Thread by @RMFifthCircuit

The Fifth Circuit has just started in this matter.

5thcircuit.streamguys1.com/east

https://twitter.com/RMFifthCircuit/status/1377621241335582723

Judge Smith asks up front whether Hope is arguing that any long-term solitary confinement is unconstitutional.

Anand says that she is not making that argument here.

Judge Haynes asks Anand to summarize why the periodic committee meetings that happen in the prison to evaluate his confinement are not enough.

Haynes: "What is your best case for the proposition that a judge or committee not really listening violates due process?"

This goes to Hope's due process claim -that his opportunity to press his claims to get out of solitary are a sham.

Haynes: "If we were to rule in Mr. Hope's favor, what specifically are we to direct the Court to do?"

Anand begins to explain, but Haynes jumps in and "to summarize, all you're saying is that you want the case reversed for the next stage of the litigation."

Haynes: "When I was in law school, the professor would say 'What really happened here?' So what *is* happening here? Why is this person still in solitary despite all this litigation?"

The state is now up. The state says that you really have to go back to complaint.

Haynes interjects and goes back to her point about "why are we here?"

Haynes says - look, couldn't you as the State's lawyer try to figure this out? I'm struggling to see why solitary is ok here.

But the State says the reason is that there is a penalogical reason to keep him in solitary.

Smith: "Is it or is it not an element of this punishment that this prisoner has tried to escape?"

The state says yes, there was an escape attempt (although it is in 1994).

Haynes: "Stepping aside from pure solitary confinement, how do you deal with mistreatment of him?"

[He has alleged that he was, for example, placed in feces covered jail cells]

Smith: "Would you speak to the retaliation claim?"

Hope has alleged that he was retaliated against after complaining about his solitary confinement.

The State here says that this is implausible because the alleged retaliation began about a year after the complaint about solitary.

Haynes: "Is anyone else in solitary this long at this prison?"

State: "We don't know on this record."

Haynes: "So why can't they do some discovery on this to flesh out some of these facts that we don't have on this record?"

Hayes: "At this early stage, I don't understand why we have to believe your version of the facts?"

State: "It's not our facts, it's based on the facts Hope himself alleged and attached to his complaint"

On rebuttal: Judge Smith asks Anand to immediately respond to the State's argument on the retaliation claim. (the one year delay point).

Anand says there was not a one-year delay.

Anand then moves to the State's argument that Hope's own pleadings put him out of court on the legitimate penological purpose - essentially she says the exhaustion documents are not relevant, and also that the State is misinterpeting the documents in the context of the complaint.

The argument ends on the originalism point.

Expect an opinion in 2-3 months. Good job to both lawyers.