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:
United States Court of Appeals, Seventh Circuit.
UNITED STATES of America, Plaintiff-Appellee,
Robert Lee JOHNSON, Defendant-Appellant.
No. 04-2732.
Argued March 2, 2005.
Decided March 8, 2005.

  Before BAUER, EASTERBROOK, and SYKES, Circuit Judges.
  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.
  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.

  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.
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?
  Ouch. Thanks to Qroncy at the GCB for the link.

  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.
Ben (mail):
No, thank YOU for posting this. I feel much better about my appellate argument now.
7.11.2005 12:41pm
Chris Lansdown (mail) (www):
Could this be a bit akin to how doctors will prescribe medications that they know won't to anything because they can (statistically) rely on getting sued if they don't prescribe something? Could the council for the defense have felt a requirement to appeal and to say something, simply for the sake of having done all that he could (in some sense)?
7.11.2005 12:46pm
So, what exactly is the best face-saving measure for a lawyer in that situation (i.e., while the appeal is pending, the Supreme Court issues an indistinguishable opinion adverse to your party's interests)?
7.11.2005 1:11pm
Paul Gowder (mail):
Guest: call the client in, explain that there's no case, and withdraw the appeal. Rather than waste the time and money of the court and the client appealing a lost case.
7.11.2005 1:30pm
Guest, Paul:

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.
7.11.2005 1:43pm
Marc J. (mail):
I'm pretty sure I've been told that the 7th Circuit has instituted a policy of granting oral argument in all cases where it's requested.
7.11.2005 1:45pm
Paul Gowder (mail):
Orin: good point, I stand corrected. You can tell I'VE never set foot in a criminal courtroom!

Although I sure hope counsel was appointed so that the poor client didn't have to PAY for that!
7.11.2005 1:49pm
NickM (mail) (www):
Oral argument was likely requested prior to the Supreme Court's decision in Caballes.

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?

7.11.2005 2:39pm
Zywicki (mail):
My impression was that this lawyer really had just sort of let his passion about what he perceived as a terrible injustice get the better of him. He seemed genuinely and passionately concerned about the facts here and it overwhelmed his better sense. He had no argument, and just wanted the Supreme Court to "do something." At the end of the oral argument it sounds like he was so wound up and disturbed that he didn't even remember to return to his proper seat. Oral argument was his way of venting at the heavens.

So I think he let his passion override his lawyerly good sense here.
7.11.2005 2:54pm
Yea, I believe the Seventh Circuit prides itself on giving oral argument to most cases, even if it's as little as three or five minutes on each side.
7.11.2005 2:56pm
42USC1983 (mail):
I agree with Zywicki. The lawyer felt desperate. I was at the Court when it handed down Caballes, and when I heard that Stevens drafted the opinion, my heart sank. I was angry and sad. So I can empathize with this lawyer.

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.
7.11.2005 3:10pm
Reminds me, unfortunately, of my own moot court appellate argument. Oy. My brief put forth a cogent argument why some Supreme Court case should be overruled, but such an argument is obviously wasted on a lower appellate court. And at oral argument I had little else to say, due to lack of preparation. I foolishly thought I could wing it.

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.
7.11.2005 3:18pm
Greedy Clerk (mail):
Orin -- I think this is rather mean-spirited of you to post. This lawyer may well be a great oral advocate, but here he had nothing to do, nothing to work with -- he already had a tough time pre-Caballes with the combo of Whren and the prior dog-sniff case, but after Caballes he was done. And as 1983 said, some of the Judges on the 7th can be absolute bastards to counsel at oral argument so they don't have "standing" to complain. . . .
7.11.2005 3:55pm
42USC1983 (mail):
GC, I wouldn't say posting it was mean-spirited. Kerr didn't name the lawyer or otherwise seek to embarass him in his persona as such. Sure, we all got a good chuckle at the expense of a lawyer, but none of us know who he is. Basically, we all laughed at a ghost. Now, had the lawyer been named, so too might my opinion. (Then again, if this lawyer has a practice of losing his cool, or otherwise confers IAC, then he should be named. But I'm not sure that's the case here.)

