Sunday, December 05, 1999
Local attorney readies case before top court
Client free; dispute is over supervision
BY BEN L. KAUFMAN
The Cincinnati Enquirer
Wednesday will bring Kevin M. Schad's first appearance before the nine justices of the U.S. Supreme Court, and he would have happily forgone the distinction.
“I've been dragged into court against my will,” he said.
Mr. Schad, 31, of Blue Ash, is to stand before the justices because the government appealed his 2-1 victory for ex-con Roy Lee Johnson of Detroit.
“But it's not a bad position to be in,” he said recently. “I'm on the right side and I'm defending the 6th Circuit and I don't mind that. ... It affects a lot of cases.”
Bolstering his confidence is the knowledge that Seth Waxman, the U.S. solicitor general, must make his case first.
The question is: When does supervised release — the years federal inmates report to probation officers after leaving prison — begin?
Mr. Schad and two judges of the U.S. Court of Appeals for the 6th Circuit in Cincinnati say it starts when the prison sentence ends.
The Justice Department says supervised release begins when inmates leave prison, even if they have served extra years because of erroneous convictions and sentencing errors.
The appellate struggle began in 1991 after U.S. District Judge Horace W. Gilmore sentenced Mr. Schad's client to 171 months for one drug and two weapons offenses in Detroit. Mr. Johnson's original appellate attorney persuaded the 6th Circuit to cut that to 111 months be cause of a sentencing error on two weapons convictions.
Mr. Johnson heard about Mr. Schad on the prison grapevine, and the lawyer agreed to represent him.
Invoking a recent Supreme Court decision, Mr. Schad persuaded Judge Gilmore to dismiss both weapons convictions and to reduce Mr. Johnson's cocaine sentence to 51 months.
By then, Mr. Johnson had served 81 months. “I got him out that day,” Mr. Schad recalled. “He ... wrote to his buddies back in jail, and I got a lot of business out of that.”
Then Mr. Schad's counterattack stalled. Judge Gilmore refused to credit the extra 30 months served against Mr. Johnson's three years of supervised release. The judge said that part of Mr. Johnson's sentence began when he left prison, not when his sentence should have ended.
Any violation of supervised release risks returning a freed ex-convict to prison for the full period of supervised release, Mr. Schad said, “So shorter is better.”
Mr. Schad persuaded the 6th Circuit to reverse Judge Gilmore in a 2-1 decision that left Mr. Johnson with six months of supervised release.
Those remaining weeks passed without incident, Mr. Schad said. “He's a free man right now,” the attorney continued, but a Supreme Court loss could reinstate the 30 months of supervised release, with the risk of prison time that any misstep might entail. Overturning the 6th Circuit also would be a blow to other federal inmates with potentially successful challenges to mistakenly long sentences.
His brief safely in the justices' hands, Mr. Schad has devoted the past 10 days to relearning everything he can about his client and relevant cases.
Minding p's, q's and o's
Preparation also included an earlier trip to observe others' Supreme Court arguments:
• Expecting something like the sprawling circuit courtrooms in which he has argued criminal appeals around the country, the unexpected intimacy of the tiny Supreme Court room “makes me feel more comfortable.”
• Then there were the arguments he heard. “I learned more off the bad attorneys, what not to do.”
• Etiquette is important, and Mr. Schad is boning up on Supreme Court rules and memorizing the justices' faces because “they don't have little signs like they use in the 6th Circuit.”
One lawyer he watched twice addressed Justice Sandra Day O'Connor as “Justice Connor.” Her correction after the second mistake clearly embarrassed and disconcerted the offender.
Mr. Schad was most fearful of misspeaking to Justices Stephen Breyer and David H. Souter — two lean, balding white men of the same age. To minimize that risk, he pasted nine cutouts from a Supreme Court group photo on a seating chart he drew.
“That's what made me nervous; all of the little things.”
Mr. Schad said there is no clear majority on the meaning of the statute that created supervised release, but Justice Antonin Scalia probably will be pivotal.
Cop killer thankful for opportunity
Recent cases of aggravated stupidity
Project looks at value of care
What is Health Improvement Collaborative?
Best of holiday season on display
Singing a new tune on City Council?
Buses roll to Warren today
Probate Court demands more money
Tailpipe testing may hit a bump
No room for 'Big 10' in public classrooms
Florence's Main Street reopens
Queen City's moments to shine reflected in book
Kids' books for grownups
'Christmas Carol' mesmerizes viewers
CSO delivers interesting program of potpourri
GET TO IT
Holiday TV schedule
'Jekyll' composer has plenty of 'pop' musicals in pipeline
Local blues legend gets new hearing
Playhouse possessed by 'Christmas Carol' spirit
Work keeps CCM student from study
Child proves life is good
Magazine digs up UC archaeologists
Butler Co. salutes sports heroes
Campbell's tax hike a gutsy move
Jolivette tries to referee House speaker matchup
Local attorney readies case before top court
Man guilty of murdering Holmes senior
Mason puts schools levy on the shelf
Measure should help disabled
Township has 4 board spots open
TRISTATE DIGEST
UC Physicians edging north
UPS didn't promote pilot to high enough job to fire him
