On January 14, 2009, I argued for petitioner James Benjamin Puckett in Puckett v. United States, 07-9712, before the United States Supreme Court. With me at counsel table were Jonathan Hacker, Pamela Lakatos and M. Christina Rossi. Opposing was Assistant to the Solicitor General Lisa Schertler, and with her at counsel table was Kathleen Felton. The issue granted by the United States Supreme Court for review was: "Whether a forfeited claim that the government breached a plea agreement is subject to the plain-error standard of Rule 52(b) of the Federal Rules of Criminal Procedure." Amazingly, I don't think a single question was posed by the Justices to either side as to this issue.
I certainly could not have done this alone. The attorneys at O'Melveny & Meyers did a great job in preparing me for oral argument. I did five mock panels beforehand, which were all helpful. One of the these was held at the Georgetown Law School Supreme Court Institute, coordinated by Tina Drake-Zimmerman. Ms. Drake-Zimmerman was extremely friendly and of great assistance. Dahlia Fetouh wrote the excellent amicus brief for NACDL and kindly took the time to come to oral argument. Tom Vanderloo of the United States Sixth Circuit Court Library in Chattanooga was helpful and supportive. Richard Anderson, Jason Hawkins and Jerry Beard of the Federal Public Defender's Office of the Northern District of Texas were my foundation throughout this voyage.
In regard to the attorneys who sat with me a counsel table, Jonathan Hacker did a fabulous job on the briefs and was patient with this small town lawyer who had to throw his two cents in at every opportunity. Pamela Lakatos of Plano, Texas, is one of the finest attorneys I have ever known, and a real mentor to me. And M. Chris Rossi is a wonderful lawyer, and is an even more wonderful sister to assist her brother on this stressful day.
Oral argument itself was vigorous, to say the least. After my third sentence, Justice Ginsburg jumped in, and we were off to the races. All the justices, except for Justice Thomas, asked questions, some more pointed than others. Chief Justice Roberts seemed to be the most amenable to my client's position, but of course it is impossible to tell how the votes will come down. Justices Scalia and Alito seemed the least impressed with my arguments, and Justice Souter asked me a hypothetical in which he used the term "metaphysical." It was very challenging, and I did the best I could. My goal was not to appear to be hopelessly outclassed by the more experienced Assistant Solicitor General, and I like to think I achieved this goal.
All the pertinent documents can be found at: http://www.scotuswiki.com/index.php?title=Puckett_v._United_States. It is very rare that a sole practitioner gets to argue before the Supreme Court. I was aware of this, and felt the weight of history many times. One time was when we were being briefed by Clerk of the Supreme Court William Suter in the lawyers lounge on the day of oral argument. He could not have been nicer, but standing there before us in his morning coat and striped pants, and in the presence of numerous large portraits of former justices, it was a moment in which you felt a strong link to the history of the Court.
Another time I felt the weight of history was speaking with Justice Stevens during oral argument. Justice Stevens is a living link to some of the great justices of the past. Justice Stevens was preceded by Justice William O. Douglas. Justice Douglas had served with Associate then Chief Justice Harlan Stone. Associate/Chief Justice Stone had served with Justices Brandeis, Holmes, Cordozo and Taft, among others. How many poor souls had tried to match wits with these giants who have sat on the lofty bench of the Supreme Court? Not many have had this opportunity, but all probably felt as nervous as I did.
Two quotes from two very different authors seem appropriate, if not directly on point. First, Chief Justice Marshall wrote the following in his opinion in the Aaron Burr treason trial in 1807: "That this court dares not usurp power is most true. That this court dares not shrink from its duty is not less true." My hope is that the Supreme Court does not retreat from a bright line rule that a plea induced by a false promise cannot stand. There are many reasons why the Supreme Court loathes an automatic reversal rule- but, the repugnancy of such a rule pales in comparison to the repugnancy of allowing our government to trick a citizen into giving away his or her Constitutional rights to trial and due process of law.
The second quote is from recently-deceased author John Mortimer. In his short story "Rumpole and the Man of God," fictional aged lawyer T.C. Rowley ("Uncle Tom"), in lecturing his younger London temple-mates on the long-past workings of chambers, states: "We had no work in those days . . . No work of any kind. We spent our days practising chip shots, trying to get an old golf ball into the waste-paper basket with [a mashie niblick]. . . . Being able to defend myself with a club-like object would have been good training for my recent experience!
