In reflecting on my experience before the United States Supreme Court, I find two books coming to mind: The Once and Future King by T. H. White and Pygmalion by George Bernard Shaw. Both books came to life on the Broadway stage in musicals: “Camelot” and “My Fair Lady.”
The story of young King Arthur as he pulled the sword out of the stone can be compared to getting a Writ of Certiorari granted. I later found out that approximately 80 out of 8,000 are granted annually. MAGICAL!
As far as getting ready for oral argument, I was like Eliza Doolittle learning every aspect of Supreme Court advocacy just as Eliza prepared to go to the ball.
I found out that Cert was granted on October 29, 2011, the day Hurricane Sandy crippled the East Coast. Washington had shut down, but the nine justices of the Supreme Court weathered the storm and came in to work that morning. They granted only four writs and turned away several hundred others.
I was standing at the bench in the 436th District Court, a juvenile court. My cell phone vibrated. I looked at it and the caller was Dick Burr. Dick is a death penalty and habeas resource attorney who has been helping me with Carlos’ case ever since I had been appointed in 2002.
As soon as the hearing was over I called. Dick told me that Cert had been granted. I felt as if I had pulled the sword out of the stone.
You Don’t Do This Alone
Many people helped along the way. Bud Ritenour has been my co-counsel for the past six years, replacing Alan Futrell. Bud was chiefly responsible for writing the Cert petition. Alan recruited others to write the original successor. I had become a mitigation investigator after we were denied assistance from the Court.
I cast a wide net seeking guidance and help from everyone I knew in the habeas community. I really wanted to do the oral argument, but to get ready meant a lot of preparation.
Where for others getting ready for oral argument might entail enduring two or three moots (practice oral arguments), I wound up doing ELEVEN! I was determined to make this work.
Professor David Dow at the University of Houston Law School hosted the first and the eighth. I did two at Texas Tech Law School in Lubbock, thanks to Prof. Pat Metze. One was held in Austin before the death penalty clinical professors at the University of Texas. They combined with Professor Dow to write an amicus brief (friend of the court). Two were done in San Antonio—one at St Mary’s Law School, my alma mater, and the other before members of the Federal Public Defenders office in San Antonio’s Western District (which boasts of two successful first-time oral advocates before the Supreme Court, Carolyn Fuentes and Jack Carter). An added bonus was a guest appearance by Professor Robert Bartels of Arizona State University in Tempe, Arizona, who was the attorney who argued the Martinez case before the Supreme Court. Wanting a non-Texas point of view, I managed to get Prof. Andrea Lyon at DePaul University in Chicago to host a moot as well. Bud accompanied me to every moot except the one in Chicago.
Not only did I endure the eleven moots; we videotaped them as well. And in addition to listening time and again to each moot, I did as Jack Carter suggested and turned off the sound and watched them to see if I had any annoying idiosyncratic gestures I needed to control.
Many offers started to pour in from Supreme Court “specialists.” Some former briefing attorneys. All from big firms with partners who argue before the Supreme Court on a regular basis. I resisted their entry into the case.
A huge addition to the team came through Dick Burr’s acquaintance with Seth Waxman. Seth, a partner with the Washington, D.C.-based firm Wilmer Hale, had been the U.S. Solicitor General during the Clinton administration. He agreed to help Bud and me write the brief and reply, and put together the joint appendix. Just an aside: Everything in the Supreme Court is dictated by special rules—the forms of the brief (booklet form), the number of words, the size of the font, and on and on. The number of people and man/woman hours Seth contributed to this effort is staggering.
Others were called in to help, including Prof. Tony Amsterdam at NYU Law School, whose insight into the justices’ idiosyncrasies was invaluable in shaping the brief and the oral argument.
Another extremely important person in this effort was president of the State Bar of Texas, Buck Files. It’s beyond current memory since a criminal defense attorney had last been state bar president. We agreed that it would be helpful for the State Bar to reassert its desire to improve the quality of capital defense as it’s set out in the Texas Guide for Capital Defense. Buck made it happen within the short time frame for the amicus brief to be filed. Justices Kennedy and Breyer favorably referred to the State Bar’s brief at least four times during oral argument.
The Pressure From Without and the Strength From Within
I really wanted to do this oral argument. I had many people from around the country who said I should defer to Seth, for all of the obvious reasons. In the final analysis, I have a lot to thank Seth for. I told him how I felt about doing the argument, and he replied, “Everybody has to have his first . . .” And we never looked back.
I was the Eagle Scout who had to learn how to swim to become a first class. In the ’60s there were no options as there are now, and every Eagle Scout had to have Swimming and Lifesaving merit badges. I gave up a trip cross-country with my Uncle Norm (the first attorney in the family, my mother’s younger brother, who I looked up to as role model in many ways). I earned my Eagle Scout badge overcoming many obstacles, and I attribute that to perseverance, which is a lesson I have drawn upon many times thereafter.
Norm had attended the prestigious Bronx High School of Science, a public high school that requires an entrance examination. Most of the entering class came from better neighborhoods than mine. It was like my competition came from Alamo Heights, and I came from a less affluent part of town. In order to prepare for the exam, I studied the “Increase Your Word Power” feature at the back of the Reader’s Digests my mother had accumulated. It paid off, and I was one of three from my junior high school to join the entering class of approximately 300.
