First Argument in the United States Supreme Court

My first case in the Supreme Court was Herrera v. Collins, (1) a capital case out of Texas that raised the question of whether federal habeas corpus can be used to test the issue of actual innocence after an adverse final judgment in a state court. Before taking Herrera, I had argued two capital cases on appeal--one in the Florida Supreme Court and one before an en banc panel of the Eleventh Circuit and, though I am not a criminal lawyer, much less an expert on federal post-conviction relief, I knew that the Supreme Court was sharply divided on issues relating to federal habeas and that it was particularly fractured on issues relating to the death penalty. I knew that the crime charged--the murder of a police officer--was a difficult context for the case, and I knew that the long period of time since the state court trial and appellate disposition, coupled with previously exhausted post-conviction efforts, were facts that cut very much against us. Still, through some very skillful lawyering, those who handled the case below had been able to get the four votes necessary for certiorari. It was my job to hold those votes and find a fifth. In all appellate work, I believe strongly in mock appellate arguments and, indeed, I believe that it is very useful to have several of these. Even before writing the brief, I find it helpful to have a mock argument before attorneys who are experts in the substantive field at issue, and then to use those sessions to guide the crafting of the brief. In this instance, I had the great benefit of a co-counsel who was very knowledgeable about the law in capital cases, Mark Olive, and we decided that we needed intense feedback as we prepared for the argument. Luckily, the Florida State University College of Law (where I was then a faculty member) allowed us during the fall semester of 1992 to team-teach a role-playing class built around the Herrera case. We enrolled students in the numbers required to have nine stand-ins for the members of the Supreme Court plus two students assigned to represent the state of Texas, and immersed them for the first part of the term in the law of habeas and capital post-conviction litigation. After lectures, they studied the Court's opinions on those topics, nine of them paying particular attention to the opinions of the justices whose roles they would play during the oral argument and in conference. As the semester progressed, we came together for a formal argument, a follow-up conference, and opinion-writing by the students. I appeared before the student court and was, predictably, worked over very hard by the student playing the role of Justice Scalia. The other members of the mock court were also very vigorous in their questioning and, following argument, in their conference discussions, which Mark and I observed. It was instructive, if sobering, to watch the students debate the issues and to read their opinions. The outcome did not bolster my optimism about the case--the mock court ruled with Texas--but this intensive exercise was very useful in preparing for argument, especially as it helped me sharpen my planned responses to the questions we most expected the Court to raise. We supplemented this law-school exercise by engaging in a moot court conducted by habeas experts in Atlanta (I think the students were at least as tough), and then, just before argument, another before a panel of Supreme Court experts in Washington, D.C. At the end of this preparation, the actual appearance before the Court was, in some respects, laden with less terror than might otherwise have been the case. The possibility that I might embarrass myself before my own students had prompted me to prepare carefully right from the start. …