Oral Argument in United States v. Johnson:
It is standard at law school moot court arguments for the appellate judges on the panel to thank the students for doing a terrific job, and to tell them that the students' performance was much better than that of many advocates before their court. Students generally don't believe this. But now, courtesy of the magic of the Internet and the Seventh Circuit's website, you can listen in on a three-and-a-half minute oral argument in United States v. Johnson that may set a new standard for disastrous appellate arguments (or, if you prefer, non-arguments).
To get an idea of what was going on in the Johnson case, it helps to start with the Seventh Circuit's order affirming Johnson's conviction released just a few days after the argument. Here is the opinion:
In any event, the entire 3 minutes and 42 seconds of the argument is worth listening to, especially near the end. Here's an excerpt from the argument to give you a flavor:
UPDATE: I had mixed views about posting this, as we don't know what the story was behind the case, what was going on with the lawyer's personal life at that time, or any other details about the case. Anyone can have a bad day. I decided to post about it only after I found out that this had "made the rounds" months earlier, and was already a well-known story in many legal circles. I also made a point not to name the lawyer. Some commenters didn't feel so bound, and I have deleted their comments. Anyone who tries to identify the lawyer in the comment section will have their comments deleted and their IP address blocked.
To get an idea of what was going on in the Johnson case, it helps to start with the Seventh Circuit's order affirming Johnson's conviction released just a few days after the argument. Here is the opinion:
Listening to the oral argument makes me wonder why this case was given oral argument. I don't know the practice in the Seventh Circuit, but in many circuits they don't give argument time to open-and-shut cases such as this. And of course, with a lawyer performance like that you have to wonder what other issues there might have been that could have been argued but weren't raised.United States Court of Appeals, Seventh Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee JOHNSON, Defendant-Appellant. No. 04-2732. Argued March 2, 2005. Decided March 8, 2005.
Before BAUER, EASTERBROOK, and SYKES, Circuit Judges.ORDER Robert Johnson was convicted after a jury trial of possession with intent to distribute in excess of 500 grams of cocaine, 21 U.S.C. ยง 841(a)(1), (b)(1)(B)(ii)(II), and sentenced to 130 months' imprisonment and 4 years' supervised release. On appeal Johnson challenges the district court's denial of his motion to suppress evidence obtained during a traffic stop where a dog alerted to the presence of drugs, arguing that his consent to allow the dog to walk around his van was involuntary.
A recent Supreme Court case makes it irrelevant whether Johnson's consent for the dog sniff was voluntary. See Illinois v. Caballes, --- U.S. ----, 125 S.Ct. 834, 838, 160 L.Ed.2d 842 (2005) (holding that no legitimate privacy interest is implicated by allowing a drug-detection dog to sniff the exterior of a vehicle during a lawful traffic stop). The trooper at the scene had not finished writing the warning ticket when the officer walked the dog around Johnson's van, so Johnson's consent was irrelevant. Cf. Knowles v. Iowa, 525 U.S. 113, 117-118, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998). At argument, Johnson could not distinguish his case from Caballes, and neither can we.
AFFIRMED.
In any event, the entire 3 minutes and 42 seconds of the argument is worth listening to, especially near the end. Here's an excerpt from the argument to give you a flavor:
Judge Sykes: Any way to distinguish [Caballes]? I mean I understand that you object to the premise.Ouch. Thanks to Qroncy at the GCB for the link.
Lawyer: I hope you can find one.
Judge Bauer: Well, what you want us to do is overrule the Supreme Court.
Lawyer: I want you to help me distinguish it, Judge. I am very disturbed.
Judge Bauer: You can be disturbed on your own free time. Why are you intruding on mine?
UPDATE: I had mixed views about posting this, as we don't know what the story was behind the case, what was going on with the lawyer's personal life at that time, or any other details about the case. Anyone can have a bad day. I decided to post about it only after I found out that this had "made the rounds" months earlier, and was already a well-known story in many legal circles. I also made a point not to name the lawyer. Some commenters didn't feel so bound, and I have deleted their comments. Anyone who tries to identify the lawyer in the comment section will have their comments deleted and their IP address blocked.
I think Paul's advice is right for a civil case, but this was a criminal case in which the defendant was facing 130 months in prison and had a right to effective assistance of counsel on appeal. In that case, it seems to me that you a) look extremely hard for some argument that the Supreme Court's decision is distinguishable, b) rely on other arguments in your brief.
Although I sure hope counsel was appointed so that the poor client didn't have to PAY for that!
Still, would it have been that difficult for appellant's counsel to argue that the Caballes rule is unsound and that the Seventh Circuit should render an opinion that affirms the conviction only because it has been compelled to do so, but urging that the Supreme Court take this case up and reverse its prior holding?
Nick
So I think he let his passion override his lawyerly good sense here.
Sometimes we forget it, but lawyers are people too. Of course, the challenge of being a good lawyer is channeling one's emotions, since emotion, ultimately, moves logic. Here, the lawyer failed.
