Law Student Argues Amicus Brief Before U.S. Court of Appeals for the Armed Forces; Court Appearance 'A Huge Honor,' Student Says

What began as a phone call from Adjunct Professor and alumnus Mark Zoole, JD '88, last summer turned into the opportunity of a lifetime for third-year law student Justin Lepp. Lepp says he immediately recognized the significance of Zoole’s invitation to prepare and present an amicus brief to a Special Session of oral arguments before the U.S. Court of Appeals for the Armed Forces (CAAF).

Justin Lepp in a video simulcast of his appearance
before CAAF.

“It is a huge honor,” says Lepp, who received his undergraduate degree from the University of Chicago and has participated in several moot court teams while at the Law School. “I was given the option of what element of the case to discuss, so when we received the record, Professor Zoole and I decided to work on something we didn’t think the parties to the case were going to cover.” Lepp adds that his amicus brief focuses on the issue of whether or not a threat of suicide—as opposed to threat of bodily or other harm to an individual—can be classified as “duress.”

The case, United States v. Thomas J. Hayes, was heard by a panel of five CAAF judges in the Bryan Cave Moot Courtroom on November 2. It involves the appeal of a Navy midshipman who pled guilty to stealing and selling military equipment on eBay. In entering his plea, Midshipman Hayes made unsworn statements that suggested he had committed the crime under “duress.” His mother had repeatedly threatened suicide if Hayes did not send money to her. A military judge sentenced him to confinement, forfeiture of pay, a $28,000 fine, and dishonorable discharge.

When Hayes appealed, the Navy-Marine Corps Court of Criminal Appeals set aside the guilty plea and sentence, authorizing a rehearing. Following the rehearing, the Judge Advocate General of the Navy filed a certificate of review that accepted Hayes’ guilty plea and rejected the possibility of duress “because suicide cannot, as a matter of law, be the threat necessary to establish the defense of duress.”

Adjunct Professor Mark Zoole addresses the bench
during the Q &A period.

In preparing his amicus brief, Lepp discovered that this question had come up relatively rarely before. Also, when it has come up, it has often been limited to a military context. “It’s harder to research a case when there are not a lot of precedents,” Lepp says. “People have had to ‘make it up,’ to some extent, though all agree that the purpose of the duress plea is to provide fairness to those accused of crimes."

Two cases of the 20 or so that Lepp found through research were particularly important for his brief, which ultimately argued that the court had erred in setting aside the duress defense in United States v. Hayes. Lepp found that United States v. Rockwood (1999) laid out a comprehenstive definition of duress that has been used in a variety of courts, while United States v. Jeffers (2002) approved a duress defense when the force applied to a person is the threat of suicide.

In his amicus brief, Lepp argued that the court “should find that, as a matter of law, suicide threats may form the basis of a duress defense.” He went on to write, “A defendant who commits a crime because a loved one threatens suicide is no more or less culpable than a defendant who acts when a third person is the source of the threat.” Lepp cited several cases in which the definition of “duress” could include suicide, so long as the threat is “from some human agency, as opposed to a natural force.”

During the Special Session, Lepp answered questions from the bench for 10 minutes—time he knew would pass quickly. Asked if he practiced in front of a mirror, Lepp says that he actually chose to be "mooted" by his dog, Sokka, as well as the more traditional group of select faculty. The friendly canine audience and the tougher faculty group, plus his years spent participating in moot court, had him feeling prepared. Lepp says he hopes simply that “the court will decide the issue favorably.”

Lepp also expressed appreciation for the invaluable assistance he received from Zoole, who served as the Amicus Counsel of Record. Above all, Lepp says: “It was an incredible opportunity to present this in front of an actual court. I hope to continue building on the skills that it takes.”

When he is not busy with his studies, Lepp spends time working on the law school’s Pro Bono project, which encourages students to dedicate time to service hours outside of school. Lepp leads by example: he has spent the last two years or so serving as an advocate for a fifth-grade boy in the state’s foster care system through St. Louis’ Court Appointed Special Advocates (CASA) program. “It’s important to give back to the community,” he says. “To me, that’s what being a lawyer is all about.”

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By Timothy Fox