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,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. § 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.

  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.