Still, he doesn't deserve our ridicule. And it doesn't seem like the client was prejudiced by his error. Johnson (the client) was caught in a typical way: pulled over (likely a pretextual stop) and then "sniffed, not searched." There was nothing to argue, and no way to win.
Sure, the lawyer could (and perhaps should) have filed an Anders brief (which a lawyer files when he believes there is no appeable error). But sometimes, hey, you just gotta vent some steam. Given the way some members of that panel have treated advocates, I'm not sure they have standing to ridicule someone who lets his emotions get the best of him.
I suspect the lawyer in this case was young, inexperienced, and just woefully unprepared. His fumbly argument seems designed to cover his lack of diligent representation with some on-the-spot zealous representation. The truth is, there's always room to argue that something is distinguishable from precedent. There's no reason, except for failure to prepare, to have nothing to argue about. When he walked past his chair in "frustration," he was just seeking to hide under a rock to escape his well-earned embarrassment.
All in all, pretty balanced.
"Silberman, Circuit Judge: Robert Lee Johnson appeals his conviction for possession, with intent to distribute, of crack cocaine. He argues that the evidence against him was the product of a stop and frisk that was not supported by reasonable suspicion. We affirm." USA vs. Johnson, Robert Lee (2000)
Are these the same defendents? Or are Robert Lee Johnsons particularly likely to possess cocaine and appeal on the basis of illegal search?
The Court: "You don't want us to overrule the SC, do you?"
AUSA: "No. Thank you for your time."
BRILLIANT!
Two months before I submitted my brief, the Ohio 10th District Court of Appeals ruled that certain conduct by a judge in a criminal trial was grounds for a new trial. I get a transcript for a new case and I found that the judge in my case had made the exact same error. So, I drafted a brief using this as one of my assignments of error (and also listing two additional assignments of error just to be safe).
I submitted my brief. A few days later, a DIFFERENT three judge panel of the 10th District took the exact same issue and ruled the other way! OUCH!!!! A few days after that, another 3 judge panel followed the lead of panel number 2. Needless to say, my primary argument was TOAST!
I submitted an amended brief making reference to the more recent decisions and to my additional assignments of error (and I was very glad that I made those extra arguments). I am glad as HECK that I did not have to argue THAT case! My guy lost. Oh well.
You can ALWAYS find distinguising facts. This lawyer was lazy and sloppy. His conduct was disgraceful, especially when he (apparently) moved to leave the court room after ending his argument.
How mean-spirited of you.
__________________________________________________________
The Force Majeure: Where the Business of Law Begins
www.theforcemajeure.blogspot.com
Right there, "asked the court to try." Correct me if I'm wrong, but one does not walk into a circuit court of appeals and ask them to make one's argument for one.
(What argument of *mine* will be an internet laughingstock in years to come?...)
I'm not a criminal law specialist, but it's my understanding that in some criminal appeals, in some jurisdictions, you in fact can ask the appellate court to search for issues for you (e.g. an Anders brief; California's Wende brief; SCOTUS Smith v. Robbins (2000)).
But I was also trying to make a point about the importance of letting criminals have their day (or their two minutes) in court. To me, the lawyer started on the right foot by signaling that the new precedent was almost surely fatal. IMHO, Judge Bauer could have handled it better than he did.
My overal point is a modest one and it falls into the "walk a mile in his shoes" category.
Is this a special rule for lawyers or does it also apply to doctors, auto mechanics, and politicians? For example, if you saw an auto mechanic do something to someone's car that was so stupid it was funny, would you feel morally obligated not to name the mechanic (or his shop) when you told the story?
I can't say that I would and I'm generally on the consciencious side when it comes to embarrassing people. I don't believe it is possible to distinguish the mechanic case from the lawyer case.
As best I recall, the case (let's call it "Case X", as I've long forgotten the style) involved a very discrete rule of law that had been the subject of many conflicting district court decisions. A few days before the oral argument in Case X, another Fifth Circuit panel issued a ruling that unambiguously settled the issue, and all but guaranteed that there would be a reversal and remand for a new trial in Case X.
Appellant's attorney was an eager young attorney who gleefully brought this decision up right away, but then for good measure took all of his alotted time going over all the other points in his brief in rapid succession. (The Court was basically alseep, given that they all knew that the new decision was dispositive.)
Appellee's attorney gave it the old college try to distinguish the new opinion, but after about a few minutes was cleanly shot out of the saddle by direct questions from the panel, and wisely tendered the balance of his time back to the court.
Appellant's attorney then rushed to the podium, announcing that he has six reasons why the case can't be distinguished. At this point, the chief interjects with some priceless advice:
JUDGE HIGGINBOTHAM: Son, when you're ahead by twenty points and there's a minute to go in the fourth quarter, don't put the ball in the air.
COUNSEL: Ah . . . yes. I also tender the remainder of my time.
LKB