PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ------------------------------------------- U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 97-9027 2/18/98 THOMAS K. KAHN -------------------------------------------- CLERK (D.C. No. 1:95-cr-528) UNITED STATES OF AMERICA, Plaintiff-Appellee, versus

ANTHONY GEORGE BATTLE, Defendant-Appellant.

---------------------------------------------------------------- Appeal from the United States District Court for the Northern District of Georgia ---------------------------------------------------------------- (February 18, 1998)

Before HATCHETT, Chief Judge, EDMONDSON and BLACK, Circuit Judges.

B Y T H E C O U R T: Appellant’s “motion for

reconsideration of denial of motion to

file a seventy-five [the first motion was

for eighty pages] page brief and to accept

seventy-five page brief” is DENIED.

Even in a death-penalty case, the court

expects counsel to be highly selective about

the issues to be argued on appeal and about

the number of words used to press those

issues. Counsel in this case remind us that

they are experienced and capable lawyers.

We believe it. But we are experienced and, we hope, capable judges. This case is not for

any of us the first case involving a death

penalty; deciding such cases is our business.

We do not understand a limitation on

the number of pages in a brief to be a blow

against an appellant’s case or an act that

undercuts effective advocacy. To the

contrary, we see reasonable limitations

of pages to be a help to good advocacy by

directing busy lawyers to sharpen and to

simplify their arguments in a way that --

as experience has taught us -- makes cases

stronger, not weaker.

Our views on what constitutes

effective advocacy are not heretical.

Justice Story wrote these words: “Who’s a

great lawyer? He, who aims to say the least

his cause requires, not all he may.” Joseph

Story, Memorandum-book of arguments

before the Supreme Court, 1831-32, in Life

and Letters of Joseph Story 2:90 (William

W. Story ed. 1851). Justice Holmes once

said, “One has to try to strike the jugular and let the rest go.” Oliver Wendell Holmes,

Speeches 77 (1934).

The Supreme Court of the United States

has also stressed in its opinions that the

best advocacy relies on selectivity. It is

well settled that counsel need not “raise

every ‘colorable’ claim” on appeal. Jones

v. Barnes, 103 S.Ct. 3308, 3314 (1983). The

Supreme Court wrote, “Most cases present

only one, two, or three significant

questions. . . . Usually, . . . if you cannot

win on a few major points, the others are not likely to help, . . . .” Jones at 3313

(quoting R. Stern, Appellate Practice in the

United States 266 (1981)). And, the former

Chief Judge of this circuit, John C. Godbold,

has given this advice: “[C]ounsel must

select with dispassionate and detached

mind the issues that common sense and

experience tell him are likely to be

dispositive. He must reject other issues or

give them short treatment.” John C.

Godbold, Twenty Pages and Twenty Minutes

Revisited 14 (1987) (revised version of Twenty Pages and Twenty Minutes --

Effective Advocacy on Appeal, 30 Sw. L.J.

801 (1976)). Counsel, in this case, raise no

fewer than 14 distinct issues.

Counsel stress that in other cases they

were allowed to file longer briefs. We note

that of the cases they cite to us, only one

was in this circuit. That case (United

States v. Chandler, 996 F.2d 1073 (11th Cir.

1993)) was, as we recall it, the case that

would lead to what was the first reported

decision in the nation on the pertinent federal death-penalty statute. Because the

present case arises against the background

of now existing precedent, we think it is

not much like United States v. Chandler

when it comes to setting page limitations.

Also, we remind counsel that the court

has the power to request additional

briefing if, after we look at the initial

briefs, we need something more. But, we

reject the idea that every death-penalty

case deserves more pages than we ordinarily allow other cases. On length of

briefs and timeliness of briefs, the usual

rules of this court apply to cases involving

the death penalty just as they apply to so

many other important cases. And, we

reject that this case demands significantly

more pages, for now at least.

Counsel are directed to file a properly

spaced, properly printed initial brief not

to exceed 60 pages (notwithstanding all

that we have said, we -- as a matter of

grace and as a courtesy to counsel -- will allow roughly a 10% increase in pages above

a standard brief) within 21 days of the

date of this order.