Perseverance has played a big role in my avocations as well. I started bike riding in 1989. Soon I had built up my endurance to do century (100-mile) bike rides for charities such as MS, the Lung Association, the Heart Association, and the Lance Armstrong Foundation. The difference between a metric century (100 kilometers/62.5 miles) and a full century ride (100 miles) is the mental toughness, which I would have to draw upon in this upcoming ordeal.
When I decided to make this effort, I realized that it would take a lot of sacrifice. I sent a “vacation letter” to all of the courts, suspending my availability to take any new court appointments.
Financially, it was not going to be easy. Bud and I have still not been paid for our work in the 5th Circuit to get the case to this point. As Benjamin’s (Dustin Hoffman) dad’s friend advised in the movie “The Graduate,” “Plastics!” I am lucky to have good credit. But I knew that the experience would be priceless.
As the time grew closer, the pressures to give up the oral argument became stronger. But my determination to make this happen became more enhanced.
The people who knew me best, local lawyers including Gerry Goldstein, Stan Schneider, Mark Stevens, and Mike Gross among countless others to a man, and a woman, all advised me to keep the case. I was not going to give it up.
The circle of people helping on the case, at one time literally numbered in the hundreds, now became a very tight-knit group. Bud Ritenour, co-counsel, advisor, deputy, and trusted friend, never wavered in his support. My wife, Teresa (who had sacrificed enormously in many respects during this ordeal), and my daughter Robin, who grew up watching her dad defend numerous clients, stood fast and were an unfaltering source of support.
Most importantly, I maintained that determination that got me into Bronx Science, finished many 100-mile bike rides, and helped me pass my Lifesaving merit badge to become an Eagle Scout.
Becoming Familiar With the Court
How do you prepare for your first oral argument before the Supreme Court? Not living in the D.C. area, not going to law school in the D.C. area, and not clerking for a Supreme Court justice as my opponent had, I needed to be creative in my preparation.
Eleven moots before former briefing attorneys, some who had appeared before the Court and others who were students of the Supreme Court, aided my preparation.
In addition, I listened to over 100 hours of oral arguments, especially the Martinez v. Ryan case to which ours was so inextricably linked. (Oyez.com, now Scotus.com, is a wonderful website.) I listened to Justice Abe Fortas, who argued Gideon v. Wainwright, and watched the Henry Fonda movie version just to see the courtroom scene over and again. I watched a CNN documentary DVD I had bought on a visit to the Court the previous August when I attended a Habeas seminar in D.C. Not only did the DVD show the courtroom; it also explained the history of the Court. And it contained interviews with many of the justices, including Justice Clarence Thomas, whose voice no one would hear (as always) during the oral argument. It discussed not only the oral argument but also the process how Cert is granted and how cases are decided. It actually showed the room where only the nine justices sit to decide the cases—NO ONE else is permitted entry. One interesting note was that when the justices are discussing the cases, the order follows seniority, and no one is allowed to speak a second time until all nine have an opportunity to voice their opinions.
I read biographies about all of the justices—where they went to school, where they grew up, what part of the country they were raised, even who were also Eagle Scouts.
I researched the profile of my opponents; that changed at the last minute.
I read about Supreme Court procedure, the history of oral argument, and techniques to better present oral argument.
I read books by the justices, including Justice Scalia, as well as books by Professors Dow and Lyon.
A great mental and moral boost came the previous August when one of the Supreme Court clerks, Mrs. Tyce, gave me a special tour after my wife and I took the public tour. She took us into the courtroom. Not just the area where the general public sits but inside the bar. She said, “This is where you will be sitting.”
She grabbed me by the arm and placed me at the lectern and said: “This is where you will be standing. Look how close you are to the Chief Justice.”
How prophetic. Mind you, all of this occurred before Cert was granted.
When we returned in February for argument, she met us again and this time gave Bud and me (for a second time) an opportunity to stand at the lectern (it’s not a podium).
The Day Before (February 24, 2013)
After a moot at the Supreme Court Institute at Georgetown University on Friday and two more at the office of Wilmer Hale on Saturday, Bud and I agreed I needed to just relax. I thought about basketball players such as Kobe Bryant and Tim Duncan before a big basketball game. They always had ear buds inserted, listening to music. Teresa and Robin vacated the hotel room and went to visit Arlington. I opted to remain in the room. I went to my Pandora app and listened to show tunes, which included songs from “My Fair Lady” and “Camelot.”
Teresa and Robin brought me something light to eat, and I went to bed around 9 p.m.
February 25, 2013
We got up early and went downstairs for breakfast. We were scheduled to be the second argument of the day, beginning at 11 a.m. (I did not want to run out of steam before I began.)
At 9 a.m. all of the lawyers met with Chief Clerk General Suter. He put us at ease. He reminded us of some basic Supreme Court protocol. We then proceeded into the courtroom.
At 10 a.m. I got a chance to witness in person my first Supreme Court argument. At 11 a.m., sitting at the right hand of Seth Waxman, with Bud and Catherine Carroll—one of Seth’s attorneys who was so instrumental in getting the case and me ready—Chief Justice Roberts called the case and my name.
I opened in the obligatory fashion, “Mr. Chief Justice ,and may it please the Court . . .”
In an hour it was over—30 minutes a side.
Practicing now for 37 years, I have been a trial lawyer, argued cases before the 4th Judicial District Court of Appeals in San Antonio, the Texas Court of Criminal Appeals in Austin, the 5th Circuit Court of Appeals in New Orleans, and now before the United States Supreme Court. It was a dream come true.
I have returned to my practice back in San Antonio. But for one brief shining moment I was in Camelot. I could have danced all night.