All in all, pretty balanced.
7.11.2005 4:29pm
John Steele (mail):
I am really hesitant to second-guess that defense counsel, excpet for the part where he lost his cool and walked away at the end. But he started his argument with what I read as a frank concession, then essentially admitted that he couldn't think of a way to distinguish the new case and asked the court to try, then tried to mount a legal argument that fizzled, then sat down. He did get in a pitch about police injustice. He could have done it more confidently, but I think that letting defendants have their day in court is really important for the system. Judge Sykes was judicial in temperment, I thought. She shut him down by opening the door and asking him how he could get by the new precedent. Judge Bauer's temperment speaks for itself.
7.11.2005 5:05pm
Ignoring the merits of whether it was mean-spirited to post this, it's really easy to figure out who the attorney is and to see the type of cases he is often involved in.
7.11.2005 5:10pm

"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?
7.11.2005 5:14pm
Let's not overlook the fine performance by the government attorney...

The Court: "You don't want us to overrule the SC, do you?"

AUSA: "No. Thank you for your time."

7.11.2005 5:15pm
Hugh Greentree (mail):
This reminds me of a case I had back in the early 90s in State court. Fortunately, I submitted the case on my brief and did not request oral arguments.

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.
7.11.2005 5:23pm
jallgor (mail):
I agree with ss. There is no case which can't be distinguished if a lawyer is creative. The argument may be entirely unpersuasive in the end but to know he has a Supreme Court case to overcome and present absolutely nothing to distinguish his case is pretty weak. How about; "unlike Caballes, my client had an increased expectation of privacy in his van because he deliberately used an air freshener designed to keep dogs and people from sniffing inside?" Sure it's a lame argument but it's not as lame as asking the court to do his work for him.
7.11.2005 5:31pm
Drew (mail):
The argument was atrocious. However, I am not sure it was as bad as the "oral argument that never was" that I witnessed at the 10th Circuit's clerks's office. On the morning of argument, all attorneys appearing before the 10th must check in at the Clerk's office. It is a typically a rather sedate atmosphere--quiet greetings, attorney's reflecting on their argument, coping with their nerves, etc. The attorney in front of me in line very loudly proclaimed his name, the name of case the case that he was arguing and his client's name. The entire room went silent at this voluble pronouncement. The deputy clerk scanned his list and apologized because he could not find that case. The attorney was indiginant and even louder when he again provided his name, his client's name ant the name of the case and added the panel number. The deputy pulled out another list and, with the entire room listening, told the attorney that the case had been argued the previous day. There was a pause, the attorney then said that it was not possible since the argument was scheduled for a certain date, but then ran from the room when the clerk told him that the date that he stated had been the previous day. I am sure everyone in the room felt the same thing that I did--none of us was going to have as bad a day at argument than the attorney who did not argue.
7.11.2005 5:45pm
Barbara Skolaut (mail):
Guest: So you go to the trouble of naming the attorney, thought no one else, including Orin, did.

How mean-spirited of you.
7.11.2005 6:14pm
R Pupkin (mail) (www):
Guest: Very Poor Taste

The Force Majeure: Where the Business of Law Begins
7.11.2005 6:30pm
Anderson (mail) (www):
But he started his argument with what I read as a frank concession, then essentially admitted that he couldn't think of a way to distinguish the new case and asked the court to try ...

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?...)
7.11.2005 7:37pm
John Steele (mail):

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.
7.11.2005 8:55pm
Doc Rampage (mail) (www):
It strikes me as odd that so many of you seem to take for granted some rule of etiquette about not humiliating people. I think that a general rule of that kind would be a good thing, but it's hard to come up with one that is honored at all in modern society. How do you all take it as a given?

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.
7.11.2005 9:04pm
Louis Bonham (mail):
Reminds me of an oral argument I attended when I was a law clerk to a Fifth Circuit judge (Judge Edith H. Jones) back in the 1980's . . . .

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.

7.14.2005 7:02pm