In late November, veteran Supreme Court advocate Roy Englert Jr. got an unexpected phone call that has propelled him into the middle of one of the highest-profile Supreme Court death penalty cases in years.
The call was from Jeffrey Middendorf, a top official in Kentucky's Justice & Public Safety Cabinet, asking Englert if he'd argue on behalf of Kentucky in the lethal-injection case Baze v. Rees on Jan. 7. It was a surprise because Englert, a top business lawyer at Robbins, Russell, Englert, Orseck, Untereiner & Sauber, has never argued an Eighth Amendment death penalty case, and when he has written briefs in capital cases, they have been on the defendant's side, not the state's. But Englert said yes, he was hired Nov. 29, and Middendorf says, "We are very confident the commonwealth made the right decision." He points to Englert's high court record of winning 14 of the 16 cases he argued. Englert goes up against another veteran, Jenner & Block's Donald Verrilli Jr., who will argue for defendant Ralph Baze.
Englert sounds unfazed about his learning curve and how late he was hired -- so late his name isn't on Kentucky's brief. "I only know one way to prepare -- study the facts, study the law," he says. Englert traveled to Kentucky last month to discuss the case. His personal views on the death penalty are irrelevant, Englert says, but he places himself in the "vast middle" of the spectrum. At issue is the standard for determining if a method of execution is unconstitutional.
"Roy is just a great lawyer -- not a celebrity, but fabulous," says Georgetown University Law Center professor Richard Lazarus. Tapping Englert, Lazarus says, is the latest example of states hiring Supreme Court experts to argue, rather than sending their attorneys general to the podium.