalzl ‘20
Executive Editor
The final round of the 2018 Lile Moot Court competition took place on Thursday, November 8 in the Caplin Pavilion. Lights illuminated the podium, sitting front-and-center in the pavilion, as well as the tables covered in black cloth meant for the esteemed jurists who had ventured to Charlottesville for the special occasion. Students and professors alike huddled around the back and along the sides of this packed “courtroom,” with seats hard to find thanks to the large crowd the opponents had drawn to the event. Katharine Collins ’19 and Christopher Macomber ’19 faced Kendall Burchard ’19 and Scott Harman-Heath ’19 in front of Judge Karen Nelson Moore of the Sixth Circuit, Judge Albert Diaz of the Fourth Circuit, and Vice Dean Leslie Kendrick ’06, who substituted for Judge Stephanos Bibas of the Third Circuit. Judge Bibas was unable to attend due to bad weather. As the room buzzed with excited anticipation, the judges entered the room, the crowd stood in respect, and the finalists put their months of hard work to the test.
Katherine Collins and Christopher Macomber after their victory. Photo Jenny Lamerth ‘19 / The Virginia Law Weekly.
This event was the culmination of many months of preparation. Collins, Macomber, Burchard, and Heath began the Lile competition in the fall of their 2L year and progressed through an individual brief (arguing both on- and off-brief) the quarterfinals, and semifinals to reach this final round. After all this work, the finalists faced the problem for the final round, written by Derek Keaton ’19. This final prompt was centered on James Herek, a fictional plaintiff in a § 1983 suit against a police officer. In the fictional problem, the officer interviewed Herek in connection with a scandal in the police department’s forensic lab. The officer told Herek he could be fired if he did not cooperate with the investigation, and Herek admitted to some misconduct. On the basis of Herek’s statements, the officer referred the case to the district attorney, who used the statements at a pre-trial, probable cause hearing. Herek’s statements were suppressed as a coerced confession, and the charges were dropped. Herek brought suit against the officer under 42 U.S.C. § 1983, alleging he was deprived of his Fifth Amendment right against self-incrimination. The litigants addressed two questions: (1) Does the Fifth Amendment’s right against self-incrimination apply at pre-trial probable cause hearings? And (2) Is the officer protected by qualified immunity because his constitutional violation was not “clearly established”?
Annie Chiang ’19 introduced the contestants. Arguing for Appellant Herek, Collins and Macomber led off by arguing that the Fifth Amendment’s protection against self-incrimination extends to pre-trial probable cause hearings and that Officer Bautch violated clearly established law by referring a coerced confession to the DA. Macomber argued that the Fifth Amendment’s application in sentencing hearings made clear that the protection against self-incrimination was not merely a trial right, but one that protected criminal defendants throughout court proceedings. Judges Diaz and Moore pushed back at this point. What about grand jury proceedings? Macomber admitted the right against self-incrimination appeared not to apply in front of the grand jury, but argued that formal proceedings in front of a judge were different. The judges sought a limiting principle: Where does the right against self-incrimination stop? Macomber was ready with an answer: Defendants have a right not to incriminate themselves in formal, in-court, judicial proceedings, not just at trial.
Burchard came next to speak, arguing for Appellee Eugene Bautch that the Fifth Amendment applies only when penalty is at stake, which explains why it can cover sentencings but not the pre-trial probable cause hearing at issue in the case. Noting that Herek had spent a weekend in jail prior to his hearing, Judge Diaz called Herek’s ordeal a “stiff penalty,” but Burchard pushed back, calling the weekend in jail “de minimis.” Burchard acknowledged that the prevalence of plea bargaining had broadened the reach of the right against self-incrimination, but insisted that the right should apply only in adversarial proceedings, which a probable cause hearing is not.
Collins went next, arguing that Bautch’s conduct was barred by clearly established law that prohibits using coerced statements in criminal prosecutions. The judges took turns questioning Collins about how Bautch’s conduct—using a coerced statement at a probable cause hearing—could be a “clearly established” violation of the law when only a few courts had declared the Fifth Amendment applicable at such hearings. Collins urged the judges to zoom out and look at the officer’s conduct more broadly. Bautch referred Herek for criminal prosecution on the basis of his coerced statements; he didn’t know they would be used only at a probable cause hearing, but expected them to be used at trial, when their use would be a clear violation of the Fifth Amendment. Judge Kendrick expressed concern that Collins’s standard muddied the water of qualified immunity doctrine.
Harman finished for Appellee. He argued that widespread disagreement among the circuits about the starting point of the right against self-incrimination precludes a finding that Bautch violated clearly established law. A right is clearly established, he noted, when no reasonable officer could think his conduct was permissible. Haman noted that the purpose of the qualified immunity doctrine of § 1983 law is to give officers space to operate in the gray area of the law. By awarding money damages against officers like Bautch who have no notice that their conduct is a violation of constitutional rights, the courts would pervert the purposes of § 1983, Harman argued.
After a brief rebuttal by Collins, the judges left the room for about fifteen minutes. The guests—students, faculty, and assorted guests—whispered with anticipation when Lile President Amanda Lineberry ’19 brought the judges back in the room. Judges Diaz and Moore both complimented the advocates and assured them they could hold their own in any courtroom in the country; they noted wryly that the students were often better prepared than the professional lawyers who argued before them. Vice Dean Queen Kendrick self-deprecatingly commented that she was out of place among such distinguished jurists (she was not) but complimented the advocates nonetheless, telling Collins, Macomber, Burchard, and Harman that they made her proud to be affiliated with UVA Law. After these compliments, the judges declared that Collins and Macomber were the narrow winners of the contest, and that Harman had won the award for Best Oralist. Harman’s forceful and persuasive tone stood out to judges and observers alike, and all the finalists excelled in their ability to advocate for their clients while maintaining excellent poise and strong skills staying composed in the moment.
Reached for comment, Collins told us, “It’s pretty cool we could get a victory where my answer to a question was, verbatim, ‘Yes. No. Kind of.’ Also have you heard Ted Kennedy is on the plaque too??” Collins also expressed a gratitude toward her and Macomber’s “tireless mooters,” including one N.S., who wore a robe and brought a hammer to make the experience realistic. Macomber expressed disappointment that he was unable to fit the phrase “skrt skrt” somewhere into his argument—he had apparently engaged in a “prop bet” to do just that—but asked that the Law Weekly communicate his gratitude to his section friends who helped him prepare, especially Sarah Ingles ’19, currently in Australia. Harman declined comment. Burchard told us, “It was an honor to compete and I’m grateful for the learning opportunities the competition provided.”